author: SILBERMAN, Judge.

text:
    H & M HEARING ASSOCIATES, LLC, Appellant, v. John A. NOBILE and Deborah Leasure d/b/a Clarity Hearing Center, Appellees.
    No. 2D06-2184.
    District Court of Appeal of Florida, Second District.
    March 2, 2007.

      Kenneth N. Johnson, Stanley D. Klett, Jr., and John T. Mulhall III of Rutherford Mulhall, P.A., Palm Beach Gardens, for Appellant.
    Karl C. Landsteiner of Karl C. Landsteiner, P.A., Fort Myers, for Appellee John A. Nobile.
    No appearance for Appellee Deborah Leasure d/b/a Clarity Hearing Center.
   SILBERMAN, Judge.

H & M Hearing Associates, LLC (H & M), appeals a nonfinal order denying its motion for temporary injunction regarding a covenant not to compete with its former employee, John A. Nobile (Nobile). Because the trial court failed to address an issue raised by H & M, we reverse and remand for the trial court to resolve the issue.

In November 2003, Nobile sold his hearing aid business to H & M for $250,000. The asset purchase agreement contained a noncompete provision that prohibited No-bile from directly or indirectly competing with H & M in Lee County for five years after Nobile left H & M’s employ. After the sale, Nobile continued in H & M’s employ until H & M fired him in May or June of 2005. In October 2005, H & M filed suit, alleging that Nobile violated the noncompete provision and seeking, among other things, temporary and permanent injunctive relief against Nobile. After H & M filed a motion for temporary injunction, the trial court conducted a multi-day evidentiary hearing.

The evidence reflects that Nobile, while employed by H & M, lent money to Deborah Leasure, a former H & M employee, to enable her to open Clarity Hearing Center (Clarity). Clarity is a hearing aid business located less than a mile from H & M’s business location and competes with H & M. When H & M learned of Nobile’s loan to Leasure, H & M terminated Nobile’s employment. Nobile then went to work for Clarity. He provided advice to Leas-ure in starting up her hearing aid business and permitted her to use his name and image in advertising for Clarity. Nobile continued to lend money to Leasure to finance Clarity, and he also executed a guaranty on Clarity’s account with Starkey, a major manufacturer of hearing aids. The guaranty allowed Clarity to purchase hearing aids on credit from Starkey. No-bile admitted that Leasure would have been unable to open her business without his assistance. After H & M filed suit, Nobile stopped working with Clarity.

On April 10, 2006, the trial court entered an order, finding that Nobile had not worked in violation of the noncompete provision since December 2005. Concluding that H & M failed to demonstrate the element of irreparable harm because No-bile quit working at Clarity in December 2005, the trial court denied the motion for temporary injunction. In its motion for rehearing, H & M argued that Florida law creates a presumption of irreparable harm and, further, that the evidence established the existence of irreparable harm. After the trial court denied H & M’s motion for rehearing, H & M sought review of this nonfinal order pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(B).

The standard of review regarding the grant or denial of a motion for temporary injunction is abuse of discretion. Ware v. Polk County, 918 So.2d 977, 979 (Fla. 2d DCA 2005); Supinski v. Omni Healthcare, P.A., 853 So.2d 526, 530 (Fla. 5th DCA 2003). At issue is whether H & M demonstrated the likelihood of irreparable harm, one of the four elements necessary to support a temporary injunction. See Santos v. Tampa Med. Supply, 857 So.2d 315, 316 (Fla. 2d DCA 2003); Bellach v. Huggs of Naples, Inc., 704 So.2d 679, 680 (Fla. 2d DCA 1997). H & M argues that irreparable harm is presumed in the situation of a covenant not to compete under section 542.335(l)(j), Florida Statutes (2003). See Variable Annuity Life Ins. Co. v. Hausinger, 927 So.2d 243, 244-45 (Fla. 2d DCA 2006). However, the presumption of irreparable harm is rebut-table. See Am. II Elecs., Inc. v. Smith, 830 So.2d 906, 908 (Fla. 2d DCA 2002); Don King Prods., Inc. v. Chavez, 717 So.2d 1094, 1095 (Fla. 4th DCA 1998). Nobile is essentially arguing that he rebutted the presumption by presenting evidence that he was no longer employed at Clarity Hearing. No one disputed the evidence that Nobile’s employment at Clarity ended on December 12, 2005. Thus, by March 15, 2006, the date of the last hearing on the motion for temporary injunction, No-bile had not been employed at Clarity for three months.

H & M relies on Burger King Corp. v. Weaver, 33 F.Supp.2d 1037 (S.D.Fla.1998), in which the court found that a temporary injunction was warranted even though the trademark infringement had ceased. The court stated “that, as a general principle, when conduct sought to be enjoined has ceased and is unlikely to resume, federal courts should not grant injunctive relief.” Id. at 1039. However, the court departed from the general principle, explaining that in an earlier case, Weaver

was found to have willfully infringed BK’s trademarks and service marks for a period of almost eight years, leading to the Final Judgment against Weaver of almost $5 million. Weaver apparently would have continued to infringe at the Kalispell restaurant had BK not filed its preliminary injunction motion. In addition, Weaver’s past trademark violations do indicate a danger that he would commit such violations in the future.

Id. at 1040. The court also found that Weaver would not be harmed by the entry of an injunction. Id.

We conclude that H & M’s reliance on Burger King is misplaced because the record here does not establish that Nobile had a prior history of violating the covenant not to compete. Similarly, in Stephan Co. v. Faulding Healthcare (IP) Holdings, Inc., 844 So.2d 676 (Fla. 4th DCA 2003), the Fourth District distinguished Burger King and reversed the temporary injunction that had been entered against the defendant manufacturer (Stephan). The court recognized “the need to demonstrate the threat of future harm in order to justify the entry of this extraordinary remedy.” Id. at 678. Based on the facts before it the court concluded, “Not only is there no history of repeated infringing activity on the part of Stephan, there is no basis to conclude that there is a danger of future violations.” Id.

Here, it appears that the trial court found no danger of future violations based on Nobile’s past employment at Clarity. Although Nobile only ceased the employment after H & M filed suit, Nobile did not have a prior history of violation as the defendant did in Burger King. Accordingly, we cannot say that the trial court abused its discretion in denying the injunction on this basis.

There is, however, another basis on which the trial court could arguably have granted injunctive relief, but the trial court failed to address it. In addition to presenting evidence and arguing at the temporary injunction hearing that Nobile’s employment with Clarity violated the covenant not to compete, H & M also addressed Nobile’s other conduct. H & M established that Nobile lent money to , Leasure for the express purpose of setting up a competing hearing aid business and that Nobile had signed a guaranty so that Leasure could obtain an account with Starkey, a major manufacturer of hearing aids. Leasure testified that without Nobile’s guaranty, Starkey probably would not have provided the product on credit to her business. Nobile admitted that Leasure could not have opened the business without his assistance.

H & M argues that Nobile’s lending of funds to Leasure and providing a guaranty to allow her to obtain product violated the covenant. At the hearing and in its orders denying a temporary injunction and denying the motion for rehearing, the trial court did not address the funding of the business and the guaranty of the Starkey account. H & M further argues that until the money lent to Leasure is repaid, No-bile has an interest in Clarity successfully competing against H & M. H & M contends that Clarity remains in business solely as a result of Nobile’s financial support and the guaranty, which it submits Nobile provided in violation of the noncom-pete agreement.

Because the trial court did not address whether the funding and the guaranty constitute an ongoing violation of the restrictive covenant, justifying injunctive relief, we reverse. On remand, the trial court must determine whether H & M is entitled to injunctive relief due to Nobile’s actions relating to funding the business and executing a guaranty.

Reversed and remanded.

WHATLEY and NORTHCUTT, JJ., Concur.

      . The agreement provides, among other things, that Nobile shall not directly or indirectly be actively engaged in the business of sales or service of hearing aids except as an employee of H & M. Further, the agreement provides that Nobile shall not "[o]wn, manage, control, operate, direct, join or participate in the ownership, management, operation, or control of any business which engages in the sales or service of hearing aids” in Lee County.

      . H & M named Deborah Leasure, d/b/a Clarity Hearing Center, as a defendant, but the parties later agreed to voluntarily dismiss Leasure from the lawsuit. The order appealed, however, retains her name in the style of the case.


source: Caselaw Access Project

author: SALCINES, Judge.

license: Public Domain

text:
    J.A., Appellant, v. STATE of Florida, Appellee.
    No. 2D06-932.
    District Court of Appeal of Florida, Second District.
    March 2, 2007.
    James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   SALCINES, Judge.

J.A. appeals the juvenile court order which adjudicated him delinquent of disorderly conduct. After a de novo review of the denial of J.A.’s motion for judgment of dismissal, we conclude that the State failed to present sufficient evidence to establish the elements of the crime of disorderly conduct. See R.J.K. v. State, 928 So.2d 499, 502 (Fla. 2d DCA 2006). Accordingly, we reverse the adjudication of delinquency and remand with directions that J.A. be discharged for the offense.

Reversed and remanded.

ALTENBERND and CASANUEVA, JJ., Concur.


author: PER CURIAM.

text:
    Max FENELON, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-314.
    District Court of Appeal of Florida, Fourth District.
    March 7, 2007.
    Max Fenelon, Sanderson, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Ulcena v. State, 925 So.2d 346 (Fla. 4th DCA 2006).

STONE, GROSS and MAY, JJ., concur.


text:
    Derick SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-5021.
    District Court of Appeal of Florida, Fourth District.
    March 7, 2007.
    Derrick Smith, Orlando, pro se.
    No response required for respondent.
   PER CURIAM.

Affirmed. See Fla. R.App. P. 9.315(a).

WARNER, SHAHOOD and MAY, JJ., concur.


author: CANADY, Judge. LaROSE, Judge,

text:
    Charles A. KETTELL, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2882.
    District Court of Appeal of Florida, Second District.
    March 7, 2007.

