author: PER CURIAM. FARMER, J.,

text:
    Charles AINSWORTH, Appellant, v. KLI, INC. and KLI Global, Inc., Appellees.
    No. 4D06-2052.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 2007.
    Rehearing Denied Nov. 21, 2007.

      Pamela Beckham of Beckham & Beck-ham, P.A., North Miami Beach, for appellant.
    Cindy J. Misheon and Jeffrey A. Mowers of Pyszka, Blackmon, Levy, Mowers & Kelley, Miami, for appellees.
   PER CURIAM.

In this products liability action resulting from a fall from a ladder, Charles Ains-worth asserts that the trial court erred by excluding the testimony of his three expert witnesses intended to prove the presence of a malfunction and product defect causing his accident. Ainsworth raises three points on appeal regarding the motions in limine directed at the experts. We affirm in all respects for the reasons that follow..

Ainsworth filed suit against Keller Industries, Inc., Keller Ladders, Inc., Ames True Temper, Inc., H.C.A., Inc., HCAC, Inc., KLI, Inc., KLI Global, Inc., Relleck, Inc., Werner Ladder Co., Werner Co., U.S. Industries, Inc., and USI Atlantic Corp. (with the ease proceeding against only KLI and KLI Global following the stipulated dismissal of the other defendants). The case involved a Keller Ladders, 67 series, model 676, six-foot, fiberglass step ladder, type II, commercial. Ainsworth alleged that the ladder was defective, by being prone to Type II racking or torsional instability, and caused him to fall and sustain injury. Ainsworth included two counts in his products liability complaint: negligence and strict liability.

After several failed attempts at setting trial, the case was set on the December 12, 2005 to January 20, 2006 jury trial docket (with docket call scheduled for November 18, 2005). The order setting the case on the docket included the following provision: “MOTIONS IN LIMINE and Fnje hearings will not be heard at docket call or any day of trial. All parties shall schedule MOTIONS IN LIMINE and Frye hearings prior to the date set for docket call.” Additionally, the parties subsequently agreed in their Joint Pretrial Stipulation that “[mjotions in limine will be filed prior to the first day of trial.”

On the first day of trial (January 3, 2006), KLI filed a document containing thirty-three motions in limine primarily directed at Ainsworth’s three expert witnesses (although the document was served on December 29, 2005). Motions in Li-mine Fifteen through Nineteen involved expert witness Oren Masory, Motions in Limine Twenty through Twenty-five involved expert witness Frank Grate, and Motions in Limine Twenty-six through Thirty-three involved expert witness Irving Ojalvo. The motions in limine sought to preclude the testimony of the three experts opining that the cause of Ains-worth’s fall was Type II racking or torsional instability, which occurs when the legs of a ladder unexpectedly shift from the footprint of a rectangle to the footprint of a parallelogram while someone is using the ladder.

From the motions in limine and the documents that they referenced, the trial court was aware of the following expert opinion about the possibility of Type II racking or torsional instability being the cause of Ainsworth’s accident. Masory opined in his deposition that the accident could involve a racking scenario in which Ainsworth climbed the ladder and the right rear leg lost contact with the ground due to him supporting himself with his right hand while climbing, but admitted that this was just one of many possible reasons that Ainsworth could have fallen from the ladder. In fact, Masory testified that he reached the conclusion that Type II racking or torsional instability was the cause of Ainsworth’s accident not based so much on Ainsworth’s account of events, but because he eliminated any static failure of the ladder as a cause of the accident so that some unknown type of dynamic failure, potentially Type II racking or torsional instability, was likely the cause of Ainsworth’s fall.

Grate explained in his deposition the criteria he employed to reach the conclusion that Ainsworth’s accident was caused by torsional instability:

If a person is setting it up and they’re explaining to me what they’re doing to the ladder which is not unreasonable, such as leaning all the way — they can go one side or the other, which is unreasonable, but if they are just leaning slightly to the left or to the right when they do this, this accident happens, they [sic] I consider this to be torsional stability problem.
I would tell you in general, it has to be the first time they go up the ladder, after they set it up. After they’ve been up there once or twice, once even, and have done any work up there — Now, if they walk and walk straight back down, different thing. But if they’ve gone up and done work on the ladder, I would rule it as out.
If they haven’t done work on the ladder, this is the first time they set it up and they walked up and have not done anything unusual with the ladder, I consider this to be a great explanation of exactly why they fell.

Grate also explained the mechanics of the occurrence of torsional instability:

Well, first of all, when you set up the ladder, they don’t have to be off the floor. They don’t have to be totally off the floor. And by the time the individual steps on the first step, because the flexibility of the ladder, all the legs are on the floor. So you have no warning that this is taking place until you get to where your working level is going to be and then you lean forward or do some movement in a forward direction.
And when you do some movement in a forward direction, then what happens typically is the weight gets shifted immediately towards the rear, and that forward motion sits there and starts to move its rear feet back in alignment to where it’s supposed to be. And when it does if the individual is not ready for that, they can lose their balance.

Finally, Ojalvo indicated in his deposition that he believed that Ainsworth’s accident was caused by racking due to the rapid and unexpected occurrence of the fall and the lack of structural defect in the ladder, but could not explain particularly how the racking occurred because there are several ways to rack a ladder. Ojalvo further speculated that Ainsworth could have racked the ladder by placing his hands on the fourth step and pulling while his feet were on a lower rung, but admitted that Ainsworth’s account of events did not necessarily include any details supporting this theory. Ojalvo also repeatedly answered questions seeking a link between the eyewitness accounts of the fall and his theory that Type II racking or torsional instability caused the accident by explaining that he could never provide such a link with certainty because “we’ll never know” the details of the accident. He also admitted that “I don’t have any evidence” of how Ainsworth acted physically that would support any specific racking scenario. Overall, the theme of Ojalvo’s testimony regarding the precise mechanics of the Type II racking or torsional instability that could have caused Ainsworth’s fall was that “[t]here’s no evidence of it, and there’s no way of knowing. The only evidence is the result.”

The trial court was also aware from the motions in limine referencing Ainsworth’s deposition that he believed that all four feet of the ladder were still on the ground just prior to his fall.

The trial began, and before the motions in limine were addressed, Ainsworth’s coworker on the day of the accident, Steven Parks, testified via videotape. Parks testified that he was a store general manager and was working with regional manager Ainsworth to close a store on the day of the accident. Ainsworth was removing display systems, known as “pucks,” from the walls of the store. Ainsworth was using a ladder while removing the pucks. Both Parks and Ainsworth had previously used the ladder to accomplish general tasks in the store and in closing the store, and the ladder appeared to be in good condition. Throughout the day, Ainsworth did not climb to the top of the ladder to remove the pucks; there were two rungs left. The pucks did not require significant force to remove, as they were simply screwed into slat walls, and Ainsworth removed them without stretching as he positioned the ladder so that he was closer than an arm’s length from the wall.

When asked whether he actually witnessed the accident, Parks indicated that he did not have a “snapshot recall” of the precise moment when Ainsworth fell. Parks explained that he saw Ainsworth fall, in the sense that he looked at Ains-worth at the exact moment he fell, but did not see what led up to him falling. In fact, Parks made it clear that: “I cannot say I saw the ladder bend. I cannot say how he was reaching at that moment, at that given time.” Parks did see Ainsworth “going over” while he was still up in the air and testified that it seemed that Ainsworth hung in the ah' for a moment before he fell. Parks explained that the ladder “sort of’ went out from under Ainsworth and he began moving backwards through the air. Ainsworth then landed on the ground, twisted in the ladder. He was unable to speak at first, was unable to move, and indicated that he was in pain. On cross-examination, Parks admitted that he did not see Ainsworth set up the ladder at the precise location where he fell, but claimed that he saw Ainsworth climb the ladder through his peripheral vision and that he did not fall instantly, although he did not know which rung of the ladder Ainsworth was on when he fell.

Because Ainsworth then sought to call one of his experts to testify, the trial court addressed the pending motions in limine and excluded the testimony of all three of Ainsworth’s experts regarding Type II racking or torsional instability being the cause of the accident. The trial court noted: “It just appears from the excerpts of these depositions that they — that your experts have now conducted tests to substantiate their theory and that the factual basis — the facts of this case don’t really match up with the facts that would be the basis for their opinions.”

Following the rulings on the motions in limine, and without seeking the opportunity to present the live testimony of Ains-worth, Ainsworth’s counsel suggested and agreed to proffer the remaining relevant testimony, depositions (including that of Ainsworth), and evidence and have a directed verdict entered in favor of KLI and KLI Global due to the exclusion of all of the experts. The trial court granted the requested directed verdict.

As part of the proffer, Grate and Maso-ry testified that they believed Type II racking or torsional instability was the cause of Ainsworth’s accident much as they did during their depositions. Ains-worth then proffered the deposition of Ojalvo, detailed above, in which he also expressed the opinion that Type II racking or torsional instability caused the accident.

