author: PADOYANO, J. KAHN, J.,

text:
    ROADRUNNER CONSTRUCTION, INC., Appellant, v. DEPARTMENT OF FINANCIAL SERVICES, DIVISION OF WORKERS’ COMPENSATION, Appellee.
    No. 1D09-6551.
    District Court of Appeal of Florida, First District.
    March 25, 2010.
    Rehearing Denied April 29, 2010.

      Patrick John McGinley of the Law Office of Patrick McGinley, Winter Park, for Appellant.
    Benjamin F. Diamond, General Counsel, and Paige Billings Shoemaker, Assistant General Counsel, Department of Financial Services, Tallahassee; Eugene Wyatt, Orlando, for Appellee.
   PADOYANO, J.

This is an appeal from a final administrative order. Both the original notice of appeal submitted to the agency clerk and the duplicate copy of the notice submitted to the clerk of this court were untimely. Because the appellant has failed to invoke the jurisdiction of the court, the appeal must be dismissed.

The Department of Financial Services ordered Roadrunner Construction, Inc., to pay $667,000.00 into the Workers’ Compensation Administrative Trust Fund as a penalty for failing to comply with an earlier order. The Department’s final order was rendered on November 24, 2009. Roadrunner filed the original of its notice of appeal with the agency clerk on Monday, December 28, 2009, and transmitted the duplicate copy of the notice to the clerk of the First District Court of Appeal by mail. The duplicate copy was filed when it was received on Tuesday, December 29, 2009.

The Department moved to dismiss the appeal, contending that the last day to file the notice was Thursday, December 24, 2009, a day that was not identified as an official holiday under rule 9.420(f) of the Florida Rules of Appellate Procedure. In response, Roadrunner argued that the last day should not be included in the calculation, because the office of the clerk of the First District Court of Appeal was closed on that day. Roadrunner also pointed out that although December 24, 2009, was not listed in rule 9.420(f) as an official holiday, many of the other court clerk offices around the state were closed. However, Roadrunner could not establish that the office of the agency clerk for the Department of Financial Services, was closed on December 24, 2009. We have subsequently verified that-the agency clerk’s office was open for business on that day.

Article V, section 2(a) of the Florida Constitution provides that the supreme court shall have exclusive authority to set the time limits for invoking appellate jurisdiction. Section 59.081, Florida Statutes (2009), implements this authority. By the terms of the statute, failure to initiate an appellate proceeding within the time set by the supreme court divests the appellate court of jurisdiction. These principles of law require the Florida appellate courts to dismiss an appeal for lack of jurisdiction if it was not initiated within the applicable time limit. See State ex rel. Cantera v. District Court of Appeal, Third District, 555 So.2d 860 (Fla.1990); Miami-Dade County v. Peart, 843 So.2d 363 (Fla. 3d DCA 2003); Mekertin v. Winn Dixie Stores, Inc., 869 So.2d 1286 (Fla. 4th DCA 2004).

The supreme court established the jurisdictional time limit for initiating an appeal from a final administrative order by adopting rule 9.110(c). This rule states that “the appellant shall file the original notice with the clerk of the lower administrative tribunal within 30 days of rendition of the order to be reviewed, and file a copy of the notice, accompanied by any filing fees prescribed by law, with the clerk of the court.”

The term “court” is used in the appellate rules to mean the appellate court: that is, the court to which the proceeding is directed. See Fla. R.App. P. 9.020(c); American Medical Int’l, Inc. v. Scheller, 484 So.2d 593 (Fla. 4th DCA 1985). To avoid confusion, the court or tribunal from which the appeal has been taken is referred to in the appellate rules as the “lower tribunal.” See Fla. R.App. P. 9.020(e). The terms “court” and “lower tribunal” are mutually exclusive in that they each have only one meaning in an appellate proceeding. In contrast, the term “clerk” could mean the clerk of the lower tribunal or the clerk of the appellate court depending on the context in which the term is used. Rule 9.020(b) defines the term “clerk” as “[t]he person or official specifically designated as such for the court or lower tribunal.”

These definitions remove any possible ambiguity that might otherwise exist in rule 9.110(c). According to the text of the rule, the original of the notice of appeal is to be filed with “the clerk of the lower administrative tribunal” within thirty days of the date of rendition of the order. This could only mean the agency clerk — in this case, the clerk for the Department, of Financial Services. The appellant is also directed to file a duplicate copy of the notice with the “clerk of the court.” This could only mean the clerk of the appellate court — in this case the clerk of the First District Court of Appeal.

To invoke the jurisdiction of this court, the appellant would have been required to file the original notice of appeal with the agency clerk within thirty days of the date of rendition. See Bank of Port St. Joe v. Dep’t of Banking and Finance, 362 So.2d 96 (Fla. 1st DCA 1978). Rule 9.420(f) provides that in computing any time period under the appellate rules, the day of the act or event is not included, but the last day is included, unless the last day is a Saturday, Sunday or a legal holiday, in which case the last day is the next day that is not a Saturday, Sunday or legal holiday. The rule then contains a list of the designated holidays and it includes at the end of the list a provision that defines the term “holiday” as “any other day when the clerk’s office is closed.”

According to the calendar, the last day to file the notice of appeal in the present case would have been Thursday, December 24, 2009. If that day had been a holiday, the appellant would have had until Monday, December 28, 2009, the next day that was not a Saturday, Sunday or legal holiday. But December 24, 2009, was not a holiday. It is not listed as an official holiday, and the office of the clerk of the lower administrative tribunal was not closed on that day.

The only way that we could hold that this court has jurisdiction is if we were to conclude that the appellant had an extra day to file the notice of appeal in the lower tribunal because the clerk of this court was closed on the last day. That would make little sense, given the fact that the notice was to be filed in the lower tribunal, not in this court. Because the clerk of the lower tribunal was open for business on the last calendar day, the notice of appeal could have been filed there on that day. It makes no difference that the clerk of the First District Court of Appeal was closed.

We have acknowledged that the term “clerk” as defined in rule 9.020(b) could refer to the clerk of the lower tribunal or the clerk of the appellate court, but there can be no doubt about the meaning of the term as it is used in rule 9.420(f). The word “clerk” in the phrase “any other day in which the clerk’s office is closed” is plainly a reference to the clerk in the office where the document at issue is to be filed. As the rale is applied to this case, the term “clerk” means the office of the clerk of the lower tribunal, the place where the notice of appeal was to be filed.

The appellant would have us carry the jurisdictional time period forward to the next business day if either the clerk’s office of the lower tribunal or the clerk’s office of the appellate court is closed on the last calendar day, but that would not be a reasonable interpretation of rule 9.420(f). The point of allowing additional time if the clerk’s office is closed on the last calendar day is to ensure that the appellant has the full thirty days to file the notice of appeal. If the clerk’s office where the notice of appeal is to be filed is open on the last calendar day, the notice can be filed there on that day. In that event, it would be of no consequence to the appellant that some other clerk’s office happens to be closed.

The calculation procedure in rule 9.420(f) affords every litigant precisely the same amount of time. The procedure eliminates the first day, thereby accounting for the fact that the event from which the time is to run might occur early or late on that day, and excludes the last day if it is a Saturday, Sunday or legal holiday, thereby preventing the possibility that the time would be effectively shortened if the last day fell on a day when the document in question could not be accepted for filing. If we were to adopt the appellant’s interpretation of rale 9.420(f), the result would be to add time to the jurisdictional time period set by the supreme court. The effect of such a holding would be to grant the appellant another business day to file an appeal.

This is not a situation in which the failure to file the notice of appeal on time was caused by an error in selecting the correct appellate remedy or by an error in directing the review proceeding to the proper forum. Compare Johnson v. Citizens State Bank, 537 So.2d 96 (Fla.1989) (holding that a notice of appeal filed in the lower tribunal within thirty days can be treated as a timely petition for writ of certiorari in the district court); Skinner v. Skinner, 561 So.2d 260 (Fla.1990) (holding that a petition for writ of certiorari filed in the district court within thirty days can be treated as a timely notice of appeal in the lower tribunal); Alfonso v. Dep’t of Environmental Regulation, 616 So.2d 44 (Fla.1993) (holding that a notice of appeal filed within thirty days in the appellate court can be treated as a timely notice of appeal in the lower tribunal); Kaweblum v. Thornhill Estates Homeowners Ass’n, 755 So.2d 85 (Fla.2000) (holding that a notice of appeal filed on time but in the wrong lower tribunal can be effective to confer jurisdiction on the appellate court). In each of these cases, the party seeking review submitted a timely document that would have been effective to confer jurisdiction on the appellate court had it been filed in the correct forum or in the correct location. By contrast, the appellant in this case failed to file any document in any tribunal within the jurisdictional time limit.

We have also considered the possibility that the duplicate copy of the notice of appeal might be sufficient to vest jurisdiction in this court. Rule 9.110(c) has been interpreted to vest jurisdiction in the appellate court if either copy of the notice was filed within the jurisdictional time period for taking an appeal. See Williams v. Greadington, 410 So.2d 644 (Fla. 1st DCA 1982); Broxton v. State Bd. of Educ., 601 So.2d 1292 (Fla. 5th DCA 1992). However, in the present case the duplicate copy of the notice was also filed beyond the jurisdictional time limit.

If we were to conclude that the duplicate copy of the notice of appeal was alone sufficient to establish appellate jurisdiction, and if we were to hold that the appellant could not be expected to file it here on the thirtieth day from rendition because our own court clerk’s office was closed on that day, the duplicate of the notice would be due on Monday, December 28, 2009, the next day that is not a Saturday, Sunday or legal holiday. Because the duplicate notice was not filed in this court until Tuesday, December 29, 2009, it could not be effective to confer jurisdiction. The fact that the clerk’s office of the First District Court of Appeal was closed on the last calendar day does not make the duplicate notice timely, any more than it makes the original notice timely.

