author: THOMAS, J. BENTON, J.,

text:
    Colin J. MOFFAT, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Indian Lake Estates, Inc., Appellees.
    No. 1D09-2210.
    District Court of Appeal of Florida, First District.
    Feb. 24, 2010.
    Rehearing Denied April 22, 2010.

      Colin J. Moffat, pro se, Appellant.
    Geri Atkinson-Hazelton, General Counsel, M. Elaine Howard, Senior Attorney, Tallahassee, for Appellee Florida Unemployment Appeals Commission.
   THOMAS, J.

Appellant appeals an order of the Unemployment Appeals Commission upholding a determination that he is ineligible to receive unemployment compensation benefits because he was discharged for insubordination amounting to misconduct. We agree that Appellant’s actions rose to the level of misconduct and, thus, affirm the determination that he is ineligible to receive benefits.

Appellant was a golf professional with Appellee Indian Lake Estates, Inc. (Indian Lake). Differences between Robinson, Indian Lake’s general manager, and Appellant led to Appellant’s discharge. Robinson had heard that golfers were being allowed onto the course without being issued cash register receipts, which rendered Indian Lakes unable to keep track of golfers. He instructed Appellant to issue receipts to all golfers, including club members. Appellant failed to comply with his instructions, and Robinson gave him a written warning. Robinson later saw Appellant fail to issue receipts, and he questioned Appellant and reminded him of the policy. The next day, however, Robinson again observed Appellant fail to give receipts to golfers.

Appellant testified that, although he did not give receipts to every player, he kept comprehensive records documenting who played the course. He further testified that many golfers refused to accept their receipts or threw them in the trash; additionally, a golfer’s taking a receipt did not assist in keeping track of the number of members or non-members playing the course each day when there was no “starter” outside to collect their receipts. Appellant told Robinson that the receipts were not helpful without a starter on the course. Appellant conceded that he permitted some players on the course without giving them register receipts, but explained that he did so because he had not opened his register and did not want to delay the golfers. He rang up the players after opening the register. Appellant testified that he rang up each player on the register every day and that, at the close of business each day, the register had a breakdown of how many members played the course, how many golfers played eighteen holes, and how many golfers played nine holes. Appellant argues on appeal that his actions did not constitute misconduct rendering him ineligible for unemployment compensation benefits.

“After a claimant proves that her employment has ended and that she has not worked for at least a week, the burden shifts to the employer to prove either a voluntary quit or a discharge attributable to the employee’s misconduct connected with work.” Gilbert v. Dep’t of Corr., 696 So.2d 416, 417-18 (Fla. 1st DCA 1997) (citations omitted). Here, the appeals referee determined that Appellant was ineligible for unemployment benefits because he had committed misconduct. The Unemployment Appeals Commission affirmed the determination.

Florida Statutes defines misconduct as:

(a) Conduct demonstrating willful or wanton disregard of an employer’s interests and found to be a deliberate violation or disregard of the standards of behavior which the employer has a right to expect of his or her employee; or
(b) Carelessness or negligence to a degree or recurrence that manifests culpability, wrongful intent, or evil design or shows an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his or her employer.

§ 448.036(29), Fla. Stat. (2008). “In order to support a denial of benefits, ‘misconduct connected with work’ is not mere inefficiency, unsatisfactory conduct, failure in good performance as the result of an inability or incapacity, inadvertence, good faith errors in judgment or discretion, or ordinary negligence in isolated instances. Rather, the employer must prove that the employee behaved intentionally or with a degree of carelessness or negligence that manifests a wrongful intent or evil design, or otherwise acted in a way that would constitute misconduct as defined in section 443.036(29).” Yost v. Unemployment Appeals Comm’n, 848 So.2d 1235, 1238 (Fla. 2d DCA 2003) (citation omitted).

Competent, substantial evidence supports the referee’s findings that Appellant repeatedly failed to issue receipts after being directed to do so. “Insubordination and the refusal to comply with a legitimate work order constitute misconduct.” Scott v. Central Fla. Tower Corp., 646 So.2d 842, 843 (Fla. 2d DCA 1994). Here, Appellant was given a legitimate work order yet, after multiple warnings, continuously refused to comply. His failure to comply with the order to ensure that all golfers were given a register receipt demonstrates a willful disregard of his employer’s interest to track its golfers, despite Appellant’s opinions about the tracking system. Appellant’s actions constitute misconduct such that he is ineligible to receive unemployment compensation benefits. See Hines v. Dep’t of Labor & Employment Sec., 455 So.2d 1104, 1107 (Fla. 3d DCA 1984) (stating that “Hines’ disregard of the prior warning not to challenge his superiors to fire him was ... a material fact properly considered in determining that his actions constituted misconduct.... While, perhaps Hines’ conduct would not have constituted misconduct under the statute if it was a first occurrence, the fact that he had been previously warned [not to challenge his superiors to fire him] ... and he disregarded that warning amounts to misconduct under the facts of the present case.”); see also Gongaware v. Unemployment Appeals Comm’n, 882 So.2d 453 (Fla. 4th DCA 2004) (affirming the denial of unemployment compensation benefits on the basis of misconduct where, despite written warnings, employee repeatedly failed to comply with a provision of his employment contract requiring him to relinquish two percent of tips charged by customers on their credit cards).

Accordingly, we AFFIRM the order upholding the denial of benefits.

HAWKES, C.J., concurs; BENTON, J., dissents with opinion.

BENTON, J.,

dissenting.

I respectfully dissent. At issue is whether Mr. Moffat, the discharged employee claiming benefits, was guilty of misconduct connected with work of a kind that disqualified him for unemployment compensation benefits. “Misconduct serious enough to warrant the discharge of an employee is not necessarily serious enough to warrant a denial of benefits.” Livingston v. Tucker Constr. & Eng’g, Inc., 656 So.2d 499, 500 (Fla. 2d DCA 1995) (citing Doyle v. Fla. Unemployment Appeals Comm’n, 635 So.2d 1028, 1031 (Fla. 2d DCA 1994)).

Indian Lake did not meet its burden to prove that this claimant “behaved intentionally or with a degree of carelessness or negligence that manifests a wrongful intent or evil design, or otherwise acted in a way that would constitute misconduct as defined in section 443.046(29).” Yost v. Unemployment Appeals Comm’n, 848 So.2d 1235, 1238 (Fla. 2d DCA 2003) (citing Frazier v. Home Shopping Club LP, 784 So.2d 1190, 1192 (Fla. 2d DCA 2001)).

Under well-established law, this statute is to be liberally interpreted in favor of an employee, and its disqualifying provisions are to be construed narrowly in determining whether the employee’s actions support the denial of benefits. See Mason v. Load King Mfg. Co., 758 So.2d 649 (Fla.2000). It is also well established that the employer has the burden of proving that the employee was terminated for misconduct in connection with his work. Id.; see also Barchoff v. Shells of St. Pete Beach, Inc., 787 So.2d 935 (Fla. 2d DCA 2001); Doyle[v. Fla. Unemployment Appeals Comm’n, 635 So.2d 1028, 1031 (Fla. 2d DCA 1994) ]. To meet its burden, “the employer must show more than an employee’s inefficiency, unsatisfactory conduct, or failure to perform in the workplace.” Id.

Thomas v. United Parcel Serv., Inc., 864 So.2d 567, 569 (Fla. 2d DCA 2004). Indian Lake did not prove “willful or wanton disregard of an employer’s interests” or carelessness evincing “substantial disregard of the employer’s interests.” § 443.036(29)(a> (b), Fla. Stat. (2008). The evidence revealed friction between Mr. Moffat and Mr. Robinson, general manager for Indian Lake Estates, and that Mr. Moffat did not do everything Mr. Robinson told him to, but competent, substantial evidence that Mr. Moffat disregarded Indian Lake’s interests or was insubordinate was not adduced.

The employer sought to prove disqualification on two factual bases, one of which the appeals referee did not find the employer had proven: Mr. Robinson testified that Mr. Moffat failed to “process” membership dues from a member wanting to renew his club membership. Specifically, Mr. Robinson testified that on November 8, 2008, a club member told some third party that, when the member approached Mr. Moffat about renewing his golf membership, Mr. Moffat advised the member to wait till the new year. Mr. Robinson testified that this was troubling because the club was “having some monetary problems inside the corporation.” On the other hand, Mr. Moffat testified that he did not refuse to renew the membership, while conceding he had informed the member that, because it was November and the club was changing its policy so that every member would pay dues on January 1, it would be cheaper for the member to pay each time he played the course until the new year began. He also testified that Mr. Robinson had never spoken to him about the incident. After hearing the testimony, the appeals referee found that the employer “may have had bad information regarding the alleged refusal to renew a membership.”

The second factual scenario asserted as a basis for disqualification was Mr. Mof-fat’s failure to issue a cash register receipt to each golfer before the golfer played Indian Lake’s course: Mr. Robinson testified for the employer that he spoke to Mr. Moffat, and gave him a written warning, on October 29, 2008, after he heard a complaint that golfers were being allowed to play without having receipts. According to Mr. Robinson, the purpose of issuing register receipts to each player was to enable the golf committee to “keep track of not only paying players but also membership players who were going out on the course so we could get an accurate number as to who was on the course per day.” Mr. Moffat testified, without contradiction, however, that the cash register tape at the end of the day always contained accurate totals for both categories. He also testified that physical transfer of the register receipt to an individual player did nothing to assure accuracy when, as was usually the ease, there was not a separate “starter” or “ranger” on the course to collect the receipts.

The appeals referee credited Mr. Robinson’s testimony that he observed Mr. Mof-fat fail to issue receipts to a foursome on November 7, 2008. At that time, Mr. Robinson testified, he reminded Mr. Moffat of the policy and Mr. Moffat said he would follow through. On November 8, however, a member of the golf committee complained that Mr. Moffat was not issuing receipts to members. Largely for this reason, Mr. Robinson suspended Mr. Mof-fat without pay on November 10, and terminated his employment on November 13.