Finally, Ainsworth proffered his own deposition. Ainsworth explained that he was closing a store and was removing pucks from the wall without the use of tools. Ainsworth testified that he had not used the eight-month-old ladder prior to the day of the accident, but that it was used by others to accomplish general tasks around the store. However, Ainsworth had used the ladder on the day of the accident prior to the time of the accident and had moved the ladder throughout the store as his work progressed. At the time of the accident, Ainsworth had just moved the ladder to a new position and climbed onto it when it collapsed from under him. Ainsworth testified that all four feet of the ladder were on the ground when he climbed onto it before the accident. He had climbed to the third rung of the ladder right before' he fell and did not notice that any foot of the ladder was no longer on the ground. When Ainsworth reached the third rung of the ladder, he was holding the top cap of the ladder as a brace. The ladder did not feel unstable or wobbly before he fell. Ainsworth fell when he had one hand on the top cap of the ladder and reached for a puck with the other hand, and all of sudden became separated from the ladder and fell through the air.

Thereafter, KLI filed a Motion for Final Judgment based on the directed verdict requested by Ainsworth. The trial court then entered a final judgment in favor of KLI and KLI Global.

On appeal, Ainsworth contends that the trial court erred by excluding the testimony of his three expert witnesses for three reasons.

First, Ainsworth asserts that the trial court erred by entertaining the motions in limine, because they were untimely filed on the first day of trial in violation of the trial court’s order setting trial and the parties’ pretrial stipulation. However, we find this argument to be without merit because the record establishes that the untimeliness resulted from the actions of Ainsworth’s counsel in repeatedly failing to make the expert witnesses available for depositions. KLI and KLI Global could not be expected to file motions in limine directed at the experts by calendar call when their depositions were not taken until after calendar call.

Second, Ainsworth asserts that the expert witnesses were entitled to testify regarding Type II racking or torsional instability to establish the inference derived from Cassisi v. Maytag Co., 396 So.2d 1140, 1148 (Fla. 1st DCA 1981), so that the trial court erred by granting the motions in limine directed at the experts. However, we find this argument to be without merit, because while the motions in limine regarding the experts were being considered and at the time Ainsworth elected to take the directed verdict, Ainsworth never argued to the trial court that he was seeking to establish a Cassisi inference (nor was seeking to establish such an inference without expressly referring to Cassisi). Instead, Ainsworth improperly raised this argument for the first time on appeal. See Sunset Harbour Condo. Ass’n v. Robbins, 914 So.2d 925, 928 (Fla.2005)(“As a general rule, it is not appropriate for a party to raise an issue for the first time on appeal.”). As such, the trial court did not err on the basis suggested by Ainsworth. Moreover, because the issue on appeal seeks to tie the admissibility of the expert opinions only to a Cassisi inference, we cannot reverse the trial court’s exclusion of the experts even if it may have been improper to exclude their testimony for all the reasons expressed by the dissent.

However, even had the trial court been aware that Ainsworth was seeking a Cassisi inference, one would not have been available under the circumstances of this case. In Cassisi, which was a products liability case grounded in both strict liability and negligence like the present case, a summary judgment was granted in favor of the manufacturer of a nineteen-month-old clothes dryer that malfunctioned and started a fire. 396 So.2d at 1142-1143. Considering the scenario, the appellate court stated that whether the case was founded on negligence, strict liability, or breach of implied warranty, it was the plaintiff’s burden to establish: “(1) that a defect was present in the product; (2) that it caused the injuries complained of; and (3) that it existed at the time the retailer or supplier parted possession with the product.” Id. at 1143. However, “when a product malfunctions during normal operation, a legal inference ... arises, and the injured plaintiff thereby establishes a prima facie case for jury consideration,” so that a plaintiff need not carry its burden until such a time (and summary judgment, or directed verdict, see Jones v. Heil Co., 566 So.2d 565 (Fla. 1st DCA 1990), are generally inappropriate). Cassisi, 396 So.2d at 1148.

In order for a Cassisi inference to arise, the plaintiffs testimony regarding a malfunction is sufficient circumstantial evidence, without expert corroboration (which necessarily must be the case considering that some products which malfunction are destroyed and are not available for testing as a result), to reach the jury, and the plaintiff is not required to pinpoint the defect and exclude all other possible explanations for the malfunction. Id. at 1150, 1151. As such, “the facts essential for the inference’s application are simply proof of the malfunction during normal operation.” Id. at 1151 (emphasis added). Therefore, “if the manufacturer wishes to avoid a jury’s consideration of the issues, it must offer evidence showing there are no genuine issues of material fact to be resolved by a jury rather than suggest possible reasons for the product’s malfunction.” Id.

There are two problems regarding the application of a Cassisi inference to this case. The first problem is that a Cassisi inference arises only where the plaintiff (or in some cases, an eyewitness) testifies and provides evidence that the product was being used normally and that the product malfunctioned. In the present case, at the time Ainsworth called his first expert witness to testify, the motions in limine were considered leading to the exclusion of all three experts, and Ainsworth elected to take a directed verdict, Ains-worth had not testified and provided evidence of the ladder’s malfunction. Parks had testified, but he was not a true eyewitness because he did not witness the precise moment of the accident so as to be able to say that Ainsworth was using the ladder normally or that the ladder malfunctioned; only Ainsworth knew the details of whether he was using the ladder in a normal fashion and how the ladder may have malfunctioned, especially where there were not the visible and unmistakable signs of product malfunction present in eases like Cassisi were there is a fire or other event which actually damages the product as it malfunctions (in the present case, the expert testimony suggests that the ladder was damaged as a result of the fall and not any malfunction that may have caused the fall). As such, at the moment the experts were excluded, even if Ains-worth had requested a Cassisi inference, he would not have been entitled to one where he had failed to seek to testify to establish that the ladder had malfunctioned.

The second problem, which is related to the first, arises from the fact that the Cassisi inference of product defectiveness largely began as a shield to protect plaintiffs from the difficulties resulting from proving then- cases where products were destroyed or severely damaged, like the dryer in Cassisi, when they malfunctioned, so as to prevent expert examination and opinion to establish the nature of the product defect giving rise to the accident. If we were to follow the logic of the dissent, the Cassisi inference would be morphed into a sword for plaintiffs to wield, allowing them to get their cases to a jury based on a single expert’s testimony alone without regard to the factual circumstances of their cases, even where those factual circumstances fail to include any tangible evidence demonstrating that there was any malfunction caused by a defect that resulted in an accident. In other words, an expert could be employed to establish not only the presence of a product defect which caused a malfunction, but the very existence of a malfunction, even though Cassisi requires that the malfunction be demonstrated by plaintiff or witness testimony so as to give rise to an inference of defectiveness (which can then be fleshed out by experts). As such, circumstantial evidence provided by experts should not be permitted to substitute for plaintiff or witness testimony to prove the very occurrence of a malfunction. After all, the intent of Cassisi is to provide an inference so that a plaintiff does not have to pinpoint a defect or exclude other explanations for a malfunction, but only after there has been proof of a malfunction. Consequently, a Cassisi inference was not available to Ainsworth, because, in addition to attempting to establish the nature of the defect, he attempted to improperly employ experts to demonstrate the very existence of a malfunction (which is a tenuous tactic in any event because the experts admitted that they lacked enough information about the accident to explain exactly what occurred).

Third, Ainsworth asserts that the trial court erred by excluding the expert testimony regarding an alternative ladder design that would minimize the risk of Type II racking or torsional instability. However, we find this argument to be without merit, because Ainsworth is unable to establish error regarding the exclusion of the expert testimony on Type II racking or torsional instability as the cause of his accident because of his failure to raise his Cassisi argument below, which was his only argument for seeking admission of the expert testimony on appeal. As such, because the experts could not testify regarding Type II racking or torsional instability due to this procedural irregularity, the possibility of a safer ladder is irrelevant.

In sum, we conclude that the trial court did not err by granting the motions in limine excluding Ainsworth’s three expert witnesses on any ■ of the three grounds raised by Ainsworth on appeal. As such, we affirm in all respects.

Affirmed.

GUNTHER, J., and HOROWITZ, ALFRED J., Associate Judge, concur.

FARMER, J., dissents with opinion.

FARMER, J.,

dissenting.

Once upon a time in a land far, far• aiuay called Aliceland, goods sold in the marketplace had a secret trait unknown to anyone unlucky enough to buy them. A wheelbarroiv would fall apart if anything was placed in it. A two-wheeled hand cart woidd crumble if loaded with anything. A ladder would just naturally collapse if climbed and work attempted ivhilst standing on it. Goods in Al-iceland do not function in the ordinary way they were meant to work. Nothing works as expected.
So if someone buys a ladder, he must not use it because its legs will secretly be displaced and thus collapse. He must be hoisted by crane and carefully placed on it without causing any movement, for climbing woirld displace the legs — and down comes the ladder. If he should find himself perched upon the third rung of a five-rung ladder, on no account should he move about or work, nor tiuist his body, nor extend his reach. If he does, the ladder will fall doum. Such are the ladders in Aliceland.
Similarly strange things happen in Courts in Aliceland. If an injured buyer sues the seller of such a ladder, before his case can be tried he must first swear that he made sure that all four legs were snugly on the floor and only then climbed, the ladder with, great care and caution. He may not say that he ivas unaware of any hidden displacement of the legs as he moved because he did not knoiv that he was unaware.
Then he will not be allowed to call an expert witness to testify that the unintended movement of the ladder is undetectable. Or that it is possible to design and build ladders that won’t secretly move and, collapse ivhen used as intended. Such testimony is absolutely forbidden. It ivill be held to conflict with his statement that he checked the legs as he worked. Never mind that the secret trait is hidden, and users could not possibly be aware that the ladder’s legs simply cannot be reliably set and remain stable.
This is how a trial is done. In Alice-land it is verdict first, evidence later (maybe). For you see, even law suits share the secret trait — nothing works as intended.

