author: SHAHOOD, J.

text:
    Colleen NODURFT, Appellant, v. SERVICO CENTRE ASSOCIATES, LTD., a limited partnership, d/b/a Omni West Palm Beach Hotel, and Royce Management Corp., a Florida corporation, Appellees.
    No. 4D03-2516.
    District Court of Appeal of Florida, Fourth District.
    Sept. 22, 2004.
    Rehearing Denied Nov. 3, 2004.
    John F. Romano and Eric Romano of Romano Eriksen & Cronin, West Palm Beach, for appellant.

      Michele I. Nelson of Wicker, Smith, O’Hara, McCoy, Graham & Ford, P.A., West Palm Beach, for appellees.
   SHAHOOD, J.

The sole issue in this case is whether the trial court erred, as a matter of law, in failing to grant appellant’s request for a jury instruction on the doctrine of res ipsa loquitur. Holding that the trial court should have given such an instruction under the facts of this case, we reverse and remand for a new trial.

Appellant, Colleen Nodurft filed an action against appellees, Servico Centre Associates (Servico), Omni West Palm Beach Hotel (Omni), and Royce Management Corp. (Royce). In her complaint, she alleged that she was injured while attending a business seminar at the Omni when she entered a ladies’ restroom and a wall-mounted trash receptacle fell from the wall and struck her foot. In her complaint, appellant alleged all of the standard negligence and premises liability causes of action.

Appellant testified at trial that, during a break in the seminar, she went into the restroom. As she stood at the sinks washing her hands, she heard an unusual noise and could see something moving out of the corner of her eye. As she turned to see the source of the noise, the trash receptacle fell from the wall and landed on her foot.

Appellant’s mother and sister, who had joined her for lunch at the hotel, were in the bathroom stalls when the receptacle fell off of the wall. They heard a loud crash, exited the stalls, and saw the steel trash receptacle- on the floor. Appellant was leaning against the marble counter, with a shocked look on her face.

Three witnesses testified with regard to the condition of the trash receptacles. Lisa Sisserman (Sisserman) was a former employee of Servico who worked at the Omni as a bell captain and in housekeeping. On the day of the accident, she received a call to investigate an incident in the ladies’ restroom. When she arrived, she saw a garbage can on the floor and a lady with a bruised foot. The lady told Sisserman that the garbage can had fallen on her foot. When asked why the garbage can fell, Sisserman did not know, but suggested that it was probably because it was loose. She then stated that all of the wall-mounted trash receptacles were loose and that fact was “common knowledge.” Although Sisserman had informed a manager about the loose receptacles, she had never heard of any of the receptacles falling, and did not think that they posed a safety problem.

Tim Finnerty (Finnerty) was the owner of the janitorial service company under contract with the Omni to clean the hotel. Finnerty’s company and the hotel housekeeping crew had shared responsibilities to ensure that the bathrooms were kept clean and stocked, but Finnerty was not responsible for maintenance and repairs. With regard to the condition of the restrooms, Finnerty recalled that the wall-mounted trash receptacles did not have working key lock mechanisms to help keep the receptacles on the wall. He could not recall the condition of any specific fixture, but had a “general recollection of most fixtures being broken and needing some degree of repair.” Finnerty did not know whether a broken lock mechanism would cause the receptacle to fall; he noted that there were side walls that were snug enough to keep the can in place. He notified Omni management of the problems with the locks, but was never concerned that the situation posed a safety hazard.

Craig LeBlanc (LeBlanc) was the chief engineer for the Omni. He testified that the receptacles were very difficult to take off of the wall and there had never been an incident where one simply fell off of the wall.

Following the close of the evidence, appellant requested an instruction on res ipsa loquitur, which the court denied.

The doctrine of res “ipsa loqui-tur” was discussed in Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 358 So.2d 1339 (Fla.1978):

Res ipsa loquitur — “the thing speaks for itself’ — is a doctrine of extremely limited applicability. It provides an injured plaintiff with a common-sense inference of negligence where direct proof of negligence is wanting, provided certain elements consistent with negligent behavior are present. Essentially, the injured plaintiff must establish that the instrumentality causing his or her injury was under the exclusive control of the defendant, and that the accident is one that would not, in the ordinary course of events, have occurred without negligence on the part of the one in control. The district courts of Florida have expanded the doctrine far beyond its intended perimeters, both by liberalizing the elements requisite to its application and by allowing the development of inferences not only as to the incident itself but also as to pre-incident acts, such as manufacture or production.

Id. at 1341-42 (footnotes omitted). The supreme court explained that “the threshold inquiry is whether that which occurred is a phenomenon which does not ordinarily happen except in the absence of due care.” Id. at 1342. The plaintiff bears the burden of establishing that his or her injuries resulted from negligence and that the defendant was the “probable actor.” Id.

In this case, appellant relies on Cardina v. Kash N’ Karry Food Stores, Inc., 663 So.2d 642 (Fla. 2d DCA 1995), where an employee was injured when a case of tomatoes fell from a five-foot-high pallet and struck her on the head. The trial court denied her request for a res ipsa jury instruction. Id. at 1343. On appeal, the defendant argued that res ipsa was not applicable because the plaintiff, who had been squatting near the pallet, had “control” over it. Id. at 643. The appellate court rejected that argument and reversed the trial court, holding that the employee’s “mere proximity to the instrumentality causing the injury does not negate the exclusivity of the defendant’s control in the absence of any evidence that the plaintiffs conduct — or that of any other person— precipitated the accident.” Id. (footnote omitted).

In McDougald v. Perry, 716 So.2d 783 (Fla.1998), the Florida Supreme Court observed:

As one commentator has noted:
The plaintiff is not required to eliminate with certainty all other possible causes or inferences.... All that is required is evidence from which reasonable persons can say that on the whole it is more likely that there was negligence associated with the cause of the event than that there was not.

Id. at 785-86 (quoting W. Page Keeton, et al., Prosser and Keaton on the Law of Torts, § 39, at 248 (5th ed.1984)).

In this case, the trial court denied appellant’s request for the res ipsa instruction because of the possibility that someone in the general public could have tampered with the trash receptacle. As a result, the trial court concluded that the Omni did not have exclusive control. This interpretation of the applicability of the res ipsa loquitur doctrine is too narrow under these circumstances.

In Bonventre v. Max, 229 A.D.2d 557, 645 N.Y.S.2d 867 (1996), the facts were similar to those in this case and the court considered whether the defendant had exclusive control. The plaintiff was shopping and was injured when a mirrored wall panel with shelves fell on her as she was leaving the store. Id. at 868. In finding that the elements necessary for submitting the case to the jury on a theory of res ipsa loquitur were present, the appellate court stated:

The question here is whether the plaintiff established the second element. The plaintiff need not have shown that the defendants were the only ones in control of the panel, but she must have shown that the defendants’ control was of “sufficient exclusivity to fairly rule out the chance that any purported defect” was caused by some other agency (Raimondi v. New York Racing Assn., 213 A.D.2d 708, 709, 624 N.Y.S.2d 273). This is not a case in which the public has such unfettered access to the instrumentality of the injury that the defendants’ control was so insufficient that it did not warrant giving the case to the jury under a res ipsa loquitur charge (see, Dermatossian v. New York City Tr. Auth.,[ 67 N.Y.2d 219, 492 N.E.2d 1200, 501 N.Y.S.2d 784 (1986) ] supra). While the public might have touched the shelving in question, that does not explain the collapse of the entire panel.

Id. at 868.

We agree with the analysis in Bonven-tre, and find it to be applicable in this case. Thus, even though the instrumentality which caused appellant’s injury was in a public place and accessible to appellant and other members of the public, the Omni had “sufficient exclusivity” to rule out the chance that the trash receptacle fell from the wall as a result óf the actions of some other agency. Based on the facts in this case, the res ipsa loquitur charge was warranted.

REVERSED AND REMANDED FOR A NEW TRIAL.

KLEIN, J., and EMAS, KEVIN M„ Associate Judge, concur.


source: Caselaw Access Project

author: FULMER, Judge.

license: Public Domain

text:
    Tiffany N. SWANN, Appellant, v. Anne K. DINAN, Appellee.
    No. 2D03-5686.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 2004.

      David G. Eaton of Eaton & Powell, Tampa, for Appellant.
    Howard W. Weber of Law Offices of Howard W. Weber, Tampa, for Appellee.
   FULMER, Judge.

Tiffany Swann appeals the amended final judgment awarding Anne K. Dinan $17,483.97 in attorney’s fees and costs. Because Dinan did not file her motion for attorney’s fees and costs within thirty days of the filing of the initial final judgment, we reverse.

On December 14, 2001, the jury in the underlying automobile negligence case returned a verdict finding that Dinan’s admitted negligence was not the legal cause of loss, injury or damage to Swann. On December 20, 2001, Dinan filed a motion to tax attorney’s fees and costs pursuant to a previously served proposal for settlement. After denial of Swann’s posttrial motions but before entry of a final judgment, a notice of appeal was filed. During the pendency of the appeal, this court relinquished jurisdiction to allow Swann to obtain a final judgment. On November 25, 2002, the trial court entered a final judgment in favor of Dinan and reserved jurisdiction to consider the award of attorney’s fees and costs. On December 27, 2002, this court affirmed the trial court’s final judgment and orders denying Swann’s posttrial motions.

On October 27, 2003, the trial court conducted a hearing on Dinan’s motion for fees which had been filed on December 20, 2001. Swann objected because the motion was not filed within thirty days after the November 25, 2002, final judgment was filed as required by Florida Rule of Civil Procedure 1.525. The trial court concluded that Dinan’s motion was timely because it was filed within thirty days of the verdict.

In Gulf Landings Ass’n, Inc. v. Hershberger, 845 So.2d 344 (Fla. 2d DCA 2003), this court held that rule 1.525 was created to establish a bright-line rule governing the timeliness of posttrial motions for costs and attorney’s fees. The rule requires a party seeking fees and costs to “serve a motion within 30 days after the filing of the judgment.” Fla. R. Civ. P. 1.525. Although Swann was aware of Dinan’s claim for fees and its legal basis and, therefore, can claim no prejudice, we once again conclude that as unpleasant as it is to strictly enforce rule 1.525, it must be enforced if it is to remain the “bright-line” rule as intended by the Florida Rules of Civil Procedure Committee and adopted by the supreme court. See Amendments to Florida Rules of Civil Procedure, 773 So.2d 1098 (Fla.2000); see also Fla. R. Civ. P. 1.525 committee notes (2000 adoption). Because Dinan filed no motion for fees within thirty days after the filing of the judgment, we reverse.

Reversed.

