text:
    AVALONS ASSISTED LIVING, LLC d/b/a Avalon’s Assisted Living and d/b/a Avalon’s Assisted Living at Avalon Park, and Avalon’s Assisted Living II, LLC d/b/a Avalon’s Assisted Living at Southmeadow, Appellant, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 1D11-1411.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2011.
    Rehearing Denied Jan. 4, 2012.

      John E. Terrel, of Law Office of John E. Terrel, P.A., Tallahassee, for Appellant.
    Dwight 0. Slater, Senior Attorney; and Tracy Lee Cooper, Chief Appellate Counsel, of Agency for Health Care Administration, Tallahassee.
   PER CURIAM.

In this appeal, Appellants, which are two' six-bed Florida limited liability corporations, challenge an amended final order issued by the enforcement agency, Agency for Health Care Administration (the Agency), revoking Appellants’ assisted living facility licenses, denying their li-censure renewal applications, and imposing administrative fines. After conducting a complaint investigation, the Agency filed an administrative complaint comprising Counts One through Four. Concluding that the Agency’s support for Counts One through Three consisted of uncorroborated hearsay, we reverse the Agency’s conclusion that these claims were proven. § 120.57(l)(c), Fla. Stat. (2009) (“Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.”). Count Four alleged (1) a demonstrated pattern of deficient performance by one of the Appellants, as well as (2) Appellants’ owners/administrators’ operation of a third Florida facility, Avalon III, without obtaining a valid license or qualifying for a license exemption. Because the Agency offered only uncorroborated hearsay to support its “history of deficient performance” claim, we reverse the Agency’s conclusion that it was proven.

This leaves for our review only the findings of the administrative law judge (ALJ), adopted by the Agency, relating to the “unlicensed activity” claim. The Florida Legislature has defined “assisted living facility” as follows in the Assisted Living Facilities Act:

“Assisted living facility” means any building or buildings, section or distinct part of a building, private home, boarding home, home for the aged, or other residential facility, whether operated for profit or not, which undertakes through its ownership or management to provide housing, meals, and one or more personal services for a period exceeding 24 hours to one or more adults who are not relatives of the owner or administrator.

§ 429.02(5), Fla. Stat. (2009). Because Appellants’ licenses were at stake, the Agency, as the complainant, had the burden to prove its allegations by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292, 294-95 (Fla.1987). Appellants contend, first, that the ALJ relied on uncorroborated hearsay in making crucial factual findings concerning the allegation that Appellants’ owners/administrators were operating an unlicensed assisted living facility, Avalon III. Second, Appellants assert that upon realizing that the Agency had not met its burden of proof, the ALJ improperly shifted the burden to Appellants to disprove the critical findings of fact.

Specifically, Appellants argue that the Agency failed to present any witness at the administrative hearing who had firsthand knowledge that the facility in question was providing personal services “for a period of 24 hours to one or more adults who are not relatives of the owner or administrator,” which are material elements of the statutory definition of assisted living facility. Our review of the testimony discloses competent substantial evidence that Avalon III provided personal services such as washing clothes and feeding, bathing, grooming, and administering medications to its residents. The Agency’s only admissible evidence concerning when, and how long, those residents were at the facility is as follows. Gaccia Brown, a former employee at Avalon III, testified that the facility had five or six residents when she worked there for six weeks in Summer 2009. Her shifts ranged from 8:00 A.M. to 8:00 P.M. She relieved someone when her shift began and someone relieved her when her shift ended. Brown’s testimony that she never saw a resident leave the facility at the end of the day or arrive in the morning does not foreclose the possibility that these residents were at the facility for periods less than 24 hours, for the record does not indicate that Brown was present from 8:00 in the evening until 8:00 in the morning.

Enid Atkinson, a visiting registered nurse, testified that she provided intermittent assessments to some residents at Avalon III between June and July 2009. In one instance, she arrived at the facility sometime between 6:30 and 7:00 A.M. and awakened her patient to take blood and prepare her for breakfast.

Antoinette Williams, a licensed practical nurse, testified that she provided assistance with activities of daily living for one resident at Avalon III beginning at 8:00 A.M. on August 5, 2009, which coincided with the Agency’s “unlicensed activity” survey of the premises. This was Williams’ first visit to Avalon III and she worked approximately three hours that day on a shift that was scheduled to end at 7:00 P.M. Williams met with a nurse who indicated he had stayed overnight with his resident, and Williams received an overnight report. Williams assumed that the other residents at the facility had also spent the whole night there, for she observed unmade beds and closets with clothing and personal items. She also observed staff helping the residents get out of bed and setting up breakfast. No one testified about working a late-night or early-morning shift that covered the period from 8:00 P.M. until daybreak, and the overnight report referenced by Williams was not entered into evidence.

On the element of whether the residents were relatives of the owner or administrator, competent substantial evidence demonstrates that Chiqquittia Carter-Walker had an office at Avalon III and held herself out to the staff and visitors as the administrator of the facility. Her husband, Robert Lee Walker, Jr., held himself out as having an ownership interest in the facility. The Agency asked Atkinson if she had knowledge whether her patients were related to Carter-Walker or another owner or administrator. The ALJ denied an objection based on “leading and speculation.” Atkinson testified that as part of her assessments, she had to ask for “next of kin.” Carter-Walker’s name was not given for either resident. Vanessia Bul-ger, an Agency Health Facility Evaluator II, testified she had performed a survey at Avalon III on August 5, 2009, based on a complaint the facility was operating without a valid license. She received no information that the five residents of Avalon III were related to Carter-Walker or to her husband. Appellants correctly contend that this testimony does not dispose of the issue.

In two paragraphs of the recommended order, the ALJ set out findings:

26. According to the testimony of an employee of Avalon III, there had been residents in the Avalon III location since at least June 16, 2009, at which time the staff member began to work at the facility. She worked five days per week, providing the resident services identified herein. During that time, there was [sic] always at least three residents in the facility. The same residents were present on a day-to-day basis. There is no evidence that such residents were transported out of the facility during the evening or that they did not otherwise remain at the Avalon III location overnight.
31. At no time was Avalon III licensed as an ALF. There was no evidence that the Avalon III residents were related to Mrs. Carter-Walker or her husband.

In their exceptions to the recommended order, Appellants correctly argued that the ALJ’s findings in these two paragraphs improperly shifted the burden of proof. Appellants noted that suggesting that they should have provided proof the residents were transported out of the facility during the night misplaced this burden. The assertion of a lack of evidence that these residents did not remain at Avalon III on a 24-hour basis likewise shifted the burden of proof No direct admissible evidence supports the ALJ’s presumption that any person was receiving personal services at Avalon III for a period exceeding 24 hours. To reach this conclusion based on admissible evidence, the ALJ had to infer that if a resident was at Avalon III at 8:00 P.M. and was awakened for breakfast, then he or she resided there for a period exceeding 24 hours.

In its amended final order, the Agency found that “neither paragraph addresses the burden of proof.” The ALJ’s findings demonstrate otherwise, suggesting that Appellants failed to adduce evidence proving that the residents did not stay at the facility overnight and were related to the owner or administrator. The Agency adopted the ALJ’s findings of fact and found competent substantial evidence allegedly supporting these findings. On the issue of whether the Agency proved that Avalon III provided services exceeding 24 hours, the order cites Brown’s testimony, yet she admitted neither working at Avalon III at night nor staying at the facility overnight. As to the other hours, Brown testified only that someone covered for her in the evening and that Brown relieved someone upon arrival in the morning. Brown’s testimony that she saw the same residents at the facility from day to day during her daytime work hours, and never saw them arriving or leaving during her shift, does not by itself support a reasonable inference that one or more residents stayed there for continuous periods exceeding 24 hours. Cf. DeGroot v. Sheffield, 95 So.2d 912, 916 (Fla.1957) (describing “substantial evidence” as “such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred”); Walker v. Bd. of Prof'l Eng’rs, 946 So.2d 604 (Fla. 1st DCA 2006); Strickland v. Fla. A & M Univ., 799 So.2d 276, 278-79 (Fla. 1st DCA 2001) (stating that if the hearing officer’s factual findings and reasonable inferences drawn therefrom are supported by competent substantial evidence, it is a gross abuse of agency discretion to disregard such findings).

The Agency’s order also cites Agency surveyor Bulger’s testimony, in which she concluded, based expressly on “observations and interviews,” that Avalon III provided personal services on a 24-hour basis to five residents, none of whom were related to the owner or operator. Bulger’s personal observations of people in wheelchairs or in a bed with full rails did not support her conclusions on this key element. She performed a survey on the “unlicensed activity” complaint on the morning of August 5, 2009, and acknowledged remaining at the facility for no more than four or so hours. To the considerable extent that Bulger relied on hospice notes, the facility’s hearsay reports, and statements by persons who did not testify at the hearing, Appellants’ counsel preserved the hearsay objection, and the Agency failed to lay a foundation for any hearsay exception concerning whatever out-of-court statements Bulger relied on to reach her conclusions on this issue. See § 90.802, Fla. Stat. (2009) (“Except as provided by statute, hearsay evidence is inadmissible.”).

