text:
    KVAERNER CONSTRUCTION, INC., etc., Appellant, v. AMERICAN SAFETY CASUALTY INSURANCE COMPANY, Appellee.
    No. 5D04-74.
    District Court of Appeal of Florida, Fifth District.
    Nov. 2, 2004.

      Zala L. Forizs, A. Anderson B. Dogali, and Timothy D. Woodward, of Forizs & Dogali, P.L., Tampa, for Appellant.
    DeWitte Thompson of Thompson & Sla-gle, P.C., Duluth, GA, for Appellee.
   PER CURIAM.

AFFIRMED. See Dept. of Transportation v. Knowles, 402 So.2d 1155 (Fla.1981); City of Sanford v. McClelland, 121 Fla. 253, 163 So. 513 (1935).

SAWAYA, C.J., SHARP, W., and PETERSON, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Rita A. ECKERT, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D04-432.
    District Court of Appeal of Florida, Fifth District.
    Nov. 2, 2004.
    Rita A. Eckert, Edgewater, Pro Se.
    John D. Maher, Deputy General Counsel, Unemployment Appeals Commission, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

ORFINGER, MONACO and TORPY, JJ., concur.


text:
    James HARRIS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D04-473.
    District Court of Appeal of Florida, Fifth District.
    Nov. 2, 2004.
    James B. Gibson, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

SHARP, W., GRIFFIN and PLEUS, JJ., concur.


text:
    Lewis S. CLINTON, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D04-691.
    District Court of Appeal of Florida, Fifth District.
    Nov. 2, 2004.
    Lewis S. Clinton, Ocklawaha, Pro Se.
    Louis A. Gutiererez, Senior Attorney, Unemployment Appeals Commission, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See § 443.151(6)(b), Fla. Stat. (2003).

SHARP, W., MONACO and TORPY, JJ., concur.


text:
    Robert B. COKER, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-713.
    District Court of Appeal of Florida, Fifth District.
    Nov. 2, 2004.
    James T. Miller and Thomas G. Fallís, Jacksonville, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Parker v. State, 636 So.2d 794 (Fla. 1st DCA), rev. denied, 642 So.2d 747 (Fla.1994).

PLEUS, ORFINGER and TORPY, JJ., concur.


text:
    Timothy A. SHORT, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-809.
    District Court of Appeal of Florida, Fifth District.
    Nov. 2, 2004.
    James B. Gibson, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

SHARP, W., THOMPSON and PALMER, JJ., concur.


text:
    Alvin Eugene JAMES, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-3025.
    District Court of Appeal of Florida, Fifth District.
    Nov. 2, 2004.
    Alvin Eugene James, Raiford, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Franklin v. State, 887 So.2d 1063, 2004 WL 2197021 (Fla. Sept. 30, 2004).

GRIFFIN, MONACO and TORPY, JJ., concur.


text:
    Eddie Kewan ROBERTS, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-3123.
    District Court of Appeal of Florida, Fifth District.
    Nov. 2, 2004.
    Eddie K. Roberts, Bristol, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Poore v. State, 531 So.2d 161 (Fla.1988).

SHARP, W., THOMPSON and PALMER, JJ., concur.


text:
    John LINSSENS, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-3340.
    District Court of Appeal of Florida, Fifth District.
    Nov. 2, 2004.

      John B. Linssens, Cross City, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Cook v. State, 885 So.2d 911 (Fla. 5th DCA 2004); Paul v. State, 830 So.2d 953 (Fla. 5th DCA 2002).

GRIFFIN, MONACO and TORPY, JJ., concur.


text:
    Carolyn MAYE, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-3342.
    District Court of Appeal of Florida, Fifth District.
    Nov. 2, 2004.
    Carolyn Maye, Ocala, Pro Se.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Franklin v. State, 887 So.2d 1063, 2004 WL 2197021 (Fla. Sept. 30, 2004).

SAWAYA, C.J., PALMER and MONACO, JJ., concur.


author: ALTENBERND, Chief Judge.

text:
    George HANKINS, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-4749.
    District Court of Appeal of Florida, Second District.
    Nov. 3, 2004.
    James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Chief Judge.

George Hankins appeals his judgment and sentence for robbery with a weapon. The trial court sentenced Mr. Hankins to thirty years’ imprisonment with dual habitual offender and prison releasee reoffender designations. He argues that the sentence imposed is illegal under Grant v. State, 770 So.2d 655 (Fla.2000). The State properly concedes this issue.

During the pendency of this appeal, Mr. Hankins filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The trial court mistakenly believed it had sentenced Mr. Hankins to life imprisonment pursuant to his habitual offender status with a thirty-year minimum mandatory prison releas-ee reoffender designation. Accordingly, the trial court denied the motion to correct sentence.

Under the holding in Grant, Mr. Han-tóns can receive both enhancements to his sentence so long as the habitual offender designation is longer than, not equal to or shorter than, the term required as a prison releasee reoffender. Because the habitual offender designation did not exceed the prison releasee reoffender designation, the habitual offender designation must be stricken on remand. The judgment and sentence is otherwise affirmed.

Affirmed in part, reversed in part, and remanded.

CASANUEVA, J., and THREADGILL, EDWARD F., Senior Judge, Concur.


text:
    Roberto CLAVIJO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-2557.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 2004.
    Rehearing Denied Nov. 24, 2004.
    Roberto Clavijo, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GREEN, FLETCHER, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Hill v. State, 805 So.2d 61 (Fla. 3d DCA), rev. dismissed, 817 So. 847 (Fla.2002).


author: THOMPSON, J.

text:
    Edward W. MASLOW, Appellant, v. Julianne M. EDWARDS, Appellee.
    No. 5D03-1737.
    District Court of Appeal of Florida, Fifth District.
    Nov. 5, 2004.

      Albert S. Lagano of Albert S. Lagano, P.A., Melbourne, for Appellant.
    No Appearance for Appellee.
   THOMPSON, J.

Edward W. Maslow (“father”) appeals a final order establishing paternity, parental responsibility, and child support.

In this case, there is no transcript of the proceedings. The appellant bears the burden of demonstrating error, and in the absence of an adequate record on appeal, a judgment that is not fundamentally erroneous must be affirmed. Bryant v. Bryant, 882 So.2d 1066 (Fla. 5th DCA 2004). Without a transcript of the proceedings below, review is limited to errors of law that are apparent on the face of the record. Fugina v. Fugina, 874 So.2d 1268 (Fla. 5th DCA 2004).

We find that only one of Maslow’s arguments has merit: that the trial court erred in awarding sole parental responsibility of the minor child to the mother. Section 61.13(2)(b)2, Florida Statutes, provides:

The court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child.

Trial courts are required to make a specific finding of detriment to the child before awarding sole parental responsibility. Grimaldi v. Grimaldi, 721 So.2d 820 (Fla. 4th DCA 1998). This requirement applies in paternity actions. See, e.g., Doyle v. Owens, 881 So.2d 717 (Fla. 1st DCA 2004); Moore v. Trevino, 612 So.2d 604 (Fla. 4th DCA 1992). Additionally, utilizing the best interest of the child standard does not obviate the necessity of a specific finding that shared parental responsibility would be detrimental to the child before awarding sole parental responsibility to a parent. Hicks v. Hicks, 511 So.2d 628 (Fla. 2d DCA 1987); Nichols v. Nichols, 432 So.2d 648 (Fla. 1st DCA 1983).

In the instant case, the trial court found that the father had failed to make efforts to visit the child since November 1999, and in ordering supervised visitation, it required that the father abstain from illegal drugs and alcohol within 12 hours of visitation. Although the trial court stated that for the reasons provided, it was in the best interest of the child for the mother to have primary residential custody, it never made the specific finding that shared parental responsibility would be detrimental to the child. See Grimaldi 721 So.2d at 821-822 (holding that findings that the former wife, due to an illness, was not capable of exercising parental responsibility in any meaningful way and that sole parental responsibility was in the child’s best interests, were not equivalent to a finding that shared parental responsibility would be detrimental to the child).

Accordingly, we reverse the portion of the order awarding the mother sole parental responsibility and remand so that the trial court may make a finding regarding whether shared parental responsibility is detrimental to the child. On remand the trial court may, in its discretion, take additional evidence or rule on the record presently available.

AFFIRMED in part; REVERSED in part; REMANDED.

GRIFFIN and PLEUS, JJ., concur.


text:
    Debra AMOS, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-5285.
    District Court of Appeal of Florida, Second District.
    Nov. 5, 2004.
    James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Deborah Fraim Hogge, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed without prejudice to any right Debra Amos may have to seek appropriate postconviction relief.

ALTENBERND, C.J., and SILBERMAN and VILLANTI, JJ., concur.


text:
    Edith TIJERO, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2997.
    District Court of Appeal of Florida, Fifth District.
    Nov. 9, 2004.
    Victor T. Gutierrez, Miami, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Hinds v. State, 726 So.2d 812 (Fla. 5th DCA 1999).

SAWAYA, C.J., MONACO and TORPY, JJ., concur.


text:
    Michael GADSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1225.
    District Court of Appeal of Florida, Fifth District.
    Nov. 9, 2004.
    James B. Gibson, Public Defender, and Jane C. Almy-Loewinger, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Aragon v. State, 853 So.2d 584 (Fla. 5th DCA 2003).

PLEUS, ORFINGER, and TORPY, JJ., concur.


text:
    Norman KENT, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-3011.
    District Court of Appeal of Florida, Fifth District.
    Nov. 9, 2004.
    Norman Kent, Sanderson, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Edwards v. State, 830 So.2d 141 (Fla. 5th DCA 2002).

SHARP, W., ORFINGER and MONACO, JJ., concur.


text:
    Kenny JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-3310.
    District Court of Appeal of Florida, Fifth District.
    Nov. 9, 2004.

      Kenny Jackson, Lowell, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. Franklin v. State, 887 So.2d 1063, 2004 WL 2197021 (Fla. Sept. 30, 2004).

