author: WELLS, Judge.

text:
    Ines ORTA, Appellant, v. Michael SUAREZ, Appellee.
    No. 3D10-1675.
    District Court of Appeal of Florida, Third District.
    June 29, 2011.
    Rehearing Denied Aug. 19, 2011.

      Schweitzer & Schweitzer-Ramras and Darlene Schweitzer-Ramras, Coral Gables, for appellant.
    Bluestein & Wayne, and Barry Wayne, Coral Gables; Ross & Girten and Laurie Waldman Ross, for appellee.
    Before RAMIREZ, C.J., and WELLS and CORTIÑAS, JJ.
   WELLS, Judge.

Ines Orta appeals from a final judgment of dissolution of marriage denying her petition to relocate to California with the parties’ minor child. For the following reasons, we reverse.

The parties were married on October 9, 2002, in Caracas, Venezuela. The petitioner husband, Michael Suarez, then fifty-three years old, is a Florida resident and self-employed consulting engineer. The respondent wife, Ines Orta, then twenty-nine years old, is a Venezuelan educated dentist, who by virtue of her marriage to Suarez is a permanent resident.

In 2006, Orta inherited approximately a half million dollars from her parents. Shortly thereafter, in June of 2007, the parties executed a post-nuptial agreement in which each waived both support from the other as well as the right to share in each other’s separate property. At the time this agreement was executed, Suarez swore under oath that his net worth was almost $23 million and that he had been and was then grossing, $8000 a month in income from his business as a consulting engineer. Orta on the other hand swore that she had a net worth a little shy of $500,000 and was grossing less than $600 a month in income.

Although the parties lived in Suarez’ Miami Beach condominium following their marriage, they had always agreed to move to California, the only state in which Orta could practice dentistry without re-attending dental school. To this end, Orta and Suarez traveled to California a number of times looking for a place to live, staying weeks at a time so that Orta could study for and take California’s dentistry licensing examinations. But as the final judgment confirms, after Orta learned that she was pregnant, Suarez reneged on their deal and refused to move to California, thereby effectively stranding Orta in Florida where she could secure no meaningful work:

[T]he credible evidence establishes that [Suarez and Orta] had in fact agreed to move to California so [Orta] could practice dentistry in California. The evidence of this was clear and convincing, from the parties’ three separate trips to California (each for a period of 4-6 weeks), [Orta’s] taking of preparatory courses and sitting for the two parts of the exam, and the fact that the parties on their last trip actually looked for an area to live when they moved. While they put these plans on hold after [Orta] became pregnant, it was [Suarez] who changed his mind and refused to move to California. This left [Orta] in an untenable position. The only place she can practice dentistry in the United States (without going through dental school again) is California.

This abrupt about face on Suarez’ part was not in the best interest of his child. In fact, as the final judgment acknowledges, Suarez never wanted children and let Orta know it “both in word and deed ... during the late stages of [Orta’s] pregnancy and immediately after [she] gave birth.” After the child was born, Suarez evidenced no concern as to what was in this child’s best interest and effectively refused to have anything to do with him:

The credible evidence demonstrates [Suarez] did not want to have a child and his actions toward the end of the pregnancy, and immediately after the child’s birth, appears to reflect those feelings.
When the child was first born, [Suarez] would not allow the child to sleep in the parties’ bedroom or permit [Orta] to feed the child in the parties’ bedroom. [Suarez] complained that the child[’]s crying and waking up for feeding was affecting his sleep and therefore his work. [Orta] and child began sleeping in a separate bedroom. It is clear that, during the first months of the child’s life, [Orta] was the primary (and sometimes exclusive) parent....

This all began to change when approximately four months after their child was born, Orta told Suarez that she wanted a divorce and asked him to leave the condominium where they lived. According to Orta, during a heated conversation on this subject, Suarez got upset, “grabbed her by the arm,” and threatened her when she attempted to walk away. She petitioned for a domestic violence injunction. In response, Suarez claimed that Orta’s petition was nothing more than an attempt to “abuse the system to gain a tactical advantage in a custody battle.” Orta denied any such motivation and testified without contradiction at the domestic violence hearing that Suarez had grabbed her by the arm, bruising and scratching her. The domestic violence judge, focusing primarily on who was entitled to Suarez’ condominium under the parties’ post-nuptial agreement — a matter not before the domestic violence court — concluded that Orta had not been battered and effectively pressured Orta into agreeing to vacate the condominium within a month.

As “agreed,” Orta and her son moved out of Suarez’ condominium. But based on Suarez’ claim that he then was earning only $1600 a month rather than the $8000 a month he always had earned in the past, he was ordered to pay only $350 a month in child support to Orta. In addition, he picked up the cost of a nanny for the child. Thus, while Suarez continued to live in his $800,000 condominium, Orta and the parties’ son lived on less than $1200 a month derived from Orta’s salary of a little less than $800 a month and $350 a month in temporary child support.

Despite the fact that as the trial court found “[Orta] was the primary (and sometimes exclusive) parent” of the parties’ child up to this time, Suarez now claimed under oath in his divorce petition to be a loving and devoted father. He also claimed that because Orta had “a history of depression and ... erratic behavior ... likely to have a negative effect on the minor child’s psychological and physical well being,” it was in this child’s best interest that the parties equally share custodianship. Claiming that Orta had threatened to abscond with their son to Venezuela, he also secured a temporary injunction preventing Orta from removing the child from Florida thereby trapping Orta in a place where she had no hope of earning enough money to adequately support herself and her son.

In May of 2009, after an unsuccessful eight month search for a job in Florida, Orta finally received an offer to work as a dentist in Carlsbad, California at a salary of $108,000 a year. Orta sought leave of court to relocate with her son.

Suarez objected with a vengeance. In a thirty-seven page sworn response, Suarez claimed, among many other things, that “[t]he petition for relocation ... is a sham” calculated “to separate [me] from [my] son” and to “destroy a loving father-son relationship.” He also claimed that Orta had sought to alienate him from his son “through the use of fraud, deceit, and abuse of process perpetrated through the legal system,” as purportedly evidenced by Orta’s “fraudulent domestic violence complaint ” which constituted “a felony in the State of Florida and an insidious form of child abuse ”; by Orta’s move to Plantation and then further away in Broward County after she vacated his condominium, a move which Suarez (ignoring the fact that Orta had less than $1200 a month on which to live) claimed was for no other purpose than to discourage “a loving father-son relationship”; and by Orta’s attempt to change the time sharing arrangement between herself and Suarez based on her claim that a nanny rather than Suarez was caring for the child when the child was with him.

Suarez also claimed that relocation should be denied because Orta’s relocation request was nothing more than part of Orta’s plan to “eventually move back to ... Venezuela and permanently separate [Suarez] and [his] son.” This, according to Suarez, was evidenced by the fact that Orta had traveled to Venezuela over forty times during their marriage and because she had told him shortly after she became pregnant that she wanted to return to Venezuela, causing him to fear that Orta would kidnap their son, “a horrendous crime and an insidious form of child abuse in which children are deeply and permanently affected.” Purportedly making matters even worse, Suarez claimed that Orta’s brother is “a physician who is a militant Chavez sympathizer” who has been offered a prominent position in the Chavez Government, and that her cousin is “married to the Chief of Police ... also a militant Chavez supporter.”

Suarez further argued that relocation should be denied because 63% of youths from fatherless homes commit suicide, five times the average; 90% of homeless/runaway children are from fatherless homes, thirty two times the average; 85% of children with behavior disorders come from fatherless homes, twenty times the average; 80% of rapists come from fatherless homes, fourteen times the average; 71% of all high school drop outs come from fatherless homes, nine times the average; 75% of all teen drug abusers in rehab centers come from fatherless homes, ten times the average; 70% of youths in state operated institutions come from fatherless homes, nine times the average; and 85% of all youths in prison come from fatherless homes, twenty times the average, and that by moving to California, Orta was “determined to make the above statistics a reality in [his] son’s life.”

He additionally claimed under oath that Orta was psychologically and emotionally unstable; that she had contracted a venereal disease and was morally unfit; that she had “refused to work or seek meaningful employment”; that their son preferred being with him “[a]s evidenced by numerous witnesses the child cries every tim,e the mother comes to pick him up after my timesharing and it is obvious that he rejects] the mother and does not want to go with the mother ”; and, that he had wanted this child more than just about anything and had been devoted to him long before and continually after his birth — a claim soundly rejected as not credible by the court below:

My relationship with my son started at the moment of his conception. I am a devoted and loving father.... While my son was still in the womb of his mother I would talk to him so he could get familiar with my voice. I would play lullabies and classical music to sooth him with the illusion that he would soon be born and that I would be able to hold him in my arms....
Since I am a self-employed Engineer, in the weeks [that followed his birth] I readjusted my working schedule so I could spend the mornings with the baby at home and went to work at noon-time. I fed the baby every day before going to work. My wife was breast feeding and she would freeze her milk to use later to feed him.... I helped rock the baby to sleep on many occasions. I would get up in the middle of the night and help burp the baby at feeding time and did everything I could to give my unconditional love and support to my newborn son.

(Suarez’ June 15, 2009, objection to Notice of Intent to Relocate.)

When Orta sought to have her relocation request heard at a specially set hearing, Suarez objected, moving to strike thereby delaying action on the request. On July 15, two months after the request to relocate was filed, Orta’s request for a hearing on her relocation request was stricken. Nine days later, the relocation petition was referred to a general magistrate. Suarez objected again, further delaying resolution of Orta’s relocation request. By this time, all hope of securing an order permitting Orta and her son to move to California in time to take the job in Carlsbad was gone.

On September 17, 2009, four months after making her initial request to relocate, Orta filed a second motion to relocate, this one nominated as an emergency, advising the court below that she had lost the first job offered to her because of the delay involved in securing permission to move and that she had secured another offer to commence work on or before October 5, 2009. Orta noticed a hearing on this relocation request for November 6, 2009. Suarez again moved to strike the hearing date and objected to relocation. The following week, on September 25, 2009, Orta notified the court that she had accepted a job offer in San Diego and with resolution of her relocation motions still unresolved, left for California leaving her son behind.

