author: LOGUE, J. EMAS, C.J., dissenting.

text:
    Brandon THOURTMAN, Petitioner, v. Daniel JUNIOR, etc., et al., Respondents.
    No. 3D18-2433
    District Court of Appeal of Florida, Third District.
    Opinion filed June 12, 2019
    Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for petitioner.
    Ashley Moody, Attorney General, and Magaly Rodriguez, Assistant Attorney General; Patricia Gladson, General Counsel, and Gabriela Jimenez Salomon, Assistant General Counsel, for respondents.
    Before EMAS, C.J., and LOGUE and HENDON, JJ.
   LOGUE, J.

The defendant, Brandon Thourtman, filed a petition for writ of habeas corpus challenging his confinement in the Miami-Dade County jail. The question presented concerns whether Article I, section 14 of the Florida Constitution prohibits a trial court from detaining a defendant beyond first appearance for a reasonable time pending an Arthur bond hearing unless the trial court makes a preliminary finding of "proof evident, presumption great."

By way of background, the Florida Constitution gives a person arrested for a crime the right to pretrial release on reasonable conditions such as bond, subject to certain exceptions. Art. I, § 14, Fla. Const. The "capital or life offense" exception applies when the person is charged with a crime punishable by capital punishment or life imprisonment and the State can demonstrate "the proof of guilt is evident or the presumption is great." Id. A person held under this exception is entitled to an adversarial, evidentiary bond hearing that examines the State's evidence to determine if it rises to the level of "proof evident, presumption great." State v. Arthur, 390 So. 2d 717 (Fla. 1980). The parties agree that it is neither constitutionally required nor practical to hold the full Arthur bond hearing at first appearance, which occurs within 24 hours of arrest.

Here, the trial court at first appearance found probable cause that the defendant committed a crime punishable by capital punishment or life imprisonment. But the trial court did not make a preliminary finding of "proof evident, presumption great." Without such a preliminary finding, the defendant contends, Article I, section 14 prohibits his detention beyond first appearance, even for a reasonable time to conduct the Arthur bond hearing. In making this argument, he concedes that the State will in many cases be unable to meet the high standard of "proof evident, presumption great" at first appearance.

We are not persuaded by the defendant's argument. For the same reasons that it is not constitutionally required or practical to conduct a full Arthur hearing at first appearance, it is not constitutionally required or practical to hold a "preliminary" Arthur hearing at first appearance. Nothing in Article I, section 14 prohibits a trial judge at first appearance, upon finding probable cause that the defendant committed a crime punishable by capital punishment or life imprisonment, to defer ruling on a bond and to detain the defendant for a reasonable time necessary to conduct an Arthur bond hearing. To exercise such discretion, the court is not required by the Constitution to make a preliminary finding of "proof evident, presumption great." That issue is reserved for the Arthur hearing.

FACTS

On November 9, 2018, the defendant was arrested for armed robbery with a firearm. The next day, November 10, 2018, the defendant made his first appearance. The defendant appeared by video from the jail. The matter was scheduled for an afternoon court calendar involving first appearances for approximately 40 defendants.

When the defendant's case was called, the court reviewed the arrest affidavit. In it, the arresting officer averred he obtained the following information from the investigating detective:

The victim is an overnight security [guard], who was working at the incident location, when the def[endant] approached her from the rear, as she sat in a golf cart. The def placed a firearm to the victims head (left side) and demanded that the victim lay on the ground. The victim in fear complied at which point the def asked the victim if she was armed. The victim advised the def that she was not. The def then patted the victim down removing a bus pass from her front shirt pocket. The def then grabbed the victim's purse and fled on foot with her property.
During the course of the investigation the def's identity was established. The victim positively identified the def from a photographic array.
On 11/9/2018 the defendant was apprehended by MDPD Officers Ortiz and Coello. A routine records check of the defendant revealed the P[robable] C[ause] message pursuant to this investigation. The defendant was arrested and transported to [the jail] without incident.

Noting the defendant was charged with a crime punishable by life imprisonment, the court announced "no bond" at first appearance, thereby deferring the bond decision to the full Arthur hearing. In doing so, the trial court followed the standard practice taught to trial judges in Florida. See, e.g., Fla. Court Educ. Council, Criminal Benchguide for Circuit Judges at 7 (2016) ("In cases in which death or life imprisonment is a possible penalty, the first appearance judge, upon finding of probable cause, will typically order that the defendant be held with no bond. The defendant is then obligated to set the matter for an Arthur hearing."). Neither the defendant nor his attorney spoke. The hearing took less than two minutes.

On Friday, November 30, 2018, the defendant was arraigned. The State filed an information charging the defendant with one count of robbery using a firearm or deadly weapon, a first-degree felony punishable by life imprisonment. The defendant entered a plea of not guilty, propounded discovery, demanded a jury trial, and requested an Arthur hearing. The defendant also objected to being detained beyond first appearance without a preliminary finding of "proof evident, presumption great." The court overruled the objection. The court, the State, and the defendant then agreed to set the Arthur hearing on the following Thursday, December 6, 2018, four working days later. On Monday, December 3, 2018, the defendant filed this petition for habeas corpus.

On December 6, 2018, the court held the Arthur hearing as scheduled. The investigating detective testified. He authenticated the victim's December 5, 2018, written statement which was entered into evidence. He authenticated surveillance videos retrieved from the scene which showed the defendant fleeing with a purse. He testified that a GPS record, entered into evidence, revealed the victim's stolen cellphone was moved to the vicinity of the defendant's house after the robbery. He explained how the defendant, after signing a Miranda warning, confessed to the robbery but denied using a firearm. He also described the photographs, entered into evidence, which were used in a line-up where the victim identified the defendant.

At the end of the Arthur hearing, the court found the State's evidence that the defendant committed a robbery rose to the level of "proof evident, presumption great," but the State's evidence that the defendant used a firearm did not. Because unarmed robbery is not punishable by life, the court ordered the pretrial release of the defendant on house arrest with a $ 25,000 bond.

At the oral argument in this court, the defendant's counsel, an experienced assistant public defender, conceded three points. First, he conceded that "most often," in fact "in many, many cases," the State at first appearance will be simply unable to offer evidence rising to the level of "proof evident, presumption great" because the only proof normally available at first appearance is the arrest affidavit which, as here, consists of several levels of hearsay and shows little more than probable cause. Second, virtually always, the defendants at first appearance will also be unable to exercise their constitutional right to present evidence. Third, under existing law, the full Arthur hearing must be held - not at first appearance, which is impractical for both parties - but within a reasonable time.

ANALYSIS

A. Jurisdiction.

The trial court deferred ruling on the defendant's release at first appearance and detained him until the Arthur hearing. After the Arthur hearing, however, the trial court granted bail and authorized the pretrial release of the defendant. This matter is therefore moot as to the defendant. This court was recently presented with an identical challenge, which became moot when the petitioner was granted pretrial release, and we dismissed the petition without opinion. Moore v. Junior, 3D18-2310, 2018 WL 7247150 (Fla. 3d DCA Dec. 3, 2018).

Now, however, with the defendant's petition presenting virtually identical facts and raising an identical issue, and the petition also becoming moot because bail was ultimately granted, we must acknowledge that "[b]ecause this petition presents a question capable of repetition yet evading review, this court has jurisdiction to hear the merits even if the petition is moot." Gould v. State, 974 So. 2d 441, 444 (Fla. 2d DCA 2007). See, e.g., Greenwood v. State, 51 So. 3d 1278, 1279-80 (Fla. 2d DCA 2011) (accepting jurisdiction "[e]ven though both defendants subsequently filed successful motions to reduce bond ... because the error is capable of repetition but evading review").

B. Article I, section 14 and its two exceptions.

Article I, section 14 of the Florida Constitution guarantees every person charged with a crime the right to pretrial release, with two exceptions: the "capital or life offense" exception and the "pretrial detention" exception. Article I, section 14 reads:

Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained.

Art. I, § 14, Fla. Const.

The "capital or life offense" exception applies when a person is charged with a crime punishable by capital punishment or life imprisonment, and the State can demonstrate "the proof of guilt is evident or the presumption is great." The "pretrial detention" exception applies when, regardless of the level of crime charged, the State can demonstrate that no conditions of release will protect the community, ensure the presence of the accused at trial, or assure the integrity of the judicial process. This case concerns the "capital or life offense" exception but, as will be seen, the Supreme Court's rule-based interpretation of the time that the Constitution allows a defendant to be detained pending the hearing required under the "pretrial detention" exception will inform our discussion.

C. Defendant's Contention: Article I, section 14 creates a two-step procedure which begins with a preliminary finding of "proof evident, presumption great" at first appearance.

The defendant's argument is based on two recent cases by the Fourth District, Gray v. State, 257 So. 3d 477 (Fla. 4th DCA 2018) and Ysaza v. State, 222 So. 3d 3 (Fla. 4th DCA 2017). In both cases, the defendants were charged with crimes punishable by life imprisonment. Gray, 257 So. 3d at 478 ; Ysaza, 222 So. 3d at 5. At first appearance, the trial courts ordered each defendant detained pending the Arthur hearing. The trial courts declined to make a preliminary finding that the State's evidence rose to the level of "proof evident, presumption great." The defendants challenged their detention by filing petitions for writs of habeas corpus and arguing "that the refusal to set bond or make the required findings violates [A]rticle I, section 14 of the Florida Constitution." Gray, 257 So. 3d at 478.

The Fourth District agreed in both cases. In Ysaza, the Fourth held that Arthur interpreted Article I, section 14 as establishing a two-step "procedure." Ysaza, 222 So. 3d at 6. The two steps in the procedure are: (1) "to hold the defendant without bond pending an Arthur hearing ... the first appearance judge [i]s 'required to find that the probable cause affidavit (or other materials before the court) establishe[s] that proof of guilt [i]s evident or the presumption [i]s great' "; and (2) "if the first appearance court finds that this standard has been met and declines to set bond, the defendant can later move to set bond and request a full Arthur hearing, where the defendant has a right to present evidence and to ask the court to exercise its discretion to set bond." Gray, 257 So. 3d at 478 (citing Ysaza, 222 So. 3d at 6 ).