ALTENBERND, C.J., and STRINGER, J., Concur.

      . Florida Rule of Civil Procedure 1.525 states: Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion within 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.


author: PER CURIAM.

text:
    Johnny R. STANFORD, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-2345.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 2004.
   PER CURIAM.

Affirmed. See Terry v. State, 808 So.2d 1249 (Fla.2002); McCall v. State, 862 So.2d 807 (Fla. 2d DCA 2003); O’Neal v. State, 862 So.2d 91 (Fla. 2d DCA 2003); Cook v. State, 816 So.2d 773 (Fla. 2d DCA 2002); Shaw v. State, 780 So.2d 188 (Fla. 2d DCA 2001).

As this court did in McCall, we certify direct conflict with Richardson v. State, 2003 WL 21697171, 884 So.2d 950 (Fla. 4th DCA July 23, 2003), supplemented on rehearing, 884 So.2d 950 (Fla. 4th DCA Jan.14, 2004).

Affirmed; conflict certified.

CASANUEVA, SALCINES, and SILBERMAN, JJ., concur.


author: SILBERMAN, Judge.

text:
    Michael J. KINNEY, M.D., Appellant, v. R.H. HALT ASSOCIATES, INC., a/k/a R.M. Halt Associates, Inc., d/b/a Cadstruct, Tandem Associates, Ltd. II, and South Bay Framing Systems, Inc., Appellees.
    No. 2D03-4446.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 2004.

      Douglas R. Bald and David S. Maglich of Fergeson, Skipper, Shaw, Keyser, Baron & Tirabassi, P.A., Sarasota, for Appellant.
    Bradley M. Bole of Rahdert, Steele, Bryan & Bole, P.A., St. Petersburg, for Appellee R.M. Halt Associates, Inc., a/k/a R.H. Halt Associates, Inc., d/b/a Cad-struct.
    Richard R. Garland of Dickinson & Gibbons, P.A., Sarasota, for Appellee Tandem Associates, Ltd. II.
    Thomas P. Whitaker and James L. Price of Whitaker & Hamilton, P.A., Bradenton, for Appellee South Bay Framing Systems, Inc.
   SILBERMAN, Judge.

Michael J. Kinney appeals the trial court’s final order of dismissal with prejudice. The trial court entered the dismissal order after Kinney failed to comply with earlier court orders requiring the payment of attorney’s fees and costs as a discovery sanction. We reverse and remand for further proceedings because the trial court did not make an explicit finding of Kinney’s willful noncompliance or deliberate disregard of the earlier sanction orders.

Kinney sued Tandem Associates, a building owner; Cadstruct, the general contractor that was performing remodeling work on the building; and South Bay, the drywall subcontractor (the Appellees), for damages resulting from Kinney’s slip and fall at the building. A dispute arose regarding Kinney’s failure to provide records, as part of the discovery phase of the case, that were related to his claim for lost income. Ultimately, the trial court entered an order finding that Kinney had willfully and deliberately failed to provide the requested records. In April 2003, the trial court entered sanction orders requiring Kinney to reimburse the Appellees’ trial attorneys for all fees and costs incurred during their attempts to obtain the records. The orders directed Kinney to make payment within ninety days and stated that if Kinney failed to timely make payment, his claims would be subject to dismissal upon further motion by the Ap-pellees. After Kinney failed to comply with the sanction orders, the Appellees filed their motions seeking dismissal of the lawsuit.

At a hearing on the motions to dismiss, Kinney’s counsel acknowledged several facts: (1) the sanctions had not been paid; (2) Kinney had timely appealed the sanction orders to this court; (3) this court had entered an order treating the appeal as one seeking certiorari review and directing Kinney to file a proper petition within a specified time period; and (4) Kinney’s petition had not been filed as of the time of the hearing on the motions to dismiss. Other than the filing with this court, counsel did not suggest any other reason for Kinney’s failure to pay the sanction amounts. Following the hearing, the trial court entered its final order of dismissal with prejudice, noting that the sanctions had not been paid and no “sufficient justification” had been presented for Kinney’s failure to comply with the sanction orders.

Recently, this court reiterated that when a trial court dismisses a complaint with prejudice as a sanction, “the trial court must make an explicit finding of willful noncompliance or deliberate disregard” of the court’s prior order. Matthews v. Chaffee, 849 So.2d 483, 485 (Fla. 2d DCA 2003); see also Samuels v. King Motor Co. of Ft. Lauderdale, 782 So.2d 489, 500 (Fla. 4th DCA 2001). We are mindful that the Florida Supreme Court has stated that “no ‘magic words’ are required but rather only a finding that the conduct upon which the order is based was equivalent to willfulness or deliberate disregard.” Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So.2d 1271, 1273 (Fla.1990).

Although the dismissal order states that Kinney provided “no sufficient justification” for not having paid the sanctions, that language is similar to the wording that was found to be insufficient in Matthews. There, the trial court noted that the plaintiff “failed to present sufficient evidence to justify” the delay in complying with an earlier court order. Matthews, 849 So.2d at 484. As we did in Matthews, we conclude that the trial court did not make the necessary finding in support of the dismissal order.

Accordingly, we reverse and remand for the trial court to reconsider the motion to dismiss and, if appropriate, to make an explicit determination of whether Kinney willfully failed to comply with the April 2003 sanction orders. We affirm without comment the other issues that Kinney raised in this appeal.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and STRINGER, JJ., Concur.

      . This is the second appearance of this case before this court. See Kinney v. R.H. Halt Assocs., Inc., 826 So.2d 328 (Fla. 2d DCA 2002).


author: CASANUEVA, Judge.

text:
    Phyllis ROHLWING, Susan Rohlwing Jones, Harvey Rohlwing and Cindy Rohlwing, Husband and Wife, and Richard Rohlwing, and Linda Rohlwing, Husband and Wife, Appellants, v. MYAKKA RIVER REAL PROPERTIES, INC., Principally and as Successor Trustee, Frederick Strammer, Individually and as Former Trustee, Doris Jean Strammer, Charles Koch, Betty Koch, Patricia Pratt, Susan Gale Palmer, as Executrix of Estate of Pamela Palmer, David B. Palmer, J. Michael Hartenstine, and Williams, Parker, Harrison, Dietz, & Getzen, P.A., Appellees.
    Nos. 2D03-1882, 2D03-2415.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 2004.

      Timothy W. Weber and Stephen J. Wein of Battaglia, Ross, Dicus & Wein, P.A., St. Petersburg, for Appellants.
    Bonita Kneeland and James J. Evangel-ista of Fowler White Boggs Banker, P.A., Tampa, for Appellees Williams, Parker, Harrison, Dietz & Getzen, and J. Michael Hartenstine.
   CASANUEVA, Judge.

Following the dismissal with prejudice of their fifth amended complaint, the plaintiffs (the Rohlwings) contend the dismissal is fatally defective because the trial court’s orders lack the findings required by Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993). We agree and reverse.

Procedural History

This lawsuit was first filed in January 2000, but the problems leading up to it date from the early 1990s. Appellants, the six Rohlwings, and Appellees Frederick Strammer, Doris Jean Strammer, Charles Koch, Betty Koch, Patricia Pratt, Susan Gale Palmer, and David B. Palmer (trustee and cobeneficiaries) are the current beneficiaries of a land trust formed in 1972. The Rohlwings commenced the suit because they opposed certain actions the former trustee, Frederick Strammer, and the current trustee, Myakka River Real Properties, Inc., have taken with the concurrence of the cobeneficiaries in developing the parcel of land that is the only asset of the trust.

Their initial six-count complaint consisted of twenty-one • pages and contained eighty-seven pages of exhibits. The Williams, Parker firm appeared on behalf of the trustees and moved to dismiss the complaint on various grounds. The Rohl-wings then served a nineteen-page amended complaint with, sixty pages of exhibits, causing another motion to dismiss to be filed, joined with a motion to compel separate statements of claim and a motion for more definite statement. These motions were denied and the defendants filed their answer and affirmative defenses. Late in 2000, counsel for the cobeneficiaries took on representation of the current and former trustees because the Rohlwings had moved to amend their complaint and to add as parties-defendant the Williams, Parker law firm and J. Michael Harten-stine.

With leave of court, the Rohlwings filed their second amended complaint that added counts of breach of fiduciary duty and negligence against the attorneys. All defendants answered this latest complaint and asserted their affirmative defenses. The cobeneficiaries also counterclaimed. Appropriate responses to the affirmative defenses were made, and a lengthy period of discovery commenced in late January 2001 and lasted most of that year. Lackluster compliance with discovery requests necessitated the filing of several motions to compel by the Rohlwings.

In December 2001, and based on what they had learned from discovery in the case, the Rohlwings successfully moved for leave to file their third amended complaint, a 93-page document consisting of 384 paragraphs alleging 38 causes of action. Each count incorporated by reference the first 172 paragraphs. On behalf of the cobeneficiaries, counsel moved to dismiss the relevant counts of the complaint alleging various grounds, including that it violated Florida Rule of Civil Procedure 1.110(b) by failing to contain a short and plain statement, that it failed to state causes of action, that it contained claims allegedly barred by the statute of limitations, and that it improperly incorporated by reference the general allegations of the complaint into each separate count. On behalf of the defendant-attorneys, counsel also moved to dismiss the counts against them, complaining that those counts failed to contain a short and plain statement and, especially the fraud count, failed to allege the claims with sufficient specificity. Counsel additionally moved to strike the counts as a sham.

At the hearing on these latest motions to dismiss, the trial court criticized the complaint saying that a complaint is not meant to be a trial on the merits and that this complaint did not make sense when the counts were read individually. The court granted the motions to dismiss the third amended complaint. The written order states that the motions were granted “due to the complexity of the third amended complaint and its failure to state with specificity in each count the ultimate facts upon which each count is based with further failure to allege with specificity the damages resulting from the breach of any particular cause of action.”

The 79-page fourth amended complaint contained 38 counts and 133 pages of exhibits. Both groups of defendants, the trustees/cobeneficiaries and the attorneys, again filed motions to dismiss asserting that plaintiffs’ counsel did not comply with the court’s previous order on how to properly plead a complaint. There was much heated discussion at the hearing on these motions, with plaintiffs’ counsel attempting to address each and every one of the court’s perceived concerns in each and every paragraph. The court agreed with defense counsel that no defense party could deal with this complaint in terms of a motion practice. The court dismissed the fourth amended complaint and directed plaintiffs’ counsel to file a fifth amended complaint that complied with Florida Rule of Civil Procedure 1.110(b). The court warned that failure to do so in the next complaint would result in a dismissal with prejudice.