“Whether an employer has the right to terminate an employee’s employment and whether a terminated employee meets the disqualification criteria set out in the unemployment compensation statute are separate issues.” Lusby v. Unemployment Appeals Comm’n, 697 So.2d 567, 568 (Fla. 1st DCA 1997). “In defining misconduct, courts are required to liberally construe the [unemployment compensation] statute in favor of the employee.” Mason v. Load King Mfg. Co., 758 So.2d 649, 655 (Fla.2000).

Although his failure to hand every golfer a register receipt may have given the employer “good cause” to terminate his employment — a question we have not been asked to decide — this conduct neither evinced “willful or wanton disregard of an employer’s interests,” section 443.036(29)(a), Fla. Stat. (2008), nor amounted to “negligence to a degree or recurrence that manifests culpability, wrongful intent, or evil design.” § 443.036(29)(b), Fla. Stat. (2008). There has never been any suggestion that Mr. Moffat allowed non-members to play golf without paying, or that he pocketed any fees. Cf. Gongaware v. Unemployment Appeals Comm’n, 882 So.2d 453 (Fla. 4th DCA 2004). There was no evidence that the club was unable to determine the number both of paying guests and of members who played the course at the end of each day, the need for which was the reason given for requiring physical delivery of a receipt to each golfer.

The evidence in this record does not support a finding of insubordination. Mr. Moffat did not “challenge his superiors,” much less defy them in the presence of other employees as the employee did in Hines v. Dep’t of Labor & Employment Sec., 455 So.2d 1104, 1106-07 (Fla. 3d DCA 1984). However unsatisfactory to Mr. Robinson, Mr. Moffat’s job performance did not render him ineligible for unemployment compensation benefits under the statutory standard. See Borland v. Unemployment Appeals Comm’n, 910 So.2d 320, 322 (Fla. 2d DCA 2005); Smith v. Unemployment Appeals Comm’n, 831 So.2d 249, 250 (Fla. 2d DCA 2002); Frazier v. Home Shopping Club LP, 784 So.2d 1190, 1191-92 (Fla. 2d DCA 2001).

      .Standing alone, hearsay is insufficient to support a finding in an unemployment compensation proceeding. § 120.57(l)(c), Fla. Stat. (2008).
      In administrative proceedings, including hearings before unemployment compensation appeals referees, hearsay evidence is admissible only for the purpose of explaining or supplementing other evidence. It is not sufficient, standing alone, to prove a material fact in issue unless it would be admissible over objection in a civil proceeding. See § 120.57(l)(c), Fla. Stat. (2001); Doyle v. Fla. Unemployment Appeals Comm'n, 635 So.2d 1028, 1032 (Fla. 2d DCA 1994); see also Brown v. Int’l Paper Co., 710 So.2d 666, 668 (Fla. 2d DCA 1998).

        Yost v. Unemployment Appeals Comm'n, 848 So.2d 1235, 1237 (Fla. 2d DCA 2003).

      . This testimony of Mr. Robinson buttresses the assertion, in Mr. Moffat's appeal of the initial determination, that the club was having financial trouble and wanted to terminate his contract to reduce expenses. In the same document, Mr. Moffat acknowledged a personality conflict with Mr. Robinson.

      . Mr. Moffat testified that he was told to give out receipts at the end of February, and that nothing else was said to him on the subject until October.

      . Mr. Robinson asked if he had been instructed to issue receipts to players so that there would be an accurate count on the register tape, and Mr. Moffat testified without contradiction that that was done — that the cash register at closing each day contained a breakdown of how many eighteen-hole rounds were played, how many nine-hole rounds were played, and how many members played the course.

      . This testimony was also uncontroverted. See 24 Fla. Jur. 2d, Evidence & Witnesses § 491 (2010) (noting that the trier of fact has no right to reject uncontroverted testimony of a witness, even if the witness is an interested party, unless the testimony is "inherently improbable or unreasonable, contrary to natural laws, opposed to knowledge, or contradictory within itself.”); Ramada Inn Surfside v. Swanson, 560 So.2d 300, 302 (Fla. 1st DCA 1990) (holding that "since this testimony was un-controverted, the judge was not at liberty to reject it without explicating sufficient reasons for so doing”); Carroll v. Belknap Inc., 536 So.2d 1056, 1057 (Fla. 1st DCA 1988) (holding that "[ajlthough the deputy is the trier of fact he cannot reject a claimant's uncontro-verted testimony simply because he finds it not credible when the lack of credibility has no apparent support in the record”); McCandless v. M.M. Parrish Constr., 449 So.2d 830, 834 (Fla. 1st DCA 1984) ("Where the testimony and evidence are uncontradict-ed, a finding contrary to the manifest weight of such testimony and evidence is not supported by competent substantial evidence.”).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Thomas ARLINE, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-5113.
    District Court of Appeal of Florida, First District.
    March 12, 2010.
    Rehearing Denied April 22, 2010.
    Thomas Arline, pro se, Appellant.
    Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Davis v. State, 938 So.2d 555, 557 (Fla. 1st DCA 2006); Williams v. State, 642 So.2d 67, 68 (Fla. 1st DCA 1994).

DAVIS, BENTON, and MARSTILLER, JJ., concur.


author: GROSS, C.J.

text:
    Gladys PAJARES, Appellant, v. Conchita DONAHUE, as the Personal Representative and beneficiary of the estate of Olga Kuhnreich, Nicole Roges, Gina Norris f/k/a Gina Donahue, Conchita Abad, Maria De Cuena, Robert Kuhnreich, David Abad a/k/a David Mears, and Orlando Abad a/k/a Lane Abbott, Appellees.
    No. 4D09-508.
    District Court of Appeal of Florida, Fourth District.
    March 17, 2010.

      Jay L. Kauffman of Herb & Kauffman, P.A., Boca Raton, for appellant.
    Amy B. Beller of The Beller Law Firm, P.A., for appellees Nicole Roges and Con-chita Abad.
   GROSS, C.J.

We affirm the circuit court’s construction of a will, ruling that a decedent’s primary residence was to be sold without a homestead classification. The will contained specific language indicating that the homestead was to be sold and the proceeds divided, so that the residence lost its “protected” homestead status.

Olga Kuhnreich died in 2007. She executed a will in 2004. The personal representative of the estate, Conchita Donahue, petitioned the circuit court for construction of the will.

Article One of the will stated that Kuhnreich’s husband was deceased and she had no children.

Article Three, entitled “Specific Bequests of Real and/or Personal Property,” concerned two parcels of real property. First, a West Palm Beach condominium unit was devised outright to two named devisees. Second, “[f]rom the sale of: 202 N.W. 18 Street[,] Delray Beach, Florida 33444,” the will bequeathed specific dollar amounts to five persons: Robert Kuhnr-eich, $5,000; “Lane Abbot, AKA Orlando Abad,” $10,000; “David Mears, AKA David Abad,” $10,000; “Connie Abad, AKA Conchita Abad,” $30,000; and Maria De Cuena, $5,000. Article Three ended with this sentence: “In the event that I do not possess or own any property listed above on the date of my death, the bequest of that property shall lapse.”

Article Four was entitled “Homestead or Primary Residence.” It stated:

I will, devise and bequeath all my interest in my homestead or primary residence, if I own a homestead or primary residence on the date of my death that passes through this Will, to see above primary residence. If I name more than one person, they are to receive the property [X] equally, after all estate taxes, debts are satisfied.
I will, devise and bequeath all my interest in my homestead or primary residence, if I own a homestead or primary residence on the date of my death that passes through this Will, to see above primary residence. If I name more than one person, they are to receive the property [X] equally, after all estate taxes, debts are satisfied.
Name Address Relationship Gladys Pajares 1150 N.E. 155 Street, N. Miami Beach Fla. Sister
Conchita Donahue 44 Pine Oak Drive, Littleton, Colorado Niece
Property: Primary Resident[sic]202 N.W. 18 Street Delray Beach, Florida 33444

As personal representative, Donahue petitioned the circuit court to construe the will. She sought a declaration that the Delray Beach house was homestead property not subject to administration, so that it passed to Donahue and Gladys Pajares by operation of law, which would have the effect of nullifying the specific devises in Article 3.

Prior to the hearing on the petition, the parties agreed that no extrinsic evidence would be presented. The trial court’s final order found that the will demonstrated the decedent’s intent

that the house in Delray Beach, which was her homestead or primary residence, be sold by the Personal Representative of her estate, that the proceeds be used to make the specific bequests set forth in Article Three, and that the remaining proceeds after payment of all estate taxes and debts go in equal amounts to the devisees set forth in Article Four.

The court granted the personal representative’s request to sell the Delray Beach property for $300,000. Gladys Pajares, an Article Four devisee, appeals.

Pajares contends the circuit court erred because the will should have been strictly construed in favor of retaining the homestead exemption contained in Article X, Section 4 of the Florida Constitution. However, the polestar to will interpretation is the intent of the testator. Morgenthaler v. First Atl. Nat’l Bank of Daytona Beach, 80 So.2d 446, 452 (Fla.1955); see also § 732.6005(1), Fla. Stat. (2007). “The law of wills is calculated to avoid speculation as to the testator’s intent and to concentrate upon what he said rather than what he might, or should, have wanted to say.” In re Estate of Pratt, 88 So.2d 499, 504 (Fla.1956) (citations omitted). Thus,

[t]he intention which controls in the construction of a will is that which is manifest, either expressly or by necessary implication, from the language of the will, as viewed, in case of ambiguity, in the light of the situation of the testator and the circumstances surrounding him at the time it was executed, although technical words are not used; or, as is sometimes said, the testator’s intention must be ascertained from the four corners of the will. Hence a will cannot be construed by a mere conjecture as to the intention of the testator; but it is the intention which the testator expresses in his will that controls, and not that which he may have had in his mind.