Nevertheless, in both cases, the Fourth District ultimately denied the petitions. Rather than order the release of the defendants pending a full Arthur hearing, the Fourth District independently reviewed the arrest affidavits, and summarily concluded the arrest affidavits alone met the "proof evident, presumption great" standard. Gray, 257 So. 3d at 478 ; Ysaza, 222 So. 3d at 7.

D. Interpreting Article I, section 14 as creating a two-step procedure which begins with a preliminary finding of "proof evident, presumption great" represents a break with historical understanding.

At the outset, we note Ysaza and Gray's interpretation of Article I, section 14 as requiring two bond hearings including a preliminary finding at first appearance of "proof evident, presumption great" reflects a significant innovation in the understanding of Article I, section 14.

Versions of the "capital or life offense" exception of Article I, section 14 appeared as early as Florida's first constitution. Art. I, § 11, Fla. Const. (1838) ("That all persons shall be bailable, by sufficient securities, unless in capital offenses, where the proof is evident, or the presumption is strong."). Historically, it was understood that the defendant would exercise his or her right under this provision by filing an application for bail in which the defendant had the burden of proving the absence of "proof evident, presumption great." Russell v. State, 71 Fla. 236, 71 So. 27, 28 (1916).

In 1982, the Supreme Court in Arthur overturned prior precedent and shifted the burden of proof from the defendant to the State. Arthur, 390 So. 2d at 717. However, it did not change the process whereby the hearing was triggered by the defendant making an application for bond. Id. Nor did it change (at least expressly) the existing law that a defendant could be detained pending the bond hearing on the issue of "proof evident, presumption great." Id.

After Arthur, the general understanding of Article I, section 14 remained that there occurred only one Arthur bond hearing and that the defendant could be detained a reasonable time past first appearance pending the hearing. This understanding was reflected in the benchguides prepared by Florida's most experienced trial judges, distributed throughout the judiciary by the court system, and issued after Arthur.

This understanding was followed by, for example, the trial judges in Ysaza, 222 So. 3d at 7, Gray, 257 So. 3d at 478, and Brackett v. State, 773 So. 2d 564, 565 (Fla. 4th DCA 2000) (noting "[b]ond was denied at the first appearance, pending a full [Arthur ] bond hearing").

Trial courts sometimes ventured to make a preliminary determination of "proof evident, presumption great" at first appearance (usually being reversed and ordered to conduct a full hearing, but not being ordered to release the defendant pending the hearing). It was not until the 2017 Ysaza decision, however, that Article I, section 14 was expressly interpreted as requiring two Arthur hearings, one of which required a preliminary finding at first appearance of "proof evident, presumption great."

E. Interpreting Article I, section 14 as creating a two-step procedure which begins with a preliminary finding of "proof evident, presumption great" is not supported by the text of the constitution.

The text of Article I, section 14 does not support the new interpretation. Article I, section 14's requirement that the State show "proof evident, presumption great" obviously presupposes a hearing on that issue. But there is nothing in the text that requires both a preliminary Arthur hearing at first appearance and a subsequent full Arthur hearing, as held by Ysaza and Gray. Indeed, the reference in the text to "pretrial release" is best understood as referring to release - not for the time between arrest and the Arthur bond hearing - but for the time between the Arthur bond hearing and the trial. The right to "pretrial release" in Article I, section 14 refers to release pending trial, not to release pending a constitutionally or legally required bond hearing.

Moreover, the text explicitly refers to "pretrial release on reasonable conditions." As the defendant agreed at oral argument, the text's silence regarding the timing of the required hearing means the Arthur hearing must be held within a "reasonable" time. See Kennedy v. Crawford, 479 So. 2d 758, 761 n.5 (Fla. 3d DCA 1985) ("Where a time period is not specified, courts will normally infer that a reasonable time was intended."); Weeks v. Fla. Birth-Related Neurological, 977 So. 2d 616, 619 (Fla. 5th DCA 2008) (holding "because the statute is silent on the time period within which notice must be furnished, under well-established principles of statutory construction, the law implies that the notice must be given within a reasonable time.").

The express reference to "reasonable conditions" and implied reference to "reasonable timing" are not a coincidence. Like other constitutional rights provided to criminal defendants, Article I, section 14 "represents a necessary accommodation between the individual's right to liberty and the State's duty to control crime." Gerstein v. Pugh, 420 U.S. 103, 112, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). Even as the United States Constitution's Fourth Amendment itself is interpreted, Article I, section 14 must be given "a practical, nontechnical [interpretation] affording the best compromise that [can be] found for accommodating these often opposing interests." Gerstein, 420 U.S. at 112, 95 S.Ct. 854.

One such reasonable accommodation is to recognize that a trial judge has the discretion to detain a defendant accused of a crime punishable by capital punishment or life imprisonment for a reasonable time in order to conduct the hearing necessary to determine whether the defendant is entitled to be released under the "capital or life offense" exception. Certainly, nothing in the text supports Gray and Ysaza's holdings to the contrary.

Significantly, the Supreme Court has interpreted the text of the "pretrial detention" exception in Article I, section 14, which is the companion provision to the "capital or life offense" exception, to allow detention of the defendant for a reasonable time pending the evidentiary hearing required by that exception. Fla. R. Crim. P. 3.132. Obviously, the Supreme Court could not allow such detention, even under its rule making authority, if Article I, section 14 prohibited it. If the text of Article I, section 14 does not prohibit detention for a reasonable time pending the hearing required by its "pretrial detention" exception, it follows that it also does not prohibit detention for a reasonable time pending the Arthur hearing required by the "capital or life offense" exception.

F. Interpreting Article I, section 14 as creating a two-step procedure which begins with a preliminary finding of "proof evident, presumption great" is impractical and leads to a Catch-22.

First appearance occurs within 24 hours of arrest. First appearance serves to inform the defendant of the charges against him and his rights. Because most defendants arrested in Florida have the right to post standard bail and bond out of custody without seeing a judge, first appearance also serves to deal with other, relatively simple matters, such as imposing mandatory stay-away orders. It is also used to provide a non-adversarial, non-evidentiary review by a neutral magistrate of the probable cause to arrest and detain the defendant as required by Gerstein, 420 U.S. at 112, 95 S.Ct. 854.

In urban settings, first appearances occur on congested, fast-paced dockets. The court typically has before it only the arrest affidavit and the defendant's prior criminal record. Often, the defendant appears by video from jail. Defendants, of course, have a right to be heard, but experienced criminal lawyers and judges steer substantive motions relating to pretrial release to later, less congested calendars. Greenwood, 51 So. 3d at 1281 (noting the "practical realities" stemming from "the significant number of defendants present at the typical first appearance hearing on any given day in a busy urban court"). Such substantive motions must be heard by the court "in person" and "promptly." Fla. R. Crim. P. 3.131(d)(1) & (2).

In contrast, an Arthur hearing focuses on a review of the State's evidence to determine if it rises to the level of "proof evident, presumption great" thereby justifying detention for the duration pending trial. This standard requires far more than probable cause: it requires proof "stronger than beyond a reasonable doubt." State v. Perry, 605 So. 2d 94, 96-97 (Fla. 3d DCA 1992). Under this standard, "[s]imply to present the indictment or information is not sufficient." Arthur, 390 So. 2d at 720. Instead, the State must present "further evidence" in the form of "transcripts or affidavits," such as "the evidence relied upon by the grand jury or the state attorney in charging the crime." Id. Moreover, at an Arthur hearing, the defendant is entitled to testify and call witnesses either to show the proof is not evident, nor presumption great or, even if the evidence rises to the level of "proof evident, presumption great," that other factors militate towards granting pretrial release. Id.

Given the high level of evidence needed to establish "proof evident, presumption great," and the summary nature and early timing of first appearances, it is simply impractical to hold even a preliminary Arthur hearing at first appearance. Within 24 hours of arrest, the State normally has not had time to marshal, document, and organize its evidence. Most often, the assistant State attorney who will prosecute has not been assigned. The information has not been drafted. Like the inchoate information itself, the "transcripts and affidavits" upon which the information will be based do not yet exist. The victim has not given a formal statement. Much of the physical evidence has not been collected, much less analyzed or tested. And the defendant, who was arrested only 24 hours before first appearance, has not had the time to prepare to allow him to meaningfully exercise his constitutional right to present evidence.

The facts of this case are typical in showing the difference between the evidence available at first appearance (conclusory hearsay within hearsay within hearsay) and the evidence available at the full Arthur hearing (testimony, sworn statements of victims and witnesses, the confession of the defendant, photographs, videos, GPS records, and other physical evidence). These facts illustrate how the same factors that prevent the State from making a full showing of "proof evident, presumption great" at first appearance (the prosecuting attorney not assigned, statements not taken, confessions not obtained, physical evidence not collected or analyzed) also prevent the State from making a "preliminary" showing of "proof evident, presumption great" at first appearance.

The defendant essentially admitted this fact at oral argument. He conceded that "most often," in fact "in many, many cases," the State will be simply unable to offer evidence rising to the level of "proof evident, presumption great" at first appearance. This concession highlights the way the defendant is essentially asking us to read Article I, section 14 as a Catch-22.

Under the defendant's understanding of Article I, section 14, the State can detain a person charged with a capital offense upon showing of "proof evident, presumption great," but that showing must occur "preliminarily" within 24 hours of arrest when, the defendant conceded, the State will not normally be ready to meet that standard. But it gets more Kafkaesque. The defendant is therefore entitled to release pending the Arthur hearing. But once the defendant is granted pretrial release, the State can only seek to modify the terms of release by showing changed circumstances. Saravia v. Miami-Dade Cty., 129 So. 3d 1163, 1165 (Fla. 3d DCA 2014). Thus, under the defendant's interpretation, the defendant must be released pending an Arthur hearing, but once the defendant is released, an Arthur hearing cannot normally be held. As Yosarian says in the novel, "[t]hat's some catch, that Catch-22." Joseph Heller, Catch-22 56-57 (Alfred A. Knopf, Inc. 1995).

Keeping in mind that this exception applies to defendants for which there is probable cause of guilt of a crime punishable by capital punishment or life imprisonment, we have no doubt that imposing such an unrealistic burden on the trial court's discretion to detain the defendant would inevitably have the unintended consequence of causing the existing high standard required for "proof evident, presumption great" to lapse into simple probable cause.