For these reasons, we conclude that the appellant has failed to invoke the jurisdiction of the court. We have no alternative but to dismiss the appeal for lack of jurisdiction.

Dismissed.

WETHERELL, J., concurs.

KAHN, J., dissents with opinion.

KAHN, J.,

dissenting.

That the term “clerk” as used in Rule 9.420(f)(15), Florida Rules of Appellate Procedure, is in want of construction, finds ample proof in the skillful and meticulous detail undertaken by the majority to explain the meaning of that term. The term is in fact ambiguous, because Rule 9.010(b) provides alternative definitions for “clerk.” This court has jurisdiction of appeals from thirty-two counties, each of which has constitutional clerks. We also have review jurisdiction as to literally dozens of commissions, boards, agencies, universities, school districts and other government bodies, all of which may have clerks. We do not know, and perhaps could never know, whether each of these entities publishes holiday schedules in advance. This court, however, does so on an annual basis by administrative order. See, e.g. Fla. 1st DCA Admin. Orders 08-1 (July 24, 2008) (2009 holidays) and 09-2 (July 9, 2009) (2010 holidays).

In this case, I would err on the side of adjudication on the merits, and because the office of the clerk of the First District Court of Appeal was in fact closed on December 24, 2009, I would accept the filing in the lower tribunal on Monday, December 28, 2009, as timely. Because we have the authority to construe an ambiguous term used in the Florida Rules of Appellate Procedure, construction as I suggest would counter any suggestion we had ignored the jurisdictional requirements established by the Florida Supreme Court.

      . Although we need not decide the issue, it is not clear whether this court was the only district court of appeal to which the appeal might have been directed. A final agency order may be appealed to the district court where the agency is headquartered, where a private party resides, or as otherwise provided by law. See § 120.68(2), Fla. Slat. (2009). We take note of the fact that although some of the district courts were closed on December 24, 2009, others were open on that day.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Arthur Preston HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-4628.
    District Court of Appeal of Florida, Fifth District.
    April 6, 2010.
    Arthur P. Harris, Crawfordville, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. McDonald v. State, 957 So.2d 605 (Fla.2007).

PALMER, TORPY and EVANDER, JJ., concur.


author: DAMOORGIAN, J.

text:
    Willie E. BROWN and Brenda Brown, husband and wife, Appellants, v. Kim J. NAGELHOUT, individually, Helena Chemical Co., Inc., a foreign corporation, and CSX Transportation, Inc., a foreign corporation, Appellees.
    No. 4D09-4140.
    District Court of Appeal of Florida, Fourth District.
    April 7, 2010.
    Lincoln J. Connolly of Rossman, Baum-berger, Reboso Spier & Connolly, P.A., Miami, for appellants.
    Richard A. Sherman, Sr., and James W. Sherman of Richard A. Sherman, P.A., Fort Lauderdale, David B. Goulfine of Hightower & Partners, Orlando, for appel-lees, Kim J. Nagelhout and Helena Chemical Co., Inc.
    Daniel J. Fleming and Jose A. Gutierrez of Melkus, Fleming & Gutierrez, Tampa, for appellee, CSX Transportation.
   DAMOORGIAN, J.

The Browns appeal the trial court’s order granting Kim J. Nagelhout, Helena Chemical Co., Inc., and CSX Transportation, Inc.’s motion to transfer venue from Broward County to Pasco County, Florida. We affirm.

The Browns filed a complaint in Bro-ward County against Nagelhout, Helena Chemical, and CSX, alleging multiple causes of action for a collision that occurred in Pasco County. Nagelhout and Helena Chemical subsequently filed a motion to transfer venue from Broward County to Pasco County, and CSX joined in the motion. The trial court granted the motion to transfer venue, relying upon what is now known as the joint residency rule enunciated by the Florida Supreme Court in Enfinger v. Baxley, 96 So.2d 538 (Fla.1957). The court concluded that venue lies in Pasco County because Nagelhout and Helena Chemical both reside there. On appeal, the Browns contend that the joint residency rule does not apply to the facts of this case.

A trial court’s order granting a motion to transfer venue based on a plaintiffs erroneous venue selection is subject to de novo review. See Blackhawk Quarry Co. of Fla., Inc. v. Hewitt Contracting Co., 931 So.2d 197, 199 (Fla. 5th DCA 2006) (citing PricewaterhouseCoopers LLP v. Cedar Res., Inc., 761 So.2d 1131, 1133 (Fla. 2d DCA 1999)).

Our review requires application of two venue statutes. Section 47.011, Florida Statutes (2009), provides that “[ajctions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located.” In cases involving multiple defendants residing in different counties, actions “may be brought in any county in which any defendant resides.” See § 47.021, Fla. Stat. (2009). However, the Florida Supreme Court has determined that venue lies in the county where an individual defendant and corporate defendant share a residence, which is also the location where the cause of action accrued. Enfinger, 96 So.2d at 539-41.

In Enfinger, the Florida Supreme Court stated that an individual defendant has a venue privilege in his or her county of residence in those instances in which the residence of the individual defendant and the location where the cause of action accrued are in the same county. Id. at 539-40. The court noted that the individual defendant maintains this venue privilege in his or her county of residence when the individual defendant is sued together with a corporate defendant and the corporate defendant resides in the same county as the individual defendant. Id. at 540-41. Under these circumstances, the court concluded that venue lies in the common county of residence between the individual and the corporate defendant. Id.; see Lifemark Hosps. of Fla., Inc. v. Roque, 727 So.2d 1077, 1078 (Fla. 4th DCA 1999). The principle outlined in Enfinger ultimately became known as the joint residency rule. See Lifemark Hosps., 727 So.2d at 1078.

In this case, the Browns incorrectly argue that the joint residency rule does not apply where all defendants do not share a county of residence. The trial court found that (a) the Browns resided in Broward County; (b) Nagelhout resided in Pasco County; (c) Helena Chemical had a business residence in Pasco County; and (d) CSX’s principal place of residence was in Duval County. The Browns’ causes of action also accrued in Pasco County. Given these facts, Nagelhout has a venue privilege in Pasco County, and he maintains this venue privilege even though he was sued together with Helena Chemical and CSX. See Enfmger, 96 So.2d at 539-41. Therefore, under the joint residency rule articulated in Enfinger, venue lies in Pasco County, which is the common county of residence between Nagelhout and Helena Chemical. See id,, at 540-41; Lifemark Hosps., 727 So.2d at 1078 (holding that the joint residency rule applies “even if one or more codefendants also reside in other counties”).

We find no merit to any of the other issues raised by the Browns. Accordingly, we affirm the trial court’s order granting the motion to transfer venue from Bro-ward County to Pasco County.

HAZOURI and MAY, JJ., concur.


author: CRENSHAW, Judge.

text:
    Michele SOLTWISCH, Individually, and as Personal Representative of the Estate of Ernest Soltwisch, Deceased, Appellant, v. PASCO COUNTY, a subdivision of the State of Florida, Appellee.
    No. 2D08-6070.
    District Court of Appeal of Florida, Second District.
    April 9, 2010.
    J. Steele Olmstead of J. Steel Olmstead, P.A., and Susan W. Fox of Fox & Loquas-to, P.A., Tampa, for Appellant.
    Devon 0. Ombres and Bryan M. Rotella, Tampa, and Scott A. Cole of Cole, Scott & Kissane, P.A., Miami, for Appellee.
   CRENSHAW, Judge.

Michele Soltwisch, individually and as personal representative of the Estate of Ernest Soltwisch (the Estate), appeals a final judgment that granted Pasco County’s motion for directed verdict on the parties’ negligence and res ipsa loquitur claims. Because there was evidence from which a jury could have concluded that Pasco County was liable for Mr. Solt-wisch’s injuries, we find the trial court erred as a matter of law. Accordingly, we reverse and remand for a new trial.

Our standard of review on a ruling on a motion for directed verdict is de novo. See Fell v. Carlin, 6 So.3d 119, 120 (Fla. 2d DCA 2009); Sims v. Cristinzio, 898 So.2d 1004, 1006 (Fla. 2d DCA 2005). In considering the merits of a motion for directed verdict, the court must review the evidence in the light most favorable to the nonmov-ing party. See Williamson v. Superior Ins. Co., 746 So.2d 483, 485 (Fla. 2d DCA 1999). “‘A motion for directed verdict should be granted only where no view of the evidence, or inferences made therefrom, could support a verdict for the non-moving party.’ ” Fell, 6 So.3d at 120 (emphasis added) (quoting Sims, 898 So.2d at 1005).

The facts, when viewed in the light most favorable to the nonmoving parties, provide that on May 20, 2004, seventy-five-year-old Mr. Soltwisch was at the Wound Care Clinic (the Clinic) with his wife Michele Soltwisch receiving hyperbaric oxygen therapy to relieve three pressure sores that had developed on his left foot. While Mr. Soltwisch was undergoing treatment in the hyperbaric chamber, the hy-perbaric physician, Dr. Donald Vierling, was advised that Mr. Soltwisch, who had adult type II diabetes, appeared to experience some mild tremors. Dr. Vierling assisted in removing Mr. Soltwisch out of the chamber and promptly checked him over. Mr. Soltwisch was awake and responsive but not vocal. Though he had low blood sugar, Dr. Vierling did not find any signs Mr. Soltwisch suffered a stroke or grand mal seizure. Further, when Mr. Soltwisch moved his extremities, Dr. Vierling did not observe any evidence of any pain or fractures. Nonetheless, because the Clinic’s internal policy required patients who suffered from seizures to be transported to an emergency room, Dr. Vierling and his staff called 911.

An ambulance operated by the Pasco County Fire Rescue arrived at the Clinic to take Mr. Soltwisch to the hospital. Before the transport occurred, a Fire Rescue paramedic completed a run report indicating Mr. Soltwisch’s initial vital signs were normal and he was semi-responsive. By the time Mr. Soltwisch arrived at the hospital, however, the attending emergency department nurse found Mr. Soltwisch verbally complaining of pain coming from his right hip. The vital signs taken in the emergency department also indicated a sharp increase in Mr. Soltwisch’s blood pressure. An x-ray obtained in the hospital’s emergency department showed Mr. Soltwisch had an acute right femoral neck fracture. When Mr. Soltwisch underwent surgery to repair the fracture, he acquired an infection that resulted in his death.