SAWAYA, C.J., GRIFFIN and PALMER, JJ., concur.


text:
    STATE of Florida, Appellant, v. M.B., a child, Appellee.
    No. 4D03-2041.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna M. Hoffman, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Marcy K. Alen, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

On December 28, 2001, M.B. was taken into custody for returning to a Muvico theater after having been asked to leave the premises for causing a disturbance. On February 14, 2002, M.B. signed a general waiver of his speedy trial rights to be considered for a diversionary program. Five months later, M.B. was terminated from the program. Thereafter, on August 6, 2002, the state filed a delinquency petition charging him with trespass after warning.

After several unsuccessful service attempts, M.B. was finally served with summons on December 4, 2002 and arraigned on December 19, 2002. M.B. moved to dismiss the charges based on the expiration of the speedy trial period. At the hearing on the motion, the state presented the child’s written waiver. After hearing argument of counsel, the trial court granted the motion to dismiss. The state appealed.

We conclude that the trial court erred in granting the motion to dismiss, because the child waived his right to a speedy trial and never thereafter awakened his speedy trial rights by filing a demand under rule 8.090(g). See B.W. v. State, 855 So.2d 1266 (Fla. 4th DCA 2003)(holding that once speedy trial has been waived, the child must file a demand under rule 8.090(g) to once again awaken his speedy trial rights).

We reject M.B.’s argument that his waiver of speedy trial was a nullity because it was executed without benefit of counsel. The child was not entitled to be provided with counsel at this stage in the proceedings. See Lowe v. State, 501 So.2d 79 (Fla. 5th DCA 1987)(holding that participation in a diversion program before criminal charges are filed is not a critical step in the prosecution of a criminal case at which an accused is entitled to be provided with counsel under either the federal or state constitution).

REVERSED and REMANDED for further proceedings.

POLEN, TAYLOR and MAY, JJ., concur.


author: WARNER, J.

text:
    Kenneth JAMES, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3709.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 2004.

      Lewis A. Fishman of Lewis A. Fishman, P.A., Plantation, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. LTtalien, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant moved to withdraw his plea for the charges of kidnapping, robbery, and aggravated fleeing and eluding. He claimed both that the pleas were not supported by a sufficient basis as required by Florida Rule of Criminal Procedure 3.172(a) and that he was not represented by conflict-free counsel during the motion to withdraw. We affirm, concluding that the probable cause affidavit provided a sufficient factual basis and appellant was represented by conflict-free counsel at the second hearing on the motion to withdraw.

Appellant agreed to plead guilty to the charges against him in exchange for a sentence of eight years in prison and two years probation. A condition of the plea required appellant to proffer testimony as to his explanation of the incident and then to testify against his co-defendant.

Several months after the plea was accepted by the trial court and the proffer was made, appellant moved to withdraw his plea, claiming that he misunderstood the condition requiring him to testify against his co-defendant. During the hearing on the motion to withdraw, appellant explained what his understanding of the plea was. In doing so, he made representations regarding what his counsel told him. At that point, his counsel disagreed and asked to withdraw. The court permitted withdrawal and appointed new counsel.

New counsel filed an amended motion to withdraw, adopting the original motion in which it was alleged that appellant misunderstood the terms of the plea and adding an argument that no factual basis was stated on the record sufficient to support the plea. At the hearing, counsel did not offer any further testimony on the misunderstanding of the plea. Counsel restated the earlier claim made by prior counsel and argued the lack of factual basis. The trial court denied the motion and ultimately sentenced appellant to thirty years on the most serious charges against him.

The trial court failed to make a determination that there was a factual basis for appellant’s plea prior to accepting it, as required by Florida Rule of Criminal Procedure 3.172(a). However, Rule 3.172(i) provides that “[failure to follow any of the procedures in this rule shall not render a plea void absent a showing of prejudice.” There was no prejudice in this case because the trial court could look at the probable cause affidavit and determine there was a factual basis for the plea. See State v. Franklin, 669 So.2d 339, 340 (Fla. 4th DCA 1996). Here, the probable cause affidavit contained sufficient facts for the court to accept appellant’s plea, as it showed facts to render appellant liable for robbery and kidnapping under a principal theory. The mere fact that appellant provided a differing explanation to the detective in charge does not change this result. See Monroe v. State, 318 So.2d 571, 573 (Fla. 4th DCA 1975) (stating “plea may be accepted in spite of the defendant’s protestation of innocence or his denial of an essential element of the crime, if there is otherwise in the record matters from which the court may determine that there exists a factual basis for the plea”).

Moreover, it is the defendant’s burden to show prejudice where the trial court has failed to place the factual basis for the plea on the record. Franklin, 669 So.2d at 340; Williams v. State, 316 So.2d 267, 274-75 (Fla.1975) (“[Wjhere the record clearly reflects the voluntariness of the plea and the fact that the defendant understood the nature and consequences of his plea agreement, the failure of the trial judge to fully determine whether the defendant mistakenly entered a plea to the wrong offense is no ground to vacate the plea absent a showing of prejudice or manifest injustice.”). Appellant has not contended that he is innocent of the charges or that he pled guilty to the wrong offense. See State v. Fox, 659 So.2d 1324 (Fla. 3d DCA 1995) (finding defendant failed to demonstrate that prejudice or manifest injustice resulted from court’s failure to properly determine a factual basis for the plea when defendant did not contend that he was innocent of the charged crime or that he pled guilty to the wrong offense). No prejudice has been shown to have resulted from the court's acceptance of the plea without first determining there was a factual basis for it.

Appellant also claims that he was not afforded conflict-free counsel regarding his claim that the court should have allowed the withdrawal of the plea based upon his misunderstanding. The record belies this assertion. The hearing on the original motion was suspended when his counsel disagreed with some of appellant’s representations regarding the plea negotiations. Counsel was permitted to withdraw, and the court appointed substitute, conflict-free counsel. At the second hearing on the motion, the second attorney adopted the prior motion and argued it very briefly. He did not offer any further evidence or testimony. However, the court afforded appellant the opportunity to raise anything he wished.

If appellant believes that he did not receive effective assistance of counsel, then he can raise it in a motion for postconviction relief. He has not shown that the court failed to afford him conflict-free counsel.

Affirmed.

SHAHOOD and MAY, JJ., concur.


text:
    AVEMCO INSURANCE COMPANY, Appellant, v. Michael TOBIN, Esquire, Appellee.
    No. 4D03-4024.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 2004.

      Cecile S. Hatfield of The Law Offices of Cecile Hatfield, Miami, for appellant.
    Michael M. Tobin of Michael M. Tobin, P.A., Coral Gables, pro se.
   WARNER, J.

This is possibly the end of a long succession of appeals, spanning fourteen years, regarding an insurance claim and the trial court’s award of attorney’s fees pursuant to section 57.105, Florida Statutes (1997). In this appeal, Avemco challenges the trial court’s failure to award the full amount of its attorney’s fees against the client, Tobin, after it determined that this court’s remand instructions in Maloney v. Avemco Insurance Company did not provide it the authority to do so. We reverse, concluding that the trial court had jurisdiction and should have awarded the fees against To-bin after it found that Tobin’s attorney was not liable for the fees.

The detailed facts of this case are set forth in Avemco Insurance Company v. Tobin, 711 So.2d 128 (Fla. 4th DCA 1998). After this court determined that it was appropriate to award section 57.105 attorney’s fees against Tobin and awarded attorney’s fees on appeal, the trial court entered an award of attorney’s fees equally dividing fees between Tobin and his attorney, Maloney, in accordance with the statute. This included attorney’s fees from the appeal in Tobin. Maloney appealed the order against him. Maloney v. Avemco Ins. Co., 804 So.2d 369 (Fla. 4th DCA 2001). In Maloney, we clarified our order awarding appellate fees in Tobin by saying, ‘We clarify that the award of appellate fees in that appeal are as to Tobin only, and not his attorney.” Id. at 370. We also reversed the award of trial court attorney’s fees as to Maloney. Id. at 370-71. We determined that our prior opinion in Tobin had not determined the extent of liability of Maloney, the attorney, pursuant to section 57.105. Id. at 370. We also determined that Maloney was not responsible for attorney’s fees prior to the commencement of his representation of Tobin. Id.

On remand, the trial court determined that Maloney was not responsible for any of Avemco’s trial court attorney’s fees or costs. Despite Avemco’s request to award Maloney’s share against Tobin,, the trial court rejected such an award, determining that our prior opinion in Maloney did not confer jurisdiction to award additional fees against Tobin. It also determined that because Avemco had not cross-appealed the order limiting the award of appellate fees against Tobin to fifty percent of Avemco’s fees, it had no jurisdiction to award the additional fees against him. Avemco appeals.

With respect to the ayrard of attorney’s fees on appeal, in determining an award the trial court is bound by the terms of the order of our court. It is simply carrying out the intent of the appellate court. On review of that order, while the appellate court is bound by an abuse of discretion standard in reviewing the amount of attorney’s fees awarded by the trial court, the appellate court is still construing its own order and to that extent we review the trial court’s construction of our orders on a de novo standard.

In this case, our original order in Tobin simply granted attorney’s fees on appeal without specifying against whom those fees would be 'awarded. When the trial court granted half of them against Malo-ney, who represented Tobin on appeal, Maloney appealed. We then clarified our order by informing the trial court that appellate attorney’s fees were to be awarded against Tobin only. Then we reversed the order of appellate attorney’s fees against Maloney.

Our order clarifying the award of appellate attorney’s fees simply amended the original order. Thus, the trial court had authority to enter an award consistent with our clarified order, just as it had authority to enter the original award. Cf. Matthews v. First Fed. Sav. & Loan of Englewood, 571 So.2d 2 (Fla. 2d DCA 1990). Therefore, we quash the order of the trial court to the extent that it denies the full amount of Avemco’s attorney’s fees against Tobin. The trial court is directed to enter an order awarding 100% of Avem-co’s appellate fees against Tobin, in accordance with our clarified order.

