author: CANADY, Judge.

text:
    NATIONWIDE MUTUAL INSURANCE COMPANY, an Ohio corporation, Appellant, v. Dennis M. JEWELL, D.C., P.A. a/a/o Thomas Forberger, Linda Stone, and Ralph Stone, and George G. Hudson, D.C., P.A. d/b/a Hudson Chiropractic a/a/o Julie Odenweller and James Cafaro, Appellees. Nationwide Mutual Fire Insurance Company, an Ohio corporation, Appellant, v. Jeff Davis, D.C., P.A. a/a/o Angela Richards, Appellee.
    Nos. 2D01-5714, 2D02-871.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 2003.
    Rehearing Denied Dec. 19, 2003.

      W. Donald Cox, Charles Tyler Cone and Bruce Allen Aebel of Fowler White Boggs Banker P.A., Tampa, for Appellants.
    George A. Yaka of Vaka, Larson & Johnson, P.L., Tampa, and Scott A. Schieb and Steven T. Wittmer, Sarasota, for Ap-pellees Dennis M. Jewell, D.C., P.A. and George G. Hudson, D.C., P.A.
    Eric Lee of Lee & Amtzis, P.L., Boca Raton, for Appellee Jeff Davis, D.C., P.A.
    William F. Merlin, Jr., and Mary E. Kestenbaum of Gunn Merlin, P.A., Tampa, for Amicus Curiae Academy of Florida Trial Lawyers.
    Gregory A. Victor of Adorno & Yoss, P.A., Miami, for Amicus Curiae ADP Integrated Medical Solutions, Inc.
    Kathy J. Maus and Lola M. Swaby of Butler Burnette Pappas LLP, Tallassee, for Amicus Curiae The Alliance of American Insurers.
    Jeffery M. Scott, Tallahassee, for Ami-cus Curiae Florida Medical Assoc.
    Peter J. Valeta of Ross & Hardies, Chicago, and David B. Shelton of Rumberger, Kirk & Caldwell, Orlando, for Amicus Curiae Allstate Insurance Co. and Florida Defense Lawyers Association.
    Laura M. Watson of Watson & Lentner, Ft. Lauderdale, for Amicus Curiae Florida Hospital Assoc., and Florida Orthopaedic Society.
   CANADY, Judge.

These consolidated cases, which are before this court pursuant to the certification of a question of great public importance under Florida Rule of Appellate Procedure 9.160, turn on the interpretation of provisions of the Florida Motor Vehicle No-Fault Law. The appellants, insurers under the no-fault statute, seek review of trial court determinations that the statute prohibited them from making payment for health care services covered by personal injury protection (PIP) benefits at reduced preferred provider organization (PPO) rates to the appellee health care providers. Because we conclude that the no-fault law does not prohibit the payment of reduced PPO rates by the appellant insurers for PIP benefits, we reverse the judgments of the courts below.

I. BACKGROUND

Dennis M. Jewell, D.C., P.A., and George G. Hudson, D.C., P.A., brought separate actions against Nationwide Mutual Insurance Company in the Sarasota County Court. The Jewell and Hudson actions were consolidated for consideration by the Sarasota County Court. Jeff Davis, D.C., P.A., brought an action against Nationwide Mutual Fire Insurance Company in the Hillsborough County Court. Jewell, Hudson, and Davis, the appellee providers, each brought their actions as assignees of patients to whom they had provided treatment covered by the patients’ PIP insurance. The appellee providers each claimed that the PIP insurer had failed to pay the full amounts due for covered medical services under the no-fault law. The insurers in each case had paid the appellee providers at a reduced PPO rate.

The insurers asserted a right to pay the providers at the reduced PPO rate because the appellee providers had entered “provider agreements” with at least one PPO network (namely, Beech Street Corporation or CNN), with which the insurers had entered a “payor contract.” Under provider agreements, health care providers agree to provide medical services to certain patients and to accept payment for those services under a schedule of reduced PPO rates and thus, in effect, join the PPO network with which they have contracted. Insurers and employers, which are the payors for health care benefits, enter pay- or contracts with the PPO networks. Under those contracts, the insurers or employers make a pool of patients available to the PPO network providers and are entitled to the benefit of the reduced PPO rates which network providers have agreed to charge under the provider agreements they have entered.

In these consolidated cases there are unresolved issues concerning whether the services provided by the appellee providers were within the scope of a provider agreement that was in force at the time the services were rendered. Those issues were left unresolved because the two trial courts determined that, regardless of the contractual undertakings by the appellee providers, the appellant insurers, and the PPO networks, the insurers were statutorily barred from paying providers at PPO rates. We do not address those unresolved issues.

Both trial courts held that section 627.736(10), Florida Statutes (2000), sets forth the only circumstances under which a PIP insurer may pay medical benefits at a PPO rate. That subsection authorizes PIP insurers to enter preferred provider contracts with health care providers. The subsection also authorizes the issuance of preferred provider PIP policies if the specified requirements of the subsection are met. The trial courts both concluded that the legislative authorization of contracts between PIP insurers and preferred providers and the authorization of preferred provider PIP policies by implication prohibited the utilization by PIP insurers of a PPO network where the insurers had not entered direct contracts with the preferred providers and had not issued preferred provider policies. Since the appellant insurers admittedly did not have direct contracts with the appellees and had not issued preferred provider policies as authorized by section 627.736(10), the trial courts ruled that the appellant insurers were not entitled to pay the ap-pellee providers PPO rates.