Rewis v. Rewis, 79 Fla. 126, 84 So. 93, 94 (1920) (citation omitted); see also Brickell v. Di Pietro, 145 Fla. 23, 198 So. 806, 811 (1940) (citing Reims) (“It is the intention which the testator expresses in his will that controls.”). “[0]nee the intent of the testator is ascertained, the entire will should be considered and construed liberally to effectuate the testator’s intent.” McKean v. Warburton, 919 So.2d 341, 344 (Fla.2005) (citation omitted).

Where the decedent has no surviving spouse or minor children, homestead property may “pass as a general asset of the estate by a specific devise.” McKean, 919 So.2d at 345. “[W]hen the testator specifies in the will that the homestead is to be sold and the proceeds are to be divided[,] ... the homestead loses its ‘protected’ status.” Id. at 346-47 (citation omitted). “Thus, where the will directs that the homestead be sold and the proceeds added to the estate, those proceeds are applied to satisfy the specific, general, and residual devises, in that order.” Id. at 347 (citations omitted).

Reading Articles Three and Four together, we find that Kuhnreich specified that the Delray Beach property was to be sold and the proceeds divided according to the provisions of the will. With the italicized and underlined language, “see above primary residence,” Article Four specifically references the treatment of the residence in Article Three. Article Three indicates that the specific bequests will be paid from “the sale” of the Delray Beach home. In fact, the will provides for the Article Three bequests only through a sale of the real property: the will provides that if the decedent did not own one of the two properties on the date of her death, then “the bequest of that property shall lapse.” Article Four does not expressly say that the Delray Beach Property is to pass to Pajares and Donahue free of claims of the decedent’s creditors, a hallmark of homestead property. See In re Estate of Hamel, 821 So.2d 1276, 1278 (Fla. 2d DCA 2002). Rather the devise is subject to “debts.” The will does not therefore demonstrate an intent to preserve the advantages of homestead for the property.

For these reasons, we affirm the order of the circuit court, which harmonized Articles Three and Four of the will.

MAY and CIKLIN, JJ., concur.

      . The estate inventory valued the condominium at $207,000.


author: LEVINE, J.

text:
    Marc J. PHILIPPON, M.D., and Holy Cross Hospital, Inc., d/b/a Holy Cross Medical Group; Holy Cross Hospital, Inc., d/b/a Holy Cross Hospital; Holy Cross Health Corporation d/b/a Holy Cross Hospital, Inc., Appellants, v. Katie SHREFFLER and Smith & Nephew Endoscopy, Inc., f/k/a Smith & Nephew Dyonics, Inc.; Smith & Nephew, Inc., Appellees.
    Nos. 4D07-4104, 4D07-4105, 4D07-4430, 4D08-28, 4D08-2075, 4D08-2254.
    District Court of Appeal of Florida, Fourth District.
    March 17, 2010.
    Rehearing Denied June 4, 2010.

      Mark Hicks, Dinah Stein, and Brett Powell of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, and Thomas C. Heath of Heath & Carcioppolo, Chartered, Fort Lauderdale, for Marc J. Philippon, M.D. and Holy Cross Hospital.
    Scott M. Newmark, Crane A. Johnstone and Sheldon J. Schlesinger of Sheldon J. Schlesinger, P.A., Fort Lauderdale, and Bard D. Roekenbach and Philip M. Burlington of Burlington & Roekenbach, P.A., West Palm Beach, for Katie Shreffler.
    Gary L. Sanders and Susan J. Cole of Bice Cole Law Firm, P.L., Ocala, for Smith & Nephew.
   LEVINE, J.

These consolidated appeals and cross-appeal in this medical malpractice action present several issues regarding the patient’s introduction of two witnesses and evidence of the surgeon’s medical privileges, as well the closing argument by patient’s counsel. Specifically, appellants raise on appeal the following for consideration: whether the trial court improperly allowed the expert opinion of the patient’s treating physician; whether the trial court improperly allowed the testimony of a “surprise” witness; whether the trial court erred in requiring the admission of the delineation of the surgeon’s medical privileges; and whether the patient’s closing arguments were improper. We find that none of these issues require reversal, and therefore we affirm the judgment.

In 1997, Dr. Philippon (the “surgeon”), an orthopedic surgeon at Holy Cross Hospital (the “hospital”), performed a hip ar-throscopy on seventeen-year-old Katie Shreffler (the “patient”) to repair a labral tear. When the patient did not recover from the surgery within the projected time, she requested a surgical report from the hospital and went to other doctors. In 1998, Dr. McCarthy, a hip arthroscopist, performed a debridement to remove the tissue that could not heal, but the patient continued to experience pain and limited mobility.

In 1999, the patient filed a complaint against the surgeon and the hospital asserting claims of medical negligence and vicarious liability for negligently granting the surgeon privileges. The patient subsequently filed an amended complaint adding the manufacturer of the surgical instruments, Smith & Nephew, as a defendant and asserting a claim of products liability. After a trial, the jury found for the patient and returned a verdict finding she sustained $2.15 million in damages, assigning liability of 43% to the surgeon, 57% to the hospital and 0% to the manufacturer. This consolidated appeal follows.

Although a pretrial order limited the parties to one expert per specialty, the court permitted the patient to offer the testimony of her treating physician, Dr. Michael Tidwell. According to Tidwell, the patient’s recurrent pain suggested a failed surgery. Tidwell observed that the patient had gouges in her cartilage caused by a sharp instrument. He reasoned that the gouges were inflicted by the surgeon because he was the only person who had been in the hip joint before Dr. McCarthy. Tidwell opined that, within a reasonable degree of medical probability, the injuries were caused by the surgeon’s procedure and that the injury to the joint fell below the standard of care.

“[T]he trial court has broad discretion to determine the number of witnesses to be called by either party.” Elder v. Farulla, 768 So.2d 1152, 1155 (Fla. 2d DCA 2000). “The range of subjects about which an expert witness will be allowed to testify are within the trial judge’s broad discretion.” Roseman v. Town Square Ass’n, 810 So.2d 516, 522 (Fla. 4th DCA 2001). The surgeon contends that the patient was allowed effectively two expert witnesses instead of the one expert per specialty limitation outlined in the pretrial order. During trial, the patient argued that allowing her to have an additional expert would even up the sides, because the both the surgeon and manufacturer were permitted one expert, effectively meaning the defense would have two experts. Ultimately, the surgeon neither called his listed expert, nor requested permission to call a second additional expert orthopedic surgeon.

The trial court was within its discretion to allow the testimony of the second expert orthopedic surgeon, Dr. Tid-well. Tidwell testified to the breach in the standard of care, in addition to his testimony as a fact witness. As the Fifth District has explained,

The fact that it was corroborative of other testimony, or even cumulative to it, does not matter. A medical malpractice case is always necessarily a battle of expert witnesses. Within only very broad limits all qualified opinion testimony should be allowed; that is, not disallowed because it is cumulative to other evidence.

Lake v. Clark, 533 So.2d 797, 799 (Fla. 5th DCA 1988).

Further during trial, the patient sought to introduce the eyewitness testimony of Julie Snogles, a surgical technician who had been present during the operation. During discovery, the patient had repeatedly requested contact information regarding Snogles, but despite court order, appellants never provided the information. The patient’s counsel did not locate the witness until he conducted an internet search during trial. The patient maintained there was no prejudice to appellants because they clearly knew of Snogles. Snogles’s name was in the hospital records and in the hospital’s answer to interrogatories.

Appellants argued that they would be prejudiced by her testimony, as knowledge that she would testify would have affected their opening statement, their cross-examination of witnesses, and their defense. They would have investigated Snogles’s background and history for purposes of cross-examining her. After deposition, appellants further argued that they were prejudiced because Snogles named people in her deposition that they would have wanted to question.

The court found that there was no surprise, because the patient had attempted to obtain the witness’s contact information, and both sides knew the witness’s name and of her presence in the operating room. Although the court concluded that the hospital either knew or should have known how to locate her, it found no evidence of willful nondisclosure or bad faith. The court ruled that taking the witness’s deposition cured any prejudice and that the hospital had not shown how it could have protected itself more by knowing of the witness sooner. The court permitted her to testify, concluding that her testimony would not endanger the fairness of the trial.

Snogles testified that the patient was the second or third patient upon whom the surgeon had performed a hip arthroscopy. The surgeon told her that it was a new procedure and that he was new at performing the procedure. Halfway through the surgery, the surgeon created a third portal. Snogles asked him why he was making a third hole, and he said to remove a foreign object. She never saw a foreign object being removed, nor did she see him fracture either of the shavers.

Whether this witness should have been allowed to testify is within the broad discretion of the trial court. The Florida Supreme Court in Binger v. King Pest Control, 401 So.2d 1310, 1312 (Fla.1981), left the “ultimate control over witness disclosure problems to the broad discretion of the trial judge and focuses on prejudice in the preparation and trial of a lawsuit.”

In determining if an undisclosed witness should be admitted, the trial court determines whether there is prejudice, which “refers to the surprise in fact of the objecting party, and it is not dependent on the adverse nature of the testimony.” Id. at 1314. Binger also lists the following other factors to be considered:

(i) the objecting party’s ability to cure the prejudice or, similarly, his independent knowledge of the existence of the witness; (ii) the calling party’s possible intentional, or bad faith, noncompliance with the pretrial order; and (iii) the possible disruption of the orderly and efficient trial of the case (or other cases). If after considering these factors, and any others that are relevant, the trial court concludes that use of the undisclosed witness will not substantially endanger the fairness of the proceeding, the pretrial order mandating disclosure should be modified and the witness should be allowed to testify.

Id. (footnote omitted).