The substance of plaintiffs actual deposition testimony before trial in this case might be fairly characterized by any reasonable person as making the point that he did not know how the fall occurred. As he put it, he was standing on the third rung holding onto the ladder’s “cap” with both hands, turning slightly to the wall, when suddenly the ladder collapsed beneath him. The trial testimony of his eyewitness supported that understanding. His expert witnesses would have testified that displacement of the ladder feet caused by user movement is insidious and, in their experience, not apt to be appreciated by the user as it occurs. The proffered testimony of plaintiff’s experts as to Type II racking or torsional instability was therefore entirely consistent with the account of the fall given by plaintiff as well as his eyewitness.

The trial judge in this case turned a Florida Court into Aliceland. The decision to exclude every one of plaintiffs expert witnesses was based on the trial judge’s conclusion that plaintiffs intended trial testimony would be inconsistent with the opinions of his expert witnesses. In addition to being a spontaneously conceived Catch-22, as well as an inaccurate characterization of how his testimony might be viewed by a jury, the decision conflicts with the following principles:

1. For nearly forty years it has been recognized in this State that ladders collapsing when used in their ordinary, intended manner can be deemed defective without knowing anything more than that fact. See McCarthy v. Fla. Ladder Co., 295 So.2d 707, 709-10 (Fla. 2d DCA 1974) (“a defect can be inferred from the fact that a new product performs in such a manner as to preclude any other reasonable inference which would suggest that the product was not defective.”) (citing 2 Harper and James, The Law of Torts § 28.12 (“if injury can be traced to a break or collapse of a structure or a machine and the evidence also shows that the article was being put to its ordinary use in the ordinary way when it failed, it is reasonable to attribute its failure to some flaw or defect.”)). The testimony of the eyewitness in this case was sufficient evidence that the ladder was being used in its ordinary, intended manner when it precipitately collapsed. Ladders so collapsing are plainly defective.

2. Experts are permitted to testify based on inferences drawn from facts supplied by other witnesses. § 90.704, Fla. Stat. (2006); Fridovich v. State, 489 So.2d 143, 145 (Fla. 4th DCA 1986); Charles W. Ehrhardt, FLORIDA Evidenoe § 704.1 (2006 ed.) (“An expert may express an opinion based on reasonable inferences that may be drawn from the evidence. The bar against building an inference on an inference is not applicable to preclude an expert’s testimony based on reasonable inferences drawn from the evidence”). This principle applies to ladders. Parke v. Scotty’s Inc., 584 So.2d 621, 623 (Fla. 1st DCA 1991). The experts should have been allowed to testify how the ladder was defective and show that the circumstances of plaintiffs fall described by the eyewitness were completely in harmony with then' theory.

3. In negligence actions it is not necessary that plaintiffs testify from personal knowledge as to the specific nature of the event by which they were injured — to know exactly how the mechanics of the injury-causing event played out — because proof of a defect can be made by reasonable inferences from the circumstances. Parke, 584 So.2d at 623. To recover on this claim, Ainsworth did not have to know whether all four feet of the ladder remained rigidly on the floor until it collapsed. In fact, even if he believed himself personally certain that all four feet remained grounded at all times, that hardly invalidates his experts’ theory — which recognizes that the user is often unaware of a shift by one of the legs. The only thing plaintiff was obligated by his personal testimony to establish as to a defective product was that he was using this ladder in its ordinary, intended manner.

4. An expert opinion based on personal training and experience is not scientific evidence subject to analysis under Frye v. United States, 293 F. 1013 (D.C.Cir.1923). Johnson v. State, 933 So.2d 568, 570 (Fla. 1st DCA 2006). This kind of expert testimony is deemed pure opinion testimony because it is based on the expert’s own observation and study. Rickgauer v. Sarkar, 804 So.2d 502, 504 (Fla. 5th DCA 2001). As we explained in Holy Cross Hospital v. Marrone, 816 So.2d 1113 (Fla. 4th DCA 2002):

“ ‘Pure opinion’ ” refers to expert opinion developed from inductive reasoning based on the expert’s own experience, observation, or research, whereas the Fnje test applies when an expert witness reaches a conclusion by deduction, from applying new and novel scientific principle, formula, or procedure developed by others.”

816 So.2d at 1117; see also Jones v. Goodyear Tire & Rubber Co., 871 So.2d 899 (Fla. 3d DCA 2003) (expert opinion based on expert’s own experience or training is deemed “pure opinion” and need not pass the Frye test because the testimony is based on the expert’s personal opinion). It is undisputable that the trial court’s reliance in this case on the failure of plaintiffs expert witnesses to follow the Frye methodology for general scientific acceptance of new or novel scientific discoveries was improper under our own decision. The Fnje methodology was unnecessary to qualify the testimony of these particular witnesses — who were not asked to deal with a new, novel scientific principle. If one had to characterize the nature of then' knowledge, training and experience, it had to do with applied engineering, not with pure science.

5.It is true (but irrelevant) that no one cited Cassisi v. Maytag Company, 396 So.2d 1140 (Fla. 1st DCA 1981), to the trial judge in the argument on whether plaintiffs expert witnesses should be excluded. Plaintiff did argue in the trial court the very same principle for which Cassisi stands — that the trier of fact is entitled to infer a defect when a product collapses while being used as intended. The fact that his case authorities then did not include one now being presented on appeal has nothing to do with preservation of the issue. See Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982) (“an appellate court will not consider an issue unless it was presented to the lower court ... to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.” [e.s.]).

Appellee Keller never objected in its Answer Brief or at oral argument to plaintiffs reliance on Cassisi. In fact the Answer Brief does not even mention Cassisi. On what basis, therefore, does the majority object? Preservation of appellate issues does not depend on whether the party cites every single case on the subject to the trial judge. It depends instead on whether the substance of the argument being made on appeal was made to the trial court. See Black v. State, 367 So.2d 656, 657 (Fla. 3d DCA 1979) (ground argued on appeal must be same as ground argued in trial court).

So why is the majority basing its decision on the failure to cite Cassisi to the trial judge? The substance of the Cassisi holding was argued in the trial court. The record fairly supports the lack of any waiver of this issue. Its substance, accepting an inference of defect, is incontrovertible.

6. The majority does not explain under what authority a trial judge can preemptively exclude expert testimony because it would conflict with a narrow interpretation of deposition testimony reasonably subject to an equally plausible but contrary interpretation of the same event. The majority, along with the trial judge, are crediting Keller’s version of contested facts over plaintiffs. Just what legal principle allows all these judges to resolve this central factual dispute in the case? Isn’t it the role of the jury to resolve contested facts?

The sufficiency of an expert’s opinions is for the jury to decide, not the trial judge. See Vorsteg v. Thomas, 853 So.2d 1102, 1103 (Fla. 4th DCA 2003) (jury is free to determine the credibility of expei’ts and, where there is conflicting evidence, the weight to give to their opinions).

The decision of the majority is in conflict with the all of the foregoing authorities. I dissent.


source: Caselaw Access Project

author: ROTHENBERG, Judge,

license: Public Domain

text:
    Johnny JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2795.
    District Court of Appeal of Florida, Third District.
    Sept. 26, 2007.
    Rehearing Denied Nov. 8, 2007.

      Johnny Johnson, in proper person.
    Bill McCollum, Attorney General, and Olga L. Villa, Assistant Attorney General, for appellee.
    Before COPE, CORTIÑAS, and ROTHENBERG, JJ.
   ROTHENBERG, Judge,

The appellant, Johnny Johnson (“Johnson”), appeals an order of the trial court denying his petition for writ of habe-as corpus wherein he argues that he was illegally sentenced as a violent career criminal. We affirm the trial court’s order as the claims raised by Johnson are not cognizable via a petition for writ of habeas corpus. See Bonner v. State, 866 So.2d 163, 164 (Fla. 5th DCA 2004) (holding that the defendant “was not entitled to habeas corpus or mandamus relief, since he was not, nor did he allege, he was entitled to immediate release or was being held without lawful authority.”). Additionally, because the claims Johnson raises in this appeal have been previously litigated by Johnson and have been adversely decided by both the trial court and this court, we find that they are procedurally barred. Witherspoon v. State, 710 So.2d 143, 144 (Fla. 5th DCA 1998).