II. CERTIFIED QUESTION

Each trial court, pursuant to the agreement of the parties, certified the following question to this court:

WHETHER [A PIP INSURER] COULD PAY [PIP] BENEFITS AT REDUCED [PPO] RATES WITHOUT OFFERING A PREFERRED PROVIDER PIP POLICY OF INSURANCE AND/OR WITHOUT COMPLYING WITH [SECTION 627.736(10), FLORIDA STATUTES],

For the reasons set forth below, we conclude that the insurers’ asserted contractual basis for paying PPO rates to the ap-pellee providers is not affected by the provisions of section 627.736(10). We therefore answer the certified question in the affirmative.

III. ANALYSIS

Section 627.736 sets forth the medical, disability, and death benefits that are required to be included in all PIP insurance policies. Under section 627.736(l)(a), benefits are required for “[e]ighty percent of all reasonable expenses for medically necessary medical ... services.” Section 627.736(5)(a) provides further that

[a]ny physician ... lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance may charge only a reasonable amount for the services and supplies rendered.... In no event, however, may such a charge be in excess of the amount the person ... customarily charges for like services ... in cases involving no insurance.

Section 627.736(10) — which is the subject of the certified question — provides:

An insurer may negotiate and enter into contracts with licensed health care providers for the benefits described in this section, referred to in this section as “preferred providers,” which shall include health care providers licensed under chapters 458, 459, 460, 461, and 463. The insurer may provide an option to an insured to use a preferred provider at the time of purchase of the policy for personal injury protection benefits, if the requirements of this subsection are met. If the insured elects to use a provider who is not a preferred provider, whether the insured purchased a preferred provider policy or a nonpre-ferred provider policy, the medical benefits provided by the insurer shall be as required by this section. If the insured elects to use a provider who is a preferred provider, the insurer may pay medical benefits in excess of the benefits required by this section and may waive or lower the amount of any deductible that applies to such medical benefits. If the insurer offers a preferred provider policy to a policyholder or applicant, it must also offer a nonpreferred provider policy. The insurer shall provide each policyholder with a current roster of preferred providers in the county in which the insured resides at the time of purchase of such policy[ ] and shall make such list available for public inspection during regular business hours at the principal office of the insurer within the state.

The appellee providers argue that this statutory provision sets forth the exclusive method for an insurer to pay PIP benefits at PPO rates and that the appellants here have impermissibly attempted to alter the statutory scheme for the payment of PIP benefits. The appellees also argue that the payment of PPO rates by the appellant insurers was improper because the policies of insurance under which the PIP benefits were payable expressly require the insurer to pay 80 percent of all reasonable and necessary expenses incurred on behalf of the insured.

The appellant insurers contend that subsection (10) does not apply to the contractual arrangements under which they paid PPO rates for PIP medical benefits. They argue that the statute pertains only to direct contracts between insurers and providers and not to circumstances where a PIP insurer contracts to become a payor in an existing PPO network. They also argue that the payments they made were not inconsistent with either the statutory or policy provisions requiring payment of reasonable and necessary expenses for covered medical services.

Although our reading of subsection (10) differs somewhat from that urged by the appellants, we agree with the conclusion that the text of neither the no-fault statute nor the PIP policies prohibits the payment of PPO rates by the appellants. There is no basis either in the specific language of subsection (10) or in any other provision of the no-fault law for concluding that the legislature prohibited the payment of PPO rates by the appellants. The requirements of subsection (10) do not cover what the appellant insurers have done; no other provision of the no-fault law or of the policies issued by the insurers prohibits what they have done.

In discussing our evaluation of the merits of the arguments presented by the parties, we will first address the proper interpretation of subsection (10). We reach two conclusions regarding subsection (10). First, subsection (10) authorizes insurers to contract with preferred providers using both direct and indirect contractual arrangements. Second, subsection (10) does not prohibit insurers that have not issued preferred provider policies from contracting to pay providers at PPO rates. After our discussion of subsection (10), we will turn to sections 627.736(l)(a) and 627.736(5)(a), the general provisions of the no-fault statute governing the payment by PIP insurers of expenses associated with covered medical services. In connection with our discussion of these medical benefit payment provisions of the no-fault statute, we will also address the parallel payments provisions of the PIP insurance policies. Our analysis of these statutory and policy provisions leads us to conclude that payment at a rate which a provider has contracted to accept is necessarily payment of a “reasonable amount.” Finally, we will address the claim that the insurers have in effect altered the statutory scheme for the payment of PIP medical benefits. On this point, we conclude that the insurers have provided a potential benefit to insureds that is entirely consistent with the statutory scheme.

