Goines v. Lee Memorial Health System et al

Filing 239

ORDER deeming 225 Motion for Summary Judgment WITHDRAWN by plaintiff. Signed by Judge John E. Steele on 3/30/2020. (FWH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DONIA GOINES,
Plaintiff,
v.

Case No:

2:17-cv-656-FtM-29NPM

LEE MEMORIAL HEALTH SYSTEM
and JEOVANNI HECHAVARRIA,
Defendants.
OPINION AND ORDER
This matter comes before the Court on plaintiff’s Motion for
Summary Judgment Related to the Criminal Conviction of Defendant,
Jeovanni

Hechavarria

(Doc.

#225)

filed

on

March

5,

2020.

Defendant Hechavarria filed a Response in Opposition (Doc. #227)
on March 10, 2020, and defendant Lee Memorial Health System filed
an Opposition (Doc. #228) on March 12, 2020.

With the permission

of the Court, plaintiff filed a Reply (Doc. #232) on March 17,
2020.

The Court heard oral arguments on March 18, 2020.

For

the

plaintiff’s

reasons
oral

set

motion

forth
made

below,

at

the

the
end

Court
of

will

oral

grant

argument

withdrawing the Motion for Summary Judgment Related to the Criminal
Conviction of Defendant, Jeovanni Hechavarria (Doc. #225).

I.
The basic facts of this case have been described in detail in
a prior Opinion and Order of this Court.

(Doc. #150, pp. 2-8);

Goines v. Lee Mem’l Health Sys., 2019 WL 497706 (M.D. Fla. Feb. 8,
2019).

Briefly stated, plaintiff Donia Goines (plaintiff or

Goines)

filed

(Hechavarria)

suit
and

against

Lee

defendants

Memorial

Health

Jeovanni
System

Hechavarria

(Lee

Memorial)

alleging she was sexually assaulted by Hechavarria while she was
a patient, and Hechavarria was a nurse, in a hospital operated by
Lee Memorial.

(Doc. #31.)

In October 2019, the Court granted

Hechavarria’s motion to stay further civil proceedings pending
resolution of criminal charges.

(Doc. #204.)

Hechavarria was

convicted of Sexual Battery When Victim Helpless (Sexual Battery),
in violation of Section 794.011(4)(a), Florida Statutes, after a
jury trial in the Twentieth Judicial Circuit in and for Lee County,
Florida.

(Doc. #225-2; Doc. #225-3.)

conviction, the Court lifted the stay.

Following Hechavarria’s
(Doc. #211.)

Hechavarria

has now been sentenced to thirty years imprisonment, and his direct
appeal is pending.
All parties agree that whether Hechavarria sexually battered
plaintiff is an issue in each pending claim.

In the current

motion, plaintiff requests the Court to make a conclusive factual
determination

that

Hechavarria

sexually

battered

her,

and

to

preclude both defendants from asserting otherwise in the upcoming

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civil trial.

Plaintiff argues that such a determination and re-

litigation bar are required by collateral estoppel principles
after

Hechavarria’s

criminal

conviction.

Alternatively,

plaintiff requests the Court “take judicial notice of the criminal
conviction

of

Defendant,

instruction/stipulation

that

Hechavarria,
Hechavarria

battering/raping the Plaintiff.”

and
is

enter
guilty

a
of

jury
sexual

(Doc. #225, p. 7.)

II.
The motion essentially seeks a partial summary judgment, or
the taking of judicial notice, that a Sexual Battery was committed
by Hechavarria against plaintiff.

Both avenues seek to preclude

both defendants from denying that Hechavarria raped plaintiff in
the Lee Memorial hospital and from re-litigating that issue.

The

Court has set forth the general summary judgment principles in a
prior Opinion and Order (Doc. #150, pp. 9-10), which the Court
adopts without repeating.

As to the request for judicial notice,

The court may judicially notice a fact that is
not subject to reasonable dispute because it:
(1) is generally known within the trial
court’s territorial jurisdiction; or (2) can
be accurately and readily determined from
sources whose accuracy cannot reasonably be
questioned.
Fed. R. Evid. 201(b).

“Since the effect of taking judicial notice

under Rule 201 is to preclude a party from introducing contrary
evidence and in effect, directing a verdict against him as to the
fact noticed, the fact must be one that only an unreasonable person

- 3 -

would insist on disputing.”

