text:
    Mario MENDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-2746
    District Court of Appeal of Florida, Third District.
    Opinion filed August 1, 2018.
    Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee.
    Before EMAS, FERNANDEZ and LOGUE, JJ.
   EMAS, J.

INTRODUCTION

We affirm the judgment and sentence below, finding no merit in appellant's contention that the trial court abused its discretion in reading back to the jury a specific portion of the victim's trial testimony in response to a jury note sent to the judge during deliberations.

BACKGROUND

Mario Mendez was charged with committing an aggravated battery with great bodily harm upon Luisa Donaile, and a battery upon Ms. Donaile's fiancé, Reynaldo Araujo. It was alleged that Mendez stabbed Ms. Donaile with a knife, causing a laceration and requiring stitches.

During her testimony, Ms. Donaile testified that Mendez and an unidentified accomplice started a knife fight and attacked her and her fiancé. Luisa testified at trial that Mendez was the person who stabbed her with a knife.

Following presentation of the evidence and closing arguments, the jury retired to deliberate. During deliberations, the jury sent out a note to the judge, which asked: "What was Luisa's answer when asked who had stabbed her?"

Although the jury did not expressly use the words "testimony" or "read back," the trial court concluded that the jury was requesting to have read back to them a specific portion of the testimony given by Ms. Donaile during the trial. The stenographer was able to locate the pertinent portion of the trial testimony, and the trial court determined, with the agreement of both counsel, that the identified portion of the trial testimony was directly responsive to the jury's question. Nevertheless, the defense objected to the read-back, requesting instead that the jury simply be told to rely on its recollection of the testimony. The trial court overruled the objection, stating: "I think where they have asked for in effect a read-back, they have asked for the testimony... I am hard-pressed to deny that to the jury.... I think I have to let them hear it." The jury returned to the courtroom, and the court reporter read back that portion of Ms. Donaile's testimony in response to the question: "Who stabbed you?" The jury resumed its deliberations and found Mendez guilty of simple battery of Ms. Donaile (as a lesser-included offense of aggravated battery) and simple battery of her fiancé, Araujo.

ANALYSIS

As a general rule, we apply an abuse of discretion standard to a trial court's decision to grant a jury's read-back request. Hazuri v. State, 91 So.3d 836 (Fla. 2012). Mendez asserts that the trial court abused its discretion because the jury did not specifically request a read-back of testimony, and that, by construing the jury's note as a request for a read-back, the trial court inserted itself into what was a factual question posed by the jury. We do not agree.

Florida Rule of Criminal Procedure 3.410 provides:

(a) If, after they have retired to consider their verdict, jurors request additional instructions or to have any testimony read or played back to them they may be conducted into the courtroom by the officer who has them in charge and the court may give them the additional instructions or may order the testimony read or played back to them. The instructions shall be given and the testimony presented only after notice to the prosecuting attorney and to counsel for the defendant. All testimony read or played back must be done in open court in the presence of all parties. In its discretion, the court may respond in writing to the inquiry without having the jury brought before the court, provided the parties have received the opportunity to place objections on the record and both the inquiry and response are made part of the record.
(b) In a case in which the jury requests to have the transcripts of trial testimony, the following procedures must be followed:
(1) The trial judge must deny the requests for transcripts.
(2) The trial judge must instruct jurors that they can, however, request to have any testimony read or played back, which may or may not be granted at the court's discretion.
(3) In cases in which jurors make only a general request for transcripts, as opposed to identifying any particular witness' testimony that they wish to review, the trial judge must instruct jurors that, if they request a read or play back, they must specify the particular trial testimony they wish to have read or played back.
(c) If, after being properly instructed in accordance with subdivision (b), the jurors request a read or play back of any trial testimony, the trial judge must follow the procedures set forth in subdivision (a).
(Emphasis added).

We find no error in the trial court's determination that the jury's note represented a request for a read-back of trial testimony, triggering the procedure in subdivision (a) of rule 3.410. As the Florida Supreme Court noted in Hazuri, 91 So.3d at 845 :

[T]he role of a jury as a factfinder is of utmost importance. The guilt or innocence of a defendant hinges on the facts of any given case and a courtroom trial can be a long, drawn out, and complex process, fraught with conflicting witnesses and intricate expert testimony. Thus, a jury's accurate recollection of the testimony is crucial to its verdict. Simply put, a jury cannot properly fulfill its constitutionally mandated role if it cannot recall or is confused about the testimony presented in a case. Thus, in order to assist the jury in completing its fact-finding mission, trial courts should apply a liberal construction to a jury's request for transcripts. In other words, a jury's request for transcripts of testimony should prompt a judge to inform the jury of the potential availability of a read-back of testimony. Whether a jury asks for transcripts of witness testimony or rather uses the term "read-back," it is clear that the jury is requesting a review of trial testimony. A jury is composed of laypersons often unfamiliar with legal terms of art, and there should be no magic words required for a read-back request, especially when the intent of the jury's request for transcripts is clear.

We also conclude that the trial court did not abuse its discretion in granting the request and providing the read-back, which assisted the jury in completing its fact-finding mission.

CONCLUSION

In the instant case, the question contained in the jury's note did not require the trial court to insert itself into the jury's fact-finding process or require the trial court to resolve any conflict in the evidence. Indeed, short of using the term "read-back," the jury's note could not reasonably have been clearer: the note specifically identified the witness by name, and identified the actual question that was asked of that witness during her testimony. By its note, the jury simply requested to hear the specific trial testimony given by that specific witness in response to a specific question asked of her during trial. The trial court properly exercised its discretion in treating the jury's question as a request for a read-back and in providing the jury with a read-back of the specific trial testimony requested.

Affirmed.

      We find Mendez's reliance on Byrd v. State, 216 So.3d 39 (Fla. 3d DCA 2017) is misplaced, because even if we were to apply the principle set forth in dicta in that opinion, the question posed by the jury in this case, unlike in Byrd, was merely a request for a read-back of specific trial testimony of a single witness, and not a "question of fact," which would require the trial court to "insert itself into the jury deliberations and to resolve a conflict or questions about the evidence." Id. at 42 n.2.

      In fact, the defense voiced no objection that the portion read back to the jury was not responsive to the jury's question, nor did the defense request any other portion of that witness' trial testimony be included in the read-back.


source: Caselaw Access Project

author: SUAREZ, J.

license: Public Domain

text:
    ST. MARY'S SCHOOL OF MEDICINE LIMITED, Appellant, v. Anthony John ZABALETA, Appellee.
    No. 3D17-1584
    District Court of Appeal of Florida, Third District.
    Opinion filed August 1, 2018
    The Law Offices of Michael D. Stewart, and Michael D. Stewart, Fort Lauderdale, for appellant.
    Zumpano Castro, LLC, and Daniel E. Zumpano, Coral Gables, and Antonio C. Castro, Miami, for appellee.
    Before ROTHENBERG, C.J., and SUAREZ, and SCALES, JJ.
   SUAREZ, J.

St. Mary's School of Medicine ("St. Mary's") appeals from an order granting Anthony Zabaleta's ("Zabaleta") motion to enforce a settlement agreement. The issue below was whether there was a factual showing of St. Mary's clear and unequivocal authorization to its attorney to enter into an alleged August 30, 2016 settlement agreement. The trial court found that there was and issued the appealed order to enforce. After reviewing the record, we find that there is not the required competent, substantial evidence to support the trial court's finding that St. Mary's attorney had the clear and unequivocal authority to enter into the agreement. Therefore, we reverse.

In 2004, Zabaleta filed suit against St. Mary's, his former medical school, after it refused to issue him a medical degree. According to St. Mary's, it did not issue the degree because Zabaleta had only paid a portion of his tuition, and he had failed to complete the required course curriculum. This litigation has ground on for over twelve years. In June 2016, David Javits ("Javits"), St. Mary's attorney below, initiated settlement negotiations when he emailed a settlement offer to David Zumpano ("Zumpano"), Zabaleta's attorney. Over the next few months, the two attorneys attempted to negotiate the settlement terms through a series of emails. Throughout the negotiations, Javits represented that he had St. Mary's authorization to extend and accept certain offers. This exchange of emails culminated with a teleconference on August 30, 2016, during which Zumpano claims a settlement agreement was reached.

A few hours after the teleconference, Zumpano emailed Javits a list of settlement terms he claims the parties had agreed upon. Javits replied by email the same day and agreed to continue an upcoming hearing "pending settlement." Two days later, Javits sent a letter to the trial court notifying it that a settlement could not be reached. He also informed Zumpano that St. Mary's was not "inclined" to settle because it was unable to verify Zabaleta's credentials. Zabaleta moved to enforce the settlement agreement that the parties allegedly entered into on August 30. Following an evidentiary hearing, the trial court entered the order on appeal finding by clear and convincing evidence that the motion to enforce should be granted. This appeal follows.

"A party seeking to compel enforcement of a settlement bears the burden of proving that an attorney has the clear and unequivocal authority to settle on the client's behalf." Sharick v. Se. Univ. of Health Scis., Inc., 891 So.2d 562, 565 (Fla. 3d DCA 2004). A trial court's factual findings that there is a clear and unequivocal grant of authority by the client to the attorney to settle must be supported by competent, substantial evidence in order to be upheld on appeal. Hamilton v. Florida Power & Light Co., 48 So.3d 170, 172 (Fla. 4th DCA 2010).

Case law sets a very high standard for a party to meet in order to enforce a settlement agreement. Weitzman v. Bergman, 555 So.2d 448, 449 (Fla. 4th DCA 1990) ("[C]ourts have been very stringent in what they find to be a 'clear and unequivocal' grant of authority."). The party seeking to enforce must show that there was a clear and unequivocal grant of authority to the attorney to enter into the settlement agreement. The appellate court must then review the record to determine whether or not there is competent, substantial evidence to support the trial court's finding. Our review of the record shows there is not competent, substantial evidence presented such that the trial court could find a clear and unequivocal grant of authority by St Mary's to Javits to enter into the settlement agreement.

