author: FERNANDEZ, J.

text:
    Kenny TENNYSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-625
    District Court of Appeal of Florida, Third District.
    Opinion filed April 11, 2018
    David S. Molansky, for appellant.
    Pamela Jo Bondi, Attorney General, and Jonathan Tanoos, Assistant Attorney General, for appellee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   FERNANDEZ, J.

Kenny Tennyson appeals his first degree murder, armed robbery, and conspiracy to commit armed robbery conviction and sentence, asserting that the trial court abused its discretion in denying defense counsel's request to impeach state witness Frank Reinstrom on recross examination. We find that the trial court did not abuse its discretion in its denial of recross as 1) the denial of impeachment was proper considering the basis for impeachment proffered by defense counsel, 2) the alleged Giglio violation was not properly preserved, and 3) there is no fundamental error. Accordingly, we affirm Tennyson's conviction and sentence, without prejudice to his right to file a post-conviction motion raising issues properly cognizable in such a motion.

I. BACKGROUND

Tennyson, along with codefendants Irvell Jenkins, Nathaniel Woodard, and Frank Reinstrom, was indicted on charges of first degree murder, armed robbery, and conspiracy to commit armed robbery. Tennyson was tried jointly with Woodard and found guilty as changed. The trial court sentenced Tennyson to life without parole on the first degree murder and armed robbery convictions and fifteen years on the conspiracy conviction. Reinstrom testified against Tennyson and Woodard and received a reduced sentence as a result of a plea agreement. Tennyson appeals his conviction, claiming that the trial court erroneously denied his request to recross Reinstrom.

On December 23, 2012, Ernesto Lopez was shot in front of a relative's home in the presence of his daughter and his brother-in-law. A white four door car pulled up, two men exited the vehicle from the passenger's side, stated that it was a robbery, and one of the men shot Lopez. The driver remained in the vehicle. After shooting Lopez, the men stole a gold chain from around Lopez's neck. Lopez passed away on January 15, 2013.

The victim's daughter, Natalie Lopez, and his brother-in-law, Genaro Guzman, were able to provide basic descriptions of the two men that exited the vehicle. The man holding the firearm who said "this is a robbery" in Spanish was described as an African American male in his early twenties with dreadlocks. The other man was described as a white or a lighter skinned male. Natalie testified that even though she could not see the driver of the white sedan, she assumed that there was a driver since the men who attacked her father exited out of passenger doors. During a photographic lineup of suspects, Natalie was able to identify Irvell Jenkins as the man with the firearm who shot her father. She was unable to identify any other suspects.

During the course of the investigation, Detective Fernando Bosch received a tip that led him to question Reinstrom concerning his involvement in the homicide. Reinstrom agreed to accompany the detective to the police department, where officers interrogated Reinstrom and informed him that he had been identified by the victim's daughter and that his involvement in the homicide was caught on video by a City of Miami camera. The officers then stepped out of the interview room to take a break. While alone in the room, Reinstrom received a call on his cellphone. Reinstrom's portion of the conversation was recorded as follows:

'Yo, what's good? Nigga still in this shit, man. Nawh, man, man somebody caught us, caught me on camera, man. Yeah, man with that shit man, I'mma call you back. 'Yo, huh. They got it right, they got a right hoodie they 'bout to show they, they 'bout to show I'm over here clearing my face. Yeah, they (inaudible), they got the address, they ah...yeah I'm finna ah...huh? Yeah, man they already know man the girl daughter pointed my face out. Yeah, man.

Though initially uncooperative, Reinstrom admitted that he was involved in the homicide as a driver of a secondary vehicle and agreed to show the officers the scene of the crime, the location where the white sedan was stolen, and the location where the vehicle was later abandoned after the shooting. He further identified Tennyson and Woodard as the individuals who were directly involved in the homicide.

Reinstrom was ultimately arrested and charged with first degree murder, armed robbery, and accessory after the fact. He pled guilty, pursuant to a written agreement, to accessory after the fact, was sentenced to a seventeen-year split sentence consisting of ten years of prison followed by seven years of probation, and agreed to testify truthfully against Tennyson and Woodard at the joint trial.

During trial, at the conclusion of Reinstrom's testimony on redirect examination, defense counsel for Woodard requested to recross examine Reinstrom for the purpose of impeachment. Defense counsel drew the trial court's attention to Reinstrom's initial denial of the phone call during the police interview but admitted that Reinstrom later agreed that he received the phone call, when questioned on redirect. Defense counsel also argued that Reinstrom's testimony did not agree with certain content from the phone conversation. Specifically, the transcript reads:

Defense Counsel: Judge, my inquiry regarding the content of it involve-involving response, he initially said it didn't happen. And then he later said it happened but was not in agreement with content. On redirect, she-there was further testimony were he explained that he had switched phones with someone and that the person who-he identified the caller and further discussed the content.
Because of his denial, it's central to our defense that we be permitted to impeach him in this area. So for this purpose, I am seeking because he has first denied and then agreed to some part of it on redirect, I'm asking that the jury actually hear the audio.
The Court: To impeach his denial that it happened?
Defense Counsel: Yes.

(Emphasis added). The relevant testimony from cross and redirect examination is provided as follows:

Cross Examination

Defense Counsel: There's a moment when in that interview room part of their-the pressure that they put on you, they exit that room and leave you to stew, correct?
Reinstrom: Yes, sir.
Defense Counsel: And at that moment you made a phone call.
Reinstrom: No, sir.
Defense Counsel: And you tell me if this is true. Did you say: "They got it right, yeah, man, they know, man, the girl daughter pointed my face out"? This is the phone call. This is the discussion on the phone call you made during a break in the interview, correct?
State: Objection, move to strike. Calls for hearsay.
The Court: Overruled.
Reinstrom: No, sir, that wasn't what was said.
...
Defense Counsel: And you make a phone call that says: They caught me on camera. They got it right. They got a right hoodie they about to show. Yeah, I'm fittin' to-yeah, man, they already know, man. The girl daughter pointed my face out. You remember making a discussion on your phone when no detectives are present in interview room?
Reinstrom: No, sir.
Defense Counsel: You don't remember this?
Reinstrom: No, sir.

Redirect Examination

State: So you-Mr. Miller was asking you about a phone you had. You had a phone, didn't you?
Reinstrom: The day I got arrested, ma'am?
State: Yes.
Reinstrom: Yes, I had it.
State: Whose phone was it?
Reinstrom: Jamel, ma'am.
State: Who were you on the phone with in the homicide bureau? Who were you calling?
Reinstrom: I ain't calling nobody ma'am.
State: Who called you?
Reinstrom: One of them. I can't remember which one, ma'am.
State: When you say one of them, who are you talking about?
Reinstrom: My codefendants.
State: Was it Jamel calling?
Reinstrom: I ain't sure.
State: But you know someone called you. And whose phone did they have that they were calling you from?
Reinstrom: It was probably-it was my phone.
State: Why did you guys switch phones?
Reinstrom: Because his phone was dying and he was leaving the house.
State: So whoever-who was leaving the house?
Reinstrom: Jamel, ma'am.
State: So is that who called you?
Reinstrom: If I'm not mistaken, yes, ma'am.

Defense counsel provided the trial court with the transcript of Reinstrom's interview with police, pointed out where in the transcript Reinstrom received a phone call during the interview, and requested that the trial court allow the jury to listen to the entire audio recording of the interview on recross in order to impeach Reinstrom.

The State responded that there was no new content brought up within the scope of redirect. The State acknowledged that Reinstrom did indeed testify that he did not place a phone call, but after clarification, Reinstrom agreed that he did receive a phone call during the interview. Regarding the content of the phone call, the State answered, "And that issue about whether what he said in the phone call is not new within the scope of redirect."

The trial judge denied defense counsel's request to recross Reinstrom, finding, "He clearly testified in redirect that he had a phone with him and that someone called him and that there was nothing critical about that." The trial proceeded, and Tennyson was convicted and sentenced. Tennyson's appeal followed.

II. ANALYSIS

On appeal, Tennyson claims that the trial court erroneously denied his request to recross Reinstrom based on two theories: 1) the trial court improperly restricted further impeachment of Reinstrom's credibility and 2) the trial court violated Tennyson's right to due process under Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). For the reasons stated below, we affirm Tennyson's conviction and sentence.

A. Standard of Review

"A trial court's decision not to allow re-cross-examination is reviewed for abuse of discretion." Knight v. State, 919 So.2d 628, 636 (Fla. 3d DCA 2006). It is not an abuse of discretion for a trial court to deny recross when the prosecutor does not raise any new matters during redirect. See Hurst v. State, 825 So.2d 517, 517 (Fla. 4th DCA 2002). "The admission or rejection of [evidence for the purpose of impeachment] rests in the sound discretion of the trial court who must judge the propriety thereof from what transpires upon the trial, and the conduct of the witness upon the stand. And this discretion will not be interfered with unless abused." Carter v. State, 101 So.2d 911, 914 (Fla. 1st DCA 1958). "This Court applies a mixed standard of review to Giglio claims, 'defer[ring] to the factual findings made by the trial court to the extent they are supported by competent, substantial evidence, but review[ing] de novo the application of [the law to the facts].' " Suggs v. State, 923 So.2d 419, 426 (Fla. 2005) (quoting Sochor v. State, 883 So.2d 766, 785 (Fla. 2004) ).

B. Impeachment

On appeal, Tennyson abandons the basis for impeachment proffered by defense counsel. At trial, defense counsel sought to impeach Reinstrom primarily for his initial denial of the phone call, which was corrected on redirect. As to the context of the phone call, defense counsel only referenced Reinstrom's testimony on redirect regarding "switching phones with someone" and "identif[ying] the caller." The trial court sought to clarify the reason for impeachment by asking, "To impeach his denial that [the phone call] happened?" Defense counsel answered in the affirmative and asked for the entire audio of the police interview to be played for the jury.