Affirmed.


author: PER CURIAM.

text:
    Antonio JOHNSON, Petitioner, v. Timothy RYAN, Director, Miami-Dade Corrections and Rehabilitation Department, Respondent.
    No. 3D07-2191.
    District Court of Appeal of Florida, Third District.
    Sept. 26, 2007.
    Antonio Johnson, in proper person.
    Bill McCollum, Attorney General, for respondent.
    Before GREEN, WELLS, and SUAREZ, JJ.
   PER CURIAM.

Antonio Johnson petitions this Court for a writ of mandamus to compel the Miami-Dade Corrections and Rehabilitation Department to return a transcript he claims was taken from his cell. We deny the petition for writ of mandamus without prejudice.

Petitioner states that on or about June 15, 2007, a search of unit 5B1 was undertaken. Upon return to his cell, petitioner alleges that six-hundred pages of his legal transcript were missing. He claims that he brought this to the official’s attention and has filed numerous grievances with the grievance clerk to which he has never received a response. The only attachment to the petition was an Inmate Grievance Form dated June 15, 2007, which is blank as to any resolution. As there is no form showing any resolution to a grievance filed, a writ of mandamus is premature as the petitioner has failed to exhaust his remedies. Therefore, we deny the petition for writ of mandamus without prejudice, to be raised upon exhaustion of the petitioner’s administrative remedies.

Petition is denied.


text:
    Donald A. WILLIAMS, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D07-2223.
    District Court of Appeal of Florida, Third District.
    Sept. 26, 2007.
    Donald A. Williams, in proper person.
    Bill McCollum, Attorney General, for respondent.
    Before GREEN, WELLS, and SUAREZ, JJ.
   PER CURIAM.

Donald A. Williams petitions this court for a writ of habeas corpus asserting ineffective assistance of appellate counsel. We deny the petition on all issues raised.

Petition denied.


author: RAMIREZ, J.

text:
    Kendrick Demonte EDWARDS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2455.
    District Court of Appeal of Florida, Third District.
    Sept. 26, 2007.
    Rehearing and Rehearing En Banc Denied Nov. 9, 2007.

      Bennett H. Brummer, Public Defender, and Thomas Regnier, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before RAMIREZ and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   RAMIREZ, J.

Kendrick Demonte Edwards appeals his conviction for armed robbery, contending that the State of Florida’s use of inadmissible identification hearsay by a declarant who did not testify at trial severely prejudiced his case. Because we agree with Edwards, we reverse and remand for a new trial.

Late at night on May 31, 2003, Sean Tomlin went with four friends to a Miami convenience store. As Tomlin was leaving, a car pulled up, and a man carrying a gun got out and approached Tomlin. The man addressed Tomlin by his first name, and said, “[w]hat the [expletives] you and my home boy going through?” He pointed the gun at Tomlin and made Tomlin surrender his expensive, custom-made medallion and chain that he was wearing. After the robber took the necklace, Tomlin’s friends ran toward him, but the robber pointed his gun at them and they backed off. The robber got in the car and fled. Tomlin and his friends got in Tomlin’s car to pursue the robber but were unsuccessful. They did not get the license number of the robber’s car.

When the police arrived, they took down the witnesses’ description of the robber as a black male, dark complexion, six feet tall, 170 pounds, with a black T-shirt, black baseball cap, and wearing a white bandana over his face. No witness mentioned any tattoos on the robber’s arms.

The next day, Tomlin went to the Cutler Ridge Flea Market to order a replacement medallion. He heard a man telling three male companions how he had told someone, “let me have this sh[ ].” Tomlin recognized the man as the robber. Tomlin could see the stolen medallion, so he ran to get a policeman but the suspect ran away. The police did not catch the suspect, but apprehended Nikeisha Eulaine, who was allegedly with the suspect. Eulaine did not testify at trial, but the trial court allowed police to testify, over defense objection, that she had given them information that led them to Edwards. The police presented Tomlin with a six-picture photo line-up, and Tomlin identified Edwards, who was arrested and charged with armed robbery.

At trial, Tomlin testified, along with his companions. His brother testified that the robber’s bandana did not cover his nose, but the defense pointed out that the witness had stated the opposite in a deposition. One of Tomlin’s friends had stated in a deposition that the bandana covered the robber’s nose, but he said at trial that the bandana “could have” slipped below the nose. Tomlin’s three friends did not identify Edwards as the robber.

During trial, the defense pointed to several discrepancies in Tomlin’s testimony. For example, Tomlin said that one of the reasons he recognized Edwards was that his eyes and nose were the same, but he had reported to police that a white bandana covered the robber’s face “from the nose down.” Tomlin testified that the robber had short pants, but later admitted he was not sure. Tomlin stated that he had never seen Edwards before the robbery. He also admitted that in a deposition, he said he had seen him before, but that his hair was different. Tomlin admitted that when he saw Edwards at the flea market, he did not see any woman with him, and that when he picked out Edwards’ picture, he was picking out the man he saw at the flea market, not necessarily the man who robbed him. Tomlin said that there were some white people in the photo line-up, an assertion contradicted by the police and by the actual photo lineup in the record. Tomlin admitted that he testified in his deposition that he could see the robber’s arms and did not notice any tattoos. In court, it was clear that Edwards did have tattoos.

The State presented Lieutenant Howett, who patrolled the flea market, and Detective Goldblatt, who responded to Tomlin’s call on the night of the robbery. Howett could neither apprehend the suspect at the flea market, nor any of his male companions, but he did apprehend Eulaine. Over defense objection, Howett was allowed to testify that Eulaine’s information led to a suspect, although he did not specify who the suspect was. Eulaine did not testify at trial. Howett said he forwarded Eulaine’s information to Detective Goldblatt.

When Goldblatt testified, he said that he had responded to the original robbery report and that the information he received from Howett led to a suspect. He said that Eulaine confirmed that she was with Edwards at the flea market, and Tomlin selected Edwards from the photo line-up that ensued. Edwards was then arrested. Goldblatt testified that Edwards gave his weight as 200 pounds but that witnesses had described the robber as weighing around 170 pounds. Goldblatt conceded that there was no physical evidence linking Edwards to the crime and that the stolen necklace and the firearm were never recovered. The State, in closing, stated that Eulaine had confirmed that Edwards had fled from the flea market. The defense objected and moved for mistrial, which was denied. The jury found Edwards guilty of armed robbery with a firearm, and he was sentenced to life in prison.

Edwards now contends that the State was improperly allowed to elicit hearsay testimony from the two police officers that Eulaine, who never testified, had identified him as the person at the flea market. We agree that this case is controlled by Postell v. State, 398 So.2d 851 (Fla. 3d DCA 1981), and its progeny, and thus requires reversal.

In Postell, a policeman testified that as a result of a conversation he had with an unnamed woman who did not testify at trial, he arrested the defendant. Id. at 853. This Court stated:

[Wjhere ... the inescapable inference from the testimony is that a non-testifying witness has furnished the police with evidence of the defendant’s guilt, the testimony is hearsay, and the defendant’s right of confrontation is defeated, notwithstanding that the actual statements made by the non-testifying witness are not repeated.

Id. at 854 (emphasis added); see also Keen v. State, 775 So.2d 263, 271-75 (Fla.2000); Tumblin v. State, 747 So.2d 442, 444 (Fla. 4th DCA 1999); Trotman v. State, 652 So.2d 506, 507 (Fla. 3d DCA 1995).

In the case before us, the ' defense brought up the issue of whether Eulaine’s statements would be admitted before the two officers testified. Both the State and the trial court agreed that Eulaine’s statements would not be admitted. Nevertheless, Howett testified that Eulaine’s information led to a suspect. Howett did not divulge the contents of the conversation. Goldblatt later testified that after speaking with Eulaine, he compiled the photo lineup that included Edwards’ picture. Gold-blatt further testified that Eulaine confirmed that she was at the flea market with Edwards.

A statement is not hearsay under section 90.801(2)(c), Florida Statute (2002), if it is “[o]ne of identification of a person after perceiving the person,” but it applies only when the declarant testifies at trial. Here, Eulaine did not testify, thus her identification of Edwards as the suspect at the flea market was inadmissible hearsay and cannot be admitted under this exception. The admission of this hearsay testimony violated Edwards’ right to confront the witness against him, and thus was error.

In addition, the admission of Eu-laine’s hearsay testimony was harmful error. Here, the non-testifying witness identified Edwards as being at the flea market. The State had no physical evidence, such as DNA or fingerprints, against him. The State never recovered the stolen necklace or the gun used in the crime. No witness described the robber’s face because he was wearing a bandana and a baseball cap that covered his face except for his eyes. The only evidence the State had linking Edwards to the crime was Tomlin’s testimony that he had seen the robber the next day at the flea market wearing the stolen necklace under a jersey and bragging about the robbery. However, Tomlin’s credibility was impeached various times during his testimony. Clearly, the State needed Eulaine’s identification or else their case against Edwards was considerably weaker. Consequently, this hearsay evidence could not have been harmless error.