On November 6, 2009, almost two months after Orta’s emergency motion to relocate was filed, the trial court denied Suarez’ motion to strike. The court did not resolve the relocation request, nor did it grant leave to temporarily relocate but sought instead to expedite by consolidating the proceedings. On December 8, 2009, almost three months after Orta filed her emergency request to relocate, the court below entered an order setting a final hearing of all matters during the last week of February 2010 or the first available week thereafter.

No such final hearing took place. Almost two months later, on January 21, 2010, Suarez hired new counsel. Suarez’ new attorneys asked for “sixty ... to ninety days” to bring themselves up to speed and estimated that a one week period would be needed for the trial to follow. On that estimate, the matter was set for the week of April 19 through 22 — almost one full year after Orta initially asked to relocate and seven months after she sought relocation on an emergency basis.

On May 18, 2010, a final judgment issued. That judgment confirmed that but for Orta’s move to California she would have been entitled to equal time with the child. However, based on a determination that it was not in the best interest of this two-year old to relocate to California, Suarez was awarded custodianship of the child and the lion’s share of the time with him:

Should the Mother relocate to South Florida, the parties shall have equal timesharing....
So long as the Mother remains in San Diego, California, and the child remains in Miami, the timesharing shall be as follows:
The child is scheduled to reside the majority of the time with the Father. The Father is designated as the “custodian” or “residential parent” of the child....

Because the trial court’s findings confirm that Orta met her burden of proof for relocation with the child, we reverse.

Section 61.13001(7) of the Florida Statutes governing relocation requests expressly states that no “presümption in favor of or against a request to relocate with the child” arises simply because a “move will materially affect the current schedule of contact, access, and time-sharing with the nonrelocating parent” and that in determining whether to permit a requested relocation “the court shall evaluate all of the following” criteria:

(a) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent or other person proposing to relocate with the child and with the nonrelocating parent, other persons, siblings, half-siblings, and other significant persons in the child’s life.
(b) The age and developmental stage of the child, the needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.
(c) The feasibility of preserving the relationship between the nonrelocating parent or other person and the child through substitute arrangements that take into consideration the logistics of contact, access, and time-sharing, as well as the financial circumstances of the parties; whether those factors are sufficient to foster a continuing meaningful relationship between the child and the nonrelocating parent or other person; and the likelihood of compliance with the substitute arrangements by the relocating parent or other person once he or she is out of the jurisdiction of the court.
(d) The child’s preference, taking into consideration the age and maturity of the child.
(e) Whether the relocation will enhance the general quality of life for both the parent or other person seeking the relocation and the child, including, but not limited to, financial or emotional benefits or educational opportunities.
(f) The reasons each parent or other person is seeking or opposing the relocation.
(g) The current employment and economic circumstances of each parent or other person and whether the proposed relocation is necessary to improve the economic circumstances of the parent or other person seeking relocation of the child.
(h) That the relocation is sought in good faith and the extent to which the objecting parent has fulfilled his or her financial obligations to the parent or other person seeking relocation, including child support, spousal support, and marital property and marital debt obligations.
(i) The career and other opportunities available to the objecting parent or other person if the relocation occurs.
(j) A history of substance abuse or domestic violence as defined in s. 741.28 or which meets the criteria of s. 39.806(l)(d) by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.
(k) Any other factor affecting the best interest of the child or as set forth in s. 61.13.

§ 61.13001(7), Fla. Stat. (2010).

As the parent seeking relocation, Orta carried the burden of demonstrating that the relocation was in the child’s best interest, and the court’s findings of fact demonstrate that Orta more than satisfied that burden. Suarez on the other hand never demonstrated why the proposed relocation was not in the child’s best interest:

Burden of proof. — The parent or other person wishing to relocate has the burden of proving by a preponderance of the evidence that relocation is in the best interest of the child. If that burden of proof is met, the burden shifts to the nonrelocating parent or other person to show by a preponderance of the evidence that the proposed relocation is not in the best interest of the child.

§ 61.13001(8), Fla. Stat. (2010). Indeed, virtually without exception, the trial court found each of the statutory factors either in equipoise or in favor of relocation.

In that section of the final judgment addressing “Factors Bearing In Petition For Relocation,” as to the nature, quality, extent of involvement, and duration of the child’s relationship with the parent or other person proposing to relocate with the child and with the nonrelocating parent, other persons, siblings, half-siblings, and other significant persons in the child’s life, section 61.13001(7)(a), the court found that this child had enjoyed a close relationship with Orta from birth, that is, for the entirety of this two year-old’s life and that in the months after Orta relocated, the child also had developed a close and loving relationship with Suarez.

As to the age and developmental stage of the child, the needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child (section 61.13001(7)(b)), the trial court recognized that while some changes are inherent in any relocation no significant or permanent adverse impacts to relocating this child had been identified.

No consideration was accorded by the court below to this child’s preference, given that he is only two years old. See § 61.13001(7)(d), Fla. Stat. (2010).

As to a history of substance abuse or domestic violence, including consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation (section 61.13001(7)(j)), none was found.

As to the remaining criteria, both the record and the final judgment itself confirm that relocation was surely in the best interest of this child. See § 61.13001(7)(e), Fla. Stat. (2010) (requiring the court below to consider “[wjhether relocation will enhance the general quality of life for both the parent ... seeking relocation and the child, including, but not limited to, financial ... benefits ”) (emphasis added); § 61.13001(7)(f), Fla. Stat. (2010) (requiring the court below to consider the “reasons each parent ... is seeking ... relocation”); § 61.13001(7)(g), Fla. Stat. (2010) (requiring the court below to consider the “current employment and economic circumstances of each parent and whether the proposed relocation is necessary to improve the economic circumstances of the parent ... seeking relocation of the child ”) (emphasis added); § 61.13001(7)(h), Fla. Stat. (2010) (requiring the court below to consider whether “the relocation is sought in good faith and the extent to which the objecting parent has fulfilled his or her financial obligation to the parent ... seeking relocation, including child support”); § 61.13001(7)(i), Fla. Stat. (2010) (requiring the court below to consider the “career and other opportunities available to the objecting parent ... if the relocation occurs”).

As the record confirms, Orta is a Venezuelan-educated dentist who could work only in California without re-attending dental school. As a consequence Suarez always had agreed to move with her to California so that she could work. But after Orta got pregnant and then demanded a divorce, Suarez, a self-employed engineer who up to that time saw no impediment to moving his business to California, reneged on his agreement making it impossible for Orta to find meaningful employment. With a post-nuptial agreement in hand in which Orta waived support for herself, Suarez took the position that he could not move his business to California and misrepresented his income as being only $1600 per month, rather than the $8000 per month he had always earned in the past. This left Orta stranded here with her son with less than $800 a month in income and $350 a month in child support, and left her no choice but to seek and to take employment in California, the only place she could earn a living to support herself and her son. On these facts alone relocation should have been granted. Additionally, when it became apparent to Suarez immediately before the final hearing that he would have to show that he could support this child as well as Orta now could, he suddenly showed an income of $8000 per month, rather than the paltry $1600 he had been claiming.

We need look no further than the final judgment itself to confirm both these facts and that based on them relocation should have been granted:

As between the two parties, the Father clearly has the more flexible work schedule. But the Father found himself in a quandary: he needed to acknowledge a schedule which was flexible enough to enable him to travel often to California (for the Mother to timeshare on a regular and extended basis with the child) but could not acknowledge having a business or clientele so flexible that he could himself relocate to California.
As a practical matter, California is the only state in the United States where [the Mother] can currently practice dentistry. The Father claimed that the Mother could work in Miami as a dental hygienist. The evidence does not support this claim, given the Mother’s evidence of injury (and worker’s compensation claim) that prevents her from working as a dental hygienist. Even if the Mother could work as a dental hygienist (which this Court finds is not supported by the credible evidence), the Mother has significantly more opportunities and greater upside income potential as a practicing dentist. The financial opportunities for the Mother are significantly greater in California than in Florida.
The Court finds that the Mother’s relocation [request] was made in good faith, and her request for the relocation of the minor child was also made in good faith. As discussed earlier, the Mother’s move to California to practice dentistry was pursuant to a plan and agreement between the Father and Mother, prior to the child’s birth. The Father’s testimony was inconsistent at best in this regard and was generally not credible. The Father’s claim that it was the Mother, and not the Father, who “changed her mind”, is not believable given the other testimony and evidence in the case. The move by the Mother to California is certainly necessary for her to continue her career as a dentist.
This is perhaps the greatest inequity in the case. In terms of equity between the Father and the Mother, the Court finds that the Father and Mother in fact had an agreement to move to California so the Mother could continue her career as a dentist. The Mother acted upon this agreement, studying, preparing for and taking the exam so that she could be properly licensed in California. The Mother relied to her detriment on the agreement, and when the Father changed his mind (unreasonably, this Court concludes) the Mother was left with the Hobson’s choice of staying in Miami with her child but without any chance of practicing dentistry (without going back to school) or move to California where she had a good job offer, continue her career in dentistry, and hope that the child could relocate to California (either by the Father’s agreement to do so or by court order).

Despite these determinations, the court below, citing to section 61.13001(T)(c), inconsistently concluded that “the Court believes that the best interests of the child are currently served by the child remaining in Miami and following a timesharing plan as set forth in this Final Judgment, as least given the parent’s respective work schedule and relative flexibility, and given the child’s current school schedule, age, and developmental stage.” Section 61.13001(7)(c) deals with (1) whether substitute visitation arrangements may be made taking “into consideration the logistics of contact, access, and time sharing, as well as the financial circumstances of the parties” so that a meaningful relationship between the non-relocating parent and the child may be fostered and preserved and (2) whether the relocating parent is likely to comply with substitute arrangements after relocation. As to these considerations, the record and the final judgment confirms that Suarez’ work schedule is flexible while Orta’s is not, which allows Suarez more latitude for visiting with this child both in Miami and in California:

The Father lives in Miami, while the mother lives in San Diego. Given the flexible schedule of the Father, he has the ability to travel to San Diego with much greater frequency than the Mother’s ability to travel from San Diego to Miami. This factor would seem to weigh in the Mother’s favor; if the child remains with the Father in Miami, the Mother would have a limited ability to travel to Miami to exercise timesharing with the child.