As to the trial court fees, the court determined that Maloney, Tobin’s attorney, had no liability for one-half of the fees in accordance with section 57.105. Because it considered the original award of fees against Tobin final, and Avemco did not “cross-appeal” the award, it concluded it had no jurisdiction to increase the award against Tobin. Therefore, Avemco obtained an order awarding only one-half of the trial court fees.

First, Avemco was not required to “cross-appeal” against Tobin when Malo-ney appealed the award of fees against him. It did not contest the fees awarded against Tobin, because, as the losing party, Tobin was liable for Avemco’s fees. In the trial court, Avemco argued that Maloney was responsible for a fifty percent share of the fees, and succeeded in securing that award. Avemco would have taken an inconsistent position on appeal to argue that Maloney was not liable but Tobin was.

In Maloney, we reversed the order granting fees under section 57.105, because the trial court had not made a determination of Maloney’s liability under the statute. Thus, reversal of the order placed before the court the issue of liability for the fifty percent previously awarded against the attorney, permitting Maloney to show his good faith in the litigation. In its motion filed after our reversal, Avemco requested the court to award fees against Maloney but also requested the full amount to be entered against Tobin pursuant to the statute if the court did not find Maloney liable under the statute for fifty percent of the fee. We see no jurisdictional impediment to awarding the portion of attorney’s fees originally assessed to Malo-ney against Tobin. Tobin was still a party to the proceedings, as the proceedings had not terminated. He received notice of the hearings and participated in them. Section 57.105 provides that the fee shall be awarded against the losing party and the losing party’s attorney unless it finds that the losing party’s attorney was acting in good faith based upon misrepresentations of the client. The amounts awarded are several independent judgments against the attorney and the client. See Whitehead v. Dreyer, 698 So.2d 1278 (Fla. 5th DCA 1997). Where the court finds that the attorney was acting in good faith, then the attorney’s share should be awarded against the losing party.

We reverse the final judgment of the trial court and direct the trial court to enter judgment for the entire amount of Avemco’s trial attorney’s fees against To-bin.

SHAHOOD and MAY, JJ., concur.

      . Avemco Ins. Co. v. Plane Adds, Inc., 555 So.2d 865 (Fla. 4th DCA 1990); Tobin v. Avemco Ins. Co., 626 So.2d 226 (Fla. 4th DCA 1993); Avemco Ins. Co. v. Tobin, 711 So.2d 128 (Fla. 4th DCA 1998); Maloney v. Avemco Ins. Co., 804 So.2d 369 (Fla. 4th DCA 2001).

      . Actually, the order would normally be reviewed pursuant to Florida Rule of Appellate Procedure 9.400(c). Since it was part of an appealable order entered within thirty days of its rendition, it prejudiced no one to review it in that appeal. Pellar v. Granger Asphalt Paving, Inc., 687 So.2d 282 (Fla. 1st DCA 1997).


text:
    Marlon FOSTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-468.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 2004.
    Paul J. Kneski of Law Offices of Kneski & Kneski, Miami, for appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

We affirm the denial of appellant’s motion for postconviction relief from his conviction for felony murder, in which he claimed his counsel was ineffective for failing to object to evidence introduced at trial. It is clear from the record that counsel did not object to the evidence because it supported the defense theory that the co-defendant was solely responsible for the robbery and murder. No ineffectiveness has been proven.

The facts of this case are set forth in O’Connor v. State, 835 So.2d 1226 (Fla. 4th DCA 2003). There, we reversed co-defendant O’Connor’s conviction because of the admission of evidence found in his house, including a shotgun and bullet proof vest unconnected to the crime. We held the admission of these items was error, which was not harmless beyond a reasonable doubt. 835 So.2d at 1231-32.

In his motion for postconviction relief, appellant claims that this evidence and other items seized from O’Connor’s house were also irrelevant and inadmissible in his trial. These other items included “show” money used in fake drug deals. Because the shotgun, bullet proof vest, and show money were not proven to be part of this crime, appellant says that trial counsel was ineffective for failing to object to then-admission and claims this evidence was prejudicial.

We fail to see how appellant was prejudiced by the admission of evidence found in O’Connor’s house. Trial counsel’s theory was that O’Connor alone committed the robbery and killing as an independent act, and appellant had only planned to rip off the victim by selling him fake cocaine. Trial counsel used the evidence found in O’Connor’s home to show that O’Connor was the mastermind behind the crime. On the face of the record, counsel’s use of the evidence to support his theory, rather than seeking its exclusion, constitutes a strategy decision. Although in most cases an evidentiary hearing is necessary to determine whether a failure to object was a matter of trial strategy, it is apparent on the face of this record that trial counsel did not object in order to use the evidence to place the blame on the co-defendant. No evidentiary hearing is necessary. See Harris v. State, 768 So.2d 1179, 1183 (Fla. 4th DCA 2000).

In addition, appellant has failed to show that there was a reasonable probability that the outcome would have been different without counsel’s ineffectiveness, should we consider counsel ineffective. See Strickland v. Washington, 466 U.S. 668, 692-93, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The mere fact that we reversed based upon the erroneous admission of the same evidence in O’Connor is not disposi-tive of the issue in this case, in which the theories of both the state and defense were different.

Appellant also raises a claim that trial counsel failed to preserve the argument that the evidence was insufficient, without the admission of his confession, to establish the corpus delicti of the robbery as the felony murder predicate. However, in a felony murder case, the corpus delicti is the fact of death through criminal agency, and proof of the underlying felony is not required. McArthur v. State, 793 So.2d 1190, 1194 (Fla. 5th DCA 2001).

Affirmed.

GROSS and HAZOURI, JJ., concur.


author: WELLS, Judge.

text:
    MIAMI-DADE COUNTY, Appellant, v. Nestor FONKEN, Appellee.
    No. 3D03-2136.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 2004.
    Robert A. Ginsburg, Miami-Dade County Attorney, and Douglas W. Rice, Assistant County Attorney, for appellant.
    Richard E. Zaldivar; Jay M. Levy, for appellee.
    Before SCHWARTZ, C.J., and LEVY, and WELLS, JJ.
   WELLS, Judge.

Miami-Dade County appeals from a circuit court order granting a rule nisi. That order enforces an order from a judge of compensation claims approving a mediation agreement for an independent medical examination (IME) for Appellee, Nelson Fonken. We reverse.

As we confirmed in De La Pena v. Sunshine Bouquet Co., 870 So.2d 880, 881 (Fla. 3d DCA 2004), an order from a judge of compensation claims granting an IME is not a final compensation order that must be enforced by a circuit court:

The circuit court has jurisdiction to enforce a final compensation order of a judge of compensation claims. § 440.24(1), Fla. Stat. (1998); North Shore Med. Ctr. v. Capua, 634 So.2d 1141 (Fla. 3d DCA 1994). However, interlocutory orders, such as the one at issue here, are matters which properly belong before the judge of compensation claims who has the power to enforce his or her own interlocutory orders. § 440.33, Fla. Stat. (1998).

See North Shore Med. Ctr. v. Capua, 634 So.2d 1141, 1143 (Fla. 3d DCA 1994) (finding that where underlying workers’ compensation case was still pending before judge of compensation claims, the circuit court had no jurisdiction to enforce an order that did not award specific compensation but merely approved a stipulation between parties in which parties agreed to attempt to resolve all pending issues and retained jurisdiction in the event parties were unable to do so).

For purposes of enforcement, we see no distinction between an order of a judge of compensation claims granting an IME, which may be enforced by the compensation claims judge, and an order of a compensation claims judge approving a mediation agreement granting an IME. Neither is an order that must be enforced by a circuit court.

The order granting Fonken’s petition for rule nisi is, therefore, reversed.


text:
    Shauna CROES, Appellant, v. UNIVERSITY COMMUNITY HOSPITAL and Sentry Insurance Company, Appellees.
    No. 1D04-3116.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2004.
    Mark L. Zientz and Andrea Cox of the Law Offices of Mark L. Zientz, P.A., Miami, for appellant.
    Steven Hovsepian and Katherine Stone of Barbas, Koenig, Nunez, Sanders & Butler, Tampa, for appellees.
   PER CURIAM.

Shauna Croes seeks review of an order of the Judge of Compensation Claims dismissing her pending petitions for benefits without prejudice. She initially invoked this court’s jurisdiction by filing a timely petition for writ of certiorari, but on the authority of Martinez v. Collier County Public Schools, 804 So.2d 559 (Fla. 1st DCA 2002), this proceeding was converted to an appeal of a final order. Having reconsidered that action in light of the matters alleged in appellees’ motion to dismiss the appeal, we now conclude that the JCC’s order is nonfinal and nonappealable.

In Martinez, we addressed an order that dismissed a claim without prejudice, but it was uncontested that the claim would be time-barred if refiled. In that situation, we held that the JCC’s order was final and appealable. Here, however, the parties do not agree that a refiled petition would be barred by the statute of limitations, and as appellees point out in their motion to dismiss, Croes has in fact refiled her claim. By operation of rule 60Q-6.105(2), Florida Administrative Code, the refiled petition is docketed under the existing case number in which the order being appealed herein was rendered, and given the pendency of the refiled petition and the fact the viability of any statute of limitations defense remains to be determined in further proceedings before the JCC, it is apparent that the order at issue here does not mark an end to judicial labor in this matter.

On the basis of the foregoing, we conclude that the JCC’s order in this case is nonfinal and nonappealable. We further conclude that because appellant will have an adequate remedy by appeal of any adverse final order of the JCC, the exercise of our certiorari jurisdiction is unwarranted.

APPEAL DISMISSED.

BOOTH, BARFIELD and ALLEN, JJ., concur.

      . Rule 60Q-6.105(2) provides that when a claimant and date of accident are the same as in an existing case, any subsequent petition or claim relating to that claimant and date of accident shall be filed in the existing case.