Mrs. Soltwisch and the Estate subsequently filed a wrongful death action against Pasco County. At trial, Mrs. Solt-wisch testified she heard a loud bang as she observed the paramedics place Mr. Soltwisch into the back of the ambulance. Mrs. Soltwisch and the Estate also presented several expert witnesses, including Dr. William Anderson, who testified Mr. Soltwisch’s fracture occurred as a result of the transport by Pasco County’s paramedics, not from a seizure or osteoporosis, and registered nurse Susan Campbell, who opined the Pasco County paramedics did not meet the requisite standard of care during the transport. Nonetheless, Pasco County moved for a directed verdict at the conclusion of the plaintiffs’ case, arguing the plaintiffs failed to establish any evidence that Pasco County was either negligent during its care of Mr. Soltwisch or in exclusive control of the instrumentality that caused his fracture. The trial court agreed and, relying on South Broward Hospital District v. Schmitt, 172 So.2d 12 (Fla. 2d DCA 1965), entered final judgment in favor of Pasco County.

As we have stated in the past, “ ‘Florida law cautions against a motion for directed verdict in negligence cases since the evidence to support the elements of negligence are frequently subject to more than one interpretation.’ ” Hirst v. Segrest Farms, Inc., 12 So.3d 1257, 1258 (Fla. 2d DCA 2009) (quoting Nunez v. Lee County, 111 So.2d 1016, 1016 (Fla. 2d DCA 2000)). Here, we find, when construing the evidence in the light most favorable to the nonmoving parties, that Mrs. Soltwiseh and the Estate presented sufficient evidence from which a jury could conclude that Pasco County breached its duty of care to Mr. Soltwiseh. Therefore, the trial court’s directed verdict on their general negligence claim was error.

We also find the trial court’s reliance on Schmitt to be misplaced. In Schmitt, the plaintiff, while allegedly unconscious, sustained injuries to her head and her face as a result of falling off an examining table in the defendant hospital’s emergency room. Schmitt, 172 So.2d at 14. The plaintiff asserted the case fell under the res ipsa loquitur doctrine because the injuries occurred after the attending nurse had left the room. This court disagreed, finding that issues relating to the plaintiffs consciousness at the time of her injury did not present a scenario upon which it could be concluded that the plaintiffs injuries were sustained while under the sole control of the defendant. Id. at 15. We note the cause of the plaintiffs injuries in Schmitt was known but the manner of how the injuries were sustained was not.

We find the facts of this case are more akin to West Coast Hospital Ass’n v. Webb, 52 So.2d 803 (Fla.1951), wherein the plaintiff, while in a diabetic coma, suffered severe unexplained burns to her body after she was admitted to the defendant hospital. Because the evidence demonstrated the plaintiff did not have any burns at the time she was admitted and neither party could establish the cause of the plaintiffs injuries, the Florida Supreme Court determined the facts warranted the invocation of the res ipsa loquitur doctrine. Id. at 804. Similarly, Mrs. Soltwiseh and the Estate were not required to establish the identity of the instrumentality that caused Mr. Soltwisch’s injury; rather the res ipsa loquitur doctrine merely requires “that the instrumentality causing [the plaintiffs] injury was under the exclusive control of the defendant, and that the accident is one that would not, in the ordinary course of events, have occurred without negligence on the part of the one in control.” Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 358 So.2d 1339, 1341-42 (Fla.1978). Stated differently, it is the exclusivity of the defendant’s control that permits an inference of negligence under the doctrine, not the identity of the instrumentality itself. See McDougald v. Perry, 716 So.2d 783, 785 (Fla.1998).

Here, evidence was adduced at trial that Mr. Soltwiseh, who did not appear to have any fracture before he left the Clinic, somehow incurred a femoral fracture while he was under Pasco County’s exclusive control. We find these facts were sufficient to overcome Pasco County’s motion for directed verdict and the plaintiffs were entitled to have the jury determine whether Mr. Soltwisch’s fracture occurred while he was transported to the hospital. Thus we conclude the trial court erred in granting Pasco County’s motion for a directed verdict.

Reversed and remanded for a new trial.

DAVIS and MORRIS, JJ., Concur.

      . We affirm the trial court's rulings on Mrs. Soltwisch and the Estate’s pre-trial issues without discussion. We note our ruling does not preclude the plaintiffs, upon a proper showing, from engaging in further discovery if the circumstances warrant it.

      . A femoral neck fracture is defined as "[a] fracture of the neck of tire thigh bone.” 2 J.E. Schmidt, M.D., Attorneys' Dictionary of Medicine and Word Finder F-54 (Matthew Bender 2007).


author: PER CURIAM. HAWKES, C.J.,

text:
    K.J., The Natural Mother in the Interest of A.J., a minor child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D09-5598.
    District Court of Appeal of Florida, First District.
    April 12, 2010.
    Edith E. Sheeks, Civil Appellate Regional Counsel, Tallahassee, for Appellant.
    Lori Lee Fehr, Appellate Counsel for the Department of Children and Families, Pensacola and Kelley Schaeffer, Appellate Counsel, Guardian ad Litem Program, Ta-vares, for Appellee.
   PER CURIAM.

Appellant seeks review of the trial court’s order terminating her parental rights. Because her claims are not preserved for appellate review, we affirm.

A.J., Appellant’s daughter, was removed from her care in October 2002 and January 2007 based on allegations of substance abuse, an unclean home, and a lack of supervision. In September 2008, three months after being returned to Appellant, A.J. was removed a third time based on allegations of sexual abuse and substance abuse. After the third removal, the Guardian Ad Litem program (“GAL”) filed a petition for termination of Appellant’s parental rights pursuant to sections 39.806(l)(c) and (l), Florida Statutes (2008).

Section 39.806(l)(e) provides for the termination of parental rights:

When the parent or parents engaged in conduct toward the child or toward other children that demonstrates that the continuing involvement of the parent or parents in the parent-child relationship threatens the life, safety, well-being, or physical, mental, or emotional health of the child irrespective of the provision of services....

Section 39.806(l)(i), which took effect on July 1, 2008, provides that parental rights may be terminated if “[o]n three or more occasions the child or another child of the parent or parents has been placed in out-of-home care pursuant to this chapter, and the conditions that led to the child’s out-of-home placement were caused by the parent or parents.”

At the adjudicatory hearing, Appellant acknowledged her substance abuse problem and also acknowledged that A.J. had been sexually abused. Appellant had been offered a case plan that included a requirement that she attend an in-patient substance abuse program. Although Appellant paid for a bed in the program, she had not yet attended at the time of the hearing due to injuries from a motor vehicle accident. Appellant’s counsel did not move for judgment of dismissal at the conclusion of the GAL’s case.

The parties submitted written closing arguments. Appellant argued that A.J. had not been exposed to the substance abuse and asked the court to consider that the allegations of sexual abuse were unfounded because the alleged perpetrator, Appellant’s former boyfriend, was acquitted in his criminal trial. Regarding termination pursuant to section 39.806(1)(1), Appellant stated:

As to the second issue relating to FL Statutes Chapter 39.806(l)(i), we acknowledge that the law is and the Court may terminate parental rights on a finding that on three or more occasions the child has been placed in out-of-home care pursuant to this chapter, and the conditions that led to the child’s out-of-home placement were caused by the parent. We also acknowledge that this child has been sheltered on three separate occasions. We ask the Court to consider the circumstances regarding each of these three removals.

The trial court terminated Appellant’s parental rights based on both grounds, finding that termination is the least restrictive means of protecting the child and that the manifest best interests of the child would best be served by termination of Appellant’s parental rights.

On appeal, Appellant does not challenge the trial court’s findings on the least restrictive means of protection or the child’s manifest best interest. Rather, Appellant argues that termination under section 39.806(1)(Z) was an improper retroactive application of the statute because two of the three removals occurred prior to the statute’s effective date and that the evidence did not support termination under section 39.806(l)(c). Neither issue was raised in the trial court and, therefore, the issues are not preserved for appellate review.

As to termination pursuant to section 39.806(l)(i), in light of Appellant’s closing argument, we hold that not only is the claim unpreserved, but that the claim was effectively waived. As to section 39.806(l)(c), based upon our precedent, we hold that Appellant’s claims were not preserved because no motion for judgment of dismissal was filed at the close of the GAL’s case-in-chief. J.D. v. Dep’t of Children & Families, 825 So.2d 447 (Fla. 1st DCA 2002). We recognize that the Fourth District Court of Appeal took a contrary position in H.D. v. Dep’t of Children & Families, 964 So.2d 818, 819 (Fla. 4th DCA 2007), rev. dismissed, 985 So.2d 1059 (Fla.2008), holding that such a motion is not required to preserve issues of sufficiency of the evidence for appellate review. We certify conflict with H.D. on this issue.

Based upon the foregoing, we affirm the order terminating Appellant’s parental rights.

AFFIRMED; conflict certified.

WETHERELL and ROWE, JJ., concur; HAWKES, C.J., special concurring opinion.

HAWKES, C.J.,

concurring.

I fully concur with the decision to affirm the trial court’s order terminating Appellant’s parental rights. However, I would add that under no circumstances can Appellant’s argument regarding the retroactive application of section 39.806(1)(Z) be valid.