The State contends that Zuluaga v. State, 915 So.2d 1251 (Fla. 3d DCA 2005), supports its position that a Postell error may be harmless. We disagree because the facts of Zuluaga are distinguishable.

In Zuluaga, the State introduced evidence that a shipment of Ecstasy had been smuggled into the country. Id. at 1252. The statement did not in any way connect the defendant to the drug shipment. Id. Furthermore, the statement was not relevant in any way to the only disputed issue at trial, which was whether the defendant knew that the pills he was selling were illegal. Id. at 1253. Thus, this Court found that the admission of this statement was harmless error. Id. at 1256.

Here, Eulaine identified Edwards as the person who ran from the flea market wearing the stolen necklace. No other witness was able to identify Edwards as the perpetrator because the robber’s nose and mouth were covered by the bandana when the robbery occurred. The flea market incident, where Tomlin stated he saw someone wearing his medallion and allegedly bragging about the robbery, was the point at which evidence linking Edwards to the crime was brought to light. Tomlin testified that when he picked Edwards’ photo out of the line-up, he was picking the photo based on his memory of the person he saw at the flea market, not the person who robbed him.

In sum, the trial court erred in admitting this hearsay evidence by a non-testifying witness. This evidence severely prejudiced Edwards’ case, thus we reverse and remand for a new trial.

Reversed and remanded.


author: SUAREZ, J.

text:
    The STATE of Florida, Appellant, v. Roberto PEREIRA, Appellee.
    Nos. 3D06-634, 3D06-233.
    District Court of Appeal of Florida, Third District.
    Sept. 26, 2007.
    Rehearing Denied Nov. 1, 2007.
    Bill McCollum, Attorney General, and Michael E. Hantman and Laura Moszer, Assistant Attorneys General, for appellant.

      Robbins,' Tunkey, Ross, Amsel, Raben and Waxman, and Benjamin Waxman, Miami, for appellee.
    Before GERSTEN, C.J., and SUAREZ, J., and FLETCHER, Senior Judge.
   SUAREZ, J.

The State of Florida appeals the trial court’s order granting defendant’s motion to suppress evidence of marijuana growing in defendant’s home found by police pursuant to a search warrant. The trial court found that there was insufficient probable cause based on the evidence in the police affidavit for the judge to have issued the search warrant used to enter the premises. The affidavit in support of the warrant stated that the police and a trained, nar-eoties-search dog detected the odor of marijuana emanating from the defendant’s home while standing in front of and on the front porch of the house. The trial court followed the holding of State v. Rabb, 920 So.2d 1175 (Fla. 4th DCA 2006), review denied, 933 So.2d 522 (Fla.2006), cert. denied, — U.S. -, 127 S.Ct. 665, 166 L.Ed.2d 513 (2006), and held that the dog sniff on the front porch constituted an illegal search and could not be used as evidence of probable cause for the search warrant. The trial court also held that the affidavit contained no evidence independent of the sniff to support probable cause and, therefore, suppressed evidence of the grow. We find there was independent evidence in the affidavit to support probable cause and reverse the trial court’s order.

The affidavit of Detective Sacramento states that he and Detective Love of the Miami-Dade Police Department went to the defendant’s home based on an anonymous tip that the defendant was growing marijuana in his house. Detective Sacramento walked toward the premises from the sidewalk and, while standing in front of the premises, smelled marijuana. The next day he returned with other officers and a trained, narcotics-search dog. Once again, he smelled a strong odor of marijuana emanating from the premises. Upon approaching the front door of the residence, the canine alerted to the existence of drugs at both the front door and the garage door. Defendant was asked and refused to consent to a search of the premises. The affidavit detailed Detective Sacramento’s and the canine’s extensive experience and training in detecting narcotics. As a result of the search under the warrant, the detectives found a hydroponics lab growing marijuana in the defendant’s house. The defendant moved to suppress this evidence on grounds that the dog sniff to detect marijuana was an illegal search which could not be used as evidence to support probable cause for the warrant. The trial court granted the motion relying, in part, on State v. Rabb, 920 So.2d at 1175 (dog sniff from outside home to detect narcotics inside home uses extra sensory procedure such that violates firm line at door of home protected from intrusion by Fourth Amendment).

The issue presented on appeal is whether there was probable cause for the issuance of the search warrant to justify the search of the defendant’s home. The standard of review on the legal issue of probable cause is de novo. The question is whether the information contained in the warrant establishes a reasonable probability that contraband will be found. In Pagan v. State, 830 So.2d 792, 806 (Fla.2002), the court stated:

In determining whether probable cause exists to justify a search, the trial court must make a judgment, based on the totality of the circumstances, as to whether from the information contained in the warrant there is a reasonable probability that contraband will be found at a particular place and time.

The determination is made by examining the four corners of the affidavit. Pagan, 830 So.2d at 806. In examining the four corners of Detective Sacramento’s affidavit, the facts show that, independent of the dog sniff, there was sufficient evidence to support the issuance of the warrant. See United States v. Morgan, 160 Fed.Appx. 694 (10th Cir.2005), cert. denied, 547 U.S. 1103, 126 S.Ct. 1894, 164 L.Ed.2d 578 (2006); see also United States v. Richey, 185 Fed.Appx. 539 (8th Cir. 2006); United States v. Cisneros-Mayoral, 129 Fed.Appx. 37 (4th Cir.2005). Detectives Sacramento and Love visited the defendant’s premises to corroborate an anonymous tip that marijuana was being cultivated there. Sacramento corroborated the anonymous tip when he walked from the sidewalk toward the premises and smelled the marijuana. To further corroborate his findings, he returned to the scene the following day with other officers and a drug-detecting canine. Again, while standing at the front door of the premises, he and other detectives observed a strong odor of marijuana emanating from the house. The canine alerted to drugs at the front and garage doors of the premises. By contrast, in Rabb, there was no corroboration in the probable cause affidavit of any evidence resulting from surveillance of the house prior to the dog sniff. Rabb, 920 So.2d at 1187. We find that the totality of the evidence in this case, even without evidence of the dog sniff, demonstrates sufficient probable cause to support the issuance of the warrant.

We disagree with the defendant’s contention that the officers’ detection of the odor of marijuana emanating from the defendant’s home while standing on the sidewalk and front porch of the defendant’s home is an invasion of the defendant’s privacy protected by the Fourth Amendment. Admittedly, there was no evidence that the front yard or porch was enclosed by a fence or any other structure and was, in fact, open to public access. We follow those cases which hold that there is no reasonable expectation of privacy at the entrance to property which is open to the public, including the front porch. See State v. Morsman, 394 So.2d 408 (Fla.1981); State v. E.D.R., 959 So.2d 1225 (Fla. 5th DCA 2007), and cases cited; Ramize v. State, 954 So.2d 754 (Fla. 3d DCA 2007); Potts v. Johnson, 654 So.2d 596 (Fla. 3d DCA 1995); see, e.g., United States v. Cota-Lopez, 104 Fed.Appx. 931 (5th Cir.2004). Compare State v. Rabb, 920 So.2d at 1191.

Because the anonymous tip, coupled with the observations of the detectives, alone, provided sufficient probable cause for the search of the premises, independent of the dog sniff, we reverse the trial court’s order granting the motion to suppress.

Reversed and remanded.

      . We find it unnecessary and choose not to address in this case the issue of whether or not the dog sniff was illegal.


text:
    Robert KLECKLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-3151.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 2007.
    Rehearing Denied Nov. 21, 2007.

      Robert Kleckley, Bonifay, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Sherwood v. State, 745 So.2d 378 (Fla. 4th DCA 1999).

STONE, KLEIN and TAYLOR, JJ., concur.


text:
    Doretta TURNER, Appellant, v. MIAMI-DADE COUNTY SCHOOL BOARD and Gallagher-Bassett Services, Inc., Appellees.
    No. 1D06-6736.
    District Court of Appeal of Florida, First District.
    Sept. 28, 2007.
    Rehearing Denied Oct. 30, 2007.
    L. Barry Keyfetz of L. Barry Keyfetz, P.A., Miami, for Appellant.
    Steven P. Kronenberg of Kelley, Kro-nenberg, Gilmartin, Fichtel & Wander, Miami Lakes, for Appellees.
   PER CURIAM.

In this workers’ compensation case, claimant challenges the compensation order on remand. Claimant raises three issues on appeal, only one of which we find has merit. Claimant argues that the judge of compensation claims (JCC) erred in denying her claim for penalties and interest related to the E/SA’s late payment of impairment benefits for her back injury. We agree, and reverse and remand for further proceedings consistent with this opinion.

This issue was previously before this Court in Turner v. Miami-Dade School Board & Gallagher-Bassett Services, 941 So.2d 508 (Fla. 1st DCA 2006) {Turner I). The facts of the case are not in dispute. On February 14, 2001, claimant was involved in a compensable accident. On January 4, 2002, Dr. Chiron, claimant’s authorized treating physician, found claimant had reached maximum medical improvement (MMI) and assigned a five percent permanent impairment rating for her back injury. On March 29, 2002, the E/SA’s counsel conferenced with Dr. Chiron and discussed that Dr. Chiron assigned a five percent impairment rating for claimant’s back injury on January 4, 2002. On June 28, 2002, claimant filed a petition seeking impairment benefits for her back injury. On July 23, 2002, the E/SA paid claimant for 15 weeks of impairment benefits for her back injury. On July 29, 2002, claimant filed a second petition seeking interest and penalties for the E/SA’s late payment of the benefits.