      . We note that as an alternative to refiling her claim, appellant could have requested the entry of a final order of dismissal with prejudice, which could then be appealed. See Augustin v. Blount, Inc., 573 So.2d 104 (Fla. 1st DCA 1991).


text:
    Ted Darnell HARVIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-345.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2004.

      Appellant pro se.
    Charlie Crist, Attorney General; Elizabeth F. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of the trial court’s denial of his motion requesting postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. He raised seven claims, four of which were summarily denied, and the remaining three of which were denied following a hearing. We affirm without discussion as to all but two of the claims which were summarily denied. As to those two claims, we are constrained to reverse.

In his third claim, appellant alleged that trial counsel had been ineffective because he failed to request either a curative instruction or a mistrial after the trial court sustained his objection to a question posed by the prosecutor to the state’s fingerprint expert. The question, to which the witness responded in the affirmative, asked whether anyone had reviewed and verified his work. As such, it was improper. See, e.g., Schwarz v. State, 695 So.2d 452, 455 (Fla. 4th DCA 1997) (holding that experts may not bolster their testimony by testifying that other experts have agreed with their opinion). Appellant’s claim was legally sufficient, and the trial court’s order (together with attachments) does not conclusively demonstrate that appellant is not entitled to relief. Accordingly, we must reverse the summary denial of this claim. See, e.g., Stites v. State, 841 So.2d 681 (Fla. 5th DCA 2003) (reversing a summary denial of a rule 3.850 claim alleging that trial counsel was ineffective because he failed to request a curative instruction or a mistrial, and remanding for an eviden-tiary hearing).

In his fifth claim, appellant alleged that trial counsel had been ineffective because he failed to move for a mistrial or suppression of the victim’s in-court identification made after the prosecutor pointed to appellant during' questioning and asked, “Were you able, Mr. Ford, to definitively say that a photo of that man was not included in the photospread?” We conclude that this claim was also legally sufficient, and that the trial court’s order (together with attachments) does not conclusively demonstrate that appellant is not entitled to relief. Accordingly, we must reverse the summary denial of this claim as well. See, e.g., Haynes v. State, 729 So.2d 498, 501 (Fla. 1st DCA 1999) (reversing a summary denial of a rule 3.850 claim alleging that trial counsel was ineffective because he did not move to suppress, or otherwise object to, an allegedly tainted in-court identification of the defendant, and remanding for an evi-dentiary hearing).

We reverse the summary denial of appellant’s third and fifth claims. On remand, should the trial court again conclude that those claims are conclusively refuted by the record, it shall attach to its order denying relief the portions of the record that conclusively support that conclusion. Otherwise, it shall hold an evidentiary hearing as to those claims. In all other respects, the trial court’s order denying relief is affirmed.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.

KAHN, WEBSTER and POLSTON, JJ., concur.


text:
    Kevin COLEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3718.
    District Court of Appeal of Florida, Fifth District.
    Nov. 16, 2004.
    James B. Gibson, Public Defender, and Jane C. Almy-Loewinger, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Christ, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

See Kerlin v. State, 352 So.2d 45, 52 (Fla.1977); Andrade v. State, 773 So.2d 1238 (Fla. 3d DCA 2000).

AFFIRMED.

SHARP, W., PALMER and TORPY, JJ., Concur.


text:
    Steven Michael Joey MOSTERT, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-841.
    District Court of Appeal of Florida, Fifth District.
    Nov. 16, 2004.
    James B. Gibson, Public Defender, and A.S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

SHARP, W., PLEUS and ORFINGER, JJ., concur.


text:
    Varian MITCHELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1278.
    District Court of Appeal of Florida, Fifth District.
    Nov. 16, 2004.

      James B. Gibson, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

SAWAYA, C.J., SHARP, W., and PLEUS, JJ., concur.


text:
    Christopher M. COWART, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1328.
    District Court of Appeal of Florida, Fifth District.
    Nov. 16, 2004.
    James B. Gibson, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

SHARP, W., PETERSON and PLEUS, JJ., concur.


text:
    James Alan HEAD, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1473.
    District Court of Appeal of Florida, Fifth District.
    Nov. 16, 2004.
    James Alan Head, Crawfordville, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. Proc. 9.315(a).

SAWAYA, C.J., PETERSON and MONACO, JJ., concur.


text:
    Christopher LONDON, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1651.
    District Court of Appeal of Florida, Fifth District.
    Nov. 16, 2004.
    James B. Gibson, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

SHARP, W, PLEUS and TORPY, JJ., concur.


text:
    William GATES, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D04-1738.
    District Court of Appeal of Florida, Fifth District.
    Nov. 16, 2004.
    William Gates, Orlando, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. Proc. 9.315(a).

PLEUS, ORFINGER and TORPY, JJ., concur.


text:
    Hoyt B. CRANE, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-2056.
    District Court of Appeal of Florida, Fifth District.
    Nov. 16, 2004.
    Hoyt B. Crane, Florida City, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca R. Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Roesch v. State, 633 So.2d 1 (Fla.1993).

SAWAYA, C.J, MONACO and TORPY, JJ., concur.


text:
    Timothy L. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-3531.
    District Court of Appeal of Florida, Fifth District.
    Nov. 16, 2004.
    Timothy L. Johnson, Miami, Pro Se.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Franklin v. State, 887 So.2d 1063, 2004 WL 2197021 (Fla. Sept. 30, 2004).

SHARP, W., PETERSON and MONACO, JJ., concur.


text:
    Derrell Ray SHIRLEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1148.
    District Court of Appeal of Florida, Fifth District.
    Nov. 16, 2004.
    James B. Gibson, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Lynch v. State, 293 So.2d 44 (Fla.1974).

SHARP, W., PETERSON and MONACO, JJ., concur.


author: GROSS, J.

text:
    J.J., The Father, M.P., The Mother, and M.H., Guardian Ad Litem, Appellants, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Nos. 4D04-762, 4D04-822, 4D04-906.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 2004.

      Judith B. Migdal-Mack of Migdal & Migdal, P.A., Boynton Beach, for appellant J.J., The Father.
    Gary L. Pickett, West Palm Beach, for appellant M.P., The Mother.
    Timothy M. Beasley, West Palm Beach, for appellant M.H., Guardian Ad Litem.
    Jeffrey Dana Gillen, West Palm Beach, for appellee.
   GROSS, J.

After a three and a half day trial on a petition for termination of parental rights of the mother, M.P., and the father, J.J., the trial court entered an order which did not terminate their parental rights, readju-dicate the children dependent, nor dismiss the petition.

Instead, the trial court authorized the Department of Children and Families (Department) to “re-notice” the matter for further proceedings. We reverse the order and remand for the court to fashion an order that complies with section 39.811(1), Florida Statutes (2003).

In its order, the court determined that the Department had proved by clear and convincing evidence that the parents “have not and are unable to substantially comply with the case plans,” and that “there are no other or further services that the state can provide the parents to successfully reunite them safely with their children.”

However, the trial court indicated that the Department “has not proven by clear and convincing evidence (and in some instances by any evidence at all): 1) that termination of the parental rights is the least restrictive resolution; 2) most of the statutory elements that must be considered by the court in resolving manifest best interest of the children; and 3) any of the allegations of [spousal] domestic violence and child abuse.”

The trial court denied the parents’ motion to dismiss the petition or have the children again declared dependent with a new case plan put into effect. However, the trial court deemed the parents’ motion to be “appropriate” based on “the state’s failure to prove its case.”

The trial court ordered the state to re-notice the matter for trial and “there at present such evidence as it has that addresses each and every allegation in the [petition] together with such evidence it has as to each and every factor specifically enumerated in the Manifest Best Interest Statute, FS 39.810, together with such evidence as it may have relating to the issue of least restrictive disposition.”

Finally, the court determined that, “to the extent that FS 39.811 may be read to limit the court’s options when the state fails to prove its case thereby precluding the court from ordering the state to proceed as indicated above, the court hereby declares that portion of FS 39.811 unconstitutional as an improper limit on the powers of the court to fashion a proper remedy for the children.”

The mother, father, and guardian ad litem (GAL) have all appealed the final order.

The parents first contend that the trial court erred in determining that the Department had proven a ground for termination by clear and convincing evidence, claiming they substantially completed their case plan tasks.

“There is a two step process inherent in the statutory scheme for termination of parental rights, pursuant to chapter 39. First, the trial court must find by clear and convincing evidence that one of the grounds set forth in section 39.806, Florida Statutes has been established. Second, the trial court shall consider the manifest best interests of the child by evaluation of all relevant factors, including those set out in section 39.810, Florida Statutes.” Rathburn v. Dep’t of Children & Families, 826 So.2d 521, 523 (Fla. 4th DCA 2002); accord C.M. v. Dep’t of Children & Family Servs., 854 So.2d 777, 779-80 (Fla. 4th DCA 2003).

The record reflects that the Department proved by clear and convincing evidence that there was a valid statutory ground for terminating parental rights, pursuant to section 39.806(l)(e), as the parents failed to substantially comply with their case plans for a period longer than twelve months.

The father contends that the Department “through their own witnesses” proved that the father substantially complied with both his case plan and settlement agreement. The mother likewise, without any explanation, contends that she “completed all tasks of her case.”

However, although the parents completed many of their tasks, such completion does not equate to substantial compliance. Section 39.01(68) states that, “ ‘[substantial compliance’ means that the circumstances which caused the creation of the case plan have been significantly remedied to the extent that the well-being and safety of the child will not be endangered upon the child’s remaining with or being returned to the child’s parent.” See also § 39.522(2).

While the trial court’s conclusion that the parents did not substantially comply with their case plans is supported by substantial competent evidence, the Department failed to offer such evidence that termination of parental rights was in the manifest best interests of the children., We agree with the parents that the trial court abused its discretion in affording the Department a second opportunity to present evidence not submitted during the three and a half day trial.