On the issue of whether the Agency proved that Avalon III provided services to “one or more adults who are not relatives of the owner or administrator,” the amended final order cited two pages of testimony given by Mary Bowen, a Health Services and Facility Consultant at the Agency. Those pages refer to who is subject to a criminal background check, and to the Agency’s decision not to renew the renewal license applications of Avalon I and II. This testimony does not address the “relatives” issue.

As the finder of fact in an administrative proceeding, an ALJ is permitted to draw reasonable inferences from the competent substantial evidence in the record. Prysi v. Dep’t of Health, 823 So.2d 823, 825 (Fla. 1st DCA 2002); Heifetz v. Dep’t of Bus. Regulation, 475 So.2d 1277, 1283 (Fla. 1st DCA 1985). Even if we assume for the sake of argument that the ALJ had an adequate evidentiary basis to make the reasonable inference that one or more residents received services for a period exceeding 24 hours, the Agency failed to meet its burden to prove that one or more of the adults at the facility were not relatives of the owner or administrator. An agency cannot ignore the legislative requirements set forth in a statute. Abramson v. Fla. Psychological Ass’n, 634 So.2d 610, 611-12 (Fla.1994); Justice Admin. Comm’n v. Peterson, 989 So.2d 663, 665 (Fla. 2d DCA 2008) (noting it is a departure from essential requirements of law to ignore the plain, unambiguous language in a statute). Given (1) the diligence of Appellants’ counsel in preserving his hearsay objections, (2) the repeated assurances of the Agency’s trial counsel — after the ALJ questioned whether the Agency had any other admissible evidence — that any hearsay problems would be remedied by direct testimony that ultimately never surfaced, (3) the ALJ’s factual findings based in part on Appellants’ failure to come forth with evidence, where the Agency had the burden of proof, and (4) the Florida Legislature’s decision to define “assisted living facility” to require that the residents not be the owner’s or administrator’s relatives, we are unable to conclude that this omission of proof by the Agency is de minimis.

Where the ALJ’s factual findings regarding a statutory requirement are not based on competent substantial evidence and reasonable inferences therefrom, the Agency erred in accepting and adopting them. See § 120.57(j), Fla. Stat. (2009) (requiring findings of fact to be based exclusively on the evidence of-record). Given the lack of admissible evidence to prove this claim or any of the other alleged violations, we are constrained to REVERSE the Agency’s order revoking Appellants’ licenses, refusing to renew their applications, and imposing administrative fines.

HAWKES, MARSTILLER, and RAY, JJ., concur.

      . “Relative" means an individual who is the father, mother, stepfather, stepmother, son, daughter, brother, sister, grandmother, grandfather, great-grandmother, great-grandfather, grandson, granddaughter, uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepson, stepdaughter, stepbrother, stepsister, half brother, or half sister of an owner or administrator. § 429.02(18), Fla. Stat. (2009).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Bridget Becnel DELIVORIAS, Former Wife, Appellant, v. Bradley P. DELIVORIAS, Former Husband, Appellee.
    No. 1D11-2640.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2011.

      E. Jane Brehany, Pensacola, for Appellant.
    Michael T. Webster, Shalimar; and Kristin Adamson, Tallahassee, for Appel-lee.
   CLARIFYING OPINION ON MOTIONS FOR REHEARING AND REHEARING EN BANC

PER CURIAM.

Appellant, the former wife, moved for rehearing and rehearing en banc of our per curiam affirmance of the trial court’s order granting Appellee’s (the former husband) motion for contempt and providing temporary relief on Appellee’s counter-petition for modification of primary residential custody, the effect of which was to transfer primary residential custody of the parties’ two young children from Appellant in Louisiana to Appellee in Florida, pending further proceedings that are not a part of this appeal. We grant the motion for rehearing to clarify the basis for our affir-mance and to show that, contrary to the arguments presented in the motions, no intra-district conflict exists. We deny the motion for rehearing en banc.,

Seeking rehearing, Appellant contends, first, that we overlooked or misapprehended a controlling point of law in affirming the order and that, second, we ignored factually indistinguishable case law in making a contrary holding. On the first point, it is well-established that before a trial court can modify a primary residential custody or parental visitation judgment, the party seeking the change (Appellee here) must present competent substantial evidence demonstrating (1) that a substantial, material, and unanticipated change in circumstances occurred after the original custody/visitation determination and (2) that the requested modification is in the children’s best interests. Wade v. Hirschman, 903 So.2d 928, 932 (Fla.2005); Cooper v. Gress, 854 So.2d 262, 265 (Fla. 1st DCA 2003).

At the end of the evidentiary hearing on the outstanding motions, the trial court orally announced that Appellant was in willful contempt of the court’s order directing her to comply with a specific child exchange plan at a halfway meeting place in Alabama, and that Appellee would be the children’s primary residential parent for two months pending further proceedings. The .court reduced these rulings to writing in the challenged order. The court made no oral or written findings of fact addressing the required proof for modifying primary residential custody. Appellant alleges the court temporarily transferred custody merely to punish her for failing to deliver the children to Appellee according to the court-ordered visitation and meeting schedules, without proof of the two required prongs for custody modification.

Generally, specific findings of fact in modification proceedings are necessary to facilitate effective appellate review of the trial court’s reasons for ruling as it did. Moreno v. Moreno, 606 So.2d 1280, 1281 (Fla. 5th DCA 1992). However, where the party seeking modification sets out the correct test for changing custody, clearly alleges facts regarding the two requisite elements, and competent substantial evidence in the record, if accepted by the trial court, demonstrates a substantial, material change in circumstances, such that the children’s best interests would be served by the requested modification, the trial court’s failure to include “magic words” does not compel reversal. See Rossman v. Profera, 67 So.3d 363, 367-68 (Fla. 4th DCA 2011). The situation where the correct test for modification was presented and competent substantial evidence in the record supports the result, but the trial court failed to explain its reasoning, does not compel reversal if it is readily apparent why the trial court ruled in the manner it did and the result is legally sustainable. See Vaughn v. Vaughn, 714 So.2d 632, 633-34 (Fla. 1st DCA 1998) (stating that trial court’s failure to make findings of fact to explain an unequal distribution of marital debt was harmless error, where evidence was offered to prove the result and it was readily apparent from the record why the court ruled as it did). This circumstance is significantly different from one where no findings are made and no record evidence supports the ruling.

Appellee’s counter-petition to modify custody set out detailed allegations of substantial, material changes in circumstances since entry of the final judgment of dissolution, and he testified at the hearing about these changes and in support of his claim that transferring primary residential custody would serve the children’s best interests. It would serve no useful purpose to set forth in this opinion Appellee’s detailed allegations asserting that Appellant was not complying with material aspects of the dissolution judgment and subsequent orders relating to visitation, time-sharing, and the children’s care. Appel-lee’s testimony addressed the substantial, material changes since the divorce decree concerning Appellant’s inadequate care of the children, and provided evidence that transferring primary residential custody to Appellee would serve the children’s emotional, psychological, educational, and physical best interests and would afford the children a more meaningful, involved relationship with their father than their mother had allowed. Appellee’s pleadings set out the proper test for custody modification, and competent substantial evidence in the record in the form of Appellee’s testimony, if believed by the trial court, supports the temporary custody change. The instant record presents no reasonable basis to conclude that the trial court ruled based on a misapplication of the governing law or used the custody determination merely to punish Appellant for failing to comply with the visitation order. We take judicial notice that after a subsequent hearing with the parties, the trial court entered a written order (that is challenged in another appeal) finding that transferring primary residential custody is in the children’s best interests because it allows them to have meaningful physical contact and communication with Appellee which, according to his testimony, Appellant had systematically denied when she was the primary custodian. See § 90.202(6), Fla. Stat. (2010) (stating that a court may take judicial notice of the records of any court of this state). Given these specific circumstances where the court reached a supportable result based on proof in the record, we conclude that remanding for findings of fact would serve no positive purpose and would needlessly prolong this acrimonious litigation. See Vaughn, 714 So.2d at 634. We distinguish those cases in which the “tipsy coachman” doctrine was deemed inapplicable where the trial court failed to make findings of fact and resolving the issue on appeal would have required the appellate panel to assess the credibility of the evidence and make its own findings. See, e.g., Bueno v. Workman, 20 So.3d 993, 998 (Fla. 4th DCA 2009); Porter v. Porter, 913 So.2d 691, 694 (Fla. 3d DCA 2005).

Appellant’s second ground for rehearing is that this Court released Cheek v. Hesik, 73 So.3d 340 (Fla. 1st DCA 2011), shortly after making its initial ruling in the instant case, and that the holding in Cheek cannot be reasonably reconciled with our affir-mance in the present case. To address this allegation, we must examine the facts in Cheek. Like Appellant, the former wife in Cheek appealed an order finding her in contempt and altering the child’s time-sharing arrangement. Id. at 341. The parties in Cheek were divorced in Illinois in 2007, and Mrs. Cheek, the former wife, was designated primary custodial parent of the minor child. Mr. Hesik, the former husband, was granted visitation under a phased plan. The former wife and the child subsequently moved to Florida; the former husband remained in Illinois. Significant problems with time-sharing arose as early as 2008, when the former wife was found in contempt for failing to honor the court-ordered visitation schedule. The former husband filed numerous motions for contempt alleging the former wife had continued to deny his visitation rights and had alienated the child from him. The former husband asked the court to devise a plan for makeup visitation, including temporary modification of custody. After the court deferred ruling on the motion and advised the former wife to cooperate with the court-appointed parenting coordinator and not alienate the child from his father, the court received evidence the former wife was not participating in the parenting coordinator process. The court issued a “last chance” warning to the former wife to cooperate and comply with the court’s orders or else face sanctions, including a custody change. Id.

