author: PER CURIAM.

text:
    PENSACOLA CHRISTIAN COLLEGE and Robert Maddox, Appellants, v. Joyanne BRUHN, Appellee.
    No. 1D11-1376.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2011.

      Peter S. Roumbos and Joseph A. Kopacz of Young, Bill, Roumbos & Boles, P.A., Pensacola, for Appellants.
    James M. Burns, Pensacola, for Appel-lee.
   PER CURIAM.

The appellants, Pensacola Christian College (PCC) and Robert Maddox, appeal a non-final order in favor of the appellee, Joyanne Bruhn, upon a finding that PCC and Maddox were not entitled to worker’s compensation immunity as a matter of law. Because the trial court erred in determining that PCC was not Bruhn’s employer and that her injury was not sustained in the course and scope of employment, we reverse.

In the fall of 2004, Joyanne Bruhn was a full-time student at PCC, living on campus. On December 16, 2004, Bruhn entered into a Special Hourly Work Contract with PCC. One of the contract terms was that the “[sjtudent agrees to work where needed, and understands that this contract may be assigned to an affiliate of PCC, if needed.” Under the terms of the contract, Bruhn was assigned to work at A Beka Books, Inc. (“A Beka Books”), an affiliate of PCC located on the PCC campus.

On the day of the accident, Bruhn had taken a lunch break and was returning to work at A Beka Books when the bicycle she was riding collided with a PCC van driven by Maddox, a student-employee of PCC. The accident occurred at an intersection on the PCC campus in front of the PCC Administration Building. Following the accident, Tim Tate, a risk manager for PCC, submitted a workers’ compensation claim on behalf of Bruhn. In his deposition, Tate stated that Bruhn was covered by PCC’s workers’ compensation policy because “[s]he was an employee who sustained an injury during a reportable period[,]” explaining that “[s]he was off the clock but she was on the company premises returning to work.” Tate also explained that PCC purchased one corporate policy of workers’ compensation insurance for all its subsidiaries and affiliates, including A Beka Books, Inc. and A Beka Services, Ltd.

On November 17, 2009, Bruhn filed suit against PCC and Maddox seeking damages for injuries she sustained in the 2006 accident, alleging that Maddox was negligent and PCC was vicariously liable for the negligence of its employee. On November 10, 2010, PCC and Maddox filed a motion for summary judgment asserting workers’ compensation immunity because PCC was Bruhn’s employer at the time of the injury and Bruhn was injured on PCC’s premises. After hearing argument from the parties, the trial court issued an order denying the motion for summary judgment, concluding that Bruhn was not an employee of PCC, but was instead an employee of A Beka Books:

The Court finds that although the Special hourly Work Contract was executed by Plaintiff and Pensacola Christian College, Plaintiffs employer was A Beka Services, Ltd. and Plaintiff worked at the Distribution Center of A Beka, Inc. These are separate legal entities and the Court finds that Pensacola Christian College was not Defendant’s employer.

The trial court also ruled that even if PCC were Bruhn’s employer, the injury did not occur in the course of her employment because the injury did not occur on the premises of A Beka Books:

Even if Pensacola Christian College is to be considered Plaintiffs employer, the question arises as to whether the entire college campus which contains multiple free standing buildings and parking lots for those buildings constitutes “on the employer’s premises” for the purpose of determining that the workers’ compensation immunity applies to Pensacola Christian College.... The premises of A Beka Books, Inc. Distribution Center do not encompass the entire campus of Pensacola Christian College.

In this appeal of the trial court’s non-final order, our scope of review is limited to determining whether the trial court erred in denying summary judgment based on its conclusion that PCC and Maddox are not entitled to worker’s compensation immunity. Fla. R.App. P. 9.130(a)(3)(C)(v); Ramos v. Univision Holdings, Inc., 655 So.2d 89 (Fla.1995).

The Florida workers’ compensation system provides the exclusive remedy for an employee injured in the course and scope of employment. See § 440.11, Fla. Stat. (2006); Jones v. Martin Elecs., Inc., 932 So.2d 1100, 1104 (Fla.2006). Accordingly, employers are generally immune from liability in negligence actions brought by employees for injuries occurring in the course and scope of employment. Id. Two exceptions to workers’ compensation immunity exist: (1) when the employer fails to secure workers’ compensation coverage; or (2) when the employer commits an intentional tort. See Gustafson’s Dairy, Inc. v. Phiel, 681 So.2d 786, 790 (Fla. 1st DCA 1996). Here, it is undisputed that PCC secured worker’s compensation coverage both for itself and its affiliate A Beka Books, and Bruhn does not allege an intentional tort in her complaint against PCC and Maddox. Because neither exception applies in this case, Bruhn’s sole remedy for an injury occurring in the course and scope of her employment is provided by the Florida workers’ compensation law. See, e.g., Aguilera v. Inservices, Inc., 905 So.2d 84, 90-91 (Fla.2005). Therefore, whether PCC and Maddox are entitled to workers’ compensation immunity turns on (1) whether Bruhn was an employee of PCC; and (2) whether her injury occurred within the course and scope of employment.

The trial court erred in determining that PCC was not Bruhn’s employer, simply because she worked (on campus) at A Beka Books. An employee may work for more than one employer, even while doing a single job.

“Long before the enactment of the statutory special employment provision for employees of help supply services companies, the common law recognized the ‘borrowed servant’ doctrine.” [St. Lucie Falls Prop. Owners Ass’n v. Morelli, 956 So.2d 1283, 1286 (Fla. 4th DCA 2007) ]. Under this common law doctrine, one employer can “lend” its employee to another “special employer.”

Fossett v. Se. Toyota Distribs., LLC., 60 So.3d 1155, 1157-58 (Fla. 1st DCA 2011) (“A special employer qualifies as such where ‘(1) there was a contract for hire, either express or implied, between the special employer and the employee; (2) the work being done at the time of the injury was essentially that of the special employer; and (3) the power to control the details of the work resided with the special employer.’ ” (quoting Morelli, 956 So.2d at 1286)).

‘When all three of the above conditions are satisfied in relation to both employers, both employers will ... have the benefit of the exclusivity defense for tort claims.’ ” Hazealeferiou v. Labor Ready, 947 So.2d 599, 603 (Fla. 1st DCA 2007) (quoting 3 Arthur Larson & Lex K. Larson, Larson’s Worker’s Compensation Law § 67.01 (2006)). See Roberts’ Fish Farm v. Spencer, 153 So.2d 718, 721 (Fla.1963) (“No doubt there may be circumstances where two or more such entities may be both interested in the employment [so] as to have the status of common or joint employers.”); Crawford v. Fla. Steel Corp., 478 So.2d 855, 859 (Fla. 1st DCA 1985) (noting that “continuance of the general employment is presumed in any lent-employee situation, and to overcome this presumption, there must be a clear demonstration that a new temporary employer has been substituted for the old”). See also Beaver v. Jacuzzi Bros., Inc., 454 F.2d 284, 285 (8th Cir.1972) (“As a matter of common experience and of present business practices in our economy, it is clear that an employee may be employed by more than one employer even while doing the same work. Biggart v. Texas Eastern Transmission Corp., 235 So.2d 443, 445 (Miss.1970).”).

Here, the record demonstrates that Bruhn entered into an express, written student-employment contract with PCC. There is no indication whatsoever in the record that Bruhn entered into an express or implied contract with A Beka Books. Under the terms of Bruhn’s contract with PCC, Bruhn agreed “to work where needed,” and she acknowledged that she understood “this contract may be assigned to an affiliate of PCC, if needed.” The record supports that A Beka Books was an affiliate of PCC. Thus, under the terms of Bruhn’s contract with PCC, she was an employee of PCC even though she was assigned to work with the affiliate, A Beka Books.

The only support cited by the trial court regarding its ruling that A Beka Books was Bruhn’s “actual” employer was a W-2 statement of Bruhn’s 2005 wages earned at A Beka Books, and the court’s determination that A Beka Books “is a separate legal entity from Pensacola Christian College and possesses a separate FIN/EIN number than does Pensacola Christian College.” However, the record on appeal does not support either finding. Moreover, a W-2 form is not conclusive evidence of an employment relationship. See Verchick v. Hecht Invs., Ltd., 924 So.2d 944, 945-46 (Fla. 3d DCA 2006) (holding that W-2 tax forms alone did not establish an employment relationship). Rather, as this court stated in Hoar Construction v. Varney, 586 So.2d 463 (Fla. 1st DCA 1991), “[t]he payment of wages is the least important factor” in determining an employment relationship. Id. at 464. Because neither the law nor the record on appeal supports the trial court’s ruling, the trial court erred in denying the motion for summary judgment based on lack of an employment relationship between PCC and Bruhn.

Further, the trial court erred in ruling that even if PCC were Bruhn’s employer, her injury did not occur in the course of her employment because she was not injured on the employei’’s premises. As a general rule where employees have fixed hours and a place of work, injuries which occur on the employer’s premises while the employee is going to and from work, before or after working hours, or at lunchtime, are compensable. See, e.g., Doctor’s Bus. Serv. Inc. v. Clark, 498 So.2d 659 (Fla. 1st DCA 1986); Johns v. State Department of Health and Rehabilitative Services, 485 So.2d 857 (Fla. 1st DCA 1986); City of St. Petersburg v. Cashman, 71 So.2d 733 (Fla.1954). Conversely, if the injury occurs off the premises, the injury will not be compensable unless the injury “is caused by a special hazard on a normal and customary route used by the employee as a means of entry to and exit from the employee’s place of work.” Doctor’s Bus. Serv. Inc., 498 So.2d at 663.