Appellant claims that because two of the three times the State removed children from her custody occurred prior to the statute’s effective date, she “had no notice” that a third offense may lead to the termination of her parental rights. To accept Appellant’s argument is to acquiesce to the notion that she had some vested right in the Legislature never reevaluating how to protect children in the State of Florida. Such an argument is fundamentally flawed and similar claims have been continually dismissed when raised to challenge the application of other statutes that treat repeat occurrences of bad behavior differently than a single occurrence. See e.g., Fla. Stat. § 316.193(2)(b) (2008) (any person who commits DUI and has previously been convicted two or more times for the same offense, commits a felony of the third degree); Fla. Stat. § 322.264(1) (2008) (any person who commits a traffic violation and has previously accumulated a specific number of traffic violations may be adjudicated as a ‘habitual traffic offender’); Fla. Stat. § 812.014(3)(e) (any person who commits petit theft and has previously been convicted two or more times of any theft commits a felony of the third degree).

The Legislature, within broad constitutional parameters, is always able to place consequences on individual behavior. Here, the Legislature concluded it is harmful for children to be removed from the same home numerous times; therefore, prior instances of out-of-home placement can be relied on in establishing grounds for the termination of parental rights. The Appellant does not challenge this premise. Instead, Appellant argues that she is exempt from these rules because she was already well on her way to meeting the statutory requirement for having her parental rights terminated when the Legislature placed harsher consequences on her future behavior.

Like other statutory provisions recognizing the danger posed by repetitive bad behavior, section 39.806(1)(Z) was designed to protect children when parents continually engage in conduct warranting out-of-home placement. Not only have these parents proven they are incapable of improving their behavior, but they have created a situation of instability and uncertainty for their children by causing a need for them to be repeatedly uprooted. Consequently, there is nothing improper, retroactive, or violative of any of Appellant’s rights in the Legislature’s decision to authorize the courts to consider additional factors when making termination of parental rights decisions. Thus, even if Appellant had preserved her claim, I would affirm the order terminating her parental rights based on the lack of merit in her argument.


author: POLEN, J.

text:
    FORD MOTOR COMPANY, Appellant, v. Sheila JAMES, as Personal Representative of the Estate of Tatyana Kierra Allen, Deceased, on behalf of the Estate of Tatyana Kierra Allen and the lawful survivors of the decedent, et al., Appellee. Michelin North America, Inc., Appellant, v. Sheila James, as Personal Representative of the Estate of Tatyana Kierra Allen, Deceased, on behalf of the Estate of Tatyana Kierra Allen and the lawful survivors of the decedent, et al., Appellees.
    Nos. 4D09-1910, 4D09-3539.
    District Court of Appeal of Florida, Fourth District.
    April 14, 2010.
    Douglas H. Stein and Stephanie Martinez of Seipp & Flick, LLP, Coral Gables, for appellant Ford Motor Company.

      Francisco R. Angones and Anthony Heary of Angones, McClure & Garcia, P.A., Miami, and Sharon L. Neal and Amy L. Jett of Peters & Monyak, LLP, Atlanta, GA, for appellant Michelin North America, Inc.
    Ralph 0. Anderson of Ralph 0. Anderson, P.A., Davie, and William N. Hutchinson, Jr., of William N. Hutchinson, Jr., P.A., Fort Lauderdale, for appellee Sheila James.
   POLEN, J.

In these appeals which have been consolidated for our review, appellants, Michelin North America, Inc. and Ford Motor Company, appeal the trial court’s non-final orders denying their motions to transfer venue for forum non conveniens. We hold that the trial court did not abuse its discretion in denying the motions and affirm.

In the underlying action, appellee, Sheila James as personal representative of the estate of Tatyana Allen, filed a complaint against numerous defendants, including Michelin and Ford, for negligence and strict liability after Tatyana was killed in a car accident. The accident involved a rented Ford van which was being used to transport a dance team from Broward County, Florida, to Alabama for a competition and which carried Tatyana as a passenger. Around 12:00 a.m., as the vehicle was travelling one mile south of Lake City, Florida, the van suffered a tire blowout and rolled over. Tatyana was ejected from the vehicle and died as a result of her injuries.

Upon the filing of the complaint in Bro-ward County, Ford and Michelin each filed a motion to transfer venue seeking transfer to Columbia County pursuant to section 47.122, Florida Statutes (2007), on grounds of forum non conveniens. Both Ford and Michelin argued that transfer was proper because there was a substantial, logical connection to Columbia County. Specifically, they contended the accident occurred in Columbia County, and the most significant witnesses in the case resided in Columbia County including law enforcement officers, emergency medical personnel, the eyewitness whose vehicle struck Tatyana after she was thrown from the van, the medical staff at Lake City Medical Center where the other passengers were treated, the Medical Examiner who performed the autopsy on Tatyana, and the towing company which towed the subject vehicle following the accident.

James opposed the motions pointing out that eight of the other passengers in the vehicle were eyewitnesses to the accident and resided in Broward County; the driver of the vehicle, Gary Bolt, was named as a defendant and resided in Broward County; Tatyana was a resident of Broward County at the time of her death and Tatya-na’s mother resided in Broward County; and the subject vehicle was rented in Bro-ward County. The trial court found that Ford and Michelin had not met their burden of overcoming the deference to which James’ choice of forum was entitled and denied the motions to transfer venue.

A trial court’s denial of a motion to transfer venue pursuant to section 47.122, Florida Statutes, is reviewed for an abuse of discretion. Vitale v. Vitale, 994 So.2d 1242, 1243 (Fla. 4th DCA 2008). Section 47.122 provides:

For the convenience of the parties or witnesses or in the interest of justice, any court of record may transfer any civil action to any other court of record in which it might have been brought.

§ 47.122, Fla. Stat. (2007). Thus, there are three statutory factors a court considers in determining whether to grant a motion pursuant to section 47.122:(1) the convenience of the parties; (2) the convenience of the witnesses; and (3) the interest of justice. Hu v. Crockett, 426 So.2d 1275, 1277-78 (Fla. 1st DCA 1983).

The determination of the present case hinges on the second consideration, the convenience of the witnesses. The convenience of the witnesses is “probably the single most important consideration of the three statutory factors” because material witnesses should be located near the forum to allow for live testimony. Hu, 426 So.2d at 1279. Here, the court must evaluate who the prospective witnesses are and the significance of their testimony. Id.

Ford and Michelin liken the facts of the present case to those in Hu. In Hu, the personal representative of the decedent who had died in a vehicle accident which occurred in Walton County brought a wrongful death action in Escambia County. 426 So.2d at 1276-77. The trial court granted defendants’ motions to transfer venue to Walton County, and Hu appealed. In examining the convenience of the witnesses, the court explained that Hu could identify only two witnesses who would testify and who resided in Escambia County, and it was unclear what their testimony would be. Id. at 1279. Defendants identified six witnesses present at the accident scene immediately following the accident who would testify regarding liability, the key issue in the case: two tow truck drivers, one of whom had custody of the wrecked vehicle, two Walton County Sheriffs deputies who responded to the scene, and two highway patrol troopers, one of whom was the homicide investigator. Id. at 1279-80. Rescue staff personnel and medical staff at a Walton County hospital were also identified as potential witnesses. Id. at 1280.

Based on the foregoing, the Second District concluded its analysis of the second factor:

It is apparent that there is substantial competent evidence from which the lower court could have ascertained that the greater number of witnesses are located in the Walton County area. Further, these witnesses are apparently very important witnesses, according to the allegations in appellees’ motion for change of venue. Thus, the most important factor under Section 47.122-convenience of the witnesses-weighs heavily in favor of a change of venue.

Id.

The present case is distinguishable from Hu. First, plaintiff has identified nine eyewitnesses who were in the vehicle at the time of the accident and were the only individuals to actually witness the accident. Second, the subject van was rented in Bro-ward County and kept and maintained in Dade County.

Third, and most importantly, whereas Hu involved the collision of two vehicles which resulted in plaintiffs death, making liability a key issue, the present case involves a tire blowout which allegedly caused the vehicle to flip and Tatyana to be ejected and killed. In Hu, the testimony of the individuals who responded to the scene was more crucial than in the present case because their testimony would help determine liability between the vehicle in which decedent was a passenger and the other vehicle — a key issue in that case. Here, the material allegations of the complaint involve a potential manufacturing defect in the tire, a design defect in the van, and negligent maintenance of the van. Thus, the determination of liability in the present case will turn primarily on expert testimony. The testimony of the public servants who responded to the scene of the accident or the lay people who witnessed the accident is less important. Ford and Michelin have not suggested that their experts would be inconvenienced by a trial in Broward County. On these facts, we cannot say the trial court abused its discretion in denying the motions to transfer venue for forum non conveniens.

Affirmed.

GROSS, C.J., and STEVENSON, J., concur.


author: VAN NORTWICK, J.

text:
    FLORIDA FARM BUREAU CASUALTY INSURANCE COMPANY, Appellant, v. Willis F. MATHIS and Katherine W. Mathis, Appellees.
    No. 1D09-1707.
    District Court of Appeal of Florida, First District.
    April 20, 2010.

      Elliot H. Scherker, Elliot B. Kula, and Daniel M. Samson of Greenberg Traurig, P.A., Miami; Mark J. Upton of Daniell, Upton, Perry & Morris, P.C., Daphne, Aa-bama, for Appellant.
    James F. McKenzie of McKenzie & Hall, P.A., Pensacola, for Appellees.
   VAN NORTWICK, J.

Florida Farm Bureau Casualty Insurance Company appeals a final judgment entered in favor of Willis F. Mathis and Katherine W. Mathis which awards them the full policy limits of their Florida Farm homeowners policy. Florida Farm argues that the Mathises were impermissibly allowed a double recovery for their loss because previously they had been paid policy limits under their separate flood insurance policy. In response, the Mathises assert they introduced evidence, which the jury accepted, that the wind damage, a covered peril under their homeowners policy, caused a total loss or constructive total loss of their home, so that under Florida’s Valued Policy Law (VPL), section 627.702(1), Florida Statutes (2004), they were entitled to recover their policy limits under the homeowners policy. For the reasons that follow, we affirm.