In the present case, since appellants certainly knew of the presence of the technician in the operating room, they could not be “surprised” by her “existence” as a possible witness. Appellants were able to depose her before her testimony. Further, there was no evidence of bad faith, since even the hospital which previously employed Snogles did not have contact information for this witness. Finally, there was no evidence presented that the introduction of this witness disrupted the orderly process of the trial, nor was there any concrete evidence how the introduction of this witness in the patient’s case specifically prejudiced appellants in their trial strategy. Although appellants claimed that they would have to call other witnesses and introduce other documents to counter Snogles’s testimony, they never attempted to do so, suggesting that they did not need to change their trial strategy to accommodate her testimony.

Additionally during trial, the patient’s counsel advised the court that the Florida Supreme Court had issued Brandon Regional Hospital v. Murray, 957 So.2d 590 (Fla.2007), an opinion permitting the discovery of the delineation of privileges, the document which lists the procedures that the surgeon was authorized to perform at the hospital. The trial court required the hospital to produce the document and admitted it into evidence over objection.

A trial court’s decision to admit evidence is reviewed using the abuse of discretion standard of review, as limited by the rules of evidence. Nationwide Mut. Fire Ins. Co. v. Bruscarino, 982 So.2d 753, 754 (Fla. 4th DCA 2008). “The standard of review for discovery orders is abuse of discretion.” Gold, Vann & White, P.A. v. DeBerry, 639 So.2d 47, 56 (Fla. 4th DCA 1994).

The Florida Supreme Court determined in Murray that “a claimant in a medical malpractice case is entitled to discovery of the privileges granted to a physician by a hospital, but is not entitled to the actual records of the credentials committee within the hospital that may have been involved in the process of determining those privileges.” 957 So.2d at 590. Appellants cannot show specifically how they were prejudiced by the trial court’s admission of this document. The surgeon further declined the opportunity to call an unlisted witness to explain this particular document. The admission of the document delineating the privileges of the surgeon was not an abuse of discretion by the trial court.

Finally, during rebuttal closing arguments, the patient’s counsel made several comments which appellants claim were improper and require a new trial. As to those comments objected to contemporaneously by appellants, none warrant reversal.

A trial court has broad discretion in ruling on motions for new trial and mistrial, and its denial of such motions is reviewed under an abuse of discretion standard. Brown v. Estate of Stuckey, 749 So.2d 490 (Fla.1999); Izquierdo v. Gyroscope, Inc., 946 So.2d 115, 117 (Fla. 4th DCA 2007). “Generally, a mistrial or new trial should be granted only when counsel’s arguments are so inflammatory and prejudicial that they deny the opposing party a fair trial.” Maksad v. Kaskel, 832 So.2d 788, 793 (Fla. 4th DCA 2002).

Several of the remarks made by the patient in closing argument were not objected to at the time they were made. “[A] civil litigant may not seek relief in an appellate court based upon improper, but unobjected-to, closing argument, unless the litigant has at least challenged such argument in the trial court by way of a motion for new trial even if no objection was voiced during trial.” Murphy v. Int’l Robotic Sys., Inc., 766 So.2d 1010, 1027 (Fla.2000); see also Budget Rent A Car Sys., Inc. v. Jana, 600 So.2d 466 (Fla. 4th DCA 1992). We, therefore, limit our review to those statements objected to, or at least those which were the basis of a motion for new trial.

During trial, the patient presented testimony of Dr. Robert Spector, who referred to a document while testifying to the chronology of events. Defense counsel requested a copy of the document, but the patient’s counsel informed the court that the chronology was prepared by his law firm and that “it doesn’t go into evidence.” There were no further discussions or any rulings with respect to the chronology.

During closing arguments, the patient’s counsel argued, ‘Where is the chronology? Why isn’t it in evidence if it’s so important? They didn’t move it into evidence.” The surgeon objected to this argument, contending, “That doesn’t come into evidence. That’s an inappropriate comment.”

The patient’s counsel, in closing argument, also questioned where was the delineation of privileges that demonstrated that the surgeon had authorization to perform a hip arthroscopy at the hospital. The patient’s counsel stated, ‘We’ve been asking for it for years. And we get nothing. We get a stiff arm and a cocksure attorney who thinks that you’ve made up your mind.” Appellants objected to the characterization of the attorney as “cocksure,” and the court sustained the objection. After the closing argument and when the jury had exited the courtroom to deliberate, appellants’ attorney moved for a mistrial specifically regarding the “cocksure comment,” stating that it was a “cheap shot.” He also complained that there was no evidence that the patient had been asking for the delineation of privileges for years and that until recently it was privileged as a matter of law. The trial court reserved ruling, although it eventually denied the motion for mistrial.

The trial court did not abuse its discretion in refusing to grant a mistrial or new trial. After the court sustained the objection to the “cocksure” attorney reference, the patient did not use the term again. As to the chronology argument, we believe that the argument was unfair where, during trial, the patient argued that it was inadmissible work product. It also could be considered somewhat disingenuous for the patient’s counsel to insinuate that appellants had failed to turn over the delineation of1 privileges where it had been privileged until a Florida Supreme Court decision was issued during trial. While these arguments could be considered close to running afoul the “permissible bounds of advocacy,” see Murphy, 766 So.2d at 1035 (Pariente, J. concurring specially), we conclude that none of these comments, either individually or collectively, were so prejudicial as to deny appellants a fair trial. See Maksad, 832 So.2d at 793.

Because we affirm the final judgment in favor of the patient, we necessarily also affirm the appeal by appellants of the final judgment awarding the patient attorney’s fees and costs and the appeal by the patient of the final judgment in favor of the manufacturer and order granting the manufacturer’s motion to tax costs. Finally, we affirm the appeal by the manufacturer of the order denying its motion for attorney’s fees pursuant to Campbell v. Goldman, 959 So.2d 223 (Fla.2007).

Affirmed.

GROSS, C.J., and WARNER J., concur.


author: PER CURIAM. WALLACE, Judge,

text:
    In the Interest of E.C., a child. R.C., Appellant, v. Department of Children and Family Services and Guardian Ad Litem Program, Appellees. M.C., Appellant, v. Department of Children and Family Services and Guardian Ad Litem Program, Appellees.
    Nos. 2D08-3544, 2D08-3671.
    District Court of Appeal of Florida, Second District.
    March 24, 2010.
    Rehearing Denied May 19, 2010.

      Jackson Stuart Flyte, Regional Counsel, Second District, and Kimberly Nolen Hopkins, Special Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bartow, for Appellant R.C., and Ingrid Anderson, Clearwater, for Appellant M.C.
    Bill McCollum, Attorney General, Tallahassee, and Kelley Schaeffer and Kimberly G. Gore, Assistant Attorneys General, Tampa, for Appellee Department of Children and Family Services.
    Ama N. Appiah, Orlando, and Laura E. Lawson, Tavares, for Appellee Guardian ad Litem Program.
   PER CURIAM.

In these consolidated appeals, M.C. (the Father) and R.C. (the Mother) appeal an order terminating their parental rights to their youngest child, E.C. Although several issues were raised on appeal, we write to address only the issue of whether it was fundamental error for the trial court to terminate the parental rights to E.C. under section 39.806(l)(e)(l), Florida Statutes (2006), when the case plan that was approved by the court and relied upon by the parties throughout the proceedings was not filed in the court file. We conclude that the error is not fundamental based on the specific facts of this case, and therefore, we affirm.

I. FACTS

This proceeding involves the youngest child of a family of six children. This child, E.C., was born on June 30, 2005. Shortly before E.C. was born, the Mother tested positive for cocaine. The Mother went into labor at twenty-eight weeks and refused to remain in the hospital. She received no prenatal care. E.C. was born premature at twenty-nine weeks’ gestation, weighing just over two pounds. E.C. was placed in the neonatal intensive care unit, where she was intubated for breathing assistance. At the time of E.C.’s birth, both E.C. and her Mother tested positive for cocaine and marijuana. E.C. was immediately sheltered.

Almost a year before E.C.’s birth, the other five children were removed from their parents. The removal of the other children occurred on July 26, 2004. These children were adjudicated dependent on February 23, 2005, at which time the Father was provided with a case plan. The Mother was provided with a case plan on April 22, 2005. The Mother was noncom-pliant with her case plan with regard to the older children at the time E.C. was sheltered. Additionally, several months before E.C.’s birth, the Father was arrested for possession of marijuana and for violation of the probation he was serving for domestic violence, and as a result, he was incarcerated at the time of E.C.’s birth.

Immediately before E.C.’s birth, the Department of Children and Family Services prepared an addendum to the existing case plans. The addendum was dated June 29, 2005. The addendum discussed new parental behavior that placed the children at risk. Among other things, the addendum described incidents of domestic violence by the Father and positive drug tests of the Mother. And, although the addendum was dated the day before the birth of E.C. and it failed to list E.C., it discussed the Mother’s presentation to the hospital while she was in her twenty-eighth week of pregnancy with E.C. and her departure from the hospital in contravention of the advice by medical personnel. The addendum required both the Father and the Mother to undergo substance abuse evaluation and treatment and the mother to undergo a mental health evaluation.

The Department filed a petition for dependency as to E.C., and a hearing on the petition was held on July 28, 2005. Both of E.C.’s parents and their attorneys were present at this hearing. The trial court adjudicated E.C. dependent as to each parent, and in orders filed on August 17, 2005, nunc pro tunc to July 28, 2005, the court accepted and approved the “case plan dated June 29, 2005.”

After the case plan order was entered, regularly scheduled judicial review hearings took place every several months over the next three years, and both parents were present at two of the judicial review hearings. The permanency hearing and judicial review social study reports; the reports and recommendations of the general magistrate on the permanency hearings, judicial reviews, and case plan reviews; and the trial court’s orders on the general magistrate’s reports and recommendations all list E.C. along with the parents’ other children.

Subsequent to the entry of the case plan orders, both parents had ongoing problems with substance abuse. The Mother tested positive for cocaine and marijuana on January 4, 2006, and May 15, 2007, and she tested positive for marijuana on September 29, 2005, and February 16, 2006. Additionally, the Mother failed to respond to multiple referrals for drug testing subsequent to E.C.’s birth. She failed to submit to drug screenings on July 14, 2005; February 7, 2007; March 8, 21, and 30, 2007; April 11 and 13, 2007; and May 9, 2007. She did not attend any drug screenings between the middle of 2006 and January 2007.