      James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Amanda Lea Colón, Assistant Attorney General, Tampa, for Appellee.
   CANADY, Judge.

Charles A. Kettell, Sr., appeals his second-degree felony conviction for shooting at, within, or into a building. Because the trial court gave — over Kettell’s objection— an erroneous instruction concerning the elements of the offense, we reverse the conviction.

Section 790.19, Florida Statutes (2003), provides: “Whoever, wantonly or maliciously, shoots at, within, or into ... any public or private building, occupied or unoccupied, ... shall be guilty of a felony of the second degree_” The State alleged that while Kettell was in his dwelling, he shot into an interior wall of the dwelling. Among the instructions the trial court gave to the jury concerning the elements of the offense was the following statement:

In order to sustain a conviction for wantonly or maliciously shooting at, ■within or into a building, the conduct must have been done with an intent to cause damage or injury. This intent element is fulfilled by a person who intentionally shoots at, within, or into a building for the primary purpose, or with the specific intent, of shooting at a person in or near the building, as well as by a person who shoots at, within, or into a building per se.

(Emphasis added.)

The defense objected to this instruction because the use of the phrase “per se” suggested that “just shooting into a building creates per se liability and that’s not the law.” The trial court abused its discretion in giving the instruction over Ket-tell’s objection.

The instruction states that the wanton or malicious “intent element is fulfilled ... by a person who shoots at, within, or into a building per se.” Per se means “[o]f, in, or by itself; standing alone, without reference to additional facts.” Black’s Lam Dictionary 1178 (8th ed.2004). The term per se carries with it a connotation of absolute liability. The instruction thus indicates that shooting at, within, or into a building is an act that “standing alone” — that is, without reference to the intent to cause damage or injury — is sufficient to satisfy the intent element of the offense. This is not a correct statement of the law. To prove a violation of section 790.19, it must be established that the act is done wantonly or maliciously. See Fla. Std. Jury Instr. (Crim.) 10.13.

In giving the incorrect instruction, the trial court relied on language in Holtsclaw v. State, 542 So.2d 437, 438-39 (Fla. 5th DCA 1989). See also Skinner v. State, 450 So.2d 595, 596 (Fla. 5th DCA 1984). As we have explained, we cannot accept the view that the language at issue constitutes a correct and clear statement of the law. The Holtsclaw court undoubtedly sought to express the view that an offense under section 790.19 may be established without showing that the defendant shot at someone. In other words, a defendant who shoots into a building can do so wantonly or maliciously even though he does not shoot at someone. Unfortunately, the language employed in Holtsclaw suggests that the intent element is fulfilled simply by showing that someone shot into a building without proving that the shooting was done wantonly or maliciously.

It is no doubt possible that a perceptive juror considering the full context of the instructions would discern that “the intent to cause damage or injury” was required both with respect to circumstances where the shooting is “at a person” and with respect to circumstances where it is not. But such a possibility is no basis for affirming a conviction based on the verdict of a jury given an instruction that was “confusing, contradictory, or misleading.” Butler v. State, 493 So.2d 451, 452 (Fla.1986).

This is not a case where “it appears from the whole record that the jury could not have been misled by the instructions.” Johnson v. State, 252 So.2d 361, 364 (Fla.1971), judgment vacated in part on other grounds, 408 U.S. 939, 92 S.Ct. 2875, 33 L.Ed.2d 762 (1972). The problem with the instructions is not that a portion of the instructions is unclear when viewed in isolation from the remainder of the instructions but clear when viewed in context. On the contrary, when the instructions here are considered in full context, the best that can be said of them is that they are contradictory and therefore confusing and misleading. “[Tjaken as a whole, the instructions ... given are [not] clear, comprehensive, and correct.” Maynard v. State, 660 So.2d 293, 297 (Fla. 2d DCA 1995).

Kettell was entitled to be judged by a jury which was given correct instructions concerning the elements of the offense charged against him. This is not a trivial technicality.

“It is an inherent and indispensable requisite of a fair and impartial trial under the protective powers of our Federal and State Constitutions as contained in the due process of law clauses that a defendant be accorded the right to have a Court correctly and intelligently instruct the jury on the essential and material elements of the crime charged and required to be proven by competent evidence.”

Scott v. State, 808 So.2d 166, 170 (Fla.2002) (quoting Gerds v. State, 64 So.2d 915, 916 (Fla.1953)), superseded on other grounds by statute, § 893.101, Fla. Stat. (2002), as recognized in Garcia v. State, 901 So.2d 788, 792 n. 1 (Fla.2005).

Here, the trial court did not “ ‘correctly and intelligently instruct the jury on the essential and material elements of the crime charged.’ ” Scott, 808 So.2d at 170 (quoting Gerds, 64 So.2d at 916). Accordingly, the judgment and sentence are reversed and the case is remanded for a new trial.

Reversed and remanded.

STRINGER, J., Concurs.

LaROSE, J., Dissents with opinion.

LaROSE, Judge,

Dissenting.

I respectfully dissent. In my view, the instruction given by the trial court was a proper explication of the law. Further, I cannot agree that the instruction was contradictory or confusing. I would affirm the conviction.

A recitation of the underlying facts places the instruction in context. Neighbors heard shots coming from Mr. Ket-tell’s apartment. They called the police. Upon searching the apartment, the police found four .38 caliber bullet holes in the floor boards of the apartment. Additionally, the police discovered a dismantled .38 caliber revolver, a 9½ wooden dowel, gun-cleaning brushes, a leather holster, a bottle of powder solvent, and a pouch of ammunition. Fortunately, no one was hurt. Apparently, Mr. Kettell was not shooting at anyone. Our record does not suggest, however, that he fired the shots accidentally-

The police arrested Mr. Kettell and charged him under section 790.19, Florida Statutes (2003):

Whoever, wantonly or maliciously, shoots at, within, or into, or throws any missile or hurls or projects a stone or other hard substance which would produce death or great bodily harm, at, within, or in any public or private building, occupied or unoccupied, or public or private bus or any train, locomotive, railway car, caboose, cable railway car, street railway car, monorail car, or vehicle of any kind which is being used or occupied by any person, or any boat, vessel, ship, or barge lying in or plying the waters of this state, or aircraft flying through the airspace of this state shall be guilty of a felony of the second degree ....

On its face, the statute does not require an intention to shoot the gun at a person. To secure a conviction, the State had to prove beyond a reasonable doubt that Mr. Ket-tell wantonly or maliciously shot his gun in his apartment. Id.

The standard criminal jury instructions address the offense with which the State charged Mr. Kettell. Fla. Std. Jury Instr. (Crim.) 10.13. The State, however, requested two additional instructions based on Holtsdaw v. State, 542 So.2d 437 (Fla. 5th DCA 1989). The Holtsdaw facts are strikingly similar to those before us. Mr. Holtsdaw shot his gun six times into the floor and walls of his trailer. Id. at 438. He appealed his conviction, arguing that section 790.19 was inapplicable because (1) he owned the trailer, and (2) he either did not intend to harm anyone or did not aim at anyone. Id. The Fifth District rejected these defenses. “ ‘[SJection 790.19 ... is violated by a person who intentionally shoots at, within, or into a building for the primary purpose, or with the specific intent, of shooting at a person in or near the building, as well as by a person who shoots at, within, or into a building per se. ’ (emphasis added).” Id. at 438-39 (quoting Skinner v. State, 450 So.2d 595, 596 (Fla. 5th DCA 1984)); see also Ballard v. State, 447 So.2d 1040 (Fla. 2d DCA 1984). Thus, according to Holtsdaw, the statute does not require an intent to harm or shoot at anyone. The mere shooting in the building, if done with the requisite wantonness or maliciousness, is enough to violate section 790.19. Holtsdaw does not eliminate the wantonness or maliciousness element of the statute.

.Anticipating that Mr. Kettell would raise arguments akin to those rejected in Holt-sclaw, the State requested instructions stating that the fact that a defendant fired in his own home or was not shooting at a person were not defenses. Mr. Kettell objected. Defense counsel assured the trial court that he would not raise these matters in closing argument. As a result, the trial court declined to give these instructions, concluding that the standard instructions were sufficient. The trial court made clear to Mr. Kettell’s counsel, however, that it would give the Holtsclaw instructions if counsel argued the inappropriate defenses before the jury. Ignoring this admonition, defense counsel suggested in closing argument that the jury could not find Mr. Kettell guilty because he fired his gun in his own apartment and because no one was hurt. Over defense objection, the trial court gave the requested Holtsclaw instructions. The trial court instructed the jury as follows:

To prove the crime of Shooting at, within or into a Building, the State must prove the following three elements beyond a reasonable doubt:
1. CHARLES ALLAN KETTELL shot a firearm or hurled or projected a stone or other hard substance that would produce death or great bodily harm.
2. He did so at, within, or into a private building, occupied or unoccupied.
3. The act was done wantonly or maliciously. •
“Wantonly” means consciously and intentionally, with reckless indifference to consequences and with the knowledge that damage is likely to be done to some person.
“Maliciously” means wrongfully, intentionally, without legal justification or excuse, and with the knowledge that injury or damage will or may be caused to another person or the property of another person.
In order to sustain a conviction for wantonly or maliciously shooting at, within or into a building, the conduct must have been done with an intent to cause damage or injury. This intent element is fulfilled by a person who intentionally shoots at, within, or into a building for the primary purpose, or with the specific intent, of shooting at a person in or near the building, as well as by a person who shoots at, within, or into a building per se.
Ownership of the building is no defense to the offense of maliciously or wantonly shooting at, within, or into a building.

(Emphasis added.)

Although the added instructions tracked the Holtsclaw language, Mr. Kettell argues that they were incorrect and confusing. According to Mr. Kettell, the words “per se” impermissibly suggested to the jury that any shooting at, in or into a building satisfied the wanton or malicious intent requirement, effectively eliminating that statutory element altogether. Under these instructions, argues Mr. Kettell, the jury could have convicted him even if he shot his gun accidentally.