The record and final judgment also confirm that both parties are financially and otherwise capable of time-sharing despite the distances involved in this case and that both parties are capable of and have successfully been complying with substitute arrangements for bi-coastal visitation. Thus, as to section 61.13001(7)(c), the court’s findings provide no barrier to the move sought, and the balance of the court’s findings as to each of the factors identified in section 61.13001(7) overwhelmingly supported granting the motion for relocation.

Moreover, the findings of fact contained in the “parenting plan” portion of the order likewise support the conclusion that the move was in the child’s best interests. Before the court was the concurrent request for a “parenting plan” under section 61.13(3) of the Florida Statutes. In its order, the court tackled the parenting plan first but specifically found that its findings of fact were applicable to both issues. Considering the provisions of section 61.13(3), the court found a number of the enumerated factors as between the parties to be in equipoise; the balance however weighed heavily in favor of the child’s move.

The court’s findings as related to section 61.13(3)(a), “[t]he demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required,” are directly applicable to section 61.13001(7)(c), and demonstrate that it was Orta who was the parent who would best “foster a continuing meaningful relationship between the child and the nonrelocating parent.” While both parties were fairly good at time sharing, Orta was the parent who most consistently fostered a close relationship between the other parent and the parties’ child, this despite circumstances which might have encouraged her to act otherwise:

The Mother testified, and this Court finds credible, that the Father did not want children and expressed those feelings both in word and deed toward the Mother during the late stages of the pregnancy and immediately after the Mother gave birth to the child. When the child was first born, the Father would not allow the child to sleep in the parties’ bedroom or permit the Mother to feed the child in the parties’ bedroom. The Father complained that the child’s crying and waking up for feeding was affecting his sleep and therefore his work. The Mother and child began sleeping in a separate bedroom. It is clear that, during the first months of the child’s life, the Mother was the primary (and sometimes exclusive) parent: During this time (and in fact throughout the child’s life) the Mother has demonstrated a significant capacity and disposition to facilitate and encourage a close and continuing parent-child relationship between herself and her child. The Mother has also demonstrated a capacity and disposition to encourage such a relationship between the child and his Father.

(Emphasis added). No similar capacity and disposition was found as to Suarez. The court below also rejected as not credible Suarez’ claim that Orta had attempted to thwart his relationship with his son:

The Father’s capacity and disposition to facilitate and encourage a close and continuing parent-child relationship during the early months of the child’s life was not nearly as significant. The Father’s claims that the Mother attempted to prevent or thwart the Father’s participation in the care of the child after his birth are not credible or supported by credible evidence.

The court’s findings addressing section 61.13(3)(c), “[t]he demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent,” again directly support the conclusion that under section 61.13001(3)(a), Orta carried her burden of showing the move was in the child’s best interest considering the “quality, extent of involvement, and duration of the child’s relationship with the parent or other person proposing to relocate with the child and with the nonrelocating parent.” The trial court found that at all times Orta put the needs of her child ahead of her own, whereas, Suarez always had put his needs and desires above those of his child:

The credible evidence leads this Court to conclude that, in the months after the child was born, the Mother clearly demonstrated a capacity and disposition to determine, consider and act upon the needs of the child as opposed to the needs or desires of the parent.
One of the contested issues was the Mother’s move to California, and what prompted it. The Father contended that he and the Mother never had an agreement to move to California. It was implied by the Father, if not expressed, that the Mother’s decision to move to California demonstrates selfishness on her part, or at least a desire to place her needs or, desires over the needs or desires of the child.
However, the credible evidence establishes that the Mother and Father had in fact agreed to move to California so the Mother could practice dentistry in California. The evidence of this was clear and convincing, from the parties’ three separate trips to California (each for a period of 4-6 weeks), the Mother’s taking of preparatory courses and sitting for the two parts of the exam, and the fact that the parties on their last trip actually looked for an area to live when they moved. While they put these plans on hold after the Mother became pregnant, it was the Father who changed his mind and refused to move to California. This left the Mother in an untenable position. The only place she can practice dentistry in the United States (without going through dental school again) is California. As between the parties, it was the Father, not the Mother, who acted in his own self-interest.
As described earlier, the Father demonstrated little capacity and disposition to determine, consider and act upon the needs of the child as opposed to his own needs and desires, at least during the pregnancy and immediately following the birth of the child. The credible evidence demonstrates that the Father did not want to have a child and his actions toward the end of the pregnancy, and immediately after the child’s birth, appears to reflect those feelings.

(Emphasis added).

Additionally while the trial court found no evidence that either parent knowingly provided false information of domestic abuse, when addressing section 61.13(3)(n), relevant to section 61.13001(7)(j), it did conclude that Suarez had engaged in emotional abuse:

Judge Karan did state on the record that she did not believe there was evidence that the Father was “a batterer.” This Court is likewise unconvinced that the credible evidence establishes that the Father committed an act of physical violence upon the Mother. While there may have been one or more physical confrontations between the parties, the Court is unable to determine with any degree of confidence what happened during those confrontations.
However, domestic abuse can occur in many ways, physical violence being only one. Emotional abuse, while leaving no visible scars, can often produce lasting injury. The Court concludes that the credible evidence establishes that the Father, during the late stages of the Mother’s pregnancg, and immediately after birth of the child, engaged in acts which can fairly be characterized as emotional abuse, though not rising to the level of domestic violence. While this conduct cannot ever be condoned, the Court believes this conduct was short-lived and there is no evidence that such conduct has continued or is likely to continue, or that this conduct had any effect upon the child.

(Emphasis added). This can hardly be said to redound in favor of the child remaining in Miami.

Again addressing the parenting tasks undertaken by each parent and their reliance on third party caregivers under section 61.13(3)(o), but also directly applicable to section 61.13001(7)(a), the final judgment confirms that before litigation began Orta was the sole caregiver but after she had to move to California, Suarez has cared for this child, but only with a significant and worrisome reliance on third parties:

The Court finds not credible the testimony of the nanny and Father regarding the reasons why the nanny traveled with the Father and child to California during the Mother’s timesharing. The reason given (the Father was suffering from a cold and did not want the child to get sick) was inconsistent with the nanny and Father’s other testimony about the Father’s activities with the child (during which the child would be exposed to the Father and his alleged ailment). The Court concludes that the reason the nanny came with the Father during the trip to California was for the nanny to assist in caring for the child. This causes the Court some concern whether the Father is being entirely truthful regarding the extent to which the nanny has undertaken parenting responsibilities during the litigation and the extent to which she will be called upon to do so in the future.

(Emphasis added).

The trial court also determined that Suarez’ claim that he spent considerable time with this child was undercut by a video showing a nanny caring for the child on a specific day on which Suarez claimed that he was the caregiver:

The video did, however, contradict the Father’s prior testimony (given in a deposition) that he had spent a specific afternoon with his child at the pool. It is clear from the video that, on the day in question, the Father was not with the child at the pool for any part of the afternoon. The Mother argued this contradiction was significant because the Father has maintained that he spends a considerable amount of each day with the child; this video, on at least this one occasion, undercuts the Father’s claim.

The importance to be attached to the parties’ own pre-litigation division of labor is stressed not only in section 61.13(3)(o), but in our case law as well. This court in Young v. Hector, 740 So.2d 1153, 1163 (Fla. 3d DCA 1998) (en banc), recognized, it is not who has the child last or who may most conveniently care for a child that controls with whom a child should best live:

In its determination as to the best interests of the minor children, the trial court obviously deemed it more important to assess the children’s time spent with each of the parents throughout the course of the marriage and not merely focus on the years immediately preceding the announcement of the dissolution action. That is, the trial court, in an effort to maintain continuity, could have legitimately determined that the children’s best interests dictate that they remain with the parent who had continuously been there to care for their needs throughout their young lives rather than the parent who had devoted a substantial amount of time with them perhaps only when it was convenient and/or opportunistic to do so.

(Emphasis added). Thus, as Judge Schwartz states in his dissent in that case, most persuasive of what should occur post-litigation is the parties’ own pre-litigation arrangement, i.e. the parent who consistently cared for a child for most of his or her life:

[T]he childrens’ parents, who know and care most about their welfare, had themselves established an arrangement prior to the dissolution as a part of which, upon any fair assessment, [Young] was the primary caretaker. See Principles of the Law of Family Dissolution: Analysis and Recommendations (Am. Law Inst.1998)(Tentative Draft No. 3, Part I) § 2.03(6). ... There is simply no reason for a court to tamper with what has worked so well. See Principles of the Law of Family Dissolution: Analysis and Recommendations (Am. Law Inst.1998) (Tentative Draft No. 3, Part I) § 2.09(1). This is not only because it is almost always better to preserve a known good rather than to risk what the unknown future may bring, see Rumph v. V.D., 667 So.2d 998, 998 (Fla. 3d DCA 1996)(Schwartz, C.J., specially concurring), but, much more important, because the children are themselves entitled to stability in their lives and routine[.]

Id., at 1172-73 (Schwartz, J., dissenting) (footnotes omitted).

In this case, the pre-litigation primary caregiver indisputably was Orta. It was only by virtue of Suarez’ refusal to relocate as agreed; his misrepresentation of his income; and his tactics in delaying resolution of Orta’s relocation requests, that this arrangement changed. As the final judgment confirms, but for Suarez’ actions, this child would have been with his mother:

This is perhaps the greatest inequity in the case. In terms of equity between the Father and the Mother, the Court finds that the Father and Mother in fact had an agreement to move to California so the Mother could continue her career as a dentist. The Mother acted upon this agreement, studying, preparing for and taking the exam so that she could be properly licensed in California. The Mother relied to her detriment on the agreement, and when the Father changed his mind (unreasonably, this Court concludes) the Mother was left with the Hobson’s choice of staying in Miami with her child but without any chance of practicing dentistry (without going back to school) or move to California where she had a good job offer, continue her career in dentistry, and hope that the child could relocate to California (either by the Father’s agreement to do so or by court order). Were the Court to decide ... based upon the equities between the parents, this decision would be a relatively easy one. However, the decision must ultimately rest upon a determination of the best interest of the child.