A. The Meaning of Subsection (10)

Subsection (10) establishes a framework under which PIP insurers are authorized to enter into preferred provider - contracts with health care providers. An insurer who chooses to enter such contracts is further authorized by the statute to offer prospective insureds preferred provider policies. The focus of subsection (10) is on the responsibilities to policy holders of an insurer which issues preferred provider PIP policies. An insurer that chooses to offer preferred provider policies is required also to offer nonpreferred provider policies. Under the statute, even an insured who has purchased a preferred provider policy may elect to use a nonpre-ferred provider and obtain the standard benefits required by the no-fault law. If an insured under a preferred provider policy elects to use a preferred provider, the insurer is authorized to provide certain benefits beyond the standard statutorily mandated PIP benefits. In such circumstances, the benefits in excess of the mandated benefits may be paid and the amount of any applicable deductible may be waived or lowered. The statute also requires that insurers provide preferred provider policy holders with a current roster of preferred providers in the county in which the insured resides at the time of the purchase of the policy. In sum, subsection (10) does two basic things: (1) it authorizes PIP insurers to enter contractual arrangements for the provision of preferred provider medical services; and (2) it authorizes PIP insurers to issue preferred provider PIP policies, subject to certain conditions and requirements.

The distinction on which the appellants rely, the difference between direct contracts by an insurer with PPO providers and contracts of an insurer with PPO networks, is not necessary to support the appellants’ claim that they have not violated the statute. It is by no means clear that the authorization to “enter into contracts with licensed health care providers” for the provision of PIP health care benefits is limited to direct contracts between PIP insurers and providers. The statute does not refer specifically to direct contracts. And a legislative intent to exclude contractual arrangements other than direct contracts from the statutory authorization is by no means obvious.

A “reasonable user” of the English language would understand the authorization to contract in this context as encompassing contractual arrangements in which an insurer contracts to obtain the service of providers through an intermediary PPO network. If the legislature had expressly prohibited contracts between insurers and PPO providers, it would not be reasonable to understand the prohibition as limited to direct contracts while allowing contracting through an intermediary. Cf. State ex rel. Powell v. Leon County, 133 Fla. 68, 182 So. 639, 642 (1938) (“It is fundamental and elementary that the Legislature may not do that by indirect action which it is prohibited by the Constitution to do by direct action.”). Similarly, the legislature’s express authorization of contracting should not be read to exclude contracting through an intermediary. The fact that the legislature has in other contexts chosen to refer to direct and indirect contracts, see §§ 627.6471, 440.134®, Fla. Stat. (2000), does not mean that the authorization to contract with providers contained in subsection (10) should be given an unreasonably narrow construction.

Our conclusion that the authorization to contract encompasses both direct and indirect contractual arrangements does not mean that the appellant insurers have violated subsection (10). Such a violation would only exist if we also concluded that the statute requires all insurers that contract to pay providers at PPO rates to issue preferred provider policies. That, however, is not the conclusion we reach.

It is unreasonable to read the provision that insurers “may negotiate and enter into contracts” with preferred providers in the first sentence of subsection (10), along with the subsequent provision permitting the issuance of preferred provider PIP policies, as prohibiting an insurer from having a contractual relationship with a preferred provider unless the insurer has issued preferred provider policies. Nothing in the text of subsection (10) — or any other provision of the no-fault statute — says that an insurer may contract with preferred providers only if the insurer issues preferred provider policies. While it is true that as a practical matter a preferred provider policy may only be issued by an insurer that has contracted for preferred provider services, the converse is by no means necessarily true. The statutory authorization to contract for preferred provider services and the statutory authorization to provide the option of a preferred provider policy are separate and independent — albeit related — authorizations. Neither is mandatory. The mandatory provisions of subsection (10) come into play only when an insurer issues a preferred provider PIP policy.

The argument of thé appellee providers thus founders on the clear language of the statutory text. The pertinent words of the statute — “may negotiate and enter into contracts,” and “may provide an option to an insured” — are permissive, not prohibitive. There is nothing uncertain or ambiguous about the word “may.” The juxtaposition of two permissive provisions ordinarily cannot be understood as establishing a prohibition. “May” plus “may” does not equal “may not.”

Absent some clear warrant for doing so in the statutory context, such permissive provisions should not be read to impose an implied prohibition. Here, any warrant for adopting a prohibitive reading of the provisions is lacking. Indeed, such a reading can only be based on unwarranted assumptions concerning legislative intent — assumptions that are detached from and unsupported by the words the legislature actually employed in this statute. See Fortune Ins. Co. v. Everglades Diagnostics, Inc., 721 So.2d 384, 385 (Fla. 4th DCA 1998) (“While we are required to read statutes in their entirety, we are not free to add provisions to parts of a statute under the guise of such reading.”); see also Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (“It has ... been accurately stated that courts of this state are ‘without power to construe an unambiguous statute in a way which would extend, modify, or limit[ ] its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.’ ”) (quoting Am. Bankers Life Assurance Co. v. Williams, 212 So.2d 777, 778 (Fla. 1st DCA 1968) (emphasis removed)); Pub. Health Trust v. Lopez, 531 So.2d 946, 949 (Fla.1988) (“We are not permitted to attribute to the legislature an intent beyond that expressed ... or’ to speculate about what should have been intended.”) (citations omitted). If the legislature wishes to prohibit something, it is perfectly capable of saying so. Indeed, few words are more common in the language of legislation than the phrases “may not” and “shall not.”