G. The Supreme Court in Arthur did not interpret Article I, section 14 as creating a two-step procedure which begins with a preliminary finding of "proof evident, presumption great."

The defendant's main argument is that, regardless of the textual and practical difficulties, the Supreme Court in Arthur interpreted Article I, section 14 as creating the two-step procedure. In so interpreting Arthur, however, the defendant (and Ysaza, Gray, and the dissent) focus only on one sentence from the opinion, namely: "[w]e hold, therefore, that before release on bail pending trial can ever be denied, the state must come forward with a showing that the proof of guilt is evident or the presumption is great." Arthur, 390 So. 2d at 720.

According to the defendant, the Supreme Court's use of the word "ever" in stating the State must carry the burden of showing "proof evident, presumption great," "before release on bail pending trial can ever be denied" indicates the adoption of an interpretation of Article I, section 14 as (1) prohibiting the trial court from detaining the defendant pending the Arthur hearing without a preliminary finding of "proof evident, presumption great," and (2) if such a preliminary finding is made, providing the defendant a subsequent full Arthur hearing after the defendant has had time to fully prepare.

When properly read in context, however, this sentence does not support the inferences that the defendant draws from it. Moreover, if interpreted in such a manner, the sentence would comprise nothing more than classic obiter dicta. While the Court undoubtedly has authority to promulgate a rule providing for the elaborate two-hearing procedure that defendant reads into this sentence, it did not do so in Arthur. Such a procedure was simply never raised by the facts, implicated by the certified questions, or discussed in Arthur.

In Arthur, the defendant was charged with several life felonies. After he was arrested, he filed a motion to set bond. The trial court conducted a full bond hearing regarding "proof evident, presumption great" pursuant to Article I, section 14 (what we would now label a "full" Arthur bond hearing). After the hearing, the trial court denied bail. Once the State made a showing of "proof evident, presumption great," it held, the trial court lacked discretion to grant pretrial release. Also, in conformity with controlling precedent at the time, the trial court determined that the filing of the indictment shifted the burden of proof on the issue of "proof evident, presumption great" from the State to the defendant.

The district court reversed the trial court on the first issue but upheld the trial court on the second issue. The district court then certified the two issues:

1. Does a trial court have discretion to grant bail to a defendant who is charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident and the presumption great?
2. Does the accused or the state, in a capital case or a case involving life imprisonment where the accused is seeking to be admitted to bail, have the burden of proof on the issue of whether the proof of guilt is evident and the presumption great?

Arthur, 390 So. 2d at 717. The Supreme Court answered the first question in the affirmative and answered the second question by holding the State has the burden of proof. Id. It is within this context that we must examine the sentence relied upon by the defendant.

The sentence relied upon by the defendant was made to answer the second certified question. According to the Supreme Court, this certified question raised the issue "as to whether the indictment or information should be deemed to raise a prima facie showing, shifting to the defendant the burden of proving that the proof of guilt is not evident and the presumption not great." Id. at 719. The Supreme Court noted that "[t]he district court followed precedent and held that the indictment shifts the burden to the defendant." Id. Nevertheless, the Supreme Court overruled the existing precedent and reversed because "[i]t should be the state's burden to prove facts which take away the entitlement to bail provided for by Article [I], section 14." Arthur, 390 So. 2d at 719-20. The Supreme Court held "as a matter of convenience, fairness, and practicality, it is preferable that the state have the burden of coming forward when the accused seeks release on bail." Id. at 720.

When placed in proper context, therefore, the Supreme Court's sentence that "before release on bail pending trial can ever be denied, the state must come forward with a showing that the proof of guilt is evident or the presumption is great" does not support the inferences that the defendant cannot be detained pending the Arthur hearing and that the defendant is entitled to both a "preliminary" and "full" Arthur hearing. Such inferences were not related to the question before the Court. Instead, the sentence was intended to squarely place the burden of proving "proof evident, presumption great" on the State and ensure the burden never shifted to the defendant. The defendant grossly misreads the sentence by taking it out of context.

Moreover, the defendant's misreading makes the sentence obiter dicta. Dicta includes statements in an opinion not raised by the facts, not related to the certified questions, and not the subject of analysis or discussion. The issue of the detention of the defendant pending the Arthur hearing was not related to either of the two certified questions. It was not discussed or analyzed in the opinion. Indeed, the issue of the defendant's detention at first appearance pending the bond hearing did not even exist under the facts of Arthur. Arthur arose after a full bond hearing on the merits: it did not involve a first appearance. Id. at 717. The phrase "first appearance" and the word "hearing" are never used in the opinion. In fact, although the Supreme Court reversed and ordered a new Arthur hearing, the court did not order the release of the defendant, because the release of the defendant pending the Arthur hearing was simply not at issue.

This conclusion is particularly inescapable here because the sentence relied upon by the defendant comes from a passage in Arthur that includes another statement that has already been held to be dicta for the same reason. In a statement occurring one sentence away from the one relied upon by the defendant, the Supreme Court described the burden: "The state's burden, in order to foreclose bail as a matter of right, is to present some further evidence which, viewed in the light most favorable to the state, would be legally sufficient to sustain a jury verdict of guilty." Id. at 720.

This statement, of course, reduces the "proof evident, presumption great" standard to mere probable cause. Obviously, if read as binding authority, this sentence would eviscerate the defendant's entire argument because the arrest affidavit clearly met this lower standard. This statement, however, has been recognized as dicta because the issue of reducing the standard was not raised by the facts of the case, was not one of the two certified questions the court addressed, and was nowhere discussed in the opinion. Preston, 133 So. 3d at 1226 (holding "the observation [in Arthur ] that the State's proof must be legally sufficient [only] to sustain a guilty verdict certainly must be treated as dicta" because the Supreme Court in the opinion "did not indicate that it intended to change this entrenched rule, or explain the court's reason for doing so, and indeed that question was not at issue in the case."); Perry, 605 So. 2d at 99 (describing the statement in Arthur which lowers the standard as "dicta" because there was no discussion or rationale for it in the opinion).

By the same reasoning, any interpretation of the first sentence as requiring a showing of "proof evident, presumption great" at first appearance in order to detain the defendant a reasonable time pending the Arthur hearing would also constitute dicta. The discretion to detain the defendant after first appearance to conduct the Arthur hearing was not raised by the facts in Arthur, was not implicated in either of the two certified questions addressed in Arthur, and was not analyzed or discussed in Arthur.

H. Although reached in good faith, the dissent's solution is logically inconsistent.

We respect the dissent's judicial statesmanship in attempting to find a middle ground whereby Ysaza and Gray could be upheld and yet an avenue recognized for the Supreme Court to correct the resulting textual and practical difficulties. But the solution fashioned by the dissent is logically inconsistent.

On one hand, the dissent agrees with Ysaza and Gray and that Article I, section 14 prohibits a trial court from holding a defendant pending the Arthur hearing without making a finding of proof evident presumption great at first appearance. On the other hand, the dissent maintains the Supreme Court can authorize such detention by rule. Obviously, however, the Supreme Court's rulemaking authority is itself subject to the Constitution. See, e.g., State v. Furen, 118 So. 2d 6, 12 (Fla. 1960). If Ysaza and Gray are correct that Article I, section 14 prohibits such detention, the Supreme Court cannot authorize it by rule.

CONCLUSION

For these reasons, we hold that Article I, section 14 of the Florida Constitution does not prohibit the trial court the discretion at first appearance, upon a finding of probable cause that the defendant committed a crime punishable by capital punishment or life imprisonment, to defer ruling on bail and to detain the defendant for a reasonable time to conduct a full Arthur bond hearing. To exercise such discretion, the court is not required by the Constitution to make a preliminary finding of "proof evident, presumption great." As the Supreme Court ruled in Arthur, that issue is reserved for the full Arthur bond hearing. We certify conflict with Ysaza and Gray which held to the contrary.

Petition denied.

HENDON, J., concurs.

EMAS, C.J., dissenting.

INTRODUCTION

The issue presented is whether a trial court is required to make a finding that the "proof of guilt is evident or the presumption is great" before it may, at a first appearance hearing, lawfully deny pretrial release to a defendant charged with a capital crime or a crime punishable by life imprisonment. I would answer that question in the affirmative, as we are duty-bound to follow the Florida Supreme Court's decision in State v. Arthur, 390 So. 2d 717 (Fla. 1980), which unambiguously held that "before release on bail pending trial can ever be denied, the state must come forward with a showing that the proof of guilt is evident or the presumption is great." Id. at 720.

The majority opinion embraces a contrary view, creating a procedural mechanism possessed of both logic and practicality. And it may well be that my position possesses neither logic nor practicality, constrained as it is by a faithful adherence to Florida Supreme Court precedent and to that Court's exclusive rulemaking authority. Because the majority opinion is not similarly constrained, I must respectfully dissent.

DISCUSSION

Article I, section 14 of the Florida Constitution provides in pertinent part:

Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions.[ ]

In truth and in fact, the divide between the majority position and this dissent is not that wide. I agree that there should be a practical procedural rule in place to allow for a full and fair determination of whether the proof of guilt is evident or the presumption of guilt is great. But the question is who gets to decide (1) whether there should be a rule and (2) what that rule should say? The majority is apparently of the belief that this court can and should fashion such a rule of procedure, notwithstanding binding Florida Supreme Court precedent on the question, and notwithstanding that Court's exclusive rulemaking authority.

I recognize that the majority's "rule" represents an excellent starting point. Indeed this "rule" may ultimately be adopted (at least in some form) by the Florida Supreme Court. Nonetheless, this case is about process, not result. And, in my view, the majority's opinion abandons that process, fashioning its own "reasonable time" procedural rule, in conflict with the clear and unambiguous holding of Arthur.

In Arthur, 390 So. 2d at 717, the Florida Supreme Court examined the aforementioned constitutional provision, and answered two certified questions

holding , (1) that when a person accused of a capital offense or an offense punishable by life imprisonment seeks release on bail, it is within the discretion of the court to grant or deny bail when the proof of guilt is evident or the presumption great; and, (2) that before the court can deny bail the state must have carried the burden of establishing that the proof of guilt is evident or the presumption great.