Here, the trial court concluded that Bruhn’s injury could not have occurred in the course of her employment with PCC because the accident did not occur on the premises of A Beka Books, finding “[t]he premises of A Beka Books ... does not encompass the entire campus of Pensacola Christian College.” However, it is clear that PCC was Bruhn’s employer and that she was on the premises of PCC, returning to work at the A Beka Books Distribution Center after a lunch break at the time she sustained her injury. See Warren’s Case, 326 Mass. 718, 97 N.E.2d 184 (1951) (holding that an employee’s injury while on college grounds to report for first day of work, before he reached either the administration building, where he was to complete payroll forms, or the athletic field house where he was to do the work, was an injury suffered in the course of the employment); Lemming v. Univ. of Cincinnati, 41 Ohio App.3d 194, 534 N.E.2d 1226, 1227 (1987) (holding the employee was “clearly within the zone of her employment, even though not at her work station, because she was on the university’s premises (the campus)”); Davis v. State of Conn./Univ. of Conn., 4212 CRB-2-00-3 (2001) (concluding that an employee injured while crossing a street to eat lunch at a restaurant also located on campus sustained a compensable injury, because “as a matter of law, the grounds of an entire college campus constitute its ‘premises,’ rather than simply the building or buildings in which an employee happens to regularly work”). See generally In the Matter of Anneliese Ross and Dep’t of the Army, 42 E.C.A.B. 371 (1991) (holding that a civilian employee, injured when her automobile was hit by a military vehicle while she was driving on a road on the employer’s premises (the military base) to report to work, sustained a compensable injury under the Federal Employees’ Compensation Act); In the Matter of Gordon R. Woodruff and Dep’t of the Army, U.S. Missile Command, 1989 WL 221872 (Empl.Comp.App.Bd. May 26, 1989) (same). But see State v. Indus. Comm’n, 4 Wis.2d 472, 90 N.W.2d 397 (1958). Because Ms. Bruhn was on her employer’s premises, returning to her work station after lunch, she was within the course and scope of her employment at the time of the injury.

We, therefore, reverse the court’s non-final order denying the motion for summary judgment. On remand, the trial court is instructed to enter summary judgment in favor of PCC.

REVERSED AND REMANDED.

BENTON, C.J., HAWKES, and ROWE, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Raney RICHARDSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-6831.
    District Court of Appeal of Florida, First District.
    Jan. 12, 2012.
    Rehearing Denied March 8, 2012.

      Raney Richardson, 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.

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


text:
    John C. PERRYS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-6802.
    District Court of Appeal of Florida, First District.
    Jan. 12, 2012.
    Rehearing Denied March 6, 2012.
    John C. Perrys, 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.

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


text:
    George L. JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-6739.
    District Court of Appeal of Florida, First District.
    Jan. 12, 2012.
    Rehearing Denied March 6, 2012.
    George L. Johnson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. RApp. P. 9.141(d)(5).

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


text:
    Adolphus ASHLEY, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D11-6582.
    District Court of Appeal of Florida, First District.
    Jan. 12, 2012.
    Rehearing Denied March 8, 2012.

      Adolphus S. Ashley, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. See Powell v. Florida Department of Corrections, 727 So.2d 1103 (Fla. 1st DCA 1999).

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


author: GROSS, J. POLEN, J.,

text:
    Wayne TREACY, Petitioner, v. Al LAMBERTI, as Sheriff of Broward County, Florida, Respondent.
    No. 4D11-4645.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 2012.
    Rehearing Denied March 12, 2012.
    Jason T. Forman of Law Offices of Jason T. Forman, P.A., Fort Lauderdale, and Russell J. Williams of Law Offices of Russell J. Williams, P.A., Fort Lauderdale, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for respondent.
   GROSS, J.

Petitioner, a juvenile, is charged with attempted first degree premeditated murder with a deadly weapon, a life felony. In this petition for writ of habeas corpus, he contends that Graham v. Florida, - U.S. -, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), entitles him to bond as a matter of right. We reject this argument and deny the petition.

In Graham, the Supreme Court held that the “Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.” 130 S.Ct. at 2034. The Florida legislature has not enacted a parole system that would satisfy Graham by allowing juvenile defendants sentenced to life in prison a chance to be released. Therefore, life sentences for such juveniles are now subject to reversal based on Graham. See, e.g., Cunningham v. State, 74 So.3d 568 (Fla. 4th DCA 2011); Garland v. State, 70 So.3d 609 (Fla. 1st DCA 2010).

Graham, however, does not impact petitioner’s bond because the language of Article I, Section 14 of the Florida Constitution focuses on the classification of the offense to determine entitlement to pretrial release, and not the potential severity of punishment.

We adopt the well-reasoned analysis of Circuit Judge David Haimes in his July 2, 2010 order denying petitioner’s motion to set bond:

Article I, section 14, of the Florida Constitution, Pretrial Release and Detention, provides as follows:
Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained.

Id. (emphasis added); see also Fla.R.Crim. P. 3.131(a). Here, the defendant is charged with Attempted Murder in the First Degree (Premeditated) with the use of a deadly weapon. Under Florida Statutes, Sections 782.04(l)(a), 777.04(b), and 775.087(l)(a), the offense charged is a “life felony.”

Based upon the ... reading of the plain language contained in Article I, section 14, of the Florida Constitution and Rule 3.131 of the Florida Rules of Criminal Procedure, the Court finds that the offense of Attempted Murder in the First Degree (Premeditated) with the use of a deadly weapon is clearly an “offense punishable by life imprisonment.”

Graham ... does not change the statute with respect to the defendant’s right to bond in the present case. The specific holding in Graham is as follows:

The Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide. A State need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term. The judgment of the First District Court of Appeal of Florida affirming Graham’s conviction is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
Graham, 130 S.Ct. at 2034 (emphasis added). Even though [the circuit court] could not impose a life sentence without the possibility of parole in the present case, based upon the Graham opinion and the Eight [sic] Amendment, this restriction does not change the classification of the offense charged as a life felony. Therefore, the offense of Attempted Murder in the First Degree (Premeditated) with the use of a deadly weapon remains an “offense punishable by life imprisonment” [within the meaning of Article I, section 14 of the Florida Constitution].

(Footnotes omitted).

We also agree with the trial court’s conclusion that its “classification” approach is supported by Batie v. State, 534 So.2d 694 (Fla.1988) (holding that a person convicted of capital sexual battery was ineligible for postconviction bond, though the offense no longer was punishable by death, considering statutes and rules for legislative and judicial intent at time of enactment to determine other consequences of a crime); State v. Hogan, 451 So.2d 844, 845 (Fla. 1984) (“The degree of the crime is what the legislature says it is, and, just because a portion of a crime designated ‘capital’ cannot be carried out, the degree is not lessened, at least not for the purposes of setting penalties for ‘attempt’ crimes.”); and Florida Parole Commission v. Criner, 642 So.2d 51 (Fla. 1st DCA 1994) (holding that parole commission properly treated defendant’s crime of rape as capital felony for purposes of calculating defendant’s parole release). In other words, sentencing, the focus of Graham, and entitlement to pretrial release are two different issues.

It must be noted that Graham did not purport to change this state’s classification of attempted first degree murder with a deadly weapon as a life felony, nor did it actually even prohibit the imposition of a life sentence on a juvenile who is convicted of a non-homicide crime; it prohibited only the imposition of a life sentence without any “realistic opportunity to obtain release” before the end of the life term. 130 S.Ct. at 2034. Thus, were the legislature to enact a parole system for juveniles who have been sentenced to life for non-homicide offenses, this issue would not even arise.

Furthermore, during the time when the sentencing guidelines were in effect, a life sentence actually was not a realistic prospect for many defendants who were charged with offenses punishable by life in prison. If their points generated a sentencing range of a term of years, they could not be sentenced to life unless reasons for an upward departure from the guidelines could be demonstrated. See Fla. R.Crim. P. 3.701(d)(12), 3.702(d)(18), 3.703(d)(30). Nevertheless, such defendants simply had no right to bond as a matter of law unless the state could not meet the standard of State v. Arthur, 390 So.2d 717 (Fla.1980).

HAZOURI, J., concurs.

POLEN, J., concurs specially with opinion.

POLEN, J.,

concurring specially.

I agree with the result reached in the majority opinion, adopting the well-reasoned analysis of Judge Haimes. I write separately to acknowledge that in another case, by order, we granted a writ of habeas corpus based on Graham v. Florida, - U.S. -, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). I was on that panel as well, but now recognize our analysis in McCray did not take into consideration some of the points brought out by Judge Gross’ majority opinion. As there was no published opinion in McCray, there is no need to consider this issue en banc. While I do not advocate certifying this issue, it may well be that our supreme court may ultimately address this issue.

      . McCray v. Lamberti, No. 4D11-3884 (Fla. 4th DCA Nov. 8, 2011).


text:
    Trahn BOWENS, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-3772.
    District Court of Appeal of Florida, Fourth District.
    Feb. 1, 2012.
    Rehearing Denied March 16, 2012.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Trahn Bowens appeals his conviction for strong-arm robbery. First, he claims the trial court erred in allowing a surreptitiously recorded conversation to be played at trial, in violation of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Second, he claims the trial court erred in denying a motion for mistrial after the State referred to the contents of a BOLO. We affirm on both issues, but write to explain why the admission of the surreptitiously recorded conversation did not violate Crawford,.

The events precipitating this case occurred when Patrick, the victim, bumped another vehicle while driving. Both vehicles pulled into a gas station. Patrick exited the vehicle to talk to Michael, the other driver. Bowens, Michael, and Michael’s girlfriend exited the other vehicle. While Michael was talking to Patrick, Bowens got behind Patrick. Suddenly, Bowens lifted up Patrick and dropped or slammed him on the ground. Bowens stepped on Patrick, took his necklace, turned him over, and took his wallet. Then Bowens, Michael, and the girlfriend drove away.

Bowens and Michael were apprehended together. They were placed into the back of a patrol car in which a tape player was hidden. A conversation was recorded in which Michael appeared to be panicked over being arrested, as he was on probation, and Bowens was trying to calm him down.

Prior to trial, Bowens moved to exclude the tape recording on the grounds that Michael’s statements on the recording were hearsay and that the statements of both Michael and Bowens were testimonial. The trial court denied the motion. After the tape recording was played for the jury, Bowens moved for a mistrial on the same grounds, which were also denied.