B. The Meaning of a “Reasonable Amount” for Services Rendered

As set forth above, section 627.736(l)(a) requires PIP insurers to pay 80 percent of “all reasonable expenses” for covered medical services — subject, of course, to the $10,000 policy limits provided for in the statute. Section 627.736(5)(a) limits the charges made by providers for services rendered to PIP beneficiaries to “only a reasonable amount” for the services rendered. The key to compliance with those provisions is — to state the obvious — the payment of amounts that are reasonable remuneration for the particular services provided. It is unreasonable to read those provisions of the statute and the parallel provisions of the PIP policies, to require that an insurer pay a provider for services at a rate higher than the rate the provider has contractually agreed to accept in payment for such services. If a provider has agreed in a valid and enforceable contract to accept payment for services at a particular rate, that rate would necessarily be a “reasonable amount for the services ... rendered.” § 627.736(5)(a). Insofar as the provisions of the no-fault law and of the PIP policies are concerned, there is simply no basis for complaining that a payment rate a provider has agreed to accept is inadequate and therefore not reasonable.

C. Compliance with the Statutory Scheme of the No-Fault Law

The appellant insurers have done nothing that is inconsistent with any provisions of the no-fault law. They have not attempted to require that any insured use a PPO provider. The appellants acknowledge that any such requirement would be impermissible under the no-fault law. (That would be true even if subsection (10) were not a part of the law.) Each insured was free to utilize whatever provider the insured wished to use.

Any contractual arrangements the insurers have made for paying certain providers at PPO rates have in no way adversely affected the services made available to the insureds under the PIP policies. If an insured used a PPO provider in a PPO network with which the appellant insurer had a contractual relationship, the only impact on the insured would be to save the insured money. Any insured using a PPO provider would have a copayment lower than the copayment that would be applicable if a non-PPO provider had been used. In addition, since each treatment provided by a PPO provider costs the insurer less than the same treatment given by a non-PPO provider, more services will be available to the insured within the $10,000 PIP policy limits provided for in section 627.736(1). The appellee providers argue that the appellant insurers have somehow undermined or altered the statutory scheme of the no-fault law. In light of the actual impact on the PIP insureds who may choose to use PPO providers, the appellees’ argument rings hollow.

IV. CONFLICTING AUTHORITY

In Nationwide Mutual Fire Insurance Co. v. Central Florida Physiatrists, P.A., 851 So.2d 762, 766 (Fla. 5th DCA 2003), a case involving factual circumstances similar to those before us now, the Fifth District held that the “[insurer] was required to comply with the provisions of section 627.736(10) in order to take advantage of the option of paying reduced PPO rates for payment of PIP benefits.” The court concluded that in the absence of compliance with section 627.736(10), the insurer was required “to pay the statutorily mandated 80% of the reasonable and necessary expenses incurred on behalf of its insured” rather than the reduced PPO rates. Id.

For the reasons set forth above, we disagree with the conclusion reached in Central Florida Physiatrists, and we recognize the direct conflict between our decision and the decision of the Fifth District. Accordingly, pursuant to article V, section 3(b)(4), Florida Constitution, and Florida Rule of Appellate Procedure 9.030(a)(2)(A)(vi), we certify that our decision is in direct conflict with the decision of the Fifth District.

V. CONCLUSION

Since we have concluded that the trial courts erred in their interpretation of the no-fault law, we reverse the judgments on appeal. Unresolved issues regarding the scope and contractual validity of the provider agreements and the payor contracts will be addressed by the trial courts on remand.

Reversed and remanded for further proceedings consistent with this opinion; certified question answered; conflict certified.

FULMER and SALCINES, JJ., Concur.

      . § 627.730-.7405, Fla. Stat. (2000).

      . Frank H. Easterbrook, The Role of Original Intent in Statutory Construction, 11 Harv. J.L. & Pub. Policy 59, 65 (1988) (stating that questions of statutory interpretation should turn on how "a skilled, objectively reasonable user of words” would have understood the text of the statute).


source: Caselaw Access Project

author: FULMER, Judge.

license: Public Domain

text:
    Christopher HOLT and Matthew and Danielle Brollini, individually and on behalf of all others similarly situated, Appellants, v. O’BRIEN IMPORTS OF FORT MYERS, INC., d/b/a Fort Myers Mitsubishi, Fort Myers Daewoo, Fort Myers Subaru, Fort Myers Hyundai, Naples Hyundai, Naples Mitsubishi and Best Used Cars, Appellees.
    Nos. 2D02-3994, 2D02-4038.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 2003.
    Rehearing Denied Dec. 11, 2003.

      William C. Bielecky of William C. Bie-lecky, P.A., Tallahassee, William L. Sund-berg, of Sundberg & Hessman, P.A., Tallahassee, and Jerome A. Sico of Goldberg, Racila, Sico & Noone, P.A., Fort Myers, co-counsel, for Appellants.
    Mark R. Kapusta of the Law Office of Bohdan Neswiacheny, Sarasota, for Appel-lees.
   FULMER, Judge.

In these consolidated cases, Christopher Holt, Matthew Brollini, and Danielle Brol-lini, individually and on behalf of all others similarly situated, appeal orders that compel them to arbitrate their claims against O’Brien Imports of Fort Myers, Inc. We reverse because the arbitration agreement contains an attorney’s fee provision that is contrary to statute and does not allow the arbitrator to award injunctive relief that is authorized by statute.