The Mathises owned a two-story home in Navarre Beach when Hurricane Ivan struck in September 2004, causing substantial wind and flood damage to their home. The home was insured with a flood insurance policy with policy limits of $250,000, issued pursuant to the National Flood Insurance Program and administered by Southern Farm Bureau Casualty Insurance Company. The Mathises also insured the home with a Florida Farm homeowners policy with policy limits of $295,600, which covered windstorm damage among other perils. The homeowners policy excluded water damage due to “[fjlood, surface water, waves, tidal water, overflow of a body of water, or spray from any of these, whether or not driven by wind.” Loss due to water damage was excluded “regardless of any other cause or event contributing concurrently or in any sequence to the loss.”

After the hurricane, the Mathises received a letter from Santa Rosa County advising them that the damages to their home exceeded fifty percent of its value. As a result of this determination, the Mathises were required to apply for permits to repair and rebuild the home and new construction or repairs were required to be completed in accordance with current building code requirements. The elevation of the Mathises’ home, built in 1995, did not meet current code requirements. Because of the expense to rebuild the home pursuant to current codes and because the existing structure was deemed unsafe, the Mathises were left with no other choice but to demolish the home.

The Mathises were paid the flood insurance policy’s full $250,000 policy limits less the deductible. Florida Farm tendered approximately $102,000 for wind damages under the homeowners policy. The Math-ises filed suit contending they were entitled to recover the full policy limits under the VPL. Florida Farm answered the complaint and filed a counterclaim for declaratory judgment. Florida Farm alleged that the Mathis home was not a total loss; that, even if it was, the loss was due to flood damage; and that allowing the Math-ises to recover the limits of the wind insurance would constitute unjust enrichment. Florida Farm did not assert set-off as a defense.

This is the second appearance of this proceeding in this court. The trial court’s initial summary judgment in favor of the Mathises was reversed, Florida Farm Bureau Casualty Insurance Company v. Mathis, 978 So.2d 856 (Fla. 1st DCA 2008), based upon the Supreme Court’s decision in Florida Farm, Bureau Casualty Insurance Company v. Cox, 967 So.2d 815 (Fla.2007). On remand, the evidence showed that there was a water line inside the Mathis house four feet, two inches above the floor. The parties tried the case on the basis that damage to the house six feet and below was related to flood and damage above six feet was related to the wind.

The Mathises filed a motion in limine seeking to prohibit Florida Farm from introducing any evidence of flood payments, arguing that they were trying the case based upon the damages associated by the covered peril of wind only and that evidence of flood payments would be immaterial, irrelevant, and prejudicial and would confuse the issues before the jury. The trial court ruled that it would allow evidence as to flood damages, but would not allow evidence as to the amount of the recovery under the flood policy. Florida Farm does not appeal the trial court’s ruling on the motion in limine.

The Mathises’ home had not been appraised. At trial, Mr. Mathis estimated that it was valued between $400,000 and $410,000. John Minor, a licensed general contractor who repairs buildings damaged by storms, testified as an expert for the Mathises. He performed an assessment of the cost to repair the damage to the second story and the damage above ten feet of the first floor. He estimated the cost to repair the wind damage at $325,548.10. He testified that the house was composed of approximately 3,000 square feet of living space and that restoration would cost $200 per square foot or approximately $500,000. The parties’ experts disagreed concerning whether the house had been substantially damaged by flood. During closing argument, the Mathises argued that their house was a constructive total loss and could not be repaired. Florida Farm argued that the house was not a total loss and that the second floor could have been repaired.

The jury was instructed that its inquiry was limited “solely to the amount of wind damage legally caused to the Mathises’ residence and whether that wind damage caused a total loss either constructively or because of the cost to repair the damage.” The trial court instructed that a “constructive total loss” occurs when the home, “although still standing, is damaged to the extent that ordinances or regulations in effect require its demolition or prohibit or prevent [its] repair.” Regarding a total loss, the jury was instructed that a “total loss” occurs when “the cost to repair the damages due to a covered peril exceeds the pre-loss market value of the [home], less salvage value, so that it is not economically feasible that the property be repaired.” Finally, the jury was instructed that if they determined that a total loss did not occur, the VPL would not apply. Specifically, the jury instructions stated:

If you determine that there was not a total loss to the dwelling, you must determine the total amount, up to 100 percent, of all damages caused by wind to the Mathis home. You should award ... an amount of money that the greater weight of the evidence shows will fairly and adequate compensate them for the damages legally caused by the peril of wind.

There was no objection to the instructions.

Thereafter, the jury returned a verdict answering “yes” to the question “[d]id the wind damages in this case amount to a constructive total loss of the property or to a total loss because the cost to repair exceeds the pre-loss market value of the building so that it is not economically feasible to repair the building.” The trial court entered a final judgment awarding the Mathises the policy limits less the payments already made by Florida Farm, together with prejudgment interest, for a total recovery of $262,406.30.

On appeal, Florida Farm argues that the trial court committed fundamental error in failing to set off the amount paid under the flood insurance policy against the damages awarded under the homeowners policy. Although Florida Farm acknowledges that no case holds that failure to order a set off amounts to fundamental error, it contends that an award of damages which are not authorized by law constitutes fundamental error. Marks v. Delcastillo, 386 So.2d 1259, 1268 (Fla. 3d DCA 1980). In response, the Mathises argue that set off is an affirmative defense that must be specifically pled, Givens v. Vaughn-Griffin Packing Co., 146 Fla. 575, 1 So.2d 714, 717 (1941), and is waived if not pled. Chambliss v. Benedikter, 941 So.2d 589, 591 (Fla. 4th DCA 2006).

We reject the argument of Florida Farm. Although this court has recognized that the purpose of a set off is to avoid duplication of benefits, Pate v. Renfroe, 715 So.2d 1094, 1099 (Fla. 1st DCA 1998), “[i]t is the burden of the party seeking the set-off to prove the existence of an actual duplication of benefits in fact.” Id. (emphasis added). Further, even if the pleading requirement had been met in this case, there is no evidence in this record of an actual duplication of benefits.

Florida Farm’s reliance upon the Florida Supreme Court’s decision in Florida Farm Bureau Casualty Insurance Company v. Cox is misplaced. In Cox, the Florida Supreme Court ruled that section 627.702(1), Florida Statutes (2004) was “intended only to set the value of the property insured by the policy in order to conclusively establish the property’s value when there is a total loss.” 967 So.2d at 819. In short, the VPL is simply a valuation statute. Id. The court ruled that under the statute, “an insurer is liable for a loss by a peril covered under the policy for which a premium has been paid.” Id. at 820. The Court in Cox rejected the Fourth District Court of Appeal’s decision in Mierzwa v. Florida Windstorm Underwriting, 877 So.2d 774 (Fla. 4th DCA 2004), explaining:

In Mierzwa, as here, the insured property was damaged by a combination of wind and water in a hurricane. The insurer asserted that it was responsible for the percentage of the total loss attributable to wind. The insurer did not contest the total value of the property. We find that the Fourth District misconstrued the VPL in holding that “if the insurance carrier has any liability at all to the owner for a building damaged by a covered peril and deemed a total loss, that liability is for the face amount of the policy.” Mierzwa, 877 So.2d at 775-76.

Id. at 821. Importantly, the Court expressly limited its holding “to only those cases in which a covered peril did not cause a total loss or constructive total loss.” Id. n. 6 (emphasis added).

The express holding in Cox is not applicable here. At trial below, the Mathises introduced evidence, which the jury accepted, that the covered peril of wind caused a total loss or a constructive total loss of the Mathises’ home. We find instructive the reasoning in Workmen’s Mutual Insurance Company v. Bella Vista Hotel Apartments, Inc., 399 F.2d 693 (5th Cir.1968), in which the court affirmed a jury verdict finding coverage for wind damage and explained:

Appellants claim that the loss was excluded by the provisions of the policy. Testimony, including expert opinion, was offered at trial as to the cause of the loss. The jury was instructed as to the exclusion provision of the policy. It was not unreasonable for the jury to find that the damages suffered were caused by wind and not by the excluded causes. There was evidence from which the jury could make this finding, (citations omitted).

Even if we were to accept Florida Farm’s argument that the logical extension of Cox requires apportionment of cause when there is damage due to the perils of both wind and flood, the record before this court is not sufficient to decide this issue. Although there was evidence of flood damage introduced below, there is no evidence in the record as to the amount of flood damage and the jury was not asked to allocate what portion of the damage was caused by flood, which is a question of fact for the jury to determine. Further, the evidence of the total value of the property was not consistent — the house was insured for $295,600, but its value was estimated at approximately $410,000, and the Mathises’ expert, John Minor, testified it would cost approximately $500,000 to rebuild the house. There is no evidence in the record that supports Florida Farm’s argument that it should be allowed to set off the full $250,000 payment made pursuant to the flood policy against payment of policy limits under the homeowners policy. Thus, even if the set-off argument could be raised for the first time on appeal, “appellate review is only possible when resolution of the issues does not require factual determinations.” Fla. Auto. Dealers Indus. Benefit Trust v. Small, 592 So.2d 1179, 1184 (Fla. 1st DCA 1992).

AFFIRMED.

LEWIS and ROWE, JJ., concur.

      . Section 627.702(1) provides in pertinent part:
      In the event of the total loss of any building ... insured by any insurer as to a covered peril ..., the insurer's liability, if any, under the policy for such total loss shall be in the amount of money for which such property was so insured as specified in the policy and for which a premium has been charged and paid.

      . Based on an estimated value of $400,000, it appears that the home was underinsured, an issue which was neither raised below nor addressed in this appeal.


text:
    Johnny WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-4057.
    District Court of Appeal of Florida, Fifth District.
    April 20, 2010.
    Johnny Williams, Sanford, pro se.
    Bill McCollum, Attorney General, Tallahassee and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

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

ORFINGER, LAWSON and COHEN, JJ. concur.


text:
    Austin David CROCKER, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-1423.
    District Court of Appeal of Florida, Fifth District.
    April 20, 2010.
    Daniel J. Fernandez, Tampa, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Beamon v. State, 23 So.3d 209 (Fla. 4th DCA 2009).