“[T]he admission of a hearsay statement made by a declarant who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial, and (2) the declarant is unavailable and the defendant lacked a prior opportunity for cross-examination of the declar-ant.” Franklin v. State, 965 So.2d 79, 90 (Fla.2007). No specific test exists for determining whether a statement is testimonial or non-testimonial. In Crawford, the Supreme Court held “that at a minimum, statements are testimonial if the declarant made them ‘at a preliminary hearing, before a grand jury, or at a former trial; and [in] police interrogations.’ ” Id. (quoting Crawford, 541 U.S. at 68, 124 S.Ct. 1354). Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), provided further guidance in regard to whether a police interrogation is testimonial, holding that the distinction depends on whether the primary purpose of the interrogation was to establish past events relevant for later criminal prosecution or to handle an ongoing emergency. Id. at 822, 126 S.Ct. 2266. Based on this case law, Justice Cantero in Franklin advocated the adoption of a test that would determine, based on the totality of the circumstances surrounding the statement, whether the primary purpose of obtaining the statements was for criminal prosecution. Franklin, 965 So.2d at 107 (Cantero, J., specially concurring). A plurality of the U.S. Supreme Court has also recognized that to be testimonial, “a statement must have a primary purpose of establishing or proving past events potentially relevant to later criminal prosecution.” Bullcoming v. New Mexico, - U.S. -, - n. 6, 131 S.Ct. 2705, 2714 n. 6, 180 L.Ed.2d 610 (2011) (internal quotations omitted).

Bowens argues the primary purpose of the surreptitious recording of the conversation between him and Michael was to preserve the conversation for later use in a criminal proceeding. No Florida case has addressed whether a surreptitious recording is testimonial for purposes of Crawford. However, this issue has been addressed in other jurisdictions.

In United States v. Hendricks, 395 F.3d 173 (3d Cir.2005), the defendant sought exclusion of conversations between himself, other co-defendants, and a confidential informant that were recorded using a wire on the informant provided by the government. The district court excluded the conversations, holding they were testimonial because the confidential informant was working for the government for the purpose of obtaining evidence for prosecution. Id. at 183. The circuit court noted that those portions of the conversations which were party admissions or statements of co-conspirators in furtherance of a conspiracy were admissible, as such statements are not hearsay under section 801(d)(2)(A) and (E) of the Federal Rules of Evidence. Those exceptions to the hearsay rule were recognized as nontesti-monial in Crawford. Id. at 183. Since part of the conversations was admissible, the circuit court held that all of the conversations, including the confidential informant’s part of the conversation, should be admissible to place the defendant’s and co-conspirator’s statements into context. Id. at 184.

Benjamin v. State, 940 So.2d 371 (Ala.Crim.App.2005), followed Hendricks in a case where police placed a wire on a friend of a murder suspect in order to record the suspect’s confession. The court held the defendant’s statements were admissions which he did not realize would be used in prosecution, so therefore they were non-testimonial. The friend’s statements on the recording were not admitted as substantive evidence, but to place the defendant’s statements in context, so the friend’s statements were held to be nontes-timonial as well. Id. at 380.

Also, in People v. Jefferson, 158 Cal.App.4th 830, 70 Cal.Rptr.3d 451 (Cal.Ct.App.2008), the court held a conversation between two defendants that was recorded when the defendants were placed in a bugged jail cell was not testimonial under Crawford. The court determined that their taped statements were not made to government officers, the government did not participate in or encourage the conversation, and the conversation was held in secret. Thus, an objective person would not have expected the conversation to be later used at trial. Id. at 842-44, 70 Cal.Rptr.3d 451.

In this case, Bowens’s side of the surreptitiously recorded conversation is admissible as a party admission under section 90.803(18)(a), Florida Statutes. Michael’s side of the conversation is admissible to place Bowens’s statements into context. Further, the conversation between the two was not instigated or facilitated by any law enforcement officer or other person with the primary purpose of collecting evidence for criminal prosecution. Rather, it was a spontaneous conversation that happened to have occurred within the range of an audio recorder. Therefore, we find the trial court did not err in determining Michael’s statements were nontestimonial for purposes of Crawford,

Affirmed.

MAY, C.J., HAZOURI, and CONNER, JJ., concur.


text:
    Michael S. MOONEY, Petitioner, v. STATE of Florida, Respondent.
    No. 4D11-286.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 2012.
    Rehearing Denied March 23, 2012.
    Richard L. Rosenbaum of Arnstein & Lehr LLP, Fort Lauderdale, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

In 1987, petitioner was convicted after jury trial of burglary with a battery, aggravated battery with a deadly weapon, and false imprisonment. Before trial, the State offered petitioner five years in prison. At the October 30, 1987 sentencing hearing, the trial court granted the State’s motion and imposed an upward departure sentence of life in prison. Although the judge did not initially announce a valid reason, the State corrected the judge who then orally announced valid reasons on the record. The court entered the written reasons proffered by the prosecutor a number of days later.

On direct appeal, appellate counsel argued, among other things, that the reasons for departure were invalid. This court affirmed. Mooney v. State, 539 So.2d 482 (Fla. 4th DCA 1989) (table).

In this proceeding, Petitioner seeks ha-beas corpus relief arguing that his upward departure sentence of life in prison is manifestly unjust. He raises two related claims: (1) that an assistant attorney general committed misconduct by misrepresenting the date of the offense to a federal court in a federal habeas proceeding, causing that court to misconstrue the law applicable to his claim; and (2) that appellate counsel was ineffective for failing to argue that the trial court’s failure to enter the written reasons at the time of the sentencing hearing constituted per se reversible error requiring resentencing within the guidelines range.

Petitioner’s first claim is without merit. The federal court was clearly not misled as to the date of the offense or the applicable law, nor would the alleged misrepresentations provide a basis for relief in this court.

Petitioner previously raised the same ineffective assistance of appellate counsel claim in a 1995 petition which this court denied. Because of the severity of the upward departure sentence, and the other circumstances, in these proceedings, we ordered the State to address whether a manifest injustice warranted relaxing the various procedural bars in this case. Having carefully considered the issue, and having had the benefit of oral argument, we conclude that we must deny the petition.

Although this court acknowledged in Ree v. State, 512 So.2d 1085 (Fla. 4th DCA 1987), approved in part, 565 So.2d 1329 (Fla.1990), that it was error for a trial court to not enter the written reasons for departure at the time of sentencing, the proper remedy to be applied in this situation was not settled until Pope v. State, 561 So.2d 554 (Fla.1990). The error at issue is technical, and not a “fundamental sentencing error” or “illegal sentence” that can be corrected at any time or for the first time on collateral review. Maddox v. State, 760 So.2d 89, 108 (Fla.2000); Davis v. State, 661 So.2d 1193 (Fla.1995).

Under extremely similar circumstances, the Florida Supreme Court denied an ineffective assistance of appellate counsel petition because the proper remedy for the failure to contemporaneously enter written reasons was “very unsettled” until Pope. Domberg v. State, 661 So.2d 285 (Fla.1995). The court explained that before Pope, the First District Court of Appeal “would have remanded the case for resentencing and the trial court could have simply entered its previously late-filed written reasons for departure and resen-tenced [petitioner] to his initial sentences.” Id. at 287. In Ree, this court reluctantly followed the First District’s decision in Oden v. State, 463 So.2d 313 (Fla. 1st DCA 1984), which acknowledged that the proper remedy was to remand for resentencing where the trial court could again impose an upward departure with appropriate written reasons. Thus, we find Domberg indistinguishable and are constrained to deny relief.

Petition denied.

STEVENSON, HAZOURI and DAMOORGIAN, JJ., concur.

      . The original scoresheet called for a sentence between nine and twelve years, but a corrected guidelines scoresheet recommended a sentence between five and seven years. See Mooney v. State, 864 So.2d 60 (Fla. 4th DCA 2003) (concluding that the scoresheet error was harmless based on the departure).


text:
    FLORIDA MOBILE HOME RELOCATION CORPORATION, Petitioner, v. CITY OF SOUTH DAYTONA, Fla., a Florida municipality, and August F. Spreng, Respondents.
    No. 1D11-3760.
    District Court of Appeal of Florida, First District.
    Feb. 14, 2012.
    Todd D. Engelhardt and Terry J. Harmon, of Sniffen & Spellman, P.A., Tallahassee, for Petitioner.

      Scott E. Simpson, of Scott E. Simpson, P.A., Ormond Beach, for Respondents.
   PER CURIAM.

The Florida Mobile Home Relocation Corporation (FMHRC) seeks second-tier certiorari review of an order of the circuit court, sitting in its review capacity, that reversed FMHRC’s decision requiring Respondent August Spreng to reimburse FMHRC $2,750.00 for relocation financial assistance that FMHRC had provided to a mobile home purchaser pursuant to section 723.0612(1), Florida Statutes (2007). We have jurisdiction. Art. V, § 4(b)(3), Fla. Const.; Fla. R.App. P. 9.030(b)(2)(B).

The circuit court’s first-tier review of administrative action is three-pronged. Under this review, the circuit court was limited to determining whether the agency provided procedural due process, observed the essential requirements of law, and supported its findings with competent substantial evidence. Miami-Dade County v. Omnipoint Holdings, Inc., 863 So.2d 195, 198-99 (Fla.2003); City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (Fla.1982).

As a threshold matter, FMHRC contends that the circuit court did not observe the essential requirements of law, in that Respondent Spreng (the petitioner in the circuit court) did not timely file his petition for writ of certiorari, and the circuit court thus lacked jurisdiction to address Spreng’s grievances. We note that although jurisdiction was not challenged in the circuit court, the issue of the timeliness of a petition is jurisdictional and cannot be waived. State v. Lozano, 616 So.2d 73, 74-75 (Fla. 1st DCA 1993); Hofer v. Gil De Rubio, 409 So.2d 527, 528 (Fla. 5th DCA 1982). “District courts apply a two-prong test on second-tier certiorari review: whether the circuit court applied the correct law and whether the circuit court afforded procedural due process.” State, Dep’t of Highway Safety & Motor Vehicles v. Edenfield, 58 So.3d 904, 906 (Fla. 1st DCA 2011). The parties agree that the law requires a party seeking certiorari relief to file the petition within 30 days after the rendition of the order to be reviewed. Fla. R.App. P. 9.100(c)(1). “An order is rendered when a signed, written order is filed with the clerk of the lower tribunal.” Fla. R.App. P. 9.020(e) & (h); Matthews v. Stein, 362 So.2d 376, 377 (Fla. 2d DCA 1978). The parties disagree, however, concerning whether FMHRC’s Board’s oral ruling of August 10, 2007, was ultimately rendered and, if so, when the rendition occurred and whether Spreng received whatever notice procedural due process required under the facts. Because the record before us does not include a rendered order, and the petition filing deadline is jurisdictional, see Jones v. Cannon, 750 So.2d 108, 109 (Fla. 1st DCA 1999), we grant FMHRC’s petition for writ of certio-rari, quash the circuit court’s order, and remand for the circuit court to determine whether Spreng timely filed his petition for writ of certiorari in that court. In the interests of clarity and judicial efficiency, we direct the circuit court to make whatever findings are necessary to support its conclusion regarding jurisdiction.