Holt and the Brollinis (referred to here as the Buyers) purchased cars from O’Brien Imports. In the course of these transactions, the Buyers signed agreements to arbitrate

all disputes not barred by applicable statues [sic] of limitations, resulting from or arising out of the transaction entered into, (including but not limited to: the terms of this agreement and all clauses herein contained, their breadth and scope, and any term of any agreement contemporaneously entered into by the parties concerning any goods or services acquired by the undersigned; the condition of the motor vehicle; the conformity of the motor vehicle to any contract description; the representations, promises, undertakings, warranties or covenants made by Dealer in connection with the undersigned’s acquisition of the motor vehicle, or otherwise dealing with the motor vehicle; any lease terms or the terms of credit and/or financing in connection therewith; any terms or provisions of any extended service contract purchased simultaneously herewith)....

Notwithstanding the arbitration agreements, the Buyers filed multi-count complaints against O’Brien Imports seeking damages, injunctive relief, costs, and attorney’s fees. Holt filed an individual action, and he was also a named plaintiff in the class action brought with the Brollinis.

The first three counts in both complaints alleged violations of the Motor Vehicle Retail Sales Finance Act (MVRSFA) in chapter 520, Florida Statutes (2000). Count one alleged that O’Brien Imports violated section 520.07(1) by failing to provide a copy of the retail installment sales contract with the essential provisions and financing disclosures before the Buyers signed for and accepted credit. Count two alleged that O’Brien Imports violated section 520.07(3)(d) by failing to itemize the amount it charged for certain insurance. Count three alleged that O’Brien Imports violated section 520.13 by requiring execution of an “ON THE SPOT DELIVERY AGREEMENT.” Count four in both complaints alleged violations of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA), chapter 501, part II, Florida Statutes (2000). And count five in both complaints alleged violations of the Truth in Lending Act (TILA), 15 U.S.C. §§ 1632, 1638. Holt’s individual complaint included two additional counts alleging fraud and deceptive trade practices based on facts specific to his transaction.

O’Brien Imports filed a motion to dismiss and compel arbitration under section 682.02, Florida Statutes (2000). The trial court granted the motion, and the Buyers now appeal. The Buyers argue that the arbitration agreements are unenforceable because they do not authorize the arbitrator to grant injunctive relief, one of the remedies allowed by the statutes under which the Buyers sue, and because they authorize an award of attorney’s fees that is contrary to the statutory provisions for attorney’s fees.

.“[T]here are three elements for courts to consider in ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999). This case involves the first prong — whether a valid arbitration agreement exists. We agree with the Buyers’ contention that the arbitration agreement is unenforceable.

The Buyers seek injunctive relief but the arbitration agreement authorizes only an award of damages, fees, and costs. “Section 501.211(1), Floridá Statutes[,] is broadly worded to authorize declaratory and injunctive relief even if those remedies might not benefit the individual consumers who filed the suit.” Davis v. Powertel, Inc., 776 So.2d 971, 975 (Fla. 1st DCA 2000). The FDUTPA “is designed to protect not only the rights of litigants, but also the rights of the consuming public at large.” Id. Any attempt to limit FDUTPA liability is contrary to public policy. Rollins, Inc. v. Heller, 454 So.2d 580 (Fla. 3d DCA 1984). “[A]n individual cannot waive the protection of a statute that is designed to protect both the public and the individual.” Coastal Caisson Drill Co. v. Am. Cas. Co., 523 So.2d 791, 793 (Fla. 2d DCA 1988), approved, 542 So.2d 957 (Fla.1989). Therefore, the unavailability of injunctive relief renders the arbitration clause unenforceable. Cf. Stewart Agency, Inc. v. Robinson, 855 So.2d 726 (Fla. 4th DCA 2003) (rejecting challenge to arbitration of FDUTPA claim based on holding that arbitrator could award injunctive relief under terms of arbitration agreement).

The arbitration agreement is also unenforceable because it has a provision for attorney’s fees that is contrary to the statutes under which the Buyers sue. In addition to a general grant of authority for the arbitrator to award fees and costs, which is not at issue here, the arbitration agreement provides as follows:

Any party to this agreement who fails or refuses to arbitrate in accordance with the terms of this predispute binding arbitration agreement shall, in addition to any other relief awarded through arbitration, be taxed by the arbitrator or arbitrators with all of the costs, including reasonable attorney[’]s fees, of any other party who had to resort to judicial or other relief in compelling arbitration in accordance with the terms herein contained.

Section 501.2105 provides for prevailing party attorney’s fees for FDUTPA violations, sections 520.12 and 520.13 provide a nonwaivable right to attorney’s fees for willful MVRSFA violations, and 15 U.S.C. § 1640(a)(3) provides for attorney’s fees for TILA violations. But under the attorney’s fee provision in the arbitration agreement, even if the Buyers prevail on their claims they could be taxed with O’Brien Imports’ attorney’s fees because O’Brien Imports obtained a court order compelling arbitration. The arbitration agreement’s fee provision also penalizes the Buyers for exercising their rights under the Florida Arbitration Code, section 682.03, to have the court decide certain gateway issues and under section 672.302, Florida Statutes (2000), to have the court determine whether the agreement is unconscionable. See Healthcomp Evaluation Servs. Corp. v. O’Donnell, 817 So.2d 1095 (Fla. 2d DCA 2002) (holding unenforceable a provision of arbitration agreement that attempted to prevent parties from appealing arbitration award because Florida Arbitration Code provides right to appeal).