Section 440.20(6), Florida Statutes (2001), provides that, if the E/SA fail to make payment of impairment benefits within seven days after those benefits become due, the E/SA shall pay penalties unless such nonpayment results from conditions over which the E/SA had no control. Section 440.20(8), Florida Statutes (2001), provides that the E/SA shall also pay interest from the date the benefits were due until the date the benefits are paid.

In Turner I, this Court found that the evidence appeared to demonstrate that claimant was entitled to penalties and interest on the E/SA’s late payment of benefits because the E/SA were aware that claimant reached MMI on January 4, 2002, by at least March 29, 2002, if not earlier, but failed to make payments until July 23, 2002. Id. at 510. However, because the JCC failed to make any findings of fact regarding the issue, this Court was constrained to reverse and remand with directions to the JCC to make findings of fact supporting his conclusion. Id.

On remand, the JCC again denied the claim for penalties and interest and failed to make any findings of fact supporting his conclusion. The E/SA argue that the JCC did not err in denying the claim because claimant failed to meet her burden of proof. However, as claimant correctly argues, the E/SA, not claimant, have the burden to offer “any relevant evidence showing that [they were] unaware, as of the date on which claimant alleged benefits were due, of facts supporting the obligation to pay those benefits.” Dollar Gen. v. McCoy, 927 So.2d 169, 170 (Fla. 1st DCA 2006). The E/SA, however, presented no evidence that they were ever unaware, as of January 4, 2002, that they were required to pay claimant impairment benefits for her back injury. As such, it was incumbent on the JCC to award both penalties and interest. Id.

Accordingly, we reverse and remand, with directions to the JCC to award claimant penalties and interest on the E/SA’s late payment of impairment benefits for claimant’s back injury pursuant to section 440.20(6) and section 440.20(8), Florida Statutes (2001).

AFFIRMED in part; REVERSED in part; and REMANDED, with directions.

KAHN, WEBSTER, and ROBERTS, JJ., concur.


text:
    Rufus HAMPTON, Appellant, v. James R. McDONOUGH, Appellee.
    No. 1D07-1070.
    District Court of Appeal of Florida, First District.
    Sept. 28, 2007.
    Rehearing Denied Nov. 1, 2007.
    Rufus Hampton, pro se, Appellant.
    Bill McCollum, Attorney General, and Sherry Anita Toothman, Assistant Attorney General, Tallahassee; Kathleen Yon Hoene, General Counsel, Department of Corrections, Tallahassee, for Appellee.
   PER CURIAM.

In the underlying mandamus proceeding filed in the trial court challenging an adverse result in a prison disciplinary action, the trial court imposed a lien pursuant to section 57.085, Florida Statutes (2006), on appellant’s inmate trust account to recover court costs and fees. Rather than seeking-review of that order here following entry by the trial court of a final order dismissing the mandamus petition, more than two months after entry of that order, appellant filed in the trial court a “Motion for Relief from Order of Indigence Imposing Lien on Prisoner Trust Account,” assertedly pursuant to Florida Rule of Civil Procedure 1.540(b), which the trial court denied.

Because the trial court proceeding-sought review of quasi-judicial action by a lower tribunal (i.e., the Department of Corrections), it was governed by the Florida Rules of Appellate Procedure. See Wilkinson v. McDonough, 960 So.2d 911 (Fla. 1st DCA 2007). Accordingly, Florida Rule of Civil Procedure 1.540(b) was unavailable to appellant. To the extent appellant wished to have the trial court reconsider its order imposing a lien on his inmate trust account, his recourse was to file in the trial court a motion for rehearing or clarification pursuant to Florida Rule of Appellate Procedure 9.330. Treating appellant’s “Motion for Relief from Order of Indigence Imposing Lien on Prisoner Trust Account” as having been filed pursuant to that rule, it was untimely. Therefore, the trial court correctly denied appellant’s motion.

AFFIRMED.

KAHN, WEBSTER, and ROBERTS, JJ., concur.


author: ROTHENBERG, Judge.

text:
    GREENS TO YOU, INC., a Florida corporation, d/b/a Killian Greens Golf Club, Appellant, v. Mike GAVELEK and Omaida Gavelek, his wife, Appellees.
    No. 3D05-2846.
    District Court of Appeal of Florida, Third District.
    Oct. 3, 2007.
    Gaebe, Mullen, Antonelli, Eseo & DiMatteo and Michael A. Mullen and Anne C. Sullivan, Coral Gables, for appellant.
    DeMahy Labrador Drake Payne & Cabeza and Orlando D. Cabeza and Kenneth R. Drake, Miami, for appellees.

      Before GERSTEN, C.J., and SHEPHERD and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The defendant, Greens to You, Inc.,' a Florida corporation, d/b/a Killian Greens Golf Club (“Killian Greens”), appeals an amended order granting the plaintiffs’, Mike and Omaida Gavelek (collectively “the Gaveleks”), motion for new trial as to liability. As we conclude that the trial court did not abuse its discretion, we affirm.

The Gaveleks filed a negligence action against Killian Greens, seeking damages for injuries sustained by Mike Gavelek while playing golf at Killian Greens Golf Club. Following a trial in July 2004, the jury returned a verdict apportioning seventeen percent of the liability to Killian Greens and eighty-three percent to the Gaveleks. Thereafter, Killian Greens filed a motion for new trial as to liability, arguing, in part, that the jury had reached an illegal quotient verdict. The Gaveleks also filed a motion for new trial on the same basis. Subsequently, Killian Greens withdrew its motion for new trial and filed a response opposing the Gaveleks’ motion for new trial.

The Gaveleks, pursuant to Rule 4-8.5(d)(4), Rules Regulating the Florida Bar, filed a motion seeking the trial court’s permission to interview the jurors. Over Killian Green’s objection, the trial court granted the motion. Three jurors, Yelitza Caridad (“Caridad”), Vilma Sevilla (“Sevilla”), and Ramon Alonso (“Alonso”), were deposed, and their testimony was introduced at the hearing on the Gaveleks’ motion for new trial. The trial court issued an order granting the Gaveleks’ motion for new trial, and thereafter, Killian Greens filed its timely notice of appeal.

This court relinquished jurisdiction to allow the Gaveleks to seek an amended order from the trial court explaining its basis for granting the motion for new trial. On September 8, 2006, the trial court issued an amended order, explaining as follows:

Both parties recognized that the verdict rendered by the jury was a quotient verdict at the time the verdict was returned and the motions were subsequently filed.
Upon receiving the motions, the court entered an order allowing the parties to interview the jurors to determine if a quotient verdict was used. Subsequently, the depositions of the jurors were submitted to the court and reviewed by the undersigned. A review of the depositions reveals that all the jurors recalled a process where each one submitted a numerical allocation of liability between the parties. The jury had difficulty agreeing to a result. In order to resolve an impasse the jurors decided to do an averaging and agreed to be bound by it. In the words of one of the jurors “we kind of agreed to disagree.” (Ramon Alonso).
While the recollection and depositions of the jurors varied, the undersigned finds by clear and convincing evidence that the jurors used an averaging process, that in order to avoid an impasse they agreed to disagree and be bound by that averaging. This finding is additionally supported by the percentage of liability as an undisputed l/6th of 100% or the finding of liability by one juror....

The amended order was submitted to this court, and this court reinstated its appellate jurisdiction.

In this appeal, Killian Greens argues that the trial court abused its discretion by granting the Gaveleks’ motion for new trial because the Gaveleks failed to establish by clear and convincing evidence that the jury’s verdict as to liability represented an improper quotient verdict. We disagree.

A trial court’s ruling on a motion for new trial is reviewed by appellate courts for an abuse of discretion, and “it takes a stronger showing of error in order to reverse an order granting a new trial than an order denying a new trial.” Niebla v. Flying Tigers Line, Inc., 533 So.2d 816, 816 (Fla. 3d DCA 1988); see also Pix Shoes of Miami, Inc. v. Howarth, 201 So.2d 80, 81 (Fla. 3d DCA 1967).

In Marks v. State Road Department, 69 So.2d 771, 773 (Fla.1954), the Florida Supreme Court, in addressing quotient verdicts, held as follows:

Quotient verdicts are universally condemned. To constitute a quotient verdict, however, it is essential that there be a preliminary agreement or understanding among the jurors that each will select a figure as representing his opinion of value or damage and that the sum of said amounts divided by the number of jurors will be accepted by each as his or her verdict, and is in fact so accepted. It requires no citation of authority or long dissertation to establish the invalidity of such a verdict or the mischief that would result from a recognition of it. Such verdict would not represent the independent opinion of each juror as the law requires. On the other hand, the courts recognize that compromise, discussions and deliberations are necessary for the determination of questions where minds differ. The use of such figures solely for the purpose of discussion and deliberation is not improper.