The petition is GRANTED, the circuit court’s order is QUASHED, and this case is REMANDED to the circuit court to address the jurisdictional issue and, if jurisdiction exists, to issue an order on the merits. Kowch v. Bd. of County Comm’rs, 467 So.2d 340 (Fla. 5th DCA 1985).

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


author: COHEN, J.

text:
    D.G., Father of L.G. and M.G., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D11-2374.
    District Court of Appeal of Florida, Fifth District.
    Feb. 14, 2012.
    Jeffrey Deen, Regional Counsel, Cassel-berry, and Mark A. Skipper, Office of the Criminal Conflict and Civil Regional Counsel, Fifth District, Orlando, for Appellant.
    Jeffrey Dana Gillen, Chief Appellate Counsel, Children’s Legal Services, Department of Children and Families, West Palm Beach, for Appellee.
    Wendie Michelle Cooper, Tavares, for Guardian ad Litem.
   COHEN, J.

D.G. (“Father”) and R.L. (“Mother”) lived together for approximately ten years. Three children were born of the relationship: L.G., M.G., and a third child whose death at a very young age led to the initiation of these proceedings. The Department of Children and Family Services (“DCF”) had a report pending when the infant died. The report concerned Mother’s substance abuse and the birth of the baby girl with drugs in her system. Upon the infant’s death, DCF took the two surviving children into custody.

DCF filed a two-count dependency petition against both parents. Count one focused on the parents’ abuse of drugs and the infant’s death, without alleging any wrongdoing by either parent in the death of the infant. Count two incorporated the allegations of count one and, without more, alleged a substantial risk of prospective abuse, abandonment, or neglect.

Both parents denied the allegations of the petition at their arraignment, and an adjudicatory hearing was set. When Mother failed to appear at the hearing, the trial court found she had consented to the dependency pursuant to section 39.506(3), Florida Statutes (2011). The court rescheduled Father’s adjudicatory hearing. However, it then prematurely held a dispo-sitional hearing. The hearing resulted in entry of an “Order of Adjudication, Disposition, Acceptance of Case Plan, and Notice of Hearing.” The judge found the children dependent, repeating almost verbatim the allegations contained in the petition, and entered a case plan with the goal of reunification.

Thereafter, the trial court conducted what was termed an adjudicatory hearing as to Father. Without objection, the court took judicial notice of the findings made in the original order adjudicating the children dependent, although DCF presented no evidence at the hearing and Father had, at all times, denied the allegations in the petition. Based on this “evidence,” the trial court found DCF had failed to prove that Father either abused or neglected the children. Despite substantial evidence to the contrary, the court specifically found the evidence insufficient to establish that Father had a substance abuse issue.

We must accept the trial court’s findings of fact, given the conflicting nature of the testimony. Notwithstanding those findings, the trial court found the children were at substantial risk of prospective abuse, abandonment, or neglect by Father, because he admitted he was aware of Mother’s ongoing substance abuse and had left the children unsupervised with her. The court reaffirmed the case plan entered at the time of the initial disposition, but struck Father’s substance abuse tasks while ordering random urinalysis testing. This resulted in a continued non-relative placement, but with unsupervised visitation by Father.

DCF concedes that the trial court erred in its procedural handling of the case. To its credit, DCF shoulders some of the responsibility, acknowledging that:

The parties inadvertently led the court astray concerning proper procedure. That led to an understandable but misguided effort to expeditiously handle the dependency proceedings, which resulted in the lower court’s rush to disposition based on the mother’s failure to appear while postponing the adjudicatory hearing on the petition’s allegations concerning father. There was no separate petition or motion for supplemental adjudication filed....

This acknowledgement reflects the framework of section 39.507(7)(a), Florida Statutes (2011), which provides:

For as long as a court maintains jurisdiction over a dependency case, only one order adjudicating each child in the case dependent shall be entered. This order establishes the legal status of the child for purposes of proceedings under this chapter and may be based on the conduct of one parent, both parents, or a legal custodian.

We discussed the operation of this statute in P.S. v. Department of Children and Families, 4 So.3d 719 (Fla. 5th DCA 2009). In P.S., the mother entered a consent plea that resulted in the children being adjudicated dependent. Following that adjudication, DCF filed a second amended petition alleging separate and distinct grounds against the father. After a hearing, the trial court found the children at risk and entered a “second” order adjudicating the children dependent due to a substantial risk of prospective abuse or neglect. We found the entry of a second order of dependency improper and noted the trial court’s improper focus on the issue of prospective abuse or neglect. Instead, section 39.507(7)(b) required the trial court to hold an evidentiary hearing to determine whether the father had actually abused, abandoned, or neglected the children:

It is significant to observe that while a child can be found dependent if he or she is “at substantial risk of imminent abuse, abandonment, or neglect,” section 39.507(7)(b) only requires a trial judge, who has already adjudicated a child to be dependent, to determine whether each parent has actually abused, abandoned or neglected the child. Thus, in this case, the primary purpose of the evidentiary hearing should have been to determine if the father had actually abused or neglected R.S. and B.S. — not whether the children were at substantial risk of imminent abuse or neglect.

Id. at 720-21 (footnote omitted).

Assuming, in the present case, we were to treat the hearing conducted as that which was required under 39.507(7)(b), the trial court found Father did not abuse or neglect the children. Instead, contrary to the procedure outlined in P.S. and the statute, the trial court improperly considered the issue of prospective abuse or neglect. This was error.

The finding of dependency defines the legal status of the children, not the parents. On remand, the trial court is not without options. See J.P. v. Dep’t of Children & Families, 855 So.2d 175 (Fla. 5th DCA 2003); B.C. v. Dep’t of Children & Families, 864 So.2d 486 (Fla. 5th DCA 2004).

REVERSED and REMANDED.

EVANDER and JACOBUS, JJ., concur.

      . Both Father and his counsel were present for the hearing. Mother was present only through counsel.

      . No allegations were made as to abandonment.

      . There was evidence in the record that Father had "watered down” urine samples provided for assessment. Other evidence reflected that Father had been placed on a program to wean his long-term use of prescription medications for pain and had been unsuccessful in those attempts. Numerous prescription bottles were located in the parents’ bedroom, many with patient names other than those of either parent.

      . Neither side cited this case to the trial judge.


author: ORFINGER, C.J.

text:
    G.L., Father of T.M.L., a child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee.
    No. 5D11-1502.
    District Court of Appeal of Florida, Fifth District.
    Feb. 14, 2012.

      Heather Morcroft, Orlando, for Appellant.
    Rosemarie Farrell, Orlando, for Appel-lee, Department of Children and Families.
    Laura E. Lawson, Tavares, for Appellee, Guardian ad Litem.
   ORFINGER, C.J.

The father, G.L., appeals the termination of his parental rights to his child, T.M.L. He contends that the notice requirements of the Indian Child Welfare Act of 1978 (“ICWA”), 25 U.S.C.A. §§ 1901-1963 (2010), were not met. We agree, reverse the judgment, and remand with directions.

As a result of her parents’ drug history, domestic violence and related criminal history, T.M.L. was sheltered and placed in foster care. The Department of Children and Families (“DCF”) filed an expedited petition to terminate the mother’s and father’s parental rights. In response, the mother filed a notice with the court alleging that she and the child have Indian ancestry and, as a consequence, the ICWA was applicable. The court minutes reflect that the trial court and the parties were aware of the need to satisfy the ICWA’s requirements based on the mother’s notice. However, the trial court made no determination as to applicability of the ICWA. The mother and father appeared at the termination hearing, and neither the parents, DCF nor the court raised the issue of the ICWA’s applicability. The court terminated parental rights. While the mother did not appeal, the father claims that the trial court’s failure to comply with the ICWA requires reversal.

At the outset, we reject DCF’s assertion that this issue may not be addressed on appeal as it was not raised by the father below. Section 1912 of the ICWA provides that “[i]n any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.” Thus, under the ICWA, DCF has the burden of notifying the appropriate Indian tribes so that the trial court has the information necessary to determine whether the ICWA is applicable.

We find that the provisions of the federal ICWA allowing post-judgment challenges to involuntary termination proceedings preempt the traditional rules regarding preservation of error. The notice requirements enumerated in the ICWA are mandatory and preempt state law, and the failure to follow the ICWA may be raised for the first time on appeal. See 25 U.S.C.A. § 1914 (stating that Indian child, parent of child, or tribe may petition any court of competent jurisdiction to set aside involuntary termination for failure to comply with ICWA); see also In re Antoinette S., 104 Cal.App.4th 1401, 129 Cal.Rptr.2d 15, 21 (2002) (finding that father’s failure to raise issue of applicability of ICWA notice requirement did not waive issue on appeal of termination of parental rights because notice requirement is intended, in part, to protect interests of Indian tribes, and therefore, cannot be waived by parents’ failure to raise it); People in Interest of J.O., 170 P.3d 840, 842 (Colo.Ct.App.2007) (stating that “notice requirements of the ICWA serve the interests of the Indian tribes and, therefore, cannot be waived by a parent and may be raised for the first time on appeal”); In re 302 S.W.3d 896, 899 (Tex.App.2009) (finding that ICWA protections are mandatory and preempt state preservation of error law). But see In Interest of J.D.B., 584 N.W.2d 577, 581 (Iowa Ct.App.1998) (“[W]e find nothing in ICWA which expressly or impliedly preempts a state’s error preservation rules.”).