Accordingly, we reverse the order compelling arbitration and remand for further proceedings in the trial court.

Reversed and remanded.

ALTENBERND, C.J., and COVINGTON, J., Concur.


author: PER CURIAM.

text:
    John A. WARE, Appellant, v. Alison W. WARE, Appellee.
    No. 5D03-3487.
    District Court of Appeal of Florida, Fifth District.
    Nov. 18, 2003.
    Rehearing Denied Dec. 30, 2003.
    Christopher R. Ditslear, DeLand, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

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

SAWAYA, C.J., THOMPSON and ORFINGER, JJ., concur.


author: KELLY, Judge.

text:
    Tyrone O’NEAL, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-3948.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 2003.
    James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee.
   KELLY, Judge.

Tyrone O’Neal appeals from the habitual offender sentences imposed upon him for sale of cocaine and possession of cocaine. He first argues that his habitual offender sentence for sale of cocaine is illegal because the trial court did not expressly announce that he was being sentenced as a habitual offender. We reject this contention because it is without factual or legal merit.

O’Neal’s contention is without merit factually because it is obvious from the record that the trial court intended to and did sentence O’Neal as a habitual offender. The trial court discussed O’Neal’s prior record and found that he qualified as a habitual felony offender. When it announced O’Neal’s sentences, the trial court specified that his sentence for possession of cocaine was a guidelines sentence while making no reference to the guidelines when announcing the sentence for sale of cocaine. As the Fifth District stated in Yates v. State, 823 So.2d 273, 274 (Fla. 5th DCA 2002), a sentencing judge is not required “to use the magic words, ‘habitual felony offender sentence,’ in order to effectuate a legal sentence where it is obvious the trial court intended to and did impose an habitual felony offender sentence.”

We also reject O’Neal’s legal contention that the trial court must specify that it is imposing a habitual offender sentence because “the mere fact that he qualified for such sentencing does not mean that the trial judge chose to impose an enhanced sentence.” We acknowledge that in the past we have applied this rationale to reverse habitual offender sentences where the trial court found that a defendant qualified as a habitual offender but did not announce that it was going to impose a habitual offender sentence. See, e.g., Arnold v. State, 754 So.2d 149 (Fla. 2d DCA 2000). That rationale, however, is no longer viable because of changes in the habitual felony offender statute.

In support of his argument, O’Neal relies on cases which involve offenses committed before 1995. The version of section 775.084, Florida Statutes (1989), in effect before 1995 involved a two-step sentencing process. See King v. State, 681 So.2d 1136, 1138 (Fla.1996), receded from on other grounds, Carter v. State, 786 So.2d 1173 (Fla.2001). First, the trial court had the ministerial duty of determining whether the defendant qualified as a habitual felony offender. 681 So.2d at 1138. Second, the trial court had to decide whether the defendant would be sentenced as a habitual felony offender. Id. at 1139. The trial court was free to sentence the defendant under the guidelines if it determined that a habitual offender sentence was not necessary for the protection of the public, or it could sentence the defendant as a habitual offender. Id. The trial court did not have to make a specific finding that an enhanced sentence was not necessary for the protection of the public. As noted in King, “the judge necessarily makes such a decision by virtue of sentencing an habitual offender to a more lenient sentence than that required by the habitual felon statute.” Id.

Under this sentencing process there was no way to determine with any certainty whether a trial court in fact intended to impose a habitual offender sentence unless it made a specific oral pronouncement that a defendant was being sentenced as a habitual felony offender. The cases O’Neal relies on were based on this statutory framework. After these cases were decided, however, the sentencing process for habitual felony offenders changed, and the change eliminated the potential for uncertainty that existed under the earlier version of the statute.

The version of the habitual felony offender statute applicable to O’Neal, whose offenses were committed in 2000, provides:

For an offense committed on or after October 1, 1995, if the state attorney pursues a habitual felony offender sanction or a habitual violent felony offender sanction against the defendant and the court, in a separate proceeding pursuant to this paragraph, determines that the defendant meets the criteria under subsection (1) for imposing such sanction, the court must sentence the defendant as a habitual felony offender or a habitual violent felony offender ... unless the court finds that such sentence is not necessary for the protection of the public. If the court finds that it is not necessary for the protection of the public to sentence the defendant as a habitual felony offender or habitual violent felony offender, the court shall provide written reasons; a written transcript of orally stated reasons is permissible, if filed by the court within 7 days after the date of sentencing.

§ 775.084(3)(a)6, Fla. Stat. (2000) (emphasis added). Under this version of section 775.084, the trial court must make specific written or oral findings if it is not going to impose a habitual offender sentence. Accordingly, where a trial court finds that a defendant qualifies as a habitual felon, it is not necessary for the trial court to specifically state that it is imposing a habitual offender sentence. To paraphrase King, the trial court necessarily makes that determination by virtue of the fact that it did not make a finding that a habitual offender sentence was unnecessary for the protection of the public.