The Father remained incarcerated until September 2005. He tested positive for marijuana on September 29, November 4, and November 18, 2005. In the early part of 2006, he failed to attend drug screenings and failed to complete a substance abuse evaluation despite multiple referrals. When he submitted to drug screenings in early 2006, he tested positive for marijuana two times. Between February 2 and September 28, 2007, the Department made twenty-five referrals for drug screenings. The Father failed to appear for many of those screenings, and he tested positive for marijuana on February 28, 2007, just eight days after the Department filed the petition for termination of parental rights in this case. The Department also made multiple referrals for the Father’s substance abuse evaluation, and he failed to appear for six scheduled appointments. Ultimately, he completed the evaluation but not until the filing of the petition for termination of parental rights. He began an eight-week treatment program just one month prior to the adjudicatory hearing on the petition for termination of parental rights, but he failed to complete the program.

The Department filed the petition to terminate the rights of the parents as to five of the six children on February 20, 2007. On June 27, 2008, after numerous hearings, the trial court denied the petition to terminate the parental rights of the parents to four of the children on the basis that termination was not in the manifest best interests of those children. The trial court readjudicated those children dependent. The trial court terminated the parental rights of both parents as to E.C. on the basis of the parents’ substantial noncompliance with the case plan pursuant to section 39.806(l)(e)(l).

The record in this case reflects that the parents have been working on their case plan for their children since February and April 2005. And, significantly, at no time during the course of the three-year period during which E.C. was sheltered did the parents ever assert that E.C. was not in-eluded in the case plan adopted by the court.

Both parents testified at the termination hearings that they knew they needed to complete their case plan in order to be reunited with their children, yet they both acknowledged that they had not completed their case plan at the time of the hearings. The case workers testified that both parents failed to complete the substance abuse task in their ease plan. The Mother failed to follow through with approximately forty drug screens. The Father testified that he was aware that he was required to receive substance abuse treatment under the case plan but that he had not completed that task at the time of the hearing. A case worker testified that at the time of the hearing, the Father had not completed the domestic violence task in his case plan. The Mother also failed to complete the domestic violence task. A case worker testified that neither parent had provided proof of stable income or stable housing. The Father lived in a one-bedroom apartment and earned $350 every two weeks in a job he had held for only one month delivering papers for a church. He could not remember the name of the church.

The record demonstrates that the parents have been in and out of jail during the course of the proceedings: the Father was incarcerated for possession of marijuana and violation of probation for domestic violence at the time of E.C.’s birth, and the Mother was incarcerated for possession of cocaine at the time of the termination hearings.

The record also demonstrates that the four older children, who have been placed back with their parents, endured terrible hardships while in foster care and that all of them suffer from numerous and severe emotional handicaps. E.C. was three years old at the time of the final termination hearing and has been with the same foster parents since she was sheltered. Her foster parents wish to adopt her.

II. APPLICABLE LAW

In order to grant a petition for termination of parental rights, the trial court must find that the Department proved the allegations supporting termination by clear and convincing evidence. E.E.A. v. Dep’t of Children & Family Servs., 846 So.2d 1250, 1251-52 (Fla. 2d DCA 2003). The trial court must then find that the Department proved a statutory ground for termination of parental rights under section 39.806 and that termination is in the manifest best interests of the child under section 39.810. Rathburn v. Dep’t of Children & Families, 826 So.2d 521, 523 (Fla. 4th DCA 2002). In addition, the Department must establish that termination of parental rights is the least restrictive means of protecting the child from harm. E.E.A., 846 So.2d at 1252.

The Florida Supreme Court has explained that the appellate court’s task on review is not to conduct a de novo proceeding, reweigh the testimony and evidence given at the trial court, or substitute [its] judgment for that of the trier of fact. Instead, [it] will uphold the trial court’s finding “[i]f, upon the pleadings and evidence before the trial court, there is any theory or principle of law which would support the trial court’s judgment in favor of terminating ... parental rights.”

G.W.B. v. J.S.W., 658 So.2d 961, 967 (Fla.1995) (quoting Kingsley v. Kingsley, 623 So.2d 780, 787 (Fla. 5th DCA 1993)). Where the trial court’s finding that there is clear and convincing evidence to terminate parental rights is supported by competent, substantial evidence, the appellate court has no choice but to affirm. See D.S. v. Dep’t of Children & Families, 842 So.2d 1071, 1072 (Fla. 4th DCA 2003). “Our standard of review is highly deferential. A finding that evidence is clear and convincing enjoys a presumption of correctness and will not be overturned on appeal unless clearly erroneous or lacking in eviden-tiary support.” N.L. v. Dep’t of Children & Family Servs., 843 So.2d 996, 999 (Fla. 1st DCA 2003).

III. ANALYSIS

On appeal, both parents argue that the trial court erred in granting the petition to terminate as to E.C. because no case plan regarding E.C. was ever filed with the trial court. During the three years of the proceedings before the trial court, however, neither of the parents ever objected on this basis. In the absence of an objection, the error must be fundamental in order to receive appellate review. Sanford v. Rubin, 237 So.2d 134, 137 (Fla.1970). Fundamental error is error that “goes to the foundation of the case or goes to the merits of the cause of action.” Id. An appellate court “should exercise its discretion under the doctrine of fundamental error very guardedly.” Id.

Section 39.806(l)(e)(l) provides that a ground for termination may be established “[w]hen [the] child has been adjudicated dependent, a case plan has been filed with the court,” and “[t]he child continues to be abused, neglected, or abandoned by the parent or parents.” The failure of a parent to substantially comply with a case plan constitutes evidence of continuing abuse, neglect, or abandonment. It appears from the record that at the time of the termination hearing, the case plan, in-eluding the addendum, as to E.C. had not been technically “filed with the court.” However, it appears that this technical omission was inadvertent. The case plan was reviewed and approved by the court after E.C. was born, the addendum to the case plan made reference to the Mother’s visit to and departure from the hospital during the Mother’s twenty-eighth week of pregnancy, and the case plan was continually reviewed by the court throughout the year and a half prior to the filing of the petition for termination and throughout the next year and a half prior to the termination hearings. Cf. Y.F. v. Dep’t of Children & Family Servs., 893 So.2d 641, 642 (Fla. 2d DCA 2005) (holding that trial court erred in granting petition for termination of parental rights based on noncompliance with case plan when case plan was not filed and approved by the court until seven months after petition for termination was filed).

Several judicial review hearings were held in the case, and the sole purpose of such hearings was to monitor the parents’ progress on completing their case plans as to all of their children. Even though the parents testified at the termination hearings that they were confused about certain tasks of their case plan, it is clear that the parents were aware of the case plan and that they were aware that they were required to perform their tasks in order to be reunited with their children. In fact, both parents argued at the termination hearings that they complied or attempted to comply with their case plan tasks. At no point during the numerous judicial reviews that took place over the three years during which E.C. was sheltered did the parents object on the basis that no case plan applied to E.C. The parents cannot now be heard to complain for the first time on appeal that no case plan applied to E.C. We conclude, under the unique facts of this case, that any error in failing to file the case plan with the court does not go to the foundation or the merits of the case and is therefore not fundamental error.

IV. CONCLUSION

The trial court’s order finding that the parents failed to substantially comply with their case plans and that termination is in the best interests of the child is supported by competent, substantial evidence. Accordingly, we affirm the trial court’s order terminating both parents’ rights to E.C.

Affirmed.

KHOUZAM and MORRIS, JJ., Concur.

WALLACE, J., Dissents with opinion.

WALLACE, Judge,

Dissenting.

The result reached by the majority, which will permit E.C. to be adopted by her current foster parents, is an attractive one. However, the analysis in the majority opinion minimizes the multiple ways in which the Department’s case against both the Father and the Mother fails to meet some of the most basic requirements for the termination of parental rights. Measuring the record in this case against these requirements compels me to dissent.

I. INTRODUCTION

The Department failed to prove its case for the termination of either the Father’s or the Mother’s parental rights to E.C. based on case plan noncompliance for two separate reasons. First, the paper referred to in the majority opinion as the June 29, 2005, “case plan” was never filed with the circuit court before the entry of the termination order that is the subject of this appeal and actually appears to be an addendum to an earlier case plan. This unsigned addendum was prepared and dated before E.C. was born and — not surprisingly — it does not mention E.C. The addendum was not even filed until more than three and one-half years after it was purportedly approved by the circuit court, long after the parents’ appeals were pending in this court. Because of the complete absence of a proper case plan for E.C., I conclude that the Department did not prove its case for the termination of either parent’s parental rights to E.C. based on case plan noncompliance.

Second, even if one assumes that the unfiled addendum was a valid case plan applicable to E.C., the Department also failed to prove its case for the termination of the Father’s parental rights based on his alleged noncompliance with the tasks in the addendum. The failure of the Department’s proof as to the Father fatally undermines its case against the Mother as well because the Department did not establish grounds for a single parent termination.

I will discuss separately each of these deficiencies in the Department’s case against the parents. My conclusion that the Department failed to establish a ground for termination of either the Father’s or the Mother’s parental rights to E.C. makes it unnecessary for me to discuss the issues concerning whether termination was in the manifest best interests of E.C. or the least restrictive means of protecting E.C. from serious harm.

II. FACTS AND PROCEDURAL HISTORY

On July 27, 2004, approximately eleven months before E.C. was born, the Department filed a shelter petition for the Mother’s and the Father’s three children and for the Mother’s two older children. The petition alleged physical abuse, domestic violence, and substance abuse. In particular, the petition alleged that the Mother was living in a domestic violence shelter with the children because the Father had hit then-fourteen-year-old S.O. in the mouth. The Mother was not present at the time, and when she arrived at the home where the incident took place, she was intoxicated. There were also allegations that the Father had hit the Mother on prior occasions. The circuit court ordered that the five children be placed in shelter care.