Ultimately, the trial judge devised its parenting plan relying chiefly on a determination not to ‘upset the apple cart’ that the father himself in good measure had created:

[Tjhere can be little doubt that a relocation from Miami to San Diego would result in some impact on the child, even if temporary and insignificant. He would have to acclimate to a new daily routine and schedule, become accustomed to a new home and surroundings, and adjust to the fact that he would not see his Father on is daily basis. These are the inevitable changes with most relocations, of course, but cannot be ignored.

Of course, acclimating to a new daily routine and schedule, becoming accustomed to a new home and surroundings, and adjusting to no longer being with the parent with whom the child previously lived, are inherent in every relocation, and again exactly the type of consideration that section 61.13001(7), expressly directs should not be determinative in considering a contested motion for relocation. See Miller v. Miller, 992 So.2d 346, 349 (Fla. 3d DCA 2008) (rejecting the trial courts reliance as a basis for denial of relocation on the stress and disruption to the child caused by the divorce and long-distance separation).

In sum, the trial court’s findings of fact addressing both sections 61.13(3) and 61.13001(7), confirm that Orta more than carried her burden of proving that relocation to California was in this child’s best. By contrast, Suarez failed to show by a preponderance of the evidence that the proposed relocation was not in the child’s best interest. Absent such a showing, the trial court should have granted Orta’s motion for relocation and devised a parenting plan in accordance with that ruling. See § 61.13001(8), Fla. Stat. (2010); Miller, 992 So.2d at 349 (confirming that once the parent seeking to relocate meets his/her initial burden, the burden shifts to the non-relocating parent to show by a preponderance of the evidence that the proposed relocation is not in the child’s best interest).

Accordingly, that portion of the final judgment denying Orta’s relocation request is reversed and remanded to allow relocation forthwith and to devise a parenting/time sharing plan predicated on this.

CORTIÑAS, J., concurs in result only.

      . Orta testified that during the first three years of the marriage she travelled frequently to Venezuela first while her mother was terminally ill, and then when her father became terminally ill.

      . We acknowledge the limited standard of review applicable to such orders. See Crombie v. Williams, 51 So.3d 559, 560 (Fla. 3d DCA 2010) ("We find no abuse of discretion in the trial judge's decision that staying in South Florida was in the child's best interest and denying relocation.”); Young v. Hector, 740 So.2d 1153, 1157 (Fla. 3d DCA 1998) (" 'A trial court’s determination of custody "is subject to an abuse of discretion standard of review.' Sullivan v. Sullivan, 668 So.2d 329, 330 (Fla. 4th DCA 1996) (citing Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980))”); accord Beharry v. Drake, 52 So.3d 790, 793 (Fla. 5th DCA 2010).

      . The trial court did not otherwise address section 61.13(3)(m), which provides for consideration of:
      (m) Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect, regardless of whether a prior or pending action relating to those issues has been brought. If the court accepts evidence of prior or pending actions regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect, the court must specifically acknowledge in writing that such evidence was considered when evaluating the best interests of the child.

      . Section 61.13(3)(o), provides for consideration of:
      The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties.

      . The outcome below perhaps best explains why it is imperative that relocation motions be addressed at the earliest opportunity and why section 61.13001 provides for temporary relocations. Section 61.13001(6), Florida Statutes (2010) provides:
      (6) Temporary order.-

      (b) The court may grant a temporary order permitting the relocation of the child pending final hearing, if the court finds:
      1. That the petition to relocate was properly filed and is otherwise in compliance with subsection (3) [a petition to relocate has been filed in compliance with the statute and served upon the other parent]; and

        2. From an examination of the evidence presented at the preliminary hearing, that there is a likelihood that on final hearing the court will approve the relocation of the child, which findings must be supported by the same factual basis as would be necessary to support approving the relocation in a final judgment.

        (c) If the court has issued a temporary order authorizing a party seeking to relocate or move a child before a final judgment is rendered, the court may not give any weight to the temporaiy relocation as a factor in reaching its final decision.

      (d) If temporary relocation of a child is approved, the court may require the person relocating the child to provide reasonable security, financial or otherwise, and guarantee that the court-ordered contact with the child will not be interrupted or interfered with by the relocating party.
      (Emphasis added). The importance to be accorded the parties' pre-litigation actions also is acknowledged by section 63.13001(6)(c)’s provision that events occurring after a prejudgment relocation has taken place are not to be accorded any weight in the final determination. Here, circumstances arising after litigation was initiated certainly drove the decision. See generally Mian v. Mian, 775 So.2d 357, 358 (Fla. 2d DCA 2000) ("[I]t is necessary for a trial judge to consider the relocation factors at the earliest opportunity because of the wide-ranging and intense ramifications that moving can have upon the best interest of the child.”); accord Shafer v. Shafer, 898 So.2d 1053, 1057 (Fla. 4th DCA 2005).

      . Section 61.13001, provides:
      (7) No presumption; factors to determine contested relocation. — A presumption in favor of or against a request to relocate with the child does not arise if a parent or other person seeks to relocate and the move will materially affect the current schedule of contact, access, and time-sharing with the nonrelocating parent or other person.


source: Caselaw Access Project

author: ROWE, J.

license: Public Domain

text:
    Travis Leroy STRICKLAND, Appellant, v. TIMCO AVIATION SERVICES, INC., a Delaware corporation; Triad International Maintenance Corporation, a Delaware corporation; and Donald Kenneth Joye, d/b/a Joye Painting Service, Appellees.
    No. 1D10-4635.
    District Court of Appeal of Florida, First District.
    June 30, 2011.
    Rehearing Denied Aug. 23, 2011.

      Robert O. Stripling, Jr. of Stripling & Stripling, P.A., Gainesville; Philip M. Burlington and Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach, for Appellant.
    Michael G. Shannon, John M. Murray, and Jennifer M. Clark of Murray, Morin & Herman, P.A., Tampa, for Appellees.
   ROWE, J.

This is an appeal of a final summary judgment entered in favor of Appellees TIMCO Aviation Services, Inc. (TIMCO) and TRIAD International Maintenance Corporation (TRIAD) against Appellant, Travis Strickland, who was the plaintiff below in this personal injury action. We affirm the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

Strickland was employed by Joye Painting. Joye Painting entered into a contract with TIMCO to perform work on an airplane hangar operated by TIMCO. The proposal submitted to TIMCO provided that Joye Painting would pressure wash the roof of the hangar and perform repair and maintenance on the skylights on the roof.

Joye Painting used a chlorine mixture to pressure wash the roof surface. Strickland testified that he typically pressure washed from the top of the roof down. However, at the time of the accident, he was walking horizontally across the roof to reach a spot he had missed. Strickland stated that mist got behind his glasses and into his eyes, causing them to burn. He opened his eyes, but he could not see; “it was like a whole bunch of white specks were on [my eyes].” Strickland explained that it was at this point that he put his foot down to collect himself. When he did so, Strickland stepped on a skylight and fell five stories to the ground.

As a result of injuries he sustained from the fall, Strickland filed suit against TIM-CO and Donald Kenneth Joye, d/b/a Joye Painting Services, alleging that he was injured while working on premises owned by TIMCO and that TIMCO’s negligence was the cause of his injuries. Strickland asserted that TIMCO was negligent because the skylights were indistinguishable-from the roof because of their color, could not withstand 200 pounds of perpendicular pressure, and lacked protective guardrails in violation of Occupational Safety and Health Administration (“OSHA”) and industry standards. Strickland also alleged that TIMCO negligently furnished him with inadequate safety equipment, specifically an inadequate fall protection system. Strickland alleges that he was given a safety harness that lacked a device known as a “rope grab” which would have enabled him to control the amount of slack rope and could have prevented his fall.

TIMCO moved for summary judgment contending that no act or omission on TIMCO’s part caused or contributed to Strickland’s accident. TIMCO asserted that Strickland was an employee of an independent contractor, Strickland knew of the existence of the skylights, and Strickland appreciated the potential consequences of stepping on a skylight. After hearing argument from the parties, the trial court granted the motion for summary judgment in favor of TIMCO.

ANALYSIS

A trial court’s grant of a motion for summary judgment is appropriate where there “is no genuine dispute as to any issue of material fact and the moving party is entitled to judgment as a matter of law.” Lomack v. Mowrey, 14 So.3d 1090, 1091 (Fla. 1st DCA 2009). In negligence actions, the question of the duty owed to a plaintiff is always one of law and never one for the jury. Goldberg v. Florida Power & Light Co., 899 So.2d 1105, 1110 (Fla.2005). Accordingly, where a defendant establishes as a matter of law, that no duty is owed to the plaintiff, the trial court may properly grant summary judgment in favor of the defendant. See Jenkins v. W.L. Roberts, Inc., 851 So.2d 781 (Fla. 1st DCA 2003).

Generally, a property owner who employs an independent contractor to perform work on his property will not be held liable for injuries sustained by the employee of an independent contractor during the performance of that work. Ahl v. Stone Southwest, Inc., 666 So.2d 922, 924 (Fla. 1st DCA 1995). However, there are two exceptions to the general rule. An owner can be held hable for damages sustained by an employee of an independent contractor where (1) the property owner actively participates in or exercises direct control over the work; or (2) the property owner negligently creates or negligently approves a dangerous condition. See id. Moreover, the property owner must maintain the premises in a reasonably safe condition for business invitees, including employees of independent contractors. Pertl v. Exit Information Guide, Inc., 708 So.2d 956, 957-58 (Fla. 1st DCA 1997).

Under the first exception to the general rule, “[[liability may be imposed if the owner actively participates and controls the manner in which the work is performed.” Id. “To impose liability on the owner for retention of control over an independent contractor, there must be such right of supervision or direction that the contractor is not entirely free to do the work his own way.” City of Miami v. Perez, 509 So.2d 343, 346 (Fla. 3d DCA 1987).