On appeal, Tennyson now argues that defense counsel should have been permitted to impeach Reinstrom with a specific statement from the audio recording in which, during the phone call, Reinstrom acknowledged that the victim's daughter had identified him at the scene of the shooting. Tennyson contends that this statement is contrary to Reinstrom's testimony during cross where he denied the content of the phone call, including acknowledging the daughter's identification. Tennyson also contends that the statement is also contrary to Reinstrom's testimony on redirect where he denied being present at the scene of the shooting.

Relevant Portion of the Phone Conversation

They got it right, they got a right hoodie they 'bout to show they, they 'bout to show I'm over here clearing my face. Yeah, they (inaudible), they got the address, they ah...yeah I'm finna ah...huh? Yeah, man they already know man the girl daughter pointed my face out. Yeah, man.

Relevant Testimony on Cross Examination

Defense Counsel: And at that moment you made a phone call.
Reinstrom: No, sir.
Defense Counsel: And you tell me if this is true. Did you say: "They got it right, yeah, man, they know, man, the girl daughter pointed my face out"? This is the phone call. This is the discussion on the phone call you made during a break in the interview, correct?
State: Objection, move to strike. Calls for hearsay.
The Court: Overruled.
Reinstrom: No, sir, that wasn't what was said.

Relevant Testimony on Redirect Examination

State: Were you there when Irvell Jenkins pulled the trigger?
Reinstrom: No, ma'am.
State: Is that why you don't know all the details?
Reinstrom: Yes, ma'am.

The trial judge based her decision to deny recross on the basis for impeachment defense counsel provided at trial, as is indicated by the judge's ruling-"Your request is denied. He clearly testified in redirect that he had a phone with him and that someone called him and that there was nothing critical about that." (Emphasis added). Reinstrom's denial of the portion of the phone call in which he acknowledged the daughter's identification and his denial of being at the scene of the shooting were not included as part of defense counsel's explanation for impeaching Reinstrom. Moreover, it was during defense counsel's cross examination that Reinstrom initially denied the phone call and denied the content of the phone call. Defense counsel had ample opportunity during cross to impeach Reinstrom but failed to do so.

Lastly, Reinstrom's denial on redirect regarding his presence at the scene of the shooting does not contradict his acknowledgment during the phone call that the daughter identified him at the scene. Reinstrom did not have personal knowledge of the substance of the statement. See Roman v. State, 475 So.2d 1228, 1233 (Fla. 1985) ; § 90.604, Fla. Stat. (2016). He was merely acknowledging the information the officers confronted him with during the interrogation, and there is no evidence in the record that the daughter actually identified Reinstrom. An impeachment of Reinstrom on this prior inconsistent statement would go to further discredit Reinstrom but is not admissible for the truth of the matter asserted-that he was present at the scene when the shooting took place. See generally Pearce v. State, 880 So.2d 561, 568-72 (Fla. 2004).

Accordingly, we find that there is no indication that the trial court abused its discretion when it denied defense counsel's request for impeachment on recross examination, and any possible error would be harmless.

C. Giglio Violation

Tennyson argues that "[t]he state allowed Reinstrom's false testimony to go uncorrected contrary to the requirements of Due Process (and contrary to the evidence [in the audio recording] ) [ ]" and cites to Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Yet, as the record indicates, the alleged Giglio violation was not properly preserved for appeal, and there was no fundamental error to overcome the lack of preservation in light of Reinstrom's substantial impeachment throughout trial.

A Giglio violation is established by showing: 1) the testimony provided was false, 2) the prosecutor knew the testimony was false, and 3) the false statement was material. Guzman v. State, 941 So.2d 1045, 1050 (Fla. 2006). A Giglio claim is based on the prosecutor's knowing presentation at trial of false testimony against the defendant. Giglio, 405 U.S. at 154-55, 92 S.Ct. 763. Under Giglio, where the prosecutor knowingly uses perjured testimony, or fails to correct what the prosecutor later learns is false testimony, the false evidence is material "if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Once the first two prongs are established, the State bears the burden of showing that the false evidence was immaterial by showing that its use was harmless beyond a reasonable doubt. Id. To do this, the State must show that "there is no reasonable possibility that the error contributed to the conviction." State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986).

A Giglio violation has to be properly preserved for review on appeal, unless it is found to be fundamental error. Mackey v. State, 55 So.3d 606, 610 (Fla. 4th DCA 2011). To preserve an issue for review on appeal, a legal argument must be timely raised and ruled on by the trial court and the argument must be sufficiently precise that it fairly apprises the trial court of the relief sought. § 924.051(1)(b)(3), Fla. Stat. (2016).

Defense counsel did not raise a Giglio violation in support of his request for recross examination. Defense counsel briefly brought up alleged false parts of Reinstrom's testimony, the explanation of which was ambiguous. The focus of defense counsel's rationale was on Reinstrom's initial denial of the phone call, which was later corrected on redirect. The Florida Supreme Court has held, "Ambiguous testimony does not constitute false testimony for the purposes of Giglio." Phillips v. State, 608 So.2d 778, 781 (Fla. 1992). More importantly, defense counsel did not show that the prosecutor knew the testimony was false; even a mere accusation of such is absent from the record. Therefore, the burden did not shift to the State to prove that the alleged false testimony was immaterial. Accordingly, a Giglio violation was not properly preserved for review on appeal.

D. Fundamental Error

However, a Giglio violation can be raised on appeal if not properly preserved if that violation constitutes a fundamental error. Mackey, 55 So.3d at 610. "Fundamental error is that which 'reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.' " Caraballo v. State, 39 So.3d 1234, 1249 (Fla. 2010) (quoting Brooks v. State, 762 So.2d 879, 899 (Fla. 2000) ).

Reinstrom's statements made during the phone call were unsworn, hearsay statements that would have been offered for impeachment purposes but not admissible as substantive evidence. In light of Reinstrom's substantial cumulative impeachment throughout his testimony, any error occurring as a result of the trial court's denial of recross examination was not fundamental error. On cross examination alone, Reinstrom's credibility was impeached at least five different times. Reinstrom admitted on the stand to lying multiple times about whether he saw a gun, including a specific instance in November 2013 at the Charlotte Correctional Institute. He admitted to lying about "mostly everything" during the police interview. Specifically, he lied to the officers regarding Nathaniel Woodard's involvement in the shooting. He also affirmed that he took the officers to the wrong location when retracing the routes taken on the day of the shooting. Reinstrom also agreed with defense counsel that if he lies and does not cooperate, according to the plea agreement, he will receive a sentence of no less than fifteen years. On redirect examination, the State also brought attention to Reinstrom initially lying to police regarding Woodard and Tennyson's involvement in the shooting.

As such, there is no fundamental error in this case.

III. CONCLUSION

We find that the trial court did not abuse its discretion when it denied recross examination of Reinstrom as 1) the denial of impeachment was proper considering the basis for impeachment proffered by defense counsel, 2) the alleged Giglio violation was not properly preserved, and 3) there is no fundamental error. For these reasons, we affirm Tennyson's conviction and sentence.

Affirmed.

      This Court previously affirmed the conviction of codefendant Irvell Jenkins in Case No. 3D14-214. Codefendant Nathaniel Woodard filed a separate appeal that is pending review before this Court as of the time of this opinion in Case No. 3D16-779.

      During cross examination, defense counsel did not seek to impeach Reinstrom for his testimony initially denying the phone call, denying the content of the phone call, and later, affirming that he did not remember that the phone call took place.

      The State did not directly question Reinstrom regarding the content of the phone call or his denial of the content of the phone call during cross examination.


source: Caselaw Access Project

author: LAGOA, J.

license: Public Domain

text:
    Juan ALVAREZ, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D17-1963
    District Court of Appeal of Florida, Third District.
    Opinion filed March 28, 2018
    Juan Alvarez, in proper person.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for respondent.
    Before LAGOA, SCALES, and LUCK, JJ.
   LAGOA, J.

The Petitioner, Juan Alvarez ("Alvarez"), filed a petition seeking a belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c). For the following reasons, we deny the petition.

On November 22, 2017, this Court appointed a commissioner to hold a limited evidentiary hearing in order to determine whether Alvarez requested that his counsel file an appeal from his plea and sentence. See Alvarez v. State, 230 So.3d 625, 626 (Fla. 3d DCA 2017). On December 21, 2017, the commissioner held an evidentiary hearing where both Alvarez and his former counsel, Alejandro Zamora ("Zamora"), testified. The State proceeded to file the Commissioner's Report from that hearing with this Court.

The commissioner made several factual findings. Specifically, the commissioner found that "Defendant's attorney, Mr. Zamora, took detailed notes at the time of the plea" and that "Zamora credibly testified the Defendant did not ask him to file an appeal nor was it referenced in his detailed notes." The commissioner further found that Alvarez was "not credible" and that various statements he made during the evidentiary hearing were "in fact refuted by the prior record," including the Order of Probation as well as the February 10, 2017, plea and sentencing hearing transcript. Based on these findings, the commissioner found that Alvarez did not request for his attorney to file a direct appeal. We accept the commissioner's recommendation and deny Alvarez's petition for belated appeal. See Svoboda v. State, 932 So.2d 545, 547 (Fla. 5th DCA 2006).

Petition denied.


author: SUAREZ, J.

text:
    FERSOM MORTGAGE, INC., Appellant, v. Carlos E. MORENO and Emira Moreno, Appellees.
    No. 3D17-509
    District Court of Appeal of Florida, Third District.
    Opinion filed April 25, 2018.
    Walton Jones + Browne, and Carla A. Jones and Holly M. Hamilton, for appellant.
    Loan Lawyers, LLC, and Chase E. Jenkins (Ft. Lauderdale), for appellees.
    Before SUAREZ, SALTER, and LINDSEY, JJ.
   SUAREZ, J.