The June 6 evidentiary hearing revolved around the email negotiations and particularly the August 30 email, which Zumpano claims memorialized the agreed upon settlement terms. Both attorneys testified, and each had different testimony and interpretations as to what occurred. They also disagreed as to the meaning of the August 30 email and its purpose. Zabaleta's attorney, Zumpano, claimed that the email memorialized the settlement terms while St. Mary's attorney, Javits, claimed everyone was aware that, as to that particular email and its terms, he had to obtain St. Mary's authorization to agree.

Zabaleta argues on appeal that the trial court's ruling is supported by the settlement negotiation emails over a period of time and that the emails evidence St. Mary's authorization. The problem is that although these emails evidence some authority to negotiate and even extend or accept certain offers, there was no evidence presented that St. Mary's authorized Javits to enter into the specific August 30 settlement agreement. Throughout the email exchanges, Javits consistently indicated when he had St Mary's authorization to extend, accept, or reject offers; however, there is no mention of such authorization in Javits's reply to the August 30 email. He merely stated that he agreed to continue an upcoming hearing "pending settlement" and reset other motions for two weeks.

Zabaleta also argues that St. Mary's authorization to settle is supported by testimony at the evidentiary hearing. But the only testimony that St. Mary's authorized Javits to enter into the August 30 settlement was from Zumpano, who testified that Javits agreed to settle during the August 30 teleconference. This testimony alone is insufficient evidence of authorization. See Architectural Network, Inc. v. Gulf Bay Land Holdings II, Ltd., 989 So.2d 662 (Fla. 2d DCA 2008) (holding that the testimony of an attorney seeking to enforce a settlement agreement as to opposing counsel's authority to settle is not sufficient to permit a conclusion that opposing counsel had clear and unequivocal authority to settle). Moreover, both Javits and St. Mary's representative testified that Javits was not authorized to accept the August 30 settlement agreement.

Because we find there is not competent, substantial evidence in the record to support the required finding that there was a clear and unequivocal grant of authority given to Javits to enter into the alleged August 30, 2016 settlement agreement, we reverse and remand for further proceedings consistent with this opinion.

Reversed.

      It is interesting to note that St Mary's is incorporated in the Cook Islands with a campus in the Cook Islands as well as in Saint Lucia. The school closed in December 2009 and has not reopened. This, in itself, raises a multitude of questions, none of which were addressed by either party. Therefore, this Court will address solely the issue of authorization presented on appeal.


author: ROTHENBERG, C.J.

text:
    Ruben ARROYO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2775
    District Court of Appeal of Florida, Third District.
    Opinion filed August 01, 2018
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Eric J. Eves, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SUAREZ and LINDSEY, JJ.
   ROTHENBERG, C.J.

Ruben Arroyo ("the defendant") appeals from his conviction and sentencing for sexual battery with specified circumstances by multiple perpetrators. He contends on appeal that the trial court erred by precluding him from inquiring into the victim's prior sexual history with her ex-boyfriend and by prohibiting defense counsel from introducing certain text messages exchanged between one of his co-defendants and the victim. The defendant also contends that the trial court erred by denying his motion for judgment of acquittal because there was insufficient evidence to prove that there were specified circumstances, namely, that the victim was either physically helpless to resist or was physically incapacitated. We find no error below, and therefore, we affirm.

BACKGROUND

The defendant was charged by information with the sexual battery with specified circumstances by multiple perpetrators for his part in the sexual battery of K.P.M.

("the victim"), which occurred on the night of September 11, 2010. The other alleged perpetrators, Dante Lee Pigatt ("Pigatt") and Gerson Juarez ("Juarez"), were also charged with sexually assaulting the victim.

Before trial, the State filed a motion in limine pursuant to the Rape Shield Statute, section 794.022, Florida Statutes (2010), to exclude any reference to the alleged fact that the victim had sex with her ex-boyfriend, Brandon Tyler ("Tyler"), prior to arriving at a party at Juarez's home, where the sexual battery occurred. The trial court granted this motion. Additionally, during the same pretrial hearing and again when the defense was cross-examining the victim at trial, the trial court ruled that the defense could not inquire about text messages exchanged between the victim and Juarez, including some sent by Juarez that were sexually explicit, because they were hearsay and because they were more prejudicial than probative.

At trial, the victim testified as follows. On the night of September 11, 2010, she and Tyler drove to a party at Juarez's home. The victim had not met Juarez before that night. The victim, who was inexperienced with alcohol, quickly drank approximately twelve shots of vodka, became heavily intoxicated, fell down, and hit her head. Tyler helped her to the bedroom, where she vomited, but he then left the party to obtain more alcohol. The defendant, Pigatt, and Juarez were in the bedroom as well. While Tyler was away, the defendant, along with the two other perpetrators, sexually battered the victim.

The victim testified that she mumbled "no" while Juarez sexually assaulted her, but that she "felt heavy," like a "ragdoll," and she could not move her arms or legs or fight back. After Juarez's initial sexual assault upon the victim, he and the defendant took turns having intercourse with her, while Pigatt attempted to put his penis in her mouth. When Tyler returned, he found the victim in the bedroom and very inebriated. Tyler carried the victim to his car, where she vomited a second time, drove her home, and with the help of the victim's mother, they were able to get her to bed. The next morning, the victim told Tyler that she had been raped at the party, and she reported the sexual assault to the police.

The defense's theory of the case was that the victim had consensual sex with the defendant at Juarez's party. Defense counsel argued that the victim had lied about the sexual battery because she wanted to conceal from her ex-boyfriend, Tyler, for whom she still had romantic feelings, that she had consensual intercourse with the defendant. After the trial, the jury returned a guilty verdict and the trial court sentenced the defendant to twenty-five years in prison, to be followed by ten years of probation. Thereafter, the defendant filed the instant appeal.

ANALYSIS

The defendant contends on appeal that the trial court erred by: (1) precluding his attorney from cross-examining the victim about her alleged sexual intercourse with Tyler prior to arriving at Juarez's party; (2) limiting his ability to cross-examine the victim about the text messages she exchanged with Juarez some time prior to September 11, 2010; and (3) denying his motion for judgment of acquittal on the ground that there was insufficient evidence to support a finding that the sexual battery was committed while the victim was physically incapacitated or physically helpless to resist.

1. Exclusion of evidence of the victim's prior consensual sexual activity

First, we find no abuse of discretion in the trial court's proper limitation of defense counsel's cross-examination of the victim regarding whether she had sex with Tyler prior to arriving at Juarez's party on the authority of the Rape Shield Statute, section 794.022(2). See Lot v. State, 13 So.3d 1121, 1123 (Fla. 3d DCA 2009) ("On appeal, we review the trial court's limitation of defense counsel's cross-examination for an abuse of discretion."). The Rape Shield Statute provides that "[s]pecific instances of prior consensual sexual activity between the victim and any person other than the offender shall not be admitted into evidence" in a prosecution for sexual battery. § 794.022(2). This language clearly applies to the victim's consensual sexual activity with Tyler prior to arriving at Juarez's party.

The Rape Shield Statute includes several statutory exceptions, none of which are asserted here. However, a defendant's Sixth Amendment right to confront his accuser may be implicated if unreasonable limits are placed on his right to cross-examine. See Lewis v. State, 591 So.2d 922, 925 (Fla. 1991) (citing Olden v. Kentucky, 488 U.S. 227, 232, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988) (recognizing that a trial court may impose reasonable limits on defense counsel's inquiry into the potential bias of a prosecution witness) ). Thus, a trial court must weigh and balance the protection of the Rape Shield Statute with the defendant's constitutional right to be afforded with an "adequate and fair opportunity to show bias and motive of the victim" without delving into the sexual nature of her relationship with another. Marr v. State, 494 So.2d 1139, 1143 (Fla. 1986).

Marr was charged with and convicted of committing a sexual battery upon the victim. Marr's defense at trial was that the victim had fabricated the sexual assault based on animosity between Marr and the victim's boyfriend. The only evidence introduced by the State was the victim's testimony. Marr's counsel requested to question the victim about her sexual intimacy with her boyfriend. In his proffer, defense counsel explained that the questions he sought to ask were going to show the depth of the relationship between the victim and her boyfriend in order to demonstrate the victim's bias and motive to lie. Id. at 1143. The trial court denied the request based on the Rape Shield Statute.

Upon review by the Florida Supreme Court, the Court noted that "[u]nder section 794.022(2), a victim's prior sexual activity with anyone other than the accused is generally not admissible evidence," Marr, 494 So.2d at 1142, and that the underpinnings of the statute "are based on the idea that a sexual battery victim should be able to come forward and testify against the alleged perpetrator without having the victim's prior sexual activities become the focal point of the trial, rather than the guilt or innocence of the accused." Id. at 1142-43. Although the Court recognized Marr's right to show bias was constitutionally mandated, it held that because Marr was able to show the depth of the relationship between the victim and her boyfriend and explore the animosity between Marr and the victim's boyfriend, Marr had been afforded an adequate and fair opportunity to show bias and motive without delving into the sexual nature of the victim and her boyfriend's relationship. Id. at 1143.

The defendant contends that his Sixth Amendment confrontation rights were violated because he could not put on a meaningful defense without cross-examining the victim about her prior sexual activity. Specifically, the defendant contends that he had the right to cross examine the victim about her prior consensual sexual activity with Tyler because such activity demonstrated that she wanted to resume her prior girlfriend/boyfriend relationship with Tyler, and therefore she had a motive to lie about having consensual sex with the defendant later that evening. The defendant contends that the trial court's limitation of cross-examination on this issue precluded his ability to meaningfully present his defense. We disagree.

As in Marr, the defense was able to develop the following facts: the victim and Tyler dated for several years; Tyler was her first boyfriend, and he was "a pretty jealous guy"; even after they broke up, approximately two months before the sexual battery, they remained friends; Tyler still had feelings for the victim and wanted to rekindle the relationship; and although the victim testified that she did not still have feelings for Tyler, Tyler testified that on the night of the sexual battery, the victim was "signaling" to him that she wanted to get back together with him. Thus, the defendant was able to adequately develop his theory of defense without introducing evidence of the prior consensual intercourse between the victim and Tyler, and the defendant's Sixth Amendment rights were not violated. See Floyd v. State, 503 So.2d 956, 957 (Fla. 1st DCA 1987) (concluding that exclusion of evidence concerning a specific instance of consensual sexual activity between the victim and her boyfriend did not deny Floyd his constitutional right to present a defense).