Congress enacted the ICWA for the purpose of protecting the best interests of Indian children and to promote the stability and security of Indian tribes and families. Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989). The ICWA applies when the state seeks to place an Indian child in foster care or terminate parental rights. See 25 U.S.C.A. §§ 1911, 1912. Under those circumstances, whenever the court has reason to know that the child may be an Indian child, DCF, as the party seeking placement or termination, must provide notice to the child’s tribe, or the Bureau of Indian Affairs (“BIA”) if the tribe cannot be identified or located, with return receipt requested, of the pending proceedings and of the tribe’s right to intervene. 25 U.S.C.A. § 1912(a). The tribe must receive notice because “the best source of information on whether a particular child is Indian is the tribe itself’ and “tribal verification is preferred.” Bureau of Indian Affairs Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67,584, 67,586 (B.1 Commentary) (Nov. 26, 1979) (“the Guidelines”). The record before us contains no proof of notice to the tribes, and it is undisputed that the court did not determine whether T.M.L. is an Indian child.

Here, the trial court had reason to believe that T.M.L. is an Indian child. See BIA Guidelines, 44 Fed. Reg. at 67,-586 (providing that court may have “reason to believe” child is an Indian child if (1) any party to the case, Indian tribe, Indian organization, or public or private agency informs court that child is Indian; (2) any public or state-licensed agency involved in child protection services or family support has discovered information that suggests child is Indian; or (3) officer of court involved in proceeding has knowledge that child may be Indian). Once the trial court had reason to believe that T.M.L. is an Indian child, the notice provisions of the ICWA were triggered and were mandatory. See BIA Guidelines, 44 Fed. Reg. at 67,586 (providing that when state court has reason to believe child involved in child custody proceeding is an Indian, court shall seek verification of child’s status from either BIA or child’s tribe); In re Antoinette S., 129 Cal.Rptr.2d at 21 (indicating that “minimal showing” required trigger notice under ICWA is merely evidence suggesting minor may be an Indian child within purview of Act); B.H. v. People in Interest of X.H., 138 P.3d 299, 304 (Colo.2006) (stating that sufficiently reliable information of any criteria on which membership might be based triggers ICWA’s notice provisions); J.O., 170 P.3d at 843 (indicating that parent’s possible Apache heritage required notice to all known Apache tribes); In re Dependency of T.L.G., 126 Wash.App. 181, 108 P.3d 156, 158 (2005) (requiring notice when child “possibly” an Indian child).

The trial court’s application of the ICWA is a question of law, which we review de novo. See Seminole Tribe of Fla. v. Dep’t of Children & Families, 959 So.2d 761, 765 (Fla. 4th DCA 2007); L.G. v. State, Dep’t of Health & Soc. Servs., 14 P.3d 946, 950 (Alaska 2000); Empson-Laviolette v. Crago, 280 Mich.App. 620, 760 N.W.2d 793, 797 (2008). In light of the ICWA’s explicit language, we cannot view the trial court’s failure to comply with the ICWA as harmless. See 25 U.S.C.A. § 1914 (stating that violation of ICWA notice provisions may be cause for invalidating termination of parental rights).

As the Second District recognized in In re T.D., 890 So.2d 473, 474 (Fla. 2d DCA 2004), it is important to determine early in the proceedings whether the ICWA might apply, and to follow the proper procedures to ensure that the notice requirements of the ICWA are met:

This situation puts into sharp focus the need for early investigation to determine whether American Indian children are involved in child custody or TPR proceedings. To insure compliance with the ICWA and to avoid the expenditure of state resources when the child’s Indi-an tribe should and wants to exercise its jurisdiction, we suggest that the Department, at the initiation of proceedings, or the trial court when it first is involved, inquire of the parents or relatives to determine the applicability of the ICWA. If the ICWA were presumptively applicable to this case, and had its procedures been properly followed, the great expenditure of scarce judicial and state resources that this case represents could have been avoided.

For these reasons, we reverse the termination order and remand this case to the trial court so that proper notice may be provided. On remand, the trial court shall conduct a hearing to determine whether T.M.L. is an Indian child under the ICWA. If, after notice and hearing, the trial court determines that T.M.L. is an Indian child, the trial court shall conduct a new trial applying the requirements and standards of the ICWA. If, after notice and a hearing, the trial court determines that T.M.L. is not an Indian child, the trial court may re-enter the termination order terminating the rights of the parents. See S.B. v. Dep’t of Health & Rehab. Servs., 679 So.2d 57, 57 (Fla. 4th DCA 1996) (reversing order terminating parental rights but stating that on remand, upon resolving notice issue, court may re-issue termination order).

REVERSED AND REMANDED.

TORPY and LAWSON, JJ., concur.

      . Federal law preempts state law when: (1) Congress has expressly preempted state law, (2) Congress has installed a comprehensive regulatory scheme in the area, removing the entire field from the state realm, or (3) state law directly conflicts with the force or purpose of federal law. See Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). Congress has not expressly stated that it was preempting state law concerning child custody proceedings by enacting the ICWA or that it intended for the ICWA to occupy the area of child custody proceedings completely. In re J.J.C., 302 S.W.3d 896, 899 (Tex.App.2009); In re W.D.H., 43 S.W.3d 30, 36 (Tex.App.2001).

      . Ail Indian child is defined by the ICWA as an "unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” 25 U.S.C.A. § 1903(4). The ICWA, however, does not define what constitutes being a "member” or "being eligible for membership” since each tribe has its own criteria for determining tribe membership. See In Interest of A.G.-G., 899 P.2d 319, 321 (Colo.App.Ct.1995).

      . The BIA created guidelines for state courts to use in Indian child custody proceedings to assist with the interpretation of the ICWA. See BIA Guidelines, 44 Fed. Reg. 67,584. Although the Guidelines are not binding, they have been considered persuasive by state courts. See, e.g., B.H. v. People in Interest of X.H., 138 P.3d 299, 302 n. 2 (Colo.2006); In re N.N.E., 752 N.W.2d 1, 7 (Iowa 2008); In re H.D., 11 Kan.App.2d 531, 729 P.2d 1234, 1238 (1986); In re Welfare of Child of: T.T.B. & G.W., 724 N.W.2d 300, 305 (Minn.2006); In re R.R., Jr., 294 S.W.3d 213, 218 (Tex.App.2009).

      . The mother’s notice stated that T.M.L.’s maternal grandfather was half Navajo and maternal grandmother was three-fourths Cherokee. Although "[t]he party asserting the applicability of ICWA has the burden to produce the necessary evidence for the trial court to determine if the child is an ‘Indian child,’ " In Interest of A.G.-G., 899 P.2d at 322, the threshold information necessary to trigger the notice requirement "was clearly not intended to be high.” B.H., 138 P.3d at 303.


author: DAMOORGIAN, J.

text:
    Joseph GYONGYOSI, individually, Eva Gyongyosi, individually, and Arthur L. Carter, individually, and collectively f/u/b/o Federal Insurance Company, Lexington Insurance Company, La Coquille Villas, Inc., a Florida corporation, and Coregis Insurance Company, Appellants, v. Alan MILLER and Jill Miller, Appellees.
    No. 4D10-483.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 2012.
    Rehearing Denied March 23, 2012.

      Robert I. Buchsbaum and Craig M. Greene of Kramer Green Zuckerman Greene & Buchsbaum, P.A., Hollywood, for appellants Gyongyosi, et. al.
    Paul Bartolacci of Cozen O’Connor, Philadelphia, PA, and Michael J. Ferrin, West Palm Beach, for appellants Lexington Insurance Company, La Coquille Villas, Inc., and Coregis Insurance Company, et. al.
    Scott J. Frank of Butler Pappas Weih-muller Katz Craig LLP, Tampa, for appel-lees.
   DAMOORGIAN, J.

Appellants, Plaintiffs below, appeal the final judgment arising out of an order granting Appellees’, Alan and Jill Miller’s (“Millers”), motion for directed verdict. Appellants argue that the trial court erred in directing a verdict against them. We disagree and affirm.

This case arises out of a liquid propane gas explosion which occurred at the vacation home of the Millers. The explosion destroyed the Millers’ residence and damaged several neighboring properties, including those owned by Joseph and Eva Gyongyosi and Arthur L. Carter. The Gyongyosis and Carter filed a complaint against multiple defendants, including the Millers, for damages sustained to their homes from the explosion. Lexington Insurance Company, as well as other insurance companies, also filed a complaint against multiple defendants including the Millers. The two complaints were ultimately consolidated and included counts for (i) ordinary negligence; (ii) negligence based on violations of various statutory, gas, and building code provisions; and (iii) vicarious liability against the Millers. Voluntary dismissals and settlements removed the other defendants from the action and the case against the Millers proceeded to trial.

The evidence presented during Plaintiffs’ case established that before the explosion, the Millers contracted Timothy Menzer to replace the floor tiles on the sun deck over their garage. Located below the concrete roof sun deck was a concealed gas line. This gas line was partially suspended from the garage ceiling by hangers, which were attached to the underside of the sun deck. Portions of the gas line were visible from the corners of the interi- or of the garage. There was no indication that any part of the gas line was located on top of the deck where Menzer was working. The Millers testified that they had no knowledge of the location or existence of the propane tank and no knowledge of the existence or location of the piping.

While working on the sun deck, Menzer used a chipping hammer to remove the existing floor tiles. The concrete roof deck was not damaged or penetrated during the process of removing the floor tile. Menzer did not come close to where the gas pipe was suspended. Sometime after Menzer finished removing the floor tile on the sun deck, an explosion occurred damaging the Millers’ property as well as the homes owned by Joseph and Eva Gyon-gyosi and Arthur L. Carter.

Plaintiffs presented two experts whose testimony supported the following explanation as to the cause of the explosion. Two of the five hangers, which were used to suspend the gas pipe from the garage ceiling (the underside of the sun deck), had detached from the ceiling, causing the gas pipe to sag. The sagging in turn caused additional tension on the system, initiating a fracture at an elbow joint of the piping system. This fracture allowed gas to leak. The leaking gas was likely ignited by a water heater pilot light located adjacent to the garage, resulting in the explosion. The cause of the hangers detaching was likely from vibrations created by Menzer’s use of the chipping hammer above the garage.