Strickland argues that the control exception applies here based on TIM-CO’s inspection of the work performed by Joye Painting and by TIMCO’s provision of a safety harness and man lift to Joye Painting. However, mere inspection by a property owner of an independent contractor’s work does not amount to control of the work or active participation by the property owner. See Skow v. Dep’t of Transp., 468 So.2d 422, 424 (Fla. 1st DCA 1985); cf. Boatwright v. Sunlight Foods, Inc., 592 So.2d 261, 263 (Fla. 3d DCA 1991). Further, by providing Joye Paint-mg with a safety harness for use in their work TIMCO did not participate in, influence, or exercise direct control over the work performed by Joye Painting and its employees. Compare St. Lucie Harvesting and Caretaking Corp. v. Cervantes, 639 So.2d 87, 40 (Fla. 4th DCA 1994) (directing “the independent contractor in regard to the amount of fruit to be harvested and from which grove” did not constitute active control), with Cadillac Fairview of Florida, Inc. v. Cespedes, 468 So.2d 417, 421 (Fla. 3d DCA 1985) (having “a staff of field supervisors who oversaw, directed and coordinated the construction project,” and a superintendent who made daily progress reports and “sometimes became physically involved in the construction” constitutes active participation).

Under the second exception to the general rule, a property owner may be liable for injuries sustained by an employee of an independent contractor “if the owner performs one or more specific acts of negligence.” Ahl v. Stone Southwest, Inc., 666 So.2d 922, 924 (Fla. 1st DCA 1995). Specific acts of negligence include “negligently creating or negligently approving the dangerous condition resulting in the injury ... to the contractor’s employee.” City of Miami v. Perez, 509 So.2d 343, 346 (Fla. 3d DCA 1987) (citing Conklin v. Cohen, 287 So.2d 56, 60 (Fla.1973)); accord Houk v. Monsanto Co., 609 So.2d 757, 759 (Fla. 1st DCA 1992).

However, a property owner will be held liable for negligence only with regard to those dangers that are not known to the independent contractor or could not have been discovered through the exercise of due care. Florida Power & Light Co. v. Robinson, 68 So.2d 406, 411 (Fla.1953); Peril v. Exit Information Guide, Inc., 708 So.2d 956, 957-58 (Fla. 1st DCA 1997). If the property owner knows that an actual or potential danger exists on the property, the property owner has an affirmative duty to warn the independent contractor engaged to perform work on the property of that dangerous condition or to use ordinary care to furnish protection against the danger. Robinson, 68 So.2d at 411. But where the danger is open and apparent or readily ascertainable, the property owner is under no duty to warn and will not be held liable for injuries sustained by the employee of an independent contractor in performing work under the contract. See Roberts v. Dacra Design Associates, Ltd., 766 So.2d 1184, 1185 (Fla. 3d DCA 2000) (property owner not liable for injury to repairman on construction site who fell on a piece of pipe lying on the ground because repairman should have anticipated the presence of construction materials and could have discovered the potential hazards through a reasonable inspection).

However, even where a dangerous condition is apparent or where the property owner has warned the independent contractor of a dangerous condition existing on the premises, if the employee is injured not in the course of the work the contractor was hired to perform, but rather while the employee is attempting to access the premises to perform that work, courts will analyze the duty of the property owner to the employee of the independent contractor under the separate analysis applied to business visitors, or invitees. In Ahl v. Stone Southwest, Inc., 666 So.2d 922 (Fla. 1st DCA 1995), the employee of the independent contractor, George Ahl was hired to perform maintenance work on machines at the property owner’s paper mill. Id at 923. In preparation for the maintenance work, the property owner’s employees hosed down the machines, covering the floor in a mixture of water, grease, and oil. Id. Ahl noticed the condition of the floor and reported it to his supervisor. Id. Although the supervisor informed the property owner of the condition of the floors, the property owner did not do anything to remedy it. Id. In order to carry out the assigned task, Ahl placed a ladder in the pool of water next to the machine. Id. While performing his duties, Ahl slipped from the ladder and injured his back. Id. Under those facts, where Ahl accessed the premises and the floor in order to perform work on the machines, the court reversed the summary judgment order and concluded that a fact question remained regarding whether the property owner “committed specific acts of negligence by cleaning the machinery and leaving water and oil on the floor.” Id. at 925; accord Houk v. Monsanto Co., 609 So.2d 757, 759-61 (Fla. 1st DCA 1992).

This court similarly applied a business invitee analysis to determine the duty owed by a property owner to an employee of the independent contractor in Pertl v. Exit Information Guide, Inc., 708 So.2d 956 (Fla. 1st DCA 1997). There, the court reversed the trial court’s grant of summary judgment based on its conclusion that the record was unclear whether the property owner had a duty to warn the employee of an independent contractor of the dangerous condition on the premises, namely skylights located on the roof of a building. 708 So.2d at 957. In that case, the employee of the independent contractor fell through a skylight while painting the roof of a building owned by the property owner. Id. The property owner had contracted with the independent contractor to paint the roof. However, there was no evidence that the contractor knew that the roof contained skylights, that the contractor knew of the location of the skylights, or that the contract between the property owner and the independent contractor required repair, maintenance, or other work on the skylights. Based on those facts, the court held that material issues of fact existed as to whether the property owner had constructive knowledge of the defective skylights and whether the property owner had a duty to warn the contractor of the skylights. Id. at 958.

In contrast, where performance of the contract contemplates that the employee of the independent contractor will have contact or directly work on or maintain the condition on the property which causes the employee injury, courts have determined the property owner’s duty by applying the general rule governing duties owed to independent contractors and their employees, rather than business invitees. For example, in Morales v. Weil, 44 So.3d 173 (Fla. 4th DCA 2010), an independent contractor was injured while demolishing a damaged roof when he stepped through a weakened roof panel. Id. at 175-76. The court noted that the property owner of a damaged roof had no duty to maintain the roof in a reasonably safe condition for the independent contractor because the employee was “injured by one of the incidental hazards which made the job dangerous.” Id. at 179; accord Johnson v. Boca Raton Comty. Hosp., Inc., 985 So.2d 593, 596-97 (Fla. 4th DCA 2008) (providing that “[a] landowner is under no duty to protect an employee of an independent contractor from the very hazard created by the doing of the contract work”; this is because the landowner “may assume that the worker, or his superiors, are possessed of sufficient skill to recognize the degree of danger involved and to adjust their methods of work accordingly” (citations and internal quotation marks omitted)).

In this case, it is undisputed that TIMCO hired Joye Painting to pressure wash the roof of the hangar and maintain and/or repair the skylights on the roof of the hangar. Joye Painting was specifically employed by TIMCO to repair, maintain, or perform work on the skylights by: (1) applying a sealer compound around the surrounding edges of the skylights; (2) sealing the panels with a clear fiberglass sealer and (3) sealing the seams of the skylights with mesh tape, compounded over with an elastomeric sealer. Strickland argues that TIMCO should be liable for the injuries he sustained when he fell through one of the skylights and advances several theories to support his claims of negligence. First, Strickland argues that TIMCO negligently approved a dangerous condition based on the appearance and condition of the skylights. Second, Strickland asserts that TIMCO negligently provided Strickland with defective equipment. Each of Strickland’s arguments is without merit.

Strickland contends that the skylights constituted a dangerous condition because they were difficult to locate and detect, even before they were exposed to the chlorine solution used by Joye Painting to pressure wash the roof. However based on the terms of the contract with TIMCO that required maintenance and repair of the skylights, Joye Painting was necessarily on notice of the existence of the skylights. Further, because of the work contemplated under the contract, it was incumbent upon Joye Painting to ascertain the location of the skylights, to determine their condition in order to repair them, and to navigate around them when pressure washing the roof. The danger of falling through the skylights was a recognized risk attendant to performance of work under the contract. Indeed, it is undisputed that Strickland knew he was not to. step on the skylights, was repeatedly warned not to do so by his supervisor, and Strickland himself instructed a new employee to “stay off the skylights.”

Despite his knowledge of the existence and location of the skylights Strickland maintains that TIMCO can be held liable in negligence because the skylights were not in compliance with OSHA Regulation 29 C.F.R. 1910.23(e)(8) because they were not enclosed by protective guardrails and they could not withstand 200 pounds of perpendicular pressure. However, this argument is flawed in two respects. First, the regulation upon which Strickland relies, Part 1910 of Title 29, is a general regulation and does not apply in this case; rather, this regulation is preempted by the specific standards applicable to the construction industry contained in Part 1926 of Title 29. See Ownby v. Tennessee Farmers Co-op. Corp., No. M2008-00878-COA-R3-CV, 2009 WL 1392574, at *5 (Tenn.Ct.App. May 18, 2009) (“Under the OSHA regulatory scheme, the general industry standards apply to a working situation unless preempted by industry-specific standards.”); 29 CFR § 1910.12(a) (providing that Part 1926 applies to construction work). The work performed under the contract between TIMCO and Joye Painting is instead governed by the regulations pertaining to the construction industry because construction is defined to include painting. See 29 CFR § 1910.12(b). Second, the plain language of Part 1910.23 demonstrates that it only applies to walking-working surfaces and is not applicable to skylights on roofs. Cf. 29 C.F.R. § 1910.23. Strickland’s argument that the skylights were defective in their design because they failed to withstand 200 pounds of perpendicular pressure is insufficient to establish the existence of disputed material facts because Strickland fails to allege TIMCO knew or should have known of this alleged defect in the skylights which was latent and not readily ascertainable.

We, therefore, reject each of Strickland’s arguments that the appearance or condition of the skylights was a dangerous condition created or approved by TIMCO. The danger of falling through the skylights was an obvious hazard in light of Strickland’s knowledge that the skylights existed and Joye Painting’s obligation under the contract to repair and maintain them. Moreover, TIMCO plainly had no duty to warn Strickland of the obvious hazard or danger posed by the skylights since that hazard was an integral part of the work that Joye Painting was hired to perform.