(Emphasis added).

The Supreme Court concluded its opinion in Arthur with what now appears to be a prescient reaffirmation of its holding:

We hold , therefore, that before release on bail pending trial can ever be denied , the state must come forward with a showing that the proof of guilt is evident or the presumption is great.

Id. at 720 (emphasis added).

Arthur's express holding is unconditional and unambiguous, and has existed for nearly forty years. It admits of no exception to accommodate the practical challenges that might follow. It authorizes no time period during which a defendant may lawfully be held without bond in the absence of a showing by the State (and a finding by the trial court) that the proof of guilt is evident or the presumption great.

Nevertheless, the majority opinion goes to great lengths to suggest that Arthur does not require any showing or any finding of proof evident, presumption great at a first appearance hearing in order to detain a defendant pending a full Arthur hearing. The majority further suggests that any such language in Arthur is merely dicta . This is simply and plainly incorrect. Arthur says what it means and means what it says:

Before release on bail pending trial can ever be denied , the state must come forward with a showing that the proof of guilt is evident or the presumption is great.

Arthur, 390 So. 2d at 720 (emphasis added). No amount of parsing can change this holding, its manifest meaning, and the consequential obligation of the state and the trial court before a defendant's constitutional right to pretrial release may lawfully be denied.

Given Arthur's unambiguous holding, our sole duty is to faithfully follow and apply that holding to the case at hand. We have no authority to overrule the Florida Supreme Court, or to recede from, paraphrase or modify its express holding. Only the Florida Supreme Court has that authority:

[I]t is not the province of the District Court of Appeal to recede from decisions of this Court. A much better solution would be to follow the decisions of the Supreme Court and then certify the cause as being one of great public interest in order to facilitate a re-examination of the decision of this Court in question.

U.S. Steel Corp. v. Save Sand Key, Inc., 303 So. 2d 9, 11 (Fla. 1974) ; Seminole Cty. v. Waddell, 382 So. 2d 357, 358 (Fla. 5th DCA 1980) (noting the district court's obligation to follow Florida Supreme Court precedent that "dealt directly and explicitly with the issue which confronts us in the instant case" and further noting that it is "the province of that court, not ours, to recede from" Supreme Court precedent). See also Bean v. Univ. of Miami, 252 So. 3d 810, 822 (Fla. 3d DCA 2018) (observing: "The District Courts of Appeal follow controlling precedents set by the Florida Supreme Court" and "a District Court of Appeal does not have authority to overrule a decision of the Supreme Court of Florida") (citations omitted); Braggs v. State, 815 So. 2d 657, 660 (Fla. 3d DCA 2002), rev'd on other grounds by State v. Ruiz, 863 So. 2d 1205 (Fla. 2003) (recognizing that until the Florida Supreme Court overrules its own precedent, the District Courts of Appeal are "obliged to follow it").

I am far from the first jurist to recognize the authority which we, as a lower court, are bound to adhere to, even when we ourselves envision what may be a more practical result. In Hoffman v. Jones, 272 So. 2d 529 (Fla. 4th DCA 1973), rev'd 280 So. 2d 431 (Fla. 1973), the Fourth District, in a two-to-one decision, held that the contributory negligence rule should be replaced with principles of comparative negligence. In doing so, the district court reversed a trial court for following existing precedent established by the Florida Supreme Court in Louisville and Nashville Railroad Co. v. Yniestra, 21 Fla. 700 (1886).

In his dissent, Judge William C. Owen, Jr. took the majority to task for overruling clear precedent of the Florida Supreme Court. Like myself, Judge Owen did not disagree with the majority's criticism of the existing rule of law or the need to consider changing it:

My disagreement with the majority lies simply in the fact that if and when such a change is to be wrought by the judiciary, it should be at the hands of the Supreme Court rather than the District Court of Appeal. The doctrine of contributory negligence is firmly entrenched in our jurisprudence, having been re-affirmed many times by the Supreme Court and by the several District Courts of Appeal. The majority decision would appear to flatly overrule a multitude of prior decisions of our Supreme Court, a prerogative which we do not enjoy.

Hoffman, 272 So. 2d at 534.

On review by the Florida Supreme Court, the Fourth District was reminded that it was "bound to follow the case law set forth by this Court." Hoffman v. Jones, 280 So. 2d 431, 434 (Fla. 1973). The Court explained: "To allow a District Court of Appeal to overrule controlling precedent of this Court would be to create chaos and uncertainty in the judicial forum, particularly at the trial level." Id. Instead, the Hoffman court noted: "This is not to say that the District Courts of Appeal are powerless to seek change; they are free to certify questions of great public interest to this Court for consideration, and even to state their reasons for advocating change." Id.

Thus, just as our sister court in Hoffman was duty-bound to apply the clear precedent of the Florida Supreme Court's longstanding and unequivocal precedent established in Yniestra, this court is duty-bound to apply the Florida Supreme Court's longstanding and unequivocal precedent established in Arthur. See also Gilliam v. Stewart, 291 So. 2d 593, 594 (Fla. 1974), overruled on other grounds by Champion v. Gray, 478 So. 2d 17 (Fla. 1985) (observing: "The constitutional system of courts in this State contemplates that only the Supreme Court may overrule its own decisions. This does not necessarily infer that the decisions of this Court are always correct but it does provide a system for the uniform operation of the laws of this State throughout its borders .... We recognize that in this fast changing world the general welfare requires from time to time reconsideration of old concepts. When the district courts decide that ancient precedents should be overruled, we welcome their views and such should be unhesitatingly rendered but, in cases such as this, it is the duty of the district courts under the plain constitutional language to adhere to the former precedents and then certify the decision to us. This will assure uniformity.")

Surely the same practical challenges, which serve as the foundation for the majority opinion, existed in 1980 when the Florida Supreme Court announced its decision in Arthur. Yet Arthur says nothing-explicitly, implicitly or otherwise-about a "reasonable time" for this constitutionally-mandated determination under Article I, section 14. The Florida Supreme Court could have held expressly what the majority appears to infer from the Arthur decision-that the determination of whether the proof of guilt is evident or the presumption is great can be made within a "reasonable time" following a defendant's arrest, but that no such finding (preliminary or otherwise) need be made at the time of the first appearance hearing. However, the Court in Arthur said no such thing. It bears repeating precisely what the Arthur Court did say:

We answer the [certified] questions by holding , (1) that when a person accused of a capital offense or an offense punishable by life imprisonment seeks release on bail, it is within the discretion of the court to grant or deny bail when the proof of guilt is evident or the presumption great; and, (2) that before the court can deny bail the state must have carried the burden of establishing that the proof of guilt is evident or the presumption great.
...
We hold , therefore, that before release on bail pending trial can ever be denied, the state must come forward with a showing that the proof of guilt is evident or the presumption is great.

Id. at 717, 720 (emphasis added).

In light of this unconditional holding, the majority's action creates a procedural mechanism neither contemplated nor authorized by the Florida Supreme Court. There can be little doubt that the majority's "reasonable time" provision, engrafted onto Article I, section 14 and "inferred" from the holding of Arthur, would constitute a rule of court practice and procedure. And there can be little doubt that the Florida Supreme Court in Arthur could have, but did not, create such a "reasonable time" provision to authorize a trial court to hold a defendant without bond (and without the requisite determination) for some period before a formal Arthur hearing can be held. The majority suggests a practical solution to what it perceives as a problem with Arthur's clear holding. Nevertheless, its decision to implement that practical solution, while undoubtedly well-intentioned, strays from our limited judicial role, and creates a procedural rule that runs contrary to Arthur and that can be validly promulgated only by the Florida Supreme Court.

I would adopt our sister court's decision in Ysaza v. State, 222 So. 3d 3 (Fla. 4th DCA 2017). In that case, defendant argued that the first appearance judge improperly held him without bond without first determining whether the singular document presented to the judge (the probable cause affidavit) established proof of guilt was evident or presumption great. The defendant had been charged with numerous first-degree felonies punishable by life and the trial court determined, at first appearance, that it could wait for the Arthur hearing to make the requisite proof evident, presumption great determination. The Fourth District disagreed, holding the trial court erred in denying the defendant pretrial release at first appearance without making a determination that the probable cause affidavit, or some other evidence presented, established that the proof of guilt was evident or presumption great.

The Fourth District reaffirmed this holding in Gray v. State, 257 So. 3d 477 (Fla. 4th DCA 2018), where the court "reiterate[d] and stress[ed]" that "[b]ond cannot be denied at first appearance, without the first appearance court making the necessary findings pursuant to article I, section 14 of the Florida Constitution and [Arthur ]." Id. at 479.

CONCLUSION

Consistent with Article I, section 14, as construed by the Florida Supreme Court in Arthur, I would hold that a trial court cannot deny pretrial release to a defendant, even at first appearance, unless the State makes a showing, and the trial court makes a finding, that the proof of guilt is evident or the presumption great. Given the unambiguous and unconditional holding of Arthur, any deviation from this required determination must come from the Florida Supreme Court, not from this court. I would also certify the following question as one of great public importance:

Does State v. Arthur, 390 So. 2d 717 (Fla. 1980) require a trial court to make a determination that the proof of guilt is evident or the presumption great before a defendant, charged with a capital offense or an offense punishable by life imprisonment, can be denied pretrial release at any time, including at first appearance?

      In this case, the defendant did not contend his Arthur hearing took place outside a reasonable time. The issue of what constitutes a reasonable time within which to conduct an Arthur hearing is therefore not before us.

      See, e.g., Mathis v. Starr, 152 So. 2d 161, 161 (Fla. 1963) ; State ex rel. Freeman v. Kelly, 86 So. 2d 166, 166 (Fla. 1956) ; Ex parte Nathan, 50 So. 38, 39 (Fla. 1908).

      See, e.g., Fla. Court Educ. Council, Criminal Benchguide for Circuit Judges at 7 (2016) ("In cases in which death or life imprisonment is a possible penalty, the first appearance judge, upon finding of probable cause, will typically order that the defendant be held with no bond. The defendant is then obligated to set the matter for an Arthur hearing."); Fla. Court Educ. Council, Criminal Benchguide for Circuit Judges at 7 (2010) (same).