In addition to the causation experts, Plaintiffs also presented the testimony of James McKay, a professional engineer and registered architect with experience in construction and demolition. His testimony related to certain safeguards promulgated by the National Fire Protection Association (“NFPA”), incorporated by the town’s building codes. In particular, his testimony concerned NFPA 241 entitled “Standard for Safeguarding Construction, Alteration, and Demolition Operations.” NFPA 241 does not define demolition, and Plaintiffs sought to elicit testimony from McKay that Menzer’s work constituted demolition, subjecting it to the requirements of NFPA 241. The trial court required Plaintiffs to proffer this testimony outside the presence of the jury. During this proffer, McKay opined that the work performed on the sun deck constituted demolition. He focused on the fact that the method chosen to remove the floor tile, i.e. with a chipping hammer, presented a potential hazard to the substrate of the roof deck. After considering McKay’s testimony, the trial court ruled that as a matter of law the work performed by Menzer was not “demolition” because that term should be defined by the “scope of the work to be performed, not the manner in which it is performed.”

In the presence of the jury, McKay was offered as an expert witness in the areas of standard of care of contractors performing alteration and demolition work. McKay was not allowed to testify concerning whether Menzer’s work constituted demolition. However, he was allowed to testify that Menzer’s work neither met the requirements of NFPA 241 nor met any reasonable standard of care for a contractor doing that type of work. McKay testified that before commencing the work, Menzer should have surveyed the area, both inside and adjacent to the work area, and identified potential hazards including utility lines. He also opined that the Millers failed to satisfy the requirements of NFPA 241.

At the close of the Plaintiffs’ case, the Millers made multiple motions for directed verdict with respect to the vicarious liability and negligence counts. The trial court granted the Millers’ motions and in an order concluded, as a matter of law, that the work performed by Menzer was not “demolition” under NFPA 241 and not an “ultra-hazardous activity.” The court further concluded that NFPA 241 was not specifically pled in the amended complaints and there was no evidence of a violation of NFPA 241. Additionally, the chain of events leading to Plaintiffs’ damage was not foreseeable as a matter of law, and the Millers, as homeowners, had no duty to know the location or operation of latent piping systems in their house. Finally, the trial court held that, as a matter of law, no reasonable jury could find that the evidence presented in Plaintiffs’ case established any liability on the Millers’ behalf. This appeal follows.

The standard of review applicable to a ruling on a motion for directed verdict is de novo. Meruelo v. Mark Andrew of Palm Beaches, Ltd., 12 So.3d 247, 250 (Fla. 4th DCA 2009). “ ‘When an appellate court reviews the grant of a directed verdict, it must view the evidence and all inferences of fact in a light most favorable to the nonmoving party, and can affirm a directed verdict only where no proper view of the evidence could sustain a verdict in favor of the nonmoving party.” Id. (quoting Frenz Enters., Inc. v. Port Everglades, 746 So.2d 498, 502 (Fla. 4th DCA 1999)).

We first address whether the trial court erred in determining that the work performed by Menzer was not demolition as a matter of law. Our resolution of this issue necessarily requires us to decide whether Appellants’ expert should have been permitted to testify that the work performed constituted a “demolition,” making NFPA 241 applicable. Expert testimony may be presented in the form of an opinion “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue.... ” § 90.702, Fla. Stat. (2009). The admission of expert testimony has been allowed to explain the character of an object in order to determine if it complies with a statute, ordinance, or code. See Noa v. United Gas Pipeline Co., 305 So.2d 182 (Fla.1974) (allowing expert testimony regarding whether a spurline constituted a service line as defined in the relevant regulations); see also Chimeno v. Fontainebleau Hotel Corp., 251 So.2d 351 (Fla. 3d DCA 1971) (holding that expert testimony may be adduced to show the presence or absence of the elements which call a regulatory ordinance’s application into play).

In Noa, upon which Appellants primarily rely, the trial court allowed expert witness testimony on the issue of whether a spurline was a “service line” as defined by the relevant statute. Noa, 305 So.2d at 183-84. The evidence was essential to the plaintiffs negligence claim against the defendant for failure to comply with the statute’s requirement to odorize gas running through a service line. Id. There was conflicting expert testimony on the issue of whether the spurline constituted a “service line.” Id. at 185-86. On appeal, the district court held that the expert should not have been permitted to testify as to the interpretation of a regulatory definition. Id. at 184. The Florida Supreme Court reversed the district court, holding that the issue of “whether the spurline leading from the main pipeline ... was a service line ... within the contemplation of the ... regulations” was a factual question, which an expert engineer could properly testify about, and was “not readily answerable by the trial judge referring to the cold language of the regulations.” Id. at 185. The Florida Supreme Court concluded that at the very least, the conflicting expert testimony as to the applicability of the regulations created a question of fact for the jury. Id. at 186.

Similarly, in Chimeno, plaintiff filed a negligence action against a hotel and elevator company for injuries sustained through use of a freight elevator at the hotel. Chimeno, 251 So.2d at 351, 353. At trial, there was conflicting testimony as to whether there was a violation of a city ordinance relating to freight elevators. The ordinance specified a certain requirement, which was absent in the elevator in question, but provided an exception for “‘elevators having automatic or continuous-pressure operation.’ ” Id. at 353. The conflicting expert testimony at issue in Chimeno pertained to whether the hotel’s freight elevator fell within this exception, making the ordinance inapplicable. Id. The district court described the testimony as relating to the “character” of the elevator. Id. at 353-54.

This case is readily distinguishable from Noa and Chim,eno. Here, McKay did not testify about the character of an object nor did he give testimony regarding disputed facts, which could determine the requirements of NFPA 241. Instead, Plaintiffs offered McKay’s opinion that NFPA 241 applied to the work under contract in this case based on McKay’s own definition of demolition. McKay’s testimony was not necessary to determine whether removal of floor tile constituted demolition in order to apply NFPA 241 where demolition was not given a specific meaning in the regulation.

Instead, the question of what is meant by demolition in NFPA 241 is a question of law, subject to determination by the trial court. See Osborne v. Dumoulin, 55 So.3d 577, 581 (Fla.2011) (“The determination of the meaning of a statute is a question of law and thus is subject to de novo review.”); Edward J. Seibert, A.I.A., Architect & Planner, P.A. v. Bayport Beach & Tennis Club Ass’n, 573 So.2d 889, 891-92 (Fla. 2d DCA 1990) (holding that experts should not be allowed to testify concerning questions of law, and the interpretation of a building code presented a question of law); Devin v. City of Hollywood, 351 So.2d 1022, 1026 (Fla. 4th DCA 1976) (“We also hold that the trial court erred in relying upon expert testimony to determine the meaning of terms which were questions of law to be decided by the trial court.”). Contrary to Appellants’ position, the word demolition does not create any ambiguity requiring expert testimony to assist the trier of fact in applying the pertinent regulation because it is neither a technical term nor did the regulation provide a specific definition that was contrary to its ordinary meaning. Therefore, the trial court did not err in prohibiting an expert from defining the term demolition in NFPA 241 for the jury. See Lee County v. Barnett Banks, Inc., 711 So.2d 34, 34 (Fla. 2d DCA 1997) (“Statutory construction is a legal determination to be made by the trial judge, with the assistance of counsels’ legal arguments, not by way of ‘expert opinion.’ ”).

When a term is not defined, courts must look to its plain and ordinary meaning, which can be discerned from a dictionary. Sosa v. Safeway Premium Fin. Co., 73 So.3d 91, 104 (Fla.2011). The American Heritage Dictionary defines demolition as “the act or process of wrecking or destroying, especially] destruction by explosives.” American Heritage Dictionary 380 (2d Coll. ed. 1985). Although not defining demolition, Black’s Law Dictionary defines the term “demolish” as “[t]o destroy totally or to commence the work of total destruction with the purpose of completing the same.” Black’s Law Dictionary 432 (6th ed. 1995). The act of removing floor tiles with a chipping hammer in a manner that does not affect the integrity of the structure — as was done here — cannot constitute demolition as contemplated by NFPA 241. Concluding otherwise would defy common sense. As such, we affirm the trial court’s entry of a directed verdict on the issue of NFPA 241 because the trial court properly concluded that Menzer’s work was not “demolition” under the code.

Because we affirm the trial court’s conclusion that the tile removal and replacement did not constitute demolition as the term is used in NFPA 241, we need not address whether Plaintiffs properly pled a claim for negligence based on a breach of the requirements of NFPA 241.

We next address whether the trial court erred in its determination, as a matter of law, that the removal and replacement of tile was not an ultrahazardous/in-herently dangerous activity. Appellants argue that whether a particular activity is inherently dangerous is generally a question for the jury.

Florida courts allow for employers to be held vicariously liable for an independent contractor’s negligence under the inherently dangerous activities doctrine. Am. Home Assurance Co. v. Nat’l R.R. Passenger Corp., 908 So.2d 459, 468 (Fla.2005). This doctrine provides that a party who “ ‘employs an independent contractor to do work involving a special danger to others which the employer knows ... to be inherent in or normal to the work ... is subject to liability for physical ham caused to such others by the contractor’s failure to take reasonable precautions against such danger.’ ” Id. (quoting Restatement (Second) of Torts § 427 (1965)). An activity is inherently dangerous if the “danger inheres in the performance of the work,” such that “in the ordinary course of events its performance would probably, and not merely possibly, cause injury if proper precautions were not taken.” Fla. Power & Light Co. v. Price, 170 So.2d 293, 295 (Fla.1964) (involving worker injured while working on wires charged with high voltage electricity). This doctrine includes activities where there is a recognizable and substantial danger inherent in the work, even though a major hazard is not involved. Id.

We hold that danger does not inhere in the removal of floor tiles from a roof deck. Tile removal is not of such a nature that in the ordinary course of events, its performance would probably, and not merely possibly, cause injury if proper precautions were not taken. This Court finds American Automobile Ass’n, Inc. v. Tehrani, 508 So.2d 365 (Fla. 1st DCA 1987), analogous to the case at bar. In Tehrani the First District concluded that a jury should not have been permitted to consider whether operating a large wrecker was an inherently dangerous activity, and held that such activity was not inherently dangerous in the context of the case. Id. at 371. Similar to Tehrani, we hold that the trial court did not err in concluding, as a matter of law, that “in the context of this case,” the activity of removing tile from a roof with a chipping hammer was not inherently dangerous. See id.