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


author: MARSTILLER, J.

text:
    L.J., Mother of D.C. and D.C., Minor Children, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D09-6445.
    District Court of Appeal of Florida, First District.
    April 22, 2010.

      Mike Donovan, Legal Services of North Florida, Inc., Tallahassee, for Appellant.
    Lori Lee Fehr, Department of Children and Families, Pensacola, for Appellee.
    Kelley Schaeffer, for the Guardian ad Litem Program, Tavares.
   MARSTILLER, J.

L.J. appeals a final order terminating her parental rights to her two children, D.C., a girl aged five, and D.C., a boy aged three-and-a-half. She asserts the trial court erred in terminating her parental rights under section 39.806(l)(e), Florida Statutes, because the Department failed to prove her drug and alcohol addiction would not improve. She further asserts the trial court deprived her of due process by finding her non-eompliant with tasks that were included in her mediation agreement but not in her case plan. We affirm the termination order in all respects, but we find L.J.’s first issue on appeal merits discussion.

L.J.’s children have been in the custody of the Department of Children and Family Services (“Department”) since July 13, 2008, when the court entered an Order for Placement in Shelter. The then four-year old and two-year old had been left unattended in the home for an unknown period. The parents were nowhere to be found when their paternal grandmother arrived from Alabama after receiving a call about the children. The grandmother told the Department’s investigator L.J. habitually left the children alone without supervision, failed to have adequate food in the home, and lost utility services for lack of payment. The children had witnessed at least one episode of domestic violence between their parents for which the father was arrested and jailed. When L.J. finally returned home, she insisted she had been gone only twenty minutes although the children had been found alone more than four hours earlier. She had beer in her purse and tested positive for marijuana.

After the Department filed a Petition for Dependency, L.J. signed a mediation agreement in which she agreed to “maintain stable housing,” “maintain a lawful source of income,” participate in supervised visitation with her children, and enter into a case plan “consistent with the terms of [the] agreement.” The case plan contained several specific tasks L.J. had to complete, in addition to abiding by the mediation agreement, to be reunited with her children. These included: completing a parenting course; undergoing psychosocial and substance abuse evaluations, and following the resulting recommendations; completing a domestic violence program; attending relationship counseling with the children’s father (should she remain in a relationship with him); submitting to random breathalyzer and urinalysis tests; and attending Narcotics/Alcoholics Anonymous. The case plan further required her to comply with all court orders. The court accepted the mediation agreement and case plan, and adjudicated the children dependent on August 19, 2008. The case plan was to be completed by February 19, 2009, but was extended to July 1, 2009.

On July 15, 2009, the Department filed a Verified Petition for Termination of Parental Rights and Permanent Commitment for Purposes of Subsequent Adoption. Based upon evidence presented by the Department, the trial court terminated L.J.’s parental rights finding that, under section 39.806(l)(e)l., Florida Statutes (2009), L.J. had failed to comply with her case plan. The court further found termination to be in the children’s manifest best interests and the least restrictive means to establish permanency for them.

Relying on M.H. v. Department of Children & Families, 866 So.2d 220 (Fla. 1st DCA 2004) (on clarification), L.J. argues the trial court wrongly terminated her parental rights without clear and convincing evidence that there is no reasonable basis to believe she will improve in her efforts to beat alcohol and drug addiction. But in M.H. the Department proceeded under section 39.806(l)(c), Florida Statutes, which allows a parent’s rights to be terminated if her conduct “demonstrates that the continuing involvement of the parent ... in the parent-child relationship threatens the life, safety, well-being, or physical, mental, or emotional health of the child irrespective of the provision of services.” Because in M.H. the Department sought to terminate the appellant’s rights due solely to her drug addiction, we reiterated the principle that parental rights cannot be terminated based on drug addiction alone, and held the Department must, in order to justify termination under section 39.806(l)(c), prove both that continued interaction with the parent would threaten the child’s life, safety, or health regardless of the provision of services and that “there is no reasonable basis to believe the parent will improve.” Id. at 222-23. Notably, the record in M.H. showed the mother had sought both outpatient and inpatient treatment on her own, demonstrating a “strong desire to overcome her addiction and parent her children.” Id. at 223. Thus we found the record “demonstrate^ a reasonable basis to believe Appellant’s problems could be improved.” Id.

We have not extended M.H. to terminations under section 39.806(l)(e) and we decline to do so in this case. First, L.J.’s substance abuse is not the sole basis upon which the Department sought, and the court ordered, termination of her parental rights. The record contains ample evidence showing not only L.J.’s continued drug and alcohol use despite availability of substance abuse services: She tested positive for drugs and/or alcohol several times during the term of the case plan, admitted to using marijuana within “a couple of months” of the termination hearing, consumed alcohol the night before and the morning of the second day of the hearing, and appeared drunk at the hearing with slurred speech and unable to keep her eyes open. She also failed outright on several occasions to submit to breathalyzer and urinalysis testing; she missed eight scheduled substance abuse counseling sessions; she did not attend relationship counseling although her relationship with the children’s father continued (she was three months pregnant by him at the time of the termination hearing); she missed roughly half the scheduled supervised visits with her children during the case plan term; and she failed to maintain stable housing and income.

Further, unlike M.H., the record before us does not demonstrate L.J.’s potential to improve. On the contrary, L.J. testified she does not believe she has an addiction problem. Her substance abuse counselor testified that while L.J. has acquired the skills and tools she needs to remain sober, she does not apply them when needed. It took L.J, ten months to complete a three-month course of counseling because she missed eight sessions. Because of her sporadic attendance, she has continued to struggle to maintain sobriety. The counselor has recommended further treatment for L.J. through after care following completion of substance abuse treatment. But there is no evidence in the record that L.J. has enrolled or is participating in after care.

For similar reasons, we distinguish the two other cases cited by L.J. which she says apply the additional evidentiary requirement articulated in M.H. to terminations under section 39.806(l)(e). In E.R. v. Department of Children & Family Services, 937 So.2d 1196, 1198 (Fla. 3d DCA 2006), the court reversed the order terminating the father’s parental rights primarily because his “substantial progress in addressing and remedying” his drinking problem demonstrated substantial compliance with his case plan. Citing M.H., the court found the record affirmatively demonstrated a likelihood the father’s drinking problem would improve. The evidence showed the father had tested negative on every urinalysis, he had significantly curbed his drinking, he expressed the desire to complete substance abuse treatment, and he had contacted the Department to find a treatment facility closer to home so as not to interfere with his job. Id. at 1199.

The mother’s alcohol abuse was similarly the center issue in D.P. v. Department of Children & Family Services, 930 So.2d 798 (Fla. 3d DCA 2006). While the Department alleged the mother failed to comply with her case plan by not reporting alcohol-related arrests, it also attempted to tie the mother’s alcohol abuse to purported egregious conduct involving a domestic incident with her mother. . Id. at 801. See section 39.806(l)(f), Florida Statutes. The court cited M.H. not in relation to case plan noncompliance under section 39.806(l)(e), but to the “egregious conduct” ground for termination under section 39.806(l)(f) because it rested solely on the mother’s alcohol abuse. D.P. at 802. As in E.R. and M.H., the record in D.P. showed the mother had made affirmative independent efforts to get into substance abuse treatment and was showing progress. Id. Thus the court determined that, without more, D.P. ’s alcohol addiction was insufficient to justify terminating her parental rights.

The record in this case contains competent, substantial evidence supporting the order terminating L.J.’s parental rights. The order is therefore AFFIRMED.

KAHN and ROWE, JJ., concur.

      . At the termination hearing, the children's father voluntarily surrendered his parental rights under section 39.806(l)(a), Florida Statutes. The termination of his rights is not at issue in this appeal.

      . Section 39.806(1 )(e) 1., Florida Statutes (2009), authorizes termination of parental rights when a case plan has been filed and ‘‘[t]he child continues to be abused, neglected, or abandoned by the parent or parents.” The statute provides further:
      The failure of the parent or parents to substantially comply with the case plan for a period of 9 months after an adjudication of the child as a dependent child or the child’s placement into shelter care, whichever occurs first, constitutes evidence of continuing abuse, neglect, or abandonment unless the failure to substantially comply with the case plan was due to the parent's lack of financial resources or to the failure of the department to make reasonable efforts to reunify the parent and child.

        Id.


author: NORTHCUTT, Judge.

text:
    Steven BERUBE, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-3580.
    District Court of Appeal of Florida, Second District.
    April 23, 2010.

      James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   NORTHCUTT, Judge.

We previously reversed the denial of Steven Berube’s motion for postconviction relief and remanded for the matter to be considered anew by a different judge. On remand the motion was denied again, but Berube maintains that the successor judge erred by basing her ruling on a transcript of the evidentiary hearing conducted by the previous judge. We agree and, accordingly, reverse and remand for further proceedings.

Berube’s robbery conviction was based in part on evidence of two confessions he allegedly made to the police. After his conviction, Berube filed a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. He claimed that his trial counsel was ineffective for failing to move to suppress the confessions. The judge presiding over the postconviction proceeding held an evidentiary hearing and then denied Berube’s motion. This court reversed because the judge had failed to timely rule on Berube’s motion for the judge’s disqualification and, under the rules of judicial administration, was for that reason deemed disqualified. We remanded the case for further proceedings before a different judge. Berube v. State, 978 So.2d 893 (Fla. 2d DCA 2008).

On remand, the successor judge accepted the State’s assertion that she need not conduct a new evidentiary hearing, but instead could dispose of Berube’s claims based on her review of the transcript of the previous hearing. Not so. It is well-established that, absent the consent of all parties, a successor judge may not base her ruling on evidence heard by her predecessor. Brinkley v. State, 898 So.2d 1175, 1176 (Fla. 2d DCA 2005) (reversing and remanding for successor judge to conduct de novo hearing on motions to suppress) (quoting Beattie v. Beattie, 536 So.2d 1078, 1079 (Fla. 4th DCA 1988)). In a similar case, the Fifth District found it necessary to reverse a second denial of postconviction relief. Goolsby v. State, 948 So.2d 965, 966 (Fla. 5th DCA 2007) (explaining that the successor judge should have either summarily denied the motion, with supporting record attachments, or conducted a new evidentiary hearing).