Later, the Department filed a petition for dependency alleging that the children had been abused and neglected due to the domestic violence in the home. On April 7, 2005, the five children were adjudicated dependent as to the Mother. On the same date, M.C., S.A.C., and I.A.C. were adjudicated dependent as to the Father with his consent.

The circuit court accepted an initial case plan dated December 15, 2004, with a goal of reunification and a target date of July 26, 2005. The plan required the Father to (1) maintain adequate housing, (2) maintain stable income, (3) successfully complete an approved parenting program, (4) complete family counseling, (5) complete an approved domestic violence class, and (6) commit no further law violations.

On March 24, 2005, the Father was arrested for violating his probation and for possession of marijuana. He was released later that year. On June 16, 2005, the Mother tested positive for cocaine while she was pregnant with E.C. Then, when she was advised by hospital personnel on June 17, 2005, to remain in the hospital after her water broke, she left the hospital without being discharged. Following these events, the Department drafted an addendum to the parents’ case plan. This addendum — dated June 29, 2005 — was formulated before the birth of E.C. The addendum purported to change the plan tasks and required both parents to undergo a substance abuse evaluation and treatment. The addendum also required the Mother to complete a mental health assessment. The completion date set in the addendum was December 31, 2005 — just slightly more than six months later. As I have already noted, the addendum was not filed in the circuit court.

After the preparation of the addendum, the Mother gave birth to E.C. on June 30, 2005. E.C. was born prematurely and was placed in a neonatal intensive care unit. The Department filed a shelter petition alleging that both the Mother and E.C. tested positive for cocaine and marijuana. The petition further alleged that the Father was unable to care for E.C. because he was incarcerated. For these reasons, the circuit court ordered that E.C. be placed in shelter care.

The Department filed a petition for dependency on July 15, 2005, alleging that the Father had abandoned E.C. as a result of his incarceration. The petition alleged one count of prospective neglect as to the Mother and one count of abuse based on the Mother’s exposure of E.C. to controlled substances. On July 28, 2005, the circuit court adjudicated E.C. dependent as to both parents.

On August 17, 2005, the circuit court entered a case plan order, nunc pro tunc to July 28, 2005, listing E.C. and her five older siblings. Although the order purported to approve a case plan dated June 29, 2005, no case plan was attached to or filed with the order.

Afterward, the Mother and the Father did not complete several tasks that were included in the June 29, 2005, addendum. In particular, the Mother did not follow the recommendations made by her mental health counselor after the mental health assessment. The Mother also did not complete her substance abuse treatment, failed several drug tests, and used cocaine. Similarly, the Father failed several drug tests and used marijuana.

The Department filed a petition for termination of parental rights as to both parents on February 20, 2007. This petition alleged that the parents had not substantially complied with their case plans. For this reason, the Department requested that the parents’ rights be terminated under subsection 39.806(l)(e), Florida Statutes (2006).

At the beginning of the termination hearing, counsel for the Department asked the circuit court to take judicial notice of all of the orders included in the court’s file. Counsel described the orders and, in pertinent part, stated:

On August 16th, 2005, this Court entered a nunc pro tunc order back to July 28th, 2005[,] adjudicating the minor child, [E.C.], dependent as to both parents .... Also the same date, same nunc pro tunc date as well, there is a Case Plan Order. It’s ordering the [Mjother, [R.C.], as well as the [Fjather, [M.C.], naming the [Mjother’s six children, who were previously named, and ordering the parents to comply with the case plan. In the court file, also asking you to take judicial notice of it, dated June 29th, 2005.

However, the Department did not introduce the June 29, 2005, addendum as a separate exhibit during the hearing and presented no testimony describing the tasks listed in the addendum. In fact, the addendum of June 29, 2005, was not in the court file on the date of the termination hearing or when the termination order for E.C. was entered.

The circuit court ruled that termination of parental rights was not appropriate as to L.J.W., M.C., S.A.C., and I.A.C. because the Department did not establish that termination was in their manifest best interests or that termination was the least restrictive means of protecting these children from serious harm. The court readjudicated these children dependent and ordered the Department to provide the parents with a new case plan with a goal of reunification. However, the court terminated the Father’s and the Mother’s parental rights as to E.C. for substantial noncompliance as authorized by section 39.806(l)(e)(l) because they “failed to complete their case plan, as necessary.” The court also found that termination was in the manifest best interests of E.C. and was the least restrictive means of protecting her from harm. The parents challenge the order to the extent that it terminates their parental rights to E.C.

III. LEGAL BACKGROUND

To grant a petition to terminate parental rights, the circuit court must find that the Department presented clear and convincing evidence to support the termination. W.L. v. Dep’t of Children & Family Servs., 15 So.3d 866, 868 (Fla. 2d DCA 2009). The court must first find grounds for termination of parental rights under section 39.806 and then consider the manifest best interests of the child under section 39.810. See V.W. v. Dep’t of Children & Family Servs., 863 So.2d 480, 482-83 (Fla. 2d DCA 2004). Additionally, the Department must prove that termination of parental rights is the least restrictive means of protecting the child from serious harm. See id. at 483. An appellate court will affirm the termination if, upon the evidence presented to the circuit court, there is any principle or theory of law that would support the court’s judgment terminating parental rights. G.W.B. v. J.S.W., 658 So.2d 961, 967 (Fla.1995).

IV. DISCUSSION

A. Parties ’ Arguments

The Father and the Mother challenge the sufficiency of the evidence supporting the termination of their parental rights to E.C. In particular, they argue that the Department did not present clear and convincing evidence that they failed to substantially comply with a case plan for E.C. The parents point out that the Department did not file a case plan for E.C. in the circuit court and did not provide them with a copy of such a plan. The Father also contends that he substantially complied with any case plan for E.C. because he remedied the circumstances that could have caused the creation of such a plan.

In response, the Department makes two points. First, the Department argues that the parties did not raise the argument regarding the filing of the case plan before the circuit court. And, if the argument were properly preserved, the so-called “case plan” of June 29, 2005, was applicable to E.C. and was referenced in the case plan order. Second, the Department contends that the parents failed to substantially comply with the so-called “case plan.” Notably, the Department limits its appellate arguments in support of the termination order to the parents’ alleged failure to substantially comply with the case plan tasks in the June 29, 2005, addendum. It does not rely on the tasks included in the December 15, 2004, case plan.

I will consider the parties’ arguments below. But some understanding of the statutory basis for terminating the parents’ parental rights to E.C. for failure to substantially comply with a case plan is essential to an understanding of the parties’ arguments. Thus I will briefly outline the elements of proof necessary for termination of parental rights under section 39.806(l)(e)(l).

B. Section 39.806(l)(e) (1)

A three-part test governs the termination of parental rights for failure to substantially comply with a case plan. First, the circuit court must adjudicate the child dependent. § 39.806(l)(e); J.T. v. Dep’t of Children Family Servs., 819 So.2d 270, 272 (Fla. 2d DCA 2002). Second, the Department must file a case plan with the circuit court. § 39.806(l)(e); Y.F. v. Dep’t of Children Family Servs., 893 So.2d 641, 642 (Fla. 2d DCA 2005). Third, the Department must show that “[t]he child continues to be abused, neglected, or abandoned by the parents.” § 39.806(l)(e)(l). A parent’s failure “to substantially comply” with the case plan for a twelve-month period “constitutes evidence of continuing abuse, neglect, or abandonment” except when the failure “to substantially comply” was due to the Department’s failure to make reasonable efforts toward reunification or the parent’s lack of financial resources. Id.‘Substantial compliance’ means that the circumstances which caused the creation of the case plan have been significantly remedied to the extent that the well-being and safety of the child will not be endangered upon the child’s remaining with or being returned to the child's parent.” § 39.01(71) (emphasis added); see also R.F. v. Dep’t of Children Family Servs., 22 So.3d 650, 654 (Fla. 2d DCA 2009); E.R. v. Dep’t of Children Family Servs., 937 So.2d 1196, 1198 (Fla. 3d DCA 2006). The circuit court cannot terminate parental rights under section 39.806(l)(e)(l) merely because a parent failed to comply with a case plan. R.F., 22 So.3d at 654.

C. June 29, 2005, Addendum

As a preliminary matter, the Department contends that the argument regarding the failure to file a case plan for E.C. in the circuit court was not preserved for appellate review because it was not raised below. I disagree.

[W]hen the trial court found that the evidence was sufficient to terminate appellant's parental rights, the court was ruling on the very issues which a motion for judgment of dismissal would have raised. Thus, when the sufficiency of the evidence is raised on appeal, we are not addressing an issue which was not considered by the trial court.

H.D. v. Dep’t of Children & Families, 964 So.2d 818, 819 (Fla. 4th DCA 2007), review granted, 974 So.2d 386 (Fla.), review dismissed as improvidently granted, 985 So.2d 1059 (Fla.2008). Here, the circuit court found that the evidence was sufficient to terminate the parents’ parental rights to E.C., and the parents are challenging the sufficiency of that evidence. Thus this court should address the challenge to the sufficiency of the evidence based on the Department’s failure to file a case plan for E.C.

Termination under section 39.806(l)(e)(l) is improper where “no case plan ha[s] beén filed with the court prior to the filing of the ... petition for termination of parental rights.” Y.F., 893 So.2d at 642. The record does not indicate that a case plan for E.C. was filed with the circuit court before the pendency of this appeal. Although the August 17, 2005, case plan order listed E.C. and purported to approve a case plan dated June 29, 2005, no case plan was attached to that order or filed with it.