The thirty-five page fifth amended complaint contained eight counts. Count I alleged breach of fiduciary duty against the two trustees and the cobeneficiaries. Count II was against them as well and alleged constructive fraud. Count III alleged fraud against Frederick Strammer and the other cobeneficiaries. Count IV alleged unauthorized conflict of interest transactions against the present and former trustees. Counts V, VI, and VII contained claims against attorney Hartenstine and his firm for legal malpractice/breach of fiduciary duty, fraud, and aiding and abetting, respectively. Count VIII named all defendants and alleged “concert of action.” Predictably, motions to dismiss were filed; but it was a successor judge who held the hearing on these latest motions in March 2003. The court dismissed the complaint with prejudice as to the trustees and co-beneficiaries, stating that for a case to be still in the pleading stage at that' late date was just too long and that the previous judge had given plaintiffs’ counsel a fair opportunity to plead properly. At the subsequent hearing on the attorneys’ motion to dismiss the four counts as to them, the court granted their motion and dismissed the remaining counts as to them with prejudice also. Separate appeals ensued as to the two groups of defendants and were consolidated in this court.

Analysis

Each appealed order- dismissing with prejudice the fifth amended complaint’s various counts contains only the generic language “dismissed with prejudice.” The written orders do not reveal the trial court’s rationale for dismissal, and the transcripts of the two hearings reflect only the trial court’s brief comment about the excessive length of the fifth amended complaint and the long period during which the parties' attempted to file a satis-' factory complaint. This is insufficient for purposes of our review, as well as for the litigants, especially the Rohlwings.

Dismissal “with prejudice” in effect disposes of the case, not for any dereliction on the part of the litigant, but oh the part of his counsel. We are not unmindful of the rule that counsel is the litigant’s agent and that his acts are the acts of the principal, but since the rule is primarily for the governance of counsel, dismissal “with prejudice” would in effect punish the litigant instead of his counsel.

Kozel, 629 So.2d at 818 (quoting Beasley v. Girten, 61 So.2d 179, 181 (Fla.1952)). Our supreme court in Kozel held that dismissing a case with prejudice, albeit authorized, due to the dilatory action of the plaintiffs counsel in filing an amended complaint, unduly punishes the litigant and “espouses a policy that this Court does not wish to promote.” Kozel, 629 So.2d at 818. The plaintiffs counsel in Kozel had been given thirty days to amend the complaint after it was dismissed for failure to state a cause of action, but counsel did not file the amended complaint until more than five months after the due date.

To assist trial courts in determining whether dismissal with prejudice is the proper reaction to counsel’s failure to adhere to filing deadlines or other procedural requirements, the supreme court adopted a six-factor analysis suggested' by Judge Altenbernd in his dissent when Kozel was before the district- court. Kozel v. Ostendoyf, 603 So.2d 602, 605 (Fla. 2d DCA 1992) (Altenbernd, J., dissenting). These factors are: (1) whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; (2) whether the attorney has been previously sanctioned; (3) whether the client was personally involved in the act of disobedience; (4) whether the delay prejudices the opposing party through undue expense, loss of evidence, or in some other fashion; (5) whether the attorney offered reasonable justification for noncompliance; and (6) whether the delay created significant problems of judicial administration. 629 So.2d at 818.

The trial court’s orders of dismissal contain nothing from which we can determine that the Kozel factors were considered. Because a dismissal with prejudice is the ultimate sanction in the civil justice system, it is reserved for the most aggravating circumstances. Id. This policy transcends the principles relevant to amending civil complaints and has been applied in other areas including the failure to comply with discovery requirements, Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So.2d 1271 (Fla.1990), and the failure to comply with a pretrial order, Greenhill v. Shands Teaching Hosp. & Clinics, Inc., 834 So.2d 896 (Fla. 1st DCA 2002). If the Rohlwings’ case is an example of the most egregious or aggravating circumstances, the order of dismissal with prejudice must so state. A successor judge imposed this extreme sanction, but his comments at that final hearing referred only to the duration of the lawsuit and the length of the complaint. Neither of these circumstances is dispositive, either singly or combined, regardless of the fact that the predecessor judge had previously warned plaintiffs’ counsel that they would have only one more chance to amend.

Pursuant to Kozel, we reverse for the court to apply the six-factor test before again determining whether dismissal with prejudice is appropriate. For the guidance of the trial court on remand, we note that it is unlikely the Kozel test can be fully met. A thirty-five page complaint outlining eight counts against ten defendants, one of them in a dual capacity, is not unduly long, per se. We observe that counts VI, VII, and VIII are relatively short and, in that respect, appear to comply with the pleading requirements set forth in the rules of civil procedure. We can well understand the trial court’s concern, however, with other counts, such as count V. In count V, a tort count alleging legal malpractice and breach of fiduciary duty, the complaint does not appear to identify the' source of the alleged duty, such as an oral or written contract, the duration of the relationship, or whether the alleged breaches emanate from one or multiple representation arrangements. However, if a count fails to state a cause of action, the order should so indicate.

Florida Rule of Civil Procedure 1.190(a) requires that leave to amend be freely given unless a party has abused the privilege to amend. Fla. Nat’l Org. of Women, Inc. v. State, 832 So.2d 911, 915 (Fla. 1st DCA 2002) (holding that the trial court should grant leave to amend, rather than dismiss a complaint with prejudice, unless a party has abused the privilege to amend, an amendment would prejudice the opposing party, or the complaint is clearly not amendable; this holds true even if an amended complaint fails to state a cause of action). Here, the Rohlwings’ counsel has amended the complaint six times, twice by choice, but the facts with which he must work are admittedly complex. Although amending four to ten times has been held excessive in other cases, see, e.g., Glad stone v. Smith, 729 So.2d 1002 (Fla. 4th DCA 1999); Kohn v. City of Miami Beach, 611 So.2d 538, 539 (Fla. 3d DCA 1992), there is no magical number of allowable amendment attempts. See Barrett v. City of Margate, 743 So.2d 1160, 1162 (Fla. 4th DCA 1999).

We reverse and remand for the trial court to reconsider the motion to dismiss and, should the court conclude that dismissal with prejudice is again warranted, to make the explicit determinations mandated by Kozel. See Matthews v. Chaffee, 849 So.2d 483, 485 (Fla. 2d DCA 2003). The court has other remedies, such as a fine, public reprimand, or even a contempt order, to punish counsel’s conduct if merited, without punishing the innocent client. Carr v. Reese, 788 So.2d 1067, 1071 (Fla. 2d DCA 2001). However, even though the supreme court has warned that willful and deliberate acts on the part of counsel should not result in harm to an innocent party, clients should be warned that they cannot escape total responsibility for their counsel’s actions, whether intentional or negligent. Cf. Rose v. Fiedler, 855 So.2d 122, 129-30 (Fla. 4th DCA 2003) (Warner, J., concurring specially) (warning that a client cannot claim ignorance and then receive another trial when the client allows counsel to obstruct and obfuscate the proceedings for over three years; the client must take responsibility to inform herself of her affairs; if the client suffers as a result of counsel’s egregious behavior, it is because she chose to hire that counsel and then remain uninformed and uninterested in the manner counsel represented her).

Reversed and remanded for further proceedings.

NORTHCUTT and DAVIS, JJ., Concur.

      . We note that our disposition in this case only requires the trial court to review whether the case should be dismissed based on the factors outlined in Kozel v. Ostendorf, 629 So.2d 817 (So.2d 817 (Fla.1993).) We make no disposition based on whether the various counts have failed to state a cause of action because the trial court’s order did not expressly indicate that such failure was the basis for its ruling.


author: WALLACE, Judge.

text:
    Joseph Henry ROTH, Appellant, v. James CROSBY, Secretary, Department of Corrections, Appellee.
    No. 2D03-1453.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 2004.

      Joseph Henry Roth, pro se.
    No appearance for Appellee.
   WALLACE, Judge.

Joseph Henry Roth is a prison inmate in the Polk Correctional Institution. In February 2000, the Florida Parole and Probation Commission (the Commission) established his presumptive parole release date as June 2, 2011, a date significantly later than the date recommended by the hearing examiner.

Roth sought review of the Commission’s order by filing a petition for a writ of habeas corpus in the Circuit Court for Polk County. However, the appropriate vehicle for challenging a presumptive parole release date is a petition for a writ of mandamus directed against the Commission. Griffith v. Fla. Parole & Prob. Comm’n, 485 So.2d 818, 820 (Fla.1986) (contrasting mandamus with habeas corpus, which is the appropriate vehicle for challenging an effective parole release date). The mandamus petition must be filed in the Circuit Court for Leon County, where the Commission is headquartered, unless the home venue privilege is waived. Lewis v. Fla. Parole Comm’n, 697 So.2d 965, 965 (Fla. 1st DCA 1997). The circuit court correctly denied Roth’s petition without prejudice for Roth to file a petition for a writ of mandamus directed against the Commission. Therefore, we affirm.

Affirmed.

NORTHCUTT and VILLANTI, JJ., Concur.

      . Our record is unclear as to whether Roth exhausted his administrative remedies pursuant to section 947.173, Florida Statutes (1999), which he was required to do before seeking review of the Commission's action in the circuit court. See Riddell v. Fla. Dep’t of Corrections, 538 So.2d 132, 133 (Fla. 1st DCA 1989).

      . We do not treat Roth’s timely filed notice of appeal as a petition for writ of certiorari because appeal is the appropriate avenue for review of the circuit court's order in this case. Compare Green v. Moore, 777 So.2d 425, 426 (Fla. 1st DCA 2000) (holding that when a prisoner seeks review of an administrative action related to his incarceration and the circuit court decides the prisoner's petition on grounds other than the merits, an appeal is the proper avenue of review by the district court), with Sheley v. Fla. Parole Comm’n, 720 So.2d 216, 217-18 (Fla.1998) (holding that certiorari is the proper method to review a circuit court's order deciding the merits of a prisoner's petition seeking review of an action by the Commission).


text:
    TOWN OF PONCE INLET, Petitioner, v. Martin DRAGOMIRECKY, Respondent.
    No. 1D04-2711.
    District Court of Appeal of Florida, First District.
    Sept. 27, 2004.
    Rehearing Denied Oct. 27, 2004.

      Theodore R. Doran, Michael G. Dyer, and Audrie M. Harris of Doran, Wolfe, Rose & Ansay, Daytona Beach, for petitioner.
    Deborah J. Andrews, Ponte Vedra Beach, for respondent; Richard E. Shine, and Sarah McDannold, Certified Legal Intern, for Florida Building Commission, Tallahassee.
   PER CURIAM.