This is an appeal from a final order dismissing Appellant Fersom Mortgage, Inc.'s crossclaim for lack of jurisdiction. Because we find that Fersom's crossclaim survived dismissal of the main foreclosure action, we reverse and remand for further proceedings.

In January 2012, The Bank of New York Mellon ("BNY"), the first mortgage lender, brought a foreclosure action against Appellees/Homeowners Carlos and Emira Moreno. Fersom had a second, separate mortgage on the property and was joined as a party. In May 2013, Fersom filed a crossclaim for foreclosure of its second mortgage and paid the crossclaim filing fee. The Homeowners were duly served, and they filed an answer and affirmative defenses in response to the crossclaim. In May 2014, following mediation between BNY and the Homeowners, BNY filed a voluntary dismissal of the main action.

In September 2016, Fersom filed a motion for final judgment. In response, the Homeowners filed a motion to amend their answer to Fersom's crossclaim, which was granted. After filing their amended answer, the Homeowners filed a motion to dismiss Fersom's crossclaim for lack of subject-matter jurisdiction. In their motion to dismiss, the Homeowners, relying on Layne Dredging Co. v. Regus, Inc., 622 So.2d 7 (Fla. 2d DCA 1993), argued that Fersom's crossclaim did not survive BNY's voluntary dismissal. The trial court agreed and dismissed Fersom's crossclaim, citing Layne Dredging. This appeal follows.

The issue before us is whether BNY's voluntary dismissal of the main foreclosure action extinguished the trial court's subject-matter jurisdiction as to Fersom's crossclaim. We hold that it did not; Fersom's crossclaim survived. Both the Homeowners' and the trial court's reliance on Layne Dredging is misplaced. In Layne Dredging, the Second District held that the trial court erred when it entered an order permitting the filing of a crossclaim "long after" voluntary dismissal of the main claim. Here, however, Fersom filed its crossclaim, paid its filing fee, served the Homeowners, and the Homeowners filed an answer before BNY filed its Notice of Voluntary Dismissal. Moreover, the court in Layne Dredging suggested that the crossclaim there "was purely derivative, so as to disappear with the dismissal of the main claim." Bruce J. Berman & Peter D. Webster, Fla. Prac., Civil Procedure § 1.420:8 n.4 (April 2018 update) (citing Layne Dredging, 622 So.2d at 8 ("Any purpose the defendant [crossclaimant] may have had to transfer its liability through a crossclaim ... was nullified at the moment when [plaintiff] accomplished the voluntary termination of its lawsuit.")). In contrast, the crossclaim here does not appear to depend on the survival of the main claim.

In Bird Lakes Dev. Corp. v. Velez, 846 So.2d 555 (Fla. 3d DCA 2003), this Court held that both a crossclaim and third party claim survived dismissal of the main action because none of the pleadings or orders entered in connection with the dismissal referred to the crossclaim or the third party claim. The same is true here. The voluntary dismissal only addressed BNY's foreclosure action; it did not address Fersom's crossclaim.

Because Fersom's crossclaim was filed before the voluntary dismissal and the voluntary dismissal did not address the action between Fersom and the Homeowners, the trial court had subject-matter jurisdiction over Fersom's crossclaim. We therefore reverse and remand for further proceedings.

Reversed and remanded.

      Although the case law in this state is sparse with respect to this issue, courts in other jurisdictions have reached similar conclusions. For instance, in Jennette Fruit & Produce Co., Inc. v. Seafare Corp., 75 N.C.App. 478, 331 S.E.2d 305, 307-08 (1985), the Court of Appeals of North Carolina held as follows:
      We perceive no valid or compelling reason to dismiss a crossclaim over which the courts of this state have jurisdiction merely because the plaintiff's original claim against the crossclaiming defendant has been dismissed. To hold otherwise would needlessly force a defendant who has filed a proper crossclaim concerning a matter governed by state law to refile its claim as a new action. This would require additional time and expense, including court costs and counsel fees. Further, absent adoption of "relation-back" principles which could unnecessarily complicate the litigation, it could result in the time-barring of claims once timely filed. Such a holding would elevate form over substance.


author: SCALES, J.

text:
    Senia RODRIGUEZ, Appellant, v. Luis Villavicencio GUERRA, Appellee.
    No. 3D17-2776
    District Court of Appeal of Florida, Third District.
    Opinion filed April 25, 2018.
    Navarro Hernandez, P.L., and Luis F. Navarro, for appellant.
    Law Offices of E. I. Friedman, P.A., and Eyal I. Friedman, for appellee.
    Before EMAS, SCALES, and LINDSEY, JJ.
   SCALES, J.

Appellant, defendant below, Senia Rodriguez challenges a non-final order that denied Rodriguez's Motion to Discharge Lis Pendens or in the Alternative to Set Lis Pendens Bond ("Motion"). Finding no abuse of discretion, we affirm.

Appellee, plaintiff below, Luis Villavicencio Guerra, recorded a notice of lis pendens contemporaneously with Guerra's lawsuit seeking to rescind a quitclaim deed, purporting to transfer Guerra's property to Rodriguez. Rodriguez set her Motion as a non-evidentiary hearing on the trial court's open motion calendar. As is apparent from the transcript of the hearing, the trial court concluded that Guerra's claims were not "founded on a duly recorded instrument" so as to authorize Guerra to record a lis pendens as a matter of right. See § 48.23(3), Fla. Stat. (2017) ; Am. Legion Cmty. Club v. Diamond, 561 So.2d 268, 272 (Fla. 1990) (concluding that an action to set aside a conveyance of real property for fraud was not an action "founded on the terms and provisions" of the recorded instrument, "but on the circumstances surrounding the execution" of the recorded instrument; therefore, the plaintiff was not entitled to a lis pendens as a matter of right). Hence, as required by section 48.23(3), the trial court adjudicated Rodriguez's motion as if Guerra's notice of lis pendens was a temporary injunction. § 48.23(3), Fla. Stat. (2017) ("When the pending pleading does not show that the action is founded on a duly recorded instrument ... the court shall control and discharge the recorded notice of lis pendens as the court would grant and dissolve injunctions."); Med. Facilities Dev., Inc. v. Little Arch Creek Props., Inc., 675 So.2d 915, 917 (Fla. 1996) (concluding that, where an action is not based on a duly recorded instrument, the proponent is entitled to maintain a lis pendens where the proponent shows a "fair nexus between the property and the dispute").

While not entirely clear from the hearing transcript, it does appear that the trial court determined that Guerra had met his burden of establishing a fair nexus between the subject property and the underlying action. Upon finding that Rodriguez had not satisfied her burden of demonstrating irreparable harm, the trial court then exercised its discretion not to impose a requirement of a bond. Med. Facilities Dev., Inc., 675 So.2d at 917-18 ("[T]he decision of whether a lis-pendens bond should be posted rests within the discretion of the trial judge. ... Our holding today specifically rejects the interpretation that the statutory reference to injunctions requires the lis-pendens proponent to post a bond in every case."). While a better practice may have been for the trial court to schedule an evidentiary hearing on the bond issue, we can hardly conclude that the trial court abused its discretion in this regard when Rodriguez scheduled the hearing on her Motion as a non-evidentiary hearing on the trial court's open motion calendar.

Affirmed.

      While appellant challenged the subject non-final order via appeal, we recognize that recent decisions of this Court indicate that the appropriate procedure for reviewing non-final orders granting or discharging a lis pendens, and non-final orders relating to lis pendens bonds, is via a certiorari petition. See Bankers Lending Servs., Inc. v. Regents Park Invs., LLC, 225 So.3d 884, 885 (Fla. 3d DCA 2017) ; 100 Lincoln Rd. SB, LLC v. Daxan 26 (FL), LLC, 180 So.3d 134, 136 (Fla. 3d DCA 2015). These recent decisions, though, did not abrogate prior decisions of this Court concluding that we have appellate jurisdiction to review such non-final orders under Florida Rule of Appellate Procedure 9.130(a)(3)(B). See Acapulco Constr., Inc. v. Redavo Estates, Inc., 645 So.2d 182, 183 (Fla. 3d DCA 1994) ; Roger Homes Corp. v. Persant Constr. Co., 637 So.2d 5, 6 n.1 (Fla. 3d DCA 1994) ; Munilla v. Espinosa, 533 So.2d 895, 895 n.1 (Fla. 3d DCA 1988). The result in this case is not dependent upon the review mechanism, and would have been the same had appellant filed a petition for certiorari relief rather than an appeal.

      After Guerra executed a power of attorney purportedly authorizing Rodriguez to execute documents on Guerra's behalf, Rodriguez, allegedly acting pursuant to the power of attorney, executed the subject quitclaim deed.

      Count I of Guerra's Amended Complaint sought to rescind the subject quitclaim deed, and Count II sought to quiet title in the subject property to Guerra.

      In advance of the hearing, as exhibits to her verified supplemental memorandum of law in support of her Motion, Rodriguez provided the trial court with numerous documents and an affidavit that purported to support her claim of irreparable harm. The hearing transcript reflects that Rodriguez's exhibits were discussed at the hearing immediately prior to the trial court making its ruling.


author: EMAS, J.

text:
    Valerie FRANCIS-HARBIN, etc., Appellant, v. SENSORMATIC ELECTRONICS, LLC, etc., et al., Appellees.
    No. 3D17-407
    District Court of Appeal of Florida, Third District.
    Opinion filed April 25, 2018
    Arthur J. Morburger, Miami, for appellant.
    Perez & Rodriguez, P.A., and Javier J. Rodriguez, Coral Gables, for appellees.
    Before EMAS, FERNANDEZ and LUCK, JJ.
   EMAS, J.