Case law has established that “[f]inding that termination is in the manifest best interest of the child is an essential predicate for the termination of parental rights.” J.T. v. Dep’t of Children & Family Servs., 819 So.2d 270, 273 (Fla. 2d DCA 2002); see also V.W. v. Dep’t of Children & Family Servs., 863 So.2d 480, 482-83 (Fla. 2d DCA 2004); Dep’t of Children & Families v. F.L., 880 So.2d 602, 607 n. 5 (Fla.2004) (“To terminate parental rights, DCF must also prove by clear and convincing evidence that termination is in the manifest best interest of the child.”). Additionally, the trial court must determine that termination “ ‘is the least restrictive means of protecting the child from serious harm.’ ” F.L., 880 So.2d at 608 (quoting Padgett v. Dep’t of Health & Rehab. Servs., 577 So.2d 565, 571 (Fla.1991)); accord C.B. v. Dep’t of Children & Families, 874 So.2d 1246, 1250 (Fla. 4th DCA 2004); V.W., 863 So.2d at 483.

With the Department failing to prove a necessary aspect of its termination case, the critical question remains as to the remedy.

Section 39.811(1) states that, “if the court finds that the grounds for termination of parental rights have not been established by clear and convincing evidence,” the court has the following options:

(a) If the grounds for dependency have been established, adjudicate or readjudi-cate the child dependent and:
1. Enter an order placing or continuing the child in out-of-home care under a case plan; or
2. Enter an order returning the child to the parent or parents....
(b) If grounds for dependency have not been established, dismiss the petition.

Likewise, Florida Rule of Juvenile Procedure 8.525(f)(3) indicates that, “[i]f the court finds after all of the evidence has been presented that the allegations in the petition do not establish the grounds for dependency or termination of parental rights, it shall enter an order dismissing the petition.” Alternatively, Rule 8.525(f)(2) provides that if the evidence presented does not show a ground for termination of parental rights by clear and convincing evidence, the trial court may adjudicate or readjudicate the children dependent, if the grounds for dependency have been established by a preponderance of the evidence.

No statute or rule permitted the trial court to give the Department a “do-over” after a three and a half-day trial. This is not a case where the Department sought a continuance of the final hearing to secure additional evidence.

Neither the Department nor the GAL support the trial court’s ruling that section 39.811 is unconstitutional because it acts as an “improper limit on the powers of the court to fashion a proper remedy for the children.” We are not sure what constitutional provision and what constitutional analysis the trial court applied in declaring the statute unconstitutional. There is no constitutional infirmity in a statute that provides the Department with the full and fair opportunity to prove its case, and then requires a trial court to either terminate, declare the child dependent, return the child to the parents with the opportunity to retain jurisdiction or end the Department’s jurisdiction over the parent-child relationship.

We reverse and remand to the trial court to fashion an order that complies with section 39.811.

STEVENSON and HAZOURI, JJ., concur.

      . The Department concedes that it "failed to present much evidence to the court to enable it to consider the facts relevant to a determination of the manifest best interests of the children pursuant to F.S. 39.810[and] it is clear that the Court was not then in a position to terminate the parents' rights....”

      . We reject the guardian ad litem's invitation for us to terminate parental rights in spite of the Department’s failures of proof, which it concedes in its brief.

      .Judge Sawaya has suggested that the less restrictiveness requirement is "obsolete, unnecessary, and meaningless” because of the consideration under section 39.810. See T.P. v. Dep’t of Children & Families, 860 So.2d 1084, 1094 (Fla. 5th DCA 2003) (Sawaya, C.J., specially concurring), reversed on other grounds by F.L., 880 So.2d at 614-15. We do not reach that question in this case.


text:
    ESTATE OF Roger P. MASSAD, deceased, by and through its personal representative, Frances WILSON, Appellant, v. Dee Janet GRANZOW and Richard B. LaFrance, Appellees.
    No. 4D03-4569.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 2004.

      Kenneth G. Spillias and Walter E. Forehand of Lewis, Longman & Walker, P.A., West Palm Beach, for appellant.
    Kara Berard Rockenbach of Gaunt, Pratt, Radford & Methe, P.A., West Palm Beach, for appellee Dee Janet Granzow.
   GROSS, J.

The Estate of Roger P. Massad appeals from a final order dismissing its amended complaint for failure to state a cause of action against appellee Dee Janet Gran-zow. See Fla. R. Civ. P. 1.140(b)(6). We reverse, finding that the amended complaint stated a cause of action under section 324 of the Restatement (Second) of Torts (1965).

Because this appeal concerns the propriety of a dismissal for failure to state a cause of action, we take the allegations in the amended complaint as true and consider them in the light most favorable to the estate; all reasonable inferences must be drawn in the estate’s favor. See Bell v. Indian River Mem’l Hosp., 778 So.2d 1030, 1032 (Fla. 4th DCA 2001); Gladstone v. Smith, 729 So.2d 1002, 1003 (Fla. 4th DCA 1999).

According to the amended complaint, Massad was a guest in Granzow’s home. Granzow knew that Massad was drunk, in part on alcoholic beverages that she had supplied. While inside the home, Massad fell and struck his head, sustaining a concussion with significant bleeding. Gran-zow undertook to provide care for Mas-sad’s injuries and impairment. Along with Richard LaFrance, Granzow gave Massad a prescription pill not prescribed for his use, which worsened his intoxication. Granzow subsequently abandoned Massad next to an unfenced pool. Massad later fell into the pool and drowned.

Although inartfully pled, the amended complaint states a cause of action under section 324 of the Restatement, which provides:

One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by
(a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor’s charge, or
(b) the actor’s discontinuing his aid or protection, if by so doing he leaves the other in a worse position than when the actor took charge of him.

In Union Park Memorial Chapel v. Hutt, 670 So.2d 64, 66-67 (Fla.1996), the supreme court characterized similar provisions in section 324A as explaining a “well accepted rule of law” in Florida.

Granzow argues that section 768.125, Florida Statutes (2003), acts as a “complete limitation on liability” in this case. Granzow further argues that, because section 768.125 renders social hosts “immune under common law and Florida law for serving alcohol to their guests,” she could not be found liable, even if the conditions contained in section 324 occurred. We reject this reading of the statute as too broad.

At common law, “one injured by an intoxicated person ha[s] no cause of action against the dispenser of the intoxicating liquor....” United Servs. Auto. Ass’n v. Butler, 359 So.2d 498, 499 (Fla. 4th DCA 1978). Despite that common law rule, however, Florida courts previously recognized a cause of action against vendors where illegal alcohol sales were involved. E.g., Davis v. Shiappacossee, 155 So.2d 365 (Fla.1963). In 1980, as alcohol vendors’ civil liability continued to increase, the legislature enacted section 768.125 to limit the expansion of vendors’ exposure. Bankston v. Brennan, 507 So.2d 1385, 1386-87 (Fla.1987); Migliore v. Crown Liquors of Broward, Inc., 448 So.2d 978, 981 (Fla.1984).

Although Florida courts continued to provide social hosts with protection from suit under common law principles during this period, the legislative history relating to section 768.125 indicates that it was “the intent of the legislature to apply the provisions of [this] bill to private party hosts as well as licensees under Chapter 562, Florida Statutes.” S. CS/SB 233 by Commerce Comm, with Senator Winn, Senate Staff Analysis and Economic Impact Statement (June 11,1980).

Thus, social hosts are protected from liability for dispensing or furnishing alcohol both by the common law and by section 768.125.

The supreme court has viewed section 768.125 as “a limitation on the liability of vendors of intoxicating beverages,” Migliore, 448 So.2d at 980 (emphasis added), which “codified the original common law rule absolving vendors from liability for sales but provided exceptions for sales to those who were not of a lawful drinking age or to a person habitually addicted to alcoholic beverage use.” Ellis v. N.G.N. of Tampa, Inc., 586 So.2d 1042, 1046 (Fla.1991) (emphasis added).

When the supreme court has written on the relationship between section 768.125 and social hosts, it has indicated that the statute did not create any new causes of action against social hosts and reaffirmed them pre-existing common law protection. Dowell v. Gracewood Fruit Co., 559 So.2d 217 (Fla.1990) (social host who served alcohol to known alcoholic could not be held liable for injuries caused by his intoxication); Bankston, 507 So.2d at 1386-87 (section 768.125 did not create cause of action against social host for serving alcoholic beverages to minor).

To reverse this case does not run afoul of the statutory or common law rules shielding social hosts from liability. A cause of action under section 324 is not based upon the circumstances under which Granzow dispensed or furnished alcoholic beverages to Massad. Rather, liability is based upon conduct that occurred at a point in time when Granzow “took charge” of Massad, when he was helpless and unable to adequately aid or protect himself.

This court has previously distinguished a cause of action arising out of the serving of alcoholic drinks from a cause of action arising out of a relationship that existed apart from the alcohol dispenser-dispensee relationship.

In Carroll Air Systems, Inc. v. Greenbaum, 629 So.2d 914 (Fla. 4th DCA 1993), the defendant employer furnished drinks to one of its employees who later caused a car crash killing the decedent. Id. at 915-16. Plaintiff brought suit for wrongful death and the defendant argued (among other things) that it was immune from liability under section 768.125. Id. at 915. In finding the defendant liable, this court held:

In the instant case the “fault” of the employer was not in the furnishing of the drinks but in its knowledge, actual or constructive, that [the employee] was intoxicated and was not in a condition to drive. [The employer] was not merely a social host at the meeting in which [the employee] imbibed excessively. Unlike the social host, an employer has a far greater ability to control the actions of its employees.

Id. at 917; see also Estate of Starling v. Fisherman’s Pier, Inc., 401 So.2d 1136, 1138 (Fla. 4th DCA 1981) (holding an operator of commercial fishing pier could not “ignore and step over an unconscious customer lying in a dangerous place upon his premises,” even though the drunk customer “allowed himself to be exposed to that danger in the first place”); Bardy v. Walt Disney World Co., 643 So.2d 46 (Fla. 5th DCA 1994).