2. Exclusion of the text messages between the victim and Juarez

The defendant also claims that the trial court abused its discretion by precluding him from introducing text messages sent by Juarez to the victim. We find no abuse of discretion because these text messages were marginally relevant, given that: (1) they were not between the victim and the defendant ; (2) there was no time frame contextualizing when these texts messages were sent; (3) there was no indication that the victim reciprocated or was interested in Juarez when he sent sexually graphic text messages to her; and (4) the defendant testified that he was alone with the victim when he had consensual intercourse with the victim, and thus, the messages between Juarez and the victim were not relevant to the defendant's theory of the case. See Moore v. State, 701 So.2d 545, 549 (Fla. 1997) ; Ruddock v. State, 763 So.2d 1103, 1106 (Fla. 4th DCA 1999) (stating that "the trial court has wide discretion to impose reasonable limits on cross-examination of matters which are only marginally relevant").

Additionally, the trial court's ruling prevented the risk of cross-examination turning into an improper attack on the victim's character as the kind of person who engages in this type of explicit text messaging. § 794.022(3), Fla. Stat. (2010) (stating that "reputation evidence relating to a victim's prior sexual conduct ... shall not be admitted into evidence"); § 90.403, Fla. Stat. (2010) ("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.").

3. The denial of the defendant's motion for judgment of acquittal

Lastly, the defendant contends that there was insufficient evidence to prove that the victim was either physically helpless under section 794.011(1)(e), Florida Statutes (2010), or physically incapacitated under section 794.011(1)(j), Florida Statutes (2010). For the reasons that follow, we find that there was competent substantial evidence to support a finding that the victim was both physically helpless under subsection 794.011(1)(e) and physically incapacitated under subsection 794.011(1)(j).

Whether the State adduced sufficient evidence to support a conviction with an enhancement for physical helplessness or physical incapacitation is generally a jury question. See State v. Sedia, 614 So.2d 533, 535 (Fla. 4th DCA 1993). As such, we will not reverse if there is competent substantial evidence supporting the jury's finding. Perez v. State, 479 So.2d 266, 267 (Fla. 5th DCA 1985) ("The jury found beyond a reasonable doubt that, at the time of her sexual battery, the victim was physically helpless to resist. There was substantial competent evidence to support that conclusion. We do not have the authority to re-weigh or re-evaluate the evidence.") (internal quotation omitted).

A. Section 794.011(1)(e), Physically Helpless

In order to show that the victim was physically helpless, there must be evidence that the victim was "unconscious, asleep, or for any other reason physically unable to communicate unwillingness to an act" at all relevant times. § 794.011(1)(e) ; Sedia, 614 So.2d at 534-35 (stating that "even though the [victim] was not unconscious or asleep, it is reasonable to conclude that she was otherwise physically unable to communicate an unwillingness to act prior to penetration") (internal quotation omitted); Perez, 479 So.2d at 267.

When considered in the light most favorable to the State, there is competent substantial evidence to support the jury's finding that the victim was physically unable to communicate her unwillingness to the sex acts performed on her. After the victim arrived at Juarez's party, she quickly drank approximately twelve shots of vodka. She became heavily intoxicated, fell down, and hit her head on the hard wooden backboard of a couch. Tyler carried her to the bedroom, where she vomited, and he then left the party in order to get more alcohol. Although the victim initially mumbled "no" at some point during the initial assault by Juarez, the evidence reflected that the victim was extremely intoxicated and felt helpless, like a "ragdoll." The victim additionally testified that she could not move her arms, felt "heavy," and she could not kick or fight. The jury could infer from this evidence that the victim was unable to convey her unwillingness to participate in the acts performed upon her at all relevant times.

B. Section 794.011(1)(j), Physically Incapacitated

In order to show that the victim was physically incapacitated, there must be evidence that the victim was "bodily impaired or handicapped and substantially limited in ability to resist or flee." § 794.011(1)(j) (emphasis added). The evidence presented at trial supports a jury finding that the victim was bodily impaired and substantially limited in her ability to resist or flee. Again, the victim was severely intoxicated, fell down, hit her head, was unable walk by herself, and vomited in the bedroom. Based on these facts and the victim's testimony that she felt like a "ragdoll" and could not move her arms or fight back, the jury could have found that the victim was unable to "resist or flee," during the sexual assault.

On appeal, the defendant relies heavily on Soukup v. State, 760 So.2d 1072, 1074 (Fla. 5th DCA 2000), which he claims stands for the proposition that voluntary intoxication cannot rise to the level of physical incapacitation contemplated by section 794.011(1)(j). However, the Soukup court made no such finding, and Soukup involved facts significantly different from the facts in this case. Id. at 1073. In Soukup, the alleged victim and some of her friends hired a stripper who engaged in lewd conduct with the alleged victim, who was intoxicated at the time. Id. The witnesses to this conduct did not describe it as anything other than consensual, and the case was decided on the grounds that the evidence demonstrated that the victim was a "willing participant" in the alleged criminal conduct. Id. at 1074. Indeed, a careful review of the relevant dictum in Soukup, on which the defendant relies, reflects that the Fifth District Court of Appeal was referring to the alleged victim's degree of intoxication when it said that "[t]he young woman's drunken state does not rise to the level of incapacitation contemplated" by the statute, and our sister court did not express in its opinion any per se rule that intoxication can never lead to a finding of physical incapacitation. We, therefore, reject the defendant's interpretation of Soukup.

CONCLUSION

In summary, because the defendant was adequately and fairly able to develop his defense and cross-examine the victim without referring to the victim's prior consensual sexual conduct, we find that the trial court did not abuse its discretion by limiting the defense's cross-examination of the victim regarding her sexual activity with Tyler prior to their arrival at Juarez's party. Additionally, the trial court did not abuse its discretion by limiting the marginally relevant text messages exchanged between the victim and Juarez. Finally, because there was competent substantial evidence to support a jury finding that either the victim was physically incapacitated or physically helpless, the trial court did not err by denying the defendant's motion for judgment of acquittal. Because the remainder of the defendant's arguments are without merit, we decline to specifically address them here.

Affirmed.


author: FERNANDEZ, J.

text:
    REGAL ENTERTAINMENT GROUP, INC., Appellant, v. Maria NAVAS, Appellee.
    No. 3D16-2362
    District Court of Appeal of Florida, Third District.
    Opinion filed August 1, 2018
    Marshall Dennehey Warner Coleman & Goggin and Ryan D. Burns, and Shane Haselbarth (Ft. Lauderdale), for appellant.
    The Haggard Law Firm, P.A., and James C. Blecke, Coral Gables, for appellee.
    Before ROTHENBERG, C.J., and EMAS and FERNANDEZ, JJ.
   FERNANDEZ, J.

Regal Entertainment Group, Inc. ("Regal") appeals the final judgement in the sum of $652,900.10 entered in favor of Maria Navas ("Navas"). We reverse the final judgement in part because the trial court erred in removing David Martin ("Martin") as a Fabre defendant from the verdict form. We affirm the final judgment as to all other issues.

On July 30, 2012, Navas went to Regal South Beach to watch the midnight showing of The Dark Night Rises . During the movie, Martin, another patron in the theater, stood up and began to pace up and down the aisle while speaking to himself for approximately eight to ten minutes. Martin then exited the theater and returned approximately thirty seconds later. After reentering, Martin yelled, "Right now, right f***ing now," to another patron who was sitting in the bottom front row. On edge because of the shooting that occurred in an Aurora, Colorado theater ten days earlier, the other patrons frantically exited the theater after Martin's outburst. Navas was among the patrons who fled. While descending the stairs of the theater, an unknown patron pushed Navas from behind causing Navas's foot to land on the edge of a step, which caused her ankle to roll resulting in a Lisfranc fracture. Officer David Calderin, who was called to subdue Martin, testified that he smelled alcohol on Martin's breath.

Navas underwent multiple surgeries to repair the fracture and, afterward, struggled to resume her active lifestyle. Navas sued Regal alleging that she injured her ankle after Martin's conduct prompted the other patrons to frantically exit the theater. Throughout the jury trial, the parties filed multiple motions for directed verdict that were denied, except for one motion that was granted in part as to one point, which is not germane to this appeal. The jury deliberated and found Regal 40% negligent and Martin 60% negligent. Navas once again moved for directed verdict to strike Martin's liability. The trial court entered an amended final judgment, which struck the jury's apportionment of 60% comparative fault to Martin.

On appeal, Regal contends that Martin should not have been removed as a Fabre defendant from the verdict form. We review the trial court's decision de novo . Christensen v. Bowen, 140 So.3d 498, 501 (Fla. 2014).

A non-party may be added to the verdict form by a defendant to reduce the defendant's potential liability. § 768.81(3), Fla. Stat. (2011). Florida law holds each of multiple tortfeasors responsible for only that tortfeasor's portion of liability. Fabre, 623 So.2d at 1185. The only applicable exception to this rule is found in the statute, preventing application of the statute to actions "based upon an intentional tort." § 768.81(4), Fla. Stat. (2011).

The trial court improperly removed Martin as a Fabre defendant having previously found, as a matter of law, that "at most Martin was negligent." Moreover, Navas argued at trial that the evidence clearly supported a conclusion that Martin was negligent in his conduct. Therefore, the record does not support a conclusion that Martin committed an intentional tort. Thus, Martin does not fall within the only exception that would disqualify him as a Fabre defendant.

We therefore conclude that the trial court improperly removed Martin from the verdict form as a Fabre defendant because Martin's conduct did not fall within the exception to section 768.81, Florida Statute (2011), as his conduct did not rise to the level of an intentional tort. We thus reverse and remand to reinstate the jury's apportionment to Martin as a Fabre defendant. We affirm the final judgment as to all other issues without further discussion.

Affirmed in part; reversed in part and remanded.

      Fabre v. Marin, 623 So.2d 1182 (Fla. 1993).