United States v. Jones, 29 F.3d 1549,

1553 (11th Cir. 1994).
III.
A. Judicial Notice
Plaintiff requests that the Court take judicial notice of the
criminal conviction, instruct the jury that Hechavarria is guilty
of Sexual Battery, and preclude either defendant from denying the
existence of the Sexual Battery.

(Doc. #225, p. 7.)

This request

must be denied.
If it were permissible for a court to take
judicial notice of a fact merely because it
has been found to be true in some other action,
the doctrine of collateral estoppel would be
superfluous. Moreover, to deprive a party of
the right to go to the jury with his evidence
where the fact was not indisputable would
violate the constitutional guarantee of trial
by jury.
. . .
Accordingly, a court may take notice of
another court’s order only for the limited
purpose of recognizing the “judicial act” that
the order represents or the subject matter of
the litigation.
Jones, 29 F.3d at 1553 (citations omitted).

The jury’s verdict

in the criminal case is not being offered to establish a “judicial
act,” but to establish the factual existence of the Sexual Battery.
The Court declines to take judicial notice of the Sexual Battery
by Hechavarria against plaintiff for this purpose.

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B. Collateral Estoppel
The crux of the motion, and of the legal disputes among the
parties,

relate

to

the

application

of

collateral

estoppel.

“Collateral estoppel, also known as estoppel by judgment, serves
as a bar to relitigation of an issue which has already been
determined by a valid judgment.”

Stogniew v. McQueen, 656 So. 2d

917, 919 (Fla. 1995).
(1)

Florida or Federal Law?

The first issue is whether the Court should apply federal
collateral
principles.

estoppel

principles

or

Florida

collateral

estoppel

Plaintiff’s motion relies primarily on federal law

(Doc. #225, pp. 4-10), while defendants assert Florida principles
govern.

(Doc. #227, p. 2; Doc. #228, p. 3.)

If federal law is

controlling, Hechavarria would be estopped from denying the Sexual
Battery after having been convicted of it in state court.

United

States v. Jean-Baptiste, 395 F.3d 1190, 1194 (11th Cir. 2005);
Matter of Raiford, 695 F.2d 521, 523-24 (11th Cir. 1983).
It is clear, however, that federal law does not control the
collateral estoppel issues in this case.

Brown v. City of Hialeah,

30 F.3d 1433, 1437 (11th Cir. 1994) (“Federal courts considering
whether to give preclusive effect to state court judgments must
apply the State’s law of collateral estoppel under the Full Faith
and Credit Clause of the United States Constitution.” (citation
omitted)); Tillman v. Orange Cty., Fla., 519 Fed. App’x 632, 637

- 5 -

(11th Cir. 2013) (“In considering whether to give preclusive effect
to

a

Florida

estoppel.”).

judgment,

we

apply

Florida’s

law

of

collateral

A federal court gives

preclusive effect to the judgment of a state
court provided that two conditions are met:
(1) the courts of the state from which the
judgment emerged would do so themselves; and
(2) the litigants had a full and fair
opportunity to litigate their claims and the
prior state proceedings otherwise satisfied
the applicable requirements of due process.
Quinn v. Monroe Cty., 330 F.3d 1320, 1329 (11th Cir. 2003).

There

is no dispute that Hechavarria had a full and fair opportunity to
litigate the existence of the Sexual Battery in the criminal
proceedings, or that those state proceedings otherwise satisfied
the applicable requirements of due process.

The only issue is

whether, and to what extent, Florida courts would give preclusive
effect to the Sexual Battery conviction in a subsequent civil
trial.
(2)

Florida Collateral Estoppel Principles

“Under Florida law, collateral estoppel applies if (1) an
identical issue, (2) has been fully litigated, (3) by the same
parties or their privies, and (4) a final decision has been
rendered

by

a

court

or

component

jurisdiction.”

Id.

The

requirement that the prior litigation involve “the same parties or
their privies” is referred to as the mutuality of parties doctrine,
Ball v. Roar III, LLC, 773 Fed. App’x 546, 549 (11th Cir. 2019),

- 6 -

and is the only element of collateral estoppel in dispute in this
case.
In contrast to federal law, the Florida Supreme Court has
steadfastly and repeatedly declined to recede from the mutuality
of parties requirement.