      See cases cited at note 8, infra.

      For example, many defendants can bond out of jail by posting standard bail without waiting for first appearance. But it has never been held that requiring certain defendants by law to be detained until first appearance implicated rights under Article I, section 14. See footnote 7, infra.

      Specifically, the Supreme Court has interpreted the "pretrial detention" exception to allow the trial court to detain the defendant for a maximum of 10 days after first appearance to conduct the required hearing, subject to specific conditions and strict limits on continuances "unless the delay is sought by the defendant." Fla. R. Crim. P. 3.132(c)(1).

      Judicial Circuits have uniform bail bond schedules for persons who decide to immediately bond out of jail without seeing a judge. These schedules are often promulgated by circuit court administrative orders. See, e.g., Admin. Order S-2018-022, Uniform Bail Bond Schedule (Fla. 13th Cir. June 27, 2018); Admin. Order 2018-019 PA-Cir, Uniform Bail Bond Schedule (Fla. 6th Cir. Apr. 25, 2018); Admin. Order 2013-11.3, Uniform Bail Bond Schedule (Fla. 12th Cir. June 28, 2013). But persons charged with certain offenses are required by law to appear in court at first appearance before bail can be granted, often to allow the court to subject the defendant to a stay-away order. § 741.2901, Fla. Stat. (domestic violence); § 825.1035(11)(b), Fla. Stat. (violation of injunction for protection of vulnerable adult); § 903.046, Fla. Stat. (sexual offender); § 947.141, Fla. Stat. (state supervised offender). Persons who seek pretrial release without posting bond must also appear in court.

      Indeed, where trial courts attempted to find "proof evident, presumption great" at first appearance, they have been routinely reversed with instructions to hold a full evidentiary hearing (without instructions to release the defendant pending the hearing). Preston v. Gee, 133 So. 3d 1218 (Fla. 2d DCA 2014). See also Cooper v. Gee, 162 So. 3d 998 (Fla. 2d DCA 2014) ; Hardy v. Gee, 150 So. 3d 1144 (Fla. 2d DCA 2014) ; Morales v. Gee, 149 So. 3d 15 (Fla. 2d DCA 2014) ; Maldonado v. Gee, 149 So. 3d 14 (Fla. 2d DCA 2014) ; Reid v. Gee, 149 So. 3d 15 (Fla. 2d DCA 2014) ; Diaz v. Gee, 149 So. 3d 11 (Fla. 2d DCA 2014) ; Brown v. Gee, 149 So. 3d 10 (Fla. 2d DCA 2014) ; McCants v. Gee, 149 So. 3d 14 (Fla. 2d DCA 2014) ; Carrion v. Gee, 149 So. 3d 10 (Fla. 2d DCA 2014).

      "One of the basic principles of appellate law is that the holding of a decision cannot extend beyond the facts of the case." Miccosukee Tribe of Indians v. Lewis Tein, P.L., 227 So. 3d 656, 661 (Fla. 3d DCA 2017).

      See, e.g., Cirelli v. Ent, 885 So. 2d 423, 427 (Fla. 5th DCA 2004) (deciding that the Supreme Court's inclusion of statutory ways of necessity in its holding was dicta because "the certified question concerned only common law ways of necessity" and "the facts and legal analysis discussed in the opinion concerned only common law ways of necessity").

      See, e.g., Rey v. Philip Morris, Inc., 75 So. 3d 378, 381 (Fla. 3d DCA 2011) ("No Florida appellate decision "is authority on any question not raised and considered.") (citation omitted).

      The one other circumstance under which a defendant is not constitutionally entitled to pretrial release (i.e., pretrial detention under Art. I, § 14 Fla. Const. (2018) ) is inapplicable here.

      I am mindful of the practical challenges raised by the majority. However, and as the United States Supreme Court observed in Reid v. Covert, 354 U.S. 1, 14, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957) :
      The concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperative when they become inconvenient, or when expediency dictates otherwise, is a very dangerous doctrine and, if allowed to flourish, would destroy the benefit of a written Constitution and undermine the basis of our government.
      Nonetheless, I agree that trial courts and practitioners would likely benefit if the Florida Supreme Court implemented a procedural rule to provide further guidance. I recommend this matter be referred, for further consideration, to the Florida Bar's Criminal Procedure Rules Committee or the Florida Supreme Court Criminal Court Steering Committee.

      Further, by engrafting this "reasonable time" requirement, the majority not only contravenes the unequivocal holding of Arthur, but also usurps the Florida Supreme Court's exclusive rulemaking authority. See Article V, § 2(a), Fla. Const. (providing: "The supreme court shall adopt rules for the practice and procedure in all courts ...."); Art. II, § 3, Fla. Const. See also Kalway v. State, 730 So. 2d 861, 862 (Fla. 1st DCA 1999) (observing: "Under the Florida Constitution, only the Florida Supreme Court has the power to adopt rules for the practice and procedure in all courts of this state.")


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Franky JOSEPH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2215
    District Court of Appeal of Florida, Third District.
    Opinion filed June 12, 2019.
    Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Ashley Moody, Attorney General, and Linda Katz, Assistant Attorney General, for appellee.
    Before LOGUE, LINDSEY and LOBREE, JJ.
   PER CURIAM.

Affirmed. See Franklin v. State, 258 So. 3d 1239 (Fla. 2018) ; State v. Michel, 257 So. 3d 3 (Fla. 2018).


author: SALTER, J.

text:
    CITIZENS PROPERTY INSURANCE CORPORATION, Appellant, v. Marc SAMPEDRO and Yanelys Sampedro, Appellees.
    No. 3D18-1791
    District Court of Appeal of Florida, Third District.
    Opinion filed June 12, 2019
    Traub Lieberman Straus & Shrewsberry and Scot E. Samis (St. Petersburg), for appellant.
    Barnard Law Offices and Garrett William Haakon Clifford, for appellees.
    Before SALTER, FERNANDEZ and LINDSEY, JJ.
   SALTER, J.

Citizens Property Insurance Corporation ("Citizens") appeals non-final orders determining, as a matter of law, that four counts in the complaint filed by the insureds (Marc and Yanelys Sampedro, the "Insureds") are not barred by Citizens' statutory sovereign immunity. The trial court denied Citizens' motion to dismiss the four counts seeking declaratory judgment "under Higgins v. State Farm Fire & Cas. Co., 894 So. 2d 5 (Fla. 2004)." Citizens has not appealed (and jurisdictionally could not appeal, at this juncture) the trial court's determination that the Insureds' separate count for breach of the residential insurance policy may proceed.

We have jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(xi). Our standard of review on the sovereign immunity issue is de novo. Plancher v. UCF Athletics Ass'n, 175 So. 3d 724, 725 n.3 (Fla. 2015).

We reverse the order below for three independently sufficient reasons.

First, Higgins involved a private insurer (State Farm) lacking any statutory grant of sovereign immunity. The case stands for the unremarkable principle that the declaratory judgment statutes "can be used to decide disputes in respect to insurance policy indemnity coverage and defense obligations," regarding an underlying tort claim and a private insurer. 894 So. 2d at 15. The Insureds, and the four claims under consideration in the present case, do not seek coverage declarations-the claims attempt to assert purported private rights of action that do not exist.

Second, Citizens is not a traditional private insurer. The Florida Legislature conferred powers and duties on Citizens by statute. Citizens may be characterized as a governmentally-created, not-for-profit insurer for eligible property owners otherwise unable to procure a policy in the private marketplace. See Citizens Prop. Ins. Corp. v. Perdido Sun Condo. Ass'n, 164 So. 3d 663, 667 (Fla. 2015) (applying the exceptions to Citizens' statutory sovereign immunity to exclude statutory first-party bad faith claims asserted under another provision of the Florida Insurance Code).

The statute conferring sovereign immunity on Citizens contains only five specific exceptions (subsections 627.351(6)(s)1.a. through 1.e.). The present case involves a claim by the Insureds against Citizens for water damage after a shower pan leak. The Insureds' residential homeowners' policy issued by Citizens and subsection 1.e of the immunity statute expressly allow a breach of contract action (liability in an action "for breach of contract or for benefits under a policy issued by the corporation"). But neither the policy nor the statute authorize creatively-drafted private claims for "breach of the duty to adjust" in other provisions of the Florida Insurance Code.

Third, in a motion for reconsideration filed after the trial court's initial denial of Citizens' motion to dismiss the four counts, Citizens directed the trial court's and the Insureds' attention to the Fourth District's opinion in Citizens Property Insurance Corp. v. Mendoza, 250 So. 3d 716 (Fla. 4th DCA 2018). The Mendoza decision was issued July 5, 2018. The case addressed similar claims for declaratory relief filed by the same law firm representing the Insureds in the present case. The motion for reconsideration bringing the Mendoza decision to the trial court's attention was binding on the trial court in the absence of binding authority from this Court; Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992) ("Thus, in the absence of interdistrict conflict, district court decisions bind all Florida trial courts.").

Citizens filed its eleven-page motion for reconsideration based on Mendoza on July 31, 2018, attaching a copy of the decision. The trial court entered its order denying the motion to dismiss the four counts in question that day. The next day, the trial court denied the motion for reconsideration in an unelaborated order and without a hearing. The Insureds' counsel submitted no responsive memorandum or opposition to Citizens' motion or the Mendoza decision.

The non-final orders denying Citizens' (a) motion to dismiss counts two through five of the Insureds' complaint with prejudice, and (b) motion for reconsideration of the denial based on Mendoza, are reversed. The case is remanded to the trial court for further proceedings consistent with this opinion.

      § 627.351(6)(s), Fla. Stat. (2018). Citizens' appeal included the trial court's separate order denying its motion for reconsideration based on a recently-issued decision of the Fourth District Court of Appeal.

      The Florida Insurance Code is extensive, consisting of Chapters 624 to 632, 634 to 636, 641, 642, 648, and 651, Florida Statutes (2018). See § 624.01, Fla. Stat. (2018).


author: LEBAN, Senior Judge.

text:
    ERORENTALS, LLC T/A Trump 2208, Appellant, v. Qofa W. YU, Appellee.
    No. 3D18-54
    District Court of Appeal of Florida, Third District.
    Opinion filed June 12, 2019
    Shaked Law Firm, P.A., and Sagi Shaked, Joel Roth, Aventura, Loretta Guevara and Javiera Aguilera, Boca Raton, for appellant.
    Garcia-Menocal & Perez, P.L., and Anthony J. Perez, for appellee.
    Before SALTER and FERNANDEZ, JJ., and LEBAN, Senior Judge.
   LEBAN, Senior Judge.

