FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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Case No. 5D2023-0947

LT Case No. 2020-CA-000067

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JOHN F. CRITTENDEN and 

LAURIE B. CRITTENDEN,

Appellants,

v.

REGINALD H. TUMLIN, JR.,

RONALD G. TUMLIN and

REGINALD H. TUMLIN as

SUCCESSOR TRUSTEE of the

GEORGIE H. TERWILLEGAR 

REVOCABLE LIVING TRUST,

Appellees.

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On appeal from the Circuit Court for Putnam County.

Kenneth J. Janesk, II, Judge.

John D. Middleton, of Middleton & Middleton, P.A., Melrose, for 

Appellants.

Peter A. Robertson, of The Robertson Firm, P.A., St. Augustine, 

for Appellees.

August 23, 2024

EDWARDS, C.J.
2

Appellants, John F. Crittenden and Laurie B. Crittenden,

appeal the final judgment entered after a nonjury trial in favor of 

Appellees, Reginald H. Tumlin, Jr., Ronald G. Tumlin, and 

Reginald H. Tumlin, as Successor Trustees of Georgie H. 

Terwillegar Revocable Living Trust. Appellants also appeal the 

order denying their motion for rehearing which noted that the trial 

court overlooked or ignored the testimony of its surveyor expert 

witness, David Deren. Because the trial court overlooked or 

ignored conflicting testimony presented at trial, which could have 

resulted in a different outcome had it been considered, we reverse 

and remand for the trial court to consider all the testimony and 

related evidence presented at trial by all three surveyors. 

This case involves property line disputes affecting several 

plots of land on the shore of a lake in Putnam County, an 

associated easement, and the surrounding property. Three 

surveyors, not two, testified during the two-day nonjury trial that 

began on August 16, 2022. As Appellants pointed out in their 

motion for rehearing, which the trial court denied without 

comment, it was clear that the trial court overlooked or ignored the 

testimony of the surveying expert, Deren, who testified on behalf 

of Appellants. 

In the final judgment, dated December 14, 2022, the trial 

court states that two surveyors were called as expert witnesses at 

trial when in fact there were three: Knapp, Morris, and Deren. 

Further, the trial court’s final judgment specifically refers to “a 

survey certified by David Deren (another surveyor who did not 

testify but who’s [sic] survey was referred [to] and relied upon by 

testifying experts).” (emphasis added). In reaching its final 

judgment, the trial court clearly relied upon the testimony of

Joseph Knapp, Appellees’ expert witness surveyor, while obviously 

overlooking or ignoring the trial testimony of Deren. We note that 

the testimony of Knapp and Deren conflicted on several critical 

points concerning the boundary lines and location of the 

easement.1 This is not a case in which the trial court discounted 

1 As noted, a third surveyor expert witness, David Morris, also 

testified at trial. We do note, as did the trial court, that Morris’ 

testimony differed from that offered by Knapp, at least as to the 

location of the easement and perhaps in other regards. Morris’
3

or rejected Deren’s testimony; rather, it clearly overlooked or 

ignored it. Thus, we cannot say that the trial court would have 

reached the same conclusion had it not overlooked or ignored this 

evidence.2

“Where it is demonstrated that the [trial judge in a nonjury 

case] overlooked or ignored evidence, which if considered by the 

[judge] could change the outcome of the case, the proper remedy is 

reversal and remand for consideration of this evidence.” MiamiDade Cnty. v. Mitchell, 159 So. 3d 172, 173 (Fla. 1st DCA 2015).

See Rivas v. Oasis Outsourcing, Inc., 147 So. 3d 670, 672 (Fla. 3d 

DCA 2014); Stanifer v. Lynne Precast, Inc., 695 So. 2d 786, 786 

(Fla. 1st DCA 1997); Travelodge & Royal Ins. v. Pierre-Gilles, 625 

So. 2d 1280, 1282 (Fla. 1st DCA 1993).

Appellees concede that the trial court erroneously stated that 

Deren did not testify at trial. We reject Appellees’ argument that 

this was harmless error as we cannot conclude whether the trial 

court would have reached the same results had it not overlooked 

or ignored Deren’s testimony. See Special v. W. Boca Med. Ctr.,

160 So. 3d 1251 (Fla. 2014).

Accordingly, we reverse the final judgment and remand this 

matter to the trial court for further proceedings consistent with 

this opinion, including for the trial court to review the testimony 

and related evidence presented at trial by all three surveyor expert 

witnesses, following which it must render an appropriate amended 

final judgment. 

testimony was referenced in the final judgment and apparently 

rejected, at least in part, based on the trial court’s consideration of 

Tyson v. Edwards, 433 So. 2d 549 (Fla. 5th DCA 1983). We offer 

no opinion at this time on the applicability of Tyson to the facts of 

this case.

2 One might have concluded that the trial court made a simple 

misstatement but for the fact that it denied Appellants’ motion for 

rehearing, in which that issue was raised, without any comment 

or explanation. 
4

REVERSED and REMANDED with instructions.

MAKAR and PRATT, JJ., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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