Trucking Emps. of N. Jersey Welfare Fund,

Inc. v. Romano, 450 So. 2d 843, 845 (Fla. 1984) (“However, the
well established rule in Florida has been and continues to be that
collateral estoppel may be asserted only when the identical issue
has been litigated between the same parties or their privies.”);
Stogniew v. McQueen, 656 So. 2d 917, 919 (Fla. 1995) (“Florida has
traditionally required that there be a mutuality of parties in
order for the doctrine to apply.

Thus, unless both parties are

bound by the prior judgment, neither may use it in a subsequent
action.” (citations omitted)); Gentile v. Bauder, 718 So. 2d 781,
783 (Fla. 1998) (“Under Florida law, collateral estoppel, or issue
preclusion, applies when ‘the identical issue has been litigated
between the same parties or their privies.’”); E.C. v. Katz, 731
So. 2d 1268, 1270 n.1 (Fla. 1999) (“This Court expressly parted
with federal law on this issue . . . .

We reaffirm our stated

rationale for the departure from federal law . . . .”); Kumar v.
Patel, 227 So. 3d 557, 560 (Fla. 2017) (“And, even where a criminal
immunity determination is made prior to the filing of a civil suit,
that determination cannot bind a potential civil plaintiff who is
not a party to the criminal proceeding . . . .”).

- 7 -

Plaintiff argues that she comes within the Florida general
rule because privity existed with the parties in the criminal case.
Hechavarria was obviously a party as the Defendant in the criminal
trial.

Plaintiff asserts that Lee Memorial was in privity to the

State of Florida because it “has asserted that it is a sovereign
hospital which is a branch of the State of Florida.”
p. 6.)

(Doc. #225,

Plaintiff also argues that she was in privity to the State

of Florida in the criminal case because of her interest in the
outcome of the case, i.e., her receiving “victim rights” and being
awarded restitution from Hechavarria.

(Doc. #232, pp. 2-3.)

“To be in privity with one who is a party to a lawsuit, one
must have an interest in the action such that she will be bound by
the final judgment as if she were a party.”

Gentile, 718 So. 2d

at 781 (citing Stogniew, 656 So.2d at 920).

Neither Lee Memorial

nor plaintiff were in privity with the State of Florida for
purposes of collateral estoppel mutuality.
It is clear under Florida law that the State of Florida,
acting through the local State Attorney’s Office, controls a
criminal case.

Id. at 783 (“Prosecutors represent the interests

of the people of the State of Florida . . . .”); State v. Greaux,
977 So. 2d 614, 615 (Fla. 4th DCA 2008) (“The prosecutor has the
sole discretion to charge and prosecute criminal acts.

This

discretion is not affected by a victim’s change in desire to
prosecute.

It is not altered by a victim’s refusal to testify.

- 8 -

This discretion is inviolate ‘[n]otwithstanding the court’s belief
that the best interests of the public and the parties would be
served by dismissal.’” (citations omitted)); State v. Brosky, 79
So. 3d 134, 135 (Fla. 3d DCA 2012) (“Florida case law clearly
provides that, in the absence of statute or motion to dismiss, the
decision

whether

determination
Antonacci,

to

122

prosecutor’s

to
be

So.

prosecute
made
3d

decision

by

400,
to

or

to

solely
404

file

dismiss

the

(Fla.
charges

charges

State.”);
4th
or

DCA
to

is

Barnett
2013)

a
v.

(“[A]

discontinue

prosecution is not a ‘stage’ of a criminal proceeding within the
meaning of [Article I] Section 16(b).”).
Another agency of the State of Florida does not itself become
a party simply because of its status as a state entity or a victim.
Bd. of Regents of State of Fla. By & Through Univ. of S. Fla. v.
Taborsky, 648 So. 2d 748, 754 (Fla. 2d DCA 1994) (“USF is not a
party to the criminal action and must channel any requests as
victim through the state attorney’s office.”).

It continues to

be the rule that a victim of a criminal offense is not in privity
with the State of Florida by virtue of the status as a victim.
Prof’l Roofing & Sales, Inc. v. Flemmings, 138 So. 3d 524, 527
(Fla. 3d DCA 2014) (State of Florida, not the alleged victim, was
the opposing party to defendant in the criminal prosecution).
Nothing in the 2018 victim’s rights amendment to the Florida
Constitution,

Article

I,

Section

- 9 -

16(b),

nor

plaintiff’s

entitlement to restitution, creates privity between a victim and
the

prosecution.