O’Neal next argues, and the State correctly concedes, that O’Neal’s written judgment erroneously reflects a habitual offender sentence for possession of cocaine. See Tyler v. State, 826 So.2d 1103 (Fla. 2d DCA 2002). Consequently, we remand to the trial court to strike from the written sentencing order the habitual offender sanction for possession of cocaine. O’Neal’s presence is not required for this ministerial function.

Affirmed in part; reversed in part and remanded.

CASANUEVA and SALCINES, JJ., Concur.

      . Section 775.084(4)(c), Florida Statutes (1989), provides:
      If the court decides that imposition of sentence under this section is not necessary for the protection of the public, sentence shall be imposed without regard to this section. At any time when it appears to the court that the defendant is a habitual felony offender or a habitual violent felony offender, the court shall make that determination as provided in subsection (3).


author: ALTENBERND, Chief Judge.

text:
    Dennis Edward SUMNER, Appellant/Cross-Appellee, v. Judith LeChance SUMNER, Appellee/Cross-Appellant.
    No. 2D02-4519.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 2003.

      Buddy D. Ford and Kim L. Kaszuba of The Law Office of Buddy D. Ford, P.A., Tampa, for Appellant/Cross-Appellee.
    Laurie R. Chañe of Chañe & Eble, P.A., Dade City, for Appellee/Cross-Appellant.
   ALTENBERND, Chief Judge.

Dennis Edward Sumner appeals, and Judith LeChance Sumner cross-appeals, a final judgment of dissolution of marriage. Because the final judgment contains errors in the equitable distribution scheme and fails to address a stipulation between the parties regarding the children’s uncovered medical expenses, we reverse those portions of the final judgment. We also reverse an order that dismissed the Wife’s request for a permanent injunction for protection against domestic violence, which was entered without permitting the Wife an opportunity to be heard on the issue. We affirm the judgment on all remaining issues.

With respect to the distribution of the parties’ property, we affirm without further comment the trial court’s determination that the St. Mark’s River property, the Franklin County beach property, and the Husband’s interests in Sumner and Jones Investment Corporation, Southern R.E.B. Corporation, and Dennis E. Sumner, Incorporated, were nonmarital assets of the Husband. See § 61.075(5)(b)l, Fla. Stat. (2000) (defining nonmarital assets as “assets acquired and liabilities incurred ... prior to the marriage, and assets acquired and liabilities incurred in exchange for such assets and liabilities”). We also affirm the portion of the judgment that found that the parties’ marital home, which was acquired by the Husband prior to the marriage and remained titled solely in his name, had increased in value $187,000 during the marriage due to marital funds and labor. The trial court properly utilized this increased value when it fashioned the equitable distribution of marital assets. See § 61.075(5)(a)2 (defining marital assets to include appreciation in nonmarital property due to marital funds or labor).

Although we affirm these determinations, we must reverse the equitable distribution scheme. In making the equitable distribution, the trial court neglected to specify the distribution of, or to make specific findings regarding the value of, three items: (1) the mortgage on the marital home which the parties acquired in joint names during the marriage; (2) the value and distribution of the Wife’s retirement funds with Northern Life and American Express’s AXP Growth Fund; and (3) the First National Bank stock owned by the parties and their children. The final judgment made no mention of the mortgage on the marital home. Although the judgment provided that the Wife “should be awarded her retirement fund and any debt thereon” and that the Wife should receive 2177.50 shares of the remaining 2335 shares of First National Bank stock, it included no findings regarding the value of these assets or the rationale for the distribution.

The Wife argues that the trial court, in these omissions, intended to make an unequal distribution of marital assets based upon certain evidence presented at trial. The trial court was required to assign a value to these assets or liabilities and to distribute them equally or to make findings of fact justifying the unequal distribution. See § 61.075(1), (3), Fla. Stat. (2000); Nieboer v. Nieboer, 816 So.2d 1259, 1261 (Fla. 2d DCA 2002); Prest v. Tracy, 749 So.2d 538 (Fla. 2d DCA 2000). Without such findings, we are unable to determine the trial court’s intentions and whether the distribution was equal or unequal.

As to child support, the trial court erred by inadvertently omitting the parties’ stipulation that the Husband would be responsible for one-half of the uncovered medical, dental, and ocular expenses incurred on behalf of the minor children. The Wife argues that the trial court also erred in denying her request for retroactive child support from March to October 2000. However, the decision whether to make a child support award retroactive to the date of filing the petition is a matter within the trial court’s discretion. See Miller v. Miller, 826 So.2d 480, 482 (Fla. 1st DCA 2002). Given the Husband’s unemployment and the lack of evidence regarding the children’s needs during this time period, see Clayton v. Lloyd, 707 So.2d 407, 408 (Fla. 4th DCA 1998), we cannot conclude the trial court abused its discretion in refusing to award retroactive child support for these six months.

Finally, we reverse the order entered shortly after the final judgment that dismissed the Wife’s request for a permanent injunction for protection against domestic violence. The trial court dismissed the petition based solely upon its observations at the final hearing. Due process, however, required that the court provide the Wife an opportunity to be heard on whether the temporary injunction previously entered should have been transformed into a permanent injunction. See, e.g., Segui v. Nester, 745 So.2d 591 (Fla. 5th DCA 1999).

We reverse the order dismissing the Wife’s petition for an injunction for protection against domestic violence. We affirm the final judgment of dissolution in part, reverse in part, and remand the case for further proceedings consistent with this opinion.