INTRODUCTION

Valerie Francis-Harbin, plaintiff below, appeals 1) the trial court's final judgment following a jury trial on her negligence claim; and 2) the trial court's postjudgment order denying her motion for new trial or for additur. We affirm, because the jury's verdict is not legally inconsistent, and Francis-Harbin has failed to provide this court with a sufficient record upon which this court can properly review her claim that the verdict is inadequate or contrary to the manifest weight of the evidence.

FACTS AND BACKGROUND

Francis-Harbin was shopping at a Walmart store when a scissor lift truck struck her left foot, causing injury. Francis-Harbin filed suit against Walmart, AGM Tech, Inc., Sensormatic Electronics, LLC, and ADT Security Services, Inc., alleging that an employee of Walmart, or alternatively, an employee of AGM Tech (as an authorized agent of Sensormatic Electronics/ADT Security) (collectively, Sensormatic), negligently operated the machine causing her injury. Defendants denied liability and asserted that Francis-Harbin was negligent.

The case proceeded to jury trial, resulting in a verdict that found Walmart 65% at fault, Francis-Harbin 20% at fault, and Sensormatic/ADT and AGM Tech 15% at fault. The jury awarded Francis-Harbin $14,000 in past medical expenses and $96,000 for lost earnings, an amount totaling $110,000. The jury awarded Francis-Harbin no damages for past pain and suffering, future pain and suffering, future medical expenses and future lost earnings. When the verdict was announced, and before the jury was discharged, Francis-Harbin objected to the verdict as legally inconsistent. The trial court denied the request that the jury be reinstructed and directed to continue deliberations.

Francis-Harbin thereafter filed a motion for new trial or in the alternative, for additur, asserting that the verdict awarding no damages for past or future pain and suffering was legally inconsistent with the award of $14,000 for past medical expenses. Francis-Harbin further contended she was entitled to a new trial or to an additur because the jury's award of no damages for past pain and suffering was inadequate in light of the evidence.

In response, Sensormatic argued, inter alia , that defendants disputed at trial (1) whether an accident ever happened; (2) whether Francis-Harbin was injured as a result of the alleged accident or event; and (3) whether Francis-Harbin's physical and mental complaints were a result of the alleged accident or instead the result of pre-existing conditions or post-accident events (e.g., diabetes, morbid obesity, a subsequent car accident).

The trial court denied Francis-Harbin's motion for new trial or additur and entered final judgment awarding Francis-Harbin $16,500. This appeal follows.

ANALYSIS

In Allstate Ins. Co. v. Manasse, 707 So.2d 1110, 1111 (Fla. 1998), the Florida Supreme Court recognized that appellate courts have long applied an abuse of discretion standard when reviewing a trial court's ruling on a motion for new trial:

The judicial determination on a motion for a new trial is a discretionary act of the trial court:
"When a motion for new trial is made it is directed to the sound, broad discretion of the trial judge, who because of his contact with the trial and his observation of the behavior of those upon whose testimony the finding of fact must be based is better positioned than any other one person fully to comprehend the processes by which the ultimate decision of the triers of fact, the jurors, is reached." Cloud v. Fallis, 110 So.2d 669, 673 (Fla.1959).

Francis-Harbin's principal contention is that the verdict is legally inconsistent because it awarded damages for past medical expenses while awarding no damages for past or future pain and suffering. Alternatively, Francis-Harbin argues that the verdict was inadequate or was contrary to the manifest weight of the evidence, requiring additur or a new trial on damages. We find neither of Francis-Harbin's arguments persuasive or supported by the record.

The Verdict is Not Legally Inconsistent

We first dispense with Harbin's claim that the verdict was legally inconsistent. A legally inconsistent verdict is one which contains two or more findings which, as a matter of law, cannot co-exist. See, e.g., Avakian v. Burger King Corp., 719 So.2d 342 (Fla. 4th DCA 1998) ; Deklyen v. Truckers World, Inc., 867 So.2d 1264 (Fla. 5th DCA 2004). Perhaps the simplest example of a legally inconsistent verdict occurs where a jury in a negligence case answers "No" to the first question on the verdict form: "Was there negligence on the part of defendant which was a legal cause of damage to plaintiff?" but nevertheless completes the remainder of the verdict form and awards damages to the plaintiff.

Regardless of the nature, quality or weight of the evidence presented at trial, the determinations in the example above cannot co-exist. Because only the empaneled jury can correct such a verdict, a party wishing to contest a legally inconsistent verdict must raise the issue with the trial court before the jury is discharged, and the failure to do so results in a waiver. Coba v. Tricam Indus., Inc., 164 So.3d 637 (Fla. 2015) ; J.T.A. Factors, Inc. v. Philcon Svcs., Inc., 820 So.2d 367 (Fla. 3d DCA 2002). Where the issue has been timely raised, the jury (following appropriate reinstruction by the trial court) resumes its deliberations to return a legally consistent verdict.

Frances-Harbin asserts that the verdict in this case is "legally inconsistent" because it awarded damages for past medical expenses while awarding no damages for past or future pain and suffering. However, such a verdict is not inconsistent as a matter of law. Instead its "validity"-or more accurately, its adequacy-is dependent on the nature, quality and weight of the evidence presented at trial. A jury may return such a verdict if the testimony and other evidence presented at trial could support such a determination by the jury. In fact, this court and others have upheld verdicts mirroring the one returned in the instant case. See, e.g., Somoza v. Allstate Indem. Co., 929 So.2d 702 (Fla. 3d DCA 2006) (holding that a verdict awarding only medical expenses does not require a new trial as a matter of law where there is a dispute as to whether the injuries suffered resulted from the accident); Beauvais v. Edell, 760 So.2d 262 (Fla. 4th DCA 2000) (holding that, where there is a dispute as to whether the injuries resulted from the subject accident, a motion for new trial or additur, upon a verdict awarding damages for past medical expenses but no damages for past pain and suffering, is left to the broad discretion of the trial court).

In Allstate Indem. Co. v. Clark, 736 So.2d 1 (Fla. 2d DCA 1998), our sister court upheld a verdict in which the jury awarded damages for past medical expenses, but awarded no damages for future medical expenses, or for past or future pain and suffering. In affirming, the Second District noted:

Though a jury finds a plaintiff entitled to medical expenses in a given cause, it is free to simultaneously conclude that the plaintiff has suffered no compensable damages for pain and suffering or other intangibles, if there is evidence to support that conclusion. Thus, a verdict which fails to award pain and suffering damages, despite awarding medical expenses for injuries arising out of an accident, is neither inconsistent nor inadequate unless the evidence of intangible damages is entirely uncontroverted.

Id. at 2 (additional citations omitted).

In the instant case, the trial court correctly determined that the jury's verdict was not legally inconsistent.

The Record Fails to Establish That the Verdict is Inadequate or Contrary to the Manifest Weight of the Evidence

Alternatively, Frances-Harbin argues that the trial court erred in denying her motion for additur or new trial because the verdict was inadequate or contrary to the manifest weight of the evidence. However, in seeking review of the trial court's denial of a motion for new trial based upon inadequacy of a verdict, or a verdict contrary to the manifest weight of the evidence, appellant has an affirmative duty to provide an adequate record for consideration of these issues. See Fla. R. App. P. 9.200(e) ; Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979) ; Seal Products v. Mansfield, 705 So.2d 973 (Fla. 3d DCA 1998).

The trial court's assessment of whether the verdict is contrary to the manifest weight of all the evidence cannot be made in a vacuum, but must be made upon consideration of the evidence presented at the trial. See, e.g., Smith v. Brown, 525 So.2d 868, 870 (Fla. 1988) (in deciding to "grant a new trial if the manifest weight of the evidence is contrary to the verdict," the "trial judge must necessarily consider the credibility of the witnesses along with the weight of all of the other evidence.") Similarly, and as discussed earlier, a trial court's assessment of whether an award of no damages for past or future pain and suffering renders the verdict inadequate requires the trial record to evaluate, for example, whether and the extent to which these damages were disputed or undisputed. The record on appeal must be sufficient to permit this court to provide meaningful review while according the trial court the broad discretion and presumption of correctness that attaches to its determinations. See Manasse, 707 So.2d at 1111.

In the instant case, Francis-Harbin failed to provide a record of the trial proceedings, including witness testimony, jury instructions or arguments of counsel. Instead, she relies solely on the exhibits admitted into evidence during the presentation of her case. Upon this record we cannot conclude that the trial court abused its discretion in determining that the verdict was neither inadequate nor contrary to the manifest weight of the evidence.

Affirmed.

      Although Walmart was on the verdict form as a Fabre defendant, see Fabre v. Marin, 623 So.2d 1182 (Fla. 1993), Francis-Harbin dismissed Walmart as a party defendant prior to trial. Additionally, Francis-Harbin's husband, Neville Lee, was originally a party plaintiff to the action (asserting a claim for loss of consortium), but voluntarily dismissed his claim prior to trial.

      The final judgment amount of $16,500 was based upon the total award ($110,000) multiplied by the percentage of negligence attributed by the jury to Sensormatic (15%).

      By contrast, a party objecting to a verdict as "inadequate" may preserve the issue by filing a post-trial motion for new trial, rather than making a contemporaneous objection upon the return of the verdict and prior to discharge of the jury. Ellender v. Bricker, 967 So.2d 1088 (Fla. 2d DCA 2007) ; Progressive Select Ins. Co., Inc. v. Lorenzo, 49 So.3d 272 (Fla. 4th DCA 2010).