After an evidentiary hearing, the trial court in Cheek found that for approximately three years, the former wife had prevented all or nearly all contact between the former husband and the child, thereby denying the former husband at least 150 days of time-sharing without justification. Id. at 341. The court found the former husband was entitled to makeup time-sharing and ordered him immediately to have and exercise 100% time-sharing. It limited the former wife’s telephonic contact with the child to no more than 15 minutes’ duration, no more often than every fourth day. Id. This decision altered primary custody and required the child to relocate from Florida to Illinois in the middle of the school year. Id. at 342. This scheme was not the specific remedy sought by the former husband, whose counsel had suggested any custody change should be overseen by an expert and should be implemented gradually over the summer. The former wife sought reconsideration on the ground that the court had erroneously given the former husband immediate primary custody, thus modifying the existing custody arrangement without the required finding that the change was in the child’s best interests. Id. at 341. She appealed the summary denial of her motion. Id.

The former wife in Cheek did not seriously challenge the finding that she had denied the former husband significant time-sharing opportunities. Id. at 341. We rejected the former wife’s argument the trial court lacked authority to order makeup time-sharing under the facts. Id. at 341-342. Even so, we felt compelled to reverse the makeup time-sharing orders because, contrary to section 61.13(4)(c)l., Florida Statutes, the trial court failed to find that the manner in which the court imposed the makeup time-sharing was in the child’s best interests. Indeed, the trial court made no findings regarding best interests. Pursuant to the statute, the fact that imposing makeup time-sharing was in the child’s best interests did not mark the end of the trial court’s endeavors. Rather, the manner in which makeup time-sharing was implemented had to be in the child’s best interests too, and no such finding was made. 73 So.3d at 341-342.

The former husband in Cheek defended the ruling on the ground that the trial court’s orders had recognized it was in the child’s best interests to afford the foi’mer husband an opportunity to develop a relationship with the child via substantial time-sharing to compensate for the time denied him by the former wife. Id. at 342. The trial court failed to fulfill its legal duty, however, to address whether the manner in which makeup time-sharing was imposed met the “best interests” test. Id. at 342-343. Assuming for the sake of argument that such a finding was implicit in the orders, we concluded that no competent substantial evidence supported this finding. Id. at 342. Absent any evidentia-ry basis whatsoever to establish that requiring the child to move from Florida to Illinois, even temporarily, was consistent with his best interests, and given all the evidence indicating that this immediate, drastic change in custody would be contrary to his best interests, we found error in the manner in which the trial court devised the right to makeup time-sharing. Id. at 342-343. Cheek recognized the hallowed doctrine that before modifying custody temporarily or ordering any other type of makeup time-sharing, a trial court must consider the child’s best interests. Id. at 342-343. Without opining regarding the appropriate outcome of the pending custody issues, we reversed the makeup time-sharing orders and remanded for further proceedings. Id.

In the motion for rehearing, Appellant asserts the parties’ circumstances in Cheek were very similar to the instant parties’ circumstances. In both cases, the trial courts failed to make findings showing how the ruling satisfied one or both requisites for custody modification. However, several significant differences exist between Cheek and the present case. First, the specific, drastic, and very disruptive remedy imposed by the trial court in Cheek was neither requested nor anticipated by the parties. In the case at bar, Appellee squarely put in issue the children’s primary residential custody and the prospect that the trial court could modify the children’s primary residence if the court accepted the allegations in Appellee’s counter-petition as supported by his testimony. Second, we cannot ignore that in Cheek, no competent substantial evidence would have satisfied the “best interests” test anyhow; in fact, all the evidence indicated otherwise. In contrast, Appellee presented very detailed allegations and testimony that, if believed by the trial court, would satisfy both prongs of the custody modification test and support a temporary change. Although the trial court made no findings on “substantial change in circumstances” or “children’s best interests,” one view of the record supports the challenged rulings. Under these particular circumstances, the failure to make specific factual findings, while not helpful for meaningful appellate review, is not fatal and does not compel reversal. Thus, we find a material distinction between the records in Cheek and the instant case and no conflict between the holdings.

In seeking a rehearing en banc, Appellant argues that affirming the challenged order conflicts with several other decisions of this Court. The first case cited is Ginder v. Ginder, 536 So.2d 1155 (Fla. 1st DCA 1988), which supports the proposition that a trial court cannot modify primary residential custody purely as a method of punishing a parent. Although the instant trial court announced it would not condone the former wife’s willful violation of the court’s order (relating to the time-sharing schedule and child exchange plan), nothing in the record suggests the court temporarily changed custody solely to punish her. In fact, the court dealt with the former wife’s non-compliance with the order by finding her to be in willful contempt. To the extent the former wife alleged it would risk her job security to leave work regularly to meet the former husband at the halfway point in Alabama to exchange the children, we note that she presented no evidence to support this conclusion before unilaterally violating the court order.

The second alleged conflicting opinion is Ragle v. Ragle, 82 So.3d 109, 2011 WL 3558156 (Fla. 1st DCA 2011), which involved an order, in pertinent part, modifying primary residential custody from the former husband to the former wife. Id. at 110. After the dissolution judgment, the custodial parent, Mr. Ragle, moved 28 miles away to a different county so the parties’ oldest child could attend a different school. The non-custodial parent, Mrs. Ragle, moved for contempt on the grounds that the decisions to move and to transfer the child to another school were made unilaterally without consulting her. Mrs. Ragle petitioned to modify primary residential custody based on a substantial change in circumstances relating to the location of the children’s residence, their school, the sharing of parental responsibility, the visitation and communication privileges, and the quality of the non-custodial parent’s relationship with the children. After a hearing, the trial court ordered a new custody and time-sharing plan and, without reciting any factual findings, concluded the relocation was harmful to the children because it deprived the non-custodial parent of visitation and harmed the children’s well-being. Id. Adopting the child custody evaluator’s findings, the trial court concluded it would be detrimental to the children to remain in their father’s primary custody. Id. at 111.

Upon reviewing the record, we concluded in Ragle that all the alleged substantial changes and problems related to the father’s relocation to another county which, by itself, did not warrant custody modification. See id. at 112. We noted that no competent substantial evidence supported the trial court’s finding the custodial parent had repeatedly limited the other parent’s contact with the children, thus demonstrating the inability to co-parent with the non-custodial parent, nor did any evidence support the finding that the custodial parent was drinking again and using medications to excess. Id. at 113. The child custody evaluation recommended that the parties’ tattered relationship would improve if the parties lived closer to each other, allowing the non-custodial parent to exercise her visitation more often and perhaps reducing friction between the parties. Although the evaluation and the trial court’s order focused largely on Mr. Ra-gle’s relocation, the record indicated “the real problem” was the parties’ “already antagonistic relationship.” Id. at 112, 113. The report recommendation, the parents’ inability to communicate, and the evaluator’s finding no compelling reason to maintain the status quo were not proper grounds for modifying primary custody. Id. That a change in custody might be better for the children is not the test for modification. Absent proof of a substantial change in circumstances, this Court declined to address the “best interests” prong. We reversed that portion of the order modifying custody and time-sharing and remanded for further proceedings. Id. at 114.

Unlike the record in Ragle, competent substantial evidence supports the trial court’s ruling in the instant case. Where the party seeking custody modification raised the proper allegations and presented supporting testimony, and the record supports the result, we can find no legal basis to reverse, even if other competent substantial evidence presented by Appellant could have supported maintaining the original custody arrangement. Appellant has shown no basis for a rehearing on the merits under Florida Rule of Appellate Procedure 9.330(a), nor has she demonstrated any conflict between the cited decisions and our affirming the temporary custody modification and the finding of Appellant’s contempt. For these reasons, we GRANT the motion for rehearing to clarify our prior ruling and DENY the motion for rehearing en banc.

WOLF, LEWIS, and RAY, JJ., concur.

       The instant record is adequate to allow effective appellate review of a proper evidentiary basis for the trial court’s ruling. To the extent the motion for rehearing complains of the lack of factual findings, rather than the trial court’s application of the law and the sufficiency of the evidence, the absence of findings was not raised and preserved for appellate review in a motion for rehearing in the trial court and cannot, standing alone, constitute a ground for reversal. See Jonsson v. Dickinson, 46 So.3d 1016 (Fla. 1st DCA 2010); Owens v. Owens, 973 So.2d 1169 (Fla. 1st DCA 2007); Mathieu v. Mathieu, 877 So.2d 740 (Fla. 5th DCA 2004); Broadfoot v. Broadfoot, 791 So.2d 584, 585 (Fla. 3d DCA 2001).


author: MARSTILLER, J.

text:
    Daniel DUSS, A Minor Child, by and Through Regions Bank, The Guardian of his Property, Appellant, v. Martin A. GARCIA, M.D., an Individual; North Florida Obstetrical & Gynecological Associates, P. A., a Florida for Profit Professional Association, Appellees.
    No. 1D10-5460.
    District Court of Appeal of Florida, First District.
    Jan. 6, 2012.
    Rehearing Denied March 2, 2012.