      A Lisfranc fracture is an injury of the foot in which one or more of the metatarsal bones are displaced from the tarsus.

      Navas argued that because Regal was derivatively liable for Martin's conduct, Martin could not be a Fabre defendant. In the cases cited by Navas in support of her position, the holdings were based on the courts' findings that the actions were based on an intentional tort. Navas also relies on the Restatement (Second) of Torts, section 449, a position that ignores section 768.81, Florida Statute (2011).


author: PER CURIAM.

text:
    Rubens SOUZA, et al., Appellants, v. NI HOLDINGS, LLC, Appellee.
    No. 3D18-67
    District Court of Appeal of Florida, Third District.
    Opinion filed August 1, 2018
    Bernhard Law Firm, PLLC, and Andrew J. Bernhard, for appellants.
    Waldman Barnett, P.L., and Glen H. Waldman, Michael A. Azre, and Eleanor T. Barnett, for appellee.
    Before ROTHENBERG, C.J., and EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Koster v. Sullivan, 160 So.3d 385, 389 (Fla. 2015) (holding that if the return of service is regular on its face, service of process is presumed to be valid, and the party challenging service has the burden of overcoming that presumption by clear and convincing evidence); Robles-Martinez v. Diaz, Reus & Targ, LLP, 88 So.3d 177 (Fla. 3d DCA 2011) (same).


author: SALTER, J.

text:
    Jonathan MORRIS, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D18-73
    District Court of Appeal of Florida, Third District.
    Opinion filed August 1, 2018.
    Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for petitioner.
    Pamela Jo Bondi, Attorney General, and Natalia Costea and Magaly Rodriguez, Assistant Attorneys General, for respondent.
    Before SUAREZ, LAGOA and SALTER, JJ.
   SALTER, J.

Jonathan Morris seeks a writ of prohibition to preclude the circuit court from trying him on a severed charge of possessing a firearm as a convicted felon. The firearm charge was count 2 of an information which also charged Morris (in count 1) with second-degree murder with a firearm. Morris had moved for, and been granted, severance of Count 2. Following a jury trial on the murder charge, Count 1, Morris was acquitted.

Morris now contends that the severed possession of a firearm charge involves an issue of fact necessarily determined in the murder trial, such that collateral estoppel and the constitutional guarantee against double jeopardy bar prosecution of the firearm charge. We conclude, however, that the petition must be denied on the basis of a recent decision of the Supreme Court of the United States, Currier v. Virginia, --- U.S. ----, 138 S.Ct. 2144, 201 L.Ed.2d 650 (2018) (" Currier").

Proceedings in the Circuit Court

The two charges against Morris have been described. The undisputed facts relating to the daylight occurrences on May 15, 2016, at a Miami residential apartment complex are:

• Lamonte Jacobs was shot eleven times in the courtyard of the apartment complex under a tree. Spent nine millimeter cartridges, with no detectable fingerprints, were found near Jacobs' body.
• Morris himself was wounded three times in the neck, back, and leg, but survived. After being shot exiting a hallway to the street, Morris was able to climb into a car and escape from the scene. Surveillance cameras yielded a videotape of a third man, allegedly Marquis Dunwoody, shooting Morris. Spent .40 caliber cartridges were found in the area where those shots were fired. The State's ballistics analyst testified that the bullets recovered at the scene were from two different firearms.
• The surveillance camera videotape also showed a fourth man with Dunwoody and using a cellphone when apart from Dunwoody at the time of the incident.

The eyewitness testimony, however, provided disputed and contradictory testimony about the sequence of events and identity of the shooter under the tree where Jacobs' body was found when the police arrived.

The State's theory at the trial of the murder count was that Morris fired the shots that killed Jacobs. A resident of a second-floor apartment at the complex where the shootings took place, Mr. Perez, testified that he heard gunshots and went to his rear window overlooking the rear courtyard. He saw a person shooting a silver-plated handgun with an extended magazine towards a tree (the tree where Jacobs' body was later found), but the branches obscured Perez's view of the shooter's target. The shooter was facing away from Perez, and Perez never had a clear view of the shooter's face. As the shots ended, Perez testified that he saw the shooter tuck the gun into his shorts and flee. Perez thought the shooter was Morris (whom he had seen on occasion at the apartment complex).

Perez then ran to a balcony at the front of his apartment to see if he could see where the shooter was running. When Perez looked down, he saw Morris running away; he did not see a gun on Morris. Perez then heard a second round of shots, this time aimed at Morris as Morris ran away. Perez did not see the second gunman. Perez's description of the shooter did not match what Morris was wearing. Perez described the shooter as wearing a white undershirt and short jeans. Morris was wearing floor-length jeans and a hooded sweater.

Another eyewitness was at the front of the building. She heard a group of shots and took cover. As she rose to run away, she heard a second group of shots being fired at Morris. She saw Morris running away, looking over his shoulder, and looking scared. She testified that she did not see Morris with a gun.

Surveillance cameras captured footage of two men other than Morris approaching the area immediately before the first round of shots. The cameras also captured one of those two men shooting at Morris.

A swab of Morris's hands for gunpowder residue detected one microscopic particle which, the State's criminalist testified, was inconsistent with someone alleged to have fired ten shots in rapid succession.

The jury acquitted Morris of the second-degree murder with a firearm, count 1. The defense then moved to dismiss the possession of a firearm charge, count 2. The court denied the motion because it concluded that the jury could have acquitted Morris of murder while also finding that he was the man that Perez saw shooting the handgun. Morris's petition for prohibition followed.

Analysis-Pre-Currier

In Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), the Supreme Court of the United States applied collateral estoppel, flowing from the Fifth Amendment guarantee against double jeopardy, to bar subsequent litigation on another criminal charge when the issues of ultimate fact on that charge have already been determined in a valid final judgment. Ashe has been followed in a consistent line of Florida cases, including Gragg v. State, 429 So.2d 1204 (Fla. 1983), and State v. Short, 513 So.2d 679 (Fla. 2d DCA 1987).

Collateral estoppel may be employed to bar prosecution or argumentation of facts necessarily established in a prior proceeding, or it may be utilized to bar subsequent prosecution where one of the facts necessarily determined in the former trial is an essential element of the crime presently charged. A necessarily established fact has been held to be one which has been resolved in favor of the defendant at the prior trial and was essential to the conviction in said case.

State v. Strong, 593 So.2d 1065, 1067 (Fla. 4th DCA 1992).

Collateral estoppel was applied to grant prohibition by this Court in Morris v. State, 869 So.2d 1264 (Fla. 3d DCA 2004). Morris held that the defendant's first trial disposed of the firearm possession issue. The defendant was charged with armed robbery, grand theft, attempted armed robbery and possession of a firearm by a convicted felon, with the latter charge severed. As in this case, the defense was that the defendant was not the perpetrator, based on the differences in the appearance of the defendant, the victims' description of the robber, and the lack of physical evidence to connect the defendant to the crime. The defendant was acquitted of the armed robbery charge.

In granting prohibition to prevent a trial on the firearm possession charge, this Court concluded that collateral estoppel barred the trial on possession because the only issue at the first trial was whether an armed defendant had robbed the victims. Because the jury found that the defendant was not the robber, the second prosecution - based on the claim that the defendant possessed a firearm during the very same armed robbery of which he was acquitted - was barred. Id. at 1265.

In Jones v. State, 120 So.3d 135 (Fla. 4th DCA 2013), the court granted a prohibition petition to preclude a trial for possession of a firearm following an acquittal for accessory after the fact to robbery with a firearm and first degree murder. There, as here, there was only one witness whose testimony placed the defendant at the scene. The court concluded that by its acquittal, the jury "necessarily determined that the testimony of the state's key witness was not credible as to the events on the date in question." Id. at 136. Hence, the verdict in Jones necessarily decided that the defendant did not have a firearm, contrary to the sole witness's testimony. Id. at 138.

Analysis-Post-Currier

These opinions must be re-examined, however, in light of the United States Supreme Court decision in Currier. The analysis in Currier holds that the defendant's consent to the severance (including a second trial on the severed count) obviates any concern or claim that the second trial violates the Double Jeopardy Clause, receding from Ashe to that extent.

We directed the parties to file supplemental briefs regarding the impact of the opinion in Currier, if any, in this case. Morris has candidly and correctly conceded that " Currier is dispositive as to his Fifth Amendment claim." He argues, however, that the second prosecution of the severed charge would violate his double jeopardy rights under article I, section 9 of the Florida Constitution. Morris contends that Gragg v. State, 429 So.2d 1204 (Fla. 1983), "remains binding law pursuant to Florida's 'primacy doctrine,' which requires state courts to first look to the Florida Constitution when resolving a claim arising from a fundamental right."

The State responds that the scope of double jeopardy protection is the same in both the United States and Florida Constitutions, citing Dunbar v. State, 89 So.3d 901, 904 n.2 (Fla. 2012). Further, the State argues that Currier appears to overrule or abrogate previously-controlling Florida Supreme Court precedent (predicated largely on Ashe ), particularly Gragg. The State correctly observes that " Gragg does not refer or appear to rely on the Florida Constitution."

Conclusion

Based on the record before us and the decision of the Supreme Court of the United States in Currier, we conclude that Morris's reliance on Ashe, Gragg, and the Florida cases that have followed those authorities, is unavailing. Paraphrasing the majority opinion in Currier and quoted language from the Virginia Court of Appeals decision in the case, " 'the avoidance of prosecutorial oppression and overreaching through successive trials' [has] no application here because the charges were severed for [in this case, Morris's] benefit and at his behest." Currier, 138 S.Ct. at 2149.

Petition for prohibition denied.

      That case also involved the pending trial of a severed count for possession of a firearm by a convicted felon, but the petitioner was a different Morris.


author: Per Curiam.

text:
    Mackenley Widner FIACRE, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-2116
    District Court of Appeal of Florida, First District.
    August 1, 2018 Rehearing Denied September 4, 2018
    Andy Thomas, Public Defender, and Richard M. Bracey, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

We affirm Appellant's judgments and sentences for first-degree murder and armed burglary. For the reasons discussed in his co-defendant's case, Lai v. State , No. 1D16-1882, 251 So.3d 333, 2018 WL 3638201(Fla. 1st DCA August 1, 2018), we reject Appellant's claim that the trial court abused its discretion when it denied the motion for mistrial based on the prosecutor's improper vouching of government witnesses. We decline to comment on Appellant's other claims.