It is well-settled that attorney's fees are not recoverable absent a statute or a contract that specifically authorizes their recovery. See Hampton v. Fairchild-Florida Constr. Co., 341 So. 2d 759 (Fla. 1976) ; see also Civix Sunrise, GC, LLC v. Sunrise Road Maint. Assn, Inc., 997 So. 2d 433 (Fla. 2d DCA 2009).

Appellant herein, Erorentals, LLC T/A Trump 2208 ("Erorentals"), sued the appellee, Qofa Yu, in tort. The record is devoid of any contract between the parties and the pleadings include no such claim. The record reflects, and Qofa concedes, that he never sought attorney's fees as a sanction under Section 57.105(1), Florida Statutes. There is similarly no proposal for settlement or offer of judgment of record. Lastly, and most importantly, Qofa presents no support for his argument that attorney's fees are warranted under section 57.105 (7). Subpart (7) applies specifically to contracts with unilateral fee provisions. Because no such contract exists here, subpart (7) is inapplicable.

Consistent with the above, we reverse the trial court's order to the extent that it awards attorney's fees.

      Qofa likewise concedes that the trial court made no findings under Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993), which outlines the six factors used to determine whether sanctions are warranted.


author: EDWARDS, J.

text:
    R.J. REYNOLDS TOBACCO COMPANY, Appellant/Cross-Appellee, v. James LEWIS, as Personal Representative of the Estate of Rosemary Lewis, Appellee/Cross-Appellant.
    Case Nos. 5D17-773 5D18-3654
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 14, 2019 Rehearing Denied July 11, 2019
    Stephanie E. Parker, and Jason T. Burnette, of Jones Day, Atlanta, Georgia, and Troy A. Fuhrman, and Marie A. Borland, of Hill Ward Henderson, Tampa, for Appellant/ Cross-Appellee.
    Joshua R. Gale, of Wiggins Childs Pantazis Fisher Goldfarb, LLC, DeLand; Philip J. Padovano, Maegen Peek Luka, and Joseph T. Eagleton, of Brannock & Humphries, Tampa; and William H. Ogle, of Ogle Law, Daytona Beach, for Appellee/Cross-Appellant.
   EDWARDS, J.

In this Engle -progeny case, Appellant, R.J. Reynolds Tobacco Company ("Reynolds"), argues that Appellee, James Lewis, only surpassed the proposal for settlement threshold entitling him to an award of attorney's fees because the trial court improperly included costs related to four non-testifying expert witnesses retained by Lewis. We agree that was error. Reynolds also correctly asserts that the trial court allowed recovery for certain costs for which there was no evidentiary basis. Lewis cross-appeals, correctly arguing that the court erred by failing to award prejudgment interest on the costs calculated from the date each was incurred. We will explain each decision in turn.

BACKGROUND

The decedent, Rosemary Lewis, passed away on March 12, 1998, after a battle with lung cancer. Her husband, James Lewis, was named the personal representative of the estate, and brought a wrongful death and survival action against Reynolds. After a two-week trial, the jury found in his favor. The jury awarded Lewis $ 750,000 in damages, which was reduced to $ 187,500 after the decedent's portion of comparative fault was applied. This court affirmed the final judgment in R.J. Reynolds Tobacco Co. v. Lewis , 226 So.3d 852 (Fla. 5th DCA 2017).

ENTITLEMENT TO ATTORNEY'S FEES

On July 14, 2014, Lewis filed a proposal for settlement ("PFS") for $ 199,000, which Reynolds rejected. After the final judgment was entered, Lewis sought his taxable costs and moved for attorney's fees pursuant to section 768.79(6)(b), Florida Statutes (2014). That section states that, if a defendant rejects a PFS and the plaintiff obtains a judgment at least 25% more than the amount of the proposal, the plaintiff is entitled to reasonable costs and attorney's fees as calculated by the Florida Supreme Court's guidelines. In order to cross the statutory 125% threshold entitling Lewis to attorney's fees, he would have needed at least $ 61,250 in taxable costs on the date that the PFS was served.

Following several hearings, the trial court determined that on the date the PFS was served, Lewis would have been entitled to $ 65,047.94 in costs; thus, the trial court held he was entitled to an award of attorney's fees since he surpassed the threshold by $ 3797.94. The costs utilized by the trial court in determining entitlement to fees included the cost and expenses related to four expert witnesses who had been retained by Lewis, but who had not testified or been deposed at the time the PFS was served.

Reynolds argues that the lower court's inclusion of the costs for the non-testifying experts was error under White v. Steak & Ale of Florida, Inc. , 816 So.2d 546 (Fla. 2002). White held that "the 'judgment obtained' pursuant to section 768.79 includes the net judgment for damages and any attorneys' fees and taxable costs that could have been included in a final judgment if such final judgment was entered on the date of the offer." 816 So.2d at 551. Based on this language, it is clear that under White , a court may only properly consider those costs that were already taxable on the date the PFS was filed.

Thus, the question is whether the non-testifying experts' costs were taxable as of July 14, 2014. Section 768.79(6)(b) provides that an award for attorney's fees and costs must be "calculated in accordance with the guidelines promulgated by the Supreme Court." It follows then, for purposes of the "judgment obtained" within that statute, that the taxable costs must also comply with those guidelines. According to In re Amendments to Uniform Guidelines for Taxation of Costs , costs for an expert witness's deposition and/or trial testimony should be taxed, while any expense relating to a consulting but non-testifying expert should not be taxed. 915 So.2d 612, 616-17 (Fla. 2005). Based on this language, it is clear that taxable costs for experts do not include costs for those experts who do not testify. Therefore, costs for non-testifying experts are nontaxable.

Here, it is undisputed that the four experts in question were not deposed and did not testify. Thus, costs related to them are nontaxable under the guidelines. Therefore, those costs cannot be included in the calculations for determining whether Lewis was entitled to attorney's fees, and the trial court erred by including the non-testifying experts' costs in its calculations. Accordingly, Lewis's taxable costs on the date the PFS was served totaled $ 44,014.60, meaning he was below the statutory threshold by $ 17,235.41. We therefore reverse the trial court's orders finding Lewis entitled to and awarding him attorney's fees.

COST AWARD REGARDING MULTI-CASE EXPERTS

It is undisputed by the parties that Lewis's counsel litigated six Engle -progeny cases at the same time as Lewis's. To minimize costs, his counsel deposed Dr. Thomas one time, and Lewis sought only one-sixth of the cost of the deposition transcript ($ 663.22) and of Dr. Thomas's witness fee ($ 412.50). Another expert witness, Dr. Proctor, was only used in two of the six cases, so Lewis sought one-half of the cost of his deposition transcript ($ 526.29). It is also undisputed by the parties that one of the six cases, Koballa v. R.J. Reynolds Tobacco Co. , No. 2007-33334-CICI, 2011 WL 8201755 (Fla. 7th Cir. Ct. 2011), resulted in a compromise and settlement on costs. In that case, plaintiff's counsel sought $ 461,244.33 in taxable costs, which included the full costs of the two deposition transcripts and of Dr. Thomas's fee. There, the parties compromised and settled for $ 300,000, which was a 35% "reduction across the board of all case costs and included all firms involved in this matter."

Below, Reynolds argued that, since the Koballa award included a compromise for the subject depositions and witness fee, it should not be required to pay for those costs again, saying that paying for the difference was a "double dip." Reynolds further argued that the burden was on Lewis to prove that he did not recover for these costs in Koballa . However, the court found that, since the compromise was in the Koballa case, Lewis was not precluded from seeking "whatever portion wasn't paid." The court concluded that the subject costs were not a "double dip."

"The prevailing party's burden, at an evidentiary costs hearing, to recover an expert witness fee is 'to present testimony concerning the necessity and reasonableness of the fee.' " Gray v. Bradbury , 668 So.2d 296, 298 (Fla. 1st DCA 1996) (quoting Powell v. Barnes , 629 So. 2d 185, 185 (Fla. 5th DCA 1993) ). Thus, in order for the court's award of $ 1602.01 for these costs to be affirmed, the costs must be supported by competent, substantial evidence. See Nilo v. Fugate , 30 So.3d 623, 624 (Fla. 1st DCA 2010). The cost compromise in Koballa was across the board and resulted in a 65% recovery for plaintiff's counsel. Lewis did not present any evidence on how the Koballa compromise affected the amount of each cost that he seeks to recover here. Rather, Lewis sought recovery for the full one-sixth of Dr. Thomas's deposition and fee and one-half of Dr. Proctor's deposition. Accordingly, we reverse the cost judgment because the trial court erred in awarding $ 1602.01 for those proportionate multi-case expert costs. However, we reject without further discussion Reynolds' arguments that the trial court erred in awarding costs related to Probative Production, TDx Media, LLC, and TimeCoder Pro.

PREJUDGMENT INTEREST ON COST AWARD

On cross-appeal, Lewis argues that the lower court erred by denying prejudgment interest on the award for costs. He argues: (1) taxable costs are subject to prejudgment interest, and (2) the interest accrues from the date he paid the costs. We agree that Boulis v. Florida Department of Transportation , 733 So.2d 959 (Fla. 1999), supports Lewis's assertion that prejudgment interest should be added to taxable costs. In Boulis , the Florida Supreme Court noted that its decision in Quality Engineered Installation, Inc. v. Higley South, Inc. , 670 So.2d 929 (Fla. 1996), allowed "prejudgment interest on attorney's fees, which are clearly litigation costs." 733 So.2d at 962. The court also noted that Florida adopted the "loss theory" of prejudgment interest. Id. at 961. Accordingly, we reverse the cost judgment on that basis and remand with instructions to include prejudgment interest in the revised cost judgment.

Because the trial court did not rule on when prejudgment interest accrues on costs, we reach no decision on that issue. On remand, the trial court must determine the accrual date of prejudgment interest for each item of cost, unless the parties choose to stipulate otherwise, and then enter an amended cost judgment.