      Rebecca Bowen Creed of Creed & Gow-dy, P.A., Jacksonville, for Appellant.
    Shelley H. Leinicke and Richard E. Ramsey of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Ft. Lauderdale, for Appel-lees.
   MARSTILLER, J.

This is an appeal from a final judgment in a medical malpractice lawsuit.

Daniel Duss was diagnosed with cerebral palsy shortly after his birth on December 3, 2002. In 2003, a lawsuit was filed on his behalf alleging that the obstetrician who delivered him, Martin A. Garcia, M.D., was negligent in using a fetal vacuum extractor during the delivery, and that his negligence caused Daniel to sustain a brain injury, leaving him with cerebral palsy. When the case finally made it to trial in August 2010, after earlier ending in mistrial, the plaintiff put on four medical experts — one on standard of care and three on causation. The gist of their testimony was that Dr. Garcia breached the standard of care by needlessly using the vacuum extractor six times to deliver Daniel, and that his actions caused Daniel to suffer an ischemic stroke which, in turn, caused brain injury. The defendants’ experts testified that Dr. Garcia’s use of the vacuum extractor fell within the standard of care, that use of the device cannot cause an ischemic stroke, and that Daniel’s strokes and brain injury resulted from a placental abnormality. The jury rendered a verdict in favor of the defendants, answering the question, “Was there negligence on the part of Martin A. Garcia, M.D., which was a legal cause of loss, injury, or damage to Daniel Duss?” in the negative. The trial court entered final judgment accordingly.

Appellant seeks reversal of the final judgment and a new trial on two grounds. First, Appellant argues the trial court incorrectly excluded expert testimony establishing that Dr. Garcia’s breach of the standard of care created obstetrical conditions known to increase the likelihood of the type of neurological injury Daniel suffered. Appellant thus was “unable to establish a link in the chain of causation between Dr. Garcia’s negligence and the ischemic stroke [Daniel] ultimately suffered.” Second, Appellant asserts that the trial court allowed Appellees to improperly bolster their experts’ opinions on causation using authoritative publications. In so doing, Appellant argues, the court effectively diminished the credibility of his experts on the ultimate issue of liability. For the following reasons, we affirm the final judgment.

I. Excluded Testimony of Standard of Care Expert, Dr. Schifrin

Dr. Barry S. Schifrin, an OB/GYN, was Appellant’s only expert on standard of care. He testified that, based on his review of the labor and delivery reports, no circumstances were present to make a vacuum-assisted delivery necessary. Daniel was “making progress” and showed “no obvious fetal distress or any fetal problem” prior to use of the vacuum. According to Dr. Schifrin, the fetal heart rate tracings showed no evidence of oxygen deprivation such that vacuum intervention was necessary. Under the prevailing standard of care, these circumstances, together with the fact that this was a high-risk delivery of twins at only thirty-five weeks’ gestation, indicated a vacuum extractor should not be used. He opined further that Dr. Garcia’s application of the device six times in approximately thirty minutes was unreasonable.

Dr. Schifrin explained that misuse of the vacuum extractor could stretch the arteries leading to the infant’s brain and, because of the increased pressure from the vacuum, diminish blood flow to the organ. He testified that after Dr. Garcia began using the vacuum, Daniel’s fetal heart rate tracings showed decelerations, which likely represented ischemic events. When Appellant’s counsel asked Dr. Schifrin for his opinion on whether “obstetrical circumstances or conditions existed which could result in ischemic injury,” Appellees’ counsel objected and, after conducting voir dire, argued that the doctor was not qualified to give expert opinion on the cause of Daniel’s neurological injury. The trial court sustained Appellees’ objection. But it permitted Dr. Schifrin to testify that “the evidence of ischemia on the tracings was the result of misuse of the vacuum extractor,” and that Daniel’s ischemia resulted from Dr. Garcia’s failure to use reasonable care in using the device and in managing the labor and delivery process.

The court later permitted Appellant to make the following proffer of Dr. Schifrin’s opinion:

Q: [D]o you have an opinion as to whether Dr. Garcia’s failure to provide reasonable care to Daniel Duss created the obstetrical conditions known to have the potential to cause neurological injury in newborns?
A: Yes.
Q: What’s your opinion, please?
A: My opinion is that he in fact put the baby in harm’s way by the conduct of the second stage of labor.

Acknowledging Dr. Schifrin’s lack of expertise on the issue of whether Dr. Garcia’s alleged negligence caused Daniel’s brain injury, Appellant’s counsel asserted that the proffered opinion went not to causation of the injury but to whether Dr. Garcia’s actions “created” obstetrical conditions “known to create an environment which can cause neurological injury.... ” The court disagreed, explicitly finding that Dr. Schifrin’s opinion went to causation or was “at least implicit in the question of causation.... ”

“A trial court is to be afforded broad discretion in determining the subject on which an expert may testify in a particular trial. The trial court’s decision will only be disregarded if that discretion has been abused.” Angrand v. Key, 657 So.2d 1146, 1148 (Fla.1995) (internal citations omitted). The expert here, Dr. Schifrin, was only qualified to testify on the standard of care and on whether Dr. Garcia breached it. Any testimony linking breach of the standard of care to Daniel’s neurological injury — ischemic stroke — unquestionably would go to causation and, we believe, would exceed the scope of matters on which Dr. Schifrin was qualified to give an opinion at trial. We agree with the trial court that Dr. Schifrin’s proffered opinion went to causation inasmuch as it connected Dr. Garcia’s allegedly sub-standard obstetrical actions and decisions to “neurological injury in newborns.” We therefore find no abuse of discretion by the court in excluding the testimony.

In any event, Dr. Schifrin stated several times that Dr. Garcia’s use of the vacuum caused Daniel’s ischemia, and told the jury that a vacuum extractor could cause the type of ischemic stroke Daniel suffered. Moreover, the record shows Appellant was'able to present expert testimony firmly connecting Dr. Garcia’s use of the vacuum extractor to Daniel’s stroke. Specifically, Appellant’s pediatric neurologist, Dr. Ronald S. Gabriel, testified that vacuum extraction could produce the kind of brain injury Daniel sustained. And in his opinion, Daniel suffered “an injury as a consequence of the vacuum extraction which caused stretching, twisting, torsion, even kinking of the vessels that go to the brain. It caused, therefore, the blood in those vessels to be reduced, reducing the amount of blood that went to the brain.... ” Additionally, Appellant’s expert neonatologist, Dr. Marcus Hermansen, diagnosed Daniel’s ischemic stroke as a mechanical injury caused by use of the vacuum extractor. He opined that the pull of the vacuum stretched the baby’s blood vessels, blocked the flow of blood to the brain, and resulted in a stroke. Thus even if the trial court had erred in excluding Dr. Schifrin’s testimony, Appellant suffered no prejudice from the court’s ruling.

II. Bolstered Opinions of Defense Experts

Appellees’ theory of the case was that there is no link between strokes in infants and vacuum-assisted delivery, and that Daniel’s neurological injury resulted from a placental abnormality. Among Appel-lees’ medical experts were Dr. John Thorp, who testified on standard of care, and Dr. David Schwartz, an expert on placental pathology.

A. Dr. Thorp

Dr. Thorp is an OB/GYN specializing in the care of mothers and fetuses with medical conditions or risk factors for poor outcomes. He also is a clinical epidemiologist, studying the causes of perinatal conditions such as preterm birth, preec-lampsia and cerebral palsy. He testified he has published approximately three hundred articles, has written at least eighteen textbook chapters on topics within his fields of expertise including “the role of perinatal factors in brain disorders,” and lends his expertise in perinatal epidemiology to several medical journals to conduct peer-review of articles submitted by others for publication.

Dr. Thorp opined that it was appropriate for Dr. Garcia to “expedite” the delivery of Daniel because, among other reasons, the twins were at thirty-five weeks, their mother had preeclampsia, and the second twin also needed to be delivered as quickly as possible. He testified that Dr. Garcia adhered to the standard of care in managing the labor and delivery, that he appropriately applied the vacuum extractor, and that he met all the guidelines for using the device in delivering Daniel. On the general use of vacuum extraction, Dr. Thorp testified, without objection:

[M]y fourth opinion, and why I’m sort of amazed that I’m here — and this gets to epidemiology and causality, but vacuum extraction is not a risk factor for — for fetal stroke, for in útero stroke. Vacuum extractors can damage baby’s head, it can fracture skulls, it can cause bleeding within the head, but it is not a risk factor for stroke.
There’s been a huge natural experiment over the last 60 years since the vacuum extractors were first introduced, and now thousands of babies are delivered by vacuum extraction in the U.S. every — every year. Given the rarity of intrauterine stroke, which is about one in a thousand, if vacuum extraction were a cause, there would have been a signal that would be detectable. That hasn’t occurred.