AFFIRMED .

B.L. Thomas, C.J., and Wolf and Ray, JJ., concur.


text:
    Matthew APPERSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3582
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 3, 2018 Rehearing Denied August 29, 2018
    William R. Ponall, of Ponall Law, Maitland, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm Appellant's convictions and sentences without prejudice to his right to file a motion pursuant to rule 3.850 of the Florida Rules of Criminal Procedure.

AFFIRMED.

PALMER and ORFINGER, JJ., and MUNYON, L.T., Associate Judge, concur.


author: MORRIS, Judge.

text:
    Jennifer VASSEUR, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1778
    District Court of Appeal of Florida, Second District.
    Opinion filed August 3, 2018
    Jennifer Vasseur, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   MORRIS, Judge.

Jennifer Vasseur appeals the summary denial of her motion to correct illegal sentences filed under Florida Rule of Criminal Procedure 3.000(a). We reverse and remand for further proceedings.

Ms. Vasseur entered into an agreement with the State that required her to plead guilty to grand theft and making false entries on corporate books and to pay $20,729.69 in restitution to the victims. Sentencing was deferred for sixty days to allow Ms. Vasseur to secure the restitution funds. The State agreed to recommend six months in jail followed by seven years' probation if Ms. Vasseur fulfilled her obligation. But if she did not pay the restitution at sentencing, then her plea became "open" and the trial court could sentence her up to twenty years in prison. Ms. Vasseur could not raise the restitution amount, so the trial court sentenced her to seven years' incarceration, followed by five years' probation for the grand theft conviction, and to five years' probation for the conviction for false entry on corporate books.

Simply put, Ms. Vasseur's sentences are illegal. Recently in Noel v. State, 191 So.3d 370, 375 (Fla. 2016), our supreme court reviewed the purpose of restitution. It looked at U.S. Supreme Court cases holding that to impose a longer sentence because a defendant cannot pay restitution violates an indigent defendant's due process rights. After considering these precedents, our supreme court found that the length of Noel's sentence was "expressly conditioned on whether or not Noel paid the [restitution] sum within sixty days." Id. at 379. Because Noel lacked the resources to make the restitution, he effectively received an increase of two years' incarceration to his sentence. "This automatic deprivation of two years of Noel's freedom is 'contrary to the fundamental fairness required by the Fourteenth Amendment.' " Id. (quoting Bearden v. Georgia, 461 U.S. 660, 673, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983) ). The Noel court extended the Bearden holding to Noel's circumstances by reasoning that "a sentence providing for a reduction of prison time upon the payment of restitution is no different than a trial court imposing a lengthier sentence if the defendant fails to make a restitution payment." Noel, 191 So.3d at 379. Finally, the court determined that such sentencing structure was fundamental error. Id. at 380 ; see also Nezi v. State, 119 So.3d 517, 522 (Fla. 5th DCA 2013) (holding that the imposition of a shorter term for a defendant who can and does pay, but a longer term if she cannot and does not pay violates the Equal Protection Clause); cf. Dirico v. State, 728 So.2d 763, 766 (Fla. 4th DCA 1999) (reversing sentence entered pursuant to plea agreement because it illegally provided that the defendant would waive his defense of inability to pay restitution as a condition of probation).

Contrary to the State's argument, it does not matter that her sentences were entered pursuant to a plea agreement because she cannot agree to an illegal sentence. In Phillips v. State, 783 So.2d 334, 334 (Fla. 1st DCA 2001), the First District rejected the postconviction court's reasoning that the appellant could not claim his sentence was illegal because he agreed to the plea and "participated in the conditions of the sentence." The court held that the appellant could not have agreed to an illegal sentence and he properly raised the claim in a rule 3.800(a) motion. Id.; see also Smith v. State, 933 So.2d 723, 725 (Fla. 2d DCA 2006) (considering a similar plea agreement and noting that basing a sentence on money was questionable and "morally repugnant").

Here, because Ms. Vasseur did not have $20,729.69 at sentencing to pay restitution to the victims, her sentence was illegally increased from six months in county jail to seven years in prison. Accordingly, we reverse the denial of her motion to correct illegal sentence and remand to the trial court for further proceedings. In light of this disposition, we do not reach Ms. Vasseur's second issue on appeal.

Reversed and remanded.

NORTHCUTT and BADALAMENTI, JJ., Concur.


text:
    Thurston MCBRIDE, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2825
    District Court of Appeal of Florida, First District.
    August 7, 2018
    Rachael E. Reese of O'Brien Hatfield, P.A., Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant, Thurston McBride, appeals the trial court's Order Denying Motion for Post-Conviction Relief, challenging the trial court's ruling on four claims of ineffective assistance of counsel. For the reasons that follow, we agree with Appellant that he is entitled to reversal as to his claim that trial counsel was ineffective in failing to investigate and introduce into evidence the victim's school attendance records. We otherwise affirm.

Appellant was tried and found guilty of sexual battery on a child under twelve by a defendant eighteen years of age or older. The victim, who was thirteen years of age at the time of trial, testified that Appellant, who had been married to the victim's godmother, sexually battered him on one occasion while Appellant lived with the victim, his godmother, and his godsister. The victim further testified that he did not know when the abuse occurred. When the victim was eleven, he disclosed the abuse to his mother, with whom he was then living, and a child protection team member. He testified that both his godsister and godmother were aware of the abuse, that his godsister tried to get into his room when the abuse was occurring, and that she subsequently told Appellant to "get out." When asked if he started skipping school after the incident, the victim affirmatively responded. When asked why, he replied, "Because I was just afraid of the world." During his interview with a child protection team member, which was played before the jury, the victim claimed that the incident occurred when he was five years of age and that his godsister picked his lock when the abuse was occurring and began arguing with Appellant. When asked how he felt about his godmother's advice to let God handle it, the victim stated, "I just went to my room. I didn't go to school." When asked how long he did not go to school for, he replied, "Well, I skipped school for two weeks." He further stated, "I used to get on the bus to go to school. When I got to school, I used to leave." When asked if anyone ever found out about his skipping school, he replied, "No." When asked what got him to return to school, he stated, "Because I was thinking that I was never going to get an education and I just need to get over it." He further stated during his interview that Appellant returned to his home "[l]ike a year ... later" when the victim was "like six or seven." After stating that Appellant had previously whipped him and physically abused him with his fists, the victim claimed that Appellant, when he returned to his home, abused him so bad that he could not stand. The victim claimed that he did not go to school for two weeks because he was in the hospital. The State did not present any hospital records to verify this testimony.

During the defense's case, both the victim's godsister and godmother testified that they knew nothing about the alleged abuse. The victim's godsister denied picking the victim's lock or arguing with Appellant, and both women testified that they would have called the police had they known about any abuse. The victim's godmother further testified that she last saw Appellant in 2004. During his closing argument, trial counsel stated in part, "Now, [the victim] told you on - he told Ms. Lustgarten at CPT that right after the incident, he would skip school as a five year old. He would skip school. But he decided to go back to school because he thought he needed to get an education. As a five year old, he made that conscious decision." After the jury found Appellant guilty as charged, the trial court sentenced him to a mandatory life sentence. In his direct appeal, Appellant argued that the trial court reversibly erred in allowing the State to cross-examine him and the victim's godmother concerning inadmissible collateral crime evidence. We per curiam affirmed Appellant's conviction and sentence. McBride v. State , 123 So.3d 564, 2013 WL 5676969 (Fla. 1st DCA 2013).

In his Second Amended Motion for Postconviction Relief, Appellant raised nine claims, only four of which are at issue in this appeal and only one of which merits discussion. In Ground 1, Appellant alleged that trial counsel was ineffective in failing to investigate and introduce into evidence the victim's school attendance records.

During the evidentiary hearing, postconviction counsel moved the victim's school records into evidence without objection. The records consisted of the victim's elementary school "Pupil Progress Report Cards (K through 2nd grade)." The records show that the victim had one to three absences in various quarters over the three years. Trial counsel testified that he believed he had enough evidence to impeach the victim at trial and that he unsuccessfully tried to get in touch with the victim's teacher. When asked if he did not seek the school records because he did not think they were that big of an issue, he replied, "Again, I don't remember here making a tactical decision one way or the other about the school records."

In the Order Denying Motion for Post-Conviction Relief, the trial court noted in part as to Ground 1, "There was only one mention of the victim missing school and that was the victim's statement during the CPT interview .... Based on all of the evidence, the Court finds that counsel's representation did not fall below an objective standard of reasonableness. Additionally, the Court finds [Appellant] has failed to show any prejudice." Appellant moved for a rehearing, arguing in part that, contrary to the trial court's finding, the fact that the victim missed school was mentioned on more than one occasion at trial. The trial court denied the motion without comment. This appeal followed.

In order to establish a successful ineffective assistance of counsel claim, a defendant must show that counsel's actions or omissions were deficient and that the deficiency so affected the proceeding that confidence in the outcome is undermined. Johnston v. State , 70 So.3d 472, 477 (Fla. 2011) (citing Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). When assessing alleged deficiency, a court must determine whether the identified acts or omissions were outside the wide range of professionally competent assistance. Johnston , 70 So.3d at 477. There is a strong presumption that counsel's actions were reasonable. Id. " '[S]trategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel's decision was reasonable under the norms of professional conduct.' " Id. (Citation omitted). "[C]ourts should make 'every effort ... to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.' " Pennington v. State , 34 So.3d 151, 155 (Fla. 1st DCA 2010) (quoting Evans v. State , 975 So.2d 1035, 1043 (Fla. 2007) ). The prejudice requirement is satisfied if there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. A reasonable probability is "one sufficient to undermine this Court's confidence in the outcome of the trial ...." Simmons v. State , 105 So.3d 475, 498 (Fla. 2012). In reviewing a decision of the postconviction court denying claims after an evidentiary hearing, an appellate court reviews the trial court's findings of fact under the competent, substantial evidence standard of review. Reynolds v. State , 99 So.3d 459, 486 (Fla. 2012). A trial court's application of the law to the facts is reviewed de novo. Id.