Petitioner, the Town of Ponce Inlet, petitions this court for a writ of prohibition. It seeks to restrain the Florida Building Commission (“Commission”), acting through the Division of Administrative Hearings (“DOAH”), from exercising au-' thority over respondent’s amended petition for formal administrative hearing. Respondent owns real property which contains an unfinished structure which has been “under construction” for over four years. On November 27, 2002, petitioner issued a notice of unsafe building and an order to vacate and demolish, citing the premises as having an unsafe structure in violation of the requirements of the standard codes of the Town of Ponce Inlet. Respondent timely appealed the demolition order to the Board of Adjustment of Appeals of the Town. The Board affirmed petitioner’s order to vacate and demolish, finding the structure in violation of specific requirements of the unsafe budding code.

After respondent filed a petition for a formal administrative hearing with the Commission, petitioner filed a motion to dismiss the petition for lack of subject matter jurisdiction. The Commission dismissed the petition without prejudice for petitioner to file a petition which included a concise statement of the ultimate facts alleged giving rise to the jurisdiction of the Commission. The Commission specifically stated that it could only hear an appeal from 'the Board’s decision as it relates to the Florida Building Code and construction activities for which a permit was issued on or after March 1, 2002.

Respondent ■ subsequently filed an amended petition for administrative hearing, arguing that the issue before the Board of Adjustment of Appeals was whether the building met the Florida Building Code and was safe. The Commission referred the matter to DOAH. Petitioner refiled its motion to dismiss with DOAH. The ALJ denied the motion to dismiss.

A writ of prohibition is generally issued to restrain unlawful exercise of judicial function in absence of an adequate remedy at law. State ex rel. Washburn v. Hutchins, 101 Fla. 773, 135 So. 298 (1931). Prohibition is an extraordinary writ and is designed to keep courts from acting when they have no jurisdiction to act. English v. McCrary, 348 So.2d 293 (Fla.1977).

Effective March 1, 2002, the legislature granted the Florida Building Commission authority to hear appeals of the decisions of local boards of appeal regarding interpretation decisions of local building officials. See ch.2000-141 § 78, at 490, Laws of Fla. The Commission also has authority to review local decisions declaring structures to be unsafe and subject to repair or demolition unless the Board finds that there is an immediate danger to the health and safety of its citizens. See § 553.77(l)(h)l, Fla. Stat. (2002). For a building permit submitted prior to the effective date of the Florida Building Code, March 1, 2002, the minimum building code in effect on the date of the application governs the permitted work for the life of the permit and any extensions thereto. See § 553.73(5), Fla. Stat. (2002).

Due to the effective date of the grant of statutory authority in which to hear appeals of the Board, the Florida Building Commission does not have jurisdiction to review respondent’s amended petition. Even though respondent raised arguments regarding the Board’s interpretation of the Florida Building Code in his petition for administrative hearing, the Florida Building Code does not apply to respondent’s permits. The permits were issued prior to the effective date of March 1, 2002. Respondent does not dispute this fact. As no subsequent permits were issued on this structure, the Florida Building Code does not apply.

Respondent and the Florida Building Commission argue that section 553.77(l)(h)l., confers authority on the Commission to hear the appeal because the Board did not make the specific finding of an immediate danger. However, the grant of statutory authority appears to relate to interpretation of the Florida Building Code in such circumstances. As we determined above, the Florida Building Code does not apply in this case as the permits were issued prior to the adoption of the Florida Building Code.

Accordingly, we grant the petition for writ of prohibition and direct the ALJ and the Florida Building Commission to dismiss respondent’s amended petition for administrative hearing.

PETITION GRANTED.

BROWNING, LEWIS and POLSTON, JJ., concur.


text:
    Rick GEORGE, a Florida citizen; and SOTAV, Inc., a Florida corporation, Appellants, v. Fred TAYLOR, a Florida citizen, Appellee.
    No. 1D03-2513.
    District Court of Appeal of Florida, First District.
    Sept. 27, 2004.

      Frederick R. Brock of Gartner, Brock and Simon, Jacksonville, for Appellants.
    Lance A. Harke, P.A. and David J. Maher of Harke & Clasby LLP, Miami, for Appellee.
   PER CURIAM.

The appellants challenge a summary final judgment and final judgment entered in favor of the appellee. Because a number of material facts remain in dispute, and because the appellee has not offered proof conclusively refuting the appellants’ affirmative defenses, see, e.g., Fasano v. Hicks, 667 So.2d 1033 (Fla. 2d DCA 1996), the orders under review are reversed and this case is remanded.

ERVIN, ALLEN and HAWKES, JJ., concur.


text:
    BAPTIST HOSPITAL and Johns Eastern Company, Appellants, v. Tamara SORZANO, Appellee.
    No. 1D04-2748.
    District Court of Appeal of Florida, First District.
    Sept. 27, 2004.
    Keri Lynda Horvat of Marcos Rothman Scharf & Valdes, P.A., Miami, for appellants.
    Bill McCabe, Longwood, and Martha D. Fornaris, Coral Gables, for appellee.
   PER CURIAM.

This appeal is hereby dismissed for lack of jurisdiction. See Cadco Builders, Inc. v. Roberts, 712 So.2d 457 (Fla. 1st DCA 1998).

BROWNING, LEWIS and POLSTON, JJ., concur.


author: BARFIELD, J.

text:
    FLORIDA HIGH SCHOOL ATHLETIC ASSOCIATION, etc., Appellant, v. Mary BLANCHARD and Edward Blanchard, Appellees.
    No. 1D03-5013.
    District Court of Appeal of Florida, First District.
    Sept. 27, 2004.
    Leonard E. Ireland, Jr., and Jennifer R. Williams, of Clayton-Johnston, P.A., Gainesville, for Appellant.
    Willie J. Walker and LaFonda E. Gip-son, of The Walker Law Offices, P.A., Jacksonville, for Appellees.
   BARFIELD, J.

We continue to adhere to the rule that Florida courts may interfere in the internal affairs of a private association only under exceptional circumstances. See the court’s discussion in Florida High School Athletic Association v. Melbourne Central Catholic High School, 867 So.2d 1281 (Fla. 5th DCA 2004). Having found that imposition of the injunction in this case is not supported by any such exceptional circumstances, we REVERSE.

VAN NORTWICK and PADOVANO, JJ., concur.


text:
    Juana PEREZ, Appellant, v. PALM BEACH COUNTY SCHOOL BOARD and F.A. Richard & Associates, Appellees.
    No. 1D04-2720.
    District Court of Appeal of Florida, First District.
    Sept. 27, 2004.
    Cord Byrd of Gonzalez & Porcher, Lake Worth, for appellant.
    Brian T. Moore of Conroy, Simberg, Ga-non, Krevans & Abel, Fort Myers, for appellees.
   PER CURIAM.

DISMISSED. St. Moritz Hotel v. Daughtry, 249 So.2d 27 (Fla.1971); Duval County School Board v. Rupp, 414 So.2d 556 (Fla. 1st DCA 1982).

BARFIELD, VAN NORTWTCK and PADOVANO, JJ., concur,


text:
    A. Q., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-1699.
    District Court of Appeal of Florida, First District.
    Sept. 27, 2004.
    Claudia Wright and Alero Afejuku, Certified Legal Intern, of Virgil Hawkins Civil Clinic, Gainesville, for Appellant.
    Charles J. Crist, Jr., Attorney General; Linda Horton Dodson and Trisha Meggs Pate, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

In this appeal from an order adjudicating appellant (A.Q.) delinquent for committing burglary to a dwelling and grand theft, appellant claims that the State failed to prove beyond a reasonable doubt that the market value of the items stolen by appellant (used clothing and used compact discs) was at least $300.00 on the date of the offense. See §§ 812.014(2)(c)l.; 812.012(10)(a) 1., Fla. Stat. (2003). We agree. Accordingly, we reverse appellant’s conviction and sentence for grand theft and remand for the entry of a conviction and sentence for petit theft of the second degree. See § 812.014(3)(a), Fla. Stat. (2003). See also Pickett v. State, 839 So.2d 860, 861-62 (Fla. 2d DCA 2003), citing Negron v. State, 306 So.2d 104, 108 (Fla.1974), receded from on other grounds, Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980). We affirm without comment appellant’s unchallenged conviction for burglary of a dwelling.

REVERSED; REMANDED WITH INSTRUCTIONS.

DAVIS, BROWNING and HAWKES, JJ., CONCUR.


text:
    Jeffrey PATE, Appellant, v. James V. CROSBY, Jr., Secretary, Department of Corrections, Appellee.
    No. 1D04-1122.
    District Court of Appeal of Florida, First District.
    Sept. 28, 2004.
    Jeffrey Pate, pro se, appellant.
    Charlie Crist, Attorney General, and Joy A. Stubbs, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

The circuit court’s order dismissing the petition for writ of mandamus is reversed and the cause is remanded with directions to proceed to a disposition on the merits of the petition. See Burgess v. Crosby, 870 So.2d 217 (Fla. 1st DCA 2004); Davidson v. Crosby, 883 So.2d 866 (Fla. 1st DCA 2004).

REVERSED AND REMANDED.

BENTON, PADOVANO and HAWKES, JJ., concur.


text:
    Jeffrey PATE, Appellant, v. James V. CROSBY, Jr., Secretary, Department of Corrections, Appellee.
    No. 1B04-1123.
    District Court of Appeal of Florida, First District.
    Sept. 28, 2004.
    Jeffrey Pate, pro se, appellant.
    Charlie Crist, Attorney General, and Joy A. Stubbs, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

The circuit court’s order dismissing the petition for writ of mandamus is reversed and the cause is remanded with directions to proceed to a disposition on the merits of the petition. See Burgess v. Crosby, 870 So.2d 217 (Fla. 1st DCA 2004); Davidson v. Crosby, 883 So.2d 866 (Fla. 1st DCA 2004).

REVERSED AND REMANDED.

BENTON, PADOVANO and HAWKES, JJ., concur.


text:
    Stefan M. LINDEN, Petitioner, v. James CROSBY, Jr., Secretary, Department of Corrections, Respondent.
    No. 1D04-3438.
    District Court of Appeal of Florida, First District.
    Sept. 28, 2004.
    Stefan M. Linden, pro se, petitioner.
    No appearance for respondent.
   PER CURIAM.

DENIED. See Brown v. Campion, 757 So.2d 535 (Fla. 1st DCA 2000).

BENTON, PADOVANO and HAWKES, JJ., concur.


text:
    Wayne WHEELER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-3326.
    District Court of Appeal of Florida, First District.
    Sept. 28, 2004.
    Rehearing Denied Oct. 27, 2004.
    Wayne Wheeler, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

As the petition is untimely under Florida Rule of Appellate Procedure 9.141(c)(4), the petition is denied.