Moreover, even if it had been proper for the successor judge to base her ruling on the transcript of the earlier hearing, the evidence reflected in that transcript did not support her conclusion that counsel’s election to forgo moving to suppress Berube’s confessions was a “sound and reasonable” tactical decision. Be-rube’s trial counsel testified that he saw no basis for moving to suppress because Be-rube denied making the confessions. This was a non sequitur. Nothing requires a defendant to acknowledge confessing as a condition to invoking the Exclusionary Rule. Cf. Morrison v. State, 818 So.2d 432, 446 (Fla.2002) (noting defendant’s testimony at suppression hearing where he denied making confession; declining to reach merits of suppression ruling where issue not preserved for appeal).

To the contrary, there is no inconsistency between seeking to exclude an opponent’s evidence and disputing the accuracy of that evidence. The question posed by a motion to suppress is whether the manner in which law enforcement obtained evidence requires its exclusion from trial, not whether the evidence is true. In this case, the State intended to introduce evidence that Berube confessed. The circumstances in which the purported confessions were alleged to have been made might have rendered the State’s evidence of them inadmissible regardless of whether Berube admitted making them.

As the successor judge concluded, Be-rube’s trial counsel made a tactical decision not to move to suppress Berube’s confessions. But his asserted basis for that decision was not reasonable. See Strickland v. Washington, 466 U.S. 668, 690-91, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (requiring deference to “strategic choices made after thorough investigation of law” but deferring to “strategic choices made after less than complete investigation ... [only] to the extent that reasonable professional judgments support the limitations on investigation”); see also Collins v. State, 4 So.3d 1249, 1251-52 (Fla. 4th DCA 2009) (concluding that counsel’s failure to seek suppression of defendant’s statement to police was not justified as tactical decision because the strategy was not reasonable).

All of the foregoing said, we express no opinion on the ultimate issue of Berube’s entitlement to postconviction relief. We reverse and remand for the successor judge to hold an evidentiary hearing on Berube’s claims of ineffective assistance of counsel.

Reversed and remanded.

CASANUEVA, C.J., and LaROSE, J., Concur.


author: KHOUZAM, Judge.

text:
    OFFICE OF CRIMINAL CONFLICT AND CIVIL REGIONAL COUNSEL, Second District, Petitioner, v. Donald SMITH and The State of Florida, Respondents. Office of Criminal Conflict and Civil Regional Counsel, Second District, Petitioner, v. Michael L. Queen and The State of Florida, Respondents.
    Nos. 2D09-5285, 2D09-5286.
    District Court of Appeal of Florida, Second District.
    April 23, 2010.
    Jackson Stuart Flyte, Regional Counsel, Second District, Bartow, and Joseph Thye Sexton, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Punta Gorda, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Respondents.
   KHOUZAM, Judge.

In these two consolidated cases, the Second District’s Office of Criminal Conflict and Civil Regional Counsel seeks a quashal of (1) the orders appointing Regional Counsel to represent the defendants, Donald Smith and Michael L. Queen, at the evidentiary hearings on their respective motions for postconviction relief and (2) the orders denying Regional Counsel’s motions to withdraw. The petitions for writ of certiorari are untimely as to the orders appointing Regional Counsel, but timely as to the orders denying the Regional Counsel’s motions to withdraw. We grant Regional Counsel’s petitions for writ of cer-tiorari to the extent that they seek a quashal of the orders denying Regional Counsel’s motions to withdraw.

These petitions have been consolidated as raising the same issue. At its core, the issue concerns whether Regional Counsel is subject to appointment for indigent defendants in postconviction proceedings. The underlying issue raised in these petitions has been resolved favorably to both the Fifth District’s and the First District’s Office of Criminal Conflict and Civil Regional Counsel in Deen v. Wilson, 1 So.3d 1179 (Fla. 5th DCA 2009), and Office of Criminal Conflict and Civil Regional Counsel, First District v. Bruner, 19 So.3d 447 (Fla. 1st DCA 2009).

In Deen, 1 So.3d 1179, the Fifth District considered orders in four trial court cases that had appointed Regional Counsel to represent defendants in postconviction proceedings and had denied Regional Counsel’s motions to withdraw. The court examined the creation of the Office of Regional Counsel and the duties set forth in the enabling statute. The court recognized that Regional Counsel’s “authority to represent criminal defendants in post-conviction proceedings is not set forth as an assigned duty in section 27.511(5), Florida Statutes (2008).” Id. at 1182. ' It determined that the postconviction court’s orders “assigned new duties to Regional Counsel beyond those established by the Legislature,” and that Regional Counsel’s appointment constituted a departure from the essential requirements of law. Id. at 1183. The court granted the petitions for writ of certiorari and quashed the orders of appointment. Id.

We agree with the Fifth District’s analysis in Deen, and like the First District in Bruner, recognize the precedent established by Deen. See Bruner, 19 So.3d at 447-48. Here, the postconviction court declined to follow the precedent explained by and established in Deen and Bruner when it denied Regional Counsel’s motions to withdraw. This constituted a departure from the essential requirements of law without an adequate remedy by later appeal. Accordingly, we grant Regional Counsel’s petitions for writ of certiorari to the extent that they seek a quashal of the orders denying Regional Counsel’s motions to withdraw.

The petitions for writ of certiorari are granted and the orders denying the motions to withdraw are quashed.

WALLACE and CRENSHAW, JJ., Concur.


text:
    D.T.S., father of O.T.S., a child, Appellant, v. J.M. and S.M., Appellees.
    No. 1D09-4395.
    District Court of Appeal of Florida, First District.
    April 26, 2010.

      Susan V. Carroll, Panama City, for Appellant.
    Michael Hunter of Hunter & Lord, P.A., Panama City, for Appellees J.M. and S.M.; Edith E. Sheeks, Civil Appellate Regional Counsel, Office of Regional Conflict Counsel, for Appellee Mother.
   PER CURIAM.

D.T.S. appeals final order terminating his parental rights to his minor son, O.T.S., pursuant to consent under chapter 68 of the Florida Statutes. The court directed that the child be placed with the prospective adoptive parents, appellees J.M. and S.M., pending receipt of a favorable report under the Interstate Compact for Placement of Children. After the evidentiary hearing below, the father revoked his consent but the court rejected the revocation. We reverse, because there is insufficient evidentiary support for the court’s decision. See In re: Adoption of Baby E.A.W., 658 So.2d 961, 967 (Fla.1995). We affirm the father’s remaining issues without comment.

Section 68.062(1), Florida Statutes (2009), authorizes termination of parental rights pending adoption when the parents have executed written consent that complies with section 63.082, Florida Statutes (2009). Section 63.089, Florida Statutes (2009), permits the circuit court to terminate parental rights pending adoption when it has determined by clear and convincing evidence that the parent has “executed a valid consent under s. 63.082 and the consent was obtained according to the requirements of this chapter.”

It is undisputed that the father signed a consent form that was inconsistent with material provisions of section 63.082. Specifically, the consent form expressly allowed the father to withdraw his consent any time before placement of the child with the adoptive parents, which he did. Section 63.082(4)(c), however, provides only a three-day revocation period. In addition, the transcript of the hearing demonstrates, and the lower court found in the final order, that the father’s testimony on the issue of consent was equivocal. These factors undermine the validity of the father’s consent to adopt under chapter 63.

We reverse and remand the order terminating parental rights and direct the lower court to dismiss appellees’ petition for involuntary termination of parental rights.

WOLF, BENTON, and PADOVANO, JJ., concur.


author: KAHN, J.

text:
    Michael Andrew NICHOLSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-1262.
    District Court of Appeal of Florida, First District.
    April 27, 2010.

      Nancy A. Daniels, Public Defender; and Alice B. Copek, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General; Michael T. Kennett, Assistant Attorney General, Tallahassee; and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.
   KAHN, J.

Michael Andrew Nicholson (appellant) challenges his convictions for trafficking in illegal drugs (hydrocodone) in an amount 14 grams or more, but less than 28 grams (Count One); possession of a controlled substance (diazepam and cocaine in Counts Two and Three, respectively); and possession of drug paraphernalia (Count Four). Appellant contends the trial court erred by denying his motion for judgment of acquittal as to Counts One, Three, and Four; by giving misleading, confusing “and/or” jury instructions; and by imposing judgment and sentence on Count Two after the State nolle prossed it. We affirm the judgment and sentence for Counts Three and Four, vacate the judgment and sentence for Count Two, reverse the judgment and sentence for Count One with instructions to discharge appellant on that count, and remand for the trial court to enter a corrected judgment.

FACTS AND PROCEDURAL BACKGROUND

Two deputies responded to a 911 call reporting a possible armed burglary at a small mobile home familiar to them from previous visits. Appellant and his brother, Daniel Aaron Nicholson, were the only persons there. The brothers invited the deputies to enter the mobile home and explained they had been sitting on the couch with their girlfriends when they heard unusual noises and saw four or five armed men inside the trailer. The brothers asked the deputies to search the premises to ensure no intruders remained. Neither deputy found any evidence of a forced entry, an attempted break-in, or intruders. The deputies described the brothers as scared, confused, and intoxicated or high.