When asked to explain to the jury why he does not believe the vacuum caused Daniel’s ischemic stroke, Dr. Thorp responded:

Well, one is the huge natural experiment that’s been done with thousands of babies being born via vacuum extraction and no association with — with stroke. Secondly, in Daniel’s case, there were risk factors for in útero stroke, his mom’s preeclampsia and his placental pathology that demonstrated thrombi within the baby’s — clots within the baby’s vascular spaces which is associated with stroke.

Appellees’ counsel later asked Dr. Thorp, “You told us about your publications, your writing, your seminars, your various work in the field of epidemiology. Have you ever heard of the concept before this lawsuit that a vacuum assist can cause an ischemic stroke?” Over objection, the doctor answered, “I never heard of it. And I would flunk somebody on oral exams who told me that such a relationship existed. I am absolutely unaware.”

The trial court’s ruling on the admissibility of evidence is reviewed for abuse of discretion, subject to correct interpretation of the evidence code and applicable ease law. See Dortch v. State, 63 So.3d 904, 906 (Fla. 1st DCA 2011), and cases cited therein. As a rule, a party may not introduce evidence to bolster a witness’ credibility before it has been attacked. See Linn v. Fossum, 946 So.2d 1032, 1039 (Fla.2006). Appellant cites several cases stating that a party may not use authoritative literature to bolster the opinion of an expert witness on direct examination, and argues that the trial court allowed Appellees to do so with Dr. Thorp using his own publications. See, e.g., id. at 1036; Erwin v. Todd, 699 So.2d 275, 278 (Fla. 5th DCA 1997); Medina v. Variety Children’s Hosp., 438 So.2d 138, 139 (Fla. 3d DCA 1983); Tallahassee Mem’l Reg’l Med. Ctr. v. Mitchell, 407 So.2d 601, 602 (Fla. 1st DCA 1981); see also § 90.706, Fla. Stat. (2010) (providing that authoritative publications may be used to cross-examine expert witnesses). We conclude, notwithstanding the bombastic response, that the question Appellees’ counsel posed was not improper bolstering, but rather a fair follow-up to Dr. Thorp’s unchallenged testimony about the “huge natural experiment” and lack of evidence linking vacuum assisted delivery to ischemic stroke in infants. The trial court therefore did not err in allowing the question.

B. Dr. Schwartz

A placental pathologist and epidemiologist, Dr. Schwartz testified that preec-lampsia, which Daniel’s mother developed during pregnancy, causes a woman’s uterus to become incapable of supplying an optimal amount of blood to the placenta — a condition called uteroplacental malperfusion. The diminishment of blood supply can begin undetected, he testified, weeks before the mother shows signs of preec-lampsia. Dr. Schwartz studied slides containing tissue samples taken from the placentas of Daniel’s mother post delivery. The samples showed signs of malperfusion. He also observed blood clots in the samples from the placenta that nourished Daniel in útero; he saw similar blood clots in the umbilical vein, as well. These and other observations led Dr. Schwartz to conclude that Daniel’s fetal blood abnormally tended to form clots. Based on the mother’s history of preeclampsia and on conditions seen in the placental tissue samples, Dr. Schwartz opined that Daniel’s brain injury resulted from chronic utero-placental malperfusion and from the “hy-percoagulable state” of his blood.

Dr. Schwartz told the jury that the placental specimens he studied showed signs of uneven accelerated maturation (“UAM”) caused, he believed, by insufficient blood flow. While testifying, Dr. Schwartz used a demonstrative aid containing images of a healthy uterus and one with UAM. Also shown was a chart that Dr. Schwartz described thusly:

This is an outcomes table from the largest study of birth injury that was ever performed in the United States. It is conducted by the National Institutes of Health and at 12 different university hospitals around the country. They involved over 50,000 pregnant women, followed them through them pregnancies, collected their placenta, had them diagnosed by placental pathologists, looked at the babies and followed the babies until they were seven years of age to see what happened to them.

He went on to explain that the data shows preeclampsia is “probably the strongest” risk factor for UAM. He testified further that of the “five bad outcomes of pregnancy” the National Institutes of Health (“NIH”) found most often associated with UAM, “neurological abnormality” has a 99.9 percent statistical association.

An expert can base his or her opinion on facts or data that are not admissible at trial. § 90.704, Fla. Stat. (2010). But the expert can neither bolster his or her opinion with a treatise, article, study, etc., nor serve as the conduit for inadmissible hearsay. See Linn v. Fossum, 946 So.2d at 1036; Doctors Co. v. Dep’t of Ins., 940 So.2d 466, 470 (Fla. 1st DCA 2006). “Experts cannot, on direct examination, bolster their testimony by testifying that a treatise agrees with their opinion.” Liberatore v. Kaufman, 835 So.2d 404, 407 (Fla. 4th DCA 2003). And “[s]ection 90.706 does not permit statements in a learned treatise to be used as substantive evidence since the treatise would be hearsay if offered as substantive evidence.” Donshik v. Sherman, 861 So.2d 53, 56 (Fla. 3d DCA 2003). This is so because “the opposing party cannot cross-examine and impeach the source of the hearsay.” In re S.E., 946 So.2d 620, 622 (Fla. 2d DCA 2007).

Appellees posit that it is permissible for an expert to testify about the results of a government study such as the NIH study at issue here. For support, they rely on Kloster Cruise, Ltd. v. Rentz, 733 So.2d 1102 (Fla. 3d DCA 1999), and Houghton v. Bond, 680 So.2d 514 (Fla. 1st DCA 1996). At issue in Kloster Cruise was whether an expert witness could testify about weather data from the National Climatic Data Center. The court held that, assuming the data was not independently admissible, the expert could present the information on direct examination as the basis for his opinion. 733 So.2d at 1103. “That is so because the underlying data was the beginning point for analysis, but some further analysis was required by the expert....” Id. Similarly, in Hough-ton, we held it permissible for an accident reconstruction expert to testify about government-conducted crash test data he used to formulate his opinion about the two-car collision underlying the litigation. 680 So.2d at 522. “This testimony was clearly intended to aid the jury in understanding the [expert’s] opinion ... and it was not a conduit for inadmissible hearsay....” Id. Here, Dr. Schwartz used the NIH study data to explain to the jury why he concluded that the preeclampsia Daniel’s mother developed during pregnancy caused the abnormality he observed in samples taken from her placenta, and why he concluded that the abnormality contributed in part to Daniel’s brain injury. We therefore agree with Appellees that under Kloster Cruise and Houghton, the trial court did not abuse its discretion in allowing Dr. Schwartz to testify about the study results.

III. Conclusion

The trial court correctly precluded Appellant’s standard of care expert, Dr. Schifrin, from testifying that Dr. Garcia’s alleged breach of the standard of care created circumstances from which brain injury to a newborn likely occurs. Such testimony went to causation, and Dr. Schif-rin was not qualified to give an opinion on that subject. Further, the court did not permit improper bolstering of testimony by Appellees’ experts, Drs. Thorp and Schwartz. Finding no error by the trial court, we AFFIRM the final judgment on appeal.

SWANSON, J., Concurs; WETHERELL, J., concurs in result only.

      . Ischemia is defined as "[l]ocal anemia due to mechanical obstruction (mainly arterial narrowing) of the blood supply.” Stedman's Medical Dictionary 803 (25th ed. 1990).

      . Perinatal means "[o]ccurring during, or pertaining to, the periods before, during or after the time of birth.” Stedman’s Medical Dictionary 1166 (25th ed. 1990).

      . Preeclampsia is hypertension brought on by pregnancy. Id., at 1251.

      . Notably, Appellant’s neonatologist, Dr. Her-mansen, testified on cross-examination that he could not recall one case involving vacuum extraction and stroke in the more than one thousand cases he has reviewed in the past twenty years.

      . Like the court in Kloster Cruise, we were not asked, and therefore do not address, whether the NIH data would have been independently admissible. See American Motors Corp. v. Ellis, 403 So.2d 459, 468-69 (Fla. 5th DCA 1981) (holding that trial court properly admitted into evidence United States Department of Transportation study on crash severity statistics under the public records exception to the hearsay rule).


author: WARNER, J.

text:
    Jo-Ann T. BEAULIEU, Appellant, v. JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, Appellee.
    No. 4D10-5288.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 2012.
    Rehearing Denied March 13, 2012.
    Garry W. Johnson and Bruce K. Herman of 511 Law, P.A., Fort Lauderdale, for appellant.
    Thomas H. Loffredo and Jeffrey T. Kuntz of GrayRobinson, P.A., Fort Laud-erdale, for appellee.
   WARNER, J.

Appellant challenges the denial of her motion to vacate a final judgment of foreclosure. She claims that appellee had no “constitutional standing” to bring the suit because appellee had not proved that it was duly assigned the mortgage note prior to the suit being filed. Because appellant defaulted, she cannot contest, as she tries to do in her post-judgment motion, the allegations of the complaint that the appel-lee was the owner and holder of the note and mortgage. See State Farm Mut. Auto. Ins. Co. v. Horkheimer, 814 So.2d 1069, 1072 (Fla. 4th DCA 2001) (“When a default is entered, the defaulting party admits all well-pled factual allegations of the complaint.”); Chem. Residential Mortg. v. Rector, 742 So.2d 300 (Fla. 1st DCA 1998) (failure of defendant to answer complaint waived any denial of complaint’s allegations that the mortgagee plaintiff was the owner and holder of the note and mortgage and that defendant had defaulted thereon). The original note and mortgage were filed in the foreclosure action and entitled appellee to the final judgment of foreclosure it obtained. See State St. Bank and Trust Co. v. Lord, 851 So.2d 790, 791 (Fla. 4th DCA 2003).