Mr. Kettell was entitled to jury instructions that properly described the elements of the offense. See Garcia v. State, 901 So.2d 788, 794 (Fla.2005). The trial court properly instructed the jury. As for the alleged over-inclusiveness of the instructions, Mr. Kettell never asserted an accidental shooting defense, and the jury-heard no facts supporting such a defense. In any event, the firing of four bullets into the apartment walls would seem to undermine such a defense. Further, Mr. Ket-tell’s ex-wife testified at trial that she asked him why he was shooting guns in the apartment. Mr. Kettell responded that he did not know why, but it did not matter because nobody could prove it.

More basic, however, the trial court properly instructed the jury on each element of the crime. The trial court listed the three elements required to secure a conviction under section 790.19. The trial court also defined the intent component of the crime. Quite simply, the jury knew that it could convict Mr. Kettell only if the evidence established, beyond a reasonable doubt, that he maliciously or wantonly fired his gun in his apartment. Any argument that the added Holtsclaw instructions eliminated the intent element does not persuade me. The statute recognizes no defense that a defendant fired into his own dwelling or that he was not shooting or intending to shoot at anyone. The use of the “per se” language from Holtsclaw does no more than recognize that these defenses do not exist under section 790.19. Indeed, the trial court gave these instructions only after defense counsel attempted to convince the jury otherwise. The evidence before the jury was sufficient to support a guilty verdict. Read as a whole, the instructions properly advised the jury of the elements of the crime and were not, in my view, contradictory, confusing, or misleading. See Willcox v. State, 258 So.2d 298, 300 (Fla. 2d DCA 1972); Diez v. State, 359 So.2d 55, 56 (Fla. 3d DCA 1978) (affirming propriety of jury instruction where challenged portion, read in context, was not misleading).

I would hold that the trial court did not abuse its discretion in giving the jury instructions requested by the State. See James v. State, 695 So.2d 1229, 1236 (Fla. 1997) (stating abuse of discretion standard for giving or withholding of jury instruction).

      . The trial judge commented:
      [Y]ou said you were not going to argue that issue, but then you went ahead and argued it. So I told them if, you know, after the argument if you raised that issue that was covered by his instruction, that I was going to change the instruction. So you did, so I am.

      . It is basic in our criminal law that instructions must be considered in relation to each other and all together and not in isolation. Instructions ... must give the jury a full, fair, complete and correct statement of the rules of law applicable to the case, but material errors and inaccuracies in various charges of the Trial Judge's complete instructions to the jury may be corrected and cured by other charges given, and if it appears from the whole record that the jury could not have been misled by the instructions, then the conviction should not be reversed on account of any alleged inaccuracy of a single charge.

        Johnson v. State, 252 So.2d 361, 364 (Fla. 1971), judgment vacated in part on other grounds by Johnson v. Fla., 408 U.S. 939, 92 S.Ct. 2875, 33 L.Ed.2d 762 (1972); accord Willcox, 258 So.2d at 300.


text:
    Eva SULLIVAN, Appellant, v. GATES ENERGY and Gab Robbins, Appellees.
    No. 1D06-2443.
    District Court of Appeal of Florida, First District.
    March 8, 2007.

      Eva Sullivan, pro se, Appellant.
    Lori M. Little of Edward T. LeFever, P.A., Ocala, for Appellees.
   PER CURIAM.

Dismissed. See Bogar-Sanabria v. Beall’s Inc., 937 So.2d 824, 824 (Fla. 1st DCA 2006); Valerio v. Lee Mem’l Health Si/s., 858 So.2d 1227, 1228 (Fla. 1st DCA 2003).

BARFIELD, BENTON, and POLSTON, JJ., concur.


text:
    Curtis GRAHAM, Petitioner, v. John RUTHERFORD, Respondent.
    No. 1D07-0226.
    District Court of Appeal of Florida, First District.
    March 8, 2007.
    Curtis Graham, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Logan v. State, 846 So.2d 472 (Fla.2003).

ALLEN, DAVIS, and BENTON, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Donald Ray WAGNER, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-1930.
    District Court of Appeal of Florida, Second District.
    March 9, 2007.

      James Marion Moorman, Public Defender, and Jeffrey M. Hazen, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

Donald Ray Wagner appeals his convictions for possession of cocaine with intent to sell and for possession of paraphernalia. He argues that the State failed to prove that he was in constructive possession of the contraband. We agree and reverse. The State’s evidence at trial reflected that the police executed a search warrant at the home Wagner shared with his girlfriend, Celestine Mitchell. In the couple’s bedroom the officers found cocaine, a small scale, baggies, and cash. Except for some of the money, all of the items were concealed from view. Drugs were found under a dresser and in the breast pockets of two men’s suits and a shirt that were among the clothes hanging in the closet. The scale and baggies were in a cigar box. An officer testified that when reading the warrant to Wagner prior to the search, the police informed him that they were looking for cocaine on the premises, and they asked if he would cooperate by answering questions. According to the officer, Wagner declined and stated that the police had “planted shit.”

Mitchell testified for the defense. She asserted that the drugs belonged to her and that she had concealed them in the house without Wagner’s knowledge because he opposed her drug use. She explained that she considered Wagner’s suits to be a safe hiding place because he worked in lawn service and never wore a suit unless there was a funeral.

Wagner contends, as he did below, that the State failed to prove that he was in constructive possession of the drugs and paraphernalia. In a constructive possession case, the State’s burden is to show beyond a reasonable doubt that the defendant knew of the presence of the contraband and that he had the ability to exercise dominion and control over it. See Diaz v. State, 884 So.2d 387, 389. (Fla. 2d DCA 2004); see also Woods v. State, 765 So.2d 255, 257 (Fla. 2d DCA 2000). Moreover, a special standard applies in circumstantial evidence cases. State v. Law, 559 So.2d 187 (Fla.1989). “Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.” Id. at 188.

When, as in this case, contraband is found in a location that was accessible to more than one person, a defendant’s knowledge of its presence and ability to exercise dominion and control will not be inferred; these elements must be established by independent proof. Woods, 765 So.2d at 257; Diaz, 884 So.2d at 389. This may consist of evidence that the defendant had actual knowledge of the presence of the contraband or evidence of incriminating statements or circumstances, other than simple proximity to the contraband, from which the jury could infer the defendant’s knowledge. Woods, 765 So.2d at 257.

In Woods, the police observed a traffic violation and followed the car into a convenience store parking lot. The car was occupied by a driver and two passengers. When the driver exited, a cigar tube fell out of the car, and the driver kicked it under the car. One officer retrieved the fallen item and discovered drugs inside. The other officer arrested the driver for possession of drugs, and the driver then shouted to bystanders: “They planted it on me.” Id. at 256. The State relied on the driver’s statement and his action in kicking the cigar tube under the car as the necessary evidence to show his knowledge of the presence of drugs. This court reversed, concluding that the statement actually disclaimed ownership and that the “kick and the circumstances surrounding it are not sufficient to establish knowledge of the cocaine’s presence and are consistent with Woods’ reasonable hypothesis of innocence.” Id. at 257.

Likewise, we conclude that Wagner’s statement did not suffice to establish beyond a reasonable doubt his knowledge of the presence of drugs. Here the State failed to prove anything more than Wagner’s proximity to the contraband, in a location jointly occupied with his girlfriend. See Diaz, 884 So.2d 387 (reversing constructive possession when drugs were found in shoe box accessible to three people and State failed to present indepéndent proof of defendant’s knowledge).

Although the drugs were found in Wagner’s suits, they were hidden in pockets and the clothing was crammed into a shared closet. Furthermore, his girlfriend testified that the suits were a perfect hiding place for her stash because Wagner so rarely wore dress clothes. The State did not introduce any fingerprint evidence connecting Wagner to the contraband or the containers it was found in, and it did not introduce any testimony that Wagner wore suits to church every Sunday or at any other time. In this circumstantial evidence case, the State failed to offer evidence rebutting Wagner’s reasonable hypothesis of innocence. Accordingly, we reverse.

Reversed.

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


text:
    Tarrus Hakeem KELLY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-6086.
    District Court of Appeal of Florida, First District.
    March 12, 2007.
    Nancy A. Daniels, Public Defender, Second Judicial Circuit, and Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, for Petitioner.
    Bill McCollum, Attorney General, and Sheron Wells, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Tarrus Hak-eem Kelly is hereby afforded a belated appeal from judgments and sentences in Escambia County case numbers 2005-CF-004874, 2005-CF-000433, 2005-CF-004156, and 2005-CF-00432. In addition to judgment and sentence, petitioner may obtain review of the trial court’s order denying motion to withdraw plea which was made in accordance with Florida Rule of Criminal Procedure 3.170(0- See Fla. R.App. P. 9.020(h). Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). The circuit court is directed to appoint counsel for Kelly in the direct appeal if he qualifies for such an appointment.

PETITION GRANTED.

WOLF, VAN NORTWICK, and LEWIS, JJ., concur.


text:
    Luis CINTRON, Appellant, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Appellee.
    No. 1D06-1065.
    District Court of Appeal of Florida, First District.
    March 13, 2007.
    Luis Cintron, pro se, Appellant.
    Bill McCollum, Attorney General, and Alexandria E. Walters, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the circuit court’s dismissal of his petition for writ of mandamus as being untimely, and its imposition of a lien on Appellant’s inmate trust account.

We affirm the dismissal of Appellant’s petition for writ of mandamus without discussion. However, the trial court’s imposition of a lien on Appellant’s inmate trust account is reversed. See Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003).

AFFIRMED in part and REVERSED in part.

DAVIS, PADOVANO, and HAWKES, JJ., concur.


text:
    John S. LIZOTTE, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D06-1784, 1D06-1787, 1D06-1788, 1D06-1790.
    District Court of Appeal of Florida, First District.
    March 13, 2007.