Strickland also asserts that TIM-CO was negligent when it provided him with a safety harness not equipped with a rope grab and when it permitted Joye Painting’s employees to use its man lift to access the roof. Courts have found that a property owner may be liable in negligence where the owner fails to use reasonable care when furnishing an employee of an independent contractor with tools or equipment to use in performing work under the contract. See Green v. Sansom, 41 Fla. 94, 25 So. 332, 335-36 (1899); Ortiz v. Lorie, 921 So.2d 868, 870 (Fla. 4th DCA 2006); Tillery v. Standard Sand & Silica Co., 226 So.2d 842, 845 (Fla. 2d DCA 1969).

Here, although the parties dispute whether Strickland was wearing a safety harness furnished by TIMCO at the time of the accident, there is no record evidence that the safety harness or man lift were, in and of themselves, dangerous or defective. Rather, Strickland argues that when TIM-CO furnished the safety harness to Joye Painting for use by its employees TIMCO was also obliged to equip the safety harness with a “rope grab.” But not only was TIMCO under no obligation to furnish the independent contractor or its employees with the equipment necessary to perform the job properly and safely, cf. section 440.02(15)(d)(l)a.(I), Florida Statutes, (providing that one of the factors in determining whether an individual is an employee or an individual contractor is whether the individual has their own equipment); 4139 Mgmt. Inc. v. Dep’t of Labor & Employment, 763 So.2d 514, 518 n. 1 (Fla. 5th DCA 2000) (observing that “an owner can furnish some tools necessary without jeopardizing the independent contractor status of its workers”), the undisputed record reflects that Mr. Joye knew of the danger of his employees using safety harnesses not equipped with rope grabs while working on the roof, and in fact TIMCO, on numerous occasions, warned Mr. Joye of this danger. Because Strickland has not alleged that either the safety harness or man lift was dangerous or otherwise defective, TIMCO cannot be found negligent because it furnished Joye Painting and its employees a safety harness and a man lift, especially where TIMCO specifically warned Joye Painting of the hazard of not using rope grabs while working on the roof.

Because there is no triable issue of material fact regarding TIMCO’s liability as a property owner to Strickland under the facts of this case, the trial court properly granted summary judgment in favor of TIMCO.

AFFIRMED.

WOLF and PADOVANO, JJ., concur.

      . Triad International Maintenance Corporation is a wholly-owned subsidiary of TIMCO Aviation Services, Inc.; these entities will be collectively referred to as TIMCO.

      . The record reflects that at the time of Strickland’s accident, Joye Painting had not secured workers’ compensation coverage for its employees. Additionally, soon after the accident, Joye Painting, a sole proprietorship owned by Mr. Joye, ceased operations and entered into bankruptcy.

      . With respect to the safety harness, Strickland also advances the alternative theory that TIMCO was negligent when it provided him with a safety harness not equipped with a rope grab; this theory is addressed later in the opinion.

      . Strickland's expert witness testified that this regulation applied to the work under contract in this case. However, such testimony does not raise an issue of fact because the determination of the application of federal regulation is a legal question and not a proper matter for expert testimony. Cf. In re Estate of Williams, 771 So.2d 7, 8 (Fla. 2d DCA 2000); Lee County v. Barnett Banks, Inc., 711 So.2d 34, 34 (Fla. 2d DCA 1997); T.J.R. Holding Co. v. Alachua County, 617 So.2d 798, 800 (Fla. 1st DCA 1993); Ownby v. Tennessee Farmers Coop. Corp., No. M2008-00878-COA-R3-CV, 2009 WL 1392574, at *5 n. 2 (Tenn.Ct.App. May 18, 2009).


author: PER CURIAM.

text:
    AMERICAN HERITAGE LIFE INSURANCE COMPANY, Appellant, v. Jeannette C. HALL, Appellee. Jeannette C. Hall, Appellant/Cross-Appellee, v. American Heritage Life Insurance Company, Appellee/Cross-Appellant.
    No. 5D09-3493, 5D09-3555.
    District Court of Appeal of Florida, Fifth District.
    July 1, 2011.
    Rehearing and Rehearing En Banc Denied Aug. 22, 2011.
    T. Geoffrey Heekin, Tracy L. Wenzel and Hilary D. Wilson of Heekin, Malin & Wenzel, P.A., Jacksonville, for Appellant/Appellee/Cross-Appellant.
    Kimberly P. Simoes and Mario B. Si-moes of The Simoes Law Group, P.A., Deland, Shannon McLin Carlyle and Christopher V. Carlyle of The Carlyle Appellate Law Firm, The Villages, for Appel-lee/Appellant/Cross-Appellee.
   PER CURIAM.

The appeal in case number 09-3493 was filed prematurely because the order was not final at the time it was filed. Interamerican Car Rental, Inc. v. O’Brien, 618 So.2d 760 (Fla. 3d DCA 1993). Nevertheless, the order became final when the final judgment was entered in case number 09-3555. Accordingly, we consolidate these appeals, sua sponte, and affirm as to all issues in both appeals.

AFFIRMED.

SAWAYA, TORPY and EVANDER, JJ, concur.


author: RAMIREZ, C.J.

text:
    Dwayne WHIPPLE, as Personal Representative of the Estate of Jaylen Whipple, Appellant, v. D & D TREE FARMS, INC., etc., et al., Appellees.
    No. 3D09-2837.
    District Court of Appeal of Florida, Third District.
    July 1, 2011.
    Rehearing Denied Aug. 26, 2011.

      Ralph 0. Anderson, Weston; Brill Rinal-di Garcia and David W. Brill, Pembroke Pines and Joseph J. Rinaldi, Jr., Weston; Joel S. Perwin, Miami, for appellant.
    Mintzer, Sarowitz, Zeris, Ledva & Meyers, and Raul R. Loredo, Miami, for appel-lees.
    Before GERSTEN, RAMIREZ and EMAS, JJ.
   RAMIREZ, C.J.

Dwayne Whipple, as personal representative of the estate of Jaylen Whipple, appeals to this Court the summary judgment entered on the defendants’ behalf and the Order Denying the Plaintiffs Motion for Rehearing. We reverse because we agree with Whipple that the trial court erred in granting summary judgment for the defendants.

On August 15, 2007, Dwayne Whipple and Kimberlee Whipple took their 7-year-old son Kevin to the hospital and left the decedent, Jaylen Whipple, then 2-years-old, in the care of his aunt, Denise Baker, and his great-aunt, Faustino Poquiz, at the Whipple’s apartment in Royal Palm Gardens. Royal Palm Gardens borders another housing community, Homestead Colony Apartments. These two housing communities are separated by a chain-link fence, which travels the perimeter of, and are owned by and/or controlled by defendant Royal Palm Gardens. The defendant, Swezy Realty, was and is the independent contractor management company of Royal Palm Gardens.

Baker went to retrieve her cell phone charger out of her car. Unbeknownst to her, Jaylen followed her out the front door of the apartment. He crawled under the hedges and through one of the gaps/holes in the chain-link fence into the neighboring Homestead Colony Apartments. Rescue divers later discovered Jaylen submerged a few feet from the shoreline of the lake. He was taken to the hospital and pronounced dead due to drowning.

Whipple filed a wrongful death action against defendants D & D Tree Farms, Inc. d/b/a Tropic Lawn Maintenance, Swezy Properties, et al., and Royal Palm Gardens a/k/a RPG of Homestead, Ltd. and later amended his complaint to add Centennial Management Corporation as a defendant. The complaint alleges that Jaylen died as a result of the defendants’ negligence in failing to properly maintain a boundary line fence on their property in a safe and secure manner.

The defendants filed a motion for summary judgment, which the trial court granted. The trial court then denied Whipple’s motion for rehearing. The trial court concluded, as a matter of law, that the defendants owed no legal duty to Jay-len to properly maintain the fence so as to prevent him from access to the lake. The trial court also concluded that as a matter of law, the defendants’ alleged negligence was not a legal cause of Jaylen’s drowning death.

On appeal, Whipple contends that the trial court committed reversible error in entering summary judgment for the defendants because the court erred in not finding that the defendants are potentially liable, pursuant to the undertaker’s doctrine. We agree.

Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law. Medley Warehouses, LC v. Scottsdale Ins. Co., 39 So.3d 440, 444 (Fla. 3d DCA 2010). This Court reviews summary judgment under a de novo standard of review. Id.

The facts before us demonstrate that the defendants voluntarily undertook to build a perimeter fence around the subject property. The Florida Supreme Court has stated:

In every situation where a man undertakes to act, or to pursue a particular course, he is under an implied legal obligation or duty to act with reasonable care, to the end that the person or property of others may not be injured by any force which he sets in operation, or by any agent for which he is responsible. If he fails to exercise the degree of caution which the law requires in a particular situation, he is held liable for any damage that results to another, just as if he had bound himself by an obligatory promise to exercise the required degree of care. Street’s Foundations of Legal Liability, vol. 1 page 92. And even hvhere a man interferes gratuitously, he is bound to act in a reasonable and prudent manner according to the circumstances and opportunities of the case.’

Banfield v. Addington, 104 Fla. 661, 140 So. 893, 896 (1932) (citations omitted). The Florida Supreme Court has continued to apply this doctrine, known as the “undertaker’s doctrine.” See Union Park Memorial Chapel v. Hutt, 670 So.2d 64, 66-67 (Fla.1996).

Whipple admits that the defendants did not have a duty to erect a fence, but he argues that according to the undertaker’s doctrine, once the fence was built, the defendants had a duty to use reasonable care to maintain that fence. We agree. A question of fact remains whether had the fence been properly maintained, it would have prevented the two-year-old’s access to the lake, in which he drowned. As such, we reverse the summary judgment entered for the defendants, as well as the trial court’s order denying Whipple’s motion for rehearing.

Reversed and remanded for further proceedings.


author: WELLS, Chief Judge.

text:
    B.M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2676.
    District Court of Appeal of Florida, Third District.
    July 6, 2011.