Further support for this outcome is derived from case law from outside this jurisdiction. See, e.g., W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 71, 512-16 (5th ed., West 1984) (identifying inherently dangerous activities as excavation, construction, blasting, fireworks, crop dusting, the clearing of land by fire, tearing down high walls or chimneys, and the construction of a dam) (collecting cases); Eastman Kodak Co. v. Martin, 362 F.2d 684 (5th Cir.1966) (finding the activity of dismantling an abandoned portion of a power line and the subsequent work to allow a company to reuse the dismantled poles and wire used for the power line inherently dangerous); Waite v. Am. Airlines Inc., 73 F.Supp.2d 349, 357 n. 8 (S.D.N.Y.1999) (“[IJnherently dangerous ... activities typically include: blasting, pile driving, certain types of excavations, fumigation of buildings with dangerous gasses such as cyanide, the emission of noxious gasses into densely populated areas, and the collection of large quantities of explosives or inflammable liquids in a populous area.”) (citations omitted); Chainani by Chainani v. Bd. of Educ. of City of N.Y., 87 N.Y.2d 370, 639 N.Y.S.2d 971, 663 N.E.2d 283, 287 (1995) (“Familiar examples of inherently dangerous activities are blasting, certain types of construction and working with high tension electric wires.”) (internal citation omitted). Neither the parties nor this Court have identified a case where tile removal — in the manner which occurred here — constituted an “inherently dangerous” activity.

Finally, Appellants contend that the Millers had a common law duty to warn Men-zer of the propane gas line existing below him, and that this issue should have been resolved by the jury. Thus, the trial court erred in directing a verdict on the direct negligence count based on its determination that the Millers had no duty to know the location or operation of the piping systems in their home. Appellants also allege that foreseeability in the context of proximate causation is a question of fact for the jury, and therefore, the trial court erred in ruling that “[t]he chain of events leading to Plaintiffs’ damage was not foreseeable as a matter of law.”

A cause of action based on negligence is comprised of four elements. Clay Elec. Coop., Inc. v. Johnson, 873 So.2d 1182, 1185 (Fla.2003). The first is a “duty, or obligation, recognized by the law, requiring the [defendant] to conform to a certain standard of conduct, for the protection of others against unreasonable risks.” Id. (quoting W. Page Keeton et al., Pros-ser and Keeton on the Law of Torts, § 164-65 (5th ed., West 1984)). Whether a duty exists is a question of law for the court. Goldberg v. Fla. Power & Light Co., 899 So.2d 1105, 1110 (Fla.2005). While the supreme court has identified four general sources from which a duty may arise, here, a duty must arise from the fourth category-general facts of the case. See Clay Elec. Coop., Inc., 873 So.2d at 1185.

The Florida Supreme Court has explained:

[F]oreseeability relates to duty and proximate causation in different ways and to different ends. The duty element of negligence focuses on whether the defendant’s conduct foreseeably created a broader “zone of risk” that poses a general threat of harm to others. The proximate causation element, on the other hand, is concerned with whether and to what extent the defendant’s conduct foreseeably and substantially caused the specific injury that actually occurred.

McCain v. Fla. Power Corp., 593 So.2d 500, 502 (Fla.1992) (internal citations omitted). In Palm Beach-Broward Medical Imaging Center, Inc. v. Continental Grain Co., 715 So.2d 343 (Fla. 4th DCA 1998), we described the application of the foreseeable zone of risk test to determine the existence of legal duty, explaining that the focus should be on “the likelihood that a defendant’s conduct will result in the type of injury suffered by the plaintiff.” Id. at 345. “This aspect of foreseeability requires a court to evaluate ‘whether the type of negligent act involved in a particular case has so frequently previously resulted in the same type of injury or harm that ‘in the field of human experience’ the same type of result may be expected again.’ ” Id. at 345 (quoting Pinkerton-Hays Lumber Co. v. Pope, 127 So.2d 441, 443 (Fla.1961)). “The absence of a foreseeable zone of risk means that the law imposes no legal duty on a defendant, and therefore defeats a negligence claim.” Biglen v. Fla. Power & Light Co., 910 So.2d 405, 408 (Fla. 4th DCA 2005).

Under the facts of this case, if any foreseeable zone of risk was created by the Millers’ conduct, it did not extend to cover the type of injury suffered by Plaintiffs in this instance — i.e., a massive liquid propane gas explosion which damaged their properties. As noted earlier, the Millers did not even know that the piping in the garage existed. Moreover, the sun deck where Menzer was working to remove the floor tile did not contain any piping. The trial court properly determined that the Millers had no duty to advise an independent contractor about gas piping, which they had no knowledge of due to the fact that it was concealed in the garage below. More importantly, in light of the scope of work that Menzer was to perform, it was not reasonable for the Millers to anticipate the damage that occurred as a result of floor tile removal. Cf. Morales v. Weil, 44 So.3d 173, 176 (Fla. 4th DCA 2010) (explaining that where a homeowner hires an independent contractor, he or she is not liable for injuries sustained by that contractor’s employees in performing their work unless they actively participate in managing or performing the work). Because we conclude that there was no duty, we need not address the parties’ arguments relating to proximate causation.

Affirmed.

CIKLIN and LEVINE, JJ., concur.

      . The insurance companies were subrogated to the rights of the insured property owners for damages paid as a result of the explosion.

      . The trial court took judicial notice of the NFPA codes as adopted by the town, and the codes had also been stipulated into evidence.

      . NFPA 241 requires in part, that existing systems be preserved during demolition, including utilities, and requires implementation of a fire safety program in all construction, alteration or demolition contracts, with the owner having the authority to enforce this program. It also requires the owner to designate a person responsible for a fire prevention program.

      . Our reading of Florida cases where courts have found activities inherently dangerous involve situations where accidents resulting from such activities are likely to cause serious bodily injury or death. See, e.g., Channell v. Musselman Steel Fabricators, Inc., 224 So.2d 320 (Fla.1969) (trial court properly relied upon "inherently dangerous” theory where facts demonstrated that defendant's independent contractor utilized cable equipment to lift a load of steel beams, the cable snapped, and plaintiff was injured by the load); Baxley v. Dixie Land & Timber Co., 521 So.2d 170 (Fla. 1st DCA 1988) (the trial court found "the cutting, loading and delivering of logs” to be "inherently dangerous work” where an individual was killed at a logging site). These cases stand in stark contrast to the instant case where accidents caused by the removal of floor tile are not likely to result in serious bodily injury or death.


author: PER CURIAM. CONNER, J.,

text:
    R.B., The Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D11-2613.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 2012.

      Antony P. Ryan, Regional Counsel, and Crystal K. McBee, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Jeffrey Dana Gillen, West Palm Beach, for appellee Department of Children and Families.
    Hillary Kambour, Tavares, for appellee Guardian Ad Litem Program.
   PER CURIAM.

We affirm the final judgment of the trial court terminating appellant’s parental rights as to her child, A.N.B. Although she argues that the trial court failed to make a finding that reunification posed a substantial risk of significant harm to the child, as required by Padgett v. Department of Health & Rehabilitative Services, 577 So.2d 565, 571 (Fla.1991), the trial court found that: “The mother lacks the capacity to care for her children to the extent that his safety, well-being, physical, mental, and emotional health would be endangered if he was returned to her home.” We conclude that this finding meets the requirement of Padgett. In addition, the court found that termination was the least restrictive means of protecting the child. While appellant argues that the trial court’s findings are not supported by competent substantial evidence, our review of the record reveals that the evidence did support termination of appellant’s rights on the grounds that: (1) the mother’s continued involvement threatened the well-being of the child, irrespective of the provision of services, pursuant to section 39.806(l)(c), Florida Statutes; and (2) the mother had abandoned A.N.B. within the statutory meaning because the mother did not provide financial support and did not have a substantial and positive relationship with the child, pursuant to section 39.806(l)(b), Florida Statutes.

Affirmed.

WARNER and STEVENSON, JJ., concur.

CONNER, J., concurs in part and dissents in part.

CONNER, J.,

concurring in part, dissenting in part.

I concur with all of the majority opinion except for the determination that the evidence supports the termination of parental rights because R.B. abandoned A.N.B.

Section 39.01(1), Florida Statutes (2010), provides:

“Abandoned” or “abandonment” means a situation in which the parent or legal custodian of a child ... while being able, makes no provision for the child’s support and has failed to establish or maintain a substantial and positive relationship with the child. For purposes of this subsection, “establishes or maintains a substantial and positive relationship” includes, but is not limited to, frequent and regular contact with the child through frequent and regular visitation. ...

Thus, it appears that “abandonment” has two components: 1) failure to provide support for the child, and 2) failure to establish or maintain a substantial and positive relationship with the child.

The evidence was clear and convincing that R.B. did not provide support for A.N.B. However, there was no competent substantial evidence to support the trial court’s determination that R.B. failed to establish or maintain a substantial and positive relationship with A.N.B.

A.N.B. was born on November 4, 2010, and the final hearing was conducted on May 9, 2011. Thus, the child was six months old at the time of the termination hearing. There was evidence that R.B. was readmitted to the hospital shortly after A.N.B.’s birth due to complications from the birth. Then she was incarcerated for a probation violation in January 2011 and remained in custody until March 2011. During the child’s first six months of life, R.B. visited the child fifteen times. She never missed scheduled visits with the baby and conducted herself appropriately during those visits. If she was available to visit with the baby for only three months (because the rest of the time she was hospitalized or incarcerated), then it appears her visits were “frequent and regular” when she visited the baby fifteen times. Even assuming the mother is faulted for getting herself arrested for violation of probation and creating the circumstance which precluded more frequent visits, fifteen visits over six months is enough to demonstrate R.B. did not abandon A.N.B. In my view the second component of “abandonment” was not proven.


text:
    Juan R. ACHURRA, Appellant, v. Esperanza ACHURRA, Appellee.
    No. 1D11-2126.
    District Court of Appeal of Florida, First District.
    Feb. 17, 2012.

      Drew Franklin Winters, Tallahassee, for Appellant.
    Linda A. Bailey, of Law Office of Linda A. Bailey, P.A., Tallahassee, for Appellee.
   PER CURIAM.

Juan Achurra (the husband) appeals a final judgment of injunction issued by the trial court to protect Esperanza Achurra (the wife) and the parties’ minor children from domestic violence. Given the lack of proof in the record to support the allegations in the petition on which the final judgment was based, we are constrained to reverse. Coe v. Coe, 39 So.3d 542 (Fla. 2d DCA 2010).