      Nancy A. Daniels, Public Defender, and Phil Patterson, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We hold that the State proved by a preponderance of the evidence that appellant substantially, willfully violated Condition (5) of his probation orders by failing to live and remain at liberty without violating any law by committing the offense of burglary. Appellant concedes the evidence supported a finding that he violated Special Condition (16) by failing to perform the required public service hours.

The state concedes the trial judge erred in finding appellant violated condition (1), failing to report to the probation officer. Further, the trial judge did not make an oral pronouncement as to the remaining violations set forth in the order revoking probation.

In light of appellant’s substantial violation of the orders of probation by committing the new offense, together with the appellant’s violation in failing to perform the required public service hours, we find it unnecessary to remand for reconsideration of the issue of revocation. We remand, however, with directions for the trial court to amend the written revocation order by striking the remaining conditions. Vanstraten v. State, 901 So.2d 391 (Fla. 1st DCA 2005); Taylor v. State, 840 So.2d 371 (Fla. 1st DCA 2003).

BARFIELD, BENTON, and POLSTON, JJ., concur.


text:
    Kelvin FRAZIER, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-5281.
    District Court of Appeal of Florida, First District.
    March 13, 2007.
    Kelvin Frazier, pro se, Petitioner.
    Bill McCollum, Attorney General, and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

In this petition for writ of certiorari, Petitioner challenges the circuit court’s imposition of a lien on his inmate trust account for costs incurred in filing a petition for writ of mandamus. The petition for writ of mandamus challenged a disciplinary proceeding, which resulted in the loss of a portion of Petitioner’s gain-time.

Because Petitioner’s challenge directly affected the time he will spend in prison, the circuit court departed from the essential requirements of law by placing a lien on his inmate trust account. See Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003). The petition for writ of certiorari challenging the imposition of a lien on Petitioner’s inmate account is GRANTED, and the order imposing the lien is QUASHED.

BROWNING, C.J., POLSTON, and HAWKES, JJ., concur.


author: WHATLEY, Judge.

text:
    Eugene YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1369.
    District Court of Appeal of Florida, Second District.
    March 14, 2007.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Bill McCullom, Attorney General, Tallahassee, and Chandra Waite Dasrat, Assistant Attorney General, Tampa, for Appel-lee.
   WHATLEY, Judge.

In this appeal of his convictions and sentences in two cases, Eugene Young argues that the trial court erred in sentencing him and in denying his motion to withdraw plea. We agree and reverse.

In circuit court case number 04-05504-CFANO, Young was charged with failure to appear. In circuit court case number 04-05554-CFANO, Young was charged with possession of cocaine and misdemean- or possession of marijuana. He appeared before Judge Federico in both cases and pleaded guilty. Judge Federico granted Young a two-week furlough upon the condition that if he appeared for sentencing and did not get arrested while on furlough, the judge would sentence him to concurrent terms of 31.5 months in prison. However, if he failed to appear or got arrested, the judge would sentence him up to ten years in prison.

Young failed to appear and got arrested for robbery, which resulted in his also being charged with another count of failure to appear. Sentencing was held before Judge Luce who, after familiarizing himself with the facts and Young’s previously-entered plea, sentenced Young to consecutive five-year prison terms, with time served on the marijuana possession charge. Young filed a notice of appeal on March 22, 2006.

On March 27, 2006, Young filed a motion to withdraw his plea. Judge Luce summarily denied the motion.

Thereafter, Young filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(b) alleging that because Judge Federico was still on the bench and available to conduct his sentencing, it was error for Judge Luce to have sentenced him. This motion was denied by the court’s failure to rule on it. Fla. R.Crim. P. 3.800(b)(1)(B).

In this, appeal, Young argues that because he filed his motion to withdraw plea after he filed the notice of appeal, the trial court should have dismissed the motion for lack of jurisdiction rather than denying it. We agree. See Mingo v. State, 914 So.2d 1070 (Fla. 2d DCA 2005).

Young also argues that Judge Luce erred in sentencing him when no necessity was shown for a judge other than the judge who accepted his plea to sentence him. See Fla. R.Crim. P. 3.700(c)(1). Although the State notes that defense counsel stated at sentencing before Judge Luce that Young had failed to appear for his original sentencing and was a recent transfer to Judge Luce’s division, this is not a showing that it was necessary for Judge Luce rather than Judge Federico to sentence Young. See Clemons v. State, 816 So.2d 1180 (Fla. 2d DCA 2002) (holding that reassignment of judge who took Clemons’ plea to civil division did not meet necessity requirement of rule 3.700(c)(1)).

Accordingly, we reverse Young’s sentences and remand for resentencing by Judge Federico unless necessity is shown for a successor judge to be assigned to sentence Young. See Fla. R.Crim. P. 3.700(c)(1). We also reverse the order denying Young’s motion to withdraw plea and remand with directions that the trial court enter an order dismissing the motion for lack of jurisdiction.

Reversed and remanded with directions.

ALTENBERND and NORTHCUTT, JJ., Concur.


author: LaROSE, Judge.

text:
    John Ted PATRICK, Appellant, v. Toni Ann PATRICK, Appellee.
    No. 2D05-6093.
    District Court of Appeal of Florida, Second District.
    March 14, 2007.

      Robert L. Donald of Law Office of Robert L. Donald, Ft. Myers; Ralph Elver of The Pavese Law Firm, LaBelle, for Appellant.
    Melvyn B. Frumkes and Christopher A. Tiso of Law Offices of Melvyn B. Frumkes & Associates, P.A., Miami, for Appellee.
   LaROSE, Judge.

John Ted Patrick, the former husband, appeals the trial court’s nonfinal order holding him in civil contempt for failing to satisfy certain financial obligations contained in a marital settlement agreement. The trial court reserved jurisdiction to enforce its order and to impose sanctions, including incarceration. Dr. Patrick also appeals the trial court’s award of attorney’s fees to the former wife, Toni Ann Patrick.

Dr. Patrick did not receive adequate notice detailing the procedures and potential consequences surrounding the former wife’s contempt motion. Additionally, the trial court failed to make the factual findings required by Florida Rule of Family Law Procedure 12.615, including those regarding Dr. Patrick’s ability to pay the financial obligations or the attorney’s fees. Consequently, we vacate the order of contempt.

Rule 12.615 details the procedure that the trial court must follow before holding a person in civil contempt. The rule mandates the findings that the trial court must make and requires the order of contempt to recite the facts on which the trial court bases its findings. Fla. Fam. L.R.P. 12.615(d)(1); Bresch v. Henderson, 761 So.2d 449, 450-51 (Fla. 2d DCA 2000).

Here, the required procedures were not followed and the factual findings were inadequate. Initially, we note that the notice was insufficient to apprise Dr. Patrick of the severe consequences attending a finding of contempt. See Bresch, 761 So.2d at 451 (holding that fundamental fairness requires adequate notice to alleged contemnor of potential consequences). Further, despite a finding that Dr. Patrick lived in a home valued at three million dollars, the contempt order contains no written findings that Dr. Patrick, in fact, had the present ability to pay attorney’s fees or the amounts that may be due under the marital settlement agreement. See Giallanza v. Dep’t of Revenue ex rel. Giallanza, 799 So.2d 256, 258 (Fla. 2d DCA 2001). These deficiencies require us to vacate the order of contempt. See Bresch, 761 So.2d at 451.

Vacated and remanded for further proceedings.

CANADY and VILLANTI, JJ., Concur.


author: POLEN, J.

text:
    Jeanne F. REID, as Personal Representative of the Estate of Phillip H. Reid, Jr., for the benefit of Jeanne F. Reid and the Estate of Philip H. Reid, Jr., deceased, Appellant, v. Joseph J. ALTIERI, M.D., and Joseph J. Altieri, M.D., P.A., a Florida professional association; Larry James PAC; Indian River Memorial Hospital, a Florida corporation, individually and d/b/a Center for Emotional and Behavioral Health at Indian River Memorial Hospital, Appellees.
    No. 4D05-3650.
    District Court of Appeal of Florida, Fourth District.
    March 14, 2007.

      Wallace B. McCall, P.A., Jupiter; Murphy, Reid, Pilotte & Ord, Palm Beach; and Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, for appellant.
    Shelley H. Leinicke and H. Wayne Clark of Wicker, Smith, O’Hara, McCoy, Graham & Ford, P.A., Fort Lauderdale, for appel-lees Joseph J. Altieri, M.D., and Joseph J. Altieri, M.D., P.A.
   POLEN, J.

Appellant, Jeanne F. Reid, as personal representative of the estate of Philip H. Reid, Jr., deceased, appeals the trial court’s order denying Reid’s motion for a new trial in this medical malpractice/wrongful death case. Following a jury trial, the jury returned a verdict finding Appellants, Dr. Joseph J. Altieri and Larry James, respectively, 0.01 % and 0% negligent in the death of Philip H. Reid. The trial court entered a final order upholding the jury’s verdict. For the reasons set forth below, we affirm.

On November 20, 2002, Philip H. Reid, Jr., committed suicide by hanging. Jeanne Reid, his widow, filed a wrongful death action against Appellants, Dr. Altieri and Mr. James, his physician’s assistant, as well as against Indian River Memorial Hospital (“the Hospital”). Prior to trial, Reid and the Hospital participated in a mediation, reached a settlement, and the Hospital was dropped from the lawsuit. Following trial, the jury returned a verdict finding the Hospital 99.99% negligent, Dr. Altieri 0.01% negligent, and Mr. James not negligent. At the time of his death, Philip was seventy-three, and working as an attorney. His wife Jeanne worked with him full time as a legal assistant and office administrator. Philip had periodic periods of depression throughout the marriage. The periods of depression occurred approximately every eight years, but began occurring more frequently in the late 90’s and early 2000’s. Philip was institutionalized during the first depression, but was treated on an out-patient basis during the other periods of depression. Philip took anti-depressant medication during these periods, but stopped taking the medication after the periods of depression passed.