BROWNING, LEWIS and POLSTON, JJ., concur.


text:
    Justin GUIGER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-2506.
    District Court of Appeal of Florida, First District.
    Sept. 28, 2004.

      Herman D. Laramore, Public Defender, and Sandra Atkins, Assistant Public Defender, Panama City, for petitioner.
    Charlie Crist, Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Justin Guiger seeks a belated appeal of an order designating him as a sexual offender imposed by the Circuit Court for Bay County. Guiger filed a notice of appeal in this court’s case number 1D04-1862 and he was represented therein by court appointed counsel. As the notice of appeal did not appear to be timely filed, this court issued a show cause order on why the appeal should not be dismissed. In response, counsel stated that she had an accident and broke her hand. In the ensuing confusion, the filing of the notice of appeal was delayed. Based on this response, this court directed Guiger to file a petition for belated appeal.

The state has responded to this petition for belated appeal and agrees that Guiger should be entitled to a belated appeal. Accordingly, we grant the petition and find that the proper remedy is for Guiger to proceed in his appeal in case number 1D04-1862.

PETITION GRANTED.

BROWNING, LEWIS and POLSTON, JJ., concur.


text:
    Jeffrey PATE, Appellant, v. James V. CROSBY, Jr., Secretary, Department of Corrections, Appellee.
    No. 1D04-1125.
    District Court of Appeal of Florida, First District.
    Sept. 28, 2004.
    Jeffrey Pate, pro se, appellant.
    Charlie Crist, Attorney General, and Joy A. Stubbs, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

The circuit court’s order dismissing the petition for writ of mandamus is reversed and the cause is' remanded with directions to proceed to a disposition on the merits of the petition. See Burgess v. Crosby, 870 So.2d 217 (Fla. 1st DCA 2004); Davidson v. Crosby, 888 So.2d 866 (Fla. 1st DCA 2004).

REVERSED AND REMANDED.

BENTON, PADOVANO and HAWEES, JJ., concur.


text:
    David M. SNAVELY, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-3067.
    District Court of Appeal of Florida, Fifth District.
    Sept. 28, 2004.
    David M. Snavely, Raiford, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Fisher v. State, 852 So.2d 424 (Fla. 5th DCA 2003); Toney v. State, 817 So.2d 924 (Fla. 2d DCA 2002).

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


text:
    Willie James COBBS, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-510.
    District Court of Appeal of Florida, Fifth District.
    Sept. 28, 2004.
    James B. Gibson, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Willie James Cobbs, Perry, pro se.
    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).

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


text:
    Amandel MIRZA, Appellant/Cross Appellee, v. STATE of Florida, Appellee/Cross Appellant.
    No. 5D04-226.
    District Court of Appeal of Florida, Fifth District.
    Sept. 28, 2004.
    James B. Gibson, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Amandel Mirza, South Daytona, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

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

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


text:
    Pelmon ARNOLD, Appellant, v. STATE of Florida, Appellee.
    Nos. 5D04-139, 5D04-300.
    District Court of Appeal of Florida, Fifth District.
    Sept. 28, 2004.
    James B. Gibson, Public Defender, and Marvin F. Clegg, 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).

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


author: DAVIS, Judge.

text:
    Drake PRITCHETT, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-5161.
    District Court of Appeal of Florida, Second District.
    Sept. 29, 2004.
    James Marion Moorman, Public Defender, and Deana K. Marshall, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

Drake Pritchett challenges the trial court’s denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850, in which he alleged several claims of ineffectiveness of trial counsel. The trial court summarily denied claims two through four of Pritchett’s motion, denied claim one after an evidentiary hearing, and denied Pritchett’s fifth claim on procedural grounds. We affirm in part and reverse in part.

Because we conclude that claims one through four of Pritchett’s postconviction motion have no merit, we affirm the trial court’s denial of these claims without further comment. Pritchett, however, raised a fifth claim in a motion to amend his postconviction motion.

In denying Pritchett’s motion to amend his postconviction motion, the trial court found that “the defendant has failed to allege a reason or reasons, beyond his general statement that he just discovered the grounds for the new claim, for his failure to include these claims in his original [mjotion.” As such, the trial court concluded that Pritchett had failed to demonstrate good cause to amend as required by McConn v. State, 708 So.2d 308 (Fla. 2d DCA 1998). In McConn, this court addressed amendments to rule 3.850 motions and held: “If the two-year time period has not expired, the trial court should consider whether there was cause for failure to include the new allegations in the original motion.” Id. at 310. This court then included a partial list of reasons that might constitute good cause.

However, in Gaskin v. State, 737 So.2d 509 (Fla.1999), receded from on other grounds, Nelson v. State, 875 So.2d 579 (Fla.2004), the Florida Supreme Court impliedly overruled McConn. In' Gaskin, where the appellant had filed an amended motion before the trial court ruled on the original motion and before the two-year time limit had expired, the supreme court determined that when “both the original and amended 3.850 motions were filed within the statutory two-year time limitation ... it was error for the trial court not to consider the merits of the new allegations.” 737 So.2d at 518. Here, Pritchett was originally sentenced on July 27, 2000. He filed his initial rule 3.850 motion on February 4, 2002. On February 21, 2002, Pritchett, a DOC inmate, signed and gave to an institutional officer for mailing his “Motion for Leave to Amend and/or Supplement Defendant’s Postconviction Motion,” in which he sought to add a claim of ineffectiveness for counsel’s failure to object to the trial court’s failure to place the panel of prospective jurors under oath pri- or to voir dire. Because Pritchett sought to file his amended motion within the two-year period, as well as before the trial court had ruled on his original claims, it was error under Gaskin for the trial court not to consider the additional claim.

Accordingly, we reverse the trial court’s denial of Pritchett’s motion to amend with instructions that the trial court address the new allegation.

Affirmed in part; reversed in part.

SILBERMAN and CANADY, JJ„ Concur.


author: NORTHCUTT, Judge.

text:
    P.M.M., Appellant, v. STATE of Florida, Appellee.
    No. 2D03-4568.
    District Court of Appeal of Florida, Second District.
    Sept. 29, 2004.

      James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Ap-pellee.
   NORTHCUTT, Judge.

P.M.M. appeals an order withholding adjudication and placing her on probation for possession of marijuana. We reverse because the circumstantial evidence failed to rebut P.M.M.’s reasonable hypothesis of innocence.

The State’s only witness at trial was Deputy Nathaniel Johnson, the school resource officer at the high school P.M.M. attended. Deputy Johnson recounted that he wds present when the assistant principal of the school searched P.M.M.’s backpack and discovered a small baggie of marijuana. Deputy Johnson did not know where the backpack hád been prior to that occasion. The baggie was not fingerprinted.

P.M.M. testified that she did not know marijuana was in her backpack, and she denied that it was hers. The marijuana was found in a front pouch, and P.M.M. testified that she had not opened this pouch in a week or two. P.M.M. testified that on the day of her arrest, she left her backpack on the classroom floor in her cooking class; her backpack was unattended for over an hour while she worked at a stove located twenty to twenty-five feet away. P.M.M. also testified that she left her backpack on a lunchroom table, unattended, while she waited in the lunch line for ten to fifteen minutes. Both times, there were other people around. During her next class, P.M.M. was called to the assistant principal’s office. The assistant principal told her an anonymous source reported that she had something in her backpack that she should not have. P.M.M. agreed to a search of her backpack; she testified that she did not think there was anything in there.

“[A] conviction based on circumstantial evidence cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.... Evidence that creates nothing more than a strong suspicion that a defendant committed the crime is not sufficient to support a conviction.” Terranova v. State, 764 So.2d 612, 615 (Fla. 2d DCA 1999) (citations omitted). In this case, the marijuana was found in a backpack that admittedly belonged to P.M.M. But she denied knowledge of the contraband, and the State produced no direct evidence to establish that P.M.M. knew of its presence.

Most of the cases involving constructive possession of illegal drugs involve contraband found in a vehicle containing two or more persons. However, a few Florida cases have involved contraband found in a container known to belong to a particular person. All of those cases have required the State to present some evidence that the defendant knew of the presence of the contraband. Evidence of the location of the contraband standing alone is simply not enough to support a conviction.

N.K.W. v. State, 788 So.2d 1036, 1039 (Fla. 2d DCA 2001) (Parker, J., concurring). In S.B. v. State, 657 So.2d 1252 (Fla. 2d DCA 1995), marijuana was found in the juvenile defendant’s bag, which had been accessible to several other people. This court reversed the delinquency adjudication for possession because the State’s circumstantial evidence, necessary to prove that the juvenile knew his bag contained marijuana, was not inconsistent with the juvenile’s theory. Likewise, in N.K.W., 788 So.2d 1036, LSD was found in a juvenile defendant’s wallet, which had been left on a closet shelf during a party and thus accessible to the other guests. This court reversed the delinquency adjudication for possession because there was no direct evidence that the juvenile knew drugs were in his wallet. “It is this total absence of any evidence of knowledge that requires us to reverse the conviction.” 788 So.2d at 1040 (Parker, J., concurring).

In this case, P.M.M.’s unrebutted and unimpeached testimony established that her backpack had been accessible to others. The State presented no evidence to show that P.M.M. knew there was marijuana in her backpack, other than the evidence that it was found in her backpack. As in N.K.W. and S.B., this was not enough to support a conviction. Accordingly, we reverse.

Reversed.

SILBERMAN and VILLANTI, JJ., Concur.


text:
    Thomas E. BROOKS, Appellant, v. FIRST SCAFFOLD & EQUIPMENT, INC., Bridgefield Employers Ins. Co., and American Interstate, Appellees.
    No. 1D03-2956.
    District Court of Appeal of Florida, First District.
    Sept. 29, 2004.
    Carl A. Feddeler, III, of Smith, Fedde-ler, Smith & Miles, P.A., Lakeland; Susan W. Fox, of Fox & Loquasto, P.A., Tampa; and Wendy S. Loquasto, of Fox & Loquas-to, P.A., Tallahassee, for appellant.
    Mary Ann Stiles, of Stiles, Taylor & Grace, P.A., Tampa; Rayford H. Taylor, of Stiles, Taylor & Grace, P.A., Atlanta, GA; and E. Taylor Davidson, of Dicesare, Davidson & Barker, P.A., Lakeland, for appellees.
   PER CURIAM.