Appellant is correct that the trial court's finding that the victim's act of skipping school was only mentioned once during trial is not supported by competent, substantial evidence. While, as the trial court set forth, the victim stated during his child protection team statement that he skipped school after the sexual abuse, he was also asked during trial whether he skipped school after the incident. The victim affirmatively responded before testifying that he was "just afraid of the world." Moreover, the victim claimed during his interview that he skipped school for two weeks approximately a year after the sexual abuse as a result of Appellant's physical abuse.

As for trial counsel's alleged ineffectiveness, although counsel testified during the evidentiary hearing that he believed he had sufficient evidence with which to impeach the victim's credibility, he also testified that he unsuccessfully sought to contact the victim's teacher. Indeed, trial counsel thought it important enough to mention the victim's claim of skipping school during his closing argument at trial and to question a five-year-old's ability to make the conscious decision to return to school based on his belief that he needed an education. Yet, had trial counsel obtained the victim's school records, the victim's claim that he skipped school following the abuse could have been discredited rather than it simply being implied during the defense's closing argument that the victim's claim was unreasonable and fabricated. Not only is this a situation where the only evidence against Appellant came from the victim, but the victim claimed to have skipped school as a direct result of the sexual abuse. Therefore, as Appellant asserts, whether the victim skipped school was a pivotal issue in this case.

Moreover, to the extent that the State attempts on appeal to characterize trial counsel's failure to acquire the victim's school records as a tactical decision, trial counsel offered no such testimony. Instead, he testified that he did not recall making a tactical decision one way or the other about the school records. For these reasons, we agree with Appellant that trial counsel's failure to investigate the victim's claims about skipping school and to obtain the victim's school records was deficient. See Jennings v. State , 123 So.3d 1101, 1118 (Fla. 2013) (holding that trial counsel was deficient in failing to adequately investigate and impeach a State witness where "counsel deprived the jury of the ability to make a fully informed decision about [the witness's] credibility," noting that there was no suggestion that trial counsel had any strategic reason to limit his cross-examination of the witness, and setting forth, "[G]iven the available impeachment evidence and the incriminating nature of [the witness's] testimony, trial counsel's failure to adequately prepare for and cross-examine [the witness] was deficient performance").

As for whether Appellant was prejudiced by counsel's deficiency, the records showed that, contrary to the victim's claim that he skipped school for two weeks, he missed at most one to three days per quarter for the years in question. Given that the victim's credibility was the key issue in this case, we find that the failure to investigate and obtain the victim's school records is sufficient to undermine confidence in the outcome of the trial. We, therefore, conclude that Appellant has demonstrated the requisite prejudice to obtain postconviction relief. Cf. id. at 1120 (holding that trial counsel's deficiency did not prejudice the appellant where the statements at issue did not represent the only evidence against the appellant and where the State presented considerable other evidence of the appellant's guilt such that trial counsel's failure to impeach a State witness did not undermine confidence in the jury's guilty verdict).

Accordingly, we reverse the order on appeal as to Ground 1 and remand for a new trial.

AFFIRMED in part, REVERSED in part, and REMANDED for a new trial.

Wolf, Lewis, and Ray, JJ., concur.


author: BADALAMENTI, Judge.

text:
    Joshua BORK, Appellant, v. Sara Marie PARE, Appellee.
    Case No. 2D17-3298
    District Court of Appeal of Florida, Second District.
    Opinion filed August 8, 2018
    Joshua Bork, pro se.
    No appearance by Appellee.
   BADALAMENTI, Judge.

Joshua Bork challenges the summary denial of his motion to dissolve a final judgment of injunction. Because Bork was entitled to a hearing on his facially sufficient motion, we reverse.

On July 8, 2010, a final judgment of injunction was entered against Bork and in favor of Sara Pare, a friend of Bork's ex-wife. The injunction prohibited Bork from contacting Pare or causing any other person to contact her. In her petition for injunction, Pare alleged that Bork called her repeatedly and left her voicemails in which he threatened her with violence. Pare also alleged that Bork had closely followed a vehicle that she and Bork's ex-wife occupied.

Seven years later, Bork, while incarcerated on an unrelated matter, filed a motion to dissolve the permanent injunction. In that motion, Bork alleged that he has not contacted Pare since entry of the injunction and has no desire to maintain any relationship with her. He further alleged that he has completed anger management courses and that the injunction is preventing him from participating in certain rehabilitative prison work programs. The trial court denied Bork's motion without a hearing, stating that Bork "may wish to file a Motion to Dissolve Injunction upon release from incarceration, and where there is an opportunity to have an evidentiary hearing." The trial court offered no other explanation for its summary denial of Bork's motion.

Section 741.30(6)(c), Florida Statutes (2010), authorizes either party to an injunction to file a motion to dissolve it at any time without making any specific allegations. "[C]ourts applying section 741.30(6)(c) have indicated that a motion to modify or dissolve an injunction should allege some basis upon which relief may be granted." Carrozza v. Stowers, 153 So.3d 340, 341 n.2 (Fla. 2d DCA 2014). To obtain relief, a party seeking dissolution of an injunction must prove that there has been a change of circumstances. Spaulding v. Shane, 150 So.3d 852, 853 (Fla. 2d DCA 2014). "This requires the movant to 'demonstrate that the scenario underlying the injunction no longer exists so that continuation of the injunction would serve no valid purpose.' " Id. (quoting Alkhoury v. Alkhoury, 54 So.3d 641, 642 (Fla. 1st DCA 2011) ). Because a movant must show a change of circumstances to obtain relief on a motion filed under section 741.30(6)(c), the motion is facially sufficient if it alleges facts demonstrating a change of circumstances. See Carrozza, 153 So.3d at 340 (concluding that a motion filed under section 741.30(6)(c) was facially sufficient because it alleged facts demonstrating changed circumstances); see also Reyes v. Reyes, 104 So.3d 1206 (Fla. 5th DCA 2012) (affirming summary denial of a motion to dissolve an injunction because it did not assert changed circumstances which would warrant relief). If the motion is facially sufficient, the movant is accordingly entitled to receive a hearing on the motion. Reyes, 104 So.3d at 1207 ("[F]or a movant to be entitled to receive a hearing on such a motion, the motion must allege a change in circumstances.").

Here, Bork's motion alleged facts demonstrating changed circumstances since the circumstances underlying the issuance of the injunction. See Carrozza, 153 So.3d at 340. In Carrozza, this court reversed a trial court's order summarily denying a facially sufficient motion to dissolve an injunction. Id. at 341. Here, just like the movant in Carrozza, Bork sufficiently alleged a change in circumstances. Specifically, he alleged that he has not contacted Pare since entry of the injunction approximately seven years ago. He further alleged that he has no desire to maintain a relationship with Pare. He asserted that he has completed anger management courses and is incarcerated on an unrelated matter. He explained in his motion that because the injunction remains intact, he is ineligible for placement in certain rehabilitative work programs. See id. at 340. In sum, Bork's motion is facially sufficient because it alleged a change in circumstances. Accordingly, he is entitled to a hearing on his motion as a matter of due process. See id.

Because Bork's motion is facially sufficient, the trial court erred by denying it without a hearing and without giving Bork a meaningful opportunity to be heard. See id. ("[D]ue process requires that the movant be given an opportunity to be heard on his request." (quoting Reed v. Reed, 816 So.2d 1246, 1247 (Fla. 5th DCA 2002) ) ); McCormick v. Shannon, 32 So.3d 787, 788 (Fla. 2d DCA 2010) (holding that the trial court erred by summarily denying a motion to dissolve an injunction alleging that movant had unfailingly complied with the order, that movant had no interest in contacting the victim, and that the injunction prevented movant from participating in a prison work program); Colarusso v. Lupetin, 28 So.3d 238, 239 (Fla. 4th DCA 2010) (concluding that the trial court should have provided movant a meaningful opportunity to be heard by holding a hearing rather than summarily denying his motion to dissolve injunction, which alleged that movant had not attempted to contact his ex-girlfriend for years, that he has been incarcerated on unrelated charges, and that the injunction was preventing him from participating in a prison work program).

Accordingly, we reverse and remand the trial court's summary denial of Bork's motion to dissolve the July 8, 2010, final judgment of injunction.

Reversed and remanded.

SILBERMAN and KELLY, JJ., Concur.

      We express no opinion on the merits of Bork's motion to dissolve the injunction order.


text:
    Gabriel MACHARIA a/k/a Corey D. Wade, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1032
    District Court of Appeal of Florida, Third District.
    Opinion filed August 8, 2018.
    Gabriel Macharia a/k/a Corey D. Wade, in proper person.
    Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before LAGOA, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) and Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).


text:
    Rolando FERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1454
    District Court of Appeal of Florida, Third District.
    Opinion filed August 8, 2018
    Rolando Fernandez, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SCALES, LUCK and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See Hernandez v. State, 124 So.3d 757, 759 (Fla. 2012) ("[W]e also hold that the United States Supreme Court's holding in Padilla [v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) ] does not apply retroactively.").


text:
    Lisa Marie KAO, Appellant, v. Fernando AMUCHASTEGUI, Appellee.
    No. 3D18-644
    District Court of Appeal of Florida, Third District.
    Opinion filed August 8, 2018
    Lisa Marie Kao, in proper person.
    Law Offices of Robin Bresky, Robin Bresky and Jeremy Dicker (Boca Raton), for appellee.
    Before LAGOA, SALTER and EMAS, JJ.
   PER CURIAM.

Affirmed. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979) ; Jackson v. Echols, 937 So.2d 1247 (Fla. 3d DCA 2006).


text:
    MC LIBERTY EXPRESS, INC., and P.S. Trucking, Inc., Appellants, v. ALL POINTS SERVICES, INC., Julio Martinez, and Maria Isabel Martinez, Appellees.
    No. 3D17-0961
    District Court of Appeal of Florida, Third District.
    Opinion filed August 8, 2018
    Garcia-Menocal Irias & Pastori LLP, and Jorge Garcia-Menocal, Miami, for appellants.
    O'Brien & Solomon, LLP, and Alice E. Solomon (Fort Lauderdale), for appellees.
    Before ROTHENBERG, C.J., and SUAREZ and LUCK, JJ.
   ROTHENBERG, C.J.