Appellant’s other challenges contend that the documents submitted in support of the complaint and the motion for summary judgment were faulty or inadmissible. Motions pursuant to Florida Rule of Civil Procedure 1.540(b) cannot be used as a substitute for a motion for rehearing or an appeal. See Commonwealth Land Title Ins. Co. v. Freeman, 884 So.2d 164, 167 (Fla. 2d DCA 2004). Appellant is not entitled to relief.

Affirmed.

DAMOORGIAN and GERBER, JJ., concur.


text:
    Antonio D. MILLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-5215.
    District Court of Appeal of Florida, First District.
    Jan. 12, 2012.
    Rehearing Denied March 2, 2012.
    Antonio D. Miller, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(5)(A).

BENTON, C.J., CLARK and MARSTILLER, JJ., concur.


author: WALLACE, Judge.

text:
    PINELLAS COUNTY, Appellant, v. Donna K. BALDWIN, Appellee.
    No. 2D11-2774.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 2012.
    Rehearing Denied Feb. 27, 2012.

      James L. Bennett, County Attorney, and Donald S. Crowell, Senior Assistant County Attorney, Clearwater, for Appellant.
    John M. LeRoux of Law Offices of John M. LeRoux, P.A., Clearwater, for Appellee.
   WALLACE, Judge.

Donna K. Baldwin filed an action in Hillsborough County against Pinellas County (the County) for the inverse condemnation of her land located wholly within Hillsborough County. The County moved to dismiss the action for improper venue, claiming its home venue privilege. The circuit court denied the motion, and the County appeals. Because Ms. Baldwin’s complaint for inverse condemnation invoked the sword-wielder exception to the County’s home venue privilege, we affirm.

I. THE FACTS AND PROCEDURAL HISTORY

Ms. Baldwin owns real property located in Hillsborough County. Her land is adjacent to land owned by Pinellas County. The County’s land, which is also located in Hillsborough County, has previously been used as a borrow pit. In December 2010, Ms. Baldwin filed an action asserting a claim for inverse condemnation against the County in the Hillsborough County Circuit Court. In her complaint, Ms. Baldwin alleged that the County had taken her property in'violation of article X, section 6, of the Florida Constitution by causing the land to be permanently flooded. Ms. Baldwin concluded her complaint by demanding that the circuit court determine that the County had unlawfully taken her land and empanel a jury to determine the amount of compensation required to be paid to her.

The County moved to dismiss the complaint for improper venue and claimed its home venue privilege. The County also asserted that the complaint failed to state a cause of action for inverse condemnation. In support of its motion, the County argued that the complaint failed to allege that the County had undertaken any governmental action outside the limits of its jurisdiction in Hillsborough County.

At a hearing on the motion, Ms. Baldwin argued that venue was proper in Hillsbor-ough County under the sword-wielder exception to the home venue privilege claimed by the County. The circuit court agreed, finding “that the complaint sufficiently alleges a claim for inverse condemnation.” Accordingly, the circuit court denied the County’s motion, ruling “venue is proper in Hillsborough County where the alleged unconstitutional taking of [Ms. Baldwin’s] property has occurred.” This appeal followed.

II. THE APPLICABLE LAW

A. The Standard of Review

The parties agree that we should apply the de novo standard of review to the circuit court’s ruling on the applicability of the sword-wielder exception to the County’s assertion of its home venue privilege. See Fla. Div. of Pari-Mutuel Wagering v. Fla. Standardbred Breeders & Owners Ass’n, 983 So.2d 61, 62 (Fla. 4th DCA 2008). See generally Pricewaterhouse-Coopers LLP v. Cedar Res., Inc., 761 So.2d 1131, 1133 (Fla. 2d DCA 1999) (discussing the standards of review applicable to the different types of venue decisions made by trial courts).

B. The Home Venue Privilege

The County timely asserted its “common law ‘home venue privilege,’ which governs suits against government entities in Florida.” Bush v. State, 945 So.2d 1207, 1212 (Fla.2006). Describing the home venue privilege, the Supreme Court of Florida has said:

It has long been the established common law of Florida that venue in civil actions brought against the state or one of its agencies or subdivisions, absent waiver or exception, properly lies in the county where the state, agency, or subdivision[] maintains its principal headquarters. Such a rule promotes orderly and uniform handling of state litigation and helps to minimize expenditure of public funds and manpower.

Carlile v. Game & Fresh Water Fish Comm’n, 354 So.2d 362, 363-64 (Fla.1977) (citations omitted). A trial court lacks discretion to deny an assertion of the home venue privilege. On the contrary, “a trial court must apply the home venue privilege unless one of the exceptions to the privilege is satisfied.” Fla. Dep’t of Children & Families v. Sun-Sentinel, Inc., 865 So.2d 1278, 1288 (Fla.2004).

There are four recognized exceptions to the home venue privilege: (1) where the legislature has waived the privilege by statute, (2) the sword-wielder exception, (3) where the governmental defendant is sued as a joint tortfeasor, and (4) where a party petitions the court for an order to gain access to public records. Sun-Sentinel, Inc., 865 So.2d at 1287-89.

“The governmental agency bears the initial burden of proving its entitlement to the home venue privilege.” Dep’t of Agric. v. Middleton, 24 So.3d 624, 627 (Fla. 2d DCA 2009) (citing Fish & Wildlife Conservation Comm’n v. Wilkinson, 799 So.2d 258, 260 (Fla. 2d DCA 2001)). “ ‘The burden then shifts to the plaintiff to plead and prove’ that an exception to the privilege applies.” Id. The governmental agency need not present conflicting evidence on the issue unless the plaintiff pleads sufficient allegations and proves the applicability of one of the exceptions. Id.

C. The Sword-Wielder Exception

Ms. Baldwin relied on the sword-wielder exception in her opposition to the County’s assertion of its home venue privilege. Our supreme court has stated the sword-wielder exception as follows:

The so called “sword-wielder” doctrine applies only in those cases where the official action complained of has in fact been or is being performed in the county wherein the suit is filed, or when the threat of such action in said county is both real and imminent. The Court in [Department of Revenue v. First Federal Savings & Loan Ass’n of Fort Myers, 256 So.2d 524, 526 (Fla. 2d DCA 1971),] stated:

The question to be answered in these cases may be said to be whether the state is the initial sword-wielder in the matter, and whether the plaintiffs action is in the nature of a shield against the state’s thrust. If so, then the suit may be maintained in the county wherein the blow has been or is imminently about to be laid on.
... This exception to the common law privilege of venue is limited to those cases wherein the primary purpose is to obtain direct judicial protection from an alleged unlawful invasion of the constitutional rights of the plaintiff within the county where the suit is instituted, because of the enforcement or threatened enforcement by a state agency of a statute, rule[,] or regulation alleged to be unconstitutional as to the plaintiff, and where the validity or invalidity of the statute, rule[,] or regulation sought to be enforced comes into question only secondarily and incidentally to the main issue involved.

Carlile, 354 So.2d at 365. We conclude that a governmental taking of property in violation of article X, section 6, of the Florida Constitution is an unlawful invasion of constitutional rights sufficient to support the application of the sword-wielder exception.

D. Inverse Condemnation

This court has previously explained the basis for a property owner’s action for inverse condemnation as follows:

Eminent domain is the exercise of the government’s power to take private property for the public good. This sovereign power is limited by our constitution which states that any taking of private property for a public purpose must be with full compensation to the owner. Art. X, § 6, Fla. Const. (1968). The government generally exercises its power to condemn through formal proceedings. However, when a governmental body takes private property without first initiating formal proceedings, the injured property owner may institute an inverse condemnation suit.
Proof of a taking by the governmental body is an essential element in an action for inverse condemnation.

State, Dep’t of Health & Rehabilitative Servs. v. Scott, 418 So.2d 1032, 1033-34 (Fla. 2d DCA 1982) (citation omitted). Construction undertaken by a county which results in the flooding of a landowner’s property with a degree of permanency may result in a taking that gives rise to an action for inverse condemnation. See Elliott v. Hernando Cnty., 281 So.2d 395, 396 (Fla. 2d DCA 1973); Thompson v. Nassau Cnty., 343 So.2d 965, 966 (Fla. 1st DCA 1977).

III. DISCUSSION

The unusual nature of Ms. Baldwin’s claim for inverse condemnation is its extraterritorial aspect. The County’s activities that allegedly resulted in flooding Ms. Baldwin’s property occurred entirely outside the County’s limits in another county. Thus there may be a question about the County’s authority to exercise the power of eminent domain in another jurisdiction in the manner alleged in the complaint. Cf. Prosser v. Polk Cnty., 545 So.2d 934 (Fla. 2d DCA 1989) (holding that Polk County had the authority to condemn and take property outside its territorial limits for a road project that roughly paralleled the boundary between Polk and Hillsborough Counties).