Appellant/claimant urges us to reverse the determination by the Judge of Compensation Claims (JCC) of temporary indemnity benefits based on the lower average weekly wage in effect at the time of the second and third industrial accidents, relying on Pinellas County School Board v. Higgins, 597 So.2d 355 (Fla. 1st DCA 1992). We find that the holding in Higgins is limited to the facts of that particular situation, where two compensable accidents have merged to cause claimant’s permanent total disability. In the instant case, the claimant’s award of temporary benefits was properly determined utilizing the average weekly wage calculation contained in section 440.14(l)(a), Florida Statutes. The decision of the JCC is affirmed.

WOLF, C.J., KAHN and LEWIS, JJ., concur.


text:
    C.E.C., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-0928.
    District Court of Appeal of Florida, First District.
    Sept. 29, 2004.
    Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Sherri T. Rollison, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

C.E.C., a juvenile, appeals a final order of adjudication and disposition entered on December 18, 2003, by which appellant was adjudicated delinquent for the offenses of burglary, grand theft, dealing in stolen property (two counts), and violation of probation. By this adjudication/disposition order, appellant was committed to the Department of Juvenile Justice for placement in a moderate risk facility. The grand theft offense involved the theft of the same items which were sold by appellant when he committed the two offenses of dealing in stolen property. Appellant argues that, as a result, an adjudication of delinquency for offense of grand theft as well as for the offenses of dealing in stolen property in the case at bar therefore constitute double jeopardy because all of the offenses were part of a single, continuous taking. Hall v. State, 826 So.2d 268 (Fla.2002); Kilmartin v. State, 848 So.2d 1222 (Fla. 1st DCA 2003). Although this error was not raised below, it is cognizable on appeal as fundamental error. Kilmartin; Henderson v. State, 778 So.2d 1046 (Fla. 1st DCA 2001). The state correctly concedes that under Hall and Kilmartin reversal is required. Accordingly, the adjudication of delinquency for grand theft is reversed and the cause is remanded for further proceedings consistent with this opinion, including the reconsideration of the disposition order.

REVERSED and REMANDED.

ALLEN, VAN NORTWICK and BROWNING, JJ., CONCUR.


text:
    Elijah WATFORD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-3768.
    District Court of Appeal of Florida, First District.
    Sept. 29, 2004.
    Elijah Watford, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

DENIED. Fla. R.App. P. 9.141(c)(4)(A).

BENTON, PADOVANO and HAWKES, JJ., concur.


author: WARNER, J.

text:
    Alexander SCHULTZ, Appellant, v. Waldemar K. SCHICKEDANZ, et al., Appellees.
    No. 4D03-3286.
    District Court of Appeal of Florida, Fourth District.
    Sept. 29, 2004.
    Rehearing Denied Nov. 5, 2004.

      Alexander Schultz, Palm Beach Gardens, pro se.
    Rod Tennyson of Rod Tennyson, P.A., West Palm Beach, for appellees.
   WARNER, J.

This is an appeal of an award of attorney’s fees and costs to appellees, Waldemar Schickedanz, Schickedanz Brothers— Palm Beach, Ltd., and Schickedanz Enterprises, Inc., after they prevailed in the underlying action brought against them by Alexander Schultz. Appellant Schultz raises eleven issues on appeal, only one of which merits a reversal. We reverse the award of costs for copying documents because the defendants were attempting to tax costs for documents made for themselves, not the copies entered into evidence. We affirm the remaining issues, holding that the trial court did not lose jurisdiction to enter an attorney’s fee award even though the trial court record had already been sent to the appellate court. We also conclude that Schultz by not properly objecting to the failure of the attorney performing the services to testify at the hearing, failed to preserve this issue for appeal.

The trial court allowed as taxable costs $97.82 for the costs of photocopies of documents. While costs of photocopies may be permitted for documents actually filed in the court file, this charge was largely for copies of documents that Schultz had furnished to appellees. In other words, the copies were made for the attorney’s own file, not those filed in court. Taxable costs do not include copies made for the attorney’s file. See Statewide Uniform, Guidelines for Taxation of Costs in Civil Actions § 7 (stating the cost of copies of documents actually filed in court or filed and received in evidence during trial should be taxed). We therefore reverse the award of $97.82 in taxable costs.

Half of the remaining issues are actually addressed, to issues raised on Schultz’s appeal of the final judgment, which we affirmed. See Schultz v. Schickedanz, 858 So.2d 1064 (Fla. 4th DCA 2003). These issues are governed by the doctrine of the law of the case, which requires that questions of law decided on appeal govern the case in subsequent proceedings. Fla. Dep’t of Transp. v. Juliano, 801 So.2d 101, 105 (Fla.2001). Even a per curiam affirmance establishes the law of the case. State v. Stabile, 443 So.2d 398, 400 (Fla. 4th DCA 1984). Therefore, we affirm as to those issues.

As to-the attorney’s fee motion itself, Schultz argues that the court lacked jurisdiction to consider an award because the record on appeal had already been transferred to the appellate court. He concedes that the trial court reserved jurisdiction on the issue. In support, he cites to Florida Rule of Appellate Procedure 9.600(a) which- states, “Before the record is transmitted, the lower tribunal shall have concurrent jurisdiction with the [appellate] court to render orders on any other procedural matter relating to the cause, subject to the control of the court.” This section relates to the control of matters affecting the processing of the case in the trial court and on appeal, such as the granting of extensions of time for the preparation of the record and transcript on appeal.

Section (b) of Rule 9.600 provides, “If the jurisdiction of the lower tribunal has been divested by an appeal from a final order, the court by order may permit the lower tribunal to proceed with specifically stated matters during the pen-dency of the appeal.” This section permits a trial court to proceed with awarding trial attorney’s fees pending appeal. “[A] trial court is divested of jurisdiction upon notice of appeal except with regard to those matters which do not, interfere with the power and authority of the appellate court or with the rights of a party to the appeal which are under consideration by the appellate court.” Palma Sola Harbour Condo., Inc. v. Huber, 374 So.2d 1135, 1138 (Fla. 2d DCA 1979) (emphasis added). The award of attorney’s fees after trial does not interfere with the authority of the appellate court with regard to the matters under consideration in the main appeal; therefore, the trial court retains jurisdiction to make the award. Katz v. N.M.E. Hosp., Inc., 842 So.2d 853, 854-55 (Fla. 4th DCA 2002); Bernstein v. Berrin, 516 So.2d 1042, 1042-43 (Fla. 2d DCA 1987).

Heirs of Waldon’s Estate v. Rotella, 427 So.2d 261 (Fla. 5th DCA 1983), is distinguishable. In that case, the court found review of the-record was necessary in the award of attorney’s fees to a personal representative because the trial court was required to determine which efforts were for the benefit of the estate where the attorney seeking fees wore several “hats” in dealing with the estate, including being a trustee in bankruptcy, attorney for the trustee, and attorney for the personal representative. Whether the attorney was entitled to be paid from estate funds for services rendered could be determined only by reviewing the pleadings and filings. 427 So.2d at 264. Moreover, the court did not determine as a matter of law that an attorney’s fee award could not be made when the record on appeal was already lodged in the appellate court.

We hold that the trial court did not lose jurisdiction, nor did it err in entering the award of attorney’s fees without the record under the facts of this case. While having the record before it may be necessary in cases such as Rotella, the trial court’s award of attorney’s fees without the record does not amount to reversible error in this case where the motion was heard by the same judge who tried the case and was familiar with the proceedings.

Finally, we address Schultz’s claim that the failure of the attorney who performed the services to testify is fatal to an award of attorney’s fees. Although Cohen v. Cohen, 400 So.2d 463 (Fla. 4th DCA 1981), held that a trial court’s award of attorney’s fees requires the testimony of the attorney performing the services, the opposing party in that case made an objection at trial regarding the failure of the attorney to testify as to the services performed. See also Atl. Coast Dev. Corp. v. Hofco, Inc., 405 So.2d 797, 797 (Fla. 4th DCA 1981). Our holding was made specifically “in view of appellant’s objection” to the lack of testimony. Cohen, 400 So.2d at 465.

Here, Schultz did not object at the fee hearing. The court sought to streamline the proceedings by allowing the proffer of all witnesses’ testimony, followed by the court asking each witness if he or she concurred with the proffer. Then, live cross-examination would be allowed. Schultz did not object to this procedure. In accordance with it, the attorney who performed the services entered his time records and proffered his testimony that the records were accurate and reflected the time he spent on the file. Again, Schultz did not object to the proffer or that the attorney had not been sworn. Moreover, he did not cross-examine the attorney regarding his records.

“It is settled that the purpose of the contemporaneous objection rule is to apprise the trial judge of the putative error and to preserve the issue for intelligent review on appeal.” Starks v. State, 627 So.2d 1194, 1199 (Fla. 3d DCA 1993) (citing Castor v. State, 365 So.2d 701 (Fla. 1978)). An objection must be specific enough to inform the trial court of the alleged error. Luda v. State, 860 So.2d 457, 458 n. 1 (Fla. 4th DCA 2003). There was no objection in this case, let alone anything to apprise the court of the specific error claimed on appeal. We therefore find that the issue has not been preserved.

We affirm as to all other issues not specifically addressed.

Affirmed.

KLEIN and GROSS, JJ., concur.


text:
    HOMER & BONNER, P.A., et al., Appellants, v. MIAMI-DADE COUNTY, et al., Appellees.
    No. 3D04-1752.
    District Court of Appeal of Florida, Third District.
    Sept. 29, 2004.

      Homer Bonner Delgado, and Peter W. Homer, and Francisco 0. Sanchez; and Leonard H. Rubin, Miami; and Sterns Weaver Miller Weissler Alhadeff & Sitter-son, and Joseph Cartolano, and Patrick Barry, Fort Lauderdale; and Reimer & Rosenthal, and Alex P. Rosenthal, Weston, for appellants.
    Robert A. Ginsburg, Miami Dade County Attorney, and Jess McCarty, Assistant County Attorney; and Maria J. Chiaro, Interim City Attorney; and Korge & Korge, and Thomas J. Korge and Christopher G. Korge; and Boies Schiller & Flex-ner, and Mark J. Heise; and Weiss Serota Helfman Pastoriza Guedes Cole & Bon-iske, and Joseph H. Serota, and Edward G. Guedes; and Jorge L. Fernandez; and John Hanson, Miami, for appellees.
    Akerman Senterfitt, and Lawrence D. Silverman, Miami, as Amicus Curiae, for appellees.
    Before SCHWARTZ, C.J. and GERSTEN and GODERICH, JJ.
   PER CURIAM.

Homer and Bonner, P.A. (“H & B”); Park One of Florida (“Park One”); and Leonard and Sandra Rubin (“Rubin”)(collectively “appellants”) appeal the trial court’s final judgment approving the amended settlement in a class action suit filed against the City of Miami (“City”). We affirm the substantive portion of the amended settlement agreement. However, we reverse and remand the trial court’s award of attorney’s fees.