Moreover, in Cromarty v. Ford Motor Co., 341 So.2d 507 (Fla.1976), the Florida Supreme Court held:

[I]n order to invalidate a verdict as a quotient verdict, it is insufficient to show merely that the jurors used the quotient process at some stage of their deliberations and that their verdict corresponded exactly or approximately to the amount of the quotient. Rather, it is essential and vital to show that the jurors agreed prior to obtaining the quotient that they would be bound by it and accept it as their verdict.

Id. at 509 (emphasis added).

To overturn a verdict on the ground that it was an improper quotient verdict, the moving party must establish by clear and convincing evidence that the jurors, prior to calculating the quotient figure, agreed to be bound by the figure as them final verdict. See Pix Shoes, 201 So.2d at 82 (“In order to overturn a verdict on [the ground that the verdict was a quotient verdict], it is necessary to establish by clear and convincing proof that a verdict was in fact arrived at in such fashion as to be a quotient verdict.”). Moreover, the trial court “is authorized to resolve conflicts in the evidence in order to determine whether the jury’s decision is the product of a quotient verdict,” and this court is bound by the trial court’s determination. Niebla, 533 So.2d at 816; see also Pix Shoes, 201 So.2d at 80 (holding that where portions of the evidence were in conflict and portions were undisputed, trial court was authorized to resolve factual disputes, and trial court’s ruling arrived at the appellate court with a presumption of correctness).

In the instant case, the depositions of jurors Caridad, Sevilla, and Alonso were introduced at the hearing on the Gaveleks’ motion for new trial. In essence, these jurors testified that after the jury had reached an impasse, each juror submitted a numeric figure representing how he/she would apportion liability between the parties, and that these figures were then averaged. Jurors Caridad and Sevilla testified that, prior to agreeing to this averaging process, the jurors agreed to be bound by the result and to accept it as their final verdict. On the other hand, Juror Alonso testified that although he and the other jurors agreed to conduct the averaging process, the result was “not agreeable to everyone.” Therefore, they continued to deliberate, and eventually they agreed to adjust the figure. Although the testimony conflicted as to whether the jurors had agreed to be bound by the averaging process prior to conducting the process, the trial court, as it is permitted to do, see Niebla, 533 So.2d at 816; Pix Shoes, 201 So.2d at 80, resolved the conflict in favor of the Gaveleks by finding that “[w]hile the recollection and depositions of the jurors varied, the undersigned finds by clear and convincing evidence that the jurors used an averaging process, that in order to avoid an impasse they agreed to disagree and be bound by that averaging.” Therefore, as the trial court found that the Gave-leks established by clear and convincing evidence that the jury entered an improper quotient verdict and this finding is supported by the evidence, the trial court did not abuse its discretion by granting the Gaveleks’ motion for new trial as to liability. Accordingly, we affirm the order under review.

While we affirm the trial court’s order, we note that inquiring into a jury’s “motives and influences by which them deliberations were governed” is against public policy, and that “inquiry is proper only in such cases involving matters extrinsic to the verdict such as arrival at the verdict by lot or quotient....” Kirkland v. Robbins, 385 So.2d 694, 695 (Fla. 5th DCA 1980).

Affirmed.

      . Rule 4-3.5(d)(4) provides as follows:
      (d) Communication With Jurors. A lawyer shall not:
      (4) after dismissal of the 11117 in a case with which the lawyer is connected, initiate communication with or cause another to initiate communication with any juror regarding the trial except to determine whether the verdict may be subject to legal challenge; provided, a lawyer may not interview jurors for this purpose unless the lawyer has reason to believe that grounds for such challenge may exist; and provided further, before conducting any such interview the lawyer must file in the cause a notice of intention to interview setting forth the name of the juror or jurors to be interviewed, A copy of the notice must be delivered to the trial judge and opposing counsel a reasonable time before such interview. The provisions of this rule do not prohibit a lawyer from communicating with members of the venire or jurors in the course of official proceedings or as authorized by court rule or written order of the court.
      Moreover, Rule 1.431(h), Florida Rules of Civil Procedure, provides:
      Interview of a Juror. A parly who believes that grounds for legal challenge to a verdict exist may move for an order permitting an interview of a juror or jurors to determine whether the verdict is subject to the challenge. The motion shall be served within 10 days after rendition of the verdict unless good cause is shown for the failure to make the motion within that time. The motion shall state the name and address of each juror to be interviewed and the grounds for challenge that the party believes may exist. After notice and hearing, the trial judge shall enter an order denying the motion or permitting the interview. If the interview is permitted, the court may prescribe the place, manner, conditions, and scope of the interview.


text:
    Jesus GUTIERREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2798.
    District Court of Appeal of Florida, Third District.
    Oct. 3, 2007.
    Rehearing Denied Nov. 1, 2007.

      Michael S. Goodman, for appellant.
    Bill McCollum, Attorney General, and Laura Moszer, Assistant Attorney General, for appellee.
    Before RAMIREZ, SHEPHERD, and CORTINAS, JJ.
   RAMIREZ, J.

Jesus Gutierrez was convicted of three counts of lewd and lascivious battery on a child less than sixteen years of age. He was sentenced to two consecutive ten-year terms in jail on two counts and fifteen years probation on one count, to run consecutively to the two ten-year terms. For the reasons that follow, we affirm his convictions and sentences.

In October 2002, when S.J., the victim, met Gutierrez, a City of Miami police officer, she was fourteen years of age, and the officer was approximately thirty-three years old. Jackie Lazo, S.J.’s friend, told Gutierrez that S.J. liked him. S.J. and Lazo then met Gutierrez. S.J. and Gutierrez kissed, and Gutierrez touched S.J.’s breast and vagina. Gutierrez penetrated her vagina with his finger. Another police officer, Anthony Perez, saw Gutierrez and S.J. together at this time. Lazo saw the two kiss, but did not see any other sexual contact. Officer Perez did not see Gutierrez and S.J. kiss.

Gutierrez and S.J. met for the second time a few days later. At a motel, Gutierrez and S.J. began kissing. She disrobed, and he performed oral sex on her. They engaged in vaginal sex. S.J. then performed oral sex on Gutierrez. They had sexual intercourse, then left the motel.

In January 2003, S.J. and Gutierrez met again outside the home of S.J.’s friend. He kissed S.J. and digitally penetrated her vagina. Sometime after that, the two had oral and vaginal sex at another motel. In May, Gutierrez and S.J.' met again and had oral and vaginal sex in his truck. In July, Gutierrez and S.J. engaged in vaginal and oral sex on the trunk of his patrol car.

In October, detectives from the Miami police department’s Sexual Victim’s Unit contacted S.J. The detectives asked her if she had had sexual relationship with a police officer. S.J. initially denied having sex with any police officer, but eventually broke down and admitted to having sex with Gutierrez. S.J. kept a diary and was able to provide the dates on which she had engaged in sexual relations with Gutierrez.

The police then contacted Lazo and asked her to come to the police station. At the police station, an officer threatened to arrest Lazo’s brother if she did not cooperate with them, and another threatened her with arrest for contributing to the delinquency of a minor if she did not cooperate. Lazo’s attorney told her to cooperate with police and tell them what she knew. Lazo agreed to speak to Gutierrez over the phone and allowed the police to record the conversation. During the phone call, Gutierrez admitted that he had engaged in sexual relations with S.J. on three occasions.

About a month after making the controlled call to Gutierrez, Lazo learned that there were problems with the recording. The equipment that the police had used to record the call had malfunctioned, and there were gaps in recording. The police asked her to review the tape recording and a transcript that was made of the conversation. Lazo found that the transcript was an accurate representation of her conversation with Gutierrez.

Thereafter, Gutierrez was arrested and charged by information with thirteen counts of lewd and lascivious battery on a child less than sixteen years of age, a second degree felony. The information alleged that he engaged in sexual activity with S.J. between October 2002 and July 2003, when S.J. was older than twelve years of age but less than sixteen years of age.

Gutierrez filed a motion to suppress the controlled calls. At the hearing on the motion, Gutierrez argued that the calls should be suppressed because the state could not show that either he or Lazo voluntarily consented to the recording of the call. He further contended that the recording be suppressed because the recording was inaudible due to the faulty recording device.

Four witnesses testified at the suppression hearing: Lazo and three Metro-Dade Police officers, Detective Gilberto Viera, Commander Jose Alfonso, and Detective Joseph Fleres. Lazo testified that she was called by police regarding allegations of sexual conduct between S.J. and Gutierrez. At the time of the interview, she was 18 or 19 years old. She went into an interview room with four officers. She believed that she could be arrested if she did not tell the officers everything that she knew. Lazo said that although an officer had told her that she could go to jail, that officer was not involved in questioning her. She testified that none of the officers who actually interviewed her had threatened her. She gave the police a statement about her -knowledge of the relationship between Gutierrez and S.J., and she then agreed to make a controlled call. She felt a bit pressured to make the controlled call to Gutierrez, but felt that she was not forced.