Plaintiff

has

not

identified

any

Florida

appellate case which has found a victim to be in privity with the
State of Florida in a criminal prosecution for collateral estoppel
purposes.
Because there is a lack of mutuality of parties, plaintiff
has not shown that she comes within Florida’s general collateral
estoppel rule.

The general rule in Florida still prohibits use

of

conviction

a

criminal

as

conclusive

proof

of

the

facts

underlying the conviction in a civil suit arising from those same
facts.

Romano, 450 So. 2d at 845 (citing Boshnack v. World Wide

Rent-a-Car, Inc., 195 So. 2d 216 (Fla. 1967); Moseley v. Ewing, 79
So. 2d 776 (Fla. 1955); Stevens v. Duke, 42 So. 2d 361 (Fla.
1949)).

Plaintiff cannot rely upon collateral estoppel because

neither she nor Lee Memorial were parties or in privity to parties
in the criminal case against Hechavarria.

See Velasquez Andres

v. Keyser, 777 Fed. App’x 392, 396 (11th Cir. 2019) (“At least one
essential element is missing here: the parties are not identical.
.

.

.

Because

the

actions

involved

preclusion cannot apply here.”).

different

parties,

issue

Unless an exception applies,

plaintiff is not entitled to apply collateral estoppel against
either defendant in this case.

- 10 -

(3)

Exceptions to Mutuality of Parties Requirement

Plaintiff

asserts

that

two

statutory

exceptions

to

the

mutuality of parties requirement for collateral estoppel apply
here.

Defendants respond that neither applies, and Lee Memorial

further asserts that even if either applies to Hechavarria, they
do not apply to Lee Memorial. 1
There is no doubt that the Florida Legislature can, and has,
modified collateral estoppel principles articulated by the Florida
Supreme Court.
The Legislature knows how to modify the
doctrine of collateral estoppel when that is
its intent. For example, sections 772.14 and
775.089(8),
Florida
Statutes,
expressly
restrict the doctrine of mutuality of parties
in order to estop defendants convicted of
civil theft from challenging certain issues
adjudicated in criminal actions when sued
civilly. See Stogniew, 656 So. 2d at 920.
Kumar, 227 So. 3d at 561; see also Starr Tyme, Inc. v. Cohen, 659
So. 2d 1064, 1067 (Fla. 1995); J & P Transp., Inc. v. Fid. & Cas.

1

The Florida Supreme Court has recognized an exception to
the mutuality requirement when a criminal defendant sues his or
her attorney for ineffective assistance of counsel. Zeidwig v.
Ward, 548 So. 2d 209, 214 (Fla. 1989).
This exception clearly
does not apply here.
Additionally, the existence of this
exception does not undermine the mutuality requirement. Stogniew,
656 So. 2d at 919 (“We reject Stogniew’s contention that as a
result of Zeidwig there is no longer a requirement of mutuality
for purposes of collateral estoppel. Zeidwig constituted a narrow
exception in which collateral estoppel was permitted in a defensive
context and then only under the compelling facts of that case.”).

- 11 -

Co. of N.Y., 750 So. 2d 752, 753 (Fla. 5th DCA 2000).

The issue

is whether either of these two exceptions apply in this case.
(a)

Florida Statute § 772.14

Plaintiff asserts that collateral estoppel may be applied to
both defendants because this case qualifies under Section 772.14,
Florida Statutes.

This statute provides:

A final judgment or decree rendered in favor
of the state in any criminal proceeding
concerning the conduct of the defendant which
forms the basis for a civil cause of action
under this chapter, or in any criminal
proceeding under chapter 895, shall estop the
defendant in any action brought pursuant to
this chapter as to all matters as to which
such judgment or decree would be an estoppel
as if the plaintiff had been a party in the
criminal action.
§ 772.14, Fla. Stat.