At some point, Philip began seeing Dr. Director, a psychiatrist who placed him on a drug maintenance regime. In 2002, Philip began seeing Dr. Altieri, because he did not feel he was improving. As part of the new patient process, Philip made an appointment with Larry James, Dr. Altieri’s physician’s assistant, a certified physician’s assistant with the state of Florida. Dr. Altieri classified James as “an exemplary professional ... operating in the superior range.” James interviewed Philip for approximately thirty minutes and took a history of Philip’s condition. Philip indicated he had feelings of severe depression, helplessness and worthlessness, but denied having homicidal or suicidal ideations, although he had thought about death. Philip did not see Dr. Altieri at this appointment, but later that same day, Dr. Altieri reviewed the notes that James took during the interview and cosigned them.

As a physician’s assistant, James was qualified to diagnose Philip and to put together a treatment plan for him. James diagnosed Philip as having major depressive disorder and changed Philip’s medications, as they did not seem to be eom-bating his depression. James instructed Philip to start taking the new medication and to gradually taper off the old medication. James also recommended Philip have some sessions with another doctor. Philip did not appear to need hospitalization at this point.

Philip made an appointment to see James in two weeks, but called and made an earlier appointment, complaining that the medicine was not working and that he was feeling worse than before. Philip asked if he could be hospitalized. James called the Center for Emotional and Behavioral Health (“CEBH”) which was part of the Hospital, but no beds were available. Philip was instead admitted into Lawn-wood, another psychiatric facility. He stayed there overnight, but was discharged the next day. Approximately a week later, Philip took an overdose of sleeping pills.

Philip was taken to the Hospital, where he remained for two days, and was then transferred to the CEBH. Dr. Altieri conducted a mental status exam of Philip during the course of the transfer. This was the first time that Dr. Altieri had seen Philip in person. Philip denied that he was currently having “any suicidal ideas, intent or plan.” While Philip was hospitalized at CEBH, he was seen daily by either Dr. Altieri or another physician, Dr. Barrett. At some point during Philip’s hospitalization, Jeanne sent Dr. Altieri a fax asking if Philip could be released for an upcoming visit from his son and grandson. Dr. Altieri was not sure if Philip would be ready for release, but went ahead and tentatively planned to release him on November 15, 2002 for the family visit. As the 15th neared, Philip showed gradual signs of improvement and expressed excitement about going home for the visit.

On the morning of November 15th, Dr. Altieri approved Philip’s discharge, noting on the discharge form that Philip still felt suicidal, although less than when he checked into CEBH. Later that morning, prior to the discharge, Dr. Altieri received a phone call from a CEBH nurse expressing reservations about Philip’s discharge, as he had expressed some suicidal thoughts. Dr. Altieri canceled the discharge, and met with the Reids to reevaluate Philip. The Reids were adamant that Philip be allowed to go home for the family visit, and Jeanne promised Dr. Altieri that she would supervise Philip and return him if problems developed. Philip admitted to having “fleeting suicidal thoughts,” but “denied any suicidal ideas, intent or plan.” Philip agreed to contact Dr. Altieri and to talk to Jeanne if he had any recurring suicidal thoughts. Dr. Altieri testified that despite the Reids’ determination that Philip be released, he would not have released Philip if he had felt Philip was in danger. However, after the evaluation, Dr. Altieri felt Philip’s release was proper.

Dr. Altieri made the Reids agree to a contract for safety, in which they promised that if Philip began having suicidal thoughts again, they would come back to CEBH to re-admit him. A contract for safety involves the patient agreeing to do certain things and the doctor agreeing to do certain things. The contract for safety indicates the doctor knows there is some risk in releasing the patient and is assuming some increased responsibility towards the patient. As part of this contract for safety, Dr. Altieri agreed that if Philip’s condition worsened, he would be reevaluated and admitted to the Hospital if suicidal. The Reids agreed to this, and Philip was released.

After the family weekend, Philip told Jeanne that he was having suicidal thoughts and needed to return to the Hospital. Jeanne called Dr. Altieri’s office and CEBH and was told to be admitted they first had to go to the Hospital’s emergency room. Dr. Altieri testified the best way to have a patient admitted to CEBH is to first go through an assessment and referral at the Hospital. The CEBH does not have a patient registration center, and Dr. Altieri did not want to send a voluntary patient, who might be frightened and scared, directly to a psychiatric unit, where they would have to wait for admission. Further, if the patient went directly to the CEBH, they could not be prescribed medication until they were entered into the registration system, which had to be done at the Hospital. This could lead to significant delays in treating a patient. After a patient went through an assessment at the Hospital, the treating psychiatrist, in this case Dr. Altieri, was to be called and notified as soon as the evaluation was complete. Dr. Altieri testified the assessment method of admitting a patient to the Hospital was actually faster than direct admission.

Dr. Altieri testified he instructed his assistant to call the Hospital’s assessment and referral office to tell them the Reids were on the way. Dr. Altieri expected to hear back from the hospital that night and waited to fax admission orders to the Hospital until he received a call, as the orders would be useless until the patient was in the Hospital’s system. Dr. Altieri had given the Hospital a list of six phone numbers that they could use in reaching him. Jeanne never heard back from Dr. Altieri that night, and Dr. Altieri denied receiving any messages to call Jeanne back. Based on Jeanne’s call to the office, Dr. Altieri agreed Philip should be admitted to the Hospital that evening.

When the Reids got to the Hospital, they immediately saw a triage nurse. Philip told the nurse he was suicidal and said he would commit suicide by hanging himself. The triage nurse took the Reids to see another employee, Tiffany Banner Davis, who conducted assessment and referrals for the Hospital. Ms. Davis had only recently started at the Hospital. Philip relayed the same information to Ms. Davis. Ms. Davis asked Jeanne to leave the room, and when Ms. Davis called her back in, she informed Jeanne that Philip had a panic attack, and he was now okay to go back home. Jeanne protested, telling Ms. Davis that Philip was there to check in, and that Dr. Altieri had given them orders to check in. Ms. Davis told them that Philip did not meet the criteria to check in and sent them home. Ms. Davis testified that she attempted to reach Dr. Altieri, but was unable to contact him, so she called Dr. Adams, the Hospital’s on-call physician instead. Ms. Davis did not tell Dr. Adams any specifics about Philip’s visit, but merely relayed she was having trouble reaching Dr. Altieri. Dr. Adams did not tell her to release Philip and encouraged her to continue to try and contact Dr. Altieri.

Dr. Altieri never received a call from the Hospital that night, and between 10:30 and 11:00 p.m., he called the Hospital himself. Dr. Altieri talked to Ms. Davis and was told she had sent the Reids home. Ms. Davis told Dr. Altieri that Philip did not meet the criteria for admission, i.e., he was not suicidal, and that after going over the case with Dr. Adams, Dr. Adams had approved Philip’s release. Dr. Altieri informed Ms. Davis she did not have the authority to release Philip, and questioned her as to why she had not contacted him. Ms. Davis told him she had called his beeper, but Dr. Altieri denied getting any pages from the Hospital, or any other calls. Ms. Davis admitted she had not tried any of Dr. Altieri’s other contact numbers. Dr. Altieri called Ms. Davis an imbecile and asked to speak to her supervisor.

Dr. Altieri called Marriamma J. Pyngo-lil, Ms. Davis’s supervisor. Dr. Altieri related that he wanted Philip admitted and that Ms. Davis had released him. Dr. Altieri told Ms. Pyngolil that he would deal with the situation in the morning. Dr. Altieri did not call the Reids that evening, due to the lateness of the hour. Dr. Alti-eri testified that he respected Dr. Adams’s opinion in clearing Philip, and because he had no knowledge that Philip had expressed ideas of self-harm, or that Dr. Adams had not actually seen Philip or cleared Philip for release, decided to call the Reids in the morning.

The next morning Dr. Altieri received three faxed pages of evaluation on Philip. The triage nurse’s evaluation was not included in these pages, and he did not receive the triage nurse’s evaluation until after Philip’s suicide. Dr. Altieri did not call the Hospital to look for more information, because he thought the Hospital had sent all the relevant information. Ms. Davis’s evaluation did not contain any indication that Philip had stated he was suiddal, or that he was going commit suicide by hanging. After reviewing the evaluation, Dr. Altieri wrote a note to himself that Philip should see Larry James, and also made an indication that perhaps Philip should be placed on 40 milligrams of Geo-don, a sleep aid, at bedtime.

Jeanne received a phone call from Dr. Altieri the next morning, at approximately 8:30. Dr. Altieri asked that the Reids come in to see Mr. James, and they did. Dr. Altieri felt that James was entirely capable of handling this follow-up visit. Dr. Altieri had not informed James of the events of the previous evening, and the remaining records from the Hospital detailing Philip’s visit were not faxed to Dr. Altieri’s office until two days later. James had not been involved in Philip’s treatment for about a month, just prior to Philip’s initial suicide attempt, and was unaware of the suicide attempt or the contract for safety. James thought that Philip’s appointment was set up by the Hospital’s emergency personnel referring Philip back to Dr. Altieri, not by Dr. Altieri directly.

Philip told James that the reason he had gone to the Hospital was because he had experienced a panic attack and had some mood swings. James did not believe that Philip was suicidal, although Philip did tell him that he told the person at the Hospital he was going to hurt himself. Philip denied having “thoughts of death, suicidal or homicidal ideas, intent or plan.” James told Philip to take more medication, and the Reids went home. Dr. Altieri testified there was no indication from this office visit that Philip should be hospitalized, but in hindsight believed Philip had concealed his true feelings from James during the course of the visit.

The next morning, the Reids both got ready for work, but then Philip- told Jeanne he was going back to bed for awhile, because he had not slept well the night before. Jeanne went to the office, but called home several times to make sure Philip was all right. Each time he answered the phone and sounded fine. Philip told Jeanne that he was getting ready to come to the office, but when he had not arrived by 10 a.m., Jeanne tried to call him again. Philip did not answer. Jeanne drove home, and found Philip hanging from the garage door opener.