INTRODUCTION

The plaintiffs below, MC Liberty Express, Inc. ("MC Liberty") and P.S. Trucking, Inc. (collectively, "the appellants"), appeal two orders awarding the defendants below, All Points Services, Inc. ("APS"), Julio Martinez, and Maria Isabel Martinez (collectively "the appellees"), attorney's fees and costs under section 57.105, Florida Statutes (2015). For the reasons that follow, we reverse.

FACTS AND PROCEDURAL HISTORY

The appellants sued the appellees alleging breach of an oral contract, conspiracy, fraud, unjust enrichment, and violations of the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA"), sections 501.201-213, Florida Statutes. The allegations stem from two contractual agreements for the transportation of goods.

Pursuant to the agreements, APS served as a broker between various shippers and truckers for the delivery of goods. Upon written confirmation by the shippers, reflecting the agreed upon rate, APS would relay that information to the appellants and arrange for the appellants to pick up and transport the goods. APS billed the shippers directly, the shippers submitted the invoiced amounts to APS, and in exchange for its services, APS was to receive a 10% broker's fee based on the gross rate that it charged the shippers.

The complaint alleges that the appellees, however, engaged in a scheme to defraud the appellants by altering its invoices to reflect lower shipping charges than what they had actually charged the shippers. As a result, the appellants contend that they were receiving a lower share of the shipping costs charged and collected than what they were entitled to receive.

The alleged fraudulent billing by APS was discovered after the appellants had filed an insurance claim in connection with a damaged shipment. Specifically, the appellants allege that when they were told that their insurance claim was going to be denied because they had not provided the insurer with the shipment's written confirmation, they requested the necessary documents from Jorge Betancourt, a dispatcher with APS. It was at that point that the appellants learned of the appellees' fraudulent billing practices from Mr. Betancourt, who then provided the appellants with the altered invoices. Thereafter, the appellants filed suit against the appellees.

On February 5, 2014, in response to the complaint, the appellees filed a motion to dismiss claiming that the complaint failed to state a claim. The motion to dismiss was denied and the appellees were ordered to file an answer. On March 23, 2015, counsel for appellants, Jorge L. Fors, moved to withdraw, the motion was granted on April 15, 2015, and Amy Lee Burkich filed a notice of appearance as counsel for the appellants.

On August 21, 2015, counsel for the appellees sent attorney Burkich a proposed motion for sanctions, along with a "safe harbor" letter, pursuant to section 57.105. The letter informed the appellants and attorney Burkich that the lawsuit should be dismissed because: (1) the claims relating to the transportation of goods in the United States are governed by federal law, and were, therefore, subject to preemption; (2) most of the claims alleged were time-barred; and (3) the Martinezes were improperly named as parties.

Three days later, attorney Burkich filed an emergency motion for leave to withdraw as counsel, citing both medical reasons and irreconcilable differences with the appellants. The motion was granted on September 2, 2015, and the appellants were given thirty days to retain new counsel. On October 1, 2015, Tomas Pastori, of Garcia-Menocal, Irias and Pastori LLP ("the GMIP law firm"), entered a limited appearance on behalf of the appellants and immediately moved for an extension of time to review the file and determine whether the GMIP law firm would represent the appellants.

Jorge Garcia-Menocal ("Garcia-Menocal") and the GMIP law firm entered a formal appearance on behalf of the appellants on October 14, 2015. On December 1, 2015, the appellees filed a motion for sanctions against the appellants, Garcia-Menocal, and the GMIP law firm, and a motion for summary judgment. The motion for summary judgment argued, among other things, that the claims at issue were either preempted and/or time-barred under various federal statutes governing interstate trucking and transportation of cargo by motor carriers in the United States. See e.g., 49 U.S.C. § 13501 (establishing general federal jurisdiction over the transportation of passengers and property by motor carriers, as well as the procurement of that transportation); see also 49 U.S.C. § 14501 (forbidding states from enacting or enforcing laws related to the pricing, routes, or services of any motor carrier); 49 U.S.C. § 14705 (limiting actions by and against carriers). In addition, the appellees argued that the remaining claims failed to meet the circuit court's jurisdictional requirements.

The trial court conducted a hearing on the appellees' motion for summary judgment, granted the motion, and entered a written order on June 23, 2016. The trial court's written order made the following findings:

IT IS ADJUDGED that Plaintiffs' claims are preempted by federal law, and further, Plaintiffs did not raise any issues of material fact in their Response in Opposition to Defendants' Motion for Final Summary Judgment , and therefore Defendants' Motion for Final Summary Judgment is GRANTED. Plaintiffs, MC LIBERTY EXPRESS, INC., and P.S. TRUCKING, INC., take nothing by this action and that Defendants, [APS], JULIO MARTINEZ and MARIA ISABEL MARTINEZ, shall go hence without day.

No other substantive findings were made.

The record reflects that after granting the appellees' motion for summary judgment, the trial court declined to rule on the appellees' motion for sanctions, electing, instead, to order both sides to meet and attempt to resolve the motion. The parties were, however, unable to reach an agreement, and thereafter the appellees' section 57.105 motion for sanctions against the appellants, Garcia-Menocal, and the GMIP law firm was noticed for a hearing.

The trial court conducted a hearing and issued two orders granting the appellees' motion for section 57.105 sanctions against the appellants, Garcia-Menocal, and the GMIP law firm. This appeal followed.

ISSUES ON APPEAL

The appellants contend that the trial court abused its discretion by awarding attorney's fees to the appellees because: (1) the trial court made no factual findings as to whether the sanctions motion the trial court proceeded under was served upon the appellants, Garcia-Menocal and GMIP; (2) the trial court made no specific findings as to the requisite factors articulated by the Florida Supreme Court in Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985) (holding that in determining reasonable attorney's fees, Florida courts should utilize the criteria set forth in Disciplinary Rule 2-106(b) of the Florida Bar Code of Professional Regulation) when imposing section 57.105 fees as a sanction, id. at 1150 ; (3) the trial court made no explicit finding that there was a complete absence of justiciable issues of law or fact raised in the complaint or that the appellants' claims or defenses were unsupported; (4) the appellants' claims were supported both factually and by the application of then-existing law; and (5) the trial court failed to apportion the fee award as required by section 57.105.

STANDARD OF REVIEW

The parties agree that a trial court's order awarding or denying attorney's fees under section 57.105 is reviewed for an abuse of discretion. See Trust Mortg., LLC v. Ferlanti, 193 So.3d 997, 999 (Fla. 4th DCA 2016). As explained by the Florida Supreme Court in Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980) :

Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.

Id. (quoting Delno v. Mkt. St. Ry. Co., 124 F.2d 965, 967 (9th Cir. 1942) ).

ANALYSIS

Section 57.105(1) provides as follows:

Upon the court's initiative or motion of any party, the court shall award a reasonable attorney's fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party's attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim or defense; or
(b) Would not be supported by the application of then-existing law to those material facts.

In addressing the statute's procedural requirements, subsection (4) mandates as follows:

A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.

(emphasis added).

"The purpose of section 57.105 is to discourage baseless claims, stonewall defenses and sham appeals in civil litigation by placing a price tag through attorney's fees awards on losing parties who engage in these activities." Whitten v. Progressive Cas. Ins. Co., 410 So.2d 501, 505 (Fla. 1982). Historically, a court could award attorney's fees under section 57.105 only where there was a "complete absence of a justiciable issue of either law or fact." Bridgestone/Firestone, Inc. v. Herron, 828 So.2d 414, 417 (Fla. 1st DCA 2002) (quoting § 57.105, Fla. Stat. (1997) ); see also Muckenfuss v. Deltona Corp. , 508 So.2d 340, 341 (Fla. 1987). However, in an effort to reduce frivolous litigation, the Legislature revised section 57.105 as a part of the 1999 Tort Reform Act. Bridgestone/Firestone, 828 So.2d at 417 (citing Ch. 99-225, § 4, Laws of Fla.).

The new version of the statute broadens remedies that were previously available. Wendy's of N.E. Fla. v. Vandergriff, 865 So.2d 520, 523 (Fla. 1st DCA 2003). Unlike its predecessor, the amended statute no longer requires a party to show a complete absence of a justiciable issue of fact, but instead allows recovery of fees for any claims or defenses that are unsupported. Bridgestone/Firestone, 828 So.2d at 417-18.

Notwithstanding these amendments, Florida courts have continued to caution that section 57.105 must be carefully applied to ensure that it serves the purpose for which it was intended - to deter frivolous pleadings. Id. at 419 ; see also Mullins v. Kennelly, 847 So.2d 1151, 1154 (Fla. 5th DCA 2003). Thus, an award of fees under section 57.105 requires more than the moving party succeeding in obtaining a dismissal of the action or the entry of a summary judgment in its favor, id.; see also Bowen v. Brewer, 936 So.2d 757, 762 (Fla. 2d DCA 2006), and a party does not need to have conclusive evidence to prove its case at the time of filing in order to avoid sanctions. Ferlanti, 193 So.3d at 1001. Where a party reasonably believes the factual basis for its claim exists, it is entitled to proceed with its claims and seek to prove those facts. Id. If attempts to prove those facts are fruitless, that is still not cause for sanctions where the party's initial belief was well-founded. Id.