      Carlos J. Martinez, Public Defender, and Scott A. Srebnick and Alex Arteaga-Gomez, Special, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney General, for appellee.
    Before WELLS, C.J., and SHEPHERD, and EMAS, JJ.
   WELLS, Chief Judge.

B.M., a juvenile, was charged with resisting arrest with violence and battery on a law enforcement officer. At trial, he was precluded from adducing evidence that the officer whom he allegedly resisted used excessive force during and following the arrest and about an internal affairs complaint B.M. brought against that officer. We find that the trial court erred in excluding this impeachment evidence:

The Sixth Amendment, as incorporated into the Fourteenth Amendment, guarantees a defendant in a state criminal prosecution the right to a full and fair opportunity to cross-examine prosecution witnesses in order to show their bias or motive to be untruthful. Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988); Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Mosley v. State, 616 So.2d 1129 (Fla. 3d DCA 1993); Caton v. State, 597 So.2d 412 (Fla. 4th DCA 1992). And a defendant also has the right to offer additional evidence to show the bias of prosecution witnesses. See § 90.608(2), Fla. Stat. (1993); see also Diaz v. State, 597 So.2d 368 (Fla. 3d DCA 1992). Therefore, when a prosecution witness is under internal investigation for the incident which gave rise to the charges against a defendant, or when there is a pending civil suit or criminal charge against the witness arising out of the incident, those matters may be inquired into on cross-examination or developed in the defense case. Mosley; Caton; Diaz.

Chadwick v. State, 680 So.2d 567, 568 (Fla. 1st DCA 1996); see also § 90.608(2), Fla. Stat. (2011) (“Any party ... may attack the credibility of a witness by ... [showing that the witness is biased.); Shaw v. State, 831 So.2d 772, 773 (Fla. 4th DCA 2002).

Moreover, because this case involved a “classic swearing match” between the police and B.M., we cannot say that the improper exclusion of the impeachment evidence was harmless. See Chadwick, 680 So.2d at 568 (concluding that because the case involved a “classic swearing match” between the officers and the defense witnesses, the court could not conclude that exclusion of the impeachment evidence was harmless beyond a reasonable doubt); see also Shaw, 831 So.2d at 774 (holding that “where the evidence is based solely on the credibility of conflicting witnesses, the refusal to permit defendant to adduce such evidence cannot be deemed harmless”).

Accordingly, we reverse and remand for a new trial.


text:
    Jonathan A. STOWE, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-5007.
    District Court of Appeal of Florida, First District.
    July 12, 2011.

      Michael Ufferman of the Michael Uffer-man Law Firm, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Jonathan A. Stowe contends multiple convictions and sentences for possession of child pornography based on his possession of a single proscribed item violate constitutional prohibitions against double jeopardy. We accept this contention, reverse the convictions and sentences that constitute double jeopardy, and remand for resen-tencing on the remaining convictions. But we reject — on the authority of Rogers v. State, 33 So.3d 805, 806 (Fla. 1st DCA 2010)—appellant’s argument that the trial court did not have jurisdiction, pursuant to section 943.0435, Florida Statutes (2006), to designate him a sexual offender.

Mr. Stowe was charged with eighteen counts of possession of child pornography, in violation of section 827.071(5), Florida Statutes (2006), which provides:

It is unlawful for any person to knowingly possess a photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, he or she knows to include any sexual conduct by a child. The possession of each such photograph, motion picture, exhibition, show, representation, or presentation is a separate offense.

He entered an open plea of no contest on all eighteen counts, and was convicted on all eighteen counts. At issue here are his convictions on counts four through ten and count fifteen.

“Both the Florida Constitution, Art. I, § 9, Fla. Const., and the federal Double Jeopardy Clause, applicable by virtue of the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), forbid redundant convictions for the same offense.” Henry v. State, 707 So.2d 370, 371 (Fla. 1st DCA 1998). A double jeopardy violation constitutes fundamental error, which may be raised for the first time on appeal. See Grant v. State, 770 So.2d 655, 657 n. 4 (Fla.2000); Kilmartin v. State, 848 So.2d 1222, 1224 (Fla. 1st DCA 2003). Mr. Stowe has not waived the right to argue double jeopardy on this direct appeal. See Novaton v. State, 634 So.2d 607, 609 (Fla.1994); Godfrey v. State, 947 So.2d 565, 567 (Fla. 1st DCA 2006). In fact, he filed a Rule 3.800(b) motion challenging his sentences on double jeopardy grounds, which the trial court denied.

“In determining whether multiple convictions violate double jeopardy principles, courts must ask whether the Legislature intended to recognize separate crimes.” Richardson v. State, 969 So.2d 535, 537 (Fla. 1st DCA 2007). The parties agree that the convictions and sentences on counts four through ten and count fifteen are each based on a single “Windows Media Video” or “wmv” that the parties describe as analogous to a motion picture. We reject the state’s contention that Mr. Stowe was properly convicted and sentenced on multiple counts because multiple children are depicted in the “wmv.” The statute makes it unlawful knowingly to possess “a ... motion picture” or “presentation.” The Legislature designated “each such ... motion picture” or “presentation” the “unit of prosecution.” The language of the statute does not contemplate a separate conviction for each child depicted in a single photograph, motion picture, exhibition, show, representation, or other presentation. See Crosby v. State, 757 So.2d 584, 585 (Fla. 2d DCA 2000) (“Subsection (5) [of section 827.071] expressly states that possession of each article shall constitute a separate offense.”) (emphasis supplied). Mr. Stowe was properly convicted and sentenced on only one count, not on eight,' for possessing a single “wmv.”

Accordingly, we affirm appellant’s sexual offender designation, reverse his convictions and sentences on counts five, six, seven, eight, nine, ten and fifteen, vacate his sentences on the remaining counts, and remand for resentencing on the remaining counts. See State v. Anderson, 905 So.2d 111, 112 (Fla.2005).

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

BENTON, C.J., LEWIS, and WETHERELL, JJ., concur.

      . Based on eighteen convictions, his score-sheet established a sentencing range of 68.85 to 90 months' imprisonment. He was sentenced to consecutive terms of 48 months' imprisonment and 20.85 months imprisonment on counts one and two, followed by probation on counts three through eighteen.

      . See Bell v. United States, 349 U.S. 81, 83-84, 75 S.Ct. 620, 99 L.Ed. 905 (1955).


text:
    J.S., Father of J.S., J.S., and T.S., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D11-1433.
    District Court of Appeal of Florida, Fifth District.
    July 12, 2011.
    Heather Morcroft, Orlando, for Appellant.
    Rosemarie Farrell, Orlando, for Appel-lee.
    Kimberly D. Healy of King, Blackwell, Downs & Zehnder, P.A., Orlando, as Guardian Ad Litem.
   ON CONCESSION OF ERROR

PER CURIAM.

Pursuant to the Appellee’s concession of error, the “Order Placing Children in Permanent Guardianship and Terminating Protective Supervision” is reversed and this cause is remanded for further proceedings.

REVERSED and REMANDED.

GRIFFIN, LAWSON and EVANDER, JJ., concur.


text:
    Amy SEINFELD, Appellant, v. Brad E. ARNOWITZ, Appellee.
    No. 3D09-2983.
    District Court of Appeal of Florida, Third District.
    July 13, 2011.
    Rehearing Denied Aug. 31, 2011.
    Harvey D. Rogers, for appellant.
    Nancy A. Hass, for appellee.
    Before RAMIREZ, SALTER, and EMAS, JJ.
   PER CURIAM.

Affirmed. See Segarra v. Segarra, 947 So.2d 543 (Fla. 3d DCA 2006).


text:
    Octavious J. CRUMBY, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2230.
    District Court of Appeal of Florida, First District.
    July 13, 2011.
    Rehearing Denied Aug. 23, 2011.
    Octavious J. Crumby, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Echeverria v. State, 949 So.2d 331, 335 (Fla. 1st DCA 2007); Butler v. State, 917 So.2d 244, 245 (Fla. 2d DCA 2005).

BENTON, C.J., ROBERTS, and RAY, JJ., concur.


text:
    J.D.R., Father of M.R., B.R. and S.R., Minor Children, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D11-2063.
    District Court of Appeal of Florida, First District.
    July 14, 2011.
    Neil Weinreb, Jacksonville, for Appellant.
    Ward L. Metzger, Appellate Counsel, Children’s Legal Services, Jacksonville; Kelley Schaeffer, Guardian Ad Litem Program, Tavares, for Appellee.
   PER CURIAM.

DISMISSED: Dep't of Children and Families v. McShea, 913 So.2d 722 (Fla. 5th DCA 2005); W.B.J. v. A.S., 982 So.2d 697 (Fla. 2d DCA 2008).

WOLF, THOMAS, and CLARK, JJ., concur.


author: JACOBUS, J.

text:
    James H. LOWE, Appellant, v. WINTER PARK CONDOMINIUM LIMITED PARTNERSHIP, Appellee.
    No. 5D09-2419.
    District Court of Appeal of Florida, Fifth District.
    July 15, 2011.
    J. Timothy Schulte and Kevin P. Robinson, of Zimmerman, Kiser & Sutcliffe, P.A., Orlando, for Appellant.
    Christopher J. Weiss and J. Keith Ramsey of Holland & Knight, LLP, Orlando, for Appellee.
   JACOBUS, J.

James H. Lowe timely appeals the final judgment entered in favor of Winter Park Condominium Limited Partnership (WPC). This matter arises out of a contract for purchase and sale of a residential condominium in Winter Park, Florida. On appeal, Lowe, the buyer, contends the court erred in entering a judgment against him, which permitted WPC, the seller, to retain a substantial portion of his deposit. We agree with Lowe’s contention and reverse.

Lowe and WPC entered into the instant contract on April 17, 2006, before the condominium was constructed. Both parties executed the contract and Lowe deposited $185,694 with WPC in accordance with the terms of the contract. The deposit included upgrades for which Lowe prepaid an amount of $20,964. The contract required WPC to close on the condominium unit within two years of the date of execution.