      Frances-Harbin asserts that our decision in Pickel v. Rosen, 214 So.2d 730 (Fla. 3d DCA 1968) compels the conclusion that the verdict is legally inconsistent. We do not agree. In Pickel, the court reversed for a new trial on damages under the following circumstances: the "uncontradicted evidence" established that plaintiff suffered a compensable injury; the "uncontroverted evidence" established that, as a result, plaintiff experienced pain and suffering; the jury awarded medical expenses in the exact amount sought by plaintiff, while awarding zero damages for pain and suffering. Id. at 731. While the opinion does say that "[u]nder the circumstances, the award of zero dollars was inconsistent with the award of the exact medical expenses to the plaintiff," id., the opinion also describes the verdict as "grossly inadequate." Id. A full reading of the opinion indicates that the court's reference to the award as "inconsistent" is more colloquial than anything else. See DiMare v. Robertson, 758 So.2d 1193 (Fla. 3d DCA 2000). Moreover, nowhere does Pickel conclude that the verdict was legally inconsistent. Indeed, the court's holding is premised not upon any legal inconsistency, but upon the grossly inadequate nature of a zero-damages verdict in light of the uncontroverted nature of the evidence establishing the existence of an injury, and resulting pain and suffering, caused by defendant's negligence. Pickel is a prototypical example of an inadequate, rather than a legally inconsistent, verdict.


text:
    Ramon PACHECO, et al., Appellants, v. R. Randy GONZALEZ, Appellee.
    No. 3D16-355
    District Court of Appeal of Florida, Third District.
    Opinion filed May 16, 2018
    Cole, Scott & Kissane, P.A., and Kathryn L. Ender and George R. Truitt ; White & Case LLP, and Raoul G. Cantero, for appellants.
    Coffey Burlington, P.L., and Jeffrey B. Crockett and Kevin C. Kaplan, for appellee.
    Before LAGOA, LOGUE, and SCALES, JJ.
   LAGOA, J.

Appellants, Ramon Pachecho ("Pacheco") and Ramon Pacheco and Associates, Inc. (the "Corporation"), appeal the trial court's final judgment for attorneys' fees in the amount of $232,440 in favor of appellee, R. Randy Gonzalez ("Gonzalez"), based upon a Proposal for Settlement (the "Proposal") served pursuant to section 768.79, Florida Statutes (2011), and Florida Rule of Civil Procedure 1.442. Because the conditional nature of the Proposal divested Pacheco and the Corporation of their ability to independently evaluate and accept the Proposal irrespective of the other party's decision, we hold that the Proposal was invalid under Attorneys' Title Insurance Fund, Inc. v. Gorka, 36 So.3d 646 (Fla. 2010), and reverse.

I. FACTUAL AND PROCEDURAL BACKGROUND

On August 24, 2010, Gonzalez filed suit against Pacheco and the Corporation, among others, seeking damages for the defective design of an air conditioning system in his new home. The complaint alleged claims against Pacheco and the Corporation, which the complaint referred to collectively as the "PACHECO Defendants," for breach of contract (Count I), negligence (Count II), and negligent misrepresentation (Count III). On September 27, 2011, Gonzalez served the Proposal on "Defendants RAMON PACHECO and RAMON PACHECO AND ASSOCIATES, INC. (collectively, 'PACHECO DEFENDANTS')" pursuant to rule 1.442 and section 768.79, Florida Statutes. Making no distinction between Pacheco and the Corporation, the Proposal stated that it was made to the "PACHECO DEFENDANTS" and was offered to resolve all claims against the "PACHECO DEFENDANTS." The Proposal stated, in part:

4. Total amount of proposal:
The monetary amount of this Proposal is payment by the PACHECO DEFENDANTS to Plaintiff in the total amount of $300,000.00, which shall include payment for all alleged damages of any kind, compensatory, punitive or otherwise, which may be awarded in a final judgment in this action against the PACHECO DEFENDANTS, including costs and prejudgment interest upon the total damages, and is to settle all claims which have been brought or which could have been brought by Plaintiff against the PACHECO DEFENDANTS in the above-styled matter. The payment shall be allocated as follows: $150,000.00 from Defendant RAMON PACHECO, and $150,000.00 from Defendant RAMON PACHECO AND ASSOCIATES, INC.
5. Except as provided herein, Plaintiff and the PACHECO DEFENDANTS will otherwise bear their own respective attorneys' fees and costs.
6. Acceptance of this Proposal: Upon acceptance of this offer by the PACHECO DEFENDANTS, Plaintiff and the PACHECO DEFENDANTS shall authorize their counsel to sign and file a stipulation of voluntary dismissal with prejudice in the form attached hereto as Exhibit "A."

Attached as Exhibit A to the Proposal was a Stipulation of Voluntary Dismissal With Prejudice (the "Stipulation"), stating that the "PACHECO DEFENDANTS dismiss with prejudice all claims, counterclaims and third-party claims that were brought or could have been brought by them in this action" and that "Plaintiff voluntarily dismisses with prejudice all claims that were brought or could have been brought in this action against the PACHECO DEFENDANTS." The Proposal was not accepted.

The matter proceeded to a bench trial. The trial court entered Findings of Fact and Conclusions of Law and held "that both Ramon Pacheco, individually, and Ramon Pacheco and Associates, Inc., are liable to Mr. Gonzales [sic] for the defective system." The trial court further found "[b]oth Pacheco individually and the [Corporation] are responsible pursuant to the Contract" and that Pacheco signed the contract in his own name, without corporate designation. Alternatively, the trial court found both Pacheco and the Corporation responsible under principles of negligence and negligent misrepresentation. Gonzalez appealed to this Court, arguing that the trial court erred in failing to award him loss of use damages. Pacheco and the Corporation cross-appealed, arguing that the trial court erred in holding Pacheco individually liable under the contract and on the negligence counts. This Court reversed and remanded for the trial court to determine loss of use damages, but affirmed the trial court's findings as to Pacheco's individual liability. Gonzalez v. Barrenechea, 170 So.3d 13 (Fla. 3d DCA 2015).

On remand, the trial court entered a Third Amended Final Judgment Against Ramon Pacheco and Ramon Pacheco and Associates, Inc., ordering that Gonzalez recover from Pacheco and the Corporation, jointly and severally, the amount of $377,019.45. The trial court also entered an Amended Findings of Fact and Conclusions of Law, making the same findings as to liability for Pacheco and the Corporation.

Gonzalez filed a Motion for Attorney's Fees and to Tax Costs, seeking attorney's fees pursuant to section 768.79. Gonzalez argued that he had filed the Proposal "and offered to resolve all outstanding claims against Pacheco Defendants for a settlement payment of $300,000.00 by the Pacheco Defendants to Gonzalez." In a footnote, Gonzalez further stated that "Gonzalez' [sic] offer included the following terms: Ramon Pacheco, individually, and Ramon Pacheco and Associates, Inc., would each pay Gonzalez $150,000.00." Pacheco and the Corporation filed a response to Gonzalez's motion for attorney's fees, arguing that the proposal was facially invalid and unenforceable under rule 1.442 and that Gonzalez was not entitled to fees under section 768.79 because, among other things, the Proposal improperly required acceptance by both Pacheco and the Corporation and failed to provide each with the ability to independently accept the Proposal.

The trial court conducted a hearing on Gonzalez's motion for fees and costs and entered an order finding that Gonzalez was entitled to attorney's fees. The parties stipulated to the amount of fees. The trial court subsequently entered a final judgment for attorney's fees ordering that Gonzalez recover from Pacheco and the Corporation, jointly and severally, the amount of $232,440 in attorney's fees. This appeal followed.

II. STANDARD OF REVIEW

We review de novo a trial court's determination as to eligibility to receive attorney's fees under section 768.79 and rule 1.442. Pratt v. Weiss, 161 So.3d 1268, 1271 (Fla. 2015) ; Miami-Dade County v. Ferrer, 943 So.2d 288, 290 (Fla. 3d DCA 2006).

III. ANALYSIS

" Section 768.79, Florida Statutes, governs offers of judgment, and rule 1.442 delineates the procedures that implement this statutory provision." Audiffred v. Arnold, 161 So.3d 1274, 1277 (Fla. 2015). The Florida Supreme Court has made clear that Florida courts must strictly construe the statute and the rule as they "are in derogation of the common law rule that each party pay its own fees." Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276, 278 (Fla. 2003) ; accord Kuhajda v. Borden Dairy Co. of Ala., LLC., 202 So.3d 391, 394 (Fla. 2016) ; Pratt, 161 So.3d at 1271. Moreover, proposals for settlements made under the rule and statute must "be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification." State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1079 (Fla. 2006). "[A]ny drafting deficiencies [will be] construed against the drafter." Paduru v. Klinkenberg, 157 So.3d 314, 318 (Fla. 1st DCA 2014). An extensive body of case law construing proposals for settlements made under these provisions has developed, further narrowing the grounds upon which attorneys' fees may be awarded for a failure to accept a settlement offer. The instant case, however, is controlled by only one: Attorneys' Title Insurance Fund, Inc. v. Gorka, 36 So.3d 646 (Fla. 2010).

Gorka concerned an offer made by a single offeror to two offerees that was conditioned on mutual acceptance within the context of rule 1.442(c)(3). The Florida Supreme Court held that joint offers "conditioned on the mutual acceptance of all joint offerees" are "invalid and unenforceable because it is conditioned such that neither offeree can independently evaluate or settle his or her respective claim by accepting the proposal." Id. at 647. In reaching its conclusion, the Florida Supreme Court explained that:

we have drawn from the plain language of rule 1.442 the principle that to be valid and enforceable a joint offer must (1) state the amount and terms attributable to each party, and (2) state with particularity any relevant conditions. A review of our precedent reveals that this principle inherently requires that an offer of judgment must be structured such that either offeree can independently evaluate and settle his or her respective claim by accepting the proposal irrespective of the other parties' decisions . Otherwise, a party's exposure to potential consequences from the litigation would be dependently interlocked with the decision of the other offerees.