At trial, plaintiffs expert, Dr. Richard Hall, testified that Dr. Altieri acted outside the standard of care in not following up with the Reids after learning that Philip was not admitted to the Hospital, and by not making sure that Philip was admitted to the Hospital that evening. Dr. Hall pointed out that since the parties had entered into a contract for safety, Dr. Altieri should have known that Philip was an increased risk by his actions in going to the Hospital that evening. In Hall’s opinion, Dr. Altieri used poor judgment in not seeing or evaluating Philip when he came in the next day, and in allowing James to conduct the assessment. Hall also believed if Dr. Altieri knew Philip was suicidal, it was a breach of care to not inform James of these developments prior to Philip’s appointment with James.

In Hall’s opinion, Philip had developed a phenomenon called “flight to health.” This phenomenon was indicated by Philip’s suicidal intent one moment and miraculous recovery overnight. Had James known about the sudden changes in Philip’s behavior, it might have acted as a red flag, warning him of the danger. It was Hall’s opinion that Philip had already made the decision to kill himself prior to seeing James, and that James misdiagnosed Philip. Hall agreed that Ms. Davis did not act within the standard of care by releasing Philip prior to speaking with Dr. Altieri, but felt that Dr. Altieri, as Philip’s doctor, had the responsibility and authority to admit Philip to the Hospital.

Defense expert Dr. Richard Greer testified Dr. Altieri did not act outside of the standard of care by not contacting the Reids that evening, as he had been told that Dr. Adams, the Hospital’s medical director, had assessed Philip. Greer agreed Ms. Davis acted outside the standard of care in assessing Philip, by spending only twenty minutes in conducting the assessment. Further, Ms. Davis acted outside the standard of care in failing to contact Dr. Altieri prior to releasing Philip, and in not relaying that Philip was suicidal, either to Dr. Adams or in the fax to Dr. Altieri.

Greer did not believe Philip met the criteria for voluntary admission to the Hospital when he met with James the day after he was refused admission. Greer agreed that a window of opportunity to prevent Philip’s suicide was missed when he was denied admission to the Hospital. At this point, Greer believed Philip had most likely made up his mind to kill himself, and to deceive both his wife and James. Greer did not believe James would have been able to pick up on the signs of this deception. Greer testified that both Dr. Altieri and James acted at or above the standard of care in treating Philip. While Greer agreed Philip’s suicide would have been prevented in the short term by his admission to the Hospital, he testified there was a high likelihood of Philip becoming depressed again and eventually committing suicide.

Prior to deliberations, the jury asked what would constitute the minimum percentage of negligence that could be assigned to a party. The parties agreed that the amount could be anything from zero to one hundred percent. The jury also inquired as to whether the Hospital would be materially liable if they returned a verdict finding the Hospital negligent. The parties agreed that the jury should be told that “[t]he instructions and verdict form address all the issues concerning [the Hospital].”

The jury returned a verdict finding both Dr. Altieri and the Hospital negligent, but assigning one hundred percent of the negligence to the Hospital. The trial court determined this was an inconsistent verdict and sent the jury back to determine an apportionment of negligence to Dr. Alti-eri. The jury asked if .01 percent would be acceptable as an apportionment. The trial court stated “I don’t know anything that would prohibit .01 percent.” The jury returned a verdict finding the Hospital 99.99% negligent, Dr. Altieri .01% negligent, and Larry James not negligent.

Jeanne Reid moved for a new trial, alleging the jury’s verdict was against the manifest weight of the evidence. The motion was denied, and this timely appeal followed. The estate argues the jury’s verdict is against the manifest weight of the evidence, as the jury found that Dr. Altieri was negligent but assigned him only .01% of the blame. Reid argues the jury’s verdict was influenced by matters outside the record, such as the economic consequences of its verdict, and the evidence showed that Dr. Altieri was more than .01% negligent.

“The standard of review applicable to an order on a motion for new trial is abuse of discretion.” Taylor v. Magana, 911 So.2d 1263, 1266 (Fla. 4th DCA 2005). “If reasonable people could differ as to the propriety of the court’s ruling, then the abuse of discretion standard has not been met.” Id. (citing Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980)). A jury verdict can be overturned if found to be against the manifest weight of the evidence, but the trial court cannot substitute its view of the evidence for that of the jury. Brown v. Estate of Stuckey, 749 So.2d 490, 494 (Fla.1999).

When a motion for new trial is made it is directed to the sound, broad discretion of the trial judge, who because of his contact with the trial and his observation of the behavior of those upon whose testimony the finding of fact must be based is better positioned than any other one person fully to comprehend the processes by which the ultimate decision of the triers of fact, the jurors, is reached.
When the judge, who must be presumed to have drawn on his talents, his knowledge and his experience to keep the search for the truth in a proper channel, concludes that the verdict is against the manifest weight of the evidence, it is his duty to grant a new trial, and he should always do that if the jury has been deceived as to the force and credibility of the evidence or has been influenced by considerations outside the record.

Cloud v. Fallís, 110 So.2d 669, 673 (Fla. 1959).

Reid argues the jury’s verdict, which apportioned only .01% of the negligence to Dr. Altieri, is questionable and unprecedented in Florida’s case law, and against the manifest weight of the evidence. “When the percentages of liability are contrary to the manifest weight of the evidence, the trial court must treat this defect as an error in the finding of liability itself. The only remedy is to order a new trial on all issues affected by the error.” Rowlands v. Signal Constr. Co., 549 So.2d 1380, 1383 (Fla.1989). “[T]he new trial may not be granted merely because the trial court disagrees with the percentages, but only because the percentages are against the manifest weight of the evidence.” Id.

The parties have cited no cases, nor has our own research revealed any, where the apportionment of such a minute percentage of fault has been held to warrant a new trial. Indeed, on the record before us, the jury could well have found Dr. Altieri to be without fault at all. We are unable to find an abuse of discretion in the trial court’s denial of a new trial in this case. Accordingly, the judgment below is affirmed.

KLEIN and MAY, JJ., concur.

      . According to expert testimony in this case, there are two phases of suicide thinking. The first is suicidal thoughts, in which the person has had a thought of wanting to hurt himself. The second is suicidal intent, when a person has a plan by which to carry out these thoughts. Philip had not developed any suicidal intent at this point.


author: STONE, J.

text:
    Calvin GRAHAM, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2816.
    District Court of Appeal of Florida, Fourth District.
    March 14, 2007.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

We reverse Graham’s sentence due to a scoresheet error and remand for re-sentencing.

It was error to fail to delete from Graham’s sentencing scoresheet prior juvenile dispositions on offenses committed more than five years before the offense for which he was being sentenced. See § 921.0021, Fla. Stat. (2005); rule 3.704, Fla. R.Crim. P.

Florida Statutes section 921.0021 provides, in part:

(5) “Prior record” means a conviction for a crime committed by the offender, as an adult or a juvenile, prior to the time of the primary offense.... Juvenile dispositions of offenses committed by the offender within 5 years before the primary offense are included in the offender’s prior record....

§ 921.0021(5), Fla. Stat. (2005).

Florida Rule of Criminal Procedure 3.704(d)(14)(B) provides, in part:

Juvenile dispositions of offenses committed by the offender within 5 years before the date of the commission of the primary offense must be scored as prior record....

It is undisputed that the juvenile offenses in question were not committed within the five-year timeframe, but that the dispositions for those offenses were entered within the five-year time frame. We reject the state’s contention that the disposition date is the triggering date.

Reading the statute as a whole, the meaning is clear. Offenses that are committed by the offender within five years before the primary offense modifies “dispositions” so that the statute is most reasonably interpreted to provide the date the offense was committed is the triggering date for purposes of inclusion as a prior record.

Further, it cannot be said conclusively from the record that the trial court would have imposed the same sentence had the juvenile convictions not been scored, as their exclusion would considerably reduce the lowest permissible sentence. See State v. Anderson, 905 So.2d 111, 112 (Fla.2005).

As to all other issues raised, we find no reversible error or abuse of discretion and affirm. We remand for re-sentencing.

FARMER and MAY, JJ., concur.


author: WARNER, J.

text:
    Reynaldo CASTILLO, Appellant, v. Ashley CASTILLO, Appellee.
    No. 4D06-1833.
    District Court of Appeal of Florida, Fourth District.
    March 14, 2007.
    Michael F. Amezaga of Michael F. Ame-zaga, P.A., West Palm Beach, for appellant.

      Orlando Gonzalez of Law Offices of Cameron, Davis & Gonzalez, P.A., West Palm Beach, for appellee.
   WARNER, J.

In the final judgment of dissolution of marriage, the court designated the mother as the primary residential parent. The father appeals, claiming that the court did not carefully consider the applicable statutory factors and that its decision was not supported by competent substantial evidence. Because there is competent substantial evidence to support the trial court, and there is no requirement that the trial court make specific written findings in a custody decision, we affirm.

The trial court exercises broad discretion in making a child custody determination, and its decision is reviewed for a clear showing of an abuse of discretion. Adair v. Adair, 720 So.2d 316, 317 (Fla. 4th DCA 1998). Under this standard, a trial court abuses its discretion only where no reasonable person would take the view adopted by the trial court. Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980). “Decisions affecting child custody require a careful consideration of the best interests of the child.” Andrews v. Andrews, 624 So.2d 391, 392 (Fla. 2d DCA 1993); § 61.13(3), Fla. Stat. (2005). However, section 61.13(3) does not require the trial court to make specific written findings in a custody decision. See Murphy v. Murphy, 621 So.2d 455, 456-57 (Fla. 4th DCA 1993).