The Department claims that the Father did not comply with the addendum dated June 29, 2005, which was included in the record after this appeal was filed. However, for three reasons, I am not persuaded that the late-filed paper that the Department refers to as the June 29, 2005, case plan applied to E.C. First, the paper was dated the day before E.C. was born and required compliance within only six months after her birth. But under section 39.806(l)(e)(l), the parents had twelve months to demonstrate substantial compliance with any case plan. Second, the Department told the circuit court during its opening statement that the relevant case plan named E.C. and her five older siblings, but the paper in the appellate record does not include E.C.’s name and a description of the parents’ “acts resulting in risk to [E.C.] and the reason for the intervention by the [Department” as required by section 39.6011(2)(a). Furthermore, it was not signed by the parties as required by section 39.6011(3). Third, the paper was not filed three days before the disposition hearing as required by section 39.6011(7), and the case progress notes do not include an entry showing that it was ever filed. The person who prepared the paper on the Department’s behalf must have understood that it was not a case plan for E.C., because he or she used the Department’s preprinted addendum form rather than a form for a case plan. Because no case plan for E.C. was filed with the court prior to the filing of the petition, the termination of parental rights was unauthorized.

But, even if the paper in the appellate record or some, as yet, unfiled “case plan” applied to E.C., we cannot consider it because it is not properly part of the appellate record. See Dep’t of Transp. v. Baird, 992 So.2d 378, 382 (Fla. 5th DCA 2008) (“It was also improper for the circuit court on appeal to refer to an agreement between Baird and the Authority that was not part of the record on appeal.”). “Except as otherwise designated by the parties, the record shall consist of the original documents, exhibits, and transcript(s) of proceedings, if any, filed in the lower tribunal .... ” Fla. RApp. P. 9.200(a)(1) (emphasis added).

The circuit court’s docket does not reflect that a June 29, 2005, case plan was filed. In response to the Department’s effort to supplement the record on appeal with the June 29, 2005, case plan, the clerk of the circuit court noted that no case plan dated June 29, 2005, was listed on the case docket or included in the court file and supplemented the record with the June 29, 2005, addendum. The addendum bears a filing date stamp indicating that it was not filed in the circuit court until April 22, 2009, ten months after the entry of the termination order. I note that the Father strenuously opposed the Department’s motion to supplement the appellate record with a copy of the so-called “case plan.” Because the June 29, 2005, addendum was not filed in the circuit court, it is not properly part of the appellate record and this court ought not to give it any consideration.

For these reasons, the record on appeal does not reflect that a case plan for E.C. was filed in the circuit court before the parents’ rights were terminated. Because the Department did not file a case plan for E.C., its “request for termination based on [section 39.806(l)(e)(l) ] was fatally flawed from its inception.” Y.F., 893 So.2d at 642. Thus the circuit court erred when it terminated both parents’ parental rights to E.C. for failure to substantially comply with a case plan.

D. Father’s Substantial Noncompliance

The Father also contends that, even if the June 25, 2009, addendum had been filed and somehow constituted a valid case plan applicable to E.C., the circuit court erred when it terminated his parental rights to E.C. because the Department failed to show that he had not remedied the circumstances that caused the creation of that “case plan.” Termination under section 39.806(l)(e) is appropriate if “the circumstances which gave rise to creation of the case plan have not been significantly remedied to the extent that the well-being and safety of [the child] will be endangered upon the child’s return to the parents.” B.L. v. Dep’t of Children Families, 950 So.2d 1264, 1267 (Fla. 5th DCA 2007); see also R.F., 22 So.3d at 654 (noting same); E.R., 937 So.2d at 1198 (noting same).

The Department argues that the Father’s noncompliance with the drug abuse tasks was sufficient to support the termination of his parental rights. However, the circumstances which gave rise to the creation of the addendum as to the Mother were her cocaine use while pregnant with E.C. and her decision to leave the hospital against medical advice. The addendum does not explain what circumstances gave rise to its creation as to the Father. But the shelter petition indicates that E.C. was placed in the Department’s custody because the Father was incarcerated. The dependency petition alleged that the Father had abandoned the child as a result of his incarceration. Thus the circumstance that caused the creation of any “case plan” as to the Father was his incarceration. This circumstance was significantly remedied when the Father was released during 2005, and he remained at liberty for the remainder of the twelve-month compliance period. Moreover, the testimony at the termination hearing established that E.C. would not be harmed if returned to the Father as long as the Father was provided services. Because the Department did not show that the circumstance which gave rise to creation of any “case plan” concerning E.C. had not been significantly remedied to the extent that E.C.’s well-being and safety would be endangered upon her return to the Father, I could not concur in the affirmance of the trial court’s termination of the Father’s rights under section 39.806(l)(e)(l) even if the June 25, 2009, addendum applied to E.C. and was properly filed in the circuit court.

E. Single-Parent Termination

Assuming that the June 25, 2009, addendum applied to E.C. and was properly filed in the circuit court, I would also reverse the termination of the Mother’s parental rights. Because I would reverse the termination of the Father’s rights as discussed above, the Mother’s termination is subject to the requirements of section 39.811(6).

Section 39.811(6) requires a trial court to consider additional factors when terminating one parent’s rights without terminating the rights of the other parent. This section lists the “only” circumstances under which termination of one parent’s rights is permissible. See L.N. v. Dep’t of Children & Family Servs. (In re E.D.), 884 So.2d 291, 294 (Fla. 2d DCA 2004). This section creates complexities when an appellate court reviews a judgment terminating the parental rights of both parents and concludes that it must reverse the judgment as to one of the parents. The reversal suddenly subjects the termination of the second parent’s rights to special requirements that were not material at the time the trial court made its ruling.
When an appellate court reverses the termination of parental rights as to one parent and the trial court has made no ruling with regard to a single-parent termination under section 39.811(6) concerning the other parent, the appellate court can still affirm the single-parent termination if the actual ground for termination as to that parent stated in the judgment is one of the grounds described in section 39.811(6)(e) and that portion of the judgment is otherwise affírmable. On the other hand, an appellate court will typically be unable to uphold, a single-parent termination if one parent’s parental rights are terminated for a ground not contained in section 39.811(6)(e), such as failure to complete a case plan. In this situation, the appellate court will normally be constrained to reverse the parent’s judgment because the judgment and record will not contain findings of fact required by section 39.811(6)(a)-(d) sufficient to affvrm the judgment as a matter of law.

J.T. v. Dep’t of Children & Family Servs., 908 So.2d 568, 573 (Fla. 2d DCA 2005) (emphasis added) (footnotes omitted).

Here, the Department did not establish any ground for termination under section 39.811(6)(a) through (d), and the Mother’s rights were not terminated for one of the grounds specified in section 39.811(6)(e). Thus I would also reverse the termination of the Mother’s parental rights because the Department did not establish grounds for a single-parent termination. See I.R. v. Dep’t of Children & Family Servs., 18 So.3d 26, 27-28 (Fla. 2d DCA 2009).

V. CONCLUSION

The disheartening facts revealed in the record of this case could certainly lead one to conclude that E.C. would be “better off” if she were adopted by her current foster parents. But “[t]he fact that a child may be better off materially or otherwise with the prospective adoptive parents should never become the focal point in a termination proceeding.” Kingsley v. Kingsley, 623 So.2d 780, 788 (Fla. 5th DCA 1993). Instead, we must look to whether the Department met the stringent requirements for the termination of parental rights.

Here, the Department simply failed to prove one of the statutory grounds for terminating the parents’ parental rights to E.C. The evidence presented by the Department was insufficient to prove that the parents failed to substantially comply with a case plan for E.C. because the Department never filed a case plan for E.C. When the basis for a circuit court’s termination order is the parents’ substantial noncompliance with a case plan, the Department’s failure to prepare and file a case plan for the child in question should not be treated as the omission of an unimportant formality that does not affect the parents’ substantial rights. Furthermore, even if the addendum, which was first filed in the circuit court long after this appeal was begun, could be deemed to be a case plan applicable to E.C., termination as to the Father was improper because the Department did not establish that he had failed to remedy the circumstances that caused creation of the plan. This result renders the termination of the Mother’s rights subject to subsection 39.811(6), and the Department failed to establish a basis for a single-parent termination. Accordingly, I would reverse the circuit court’s order to the extent that it terminated the parents’ parental rights to E.C. and remand with instructions to dispose of this case as authorized by subsection 39.811(1) and Florida Rule of Juvenile Procedure 8.525(i).

      . The record does not contain a separate case plan dated June 29, 2005. The case plan addendum, however, was entered on June 29, 2005. The addendum was not included as part of the trial court record until the pen-dency of this appeal.

      . The oldest child had reached the age of eighteen and was no longer dependent.

      . As explained in the dissenting opinion, the December 2004 case plan required the Father to (1) maintain adequate housing, (2) maintain stable income, (3) successfully complete an approved parenting program, (4) complete family counseling, (5) complete an approved domestic violence class, and (6) commit no further law violations. The requirement that the Father receive substance abuse treatment was a task set forth in the addendum to the case plan dated June 29, 2005. Based on the Father’s testimony, it is clear that he was aware of the addendum to the case plan.

      . We do not agree with the dissent’s conclusion that even if a case plan had been created as to E.C., the circumstances that caused the creation of the case plan in regard to the Father had been remedied at the time of the termination hearing. While the dependency order references the Father’s abandonment of E.C. due to his incarceration, the case plan addendum requires the Father to complete a substance abuse task, which he failed to complete before the termination of his parental rights. We believe that in light of this task and the existing case plan tasks as to the other children, who had been adjudicated dependent as to both parents only a few months before, the Father’s incarceration was not the only circumstance that caused the creation of the case plan as to E.C.

      . The full title of the paper at issue is "CHILD WELFARE CASE PLAN, ALL CASES (PART A), ADDENDUM.” The paper also states its purpose as follows — "Update: Change in Services/Tasks Only.”