Id. at 650 (emphasis added) (citation omitted); see also Pratt, 161 So.3d at 1272 (discussing that the purpose of rule 1.442(c)(3)"is to allow each offeree to evaluate the terms and the amount of the offer as it pertains to him or her" and stating that in Gorka, "[w]e held that the proposal ... was invalid because the conditional nature of the offer divested each plaintiff of independent control over the decision to settle"); Audiffred, 161 So.3d at 1279-80. The Court's holding in Gorka was based on the principle that "[a]n offer that cannot be unilaterally accepted to create a binding settlement is an illusory offer." Gorka, 36 So.3d at 652.

The rule articulated in Gorka has two significant limitations. First, Gorka does not apply to a proposal for settlement made by multiple offerors to a single offeree. As our sister court, the Fourth District Court of Appeal, explained in Hoang Dinh Duong v. Ziadie, 153 So.3d 354 (Fla. 4th DCA 2014) :

Unlike Gorka, which involved an offer to multiple offerees conditioned on acceptance of all the offerees, this case involves an offer to a single offeree, conditioned on that single offeree accepting the offer as to all of the multiple offerors .... [W]here there is only one offeree, it is the offeree's decision alone to accept or reject the proposal, without the decision being dependent on any other party. Thus, Gorka's concern that the offer there "divest[ed] each party [i.e., offeree] of independent control of the decision to settle" was not implicated.

Id. at 359 (emphasis in original); accord Wolfe v. Culpepper Constructors, Inc., 104 So.3d 1132, 1134-35 (Fla. 2d DCA 2012) (concluding that Gorka did not control where joint proposal was made by two offerors to a single offeree because Gorka involved a single offeror and joint offerees).

The second limitation on Gorka, which Gonzalez asserts applies to the facts of this case, is set forth in rule 1.442(c)(4) and applies to cases involving vicarious liability. Rule 1.442(c)(4) provides:

Notwithstanding subdivision (c)(3) [requiring a joint proposal to state the amount and terms attributable to each party], when a party is alleged to be solely vicariously, constructively, derivatively, or technically liable , whether by operation of law or by contract, a joint proposal made by or served on such a party need not state the apportionment or contribution as to that party . Acceptance by any party shall be without prejudice to rights of contribution or indemnity.

Fla. R. Civ. P. 1.442(c)(4) (emphasis added). Gonzalez argues that because apportionment is not required under subsection (c)(4), the intent of the subsection was to permit "all-or-nothing" offers where a party is alleged to be vicariously liable. Gonzalez further asserts that because the liability of Pacheco and the Corporation was vicarious, the Proposal was valid and enforceable. Rule 1.442 (c)(4), however, does not apply to the facts of this case.

The plain language of rule 1.442(c)(4) limits its application to scenarios where a party's liability is alleged to be solely vicarious or otherwise indirect. Indeed, "[t]he focus of the exception contained in rule 1.442(c)(4) is not whether a party is liable for the full amount of damages, but rather, it is whether the claims against the party are direct claims or solely claims of vicarious or other forms of indirect liability." Saterbo v. Markuson, 210 So.3d 135, 138 (Fla. 2d DCA 2016) (footnote omitted). Compare Saterbo, 210 So.3d at 139 (holding that "apportionment was not necessary pursuant to rule 1.442(c)(4)" where claim against one of two offerees was based solely on vicarious liability as owner of vehicle), and Miley v. Nash, 171 So.3d 145, 150 (holding that no apportionment in joint proposal was necessary under rule 1.442(c)(4) where one of two defendants was sued solely for vicarious liability as vehicle's owner), with Haas Automation, Inc. v. Fox, 243 So.3d 1017, 1026-27, 2018 WL 1612578 (Fla. 3d DCA April 4, 2018) (holding that rule 1.442(c)(4)'s exception to rule 1.442(c)(3)'s apportionment requirement did not apply where joint offerors did not have indirect liability for their claims against single offeree).

Here, a review of Gonzalez's claims against Pacheco and the Corporation shows that neither "is alleged to be solely vicariously, constructively, derivatively, or technically liable." Although the complaint refers to Pacheco and the Corporation collectively as the "PACHECO Defendants," and alleges claims against the "PACHECO Defendants" for breach of contract (Count I), negligence (Count II), and negligent misrepresentation (Count III), the complaint does not allege that either party is vicariously liable. Significantly, after a bench trial, the trial court held "that both Ramon Pacheco, individually, and Ramon Pacheco and Associates, Inc., are liable to Mr. Gonzales [sic] for the defective system." The trial court further found that "[b]oth Pacheco individually and the [Corporation] are responsible pursuant to the Contract," and that each had breached their duty to properly design the air conditioning system and thus were responsible under principles of negligence and negligent misrepresentation. In their plenary appeal to this Court, Pacheco and the Corporation specifically argued that the trial court erred in holding Pacheco individually liable under both the contract count and the negligence counts. This Court rejected that argument and affirmed the trial court's findings. Gonzalez, 170 So.3d at 15 n.1 ; see also id. at 19 (Suarez, J., concurring in part and dissenting in part) (joining "the majority in affirming the trial court's findings as to the architect's liability").

Thus, contrary to Gonzalez's assertion on this appeal that there was "no distinction" between the liability of Pacheco and the Corporation, Gonzalez's complaint alleged that Pacheco and the Corporation were each directly liable, the trial court made findings of fact that Pacheco and the Corporation were each directly liable, and this Court affirmed the trial court's findings in that earlier appeal. Accordingly, Gonzalez's assertion that rule 1.442(c)(4) applies fails, as the plain language of the rule only applies "when a party is alleged to be solely vicariously, constructively, derivatively, or technically liable, whether by operation of law or by contract."

Turning to the question of whether the Proposal is valid under Gorka, we find the Proposal to be invalid and unenforceable. The Proposal seeks "payment by the PACHECO DEFENDANTS to Plaintiff in the total amount of $300,000.00" in order to settle Gonzalez's claims. Although the Proposal provides that the $300,000 offer be apportioned as a $150,000 payment from Pacheco and a $150,000 payment from the Corporation, it is unclear how much Pacheco or the Corporation would have to pay if either wanted to settle Gonzalez's claim individually. As a result, the Proposal is not structured to permit either Pacheco or the Corporation to "independently evaluate or settle his ... respective claim by accepting the proposal." See Gorka, 36 So.3d at 647. Moreover, the Proposal clearly conditions settlement on Pacheco and the Corporation's "mutual acceptance of the offer and joint action in accordance with its terms." See Schantz, 60 So.3d at 446. For example, the Proposal requires "acceptance of this offer by the PACHECO DEFENDANTS," and that the "PACHECO DEFENDANTS shall authorize their counsel to sign and file a stipulation of voluntary dismissal with prejudice."

Because the Proposal deprived Pacheco and the Corporation of the ability to evaluate and independently act to resolve Gonzalez's claims, the Proposal is invalid under Gorka and cannot form the basis of an award of attorney's fees under section 760.79 and pursuant to rule 1.442.

IV. CONCLUSION

While " '[p]roposals for settlement are intended to end judicial labor, not create more,' " Nichols, 932 So.2d at 1079 (quoting Lucas v. Calhoun, 813 So.2d 971, 973 (Fla. 2d DCA 2002) ), the opposite has occurred, and proposals for settlement made under section 768.79 and rule 1.442 have instead generated significant ancillary litigation and case law. See Paduru, 157 So.3d at 318 ("[M]any jurists have lamented that the offer of judgment statute has had the unfortunate and unintended consequence of spawning additional litigation, even though the statute was enacted to have exactly the opposite effect."). Indeed, even in a case where the results obtained at the trial court suggest that fees should be awarded, we remain bound by the principle set forth in Gorka, and as a result, joint proposals have become a trap for the wary and unwary alike. Justice Polston, in his Gorka dissent, warned that the majority's opinion "effectively eliminates the ability to make joint offers." Gorka, 36 So.3d at 654 (Polston, J., dissenting). Justice Polston's warning proved prescient. See, e.g., Schantz, 60 So.3d at 446 (invalidating joint offer even where offer apportioned the settlement amount among the parties and stating that "the new rule announced in Gorka... we believe, 'effectively eliminates the ability to make joint offers ' " (emphasis added) (quoting Gorka, 36 So.3d at 654 (Polston, J., dissenting) ) ). If we were writing on a blank slate, we may have reached a different result than the rule articulated in Gorka. However, until the law is further clarified or corrected, we caution counsel in our district to avoid joint proposals lest a similar fate befall them. Accordingly, we reverse the trial court's award of attorney's fees to Gonzalez.

REVERSED.

      We note that rule 1.442 does not require that a stipulation of voluntary dismissal or release be attached to a proposal for settlement when served on a party. See State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1079 (Fla. 2006) (stating that "a summary of the proposed release can be sufficient to satisfy rule 1.442").

      In Gorka, the defendant, Attorneys' Title Insurance Fund, Inc., served a proposal for settlement on the two plaintiffs, Gorka and Larson, who were husband and wife. See Attorneys' Title Ins. Fund, Inc. v. Gorka, 989 So.2d 1210, 1211 (Fla. 2d DCA 2008). "The proposal offered payment of $12,500 to Gorka and payment of $12,500 to Larson in full settlement of all claimed damages, attorneys' fees, and costs." Id. at 1212. The proposal also stated that it was " 'conditioned upon the offer being accepted by both John W. Gorka and Laurel Lee Larson. In other words, the offer can only be accepted if both John W. Gorka and Laurel Lee Larson accept and neither Plaintiff can independently accept the offer without their co-plaintiff joining in the settlement.' " Id.

      Rule 1.442(c)(3) provides: "A proposal may be made by or to any party or parties and by or to any combination of parties properly identified in the proposal. A joint proposal shall state the amount and terms attributable to each party."