AFFIRMED IN PART, REVERSED IN PART, REMANDED WITH INSTRUCTIONS.

COHEN and GROSSHANS, JJ., concur.

      Engle v. Liggett Grp., Inc. , 945 So.2d 1246 (Fla. 2006).

      $ 199,000 (PFS offer) + 25% = $ 248,750 required to meet threshold. $ 248,750 - $ 187,500 (judgment) = $ 61,250.

      There is a distinction between the actual costs awarded and those used to determine entitlement to attorney's fees. The non-testifying experts' costs were not included in the cost judgment; they were only used to determine whether Lewis had surpassed the 125% PFS threshold for entitlement to attorney's fees.

      While all four experts had been disclosed at one point by Lewis, three of them were no longer included in his then-current witness list, which served to withdraw those three from the status of testifying witnesses such that they could not properly be deposed or later testify at trial. "The protection provided by rule 1.280(b)(5)(B) applies to experts initially disclosed as testifying witnesses that are later withdrawn as such." Rocca v. Rones , 125 So.3d 370, 372 (Fla. 3d DCA 2013). When a party removes an expert's name from the witness list, that expert may not then be deposed. See Morgan v. Tracy , 604 So.2d 15, 15 (Fla. 4th DCA 1992) ("Now that petitioners have withdrawn the expert's name from their trial witness list, respondent cannot depose the expert absent a showing of exceptional circumstances.").

      Reynolds initially appealed after the trial court found Lewis entitled to attorney's fees, but prior to specifying the amount of fees to be awarded. It is well settled that such an order is a non-appealable, nonfinal order. See Orange Cty. v. Hewlings , 152 So.3d 812, 813-14 (Fla. 5th DCA 2014) (finding lack of jurisdiction on order determining entitlement to attorney's fees but failing to set the amount of fees). We relinquished jurisdiction, and the trial court entered a final, appealable order awarding a stipulated amount of attorney's fees.

      See Petri Positive Pest Control, Inc. v. CCM Condo. Ass'n , 271 So.3d 1001, 1002, 2019 WL 1926276 (Fla. 4th DCA May 1, 2019) (holding that post-offer prejudgment interest is not to be included when calculating whether a party has surpassed the statutory threshold).


author: Rowe, J.

text:
    Michael T. ANGELO d/b/a Orange Park Auto Mall, Appellant, v. Timothy PARKER, individually and on behalf of those similarly situated, Appellee.
    No. 1D18-1304
    District Court of Appeal of Florida, First District.
    June 20, 2019 Rehearing Denied July 25, 2019
    Michael Fox Orr and Jeremy M. Paul of Dawson Orr, Professional Association, Jacksonville, for Appellant.
    Roger D. Mason, II and Elizabeth A. Buchwalter of Roger D. Mason, II, P.A., Tampa, for Appellee.
   Rowe, J.

Michael T. Angelo d/b/a Orange Park Auto Mall (the Dealership) appeals an order granting class certification in an action brought under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA). Timothy Parker moved to certify a class of consumers who the Dealership purportedly overcharged title and registration fees. The Dealership argues that the trial court abused its discretion in certifying the class because Parker did not allege a legally sufficient FDUTPA claim, preventing the trial court from conducting the rigorous analysis required before ordering class certification. We agree.

Procedural History

Parker purchased a vehicle from the Dealership and was charged $ 420 for title and registration fees. The sales contract signed by Parker included a disclosure that the fees were estimated at the time of sale but was silent about any overage. Eleven days after the sale, the Dealership paid $ 403.90 to the Department of Highway Safety and Motor Vehicles (DHSMV) for the title and registration fees. The Dealership did not refund Parker the difference between the estimate and the amount paid to the DHSMV ($ 16.10).

Parker sued the Dealership alleging that it violated FDUTPA by not refunding the difference between the estimated title and registration fees and the amount paid to the DHSMV. He later amended the complaint to assert claims on behalf of a class of consumers defined as:

(a) All persons or entities with Florida addresses at the time of the transaction, who purchased or leased a vehicle from the Dealership;
(b) during the four-year period prior to the filing of his action through class certification;
(c) and were charged and paid a title and registration fee greater than the actual title and registration cost; and
(d) the difference between the amount charged and the actual title cost was never refunded.

The class action complaint alleged two FDUTPA violations: one of FDUTPA generally and the other of section 501.203(3)(c), Florida Statutes (2016). But there were no allegations to describe how the Dealership's failure to refund the difference between the actual and estimated cost of the title and registration fees was an unfair or deceptive act. This omission led to confusion over the substance of the FDUTPA claims asserted on behalf of the class.

At the hearing on the motion for class certification, the Dealership sought clarification of the claims. The Dealership asked whether the claims were based on the provision of FDUTPA prohibiting automobile dealers from adding certain fees to the price of a motor vehicle. Parker responded that the complaint was not based on a violation of that FDUTPA provision. Instead, he asserted that the class sought relief under the general provisions of FDUTPA and section 501.203(3)(c). Parker asserted that a violation of section 501.203(3)(c) occurred when the Dealership violated sections 320.27(9)(b)3. and 320.27(9)(b)16., Florida Statutes (2016), which prohibit automobile dealerships from misrepresenting any terms of the sale or financing of a vehicle and from willfully violating administrative rules. Yet Parker identified no misrepresentation by the Dealership or any willful violation of an administrative rule that would support a FDUTPA claim under section 501.203(3)(c).

The remaining general FDUTPA count was similarly lacking in detail. Parker did not allege that the Dealership engaged in any deceptive or unfair conduct. He acknowledged that the sales contracts disclosed that the fees charged to the proposed class members were estimated, and he could identify no legal requirement for the Dealership to refund the difference between what the consumers were charged and what the Dealership later paid to the DHSMV, days or even weeks later.

Based on the pleading deficiencies in both FDUTPA counts, the Dealership moved to dismiss the complaint for failure to state a claim, and in the alternative, for a more definite statement. The court denied both defense motions and certified the class under all three subsections of Florida Rule of Civil Procedure 1.220(b). The Dealership appeals.

Analysis

We review an order granting class certification for an abuse of discretion.

Fla. Dep't of Transp. v. Tropical Trailer Leasing, LLC , 229 So.3d 1251, 1254 (Fla. 1st DCA 2017). Before certifying a class, a trial court must perform a rigorous analysis of the claims asserted on behalf of the class because certification expands the dimensions of the lawsuit and commits the court and the parties to additional labor over and above a traditional lawsuit. Id. ; Miami Auto. Retail, Inc. v. Baldwin , 97 So.3d 846, 851 (Fla. 3d DCA 2012). Rule 1.220(a) provides that the party seeking certification must show that the proposed class meets these four requirements: numerosity, commonality, typicality, and adequacy of representation. Earnest v. Amoco Oil Co. , 859 So.2d 1255, 1258 (Fla. 1st DCA 2003). When considering whether to certify a class, the court's focus is on whether the four requirements have been satisfied, not on the merits of the case. Sosa v. Safeway Premium Fin. Co. , 73 So.3d 91, 105 (Fla. 2011). That said, the merits of the class claims remain relevant to the court's analysis. Rule 1.220 requires the court to consider the law applicable to the claims and the substance of the claims before ruling on a motion to certify a class. Latman v. Costa Cruise Lines, N.V. , 758 So.2d 699, 702 (Fla. 3d DCA 2000).

The Dealership argues that the trial court erred in granting class certification because: (1) it did not perform a rigorous analysis of the substance of Parker's FDUTPA claims; and (2) it failed to make factual findings in the class certification order. As stated earlier, two FDUTPA counts were asserted on behalf of the class: one alleging a general violation of the Act, and the other brought under section 501.203(3)(c), Florida Statutes. Only the count brought under the general provision of FDUTPA remains at issue in this appeal.

To state a legally sufficient claim under FDUTPA, a plaintiff must allege: "(1) a deceptive act or unfair practice; (2) causation; and (3) actual damages." Baptist Hosp., Inc. v. Baker , 84 So.3d 1200, 1204 (Fla. 1st DCA 2012) (quoting Kia Motors Am. Corp. v. Butler , 985 So.2d 1133, 1140 (Fla. 3d DCA 2008) ). A deceptive practice is one "likely to mislead consumers acting reasonably in the circumstances, to the consumers' detriment." State v. Beach Blvd. Auto., Inc. , 139 So.3d 380, 387 (Fla. 1st DCA 2014). A plaintiff must show that a reasonably objective person in the same circumstances would have been deceived. Lombardo v. Johnson & Johnson Consumer Cos., Inc. , 124 F.Supp.3d 1283, 1290 (S.D. Fla. 2015). "[A]n unfair practice is one which causes substantial injury to a consumer which the consumer could not have reasonably avoided and which is not outweighed by countervailing benefits to the consumer or to competition." Hill Dermaceuticals, Inc. v. Anthem, Inc. , 228 F.Supp.3d 1292, 1302 (M.D. Fla. 2017).

The class complaint alleged that the Dealership violated FDUTPA by: (1) overestimating the cost of title and registration fees, and (2) failing to refund the difference between the amount charged to class members and the amount paid to the DHSMV. Parker admits that the contracts included the following disclosure:

*Title/Tag Fees are Estimated. Buyer may be responsible for any shortage.
8. Any amount marked as an "estimate" on this agreement is based on the best information available to Dealer and is subject to change when the true amount is determined. Buyer agrees to the changes in these estimated amounts, as is necessary to reflect the correction of such estimate.

Parker also concedes that the title and registration fees charged to purchasers were based on specific information provided by each individual purchaser, such as their date of birth and whether the purchaser was transferring a title. Parker further acknowledges that he had no expectation of receiving a refund for any overpayment. But despite the express disclosure that the fees were estimated, that the estimates were based on individual-specific information, and that he did not expect a refund of any overpayment, Parker maintains that the mere existence of the overcharge is enough to state a claim under FDUTPA. We disagree. Standing alone, the mere existence of an overcharge does not establish a violation of FDUTPA. See Lombardo , 124 F.Supp.3d at 1290. Instead, to state a claim under FDUTPA, Parker had to allege that the Dealership acted in a way that was "unscrupulous, oppressive, unethical, or immoral" or in a way likely to mislead the class members to their detriment. Beach Blvd. Auto., Inc. , 139 So.3d at 386-87.