On appeal, the County argues that the complaint fails to allege that the County was exercising any governmental powers within Hillsborough County. The County contends that absent governmental action, there can be no inverse condemnation. According to the County, it follows that Ms. Baldwin has failed to allege a cause of action for inverse condemnation and the sword-wielder exception does not apply. Thus the circuit court erred in failing to honor the County’s home venue privilege. We disagree.

In her complaint, Ms. Baldwin alleged that the County’s activities had caused her property to be permanently flooded. If true, this would amount to a taking of Ms. Baldwin’s property by the County. We think the complaint sufficiently alleges a taking of Ms. Baldwin’s property without due process of law. The County’s argument that the complaint fails to allege any facts demonstrating that the County is exercising its governmental power in Hillsborough County is beside the point. The facts alleged in the complaint — which remain to be proven — are that the County has appropriated Ms. Baldwin’s property without paying her any compensation. Ms. Baldwin is not “required to prove in an inverse condemnation action brought after the condemning authority has taken [her] property without due process that such taking was for a public purpose.” Kirkpatrick v. City of Jacksonville, 312 So.2d 487, 490 (Fla. 1st DCA 1975).

IV. CONCLUSION

Ms. Baldwin’s complaint stated a cause of action for inverse condemnation against the County, and the sword-wielder exception applies to the County’s claim of the home venue privilege. Accordingly, the circuit court properly denied the County’s motion to dismiss.

Affirmed.

VILLANTI and KHOUZAM, JJ., Concur.

      . We have jurisdiction in accordance with Florida Rule of Appellate Procedure 9.130(a)(3)(A).

      . The complaint was limited to the inverse condemnation claim. Ms. Baldwin did not plead any alternative theories for relief.

      . In accordance with section 73.021, Florida Statutes (2010), a petition for eminent domain must be filed "in the circuit court of the county wherein the property lies.” Ms. Baldwin did not argue that this provision trumped the county's home venue privilege. Cf. Fla. Dep’t of Agric. & Consumer Servs. v. City of Pompano Beach, 829 So.2d 928, 931 (Fla. 4th DCA 2002) (holding "that when a property owner sues to compel compliance with Chapter 73, the venue provision, section 73.021, applies”).


text:
    Baron GREENWADE, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-4330.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2012.

    Rehearing Denied March 2, 2012.
    Nancy A. Daniels, Public Defender, and M. Gene Stephens, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.
   MARSTILLER, J.

Appellant pled guilty to possession of a firearm by a convicted felon, possession of controlled substance paraphernalia, and resisting an officer without violence. A jury found him guilty of trafficking in cocaine in amount more than 200 grams, but less than 400 grams. The sole issue Appellant raises is whether the trial court should have granted his motion for judgment of acquittal on the cocaine trafficking charge because the state combined, tested and weighed the contents of nine small bags found in his possession instead of testing each bag for cocaine before commingling and weighing their contents. We affirm the conviction.

Detective Donald Bishop and other officers from the Jacksonville Sheriffs Office executed a search warrant at a residence in Jacksonville. There, they found Appellant sitting behind a table in the garage and, after thwarting his attempt to escape, they placed him in custody. Once detained, Appellant told Detective Bishop, “What you are looking for is in the garage.” He directed the detective back to the garage and to the table behind which he had been sitting. On the table was a digital scale, and beside the table was a green bag. Appellant admitted the bag contained cocaine. Lying atop the bag was a spoon with cocaine residue on it. And inside the bag Detective Bishop found nine powder-filled one-ounce plastic baggies. After Detective Bishop read Appellant his Miranda rights, Appellant admitted the cocaine was his.

Every baggie was field tested before transfer to the Sheriffs Office property room. Once there, they were emptied and each baggie put in its own envelope. According to Detective Bishop, it is standard procedure to combine the contents of individual packets for subsequent lab testing.

FDLE forensic chemist, Dr. Katherine Warniment, received one sealed Ziploc bag containing an amount of off-white powder for testing to identify any controlled substances in the powder. Chemical tests she performed confirmed the powder contained cocaine. She also determined the substance in the Ziploc bag weighed 234.5 grams. Dr. Warniment did not — and does not — test for purity because the law does not require the lab to quantify the amount of cocaine in a given sample.

Indeed, under section 893.135(l)(b)l, Florida Statutes (2009):

Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine, as described in s. 893.03(2)(a) 4., or of any mixture containing cocaine, but less than 150 kilograms of cocaine or any such mixture, commits a felony of the first degree, which felony shall be known as “trafficking in cocaine,”.... If the quantity involved:
b. Is 200 grams or more, but less than 400 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of 7 years, and the defendant shall be ordered to pay a fine of $100,000.

(emphasis added). The Florida Supreme Court has said that in deciding to penalize possession of mixtures or compounds containing cocaine, “the legislature reasonably could have concluded that a mixture containing cocaine could be distributed to a greater number of people than the same amount of undiluted cocaine and thus could pose a greater potential for harm to the public.” State v. Yu, 400 So.2d 762, 765 (Fla.1981). Keeping in mind this policy decision by the legislature, we consider whether the State produced evidence that Appellant possessed between 200 and 400 grams of cocaine sufficient to survive a motion for judgment of acquittal.

The Third District first held in Ross v. State, 528 So.2d 1237, 1239 (Fla. 3d DCA 1988), that where “the subject cocaine or mixture [is] contained ... in a series of separately wrapped packets,” the State must “establish that each of the subject packets contains cocaine or a mixture thereof which in the aggregate satisfies the above statutory weight.” In that case, law enforcement officers seized from the appellant a brown paper bag holding two bundles of plastic packets containing white powder. One bundle contained 36 packets; the other contained 56 packets. The crime lab chemically tested two of the 92 packets, one from each bundle, and determined both contained cocaine. The lab technician then combined the contents of all 92 packets and obtained a total weight for the contents of 38.8 grams. On that evidence, a jury found the appellant guilty of trafficking in cocaine. The Third District reversed the conviction, concluding that the State failed to prove the appellant possessed 28 grams or more of cocaine or a mixture of cocaine because only two of the seized packets were tested. Id. The court reasoned:

[T]he fact that one or two packets containing cocaine are found among other packets containing similar-looking white powder is no assurance that the latter untested packets also contain cocaine in view of (1) the vast number of other chemical compounds which have á similar white powdery appearance, and (2) the fact that the material in the untested packets was not commingled with the material in the tested packets.

Id. at 1239-40. The Third District later employed this reasoning to affirm an order reducing heroin trafficking charges to simple possession where the white powder was contained in capsules, but only a random sample of capsules were chemically tested before commingling the contents of all capsules for weighing. See State v. Clark, 538 So.2d 500, 501 (Fla. 3d DCA 1989).

Applying the rationale in Ross, the Second District in Safford v. State, 708 So.2d 676, 677 (Fla. 2d DCA 1998), reversed a cocaine trafficking conviction and reduced it to simple possession where the contents of 40 foil packets containing white powder were combined into one mixture before chemical testing. In Sheridan v. State, 850 So.2d 638 (Fla. 2d DCA 2003), the court ruled similarly on an amphetamine trafficking conviction. There, sheriffs deputies found two bags containing white powder in the car the appellant was driving. One or both field tested positive for methamphetamine, leading the appellant to admit he was planning to trade one ounce of methamphetamine for two pounds of marijuana. The contents of the bags were combined and sent to the lab where chemical tests confirmed the field test results. The combined contents weighed 23 grams, exceeding the 14 gram statutory threshold for trafficking in amphetamine. The court condemned the commingling procedure and opined that it “created an assumption as to the amount without the necessary proof. Thus, the evidence of trafficking was legally insufficient and should not have gone to the jury.” Id. at 640. See also Smith v. State, 835 So.2d 387 (Fla. 2d DCA 2003).

We respectfully decline to follow Ross, Safford and Sheridan because, in our view, their apparent bright line rule creates an untenable distinction between cases involving multiple packages of suspicious white powder and cases involving just one package. To illustrate, if in this case Detective Bishop had found one large plastic bagful of powder inside the green bag Appellant led him to, there would be no question that testing a sample and weighing the powder would yield sufficient evidence to prove Appellant possessed more than 200 grams of cocaine or a mixture of cocaine. But take that same bagful of powder and split it into nine small saleable packets, and Ross et al. hold that to prove the weight element of trafficking, the State now must test a sample from each packet, determine which contain cocaine, and weigh only those — even if presumptive field testing detects cocaine in every packet, see Smith at 388, and other circumstances, such as the way the packets are bundled together (Ross) or an admission by the defendant (Sheridan), would permit a jury to reasonably infer all the packets contain an illegal substance.

The rationale underlying the so-called rule against commingling, see Lyons v. State, 807 So.2d 709, 710 (Fla. 5th DCA 2002), is that where several individual packets contain suspected cocaine (or some other contraband in powder form), one or more of the packets might contain some “other chemical compound[ ] which [has] a similar white powdery appearance.” Ross, 528 So.2d at 1239-40. But we go back to Yu and the Legislature’s policy reason for penalizing possession of mixtures or compounds containing cocaine: pure cocaine can be (and assuredly is) diluted with other substances to facilitate broader distribution. This policy, we believe, legitimizes the practice of commingling multiple packets for chemical testing and weighing, where the circumstances attending the discovery and seizure of the packets permit the reasonable conclusion that they contained contraband, and perhaps other substances, to be used in illegal drug distribution.