Two separate parties brought class action suits against the City challenging the validity of parking surcharges paid at City parking facilities. The surcharge was added pursuant to Section 218.503(5)(a), Florida Statutes (1999). After the surcharge statute was declared unconstitutional, see City of Miami v. McGrath, et al., 824 So.2d 143 (Fla.2002), and after some negotiations, the parties reached an amended settlement agreement. The amended settlement agreement created a common fund of $14 million from which class members could claim a surcharge refund. We affirm this portion of the amended settlement.

The trial court also awarded $8.6 million in attorney’s fees. Using the lodestar method, the trial court awarded counsel hourly rates of $400 and $450 per hour. The trial court then applied a 3.8 multiplier. We agree that the court correctly used the lodestar method to determine the amount of attorney’s fees but find that it was inappropriate to apply a multiplier in this case. See Kuhnlein v. Dep’t of Revenue, 662 So.2d 309 (Fla.1995).

A multiplier was excessive because this case was neither complex nor uncertain. See Kuhnlein v. Dep’t of Revenue, 662 So.2d at 313. Once the statute was declared unconstitutional, the attorneys simply had to negotiate the best deal. Additionally, the class attorney admitted in open court that an hourly fee of between $400-$450 per hour was a more than adequate hourly wage. The Court, along with every attorney in the courtroom, agreed. We reverse and remand for the trial court to enter a new final judgment awarding attorney’s fees in the amount of $952,389.75.

Affirmed in part, reversed in part, and remanded with instructions.

      . Patrick McGrath brought the original class action suit against the City challenging the validity of a parking surcharge at parking facilities in the City ("non-County parkers”). Miami Dade County ("County”), in a separate lawsuit, also challenged the validity of the surcharge imposed by the City on users of parking facilities owned or operated by the County but located in the City ("County par-kers”). The City, the County and class counsel agreed to settle both the McGrath case and the County’s case in a combined settlement resulting in the “amended settlement.” The appellants sought to intervene in the McGrath class action suit to assure any settlement was fair to all class members.


text:
    Jerry GALINDO, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-929.
    District Court of Appeal of Florida, Fourth District.
    Sept. 29, 2004.
    Siobhan Helene Shea, Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm without prejudice to appellant’s right to seek postconviction relief.

STEVENSON, GROSS and HAZOURI, JJ., concur.


text:
    Gloria ALOITO-ALEXANDER, Appellant, v. TOLL BROS., INC., a foreign corporation, and John Barr, individually, Appellees.
    No. 4D03-2788.
    District Court of Appeal of Florida, Fourth District.
    Sept. 29, 2004.
    Roderick V. Hannah of Becker & Polia-koff, P.A., Fort Lauderdale, for appellant.
    Gary D. Weinfeld of Gary D. Weinfeld, P.A., Miami, for appellees.
   PER CURIAM.

In this appeal, Gloria Aloito-Alexander challenges an order dismissing with prejudice defamation/slander claims against her employer, Toll Bros., Inc., and her co-employee, senior project manager John Barr. Because the complaint adequately alleged the publication by John Barr of false statements concerning Alexander which resulted in her termination, we reverse the dismissal of the claim as to Barr. See LRX, Inc. v. Horizon Assocs. Joint Venture ex rel. Horizon-ANF, Inc., 842 So.2d 881 (Fla. 4th DCA), review denied, 859 So.2d 514 (Fla.2003); Morse v. Ripken, 707 So.2d 921 (Fla. 4th DCA 1998). We reverse as to Toll Bros., Inc., as well, on the basis of respondeat superi- or since there were allegations in the complaint suggesting that Toll Bros., as employer, condoned Barr’s alleged defamatory conduct. See Jackson v. Bellsouth Mobility, Inc., 626 So.2d 1085 (Fla. 4th DCA 1993). We make no ruling on the merits of this claim; we simply hold that the count should not have been dismissed as a matter of law at this stage of the litigation.

Accordingly, the order of the trial court dismissing with prejudice counts I and II of the Second Amended Complaint is reversed.

REVERSED and REMANDED.

STONE, STEVENSON and HAZOURI, JJ., concur.

      . Alexander alleged, among other things, that Barr informed her superiors at Toll Bros, that Alexander made numerous paperwork mistakes, that another employee actually had to complete Alexander’s work, and that there were numerous customer complaints concerning Alexander. Alexander alleged that all of these statements, which resulted in her termination, were false.


text:
    Christopher SWAIN, Appellant, v. Marianne SWAIN, Appellee.
    No. 4D03-3239.
    District Court of Appeal of Florida, Fourth District.
    Sept. 29, 2004.
    Robert J. Puzio of the Law Offices of Robert J. Puzio, Fort Lauderdale, for appellant.
    No brief filed for appellee.
   PER CURIAM.

Appellant sued his former wife for malicious prosecution and the case was set for trial at 10:00 A.M. He filed a notice of voluntary dismissal without prejudice about twenty minutes before the trial, and neither he nor his counsel appeared at the trial. The wife then moved for a dismissal with prejudice for willful failure to comply with the court’s order to appear for trial, and the court dismissed the complaint with prejudice. Once the notice of voluntary dismissal was filed under rule 1.420(A), however, the trial court was without the power to enter a subsequent order of dismissal with prejudice. Randle-Eastern Ambulance Serv., Inc. v. Vasta, 360 So.2d 68, 69 (Fla.1978). Reversed.

FARMER, C.J., KLEIN, J., and BERGER, WILLIAM J., Associate Judge, concur.


text:
    Denise CHIANESE, Appellant, v. Gregory A. BRADY, Appellee.
    No. 4D03-3588.
    District Court of Appeal of Florida, Fourth District.
    Sept. 29, 2004.
    Michele K. Cummings and Robyn L. Vines of Ruden, McClosky, Smith, Schus-ter & Russell, P.A., Fort Lauderdale, for appellant.
    Cynthia L. Greene of Law Offices of Greene, Smith & Associates, P.A. and Law Offices of Henry M. Bugay, Miami, for appellee.
   WARNER, J.

In a settlement agreement to a paternity suit, the father, who lived in Texas, agreed that should he default on obligations under the agreement for more than thirty days after written notification, he would consent to Florida jurisdiction of the support issues. The father defaulted, and the mother filed suit in Florida to enforce the agreement and for modification. Although the father neither filed a sworn motion to dismiss nor testified on the issue of venue, the trial court dismissed the petition after concluding that venue was in Texas. We reverse.

In settling the paternity action, the parties entered into a “Parental Responsibility and Mediated Settlement Agreement” that provides:

Support jurisdiction will be in the State of Texas for as long as the Father resides in the State of Texas and ... is not in default of his obligations under this Agreement by more than 30 days after written notification of default....

Otherwise, all suits regarding child support and enforcement of the financial obligations relating to the child would be brought in Florida. The father agreed to submit himself to the jurisdiction of Florida for the purposes of the agreement, and the mother agreed to submit herself to Texas jurisdiction so long as jurisdiction has not transferred to Florida pursuant to the agreement.

The mother filed a petition in Florida for modification of child support and enforcement of the terms of the agreement. She alleged that the father had failed to obtain or maintain a life insurance policy as required to secure his child support. He also failed to pay child care for the minor child for six months and failed to pay the proper amount of child support. She further alleged that notice was given of the defaults. In a footnote, the mother conceded that the father had remedied both the failure to pay child care and failure to pay the proper amount of child support months after he received notification of the default.

The father responded with an unsworn motion to dismiss in which he alleged that pursuant to the parties’ agreement any modification actions must be brought in Texas. The court deferred ruling on the venue issue until it held a hearing to determine whether the father was in default pursuant to the parties’ agreement.

At the hearing, the court did not take testimony. Instead, the father’s attorney admitted the defaults but explained their circumstances. As to the child care, the mother took the child out of the daycare center and left the child with her mother, who charged for her service. However, after being put on notice of the default, the father resumed making payments for child care. With respect to the life insurance, he explained that he had a policy through his employment, but he was terminated from his position and lost his coverage. He said he executed a will and named the child as primary beneficiary. Ultimately, the father obtained insurance about four months after the suit was filed. He did not produce the policy, and the mother sought to offer evidence that he was not in fact insured.

The trial court refused to take any evidence and granted the father’s motion to dismiss the petition, determining that the father did not breach the agreement and that any default by the father was “not significant enough to change the agreement.” The court ordered the support issues to be heard in Texas, thus changing venue of the proceedings.

The mother contends that the father did not satisfy his burden of proof that the suit was not properly brought in Florida. The defendant’s burden can only be satisfied by pleading and proving facts showing that venue is improper. Davis v. Dempsey, 343 So.2d 950, 952 (Fla. 3d DCA 1977). Here, the father failed to do that. Perhaps he could have done so, but the trial court refused to hear evidence on the issue, choosing instead to listen only to the attorneys’ arguments.

We reject the father’s contention that, as a matter of law, he was entitled to a change in venue. The mother alleged three defaults of the provisions of the agreement, and the default on securing insurance had not been cured at the time of trial. The trial court deemed this to be an insubstantial default. Nevertheless, the contract does not provide that the default be material. It provides that jurisdiction resides in Texas for support issues “so long as the father is not in default of his obligations” for more than thirty days. The contract is unambiguous and does not require interpretation.

Because the father did not prove that venue was improper, we reverse. We remand for a new hearing where both parties can present evidence on the issue.

KLEIN and TAYLOR, JJ., concur.


author: KLEIN, J. FARMER, C.J.,

text:
    Elba WHITLEY and Henry Whitley, Appellants, v. Debra WARREN, Appellee.
    No. 4D03-3531.
    District Court of Appeal of Florida, Fourth District.
    Sept. 29, 2004.
    Roy D. Wasson of Wasson & Associates, Miami and Milton S. Blaut of the Law Offices of Abrams Anton, P.A., Hollywood, for appellants.
    Frances F. Guasch of Luis E. Ordonez & Associates, Miami, for appellee.
   KLEIN, J.

After suffering a defense verdict in a personal injury case, appellant plaintiff moved for a new trial alleging newly discovered evidence. Her motion included an affidavit from the first doctor who examined her. It stated that he had just discovered handwritten notes, which included more complaints of pain after the accident than the typewritten notes he relied on at trial. We affirm the trial court’s denial of the motion.

Defendant admitted liability for the rear end collision, and the only issue at trial was whether plaintiffs torn rotator cuff was caused by the accident. The first physician to examine plaintiff after the accident was Dr. Greenwald, a neurosurgeon, whose typewritten records reflected that she had complained only of lower back pain and had no remarkable findings as to her right shoulder. This was three days after the accident. Six days after that plaintiff went to a chiropractor and indicated neck, mid back and low back pain. The chiropractor did not examine her shoulder.