We reverse and remand the case to the circuit court to proceed on a cause of action based upon section 324 of the Restatement. The amended complaint did not state a cause of action under any of the other theories here asserted by the estate.

TAYLOR and HAZOURI, JJ„ concur.

      . Section 465.015(2), Florida Statutes (2003), provides, in pertinent part, ''[i]t is unlawful for any person ... (c) [t]o sell or dispense drugs as defined in s. 465.003(8) without first being furnished with a prescription.” This statutory provision has been interpreted to apply to those who are not pharmacists that have offered prescription drugs to another. See Block v. State, 437 So.2d 792, 793 (Fla. 2d DCA 1983). A violation of section 465.015(2) is evidence that a defendant failed to exercise "reasonable care” under section 324 of the Restatement.

      . This case does not involve the exception to the common law rule where liability of a social host is based on a violation of the "open house party” statute, section 865.015, Florida Statutes (2003). See Trainor v. Estate of Hansen, 740 So.2d 1201 (Fla. 2d DCA 1999); Newsome v. Haffner, 710 So.2d 184 (Fla. 1st DCA 1998).


author:
WARNER, J.
      BRYAN, BEN L., Jr., Associate Judge,

text:
    Edward Joseph McCABE, Appellant, v. Daniel A. HANLEY, as personal representative of the Estate of F. Edward McCabe, and Donna (Toby) Keller, as co-trustee of the F. Edward McCabe Trust, Appellees.
    No. 4D03-2998.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 2004.

      J. Henry Cartwright and Terence J. Watterson of Watterson Hyland & Fleming, P.A., Palm Beach Gardens, for appellant.
    Jack J. Aiello and Michael D. Simon of Gunster, Yoakley & Stewart, P.A., West Palm Beach, for appellee Daniel A. Han-ley.
    Ronald E. Creseenzo of Boose Casey Ciklin Lubitz Martens McBane & O’Con-nell, West Palm Beach, for appellee Donna (Toby) Keller.
   WARNER, J.

Appellant, Edward McCabe, filed a will contest alleging that his father lacked the capacity to execute his will, which did not acknowledge his son. After presentation of McCabe’s case in this non-jury trial, the trial court entered an involuntary dismissal and entered judgment for the estate. In doing so, the court weighed the evidence. We reluctantly reverse on the authority of Tillman v. Baskin, 260 So.2d 509 (Fla.1972).

McCabe’s father, the decedent, was an admitted alcoholic. He moved away from his wife a week after McCabe was born in 1952. Contact between the decedent and his wife and child was sporadic during the 1960’s and 70’s, and it thereafter ceased. The decedent moved to Palm Beach and worked as an alcohol and drug abuse counselor. In 1994, the decedent approached his friend, attorney Chris Schilling, about executing a will. Schilling drafted the will at no charge and, assuming the decedent had no wife or children, included a boilerplate clause stating, “I have never been married and I have no children, living or deceased.” The will provided nothing for McCabe and left the entire estate in trust for the benefit of recovering alcoholics and drug addicts. Two codicils were subsequently executed in 1995 and 1997, incorporating the provisions of the will.

In 1996, before the second codicil was executed, McCabe located the decedent and visited him unannounced. After initially refusing to come to the door, the decedent ended up spending several days with his son and introduced him to relatives as his son. They corresponded over the next several months. The decedent planned a trip to visit McCabe but can-celled it and cut off contact. Later that year he executed the last codicil incorporating the provisions of his prior will. On many occasions following the execution of the documents, the decedent denied he had a son.

Upon the decedent’s death in 2002, McCabe filed a petition to revoke probate of the will, challenging the testamentary documents on the ground that the decedent was subject to an insane delusion involving a natural object of his bounty, i.e., his son. McCabe alleged that the decedent was physically weak and mentally tired, and he adhered to the delusion that he had no children in the face of evidence to the contrary.

The case proceeded to trial. McCabe testified as to the foregoing facts. The decedent’s niece testified that decedent knew he had a son but would never take responsibility for the family. He made a willful choice to keep the fact that he had a son a secret.

McCabe also presented an expert psychiatric witness, Dr. Norman Silversmith. Dr. Silversmith testified that, to a reasonable degree of psychiatric certainty, the decedent suffered from a long-standing fixed false belief, an insane delusion, that overrode his capacity to recognize his son.

Without detailing all of Dr. Silversmith’s opinions, many were unsubstantiated and filled with contradictions. He did not interview McCabe or the attorney who drew the will and codicils. On cross-examination, counsel severely discredited Dr. Silversmith’s opinions.

After McCabe rested, the estate moved for involuntary dismissal and to strike the testimony of Dr. Silversmith. It first argued the motion for involuntary dismissal, and, for the sake of time, the court granted an involuntary dismissal, concluding that there was no evidence other than Dr. Silversmith’s opinion that the decedent was suffering from an insane delusion at the time he executed his will and codicils. As to Dr. Silversmith’s testimony, the court noted that it would have stricken the testimony had it been requested pre-trial, because it was not predicated on adequate and complete facts and was unsupported by any reasonable interpretation of the facts. Subsequently, the court entered judgment for the estate, and McCabe appeals.

McCabe argues the lower court erred in entering an involuntary dismissal because he presented a prima facie case that the decedent suffered from an insane delusion as to the natural object of his bounty and thus lacked testamentary capacity to execute his will and codicils. “An involuntary dismissal or directed verdict is properly entered only when the evidence considered in the light most favorable to the non-moving party fails to establish a prima facie case on the non-moving party’s claim.” Hack v. Estate of Helling, 811 So.2d 822, 825 (Fla. 5th DCA 2002).

McCabe sought to show that the decedent lacked testamentary capacity because he suffered from an insane delusion. “[A] will should be held invalid for lack of testamentary capacity if it is executed as a result of an insane delusion.” In re Hodtum’s Estate, 267 So.2d 686, 688 (Fla. 2d DCA 1972) (citing In re Estate of Supplee, 247 So.2d 488 (Fla. 2d DCA 1971)). An insane delusion is a “spontaneous conception and acceptance as a fact, of that which has no real existence adhered to against all evidence and reason.” In re Estate of Edwards, 433 So.2d 1349, 1351 (Fla. 5th DCA 1983).

The only evidence in the case that supported a conclusion that the decedent suffered an insane delusion was the testimony of Dr. Silversmith. None of the other evidence rose to a level to establish a prima facie case because the decedent did not persistently deny the existence of his son. In fact, he admitted it not only to McCabe himself but to many family members.

Despite the fact that the court thought that Dr. Silversmith’s testimony was not based on adequate facts or any reasonable interpretation of the facts, the testimony was never stricken. When the court admits testimony, it must weigh the testimony and is not free to disregard it as inadmissible. See Southeastern Fire Ins. Co. v. King’s Way Mortg. Co., 481 So.2d 530, 531 (Fla. 3d DCA 1985). Therefore, Dr. Silversmith’s testimony was part of the prima facie case.

Tillman v. Baskin, 260 So.2d 509, 511-12 (Fla.1972), holds that, even in a non-jury case, a trial court cannot weigh evidence in ruling on a motion for involuntary dismissal at the close of the plaintiffs case but must deny the motion when a prima facie case is made. In Tillman, the court adopted the opinion of the Supreme Court of Alaska in Rogge v. Weaver, 368 P.2d 810, 813 (Alaska 1962). See 260 So.2d at 511. However, in Rogge the court said:

But where plaintiff has presented a pri-ma facie case based on unimpeached evidence we are of the opinion that the trial judge should not grant the motion even though he is the trier of the facts and may not himself feel at that point in the trial that the plaintiff has sustained his burden of proof.

368 P.2d at 813 (emphasis added). Tillman did not limit its holding to cases where plaintiff made a prima facie case with unimpeached evidence. Thus, Tillman is more limiting to the trial court than the Rogge rule.

In granting the involuntary dismissal, the trial court weighed the testimony of Dr. Silversmith. This violates the rule of Tillman. Had the rule as announced in Rogge applied, we could affirm, because Silversmith’s testimony was severely impeached and essentially unbelievable. Because Tillman did not except cases in which the prima facie evidence is impeached, we must reluctantly reverse. We direct that this case continue before the same trial judge, if possible, in order to avoid the time and expense of a new trial. That way, the court having heard the original trial can essentially take up where it left off. The defense will be allowed to present a case, if it chooses, and then the trial court can rule at the close of all the evidence, at which time it can weigh all of the testimony presented. This is not unfair to McCabe. If it is not possible that the same judge hear this case, then a new trial is ordered.

Reversed and remanded for further proceedings.

STONE, J., concurs.

BRYAN, BEN L., JR., Associate Judge, dissents with opinion.

BRYAN, BEN L., Jr., Associate Judge,

dissenting.

I agree that the trial court erred in granting the involuntary dismissal, as under current Florida law there was a factual issue. This error resulted because the defense attorney moved for the involuntary dismissal when there was a clear factual issue. This frequently happens. Attorneys believe they must move for directed verdicts or involuntary dismissals as a matter of course. That may have some merit in a jury trial, but only creates a problem in a nonjury trial. It is the rare case that has no factual issue. Trial courts do no service in nonjury cases by granting the motion. Attorneys do their clients no service by making the motion because in cases in which they would otherwise prevail, the case may have to be retried giving the plaintiff another bite at the apple. A possible solution in those nonjury cases in which the court knows its ruling at the conclusion of the plaintiffs case is simply to advise the attorneys that there is no need for them to present evidence as the court is prepared to rule in their favor if they rest.

In this case the trial judge recognized that she may be being led into error and said:

I am granting the motion for involuntary dismissal. Assuming I am incorrect and the appellate court, should there be review, finds that there is a prima facie case based on their review of the evidence, accepting the documents that the Respondent has introduced and the testimony of at least one witness in response to the petition, and weighing the credibility of Dr. Silversmith in particular, the Court would find for the Respondents, there being no further testimony, obviously, that the Petitioner had wished to present.