      In Duong, plaintiffs made a proposal for settlement to a single defendant-offeree. The proposal offered a settlement in the total amount of $1,000,000, with specific amounts of the total allocated to individual plaintiffs. Id. at 356. After trial, the offerors moved for attorney's fees pursuant to the proposal for settlement. The offeree argued that the proposal was invalid under Gorka because it deprived him of the ability to evaluate the offer with respect to each of the offerors. Id. at 357. The trial court granted the motion for fees. In affirming the trial court's award of attorney's fees, the Fourth District held that the proposal "was an appropriate 'all or nothing' proposal to which Gorka did not apply," id. at 358, and that there was "no obligation for the claimants in this case to make individual offers to a single offeree," id. at 359.

      An appellate court can take judicial notice of its own files and records. See Miami Stage Lighting, Inc. v. Budget Rent-A-Car Systems, Inc., 712 So.2d 1135, 1137 n.2 (Fla. 3d DCA 1998) ; Buckley v. City of Miami Beach, 559 So.2d 310, 313 n.1 (Fla. 3d DCA 1990).

      While Gorka involved a proposal explicitly conditioned on mutual acceptances of joint offerees, we find no logical basis to prevent Gorka from applying to proposals for settlement where the text, though not explicitly requiring mutual acceptance, clearly prevents either offeree from independently evaluating the settlement offer. See, e.g., Chastain v. Chastain, 119 So.3d 547, 550 (Fla. 1st DCA 2013) (finding the proposal invalid under Gorka where the proposal "did not expressly require joint acceptance," but it was "clear from the proposal in this case that there was one offer in the amount of $5,002 and that the offer ... was conditioned on joint acceptance"); Schantz v. Sekine, 60 So.3d 444, 446 (Fla. 1st DCA 2011) ("Although not as direct as the wording of the settlement offer in Gorka, the ... language [stating that 'Plaintiffs shall execute a general release' and that 'Plaintiffs shall dismiss this case']... conditions settlement on Appellants' mutual acceptance of the offer and joint action in accordance with its terms.").

      Gonzalez states in his answer brief that the Stipulation was also drafted "to cover the situation in which the joint offer would be accepted by both defendants." Specifically, the Stipulation provides that the "PACHECO DEFENDANTS dismiss with prejudice all claims, counterclaims and third-party claims that were brought or could have been brought by them in this action" and that "Plaintiff voluntarily dismisses with prejudice all claims that were brought or could have been brought in this action against the PACHECO DEFENDANTS."

      Gonzalez's counsel acknowledged at the fee hearing that the Proposal was based on an assumption that both Pacheco and the Corporation would accept the offer:
      We did have [an] apportionment and yes, the form that we granted [sic] was on the assumption they both would accept, but if only one had called us and said "we will accept only on the company or only on the personal," they could have and we would have just changed the signature from plural to singular, so that's not-they had that right under the law.


author: LUCK, J.

text:
    P & S & CO. LLC (P & S & CO), PS Inc., Shayeh Dove or Dov a.k.a. Steve Dov or Dove, Allura Dov or Dove a.k.a Adina Soskin, and Pamela Manson, Appellants, v. SJ MAK, LLC, Appellee.
    No. 3D16-1585
    District Court of Appeal of Florida, Third District.
    Opinion filed May 30, 2018 Rehearing Denied June 29, 2018
    Tom Regnier Appeals, P.A. and Thomas Regnier (Sunrise), for appellants.
    Trujillo Vargas Gonzalez & Hevia, LLP and Anthony C. Hevia and Stephanie C. Hopple, for appellee.
    Before FERNANDEZ, LUCK and LINDSEY, JJ.
   LUCK, J.

When a judgment-debtor files for bankruptcy, the federal bankruptcy code generally stays any actions seeking to collect from the debtor. But does the stay preclude a trial court from impleading non-debtor third party defendants into a post-judgment supplementary proceeding? Here, we conclude it did not because the supplementary proceedings did not seek to void fraudulent transfers and the stay did not extend to the non-bankrupt codefendant. Thus, we affirm the judgment against the third party defendants.

Factual Background and Procedural History

In 2012, SJ Mak, LLC, a real estate investment firm, bought the notes and mortgages for several properties from P & S, Inc. and Notez, LLC. Pamela Manson was P & S's corporate director, and Shayeh Dov was Notez's director. Pamela and Shayeh were a couple, and the companies were located in their home. SJ Mak wired $143,000 to P & S, and $230,000 to Notez. But P & S and Notez never transferred the mortgages and notes to SJ Mak.

SJ Mak sued P & S and Notez for breach of contract and fraud. SJ Mak alleged P & S and Notez never owned the mortgages and notes they had sold, and instead pocketed SJ Mak's money with no intention of transferring them. P & S and Notez did not answer the amended complaint, and a default judgment was entered against them on July 26, 2014. The final judgment ordered P & S to pay $167,701.66 (including interest and attorneys' fees) and Notez to pay $261,188.34 (same).

SJ Mak tried to collect on the final judgment by moving to garnish P & S and Notez's money from the same Bank of America account where SJ Mak wired the money in 2012. Bank of America responded to the writ of garnishment that Notez's accounts had been closed since 2010 (before SJ Mak's agreement to purchase the mortgages and notes), and the bank had no current accounts for P & S and Notez. The account that SJ Mak wired in 2012 was the college student account for Shayeh and Pamela's daughter, Allura Dov.

On August 31, 2015, SJ Mak moved to commence supplementary proceedings against Shayeh, Pamela, their son and daughter (Shimon and Allura), and related entities P & S & Co. and PS Inc. The motion sought to pierce P & S and Notez's corporate veil, and hold the couple, their children, and the related entities liable for the final judgment.

While the supplementary proceedings motion was pending, on September 21, 2015, Notez filed a suggestion of bankruptcy explaining that the company had filed a voluntary petition under chapter seven of the bankruptcy code, and gave the case number. The suggestion also explained that "[t]he filing of the Petition in Bankruptcy operate[d] as an automatic stay against all actions, proceedings, and enforcement against the Defendants under 11 U.S.C. Section 362."

While Notez's bankruptcy case was pending, the trial court granted the motion to commence supplementary proceedings, ordered that the couple, their children, and the related entities be impleaded as third party defendants in execution, and set the matter for a hearing on February 8, 2016 so the third party defendants could "be examined concerning their property." That hearing was later continued to February 11, 2016.

Notez's bankruptcy petition was dismissed on February 9, 2016, and the proceedings supplementary hearing went forward on February 11. SJ Mak's corporate representative, and another victim of P & S and Notez's fraud, testified. The third party defendants did not present any evidence. At the end of the hearing, the trial court concluded that the corporate veil had been pierced and entered judgment against the couple, holding them personally liable for the fraud.

The third party defendants appeal.

Standard of Review

"We review de novo the scope or applicability of the automatic stay under the Bankruptcy Code, 11 U.S.C. § 362, because it is a question of law." In re Palmdale Hills Prop., LLC, 654 F.3d 868, 875 (9th Cir. 2011).

Discussion

The third party defendants contend that the trial court erred: (1) by granting the proceedings supplementary motion and impleading them into the case because it violated the automatic bankruptcy stay; and (2) by piercing the corporate veil without sufficient evidence. We affirm without an extended discussion the trial court's decision to pierce the corporate veil and hold the couple personally liable for the judgment against Notez and P & S. SJ Mak presented competent substantial evidence that Notez and P & S were Shayeh and Pamela's alter egos, and the couple used the companies to sell mortgages and notes they did not own in order to defraud SJ Mak and others. See Gasparini v. Pordomingo, 972 So.2d 1053, 1055 (Fla. 3d DCA 2008) ("To 'pierce the corporate veil' three factors must be proven: (1) the shareholder dominated and controlled the corporation to such an extent that the corporation's independent existence, was in fact non-existent and the shareholders were in fact alter egos of the corporation; (2) the corporate form must have been used fraudulently or for an improper purpose; and (3) the fraudulent or improper use of the corporate form caused injury to the claimant." (quotation omitted) ).

We also affirm the trial court's order granting the motion for proceedings supplementary and impleading the third party defendants. "The filing of a bankruptcy petition imposes an automatic stay under the United States Bankruptcy Code." Puig v. PADC Marketing, LLC, 26 So.3d 45, 46 (Fla. 3d DCA 2009). Filing a bankruptcy petition operates as a stay of

(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title; ...
(3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate; [and] ...
(6) any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title ....

11 U.S.C. § 362(a)(1), (3), (6). The question here is whether the trial court's order impleading the third party defendants was precluded by the automatic stay.

It was not. Subsection (1) bars the commencement of a judicial action, and the issuance of process, "against the debtor." The trial court's order impleading the third party defendants did not include Notez, which was the entity that filed the bankruptcy petition. The impleaded third party defendants were the couple, their children, and related entities to P & S, all of which were not "the debtor" in the pending bankruptcy case.

Subsection (3) stays any acts a court may take to obtain possession or exercise control over the property of the bankruptcy estate. The order here impleading the third party defendants did not "obtain possession" or "exercise control over" Notez's property. The order merely granted the motion for proceedings supplementary; impleaded the couple, their children, and the related P & S entities; set a hearing date; and ordered that the impleaded third party defendants be served. The order did not enjoin or direct that anything be done with the property of any party.

Subsection (6), finally, stays any act by the courts to "collect, assess or recover a claim against the debtor" from before the bankruptcy. The order impleading the third party defendants did not seek to collect, assess, or recover anything against Notez. The order only impleaded nonparties into the case, ordered that they be given notice, and set a hearing. It was not until months later, when the bankruptcy stay had been lifted, that the trial court entered judgment against the impleaded parties.