      . The Father and the Mother are the married parents of M.C., born October 30, 1997; S.A.C., born August 4, 2000; I.A.C., bom September 28, 2002; and E.C., born June 30, 2005. The Department sought to terminate the Father’s and the Mother’s parental rights to these four children and also sought to terminate the Mother’s parental rights to L.J.W., born September 24, 1995, and S.O., bom August 5, 1989. S.O. reached the age of majority before the termination hearing. The Father is not the parent of either S.O. or L.J.W.; those children have different fathers.

      . In response to this court's order granting the Department’s motion to supplement the appellate record with "a case plan” dated June 29, 2005, the circuit court clerk supplemented the record with the addendum of the same date. The clerk stated that she "could not find [a] case plan in [the] file or listed on [the] case docket.” The addendum does not list E.C. as one of the affected children.

      . The Department also requested termination of the parents’ rights under subsections (a), (b), and (c). However, during the termination hearing, the Department abandoned its claims under subsections (a) and (b), and the circuit court granted the parents’ motions for dismissal as to subsection (c).

      . Although the Father raised this argument in his initial brief, the Mother did not. Later, the Mother filed a motion to join in the Father’s argument or to file an amended brief. This court initially denied the Mother's motion, but we subsequently vacated that order, granted the Mother's motion, and ordered that her brief would be deemed amended to include this argument.

      . Effective July 1, 2008, the period of time allotted for parents to demonstrate compliance with the case plan has been reduced from twelve months to nine months. See ch. 2008-245, §§ 16, 32, at 2941-42, 2950, Laws of Fla.

      . The parents also argue that the failure to file a case plan was fundamental error that can be raised for the first time on appeal. " 'Fundamental error,' which can be considered on appeal without objection in the lower court, is error which goes to the foundation of the case or goes to the merits of the cause of action.” Sanford v. Rubin, 237 So.2d 134, 137 (Fla.1970). Section 39.806(l)(e) applies only “[w]hen ... a case plan has been filed with the court.” Moreover, it would be difficult — if not impossible — to determine whether a parent has substantially complied with a case plan when the case plan is not available to the court or to the parents. Thus the parents have raised a claim of fundamental error because the failure to file a case plan goes to the foundation or merits of the action.
      Additionally, the failure to file a case plan implicates due process concerns. Because the termination of parental rights impacts a fundamental liberty interest, the Department must show that granting termination is the least restrictive means of protecting the children. Padgett v. Dep't of Health & Rehab. Servs., 577 So.2d 565, 571 (Fla.1991). "This means that [the Department] ordinarily must show that it has made a good faith effort to rehabilitate the parent and reunite the family, such as through a current performance agreement or other such plan for the present child.” Id. Because the “ '[l]east restrictive means' analysis embodies due-process concerns,” A.W. ex rel. B.W. v. Dep’t of Children Families, 969 So.2d 496, 504 (Fla. 1st DCA 2007), due process ordinarily requires that parents be afforded an opportunity to comply with a case plan before their parental rights are terminated, see D.S. v. Dep't of Children Families, 900 So.2d 628, 632 (Fla. 5th DCA 2005).

      . As previously noted, the twelve-month period has been reduced to nine months effective July 1, 2008.

      . The Father first raised the argument about the Department's failure to file a case plan in a motion for summary relief before this court. This court denied the Father’s motion. Subsequently, the Department filed a motion to supplement the record with a copy of the June 29, 2005, "case plan.” The Department alleged that the "case plan” should be included in the appellate record because it was referenced in the case plan order and the omission of this “case plan from the record was nothing more than a clerical error.” The Father opposed the Department's motion and argued that the clerk of the circuit court had verified that this "case plan” was never filed in the circuit court. This court previously granted the Department's motion. For the reasons I have explained, I would vacate our prior order granting the Department’s motion, enter an order denying this motion, and strike the June 29, 2005, "case plan” from the record.

      . The text of section 39.811(6) is as follows: The parental rights of one parent may be
        severed without severing the parental rights of the other parent only under the following circumstances:
      (a) If the child has only one surviving parent;
      (b) If the identity of a prospective parent has been established as unknown after sworn testimony;
      (c) If the parent whose rights are being terminated became a parent through a single-parent adoption;
      (d) If the protection of the child demands termination of the rights of a single parent; or
      (e) If the parent whose rights are being terminated meets any of the criteria specified in s. 39.806(l)(d) and (f)-(i).


author: WOLF, J.

text:
    Gary Fontaine BELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-5315.
    District Court of Appeal of Florida, First District.
    March 25, 2010.
    Rehearing Denied April 22, 2010.

      Michael R. Rollo of Michael R. Rollo, P.A., Pensacola, for Appellant.
    Bill McCollum, Attorney General, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   WOLF, J.

Appellant raises several issues concerning his convictions for lewd and lascivious battery and failure to appear. Because we find no error, we affirm; however, we write to address two of appellant’s arguments.

In appellant’s first issue, he asserts the trial court erred in failing to grant his motion to sever the lewd and lascivious charge from the failure to appear charge. In determining whether severance is warranted, a court must consider several factors including the temporal and geographic association of the crimes, the nature of the crimes, and the manner in which the crimes were committed. Garcia v. State, 568 So.2d 896, 899 (Fla.1990); see also Domis v. State, 755 So.2d 683, 685 (Fla. 4th DCA 1999); Sule v. State, 968 So.2d 99, 103 (Fla. 4th DCA 2007) (discussing when severance is appropriate). “[F]or joinder to be appropriate, the crimes must be linked in a significant way.” Domis, 755 So.2d at 685. In Ellis v. State, 622 So.2d 991, 999-1000 (Fla.1993), the supreme court summarized the types of acts that could be deemed connected from just those occurring in an episodic sense by stating:

Our recent opinion in Fotopoulos also sheds light on the proper standard for joinder.... While there was a substantial lapse of time in Fotopoulos, it was clear that the two crimes were linked in a causal sense: One was used to induce the other. That causal link was sufficient to permit joinder, since one crime could not properly be understood without the other. Fotopoulos, 608 So.2d at 790. In sum, the two crimes Fotopoulos helped commit constituted a single episode because of their obvious causal link and despite a lapse of time....
There are several rules that can be distilled from ... earlier cases. First, for joinder to be appropriate the crimes in question must be linked in some significant way. This can include the fact that they occurred during a “spree” interrupted by no significant period of respite, Bundy [v. State, 455 So.2d 330 (Fla.1984) ], or the fact that one crime is causally related to the other, even though there may have been a significant lapse of time....

(Emphasis supplied). See also Fotopoulos v. State, 608 So.2d 784 (Fla.1992). In the instant case, the record evidences there was a significant separation in time from the date the lewd and lascivious battery occurred to the date appellant failed to appear. However, the two charges are “causally linked” to one another. It is undisputed appellant did not make an appearance at crucial court proceedings on the lewd and lascivious charge. Because the lewd and lascivious charge was the but-for cause of the failure to appear, based on the language in Ellis and Foto-poulos, the two counts were “causally linked” and were properly joined.

In his third issue, appellant asserts improper comments made during closing argument warrant reversal. During the first phase of closing argument, the prosecutor stated:

As to count 1 the State must prove 2 elements beyond and to the exclusion of every reasonable doubt in order for you to convict the defendant. The first element is that [the victim] was under the age of 12. The evidence that we presented that was the testimony of her mother who testified as to her date of birth and importantly the testimony of [the victim] who you obviously could tell she was a young girl and told her her date of birth was [] so without any evidence contradicting that the State has proven to you beyond a reasonable doubt the first element of the charge.
In cases like this, it is always a[sic] one-person’s word against another. In these particular cases — In this particular case it is the word of Milcayla against the plea of not guilty that [appellant] entered .... So if you are looking for a reason to not believe [the victim] there isn’t one. Because there is no evidence that she would have made this up at this particular time under these particular circumstances. And that’s the consideration you should make in deciding whether or not her testimony is credible.

(Emphasis added). These comments were objected to contemporaneously, and thus, the issue was properly preserved. A comment suggesting a witness gave “uncontra-dicted” or “uncontroverted” evidence is an impermissible comment on appellant’s right .to remain silent in those cases where the defendant is the only individual who can contradict the evidence. Hill v. State, 980 So.2d 1195 (Fla. 3d DCA 2008) (holding the State’s comment that the only witness gave “uncontradicted and uncontro-verted” testimony establishing appellant’s guilt was an impermissible comment on appellant’s right to remain silent where appellant was the only individual capable of refuting the witness’s testimony); see also Watts v. State, 921 So.2d 722, 724 (Fla. 4th DCA 2006) (same); Smith v. State, 843 So.2d 1010 (Fla. 1st DCA 2003) (holding the State’s comment that “[n]o-body testified he wasn’t the guy” was an impermissible comment on appellant’s right to remain silent in a case in which the only individual who could have contradicted the State’s evidence was the appellant). Here, the first comment, “so without any evidence contradicting that the State has proven to you beyond a reasonable doubt the first element of the charge,” was made in reference to the State’s burden to prove the age of the victim. Because this was not an issue which only appellant was capable of refuting, this comment could not be construed as a comment on appellant’s right to remain silent.

The second comment, “In this particular case it is the word of [the victim] against the plea of not guilty that [appellant] entered,” if considered out of context is more problematic. However, “[w]here there is an allegation of improper comments by a prosecutor, we do not consider the comments themselves in a vacuum; rather, we view the allegedly-wrongful comments in context.” McKenney v. State, 967 So.2d 951, 955 (Fla. 3d DCA 2007).

When reading the statement in context it becomes clear the prosecutor was not commenting on appellant’s silence; instead, the prosecutor was arguing that no evidence had been offered to suggest the victim had a motive to lie. Witnesses other than appellant could have been called to testify regarding the victim’s alleged motive to lie, and thus, the prosecutor’s comment is not fairly susceptible to being interpreted as an erroneous comment on appellant’s right to remain silent. Specifically, the comment did not point out a lack of testimony on an issue only appellant was capable of contradicting. For the foregoing reasons, we affirm.

AFFIRMED.

VAN NORTWICK and ROBERTS, JJ., concur.