The court then goes on to totally reject the testimony of Dr. Silversmith, which is what this court finds creates the prima facie case.

The trial court then adds:

So I am going to grant the motion for involuntary dismissal. If I am legally incorrect upon appellate review, I am accepting the testimony and the evidence submitted by the Respondent, and without any further evidence, going to find in their favor.

I would affirm. The only action that failed to occur was the respondent saying, “We rest.” I would not expose the respondents to the expense and risk of a new trial because of that omission, particularly when the testimony of the only witness providing a basis for a prima facie case is not credible.

      . We also note that the Alaska position adopted by Florida is the minority view and has been followed only in Wyoming. See Matter of Marriage of Castro, 51 Or.App. 707, 626 P.2d 950 (1981).

      . The dissent’s quote from the trial judge indicates that no further testimony was expected from the appellees (respondents). However, respondents did not make any such representation and earlier in the trial indicated their intent to call some witnesses should their motion be denied.


author: MAY, J.

text:
    Carol JENKINS, Appellant, v. UBN GLOBAL TRADING CORPORATION and Smorgasbord Management Company, Jointly and Severally, Appellees.
    Nos. 4D03-2691, 4D03-4358.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 2004.

      Jordan H. Jordan of Law Office of Jordan H. Jordan, P.A., Margate, for appellant.
    Hinda Klein of Conroy, Simberg, Ganon, Krevans & Abel, P.A., Hollywood, for ap-pellees.
   MAY, J.

The plaintiff appeals a directed verdict in favor of the defendants. In a separate, consolidated appeal, plaintiffs counsel contests an order requiring him to personally pay half of the fees for a special master appointed for discovery matters. We affirm the directed verdict, but reverse the order on the special master fees.

The plaintiff argues the trial court erred in granting a motion in limine, excluding photographs of a pothole. We find no abuse of discretion in the court’s ruling on this issue. The plaintiff produced the photographs only days before the trial and after years of litigation. See Salcedo v. Asociacion Cubana, Inc., 368 So.2d 1337, 1339 (Fla. 3d DCA 1979) (“[Cjourts will not allow the practice of the ‘Catch-22’ or ‘gotcha!’ school of litigation to succeed.”)

We further find no error in the court’s entry of a directed verdict. Viewing the evidence in the “light most favorable to the non-moving party and [giving] every reasonable inference deduced from the evidence” to the non-movant, we must determine if “no view of the evidence could sustain a verdict” for the plaintiff in this case. See Tenny v. Allen, 858 So.2d 1192, 1195 (Fla. 5th DCA 2003). We agree with the trial court, the plaintiff failed to produce any evidence suggesting the defendants had either actual or constructive knowledge of the alleged pothole. See Hannewacker v. City of Jacksonville Beach, 419 So.2d 308 (Fla.1982).

The second consolidated appeal contests the trial court’s order making the plaintiffs lawyer responsible for one-half of the special master fees. The order stated: “The Court makes a finding of fact that Plaintiffs counsel, along w/ Defense counsel, requested a special master. Accordingly, Plaintiffs counsel must pay half of the fees sought by special master or $616.00 (six hundred sixteen dollars).” For the reasons that follow, this order must be reversed.

First, the only receipt in the record indicates the fee amounted to $262, not $616. Second, there is no finding that the fee was reasonable. See Novartis Pharm. Corp. v. Carnoto, 837 So.2d 1127 (Fla. 4th DCA 2003). Third, the fee is a cost to be assessed against the party, not counsel. See R. Regulating Fla. Bar 4-1.8(e). If the court intended the fee to be a sanction against the lawyer, then it was required to make specific factual findings that do not appear in the record. See N. County Co. v. Bologna, 816 So.2d 842 (Fla. 4th DCA 2002).

We therefore reverse the order assessing the special master’s fee against plaintiffs counsel and remand the case for further proceedings on this issue. In all other respects, we affirm.

WARNER and SHAHOOD, JJ„ concur.


author: BROWNING, J.

text:
    Mario ESCUTIA, Appellant, v. GREENLEAF PRODUCTS, INC., and Protegrity Services, Appellees.
    No. 1D03-2628.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2004.
    Edward F. DeVarona, Miami, for Appellant.

      Lisa E. Lazan, Vero Beach, for Appel-lees.
   BROWNING, J.

Mario Escutia, the claimant in this workers’ compensation case, appeals the decision of the Judge of Compensation Claims (JCC) to exclude the second deposition of Dr. Lichtblau. We reverse the final order and remand for further proceedings conducted in accordance with the JCC’s original ruling.

While employed by Appellee Greenleaf Products, Inc., the 28-year old claimant had a workplace accident on December 8, 2000, when, while stacking a pallet of mulch, he lifted a bag above his head and felt an immediate pain or pop in his back. The employer/carrier authorized treatment with Dr. Lichtblau, who is board-certified in physical medicine and rehabilitation. The doctor performed an independent medical evaluation on October 24, 2001, and the claimant had follow-up visits in early 2002. Dr. Lichtblau placed the claimant at maximum medical improvement, with a 6% permanent partial impairment, on March 13, 2002. On February 10, 2003, the employer/carrier sought a protective order to cancel a second deposition with Dr. Lichtblau, scheduled for February 24, 2003, on the grounds that the doctor had been deposed already on August 28, 2002; that the claimant had seen this doctor only once for a follow-up visit since the first deposition; and that the employer/carrier should not have to incur defense costs for an additional deposition absent any change since the first deposition. The JCC entered an order directing that the second deposition of Dr. Lichtblau be only “an update deposition” to “cover subjects which occurred after August 28, 2002.”

At the March 12, 2003, merits hearing, counsel for the employer/carrier objected to the admission into evidence of Dr. Lichtblau’s second deposition in its entirety because the new deposition related to visits that occurred, and information that was available, before the original deposition. Counsel for the claimant expressed confusion regarding the scope of questioning permitted under the order on motion for protective order. When the JCC advised the claimant’s attorney that the agreement had contemplated the second deposition would be only an update, counsel answered that he had understood that would allow him to ask questions that had not been previously asked.

Both of Dr. Lichtblau’s depositions were admitted into evidence. Upon admitting the second deposition, the JCC remarked:

I’m going to allow the deposition of Dr. Lichtblau in, it’s certainly within my discretion to put whatever weight on it that I feel is appropriate as well as weighing the credibility of any particular witness, including this one, and in looking at one deposition versus the next and what transpired in between.
I think, in retrospect, the order on the protective order [sic] may have been too vague. Everyone understands that an update is meaning any treatment since that point in time. I don’t recall there being any agreement between the parties as to what else could have been delved into, and I think to preclude it without my even reading it, without having the ability to weigh the credibility, I’m going to let it in, with the new reports as well, though.

In the final order, the JCC found the claimant had failed to meet his burden to show the compensability of the neck and upper-back injuries. The JCC noted that in the first deposition, Dr. Lichtblau had opined that if the claimant was having neck pain, it was not related to the industrial injury. Any of Dr. Lichtblau’s opinions to the contrary that appeared in his second deposition were rejected as falling outside the permitted scope of the JCC’s order on the employer/carrier’s motion for protective order. Specifically, the JCC wrote: “I reject any opinions of Dr. Licht-blau contained in the February 24, 2003 deposition transcript which relate to a cervical and thoracic or upper back condition, as the opinions were based upon questioning that was outside the scope of this Court’s February 12, 2003 Order.”

The standard of review of a JCC’s decision to exclude evidence is abuse of discretion. See Cedar Hammock Fire Dep’t v. Bonami, 672 So.2d 892 (Fla. 1st DCA 1996). Discovery by deposition is permitted under section 440.30, Florida Statutes (2000), and its scope is defined by that statute and by Florida Rule of Civil Procedure 1.280(b)(1). The rule allows discovery of “any matter, not privileged, that is relevant to the subject matter of the pending action ... reasonably calculated to lead to the discovery of admissible evidence.” Id. A JCC may enter a protective order limiting discovery under rule 1.280(c)(4).

The claimant argues the JCC’s exclusion of Dr. Lichtblau’s second deposition constitutes an abuse of discretion for several reasons. First, the claimant contends the second deposition cannot be said to exceed the scope of an order that is admittedly vague and undefined regarding its scope. Rather than weigh and discredit the doctor’s second deposition (which would be within the JCC’s discretionary authority), the JCC threw out the second deposition altogether. Second, the claimant asserts that the second deposition is narrow and within the scope of an “update.” Counsel for the employer/carrier admitted at the merits hearing that the JCC “ruled that the doctor could be deposed upon new records or new office visits or new information.” Counsel for the claimant did not rehash what had been asked in Dr. Licht-blau’s original deposition. According to the claimant, the doctor was apprised of new information in the form of medical records that had not been presented to him in the original deposition by the claimant’s previous attorney, and that presented an accurate description of how the industrial accident had occurred. The claimant contends that because the second deposition is within the scope of an update and presented only new, corrected information, the JCC erred in excluding it outright. Third, the claimant argues that the excluded evidence goes to the very heart of the issue of compensability of the neck and upper-back injuries. In his initial deposition, Dr. Lichtblau’s testimony was based on incomplete, inaccurate facts. The doctor was unaware that the claimant had complained of neck and upper-back pain from the onset of his treatment for the industrial accident. The doctor initially had been mistaken as to how the industrial accident occurred. In his second deposition, Dr. Lichtblau opined that the neck and upper-back conditions are related to the industrial accident. The claimant was prejudiced because he relied on the JCC’s ruling (that the second deposition was admitted into evidence) in arguing his case at trial. Counsel for the claimant contends that he would not have relied so heavily on the second deposition, and would have emphasized other evidence in the claimant’s favor, if he had known the JCC would change her mind and exclude it. The claimant notes that admission of the second deposition will not prejudice the employer/carrier. Because counsel for the employer/carrier was present at the second deposition and had the opportunity to cross-examine Dr. Lichtblau at length, no surprise would result from admitting the deposition into evidence (in accordance with the JCC’s initial oral pronouncement).