The third party defendants respond that the bankruptcy stay extends to proceedings supplementary that seek to void fraudulent transfers. See In re Saunders, 101 B.R. 303, 306 (Bankr. N.D. Fla. 1989) (Section "362(a)(1) operates to stay a creditor with a claim against the debtor from commencing or continuing a fraudulent transfer action or from utilizing the process of another court, as is the situation in this case, to recover that claim from property that should have been available for levy and execution but for the transfer to a third party in fraud of creditors."). While the third party defendants are right on the law, the fraudulent-transfer rule doesn't apply here for two reasons. First, SJ Mak's proceedings supplementary motion did not seek to void a fraudulent transfer. There were no fraudulent transfers to void. SJ Mak's money went directly to the bank account of Shayeh and Pamela's daughter; the money never went through debtor Notez. SJ Mak's proceedings supplementary motion sought to hold the third party defendants personally liable for the judgment and garnish their non-Notez assets. It did not seek to claw-back fraudulent transfers from Notez's bank account to the third party defendants. See Sanchez v. Renda Broadcasting Corp., 127 So.3d 627, 629 (Fla. 5th DCA 2013) (explaining that a party may use proceedings supplementary to pierce the corporate veil, even where there is no allegation of fraudulent transfer). This is different from Saunders, and the other cases cited by the third party defendants, where the judgment creditor sought to use Florida statutes to void fraudulent transfers. Saunders, 101 B.R. at 303 ("The specific provision followed by Professional is set forth at § 56.29(6)(b) Fla. Stat. which states ... 'When any gift, transfer, assignment or other conveyance of personal property has been made or contrived by defendant to delay, hinder or defraud creditors, the court shall order the gift, transfer, assignment or other conveyance to be void and direct the sheriff to take the property to satisfy the execution.' ").

Second, the trial court's order did not void any transfers under the proceedings supplementary statute. The trial court simply put the third party defendants on notice of the supplementary proceedings and set a hearing date. That also is different than Saunders, where the federal bankruptcy court found the stay had been implicated because judgment was entered while the stay was in place. See id. at 304 ("A final judgment memorializing this ruling was entered post-petition on February 23, 1989."). Here, judgment against the third party defendants was not entered until after the automatic stay had been lifted.

The automatic stay in section 362(a) does not apply to the trial court's order impleading the third party defendants. But even if the bankruptcy stayed the proceedings supplementary as to Notez, it did not stay the proceedings involving the same third party defendants as to Notez's codefendant, P & S.

"Although the scope of the automatic stay under section 362 is broad, the clear language of section 362(a) stays actions only against a 'debtor.' The language of section 362 refers only to actions against the debtor and does not relate to any other interparty claims." Puig, 26 So.3d at 46-47 (citation omitted). Here, the bankruptcy stay could not affect the proceedings supplementary as to Notez's codefendant, P & S, because P & S was not a debtor under the bankruptcy code. The third party defendants were properly impleaded based on the allegations against P & S.

The third party defendants contend that the stay should be extended to P & S because there was such identity between debtor Notez and codefendant P & S that a judgment against P & S will in effect be a judgment against Notez. The third party defendants are correct that the stay may be extended to codefendants under "unusual circumstances ... when there is such identity between the debtor and the third-party defendant that the debtor may be said to be the real party defendant and that a judgment and the third-party defendant will in effect be a judgment or finding against the debtor." Id. (quotation omitted). Trial courts are "authoriz[ed] [ ] to extend the automatic stay to non-bankrupt co-defendants" under these unusual circumstances. Id.

But here the third party defendants never asked the trial court to extend the automatic stay to P & S. The trial court cannot err by failing to exercise discretion it was never asked to exercise. We do not expect trial courts to read minds or make arguments for the parties. In our adversarial judicial system, it is the litigants' responsibility to ask the trial court for the relief they are seeking. Because P & S was not a bankruptcy debtor and did not move to extend the stay, the trial court did not err in granting the motion for proceedings supplementary, and impleading the third party defendants, as to P & S.

Conclusion

The trial court's order impleading the third party defendants did not violate the automatic bankruptcy stay, and competent substantial evidence supported the trial court's conclusion that the corporate veil had been pierced and Shayeh and Pamela were personally liable for Notez and P & S's fraud. We affirm the judgment against the couple.

Affirmed.

FERNANDEZ, J., concurs.

LINDSEY, J., concurs in result only.

      There are other provisions of the bankruptcy stay statute but the third party defendants do not rely on them in this appeal.

      E.g., In re Zwirn, 362 B.R. 536, 539 (Bankr. S.D. Fla. 2007) ("[A]ll courts appear to agree that commencing a bankruptcy case stays any state court fraudulent conveyance actions by a creditor ...." (emphasis omitted) ).


text:
    Gerardo Vito Roca RODRIGUEZ, Appellant, v. Aura Yolanda ROCA, Appellee.
    No. 3D17-1746
    District Court of Appeal of Florida, Third District.
    Opinion filed June 6, 2018
    Abogados W, and Milvia Sierra, for appellant.
    Aura Yolanda Roca, in proper person.
    Before SUAREZ, FERNANDEZ, and LINDSEY, JJ.
   SUAREZ, J.

Gerardo Roca ("Husband") appeals from the trial court's non-final order granting Aura Yolanda Roca's ("Wife") motion to vacate and amend the parties' marital settlement agreement ("MSA"). We vacate the non-final order and remand for an evidentiary hearing pursuant to Casto v. Casto, 508 So.2d 330, 333 (Fla. 1987).

The parties were married in 1997, and have two minor children. In December 2016, the Husband filed for uncontested dissolution of marriage. The petition was a form Petition for Dissolution from the Family Court Self-Help Program, provided by a private notary public who assisted the parties in filling out the form. That form, along with the MSA, provided for splitting marital property, distribution of debts, child support, no alimony, and parental time-sharing. The form was signed by both parties and notarized. When the parties went to the courthouse and the Family Court clerk examined the documents prior to filing, the Wife indicated she did not agree with the "no alimony" provision of the MSA and allegedly the clerk made a notation to that effect. That document, however, was not filed. The original document that indicated "no alimony" was filed. The Wife then filed a motion to vacate the MSA.

At the hearing on the Wife's motion to vacate, the trial court heard testimony from the notary who helped the couple prepare the Petition and Settlement document, and heard testimony from the Husband. The notary testified that she did not speak English well, but could read and write English well. She testified that she translated the MSA document from English into Spanish so that the couple could better understand. The implication is that she helped them fill out the form, then notarized it. This is the document that indicates both parties waive alimony, and the document that was eventually filed with the court. At the end of the hearing, the judge vacated the MSA and granted the Wife's motion to amend based on the judge's determination that the notary was "probably practicing law without a license" and that "I'm not going to accept an agreement by a notary that doesn't speak English, I'm not convinced that all three people involved knew what was going on." When asked by Petitioner's counsel to make a factual finding on the record of fraud or duress, the judge said, "I just did." The Husband appeals.

To set aside a post-nuptial Marital Settlement Agreement, the trial court must make two inquiries. First, a spouse may set aside or modify an agreement by establishing that it was reached under fraud, deceit, duress, coercion, misrepresentation, or overreaching. Casto, 508 So.2d at 333. Then,

[t]he second ground to vacate a settlement agreement contains multiple elements. Initially, the challenging spouse must establish that the agreement makes an unfair or unreasonable provision for that spouse, given the circumstances of the parties. To establish that an agreement is unreasonable, the challenging spouse must present evidence of the parties' relative situations, including their respective ages, health, education, and financial status. With this basic information, a trial court may determine that the agreement, on its face, does not adequately provide for the challenging spouse and, consequently, is unreasonable. In making this determination, the trial court must find that the agreement is "disproportionate to the means" of the defending spouse. This finding requires some evidence in the record to establish a defending spouse's financial means . Additional evidence other than the basic financial information may be necessary to establish the unreasonableness of the agreement.
Once the claiming spouse establishes that the agreement is unreasonable, a presumption arises that there was either concealment by the defending spouse or a presumed lack of knowledge by the challenging spouse of the defending spouse's finances at the time the agreement was reached. The burden then shifts to the defending spouse, who may rebut these presumptions by showing that there was either (a) a full, frank disclosure to the challenging spouse by the defending spouse before the signing of the agreement relative to the value of all the marital property and the income of the parties, or (b) a general and approximate knowledge by the challenging spouse of the character and extent of the marital property sufficient to obtain a value by reasonable means, as well as a general knowledge of the income of the parties. The test in this regard is the adequacy of the challenging spouse's knowledge at the time of the agreement and whether the challenging spouse is prejudiced by the lack of information.

Id. at 333 (citations omitted) (emphasis added). None of this analysis occurred below. In fact, the transcript of the hearing on the Wife's motion to vacate the MSA fails to establish any evidence of fraud, duress, coercion, deceit, misrepresentation or overreaching. There is also no financial information, no suggestion that the arrangement is unfair. At the time the MSA was filed, neither party was represented by counsel. It is contrary to the sworn testimony of the notary to conclude that she was practicing law without a license or gave the couple legal advice of any sort. The record does not suggest or establish that. As stated in Casto,

[t]he fact that one party to the agreement apparently made a bad bargain is not a sufficient ground, by itself, to vacate or modify a settlement agreement. The critical test in determining the validity of marital agreements is whether there was fraud or overreaching on one side, or, assuming unreasonableness, whether the challenging spouse did not have adequate knowledge of the marital property and income of the parties at the time the agreement was reached.... Courts, however, must recognize that parties to a marriage are not dealing at arm's length, and, consequently, trial judges must carefully examine the circumstances to determine the validity of these agreements.

Id. at 334 (emphasis added).

Because there is no finding in either the record or the order on appeal whether any of the Casto elements were presented and analyzed, we vacate the order below and remand with directions to hold an evidentiary hearing and render subsequent written findings that comport with the analysis set forth in Casto.

Order vacated; remanded for evidentiary hearing.