While searching the master bedroom, Deputy Goodwin found a bottle of prescription pills in the name of Preston W. Thomas, who the deputy knew lived at the residence but was not present. As the deputy set the pill bottle on the living room coffee table, he observed what looked like a crack cocaine “rock” clearly visible atop a C.D. case, as well as several plastic baggies with torn or tied-up corners and a white, powdery residue, which subsequent lab analysis identified as cocaine. He also saw a small, dark zippered leather change purse on the coffee table, opened it, and found inside white pills and blue pills. A jar on the table held a baggy containing two razor “box cutter” knives, a folding “butterfly” knife, and additional baggies with apparent drug residue. The candlelight was bright enough to allow someone seated on the nearby couch to see all the items on the coffee table except the pills inside the purse. An F.D.L.E. analysis identified the white pills as 23.6 grams of hydrocodone, a controlled substance. § 893.03(2)(a) 1 -j, Fla. Stat. (2007). The State did not submit the blue pills, suspected diazepam, for analysis. The deputy observed appellant within a few feet of the contraband but never saw him actually touch any of it. A post-arrest search of their persons revealed no contraband on either of the brothers. Law enforcement did not submit any of the contraband to F.D.L.E. for fingerprint analysis.

The State tried appellant and his brother together on the same charges. During the trial, the State nolle prossed Count Two. At the close of the State’s case, the court denied appellant’s motion challenging the legal sufficiency of the State’s proof on the three remaining counts. Appellant and his brother elected not to testify, and the defense presented no witnesses. Without an objection the court read a series of jury instructions inserting “and/or” between the co-defendants’ names in the recitation of the elements of the charged offenses. The jury found appellant and his brother guilty as charged on Counts One, Three, and Four. The court adjudicated appellant guilty and sentenced him on all four counts despite the nolle prosequi of Count Two. This appeal ensued.

ANALYSIS

Appellant’s first two issues assert error in the denial of judgments of acquittal for legally insufficient evidence on Counts One, Three, and Four. We review de novo whether the evidence is legally sufficient to support the charge, considering the evidence and all reasonable inferences therefrom in a light most favorable to the State. See Pagan v. State, 830 So.2d 792, 803 (Fla.2002).

Count One charged trafficking in hydrocodone, the 33 white pills found inside the change purse. § 893.135(l)(c)l.b., Fla. Stat. (2007). Certain rules of proof apply where the contraband is hidden and not in the defendant’s actual control, and the premises are jointly occupied. “Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.” State v. Law, 559 So.2d 187, 188 (Fla.1989). Without proof that appellant actually possessed the drugs and paraphernalia, the State had to rely upon constructive possession. See Robinson v. State, 936 So.2d 1164, 1166 (Fla. 1st DCA 2006). The rules governing constructive possession are well-known. “Constructive possession exists where the accused without physical possession of the controlled substance knows of its presence on or about his premises and has the ability to maintain control over said controlled substance.” Hively v. State, 336 So.2d 127, 129 (Fla. 4th DCA 1976); see Hargrove v. State, 928 So.2d 1254, 1256 n. 3 (Fla. 2d DCA 2006) (noting the 2002 enactment of section 893.101(2), Florida Statutes, eliminated the requirement to show the defendant’s knowledge of the illicit nature of the contraband to prove constructive possession of contraband, but allowed an affirmative defense of lack of knowledge of illicit nature). Because appellant did not have exclusive possession of the premises, “knowledge of the contraband’s presence and the defendant’s ability to control the same will not be inferred and must be established by independent evidence.” Duncan v. State, 986 So.2d 653, 655 (Fla. 4th DCA 2008).

The evidence most favorable to the State demonstrated the brothers and them girlfriends were sitting on the living room couch next to the coffee table shortly before the brothers called 911. Although appellant’s mere proximity to the contraband could not, by itself, prove possession, his location nearby was sufficient to imply his ability to exercise dominion and control over the premises where the deputy found the contraband. See State v. Reese, 774 So.2d 948, 949-50 (Fla. 5th DCA 2001). The key question remains, then, whether the State made a prima facie showing appellant knew of the presence of the hidden hydrocodone. A change purse is an ordinary object commonly used for lawful purposes and not exclusively or primarily associated with illicit drugs and paraphernalia. Acknowledging the leather change purse itself was in plain view, we find no record evidence “that the incriminating nature of the packaged contraband was immediately apparent,” which is “one of the requirements of ‘plain view’ ” analysis. Chappell v. State, 457 So.2d 1133, 1134-35 (Fla. 1st DCA 1984). “The mere fact that some contraband was in plain view does not permit the inference that the defendant knew of the presence of all quantities of hidden contraband ultimately found after searching the entire residence.” Santiago v. State, 991 So.2d 439, 442 (Fla. 2d DCA 2008); see Hill v. State, 873 So.2d 491, 493 (Fla. 1st DCA 2004). Because the State failed to prove, through circumstantial evidence or otherwise, that appellant knew the hydrocodone was hidden in the leather change purse, we reverse the conviction for Count One and remand for appellant’s discharge on that count.

Counts Three and Four charged possession of a controlled substance (cocaine) and drug paraphernalia, respectively. §§ 893.03(2)(a)4., 893.13(6)(a), & 893.147(1), Fla. Stat. (2007). The cocaine rock, knives, and baggies were in the open and clearly visible to anyone near the couch and coffee table. Two deputies with special training and experience in recognizing illegal drugs and paraphernalia and drug packaging and distribution testified the corners of baggies are cut or torn and used to package narcotics for sale, and cocaine users often use razor knives to cut “rocks” for smoking. This evidence supports a conclusion that these common items were drug paraphernalia, as the jury found. The presence of the cocaine and paraphernalia in plain view next to where appellant had been sitting a short time earlier satisfied the “knowledge” element. See Brown v. State, 428 So.2d 250, 252 (Fla.1983); Sundin v. State, 27 So.3d 675, 677 (Fla. 2d DCA 2009); Duncan, 986 So.2d at 655; Mitchell v. State, 958 So.2d 496, 500 (Fla. 4th DCA 2007).

We affirm the convictions on Counts Three and Four. Finding appellant’s claim that he was a mere visitor to the trailer to be a fact issue, the trial court observed that the presence of the co-defendants alone in the residence at 1:00 A.M., coupled with the 911 call and the invitation to law enforcement to search the premises, demonstrated greater authority and control of the premises than that of a visitor and were inconsistent with appellant’s hypothesis of innocence. Where conflicting inferences concerning appellant’s relationship to the mobile home raised questions for the jury to resolve, the trial court did not err in allowing Counts Three and Four to go to the jury. See Seay v. State, 139 Fla. 433, 190 So. 702, 703 (1939); Jean v. State, 638 So.2d 995, 997 (Fla. 4th DCA 1994).

Because appellant did not preserve the issue of the trial court’s use of the conjunctions “and/or” between the co-defendants’ names in instructing the jury on the charges, he must show fundamental error. See Garzon v. State, 939 So.2d 278, 282-83 (Fla. 4th DCA 2006), approved, 980 So.2d 1038, 1045 (Fla.2008); see Moton v. State, 8 So.3d 483, 485 (Fla. 1st DCA 2009) (stating fundamental error results where the incomplete or inaccurate instruction “pertains to a genuinely disputed issue”). In some contexts such instructions pose the risk of misleading the jury to believe it can find one co-defendant guilty based solely on the other co-defendant’s conduct satisfying the elements of the crime. See Salas v. State, 972 So.2d 941, 950 (Fla. 5th DCA 2007). The use of such instructions, however, does not necessarily meet the very high threshold for fundamental error. In Garzón, the Florida Supreme Court stated that absent a misinstruction or failure to instruct on a disputed element of a crime, the proper test for assessing the effect of the instruction is the one set forth in the Fourth District Court’s opinion in Garzón, which analyzed the instruction “in the context of the other jury instructions, the attorneys’ arguments, and the evidence in the case to decide whether the ‘verdict of guilty could not have been obtained without the assistance of the alleged error.’ ” 939 So.2d at 283 (quoting State v. Delva, 575 So.2d 643, 645 (Fla.1991)); see Hunter v. State, 8 So.3d 1052, 1070 (Fla.2008). We find no support for appellant’s suggestion the Garzón contextual analysis should be limited to cases involving a “principal” theory of guilt.

Applying the Garzón contextual analysis to the co-defendants’ trial, we discern seven factors acting to bar a finding of fundamental error: 1) the same theory of prosecution applied to each co-defendant, and the jury heard precisely the same evidence relating to the brothers, who presented identical theories of defense to the same charges; 2) neither co-defendant made an individualized statement to law enforcement or testified at trial, thereby avoiding a credibility contest between appellant and his brother, and both brothers told the deputies about the alleged armed intruders; 3) no observations of any witness or other evidence implicated one, but not the other, co-defendant; 4) the State’s evidence could not have been easily reconciled with a conclusion that only one co-defendant was guilty and the other was less guilty or not guilty at all; 5) in closing argument, defense counsel repeatedly reminded the jury its verdict for one co-defendant should not influence its verdict for the other one and the jury should not assume the brothers acted together (an argument seeking, at least ostensibly, a jury pardon); 6) at the close of instructions, the court read Florida Standard Jury Instruction (Criminal) 3.12(c), which states a finding of guilty or not guilty as to one defendant must not affect the verdict as to the other defendant; and 7) the co-defendants’ individualized verdict forms were identical in all material respects except for their different names, and the court read appellant’s verdict form using only his name, not “and/or.” The totality of this record eliminated any danger the “and/or” instructions misled or confused the jury. See Gerds v. State, 64 So.2d 915, 916 (Fla.1953) (recognizing that due process entitles a defendant to have the jury correctly and intelligently instructed “on the essential and material elements of the crime charged and required to be proven by competent evidence”); Bryant v. State, 30 So.3d 591 (Fla. 2d DCA 2010); Barrientos v. State, 1 So.3d 1209, 1219-20 (Fla. 2d DCA 2009).

We REVERSE the conviction on Count Two. The State properly concedes that once it nolle prossed that charge, the trial court should not have sentenced appellant on that count. We AFFIRM the judgment and sentence on Counts Three and Four, REVERSE the judgment and sentence on Count One, and REMAND for the court to correct the judgment.

PADOVANO and WETHERELL, JJ., concur.