As Starr Tyme, Inc. stated:

Section 772.14 abrogates the requirement of
mutuality of parties in the context of civil
actions brought by crime victims under chapter
772.
The statute abrogates the requirement
by allowing a plaintiff in a chapter 772 civil
suit to use as an estoppel a “final judgment
or decree rendered in favor of the state” in
a prior criminal proceeding that concerned the
conduct at issue in the civil action.
659 So. 2d at 1067 (citation omitted).
Chapter 772 is the “Civil Remedies for Criminal Practices
Act,” § 772.101, Fla. Stat., and is limited to certain “criminal
activity.”

§ 772.102(1), Fla. Stat.

This statutory definition

of “criminal activity” does not include a Sexual Battery charge,
which is brought under Chapter 794.

- 12 -

Additionally, the Sexual

Battery charge was not “any criminal proceeding under chapter 895”
since

that

Chapter

deals

only

with

“Offenses

Concerning

Racketeering and Illegal Debts.”
Because

the

underlying

criminal

case

involved

neither

proceedings under Chapter 772 nor under Chapter 895, plaintiff
cannot successfully invoke Section 772.14 to avoid the mutuality
requirement of collateral estoppel under Florida law.
(b)

Florida Statute § 775.089(8)

Plaintiff

also

asserts

that

collateral

estoppel

may

be

applied to both defendants because this case qualifies under
Section 775.089(8), Florida Statutes.

This statute provides:

The conviction of a defendant for an offense
involving the act giving rise to restitution
under this section shall estop the defendant
from denying the essential allegations of that
offense in any subsequent civil proceeding.
An order of restitution hereunder will not bar
any subsequent civil remedy or recovery, but
the amount of such restitution shall be set
off against any subsequent independent civil
recovery.
§ 775.089(8), Fla. Stat.

Defendants respond that this statute

does not apply because restitution has not yet been imposed on
Hechavarria.
It is not entirely clear that Section 775.089(8) requires the
actual

imposition

of

restitution.

Rather,

the

statute

only

requires conviction for an offense “involving the act giving rise
to restitution under this section.”

- 13 -

Absent clear and compelling

reasons not to do so, a trial court “shall” order a defendant to
make restitution to his or her victim.

§ 775.089(1)(a).

Thus,

Sexual Battery “gives rise” to restitution under Section 775.
Assuming that actual imposition of restitution is a required
predicate to trigger the application of this statute, plaintiff
has established that such restitution has been imposed.

The

Minutes of the sentencing hearing (Doc. #232-1), signed by the
judge, checks a pre-printed line which states, “Court Orders
Restitution & Reserves on Amount,” followed by writing stating
“and

D

is

to

pay

for

victims

cost

of

therapy.”

While

the

sentencing court did not determine the amount of restitution, and
apparently cannot now do so because the notice of appeal divested
it of jurisdiction 2, the statute at most only requires imposition
of restitution, not the calculation of the amount of restitution.
Because restitution has been ordered against Hechavarria, he is
estopped from denying “the essential allegations of that offense
in any subsequent civil proceeding.”

§ 775.089(8), Fla. Stat.

While Hechavarria is estopped, the Court agrees with Lee
Memorial that this estoppel cannot be applied against Lee Memorial
because it was not a defendant in the criminal case.
This statute applies to a criminal defendant
only, and estops him from denying the

2

Nguyen v. State, 655 So. 2d 1249, 1249-50 (Fla. 1st DCA

1995).

- 14 -

essential elements of his criminal offense in
a later civil proceeding.
. . .
The personal representative’s argument that
Rodriguez’s guilty plea barred Sun Chevrolet’s
defenses is an attempt to exercise collateral
estoppel offensively.
However, the well
established rule in Florida has been, and
continues to be, that a prerequisite to the
offensive use of collateral estoppel is that
the identical issue has been litigated between
the same parties. Here, Sun Chevrolet did not
enter the guilty plea in the criminal trial
and was not a party to that trial.
Sun
Chevrolet has had no opportunity to fully and
fairly litigate its vicarious liability for
the actions alleged in the instant case, and
thus cannot be collaterally estopped from
introducing evidence that Rodriguez was not
negligent, a necessary element for recovery
under the dangerous instrumentality doctrine.
Sun Chevrolet, Inc. v. Crespo, 613 So. 2d 105, 107–08 (Fla. 3d DCA
1993) (citations omitted).