After around nine months with no improvement, Dr. Greenwald recommended that plaintiff see an orthopedist, who obtained an MRI showing a torn rotator cuff. The orthopedist operated and testified that it was related to the auto accident. He also testified that sometimes patients with shoulder injuries misinterpret their shoulder pain as being neck pain. Another orthopedist testified that patients can sometimes interpret pain as being from the neck when it is caused by a shoulder injury.

It was the position of the defense that, because there had been no discovery of the rotator cuff tear until nine months after the accident, it did not result from the accident. The jury returned a verdict for the defendant and shortly thereafter plaintiff moved for a new trial based on newly discovered evidence. Attached was Dr. Greenwald’s affidavit to the effect that his typewritten records, on which he based his testimony, indicated only back pain, and he had assumed that his handwritten notes had been destroyed. He had recently become aware that his handwritten notes were in a warehouse, obtained those notes, and those notes indicated that plaintiff had also complained of neck pain. The trial court denied the motion without giving reasons.

A motion for new trial based on newly discovered evidence should be granted when: 1) it appears that the new evidence is such that it will probably change the result if a new trial is granted, 2) the evidence has been discovered since the trial, 3) the evidence could not have been discovered before the trial by the exercise of due diligence, 4) the evidence is material to the issue, 5) the evidence is not merely cumulative or impeaching. Resort of Indian Spring Inc. v. Indian Spring Country Club, 747 So.2d 974, 978 (Fla. 4th DCA 1999). Our standard of review is abuse of discretion. McDonald v. Pickens, 544 So.2d 261, 264 (Fla. 1st DCA 1989).

The parties devoted much argument to whether plaintiff exercised due diligence; however, we need not address that, as we conclude that plaintiff has not demonstrated an abuse of discretion as to the probable change of the result if a new trial were granted. In addition, the newly discovered evidence was cumulative.

Contrary to Dr. Greenwald’s testimony that plaintiff had indicated only low back pain on her first visit three days after the accident, plaintiff testified that she had told him that she had low back pain and shoulder pain. The new evidence, however, did not confirm plaintiffs testimony that she complained of shoulder pain. It added only the fact that she complained of neck pain. The new evidence of neck pain complaints to Dr. Greenwald three days after the accident, however, was cumulative to her trial evidence of her complaint of neck pain nine days after the accident to her chiropractor. The trial court would accordingly have been well within its discretion in finding that, if the jury had known she complained of neck pain three days after the accident, it would not have produced a verdict that her shoulder injury was caused by the accident. Affirmed.

BERGER, WILLIAM J., Associate Judge, concurs.

FARMER, C.J., dissents with opinion.

FARMER, C.J.,

dissenting.

The principal position of defendants throughout the trial in this personal injury action was that at her first visit three days after the accident plaintiff never told her examining neurosurgeon that she had pain in the neck or shoulder area. Defendants argued that plaintiff did not have “referred” pain in the shoulder because she made no complaint of neck pain when she first visited the neurosurgeon. That was the essential thrust of all of defendants’ examination of witnesses and, indeed, of their frequent emphasis on the absence in the neurosurgeon’s record of any notation of pain in the area of the neck or shoulder. In closing argument, defendants harped on the absence of any such complaint in the first post-accident visit.

Plaintiffs post trial motion made it clear that the neurosurgeon’s records used at trial were inadvertently not complete and that she had in fact complained of neck pain on the fateful first visit. The fault for the omission was clearly in the surgeon’s office, and not due to anything plaintiff did or failed to do.

The trial court’s denial of a new trial on the basis of newly discovered evidence does not attempt to explain the decision. It does not say, for example, that the neurosurgeon’s complete notes — which do show her complaining of neck pain — would not have led to a different result. The order does not hold plaintiff to have failed in diligence; and anyway there is no basis to find any lack of diligence.

I think the trial judge’s decision is an abuse of discretion. The evidence submitted to the jury was misleading, owing to the unwitting omission. Defendants’ entire position at trial was based on the failure to show the thing omitted from the doctor’s file in evidence. Because defendants’ very position at trial made the omission so critical, the jury’s result surely must have been based on the omission and the emphasis defendants gave it by so exploiting it. In the circumstances presented here, I should think the law would presume the outcome would likely have been different if the complete and correct evidence had been used.

To think otherwise is to suppose the verdict was based on vapors in the courtroom, or at least on something outside the record. Even if the verdict is based on credibility — that the jury did not believe plaintiff told the physician about neck or shoulder pain — the omitted record verified that very testimony. What discretion does a trial judge have to refuse to correct that kind of mistake? I think none, because I see this as a clear cut case where a new trial should be legally required to correct an indisputable and manifest injustice.

I would reverse for a new trial.


text:
    Cosimo MEZZOLLA, Appellant, v. STATE of Florida UNEMPLOYMENT APPEALS COMMISSION and Marine Exhaust Systems, Inc., Appellees.
    No. 4D03-3163.
    District Court of Appeal of Florida, Fourth District.
    Sept. 29, 2004.

      Cosimo Mezzolla, West Palm Beach, pro se.
    John D. Maher, Tallahassee, for appellee State of Florida Unemployment Appeals Commission.
   PER CURIAM.

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

STEVENSON, GROSS and HAZOURI, JJ., concur.


text:
    In the interest of H.D.C., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-852.
    District Court of Appeal of Florida, Third District.
    Sept. 29, 2004.
    Bennett H. Brummer, Public Defender and Robert Godfrey, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Valentina M. Tejera, and Michael Hantman, Assistant Attorneys General, for appellee.
    Before COPE, GERSTEN, and GREEN, JJ.
   PER CURIAM.

Affirmed. See State v. Garcia, 431 So.2d 651 (Fla. 3d DCA 1983).


text:
    Craig TRAPP, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2005.
    District Court of Appeal of Florida, Third District.
    Sept. 29, 2004.
    Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Thomas C. Mielke, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GODERICH, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed in part, reversed in part. We find no abuse of discretion in the denial of the motion for mistrial made following the prosecutor’s allegedly improper comment on Trapp’s right to remain silent and thus affirm the conviction. However, we conclude that the trial court erred in sentencing him as a violent career criminal because spitting on a police officer is not a qualifying offense for sentencing as a violent career criminal. See Johnson v. State, 858 So.2d 1071 (Fla. 3d DCA 2003) (holding that spitting on a law enforcement officer is not a current qualifying offense for sentencing as a violent career criminal).

Affirmed in part, reversed in part, and remanded for a new sentencing proceeding.


text:
    Charles E. PERRY, Appellant, v. STATE of Florida, DEPARTMENT OF REVENUE, OFFICE OF CHILD SUPPORT ENFORCEMENT, etc., et al., Appellee.
    No. 3D03-1609.
    District Court of Appeal of Florida, Third District.
    Sept. 29, 2004.
    Brinkley, Henrys & Lewis and Tanya J. Brinkley, Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, and Toni C. Bernstein and William H. Branch, Assistant Attorneys General, for appellee.
    Before SCHWARTZ, C.J. and COPE and FLETCHER, JJ.
   PER CURIAM.

Charles E. Perry appeals from an order of the trial court, relating to child support. We reverse, and remand for the trial court to recalculate retroactive child support from the child’s birth on November 1,1985 until the issuance of the first temporary child support order dated July 25, 1994 (commencing July 15, 1994). However, the recalculation shall exclude the periods of time previously covered by the temporary child support orders, and shall use the best available financial records of Perry dating from November 1985 to July 1994. If such records are unavailable, the trial court shall impute relevant minimum wage to Perry for that time period. Because the record below contains no allegations or findings of fraud on Perry’s part, we decline to entertain the State’s claim raised for the first time on appeal.

We remand as well for the trial court to determine whether Perry was the residential custodian of the minor child at any time dating from the child’s birth on November 1, 1987 to the issuance of the first temporary child support order dated July 25, 1994, and to revise and recalculate retroactive support for that period of time accordingly.

Reversed and remanded.


text:
    Charles DOUGLAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1474.
    District Court of Appeal of Florida, Fourth District.
    Sept. 29, 2004.

      Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Frank J. Ingrassia, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. Dejesus v. State, 862 So.2d 847 (Fla. 4th DCA 2003); Giorgetti v. State, 821 So.2d 417 (Fla. 4th DCA 2002) aff'd, State v. Giorgetti, 868 So.2d 512 (Fla.2004).

POLEN, TAYLOR and MAY, JJ., concur.


text:
    BELLSOUTH TELECOMMUNICATIONS, INC., Appellant, v. FLORIDA POWER & LIGHT COMPANY, a Florida corporation, Anna Bravo, as Personal Representative of the Estate of Annette Bravo, deceased, Michelle Lopez and Emy Ochoa, Appellees.
    No. 4D03-2958.
    District Court of Appeal of Florida, Fourth District.
    Sept. 29, 2004.
    Carol A. Gart and John R. Hargrove of Gordon Hargrove & James, P.A., Fort Lauderdale, for appellant.
    Cheryl Kempf and David M. Lee, Juno Beach, for appellee Florida Power & Light Company.
   PER CURIAM.

Affirmed. See Holton v. H.J. Wilson Co., 482 So.2d 341 (Fla.1986).

KLEIN, SHAHOOD, JJ., and EMAS, KEVIN M., Associate Judge, concur.


text:
    Tyrone Joseph REED, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3755.
    District Court of Appeal of Florida, Fourth District.
    Sept. 29, 2004.
    Rehearing Denied Oct. 15, 2004.
    Domenic Landolina of Schultz & Lando-lina, P.A., Stuart, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse the revocation of appellant’s probation for failing to submit monthly written reports by mail. The evidence was that he had faxed at least several months of reports. The probation officer explained that the mail-in requirement was necessary so that a probationer’s address could be verified by a postmark. With a fax, the location of the sender can be verified by an area code. The conditions of probation did not expressly prohibit faxes. The probation officer had explained to appellant the procedure for mailing in reports. However, there was no evidence that he was told that faxes were prohibited. Based on the testimony at the hearing, under the circumstances of the case there was no willful violation of probation.

WARNER, SHAHOOD and GROSS, JJ., concur.


text:
    Burt Leon SETTS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-3794.
    District Court of Appeal of Florida, First District.
    Sept. 29, 2004.
    Burt Leon Setts, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

DENIED. Fla. R.Crim. P. 3.850(h); Denhart v. Dugger, 567 So.2d 1041 (Fla. 1st DCA 1990).

BENTON, PADOVANO and HAWKES, JJ., concur.