Parker alleged no deceptive or unfair acts by the Dealership. Without a legally sufficient claim under the substantive law applicable to this case, the court could not determine whether Parker's complaint satisfied the requirements of commonality, typicality, numerosity, and adequacy. Nor could the court perform the rigorous analysis required by rule 1.220. The court could not assess commonality-whether Parker's claim arose from the same practices or course of conduct that gave rise to the claims of the other class members. Sosa , 73 So.3d at 107. The court could not determine typicality-whether there was a strong similarity in the legal theories between Parker's claims and the claims of the other class members. Id. at 114. Nor could the court evaluate the number of people in the class or whether counsel was adequate. Thus, we hold that the court erred in certifying the class because Parker never alleged a facially sufficient violation of FDUTPA. Olen Props. Corp. v. Moss , 981 So.2d 515, 519 (Fla. 4th DCA 2008) (holding that the court must look beyond the pleadings to determine whether the claims and proof are amenable to class treatment).

The court erred further when it failed to make factual findings to support its conclusion that Parker satisfied each of the four prerequisites for certification. Integon Corp. v. Gordon , 953 So.2d 725, 725 (Fla. 1st DCA 2007) (reversing an order certifying a class when the order did not have separate factual findings as required by rule 1.220(d)(1) ); see also Fla. R. Civ. P. 1.220(d)(1) ("Irrespective of whether the court determines that the claim or defense is maintainable on behalf of a class, the order shall separately state the findings of fact and conclusions of law upon which the determination is based.").

Because the trial court did not perform a rigorous analysis of the substance of Parker's FDUTPA claims and failed to make sufficient factual findings in the class certification order, we REVERSE the order granting class certification.

Ray and Osterhaus, JJ., concur.

      FDUTPA includes a subsection addressing unfair or deceptive acts or practices by automobile dealers related to the sale of motor vehicles. § 501.976, Fla. Stat. (2016). Section 501.976(11), Florida Statutes (2016), specifically requires disclosure of all fees or charges added to the cash price of the sale of a vehicle.

      At oral argument, Parker abandoned the count brought under section 501.203(3)(c), based on his concession that the count was directed to the Dealership's bond company, not to the Dealership.

      Moreover, without a more definite statement of the FDUTPA claim alleged on behalf of the class, the Dealership was denied a fair opportunity to defend against the claim. Walker v. Walker , 254 So.2d 832, 834 (Fla. 1st DCA 1971) ("[T]he pleader must set forth the facts in such a manner as to reasonably inform his adversary of what is proposed to be proved in order to provide the latter with a fair opportunity to meet it and prepare his evidence.").


author: GROSSHANS, J.

text:
    John SMITH, a Natural Person Proceeding Under a Pseudonym, Appellant, v. UNUM LIFE INSURANCE COMPANY OF AMERICA, Appellee.
    Case No. 5D17-3514
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 21, 2019 Rehearing Denied July 25, 2019
    W. Lane Neilson, of Neilson & Associates, P.A., Orlando, for Appellant.
    Kristina B. Pett and Daniel R. Lazaro, of McDowell Hetherington LLP, Boca Raton, for Appellee.
   GROSSHANS, J.

John Smith (Smith) appeals the final judgment awarding him attorney's fees and costs, arguing that the trial court erred in determining the final amount owed by Unum Life Insurance Company of America (Unum). We agree that the trial court erred in refusing to grant prejudgment interest and in failing to tax as costs a portion of Smith's expert's fee. We affirm in all other respects.

Smith filed a claim with Unum, seeking benefits pursuant to a disability policy issued by Unum. After Unum denied the claim, Smith sued Unum asserting breach of contract and requesting attorney's fees.

After three years of litigation, the parties settled the case. The settlement agreement included the following provision addressing fees and costs:

The parties agree that SMITH is entitled to reasonable attorneys' fees and costs with regard to the Lawsuit against UNUM, but not as to the time period for which fees are payable. The parties will seek to agree to the amount of said fees and costs, and if unable to agree, will have the Court determine the amount of costs, a reasonable attorneys' fee and the time period for which fees are payable. The parties so agree in order to resolve this Lawsuit.

The parties were unable to reach an agreement as to the amount of attorney's fees, and the trial court referred the issue to mediation, ordering that the mediation costs be divided equally between the parties. After receiving a report that the mediation was unsuccessful, the court referred the matter to a special master. In the referral order, the court noted that the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions (the Guidelines) was to be applied and that the special master's fees were to be equally divided between the parties.

The special master held an evidentiary hearing, wherein both parties presented expert testimony and introduced numerous exhibits. Subsequently, the special master submitted a lengthy report and recommendation to the trial court. The special master recommended a fifty percent reduction in attorney time based on numerous factors including deductions for pre-suit billing time and entries that were non-compensable, duplicative, excessive, and unnecessary. Additionally, the special master recommended not awarding fees for paralegal time, prejudgment interest, or a contingency fee multiplier. As for costs, the special master recommended taxing Smith's expert's testifying fee but not his preparation time.

Smith filed numerous exceptions to the report and requested that the court also include in the final award costs associated with mediation and the special master's fees. Following a hearing, the trial court overruled the exceptions, denied all additional motions for costs, and entered a final judgment consistent with the special master's recommendations which provided for attorney's fees in the amount of $ 97,956.25 and costs in the amount of $ 11,126.40. This appeal timely followed.

"A trial court's decision to accept or reject a magistrate's conclusions is reviewed for an abuse of discretion." Kenney v. Goff, 259 So. 3d 140, 146 (Fla. 4th DCA 2018) (citing Glaister v. Glaister, 137 So. 3d 513, 516 (Fla. 4th DCA 2014). "[A]n appellate court will review de novo the trial court's decision that the magistrate's findings of fact 'are supported by competent, substantial evidence and are not clearly erroneous while giving both the magistrate and the trial court the benefit of the presumption of correctness.' " Id. (quoting Glaister, 137 So. 3d at 516 ).

Smith raises nine issues on appeal, but we find merit in only two: namely that the trial court erred in refusing to grant prejudgment interest on the award of attorney's fees and that the trial court abused its discretion by not taxing Smith's expert's fee in preparing the court ordered affidavit.

I. Prejudgment Interest

Interest on attorney's fees accrues from the date entitlement is "fixed through agreement, arbitration award, or court determination," even if the amount of the fees has not been determined. Quality Engineered Installation, Inc. v. Higley S., Inc., 670 So. 2d 929, 931 (Fla. 1996). The party who owes the fees can protect itself against unreasonable delay in determining the amount of fees and further accrual of interest through a tender of payment, as interest ceases to accrue on the tendered amount. Id. Where the party obligated to pay attorney's fees lacks sufficient information upon which to base a tender of payment at the time entitlement is fixed, the trial court may set an accrual date reflecting when that party received sufficient information upon which to base a tender of payment. See Aries Ins. v. Aleman, 860 So.2d 425 (Fla. 3d DCA 2002).

Here, three months after the parties reached a settlement agreement, Smith provided billing records to Unum. Although Unum paid $ 10,000 toward Smith's attorney's fees prior to the settlement, it failed to tender any other payment prior to the entry of the final judgment for fees, which was entered almost three years after the settlement.

Under these circumstances, the trial court's failure to award any prejudgment interest was error. Upon remand, the trial court shall award prejudgment interest from the date of settlement or from an alternative date when Unum could have made an informed tender of payment.

II. Expert's Preparation Time as Taxable Costs

Smith argues that the trial court abused its discretion in failing to tax the fees for his expert's time in preparing the court ordered affidavit and in preparing to testify at his deposition and the evidentiary hearing. Section I of the Guidelines lists a number of items which "should be taxed," including "[a] reasonable fee for deposition and/or trial testimony, and the costs of preparation of any court ordered report." In re Amendments to Unif. Guidelines for Taxation of Costs, 915 So. 2d 612, 616 (Fla. 2005).

Here, the court ordered that disputes over costs be resolved through application of the Guidelines. Yet, despite the provision quoted above, the court declined to tax any costs for preparation of the affidavit. Based on the facts of this case, this ruling constituted an abuse of discretion. Upon remand, the reasonable fee for the expert's time in preparing the affidavit shall be included as a taxable cost.

However, the Guidelines do not specifically address whether an expert's fee for preparing to testify is taxable. According to our case law, the trial court is not precluded from considering the time an expert spent in preparing to testify, but may exercise broad discretion in this regard. See Winter Park Imps., Inc. v. JM Family Enters., Inc., 77 So. 3d 227, 231-32 (Fla. 5th DCA 2011). Thus, we conclude that the trial court acted within its discretion in refusing to tax the expert's preparation time for the deposition and evidentiary hearing.

For the foregoing reasons, we affirm in part, reverse in part, and remand for the trial court to enter an amended final judgment consistent with this opinion.

AFFIRMED in part; REVERSED in part; and REMANDED.

HARRIS, J., concurs.

COHEN, J., concurs in part and dissents in part, with opinion.

COHEN, J., concurs in part and dissents in part, with opinion.

I concur with the majority opinion except for its holding regarding the failure to award fees for an expert witness's time preparing for a deposition and hearing. While I agree that such a determination is within the trial court's discretion, Winter Park Imports, 77 So. 3d at 229, the order, which specifically addresses most of the exceptions to the special master's report, does not reflect that the trial court considered the claim for preparation time. Inherent in exercising discretion is consideration of the issue. Cf. Ayala v. Scott, 224 So. 3d 755, 759 (Fla. 2017) (noting that exercise of discretion demands consideration of the circumstances).

No reasonably prepared attorney would permit a witness, much less an expert witness, to attend a deposition or hearing unprepared. Experts, justifiably, expect to be compensated for the time spent preparing for such proceedings. In my view, if the presenting party prevails, this cost generally should be taxed. Of course, the time spent preparing is subject to a reasonableness determination, and I do not foreclose circumstances where the denial of those costs would be justified. I would remand and allow the trial court to either award such costs or, at the very least, demonstrate that it considered the issue.