Accordingly, plaintiff must prove the

Sexual Battery in its case against Lee Memorial, and Lee Memorial
is

not

precluded

from

disputing

the

existence

of

the

Sexual

Battery.
In arguing Lee Memorial should be estopped, plaintiff relies
on the Florida Fifth District’s opinion in J & P Transportation,
Inc. v. Fidelity and Casualty Company of New York, 750 So. 2d 752
(5th DCA 2000).

In that case, the vice president of J & P

Transportation lied regarding the company’s payroll when applying
with Fidelity for workers compensation coverage.
When

Fidelity

learned

of

the

misrepresentation,

- 15 -

Id. at 752-53.
it

cancelled

coverage and sued J & P to recover the additional premiums the
company should have paid based on its actual payroll.

Id. at 753.

While the case was pending, the vice president was criminally
charged with grand theft, pled guilty, and was ordered to pay
Fidelity

restitution.

Id.

Fidelity

subsequently

moved

for

partial summary judgment against J & P based on the restitution
judgment, which the lower court granted.

Id.

On appeal, the

Fifth District reviewed sections 772.14 and 775.089(8), concluding
Fidelity was “not required to relitigate the issues resolved in
the criminal case and partial summary judgment was properly entered
in this proceeding.”

Id.

The Court is not convinced that J & P Transportation compels
a holding that collateral estoppel can be applied against Lee
Memorial.

The Fifth District did not address the appropriateness

of collateral estoppel being applied against a third party, as
that does not appear to have been an issue raised by the parties.
See id. (“In this case, the appellants argue Fidelity’s complaint
for civil theft sought damages for the theft of insurance premiums,
but the criminal charges concerned theft of insurance coverage.”).
Regardless, even if that was the intended holding of the Fifth
District, it would be in conflict with the Third District’s holding
in Sun Chevrolet, and the Court believes the Florida Supreme Court,
based on the previously discussed case law, would resolve the
conflict in favor of the Third District.

- 16 -

See Glass v. Captain

Katanna’s, Inc., 950 F. Supp. 2d 1235, 1242 (M.D. Fla. 2013)
(noting that when Florida’s District Courts of Appeal are in
disagreement concerning an issue, the federal court “must predict
how the Florida Supreme Court would resolve the disagreement”).
(4)

Severance of Defendants’ Case/Withdrawal of Motion

The posture of the case now is that a key component of the
case has been conclusively determined as to Hechavarria, but not
as to the other defendant.

The jury would be instructed that in

considering plaintiff’s case against Hechavarria, they must find
the

Sexual

Battery

was

committed

by

Hechavarria.

But

in

considering the plaintiff’s case against Lee Memorial, the jury
would be told it cannot give preclusive effect to the Sexual
Battery conviction, and Lee Memorial may dispute the existence of
such an event.
The Court has been continually impressed with a jury’s ability
to

conscientiously

follow

jury

instructions.

But

in

some

situations, we ask too much of a jury to segment evidence they
have heard and apply it against one but not the other defendant.
E.g.,

Bruton

v.

United

States,

391

U.S.

123,

135

(1968)

(“Nevertheless, as was recognized in Jackson v. Denno, supra, there
are some contexts in which the risk that the jury will not, or
cannot, follow instructions is so great, and the consequences of
failure so vital to the defendant, that the practical and human
limitations of the jury system cannot be ignored.”).

- 17 -

It is not

the jury’s knowledge of the conviction which is problematic.
Rather, it is instructing the jury that the conviction conclusively
establishes the underlying conduct as to Hechavarria, while also
instructing the jury that plaintiff must independently prove the
underlying conduct for purposes of the case against Lee Memorial
without consideration of the conviction.

The Court concludes that

this asks too much of a jury.
Plaintiff, while opposing any severance of the case for
separate trials, requested to withdraw the collateral estoppel
motion if the Court were inclined to have separate trials.

This

will relieve the victim of the added expense, time and mental
anguish of two trials.

The Court agrees with plaintiff’s request.

Accordingly, it is now
ORDERED:
Plaintiff’s

Motion

for

Summary

Judgment

Related

to

the

Criminal Conviction of Defendant, Jeovanni Hechavarria (Doc. #225)
is WITHDRAWN by plaintiff.
DONE AND ORDERED at Fort Myers, Florida, this
of March, 2020.

Copies: Counsel of record

- 18 -

30th

day