Detective Alfonso testified that it was his decision to have Lazo make the controlled call. He said that after making her statement, she was getting ready to leave the police station when she was asked to come back and make the phone call. He could not recall if he was the one who asked her to make the call or if it was another officer. He described her demeanor as very cooperative and upbeat and that she was willing to make the calls. Alfonso said that Lazo never indicated that she did not want to make the calls.

Detective Fleres testified that Lazo consented to making the controlled call and never indicated that she did not want to do it. She did not object to the controlled call being recorded. Fleres met with Lazo approximately one month after the call was recorded and had her review the tape and the transcript.

Detective Gilberto Viera admitted that he told Lazo that she could have been arrested for contributing to the delinquency of a minor. Viera decided not to be involved in the interview with Lazo because he did not want their confrontation to influence her decision to give a statement. Viera was not present when Lazo consented to the controlled call. However, he was present when Lazo made the controlled call to Gutierrez.

Lazo listened to both the taped copy of the controlled call and to the enhanced copy of the call on compact disc. She said that both copies accurately depicted the conversation she had had with Gutierrez during the controlled call. She read the transcript of the controlled call and said that the transcript was an accurate recitation of the call.

The state contended that they had proven consent by the officers’ testimony that Lazo had agreed to the recording. The state also provided a signed affidavit that Lazo had signed in 2005 which stated that she had consented to the recording of the call in 2003. The state argued that Lazo was not coerced into making a statement, making the controlled call or having it recorded because her consent was demonstrated by the fact that she had left the station after making the statement and returning to make the call at the detectives’ request. The state further argued that Lazo’s consent was proven by her testimony in court. The trial court found that the state had demonstrated consent by a greater weight of the evidence that Lazo had voluntarily given her consent to make the phone calls.

Gutierrez next argued that the recording of the calls should be suppressed because the tape was inaudible and unintelligible. The state asserted that Lazo had testified that the recording was an accurate depiction of the conversation and that Gutierrez’s answers could be heard. The trial court declined to listen to the recordings and denied the motion to suppress on the ground that the recording had inaudible portions.

Gutierrez proceeded to a jury trial. After the close of the state’s case, Gutierrez moved for a judgment of acquittal. The trial court dismissed Counts 3, 4, 7, 8, 10, 12 and 13 on the basis that the charges were duplicative and violated the prohibition on double jeopardy.

Gutierrez then testified on his own behalf. He denied meeting S.J. and Lazo on the day S.J. claimed they had met, and he denied ever having sexual contact with S.J. Gutierrez recalled the controlled call from Lazo. Lazo told him that she had been threatened with arrest for contributing for the delinquency of a minor. As Lazo continued to talk, Gutierrez realized that she was telling him that she was going to tell the police that he had been involved in a sexual relationship with S.J. Gutierrez claimed that he was shocked by this accusation, and he believed that this accusation would ruin his career, so his statements that he was “fucked” related to his fear that the police would arrest him first and investigate the claim after the fact.

Gutierrez claimed that his statement, “I am going to go to jail for this bullshit” referred to his anger over the fact that false allegations would end his career. He said that during the inaudible portions of the recording he was denying the allegations. He also said that because the recording was inaudible at times, it made appear as if he were answering questions that incriminated him. Gutierrez said at the time he was talking to Lazo on the controlled call, he was also monitoring his police radio and that there was static in the phone line. He claimed that when he answered Lazo’s question about how many times he and S.J. had “fucked,” he believed that she had said “talked.”

After Gutierrez testified and before the case was submitted to the jury, defense counsel moved to exclude a copy of the transcript of the controlled call from the jury room. The trial court denied Gutierrez’s motion. After the jury requested copies of the transcript, the trial court submitted five copies of the transcript to the jury. However, after a defense motion, the trial court retrieved the transcripts form the jury room.

The jury found Gutierrez guilty on Counts 1, 2, and 11 and acquitted him on Counts 5, 6, and 9. Gutierrez was sentenced to two consecutive 10 year terms of incarceration on Counts 1 and 2, and was sentenced to 15 years probation on Count 11 consecutive to Counts 1 and 2.

On appeal, the defendant alleges various bases to reverse the judgment in this case. We address only the two issues which we believe merit discussion. We find the other issues either meritless or not preserved for appellate review. First, Gutierrez claims that the trial court erred in allowing the jury to view, during jury deliberations, the transcript of the tape of the controlled phone call between him and Lazo. The State concedes it was error under Martinez v. State, 761 So.2d 1074, 1084 (Fla.2000), for the trial court to permit the transcript to be given to the jury. However, it contends that any error was harmless.

While there are no Florida cases directly addressing the harmless error issue under the facts of a case such as this, the Eleventh Circuit has, in fact, addressed this exact issue. In United States v. Reed, 887 F.2d 1398, 1406-07 (11th Cir.1989), the court held that “[A]bsent a showing that the transcripts are inaccurate or that the specific prejudice occurred, there is no error in allowing transcripts to go into the jury room.” See also United States v. Brown, 872 F.2d 385 (11th Cir.1989); United States v. Williford, 764 F.2d 1493 (11th Cir.1985).

Here, although defense counsel objected to the use of the transcript in the jury room, he did not object based on the accuracy of the transcript. Thus, Gutierrez has not shown how he was prejudiced. A full review of the audio compact disc which was submitted into evidence reveals that Gutierrez’s statements are quite clear and accurately tracked in the transcript. The transcript reflects the audible portions, and the inaudible portions are accurately labeled as inaudible. There simply is no confusion as to what Gutierrez’s exact words were. The transcript was relevant to help the jury in listening to the recorded conversation, in which Gutierrez incriminated himself three times. The jury listened to the recording itself of the controlled phone call and was able to hear that Gutierrez admitted to having a sexual relationship with S.J. Consequently, the error was harmless.

Gutierrez further claims that the transcript was not properly authenticated. However, the Florida Supreme Court in Martinez v. State, 761 So.2d 1074 (Fla.2000), held that the actual participants to the conversation, or those who listened to or overheard the conversation as it was being recorded, may be able to verify the accuracy of the transcript so long as such persons can establish that the quality of the conversation that they overheard or listened to was better at the time they overheard it than the quality of the tape recording. Id. at 1088.

Here, Lazo was one of the participants in the controlled call. She testified that she reviewed the original recording, the enhanced recording, and transcript and that they were an accurate depiction of the conversation she had with Gutierrez. She even assisted in preparing the transcript. Clearly, this transcript was properly authenticated under MaHinez.

Gutierrez further claims that the trial court erred in admitting into evidence the audio tape of the controlled phone call because Lazo did not give her consent to record the conversation. The State responds that Lazo’s consent was voluntary and that even though she testified that she felt a bit of pressure, she did not feel forced to make the call.

A trial court’s determination as to the voluntariness of consent is presumed correct unless clearly erroneous. See Davis v. State, 594 So.2d 264, 266 (Fla.1992). The trial court is in the best position to evaluate the credibility of witnesses, and appellate courts are obligated to give the trial court great deference in making such findings of fact. See State v. Janes, 562 So.2d 740 (Fla. 3d DCA 1990).

Gonzalez cites to Jones for the proposition that the trial court improperly denied his motion to suppress with respect to this phone call. First, Jones is consistent with our decision today because in both cases we give proper deference to the trial court’s findings. The facts in Jones, as found by the trial court, are distinguishable from the facts before us. In Jones, the trial court found that the police coerced a friend of the defendant into making a telephone call which later was used in prosecuting the defendant. Id. at 741. The friend agreed that she had been pressured into assisting the police. Id. This Court held that the trial court had made a credible determination that the Mend had been coerced into making the call and that the conversation should be suppressed because her friend had not voluntarily consented to place the call. Id.

In contrast to what occurred in Jones, Lazo did not testify that she was coerced into assisting the police. She stated she felt a bit pressured to make the controlled call to Gutierrez, but Lazo also stated that she was not forced. During the motion to suppress hearing, the trial court was in the best position to view Lazo’s demeanor and testimony regarding the voluntariness of her consent. The trial court found that:

... by the greater weight of the evidence that there was a consent and that consent was valid and not coerced to all three portions of the phone calls. In fact, there may or may not have been [express consent] because the issue of consent can be defined and determined on the basis of all the circumstances and it is very clear her making the phone call was voluntary and not coerced.

We conclude that the trial court did not err in allowing the admission of the recorded call.

In sum, any error that occurred in allowing the transcript to go to the jury was harmless, and the trial court did not err in admitting the recorded call. With respect to the remaining issues on appeal, we affirm them without discussion. Based on the foregoing, Gutierrez’s conviction and sentence are affirmed.

Affirmed.

      . Gutierrez further argues that the trial court gave no curative instruction after it recognized its error in allowing the transcript in the jury room, but defense counsel below did not request that a curative instruction be given. This issue can only be reviewed under a fundamental error analysis. Archer v. State, 613 So.2d 446 (1993). Failure to give a curative instruction when no such instruction was requested does not rise to the level of fundamental error. Martinez, 761 So.2d at 1088.