On March 31, 2011, Mrs. Achurra filed a sworn petition seeking an injunction for protection from domestic violence by Mr. Achurra, who was named the respondent. § 741.30(l)(a) & (3), Fla. Stat. (2010). The trial court issued an ex parte temporary injunction and scheduled an evidentiary hearing. § 741.30(5)(a), Fla. Stat. (2010). Mr. Achurra filed a response denying the material allegations made against him.

At the commencement of the petition hearing on Monday, April 18, 2011, Mrs. Achurra’s counsel asked the court to take judicial notice of a hearing held the previous Wednesday, April 13, in a separate case on a different matter, the parties’ dissolution of marriage proceeding. §§ 90.202-.204, Fla. Stat. (2010). Counsel requested time to- supplement the record with the transcript of the dissolution hearing. The attorney explained that taking judicial notice of the other proceeding would avoid the presentation of redundant testimony in the domestic violence proceeding. The circuit judge stated that he had retained his notes of the prior week’s proceeding and announced his intent to review the other file and to allow the transcript from the earlier proceeding to be filed in the domestic violence injunction case. Mr. Achurra, who was not represented by counsel in the trial court, neither objected to the request to take judicial notice nor complained of a lack of prior notice. At the close of the domestic violence hearing, the court stated its intent to maintain the injunction until the pertinent investigations were concluded. Mr. Achurra denied that any criminal investigation was ongoing. The judge made no oral findings of fact to support his ruling. Subsequently, a different circuit judge issued the standard-form written final judgment of injunction against domestic violence that is the subject of this appeal.

Mr. Achurra challenges the final judgment on three grounds. First, he contends that the trial court erred by relying on pleadings, testimony, and any other evidence from the previous proceedings without properly taking judicial notice. Given Mr. Achurra’s failure to object to opposing counsel’s request and the court’s stated intent to take judicial notice, this issue was not properly preserved for appellate review, and we decline to consider it. Celentano v. Banker, 728 So.2d 244, 245-46 (Fla. 4th DCA 1998); DeLuca v. State, 384 So.2d 212, 212-13 (Fla. 4th DCA 1980) (holding that the failure to object to the admission of contested evidence waived the right to appellate review of the issue).

Second and third, Mr. Achurra argues that the trial court failed to make findings of fact to support its conclusions that he had committed an act of domestic violence or that Mrs. Achurra had a reasonable basis to believe that she or the children were in danger of becoming domestic violence victims; and that no competent substantial evidence would support entry of the final judgment of injunction. See Trowell v. Meals, 618 So.2d 351 (Fla. 1st DCA 1993) (supporting the proposition that without adequate findings supported by the record, a final judgment must be reversed). Our review of the trial court’s conclusion of law that the petitioner is entitled to a final judgment of injunction against domestic violence is de novo. Puskar v. Puskar, 29 So.3d 1201 (Fla. 1st DCA 2010).

The boilerplate final judgment includes no individualized findings of fact pertaining to this case. To the extent that Mr. Achurra challenges the lack of explanatory findings of fact relating to the statutory factors for determining entitlement to a final judgment of injunction for domestic violence, this issue was not preserved for appellate review, in that Mr. Achurra never brought this matter to the trial court to afford a reasonable opportunity to correct the deficiency. See Jonsson v. Dickinson, 46 So.3d 1016 (Fla. 1st DCA 2010); Mize v. Mize, 45 So.3d 49, 49 n. 1 (Fla. 1st DCA 2010); Owens v. Owens, 973 So.2d 1169 (Fla. 1st DCA 2007).

However, we can consider for the first time on appeal the “insufficiency of the evidence” issue. See Fla. R. Civ. P. 1.530(e); Welch v. Welch, 22 So.3d 153, 154 (Fla. 1st DCA 2009) (revised opinion on motions for withdrawal of opinion, clarification, reh’g, or reh’g en banc). Mrs. Achurra, the petitioner, had the initial burden to prove entitlement to relief. § 741.30(l)(a), Fla. Stat. (2010); Ambrefe v. Ambrefe, 993 So.2d 98, 98-99 (Fla. 2d DCA 2008). She presented no evidence, however, at the petition hearing. So far as we can tell, the trial court never received and considered a copy of the transcript of the April 13 proceedings of which it agreed to take judicial notice. Any admissible evidence that may have been presented in the April 13 transcript, which is not in the record on appeal, is unavailable to us. Thus, we review a final judgment of injunction against domestic violence that is not based on any competent substantial evidence of record. Bresch v. Henderson, 761 So.2d 449 (Fla. 2d DCA 2000); Gustafson v. Mauck, 743 So.2d 614, 615-16 (Fla. 1st DCA 1999) (on motion for reh’g) (supporting the proposition that for a final judgment to be affirmed, the record must demonstrate a sufficient basis for the conclusions of law).

We respect the gravity of the circumstances involved in any domestic violence proceeding, which implicates due process considerations. Furry v. Rickles, 68 So.3d 389 (Fla. 1st DCA 2011); Smith v. Smith, 964 So.2d 217 (Fla. 2d DCA 2007). Just as the petitioner has the right to allege and prove the grounds for injunc-tive protection at a full and fair evidentiary hearing, the respondent is entitled to a fair hearing and protection from the effects of a final judgment of injunction that lacks any evidentiary support. Samanka v. Brookhouser, 899 So.2d 1190 (Fla. 2d DCA 2005) (concluding that respondent daughter’s due process rights were violated when trial court extended and modified permanent injunction for protection against domestic violence, where challenged ruling was based entirely on mere allegations contained in petitioner mother’s motion for extension of injunction). Given the deficient record before us, we are constrained to REVERSE the final judgment of injunction.

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


author: WOLF, J.

text:
    Alexander Lamar PRINCE, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5058.
    District Court of Appeal of Florida, First District.
    Feb. 17, 2012.
    Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant seeks review of his convictions for failure to report a change of residence as required by. section 943.0435, Florida Statutes (2010), alleging the trial court erred in denying his motion for judgment of acquittal. We agree and reverse because the only evidence of guilt was prior inconsistent statements given by appellant’s fiancé. Prior inconsistent statements may not provide the sole evidence of guilt. See Aime v. State, 4 So.3d 57, 60 (Fla. 4th DCA 2009) (citations omitted) (“While the law allows the admission of some prior inconsistent statements as substantive evidence, those statements cannot be the sole evidence of guilt and must comport with section 90.801(2)(a), Florida Statutes (2007).”). As such, the trial court erred in denying the motion for judgment of acquittal, and we reverse for vacation of appellant’s convictions.

REVERSED.

PADOVANO and MARSTILLER, JJ., concur.


author: KHOUZAM, Judge.

text:
    Alexander CRAIN, Petitioner, v. PRISON HEALTH SERVICES and Collier County Sheriff, Respondents.
    No. 2D11-4427.
    District Court of Appeal of Florida, Second District.
    Feb. 17, 2012.
    Brian B. Bieber of Hirschhorn & Bieber, P.A., Coral Gables, and Mark P. Rankin of Shutts & Bowen, LLP, Tampa, for Petitioner.
    Gregg A. Toomey of Bunnell & Woulfe, P.A., Fort Myers, for Respondents.
   KHOUZAM, Judge.

Alexander Crain seeks certiorari review of the circuit court’s order denying his motion to receive confidential mental health counseling from a privately retained psychologist without it counting as a “visit” for purposes of the county jail’s internal policy allowing prisoners only two visits per week. Because the circuit court did not depart from the essential requirements of the law, we deny Crain’s petition.

Crain — who is fifteen years old — was charged as an adult with manslaughter for allegedly killing his parents. His trial is scheduled to begin on April 23, 2012. He was initially held in a juvenile detention facility but is currently being held in jail. In the detention center, Crain was being treated by a psychologist privately retained by his family. In jail, the sessions with his private psychologist count as visits, and he is allowed only two visits per week.

Crain’s counsel requested that Crain be permitted to meet with the psychologist without the sessions counting as visits, but the jail personnel denied the request. Crain’s counsel then filed a motion in circuit court requesting that the psychologist be allowed to provide Crain treatment in jail. Both the Sheriff and Prison Health Services (PHS) — which has contracted with the Sheriff to provide mental health services in the jail — opposed Crain’s motion. Following a hearing, the circuit court denied Crain’s motion. Crain now seeks certiorari review of the circuit court’s order.

To prevail in a certiorari proceeding, “ ‘a petitioner must show that there has been a departure from the essential requirements of law that causes material and irreparable harm.’ ” State v. Jones, 30 So.3d 619, 621 (Fla. 2d DCA 2010) (quoting Gonzalez v. State, 15 So.3d 37, 39 (Fla. 2d DCA 2009)). Here, Crain argues that the circuit court departed from the essential requirements of law by failing to grant him relief. He claims that he is being deprived of confidential mental health treatment because a session with the psychologist of his choice counts as a visit and he is limited to two visits per week. The crux of his argument is that the mental health treatment provided by jail staff is not confidential.

But the contract between PHS and the Sheriff provides that PHS must maintain patient confidentiality according to applicable law:

Medical Records. PHS will cause to be maintained a medical record for each inmate who has received health care services. This medical record will be maintained pursuant to applicable law and will be kept separate from the inmate’s confinement record. A copy of the appropriate medical record will be available to accompany an inmate who is transferred from the Facilities to another location for off site services. Medical records will be kept confidential and PHS will follow CCSO policy with regard to access by inmates and Facilities staff to medical records, subject to applicable law regarding confidentiality of such records. No information contained in the medical records will be released by PHS except as provided by CCSO policy, by request of the Sheriff or his designee, by a court order, or otherwise in accordance with applicable law. PHS will insure that inmate medical confidentiality policies meet all requirements of the Health Insurance Portability and Accountability Act of 1996 (HIPAA). All inmate records are and shall remain the property of CCSO.

Section 90.508, Florida Statutes (2011), recognizes a psychotherapist-patient privilege and carves out three exceptions— none of which apply here. So Crain does have access to confidential mental health care in jail. And because he already has access to confidential treatment, the circuit court did not depart from the essential requirements of the law by denying his request for additional mental health treatment by his personal psychologist. Accordingly, we deny Crain’s petition for writ of certiorari.

Denied.

DAVIS and KELLY, JJ., Concur.