In this case, while the trial court did not make specific written findings regarding its analysis of the factors of section 61.13, the trial court stated that it had considered the criteria of section 61.13 and concluded that the mother should be the primary residential parent. The trial court, as the finder of fact, weighed disputed evidence and made credibility determinations. There was competent, substantial evidence to support its determination, although the evidence was conflicting. We will not disturb its decision simply because the losing party takes a different view of disputed evidence. See Adair, 720 So.2d at 317 (“Despite a conflict in the evidence, an appellate court will not disturb the trial court’s custody decision unless there is no substantial competent evidence to support that decision.”).

Affirmed.

GROSS and TAYLOR, JJ„ concur.


text:
    Nancy K. Robinson UDELL, Appellant, v. Glenn S. UDELL, Appellee.
    No. 4D06-1169.
    District Court of Appeal of Florida, Fourth District.
    March 14, 2007.

      Ronald E. D’Anna of McClosky, D’Anna & Dieterie, LLP, Boca Raton, for appellant.
    Peter Mineo, Jr. of Mineo & Dellapina, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

Nancy Udell appeals a final judgment of dissolution of marriage on four grounds related to a rental value offset awarded to Glenn Udell for her exclusive use and possession of the marital home. We reverse.

Nancy Udell filed a petition for dissolution of her marriage to Glenn Udell. She requested that the trial court adopt and ratify the prenuptial agreement entered into by the parties, award her exclusive use and possession of the marital home, and issue a no contact order against Glenn Udell.

Glenn Udell filed an Answer, Affirmative Defenses, and Counter-Petition. He asserted a sole affirmative defense, that “the rights and responsibilities of the parties and the distribution of property is set forth in the parties’ Prenuptial Agreement.” He did not seek a setoff. However, in a Joint Pretrial Statement, Glenn Udell requested “a reasonable rental value and or set-off as determined by the statutory factors set forth F.S. 61.077 for the wife’s exclusive use of the marital home since the date of the separation.”

During opening arguments at the dissolution hearing, Glenn Udell’s counsel asserted that the only issue to be decided regarded the award of a rental value offset to Glenn Udell for Nancy Udell’s exclusive use and possession of the marital home. Nancy Udell’s counsel objected on the ground that a rental value offset had not been pleaded. Glenn Udell’s counsel did not contend that this objection was waived by any failure to object at the time of the Pretrial Statement, nor does the record reflect that the rental value offset issue was tried by consent. In the final judgment of dissolution of marriage, the trial court awarded Glenn Udell a rental value offset.

Florida Rule of Civil Procedure 1.140(h), which applies to dissolution of marriage proceedings through Florida Family Law Rule of Procedure 12.140, provides that a party waives defenses not raised by motion or responsive pleading (with a few exceptions not relevant in this case). When a defense is not raised by a motion or pleading, the trial court is without jurisdiction to consider and decide the issue. See Todaro v. Todaro, 704 So.2d 138, 139 (Fla. 4th DCA 1997). The defense at issue in this case, setoff, is just such an affirmative defense which must be raised in a motion or a pleading in order to be considered and decided by the trial court. See Jo Jo’s Clubhouse, Inc. v. DBR Asset Mgmt., Inc., 860 So.2d 503, 504 (Fla. 4th DCA 2003).

As Nancy Udell contends and the record demonstrates, Glenn Udell failed to plead setoff, or rental value offset, in his Answer, Affirmative Defenses, and Counter-Petition, or in any other pleading or motion. As such, the trial court was without jurisdiction to consider and decide the rental value offset issue. Consequently, the trial court erred by awarding a rental value offset to Glenn Udell. Therefore, we reverse and remand this case to the trial court for the deletion of the rental value offset award from the final judgment (as the remainder of the final judgment is unaffected by our decision). We do not reach the other three grounds raised on appeal, because they are mooted by our decision.

Reversed and Remanded.

GUNTHER, POLEN and HAZOURI, JJ., concur.


text:
    PALM BEACH COUNTY HEALTH DEPARTMENT, Appellant, v. Angela WILSON, Appellee.
    No. 4D06-652.
    District Court of Appeal of Florida, Fourth District.
    March 14, 2007.
    Carri S. Leininger of Williams, Leininger & Cosby, P.A., West Palm Beach, for appellant.
    No brief filed for appellee.
   PER CURIAM.

Reversed. See Palm Beach County Health Department v. Wilson, 944 So.2d 428 (Fla. 4th DCA 2006) (reversing final judgment and holding that County is entitled to new trial on account of material nondisclosure by prospective juror).

STONE, FARMER and MAY, concur.


text:
    Karmen BRANCH, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D04-1421, 4D05-1695.
    District Court of Appeal of Florida, Fourth District.
    March 14, 2007.
    Carey Haughwout, Public Defender, and Ellen A. Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Wright v. State, 920 So.2d 21 (Fla. 4th DCA 2005).

SHAHOOD, GROSS and TAYLOR, JJ., concur.


text:
    Matthew BUITRAGO, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3379.
    District Court of Appeal of Florida, Fourth District.
    March 14, 2007.
    Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   WARNER, J.

Appellant, Matthew Buitrago, was convicted of possession of cocaine. During his trial the state was allowed to introduce into evidence the amount of money that the defendant had in his pockets. Under similar circumstances, we have held that cash found on a defendant is not relevant to the crime of possession and tends to suggest that the defendant may be guilty of a crime not charged. See Ferguson v. State, 697 So.2d 979 (Fla. 4th DCA 1997). We therefore reverse.

The evidence at trial revealed that officers executed a traffic stop of a vehicle driven by Buitrago and containing a passenger. On the driver’s side floorboard, the officers noticed a clear plastic baggie containing a white powder which proved to be cocaine. Buitrago was arrested and searched, revealing $400 in one pocket and slightly over $400 in the other. Buitrago objected to the introduction of the evidence regarding the money on the ground that it was irrelevant in a simple possession case, but his objection was overruled. Over objection, one of the officers testified that the quantity of drugs found had a street value of around $400.

In closing argument, over objection, the prosecutor argued that the money in Bui-trago’s pockets proved that Buitrago had knowledge of the drugs, because the amount of money matched up to the amount of drugs found. The prosecutor farther stated, “Mr. Buitrago didn’t have a chance to finish his drug deal.” The jury found Buitrago guilty as charged. The court adjudicated him guilty and sentenced him, prompting this appeal.

Buitrago claims, as he did in the trial court, that the evidence of the money found in his pocket was not only irrelevant but prejudicial in that it suggested that Buitrago may have been guilty of a crime with which he was not charged. We agree.

This case is controlled by Ferguson v. State, 697 So.2d 979 (Fla. 4th DCA 1997). In Ferguson, deputies observed a group of men huddled together in a dimly lit portion of the parking lot. One deputy saw Ferguson step away from the group and drop a clear plastic bag. The deputies retrieved the bag, which contained cocaine, and arrested Ferguson. A search uncovered $701 in cash in his pocket. Prior to trial, the defense moved in limine to exclude evidence of the money, arguing that it was not probative of possession. The court denied the motion. In closing argument, the prosecutor contended the cash was probative of possession of the cocaine by insinuating that Ferguson was a drug dealer.

On appeal, we noted that possession of a large amount of cash does not tend to prove a contemporaneous possession of drugs. We reasoned, “The inference that a possessor of drugs would carry a large amount of cash is not necessarily accurate; many users are chronically cash poor, since so much of their income goes for drugs.” Id. at 981. The evidence of the money allowed the state to use the theory that Ferguson was a drug dealer, a crime with which he had not been charged. See also Jackson v. State, 570 So.2d 1388 (Fla. 1st DCA 1990) (error to admit evidence of cash seized from defendant in prosecution for possession of drugs as such evidence invited conjecture that defendant was engaged in other unproven criminal conduct); People v. Morales, 133 A.D.2d 90, 518 N.Y.S.2d 437 (N.Y.App.Div.1987) (evidence that defendant possessed a wad of money upon arrest for possession of cocaine was irrelevant and highly prejudicial as it suggested involvement in uncharged sale of illicit drugs).

The admission of the cash found in this case presents the same problem as is present in Ferguson, Jackson, and Morales. It suggests that Buitrago was participating in a drug deal with which he was not charged. The state even argued as much to the jury.

Because the evidence of the cash was irrelevant and prejudicial, we reverse and remand for a new trial.

GROSS and TAYLOR, JJ., concur.


text:
    C.J.S., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1419.
    District Court of Appeal of Florida, Third District.
    March 14, 2007.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, and Michael Mayer and Seth J. Marks, Certified Legal Interns, for appellant.
    Bill McCollum, Attorney General, and William J. Selinger, Assistant Attorney General, for appellee.
    Before GERSTEN, SUAREZ, and LAGOA, JJ.
   ON CONFESSION OF ERROR

PER CURIAM.

Pursuant to the State’s proper confession of error, we reverse the trial court’s order denying the Appellant’s dispositive motion to suppress unlawfully obtained evidence. See L.M. v. State, 694 So.2d 118 (Fla. 3d DCA 1997) (holding that an anonymous tip does not give rise to reasonable suspicion sufficient to justify temporary detention). We reverse and remand with directions to discharge the Appellant. Reversed and remanded.


author: PER CURIAM. EVANDER, J.,

text:
    HERNANDO COUNTY SCHOOL BOARD, Appellant/Cross-Appellee, v. Paul NAZAR and Alison Nazar, Appellees/Cross-Appellants.
    No. 5D05-1623.
    District Court of Appeal of Florida, Fifth District.
    March 14, 2007.
    John D. Jopling and Elizabeth M. Collins, of Dell Graham, P.A., Gainesville, for Appellant/Cross-Appellee.
    No Appearance for Appellees/Cross-Ap-pellants.
   PER CURIAM.

AFFIRMED.

PLEUS, C.J., and SAWAYA, J., concur.

EVANDER, J., dissents, with opinion.

EVANDER, J.,

dissenting.

Appellees, Paul and Alison Nazar (“the Nazars”), brought a negligence action against the Hernando County School Board (“School Board”), alleging Mr. Na-zar had suffered permanent injuries as a result of stepping into a deep hole on property owned and maintained by the School Board.