Initially, the closing was set for December 6, 2007. WPC was unable to close on that date and, therefore, set a new closing date on February 3, 2008. Lowe never closed on the property. Both parties contend the contract was breached by the other. There are no disputed issues of fact, and the court heard the matter on cross-motions for summary judgment. The court determined Lowe breached the contract and WPC was entitled to keep a portion of his deposit. The court also awarded attorney’s fees to WPC as a result of Lowe’s breach.

This court reviews this matter de novo because it was decided by summary judgment and there are no factual disputes. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). The court also reviews the legal interpretation of contractual terms de novo. See Whitley v. Royal Trails Prop. Owners’ Ass’n, Inc., 910 So.2d 381, 383 (Fla. 5th DCA 2005).

There are two clauses in the contract that are relevant in this dispute. The significant portion of Paragraph 4 states:

(b) For purposes of this Agreement, the construction of the Unit shall be deemed “substantially complete” when (i) Seller has obtained a temporary certificate of occupancy; and (ii) Seller has substantially completed the construction of the Unit in substantial conformance with the Plans and Specifications (as defined in paragraph 1) as certified by the architect for the Condominium or general contractor. Seller will notify Buyer at least thirty (30) days prior to the date that the consummation of the sale of the Unit to Buyer shall take place (“Closing Date”). If Buyer fails to close on or before the Closing Date, then Seller may treat such failure as a default subject to the terms of Article VT of Addendum No. 1 attached hereto and made apart hereof or Seller may, in its sole discretion, determine to extend the Closing Date upon payment to Seller by Buyer of an extension fee equal to the $350.00 per day, but in no event shall such extension extend beyond the twenty-four (24) month period as set forth in subpar-agraph (c) below. The extension fee shall not be applied to the Purchase Price for the Unit. No portion of the Purchase Price shall be held back or escrowed at Closing, and the Closing shall not be delayed pending completion of any items that Seller must complete or repair pursuant to Article VLA) of Addendum No. 1.
The Closing shall be held in Orange County, Florida, unless the parties agree upon another location for Closing, at the hour and place designated by Seller....

Paragraph 11(B) of Addendum No. 1 reads as follows:

B. If Buyer asserts the existence of any encumbrance, encroachment or defect in title which renders title to the Unit unmarketable and which Buyer does not waive (all of which are called “Defects of Title”), Buyer shall give written notice of such Defects of Title to Seller within five (5) days after its receipt of the Commitment or at least five (5) days prior to the Closing Date, whichever is earlier. Notwithstanding the foregoing, Buyer acknowledges that it has reviewed and approved those documents set forth in the Addendum attached hereto labeled “Permitted Exceptions,” and Buyer shall not object to same. After its receipt of such notice, Seller may, but shall not be obligated to, remove or cure such Defects of Title. If Seller attempts to remove or cure such Defects of Title, Seller shall be entitled to a postponement of the Closing for a period of up to thirty (30) days in which to remove or cure such Defects of Title. If Buyer fails to timely provide such notice to Seller, then Buyer shall be deemed to have waived any such Defect of Title and accepted the condition of the title as satisfactory. Seller shall be entitled to (i) use the proceeds from the closing to cure or remove any Defect of Title; or (ii) provide Buyer with title protection against any such Defect of Title and such title insurance protection shall be deemed to satisfy Seller’s obligation to remove or cure any Defect of Title. If Seller is unable or unwilling to remove or cure all Defects of Title within such period, Buyer may elect to waive such Defects of Title or to terminate this Agreement by written notice to Seller within five (5) days after the earlier of (i) the expiration of such thirty (30) days, or (ii) the date of notice from Seller to Buyer stating that Seller is unable or unwilling to cure any such Defects of Title. If Buyer fails to provide Seller with written notice of termination of this Agreement within such five (5) day period, Buyer shall be conclusively deemed to have elected to waive any such Defects of Title and to have agreed to accept title to the Unit subject to such Defects of Title.

It is undisputed that WPC notified Lowe by letter on November 1, 2007, that the closing date was scheduled for December 6, 2007. The written notice to close was a requirement of the contract. WPC never sent to Lowe, as required by the contract, a commitment for title insurance. However, Lowe examined the title himself and determined that WPC had not recorded the Declaration of Condominium. As a result, he notified WPC by letter on November 29, 2007, that there was a defect in his title because the Declaration had not been recorded and, therefore, his title was unmarketable. Before sending the letter, Lowe had been orally notified by WPC’s closing agent that the closing would not occur on December 6th as scheduled, but would instead be rescheduled at a later date. WPC recorded the Declaration of Condominium on December 20, 2007, and notified Lowe that the new closing date would be February 3, 2008. Lowe refused to close on that date and took the position that the contract had been breached by WPC because it failed to close within 30 days after receiving the Notice of Defect, as required by Paragraph 11(B) of Addendum No. 1 of the contract. WPC claimed it had an absolute right to set the closing date as set forth in Paragraph 4 of the contract.

On appeal, WPC argues that (1) it orally notified Lowe that the closing was not going to occur on December 6, 2007, and (2) because it could set a closing date at any time through April 16, 2008, Paragraph II of Addendum No. 1 was not in effect. Lowe agrees that WPC had the absolute right to set the closing date. However, he claims that once WPC selected a date and gave notice of that date pursuant to the terms of the contract, Paragraph II of Addendum No. 1 came into effect. Therefore, Lowe claims it was error to enter judgment in WPC’s favor because he complied with the terms of the contract by giving notice of the title defect and WPC failed to close within 30 days of receiving that notice. It should be noted that the contract contained a “time is of the essence” clause.

We agree with Lowe’s interpretation of the contract. If we read the contract as WPC requests, Paragraph II of Addendum No. 1 will be rendered meaningless. While WPC had the absolute right to set a closing date, once it did, the time conditions of Paragraph II of Addendum No. 1 came into effect and WPC was bound by those terms. The rule of construction relating to contractual terms requires “courts to read provisions of a contract harmoniously in order to give effect to all portions thereof.” City of Homestead v. Johnson, 760 So.2d 80, 84 (Fla.2000); Davis v. Ivey, 984 So.2d 571, 573 (Fla. 5th DCA 2008); Paladyne Corp. v. Weindruch, 867 So.2d 630, 631 (Fla. 5th DCA 2004). Lowe’s interpretation of the contract gives meaning to all its terms, all the terms are harmonious with each other, and each term has effect.

For these reasons, Lowe was entitled to return of his deposits under the contract. Also, as the prevailing party, he is entitled to attorney’s fees. Accordingly, the judgment in favor of Winter Park Condominium Limited Partnership is reversed and the matter is remanded for entry of a judgment in Lowe’s favor. .

REVERSED and REMANDED.

TORPY and EVANDER, JJ., concur.

      . § 718.104(2), Fla. Stat.


text:
    Adrian HOUSE, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3180.
    District Court of Appeal of Florida, Fifth District.
    July 15, 2011.
    Rehearing Denied Aug. 19, 2011.
    James S. Purdy, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Adrian House, Bowling Green, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Public Defender, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm the judgment and sentence. With respect to the assertion that the trial court should have conducted a Nelson hearing we note that the appellant only expressed a general dissatisfaction with appointed counsel and that a Nelson inquiry was unnecessary. See, e.g., Clayton v. State, 953 So.2d 758 (Fla. 5th DCA), review denied, 966 So.2d 965 (Fla.2007).

AFFIRMED.

ORFINGER, C.J., MONACO and JACOBUS, JJ., concur.


author: SAWAYA, J.

text:
    Gary Lee FORD, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3293.
    District Court of Appeal of Florida, Fifth District.
    July 15, 2011.
    James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   SAWAYA, J.

Gary Ford appeals the restitution order requiring him to pay $5,500 in restitution to the victim. He alleges that he did not receive proper notice of the restitution hearing and, therefore, did not attend. The record supports Ford’s claim that he did not receive proper notice. We note, parenthetically, that the State confesses error; it concedes that Ford was not properly notified of the hearing and that the order should be reversed. Accordingly, the restitution order is reversed, and this case remanded for further proceedings.

REVERSED and REMANDED.

GRIFFIN and COHEN, JJ., concur.


text:
    Tommie D. McCREE, III, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3889.
    District Court of Appeal of Florida, Fifth District.
    July 15, 2011.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Brewer v. State, 413 So.2d 1217 (Fla. 5th DCA 1982) (a trial court must not grant a motion for judgment of acquittal unless there is no legally sufficient evidence on which the trier of fact may base a verdict of guilt), review denied, 426 So.2d 25 (Fla.1983); see also Tibbs v. State, 397 So.2d 1120 (Fla.1981) (where a verdict depends upon a determination of the credibility of witnesses, an appellate court will ordinarily not disturb it), affirmed, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).

MONACO, TORPY and JACOBUS, JJ., concur.


author: SILBERMAN, Chief Judge.

text:
    Frank GUZMAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-1635.
    District Court of Appeal of Florida, Second District.
    July 15, 2011.
    James Marion Moorman, Public Defender, and Terrence E. Kehoe, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph H. Lee, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Chief Judge.

Frank Guzman seeks review of his judgment and sentences for lewd or lascivious molestation and lewd or lascivious exhibition. We reject Guzman’s argument that the trial court erred in sustaining the State’s objection to the defense peremptory challenge to a female juror. The court’s determination that the defense explanation for the peremptory challenge was a pretext was not clearly erroneous. See Jeffries v. State, 797 So.2d 573, 580 (Fla.2001); Melbourne v. State, 679 So.2d 759, 764-65 (Fla.1996). We accept the State’s concession that the judgment must be corrected to set forth the statute number for the offense of conviction on count two. See Ellis v. State, 855 So.2d 101, 103 (Fla. 2d DCA 2003). We therefore affirm Guzman’s convictions and sentences but remand for correction of his written judgment. Guzman need not be present for this correction. See id.

Convictions and sentences affirmed; remanded for correction of the written judgment.

LaROSE and CRENSHAW, JJ., Concur.


text:
    Larry FORD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3032.
    District Court of Appeal of Florida, First District.
    July 15, 2011.
    Larry Ford, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

VAN NORTWICK, WETHERELL, and ROWE, JJ., concur.