We find such circumstances present in the instant case. Appellant, whom officers apprehended after executing a residential search warrant, told Detective Bishop, “What you are looking for is in the garage.” There, stored together inside a green bag were the nine individual baggies of white powder. Appellant admitted the bag contained cocaine. On top of the bag was a spoon with cocaine residue on it, and on the table beside the bag was a digital scale — tools of the drug trade. All the seized baggies were field tested before their contents were combined and sent to the FDLE lab. This evidence, together with the positive chemical test performed on the commingled powder, was sufficient for the jury to find Appellant had more than 200 grams of cocaine or a mixture of cocaine in his possession. As Judge Schwartz reasoned in his dissent in Ross:

It seems to me, as it must have to the jury, eminently reasonable to conclude that the material in the packet randomly selected from each of the two bundles was representative and characteristic of the other ones, which were otherwise identical in every way.... [A] reasonable person could conclude beyond a reasonable doubt that all of the packages in the two bundles contained cocaine. Since both bundles were possessed at the same time by the same person, the defendant Ross, I believe that they were properly added together in order to reach the trafficking threshold....

Ross, 528 So.2d at 1241 (Schwartz, C.J., dissenting in part) (citations omitted); cf. Lyons, 807 So.2d at 711 (affirming trafficking conviction because, although contents of two “bricks” of powder were commingled before testing and weighing, they were approximately the same size, otherwise similar in appearance, and hidden together in single taped-up Cornflakes box, allowing reasonable inference they both contained mixtures of cocaine).

In sum, for the reasons stated above, we affirm Appellant’s conviction for trafficking in cocaine. We certify conflict with Ross v. State, 528 So.2d 1237 (Fla. 3d DCA 1988), Safford v. State, 708 So.2d 676 (Fla. 2d DCA 1998), and Sheridan v. State, 850 So.2d 638 (Fla. 2d DCA 2003), to the extent those cases hold that the lab’s failure to test each package before commingling to determine weight renders insufficient the State’s evidence of trafficking, notwithstanding other circumstantial evidence of the offense.

AFFIRMED; CONFLICT CERTIFIED.

WETHERELL and SWANSON, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Florida Department of Law Enforcement


author: WHATLEY, Judge.

text:
    Julia FELTUS, Appellant, v. U.S. BANK NATIONAL ASSOCIATION, as Trustee of Mastr Adjustable Rate Mortgages Trust 2007-3, Appellees.
    No. 2D10-3727.
    District Court of Appeal of Florida, Second District.
    Jan. 27, 2012.
    Jacqulyn Mack of The Mack Law Firm, Englewood, for Appellant.
    Roy A. Diaz and Diana B. Matson of Smith, Hiatt & Diaz, P.A., Ft. Lauderdale for Appellee.
   WHATLEY, Judge.

Julia Feltus appeals a final judgment of foreclosure in favor of U.S. Bank National Association, as Trustee of Mastr Adjustable Rate Mortgages Trust 2007-3 entered upon U.S. Bank’s motion for summary judgment. We reverse because U.S. Bank failed to show conclusively the absence of a genuine issue of material fact and that it was entitled to foreclosure as a matter of law.

On August 24, 2009, U.S. Bank filed an unverified complaint seeking to reestablish a lost promissory note and to foreclose the mortgage on Feltus’s home. U.S. Bank attached to the complaint a copy of the note and the mortgage, but both documents showed the lender to be Countrywide Bank, N.A. In the count to reestablish the note pursuant to section 673.3091, Florida Statutes (2009), U.S. Bank alleged that the note was executed by Feltus on February 16, 2007; U.S. Bank is the owner and holder of the note; the original note has been lost and is not in U.S. Bank’s custody or control; the note was continuously in the possession and control of U.S. Bank’s assignor and predecessor from the date of execution until the loss, at which time the assignor and predecessor was entitled to enforce the note; and the note has not been paid or otherwise satisfied, assigned, or transferred, or lawfully seized. Notably, these allegations did not include an allegation that Countrywide had assigned the note to U.S. Bank.

After Feltus filed a motion to dismiss alleging that U.S. Bank had failed to establish that it owned or held the subject note, on November 16, 2009, U.S. Bank filed an affidavit of indebtedness executed by Kathy Repka, an assistant secretary of BAC Home Loan Servicing, L.P., f/k/a Countrywide Home Loan Servicing, L.P. Repka asserted that her affidavit was based on the loan payment records of the servicing agent and her familiarity with those records. After she explained that the purpose of the records was “to monitor and maintain the account relating to a note and mortgage that are the subject matter of the pending case,” Repka asserted that U.S. Bank owns and holds the note described in its complaint. Then on November 18, 2009, U.S. Bank filed another copy of the note as a supplemental exhibit to its complaint. In contrast to the copy attached to the complaint that contained no endorsements, this copy contained two endorsements that were side by side on the last page — the first stated “PAY TO THE ORDER OF: COUNTRYWIDE HOME LOANS, INC. WITHOUT RECOURSE COUNTRYWIDE BANK, N.A.” and the second stated “PAY TO THE ORDER OF: WITHOUT RECOURSE COUNTRYWIDE HOME LOANS, INC.” Notwithstanding this filing, eight days after Feltus filed her answer and affirmative defenses, on May 26, 2010, U.S. Bank filed a motion for summary final judgment alleging that it “owns and holds a promissory note and mortgage” and that the original note had been lost and is not in U.S. Bank’s control. But on June 4, 2010, U.S. Bank filed a reply to Feltus’s affirmative defenses in which it asserted that it is now in possession of the original note, a copy of which it attached and which is the same note it filed on November 18, 2009. U.S. Bank further asserted that because the note is endorsed in blank and it is in possession of the note, it is the bearer and entitled to foreclose the mortgage. See Riggs v. Aurora Loan Servs., LLC, 36 So.3d 932, 933 (Fla. 4th DCA 2010) (noting that pursuant to Uniform Commercial Code, negotiation of note by transfer of possession with blank endorsement makes transferee the holder of the note entitled to enforce it).

U.S. Bank’s reply of June 4, 2010, was the only pleading in which it alleged that the note was no longer lost, and it was the only pleading to which a copy of the alleged original note was attached. The reply could not serve as an amended complaint because U.S. Bank had not secured leave of court or Feltus’s written consent to amend its complaint after Feltus filed her answer and affirmative defenses. See Fla. R. Civ. P. 1.190(a). A pleading filed in violation of rule 1.190(a) is a nullity, and the controversy should be determined based on the properly filed pleadings. Warner-Lambert Co. v. Patrick, 428 So.2d 718 (Fla. 4th DCA 1983).

Before a court may grant summary judgment, the pleadings, depositions, answers to interrogatories, admissions, and any affidavits must “ ‘conclusively show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Allenby Assocs., Inc. v. Crown St. Vincent Ltd., 8 So.3d 1211, 1213 (Fla. 4th DCA 2009) (quoting Fini v. Glascoe, 936 So.2d 52, 54 (Fla. 4th DCA 2006)). The party moving for summary judgment bears the burden to show conclusively that there is a complete absence of any genuine issue of material fact. Id.

The properly filed pleadings before the court when it heard U.S. Bank’s motion for summary judgment were a complaint seeking to reestablish a lost note to which was attached a copy of a note made payable to Countrywide, N.A., Feltus’s answer and affirmative defenses alleging that the note attached to the complaint contradicts the allegation of the complaint that U.S. Bank is the owner of the note, a motion for summary judgment alleging a lost note of which U.S. Bank is the owner, and an affidavit of indebtedness alleging that U.S. Bank was the owner and holder of the note described in the complaint. The endorsed note that U.S. Bank claimed was now in its possession was not properly before the court at the summary judgment hearing because U.S. Bank never properly amended its complaint. In addition, the complaint failed to allege that U.S. Bank “was entitled to enforce the instrument when loss of possession occurred, or has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred.” § 673.3091(a). The affidavit of indebtedness provided no assistance in this regard because the affi-ant did not assert any personal knowledge of how U.S. Bank would have come to own or hold the note. See Shafran v. Parrish, 787 So.2d 177, 179 (Fla. 2d DCA 2001) (“When affidavits are filed to establish the factual basis of the motion [for summary judgment], they must be made on personal knowledge, demonstrate the affiant’s competency to testify, and be otherwise admissible in evidence.”).

The trial court erred in entering final judgment of foreclosure because the documents before it did not establish conclusively that there was no genuine issue of material fact and that U.S. Bank was entitled to foreclose Feltus’s mortgage as a matter of law. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

CASANUEVA and CRENSHAW, JJ., Concur.

      . This "filing” did not comply with Florida Rule of Civil Procedure 1.190(a) and thus was ineffective to amend U.S. Bank’s complaint.

      . A cause of action must be complete before a party files a lawsuit. See Trawick, Fla. Prac. and Proc., § 14:8 (2010 ed.); see also § 95.031(1), Fla. Stat. (2009). Thus, even if U.S. Bank had properly amended its complaint to travel on the original note endorsed in blank, it would have needed to prove the endorsement in blank was effectuated before the lawsuit was filed.