The jury returned a verdict in favor of Mr. Nazar. He was awarded $8,000 for past medical expenses, $10,000 for future medical expenses and no damages for pain and suffering. The jury did not award any damages to Mrs. Nazar on her loss of consortium claim. (In his closing argument, the Nazars’ attorney had requested damages in excess of $150,000.)

On appeal, the School Board argues the trial court erred in denying its motion for final judgment in accordance with a directed verdict. Specifically, the School Board contends the Nazars failed to present sufficient evidence that the School Board had actual or constructive knowledge of the alleged dangerous condition. I believe the trial court properly determined that the issue of constructive knowledge was for the jury to decide. Hester v. Guarino, 251 So.2d 563 (Fla. 3d DCA 1971).

Alternatively, the School Board contends the trial court abused its discretion in denying its motion for new trial. I agree. The trial was marred by the Nazars’ misconduct. There were several instances where the Nazars, or their counsel, referenced matters in violation of the trial court’s pretrial orders. The most egregious violations were improper references, in the jury’s presence, to settlement offers. The clear implication of these improper references was that the School Board had offered to pay Mr. Nazar’s medical bills.

For example, during his opening statement, the Nazars’ counsel advised the jury:

And somebody from the school board gave him a card and said, give this — give this card from the school board to the doctors, and the school board will address the medical situation.

This statement was made immediately after a bench conference, during which the trial court had instructed the Nazars’ counsel to avoid any mention of insurance. The School Board’s timely motion for mistrial was denied. Later, in a nonrespon-sive answer to a question, Mr. Nazar blurted out a similar statement. The School Board’s renewed motion for a mistrial was also denied.

The jury awarded damages for Mr. Na-zar’s medical bills and nothing else. I believe there is a reasonable likelihood the jury’s verdict was influenced by the improper comments suggesting the School Board had previously offered to pay these bills. See, e.g., Henry v. Beacon Ambulance Serv., Inc. 424 So.2d 914 (Fla. 4th DCA 1982); Auto-Owners Ins. Co. v. Dewberry, 388 So.2d 1109 (Fla. 1st DCA 1980).

I would suggest, however, that the majority’s decision to affirm the trial court might well be a blessing in disguise for the School Board. A different jury might well have chosen to award greater damages to the Nazars. Nevertheless, I believe the School Board is entitled to a new trial.


author: GROSS, J.

text:
    Merle A. WOOD, III, Appellant, v. PANTON & CO. REALTY, INC., Appellee.
    No. 4D06-1347.
    District Court of Appeal of Florida, Fourth District.
    March 21, 2007.
    Mike Pfundstein of Mike Pfimdstein, P.A., Fort Lauderdale, for appellant.

      Michael P. Hamaway and Anthony J. Horky of Mombach, Boyle & Hardin, P.A., Fort Lauderdale, for appellee.
   GROSS, J.

The narrow issue in this case is whether a prevailing party in a lawsuit is entitled to computerized legal research costs as part of an award of taxable costs. We reaffirm our earlier- holding of Department of Transportation v. Skidmore, 720 So.2d 1125, 1130 (Fla. 4th DCA 1998), and hold that such costs are not recoverable as taxable costs.

Panton & Co. Realty, Inc., sued Merle Wood claiming that Wood breached a contract by failing to pay a real estate commission. The eireúit court granted Pan-ton’s motion for summary judgment and awarded it $104,000 and prejudgment interest. Panton moved for attorney’s fees and costs under a contractual provision that read:

ATTORNEY FEES AND COSTS: In connection with any arbitration or litigation arising out of this Contract, the prevailing party to the arbitration or litigation, whether Buyer, Seller, or Broker shall be entitled to recover all costs incurred including attorney’s fees and legal assistant fees for services rendered in connection therewith including appellate proceedings and postjudgment proceedings. The provisions of this paragraph shall survive the termination or closing of this Contract.

This was not a case where the contractual provision defined the scope of “costs” to be awarded to a prevailing party. Thus we construe the term as it is used in the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions and in section 57.041, Florida Statutes (2006).

The trial court awarded Panton $11,894.80 in attorney’s fees and $647.50 as costs. Part of the cost award was $316.25 in Westlaw computer research costs; it is this amount that Wood challenges on appeal.

Skidmore held that computer-assisted legal research costs are “overhead and not properly taxable as costs.” 720 So.2d at 1130 (citing Roberts v. Charter Nat'l Life Ins. Co., 112 F.R.D. 411 (S.D.Fla.1986)). In accord with Skidmore, the third district has also ruled that computerized legal research costs are “not compensable.” Ocean Club Cmty. Ass’n, Inc. v. Curtis, 935 So.2d 513, 517 (Fla. 3d DCA 2006) (citing Skidmore, 720 So.2d at 1130).

Panton invites us to reconsider Skid-more in light of the 2006 Statewide Uniform Guidelines for Taxation of Costs in Civil Litigation, which became effective after the entry of the order in this case. See In re: Amendments to Uniform Guidelines for Taxation of Costs, 915 So.2d 612 (2005). Panton directs us to the supreme court’s suggestion that trial courts “consider and reward utilization of innovative technologies by a party which subsequently minimizes costs and reduces the award when use of innovative technologies that were not used would have resulted in lowering costs.” Id. at 614. Panton argues that computer based legal research is consistent with the supreme court’s goal of decreasing litigation costs.

Courts around the country have taken three views concerning the assessment of computer-assisted legal research costs as taxable costs.

First, some courts agree with Panton’s position and have held that computerized legal research costs are recoverable because they are reasonable, if not essential, in contemporary legal practice, given that computerized research “saves a significant amount of manual research time.” See Jackson v. Austin, 267 F.Supp.2d 1059, 1070 (D.Kan.2003); Case v. Unified Sch. Dist., No. 233, Johnson County, Kan., 157 F.3d 1243, 1257-59 (10th Cir.1998) (affirming the trial court’s partial award of West-law expenses which rejected as unreasonable those Westlaw charges that were not differentiated and identifiable to issues in the litigation); Wehr v. Burroughs Corp., 619 F.2d 276, 285 (3d Cir.1980) (“Use of computer-aided legal research such as LEXIS or WESTLAW, or similar systems, is certainly reasonable, if not essential, in contemporary legal practice.”).

A second view of the taxability of computerized research costs is consistent with Skidmore — that such “charges are overhead and not properly taxable as costs.” 720 So.2d at 1130; see Nugget Distrib. Coop. of Am., Inc. v. Mr. Nugget, Inc., 145 F.R.D. 54 (E.D.Pa.1992); Montgomery v. Aetna Plywood, Inc., 231 F.3d 399 (7th Cir.2000), cert. denied, 532 U.S. 1038, 121 S.Ct. 2000,149 L.Ed.2d 1003 (2001); Apple Corps. Ltd. v. Int’l Collectors Soc’y., 25 F.Supp.2d 480 (D.N.J.1998); Calloway v. Union Pac. R. Co., 929 F.Supp. 1280 (E.D.Mo.1996). As one court explained:

An attorney’s time spent performing computerized research is properly com-pensable. However, the cost of the computer service used in the research is no more reimbursable than the cost of the West’s Keynote Digests and the volumes of the Federal Reporter and the Federal Supplement that lawyers used to use (and many still use) to find authority and research issues of law. Westlaw fees are simply an item of overhead, and as such should be built into the fees charged, rather than unbundled and reimbursed separately.... Whether one reads a case from a book or a screen, the attorney’s time is the com-pensable element — not the medium that delivers the message.

BD v. DeBuono, 177 F.Supp.2d 201, 209 (S.D.N.Y.2001) (citing to U.S. ex rel. Evergreen Pipeline Constr. v. Merritt-Meridian Constr. Corp., 95 F.3d 153, 173 (2d Cir.1996)); Sulkowska v. City of New York, 170 F.Supp.2d 359, 370 (S.D.N.Y.2001); Ciraolo v. City of New York, No. 97 Civ. 8208(RPP), 2000 WL 1521180 (S.D.N.Y.Oct.13, 2000); Tri-Star Pictures, Inc. v. Unger, 42 F.Supp.2d 296 (S.D.N.Y. 1999); Fink v. City of New York, 154 F.Supp.2d 403 (E.D.N.Y.2001). Recently, after an extensive survey of existing case law, the supreme court of Hawaii held that “computer-assisted research charges are subsumed within a law firm’s overhead and therefore the client may not recover such costs by classifying them as separately billed attorneys’ fees.” DFS Group L.P. v. Paiea Props., 110 Hawai'i 217, 131 P.3d 500, 508 (2006).

A third view adopts the approach rejected in DFS — that computerized legal research is not recoverable as an item of taxable costs, but in cases involving entitlement to attorney’s fees, such an expense is recoverable as a component of attorney’s

fees. See Anderson v. New York, 132 F.Supp.2d 239, 247 (S.D.N.Y.2001). In Haroco, Inc. v. American National Bank & Trust Co., 38 F.3d 1429, 1440-41 (7th Cir.1994), the court wrote:

[W]e have previously held that computer research costs “are more akin to awards under attorney’s fees provisions [and not] costs.”... The added cost of computerized research is normally matched with a corresponding reduction in the amount of time an attorney must spend researching. Therefore, we see no difference between a situation where an attorney researches manually and bills only time spent and a situation where the attorney does the research on a computer and bills for both the time and the computer fee. In both cases the total costs are attorney’s fees and may not be recovered as “costs.”

(Citation omitted). Accord ' DIRECTV, Inc. v. Christomos, No. 03-1622-HO, 2004 WL 2110700, at *3 (D.Or.2004) (citing Haroco with approval).

We decline the invitation to reconsider Skidmore and travel down a different analytical path. Therefore, we reverse that portion of the costs award allowing $316.25 in “Westlaw usage” costs.

WARNER and TAYLOR, JJ., concur.