A. Failure to Make the Requisite Findings

Nothing in the amendments or the subsequent case law suggest the trial court may award section 57.105 attorney's fees without first making explicit findings. The law is clear, in order to grant such fees, "the trial court must find that the action was 'frivolous or so devoid of merit both on the facts and the law as to be completely untenable.[']" Ferlanti, 193 So.3d at 1000 (quoting Chue v. Lehman, 21 So.3d 890, 891-92 (Fla. 4th DCA 2009) ) (emphasis added); see also Vasquez v. Provincial S., Inc., 795 So.2d 216, 218 (Fla. 4th DCA 2001) (reversing an award of attorney's fees under section 57.105 where the trial court failed to make specific findings that the claim was frivolous and completely untenable). This burden is a heavy one. Pappalardo v. Richfield Hosp. Servs, Inc., 790 So.2d 1226, 1228 (Fla. 4th DCA 2001). Additionally, the trial court's findings must be based on substantial competent evidence that is either contained in the record or is otherwise before the court. Yakavonis v. Dolphin Petroleum, Inc., 934 So.2d 615, 618 (Fla. 4th DCA 2006).

The trial court failed to make the requisite findings in this case. No such findings are contained in the trial court record, no such findings are found in the trial court's order, and the appellees' brief is notably silent on this issue.

Factual findings by the trial court are not only statutorily required, they are especially necessary in this case because there is record evidence that the appellants, Garcia-Menocal, and the GMIP law firm acted upon a good-faith belief that there existed a factual basis for the appellants' claims. The appellants claim that there was an oral contract between the parties, as well as a scheme by the appellees to defraud the appellants. The sworn affidavits of the appellants' principals, Christine Ann Smolt and Pedro Antonio Santana, as well as that of appellees' own former employee, Jorge Betancourt, appear to support these claims.

The record also suggests that the appellants, Garcia-Menocal, and the GMIP law firm's arguments regarding the inapplicability of federal law in the instant case was not frivolous. APS's status as a broker was in question, which, in turn, called into question the applicability of the federal statutes relating to brokers for the transportation of goods by a motor carrier. The appellants and their counsel relied on a Federal Motor Carrier Safety Administration printout showing that APS had not been a licensed broker since October 2006, and based on this evidence, argued that federal preemption, vis-a-vis the federal statutes governing claims against brokers and the corresponding federal statutes of limitations, did not apply.

Although the trial court granted the appellees' motion for summary judgment after concluding that the appellants' claims were preempted by federal law, the trial court's summary judgment order made no finding that appellants' position was frivolous, nor did it make such a finding in its orders granting the appellees' motion for sanctions. Losing on summary judgment alone, as previously discussed, does not conclusively prove a section 57.105 claim. If that were the case every summary judgment would be followed by a section 57.105 motion. Bowen, 936 So.2d at 762.

B. Apportionment Under Section 57.105(1)

The appellants contend that the trial court also erred by failing to apportion the fee award as required by the statute. The appellees' answer brief is silent on this issue. Section 57.105(1) requires apportionment of fee awards "to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney ...." Here, the trial court's orders appear to improperly impose "joint and several liability" for the full amount upon the appellants, Garcia-Menocal, and the GMIP law firm. Specifically, the orders state:

Plaintiffs and/or Plaintiffs' attorneys Garcia-Menocal, Irias & Pastori LLP shall pay fees in the amount of $28,350.00 and costs in the amount of $605.80 within 14 days of the entry of this Order.

Accordingly, reversal is likewise warranted on this issue.

C. Failure to Establish Proper Notice

Section 57.105 provides specific notice requirements that must be satisfied prior to imposing sanctions. It is undisputed that the appellants, Garcia-Menocal, and the GMIP law firm were not served with the December 1, 2015 motion for sanctions with the requisite twenty-one day safe harbor period prior to the filing of the motion for sanctions with the trial court. Statutes authorizing awards of attorney's fees are considered a derogation of the common law rule providing that each side bear its own fees. See Anchor Towing, Inc. v. Fla. Dep't of Transp., 10 So.3d 670, 672 (Fla. 3d DCA 2009) ; see also Montgomery v. Larmoyeux, 14 So.3d 1067, 1072 (Fla. 4th DCA 2009). Thus, the statute awarding attorney's fees must be strictly construed. Nathan v. Bates, 998 So.2d 1178, 1179 (citing Kittel v. Kittel, 210 So.2d 1, 3 n.7 (Fla. 1968) ).

The primary purpose of section 57.105's safe harbor provision is to provide the recipient of the motion with notice and the opportunity to withdraw or abandon a frivolous claim before sanctions are sought. HFC Collection Ctr., Inc. v. Alexander, 190 So.3d 1114, 1119 (Fla. 5th DCA 2016) (citing Maxwell Bldg. Corp. v. Euro Concepts, LLC, 874 So.2d 709, 711 (Fla. 4th DCA 2004) ). Thus, in order to have properly complied with section 57.105, the appellees must have first served the proposed motion upon the party it sought to sanction in this case-the appellants, Garcia-Menocal, and the GMIP law firm.

The record reflects that the appellees' first proposed motion for sanctions, dated December 1, 2015, against the appellants, attorney Burkich, and her law firm was never filed . The appellees, however, served the proposed motion upon attorney Burkich, as required by the safe harbor provision. The second motion for section 57.105 sanctions against the appellants, Garcia-Menocal, and the GMIP law firm was filed with the trial court. However, there is no record evidence that suggests that this proposed motion for sanctions was ever served , as required by the statute, on the appellants, Garcia-Menocal, or the GMIP law firm. The safe harbor letter addressed to attorney Burkich dated August 21, 2015, that corresponds with the December 1, 2015 proposed motion for sanctions, is addressed only to attorney Burkich. Neither the appellants, nor Garcia-Menocal or the GMIP law firm, were listed as recipients, and neither were copied on the letter.

Although the record reflects that Mr. Pastori of the GMIP law firm may have seen the letter that was sent to attorney Burkich while conducting his initial review of the file, section 57.105 is in derogation of common law and must be strictly construed, see Anchor Towing, Inc. v. Fla. Dep't of Transp., 10 So.3d 670 (Fla. 3d DCA 2009), and this Court in Global Xtreme, Inc. v. Advanced Aircraft Ctr., 122 So.3d 487 (Fla. 3d DCA 2013), held that the service of a letter, alone, does not meet the mandatory notice requirements of section 57.105(4). See also Nathan v. Bates, 998 So.2d 1178 (Fla. 3d DCA 2008) (holding that the statute clearly provides for the service of a motion, not a letter).

In Anchor, we held that providing actual notice, by way of a letter, was insufficient to comport with the statutory requirement that a proposed motion be served twenty-one days prior to it being filed with the court. Anchor, 10 So.3d at 672 (emphasis added). The Anchor case, while not entirely factually parallel to this case, is certainly instructive. There, Anchor Towing, Inc. ("Anchor"), the unsuccessful bidder on a roadside assistance contract, sought review of an administrative law judge's award of attorney's fees to the successful bidder, Sunshine Towing, Inc. ("Sunshine"). Sunshine's counsel had sent a detailed letter to Anchor's counsel threatening section 57.105 sanctions if Anchor did not withdraw certain objections raised in Anchor's bid protest. No proposed motion for sanctions was attached. Following a hearing, the administrative law judge found that the letter complied with section 57.105(4)'s mandatory notice requirement. On appeal, this Court held that "the letter sent to opposing counsel [was] not the same as the statutorily required motion, which is required to be served on opposing counsel and later filed with the court." Id. (citing Nathan v. Bates, 998 So. 2d 1148, 1149 (Fla. 3d DCA 2008) ) (emphasis added).

Consistent with the language in section 57.105(4), as interpreted by this Court in Anchor, the appellees were required to strictly follow the statute's procedural steps as to the appellants, as well as Garcia-Menocal and the GMIP law firm. Thus, the appellants contend that the trial court erred by failing to determine whether the appellees had complied with the section 57.105 notice requirements prior to imposing sanctions. We reject this argument because the first time the issue of whether the appellees had satisfied the mandatory notice requirement was raised was in the appellants' emergency motion for rehearing, but before the trial court could rule on the emergency motion for rehearing, the appellants filed their notice of appeal, thereby divesting the trial court of jurisdiction to rule on the emergency motion for rehearing.

CONCLUSION

We reverse the trial court's order awarding section 57.105 attorney's fees and costs in favor of the appellees because the trial court failed to make the requisite findings in its order or to apportion the fees and costs as required. Upon remand, the trial court may consider the issue of notice raised by the appellants in their emergency motion for rehearing.

Reversed and remanded.

      The initial brief and the notice of appeal indicate that the appellants are appealing two trial court orders entered on March 29, 2017. Although the record contains two orders, the two orders are identical and appear to be duplicates. Both are captioned, "Order Granting Defendants' Motion for Costs and Attorneys' Fees and Defendants' Motion for Sanctions," and order the appellants, Garcia-Menocal and the GMIP law firm to pay the appellees' attorney's fees in the amount of $28,350.00 and costs in the amount of $605 within fourteen days of the entry of the order. No other findings of fact or law are contained therein.

      Smolt is the President and Director of MC Liberty.

      Santana is the President and Director of P.S. Trucking, Inc.


text:
    Eddie MOULTRIE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1447
    District Court of Appeal of Florida, First District.
    August 10, 2018 Rehearing Denied September 13, 2018
    Eddie Moultrie, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

B.L. Thomas, C.J., and Osterhaus and Bilbrey, JJ., concur.


author: LAGOA, J.

text:
    Michael Roman WYNDER, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D18-1428
    District Court of Appeal of Florida, Third District.
    Opinion filed August 8, 2018
    Michael Roman Wynder, in proper person.
    Pamela Jo Bondi, Attorney General, for respondent.
    Before LAGOA, LOGUE, and SCALES, JJ.
   LAGOA, J.

Michael Wynder ("Wynder") filed a petition seeking a belated appeal pursuant to Florida Rule of Appellate Procedure 9.141. The petition, however, failed to set forth any facts that constitute the basis for entitlement to a belated appeal as required by Florida Rule of Appellate Procedure 9.141(c)(4)(F). Additionally, the petition was not sworn to as required by rule 9.141(c)(4)(F). Accordingly, we deny the petition as facially insufficient. See Gugelman v. State, 940 So.2d 503, 504 (Fla. 5th DCA 2006) ; Abbot v. State, 929 So.2d 723 (Fla. 5th DCA 2006). The denial is without prejudice to Wynder filing a properly sworn petition that complies with Florida Rule of Appellate Procedure 9.141(c)(4).

Petition for belated appeal denied without prejudice.