When the JCC indicated initially that Dr. Lichtblau’s second deposition would be admitted into evidence and appropriately weighed, but eventually excluded it altogether (as announced in the written final order), the claimant was trapped by this “Gotcha!” tactic and was prejudiced thereby. To maintain procedural fairness in these proceedings, we REVERSE the final order and REMAND for further proceedings conducted in accordance with the JCC’s initial oral pronouncement regarding the second deposition.

WOLF, C.J., and HAWKES, J., CONCUR.


author: SHAHOOD, J.

text:
    B.S., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1553.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 2004.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laurel R. Wiley, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, J.

In this appeal appellant, B.S., a juvenile, argues that the trial court erred in lifting a stay of appellant’s suspended commitment without requiring the state to comply with due process requirements. We agree and reverse.

Appellant entered a plea of no contest to the charge of felony battery. At the delinquency disposition hearing, the trial court adjudicated appellant delinquent and committed him to a Level 6 commitment. The court stayed the commitment and “in lieu of,” placed appellant on juvenile probation. As conditions, appellant was ordered to successfully complete 100 hours of community service and attend school everyday.

Subsequent thereto, the state orally requested that the stay be lifted in order for appellant’s commitment to be reinstated. No motion or written allegations were filed by the state. The state argued that it had no burden of proof to change appellant’s “status” within the Department of Juvenile Justice (DJJ), and thus, appellant was not entitled to written allegations or an eviden-tiary hearing. The trial court agreed that the matter was not a violation of probation, and, therefore, no written allegations were required. As such, a hearing was held which did not comport with minimal due process requirements.

At the hearing, appellant’s probation officer testified that there were a number of conditions, including the community service hours that were required in order for appellant to maintain a stayed Level 6 commitment. He testified that he arranged for appellant to register with the City of Fort Lauderdale to perform his community service hours and that he received a report that appellant had not completed his hours. The probation officer further stated that appellant was required to attend school every day and that he had numerous unexcused absences, with a one-week absence when his grandmother died. Based on these grounds, the DJJ recommended that the stay be lifted and that appellant’s commitment to a Level 6 be reinstated. No other evidence was submitted.

Defense counsel argued that a demand for discovery had been made which had not been responded to by the state and requested a continuance in order to properly prepare a defense for appellant. Further, defense counsel requested written allegations as to appellant’s violations. The state objected arguing that appellant had no right to either discovery or written allegations in order to lift a stay. The trial court denied defense counsel’s request on the grounds that this was not a violation of probation, but rather, a motion to lift a stay. Further, the court noted that it held an evidentiary hearing even though it was questionable as to whether one was even needed. The court granted the motion to lift the stay and committed appellant to a Level 6 commitment.

Appellant was entitled to the most basic of due process requirements prior to the court lifting the stay on his suspended commitment to a Level 6 commitment. This case is akin to M.T. v. State, 805 So.2d 898 (Fla. 2d DCA 2001). In that ease, following a violation of community control, the juvenile was committed to the DJJ. The trial court suspended the commitment and continued community control. Appellant then violated his community control and the court announced its intention to conduct a hearing on the violation. Defense counsel objected because an affidavit of violation of community control had not been filed and appellant had only been given notice of the hearing by way of a phone call from the state. The court overruled the objection, aqd following the hearing, found appellant guilty and revoked his community control. The trial court held that an affidavit of violation was unnecessary since appellant was on a suspended commitment, and the effect of the revocation would simply be to move him from the community control to the commitment that had been imposed previously. See id. at 899.

In reversing, the Second District held:

With regard to juveniles, any proceeding alleging a violation of probation shall be initiated by the filing of a sworn affidavit of the material facts supporting the allegations. Fla. R. Juv. P. 8.120(a)(2). Among the minimal requirements of due process in a revocation proceeding is written notice of the alleged violation. See Burton v. State, 651 So.2d 793 (Fla. 1st DCA 1995). The same due process requirements apply to a proceeding alleging a violation of community control. Further, the fact that a suspended sentence had been imposed does not obviate the due process requirements. See Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). In Gagnon, the United States Supreme Court held that a probationer under a suspended sentence was entitled to the minimum requirements of due process, which included written notice of the claimed violations, before his probation could be revoked. Here, because the appellant did not receive proper notice of the claimed violation that was to serve as the basis for the revocation of his community control, he was not afforded due process. See State v. Spratling, 336 So.2d 361 (Fla.1976). We therefore reverse and remand for further proceedings.

Id. (emphasis added). See also K.J. v. State, 867 So.2d 1190 (Fla. 4th DCA 2004)(juvenile whose commitment was stayed in lieu of community service was afforded due process, including an affidavit of violation of probation and a hearing, prior to the stay being lifted).

Because of this due process violation, we reverse and remand for further proceedings and direct that appellant’s probation be reinstated pending the state properly proceeding against appellant.

REVERSED AND REMANDED.

KLEIN and STEVENSON, JJ., concur.

      . The state offered only hearsay testimony as evidence of a violation. This was insufficient to find a violation. See E.C. v. State, 675 So.2d 192, 193 (Fla. 4th DCA 1996)(while hearsay testimony is admissible in suspended commitment revocation proceedings, proof of a violation of a condition of a juvenile’s suspended commitment must be supported by competent, non-hearsay evidence).


text:
    LATITE ROOFING AND SHEET METAL COMPANY, INC., Appellant, v. Timothy BARKER, Appellee.
    No. 4D03-3492.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 2004.

      William M. Martin and Aida M. Landa of Peterson, Bernard, Vandenberg, Zei, Geisler & Martin, Fort Lauderdale, for appellant.
    Jane Kreusler-Walsh and Rebecca Mer-cier-Vargas of Jane Kreusler-Walsh, P.A., West Palm Beach, and Malcolm A. Purow of David W. Singer & Associates, Hollywood, for appellee.
   GROSS, J.

Latite Roofing and Sheet Metal Company, Inc. appeals a non-final order determining that it was not entitled to workers’ compensation immunity as a matter of law. We reverse, because the record demonstrates that Latite Roofing was entitled to workers’ compensation immunity as a statutory employer.

In 1999, Latite Roofing entered into a contract with Stiles Construction Company to “furnish and install metal deck with lightweight insulation concrete and perform roofing work” for a project named Boulevard Square. To perform the work, Latite Roofing contracted with East Coast Metal Deck, which provided laborers for the job. East Coast obtained workers’ compensation insurance and designated Latite Roofing as the certificate holder in a certificate of insurance.

East Coast employed appellee, Timothy Barker, as a construction worker. He was injured on the job and received workers’ compensation benefits for his injuries. Barker also sued a number of defendants including Latite Roofing, which he claimed had sold East Coast a defective roof deck.

Section 440.11(1), Florida Statutes (2002), provides that an employer’s liability “prescribed in s. 440.10 shall be exclusive and in place of all other liability to the employee.... ” Section 440.10(l)(b), Florida Statutes (2002), sets out the concept of a statutory employer:

In case a contractor sublets any part or parts of his or her contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment; and the contractor shall be liable for, and shall secure, the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.

“The purpose of section 440.10 is to insure that a particular industry will be financially responsible for injuries to those employees working in it, even though the prime contractor employs an independent contractor to perform part or all of its contractual undertaking.” Roberts v. Gator Freightways, Inc., 538 So.2d 55, 60 (Fla. 1st DCA 1989).

Latite Roofing argues that this case is controlled by Dempsey v. G & E Construction Co., 556 So.2d 426 (Fla. 4th DCA 1989). In Dempsey, this court held that a subcontractor was immune from suit brought by an employee of its sub-subcontractor. Id. at 427. There, the general contractor subcontracted with G & E to perform structural work on a construction site. Id. at 426. G & E sub-subcontracted with Dixie Steel to perform a portion of the structural work. Id. Dempsey, Dixie Steel’s employee who was injured while performing the work, received workers’ compensation benefits from Dixie Steel, and filed suit against G & E for negligence. Id. The trial court granted summary judgment in favor of G & E, finding it was immune from suit. Id. This court affirmed, reasoning that “the subcontractor obtains immunity because it has the commensurate liability to secure compensation to the employees of the sub-subcontractors to whom it has sublet part of its contract work.” Id. at 427. G & E’s liability to provide benefits under section 440.10(1) therefore entitled it to immunity from Dempsey’s suit. Id.

In this case, general contractor Stiles subcontracted a portion of its work to La-tite Roofing. Latite Roofing then sub-subcontracted with East Coast, which provided laborers for the job. East Coast’s employee, Barker, was injured while performing the work and received workers’ compensation benefits from East Coast. Under these circumstances, Latite Roofing is a statutory employer that is immune from suit.

Barker argues that Latite Roofing was in breach of its contract with Stiles for failing to comply with a provision that prohibited the use of subcontractors without “written permission” from Stiles. Compliance with that term of the contract has no bearing on whether Latite Roofing was Barker’s statutory employer under section 440.10(l)(b). The focus of that section is to secure workers’ compensation coverage for employees. Latite Roofing made sure that East Coast had compensation coverage for Barker’s injury. Having performed in the way the statute sought to encourage, Latite Roofing is entitled to immunity as a statutory employer, even if it did not strictly comply with a provision of its contract with Stiles.

Finally, there is adequate evidence in the record of Latite Roofing’s subcontract with East Coast.

We reverse and remand to the circuit court for entry of an order that Latite Roofing was entitled to workers’ compensation immunity as a matter of law.

STEVENSON and HAZOURI, JJ., concur.

      . This court has jurisdiction pursuant to Florida Rules of Appellate Procedure 9.030(b)(1)(B) and 9.130(a)(3)(C)(v).