WHATLEY and STRINGER, JJ., Concur.


text:
    G.A., Appellant, v. STATE of Florida, Appellee.
    No. 2D03-363.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 2003.
    James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Chief Judge.

G.A. was adjudicated delinquent for trespass on school grounds pursuant to section 810.097(1), Florida Statutes (2002). This crime, which applies to a person who is on school grounds without legitimate business, is a second-degree misdemeanor. We affirm the order adjudicating G.A. delinquent but remand for the circuit court to correct a scrivener’s error in G.A.’s disposition order. The order erroneously indicates that this crime was a first-degree misdemeanor, an error that affects the length of the disposition.

Affirmed; remanded to correct scrivener’s error.

NORTHCUTT and COVINGTON, JJ., Concur.


text:
    Rollie Lee BAKER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4850.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 2003.
    James Marion Moorman, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Rollie Lee Baker, Jr., pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robert J. Krauss, Chief Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Rollie Lee Baker, Jr., appeals sentences imposed on four separate charges after he was granted postconviction relief pursuant to Florida Rule of Criminal Procedure 3.800(a) and Heggs v. State, 759 So.2d 620 (Fla.2000). We affirm the sentences without prejudice to any right Mr. Baker may have to seek postconviction relief.

ALTENBERND, C.J., and CANADY and WALLACE, JJ., Concur.


author: WHATLEY, Judge.

text:
    Robert WILLEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-314.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 2003.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appellee.
   WHATLEY, Judge.

On January 13, 2003, Robert Willey filed this appeal to challenge the amount of restitution the trial court ordered him to pay at a December 16, 2002 hearing. He contends that the trial court erred in ordering him to pay $220 in restitution because the victim suffered a loss of only $120. Appellate counsel sought and was granted leave from this court to have the record supplemented with the restitution order entered on December 16, 2002. The circuit court clerk certified that no order of restitution was filed as a result of the hearing on that date.

At Willey’s sentencing hearing on November 6, 2002, the trial court orally ordered that Willey pay, consistent with his plea agreement, $60 in restitution. The order of probation filed on January 13, 2003, reflects that restitution amount. Accordingly, we affirm the restitution amount of $60.

Affirmed.

SALCINES and SILBERMAN, JJ., Concur.


text:
    G.B. HOLDINGS, INC., a Florida corporation, d/b/a KB Holdings, Appellant, v. Kathleen STEINHAUSER, K.B. Holdings, Inc. and Jack Baker, Appellees.
    No. 4D02-4624.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 2003.
    Rehearing Denied Jan. 26, 2004.

      Susan L. Dolin and Melissa B. Lewis of Rothstein, Rosenfeldt, Dolin & Pancier, P.A., Fort Lauderdale, for appellant.
    Arianne Bombalier Suarez and G. Ware Cornell, Jr., of Cornell & Associates, P.A., Fort Lauderdale, for appellee Kathleen Steinhauser.
   PER CURIAM.

Kathleen Steinhauser sued K.B. Holdings, Inc. for sexual harassment and retaliatory termination. The proper name of her former employer is G.B. Holdings, Inc. d/b/a KB Holdings. K.B. Holdings, Inc. informed Steinhauser that it had no prior relationship with her and did not defend the lawsuit. Without amending the complaint, Steinhauser then served a copy of the complaint naming K.B. Holdings, Inc. as the defendant on G.B. Holdings, Inc. G.B. Holdings, Inc. informed Steinhauser that K.B. Holdings, Inc. was not its correct corporate name and suggested that Stein-hauser amend her complaint to reflect the correct name. Steinhauser did not correct the error, and G.B. Holdings, Inc. did not participate in the lawsuit.

Following the entry of a default against K.B. Holdings, Inc., the case proceeded to trial and the jury awarded $75,000 in damages. Steinhauser then sought discovery in aid of execution of the judgment against G.B. Holdings, Inc. G.B. Holdings, Inc. contested this effort, stating that it was unaffiliated with the entity sued. However, the trial court ordered G.B. Holdings, Inc. to provide financial documents in aid of execution. Steinhauser then moved to amend the complaint and final judgment in the ease to change the defendant’s name from K.B. Holdings, Inc. to G.B. Holdings, Inc. The motion was granted and G.B. Holdings, Inc. was substituted for K.B. Holdings, Inc. in the final judgment.

G.B. Holdings, Inc. appeals both the order granting the motion to amend and the order requiring it to provide financial documents in aid of execution. Because we find error as to the entry of the order amending the complaint and final judgment, we also conclude that the order requiring G.B. Holdings, Inc. to provide financial documents in aid of execution was in error.

The standard of review applicable to a motion to amend a complaint and a final judgment is abuse of discretion. Frenz Enters., Inc. v. Port Everglades, 746 So.2d 498, 503 (Fla. 4th DCA 1999); Clements Agency v. Lungstrum, 827 So.2d 360, 361 (Fla. 1st DCA 2002). It is proper to amend pleadings to conform to the evidence or in the event that amendment is necessary for the furtherance of justice. Fla. R. Civ. P. 1.190. It is proper to amend final judgments where clerical mistakes have occurred or where mistake, inadvertence, excusable neglect, newly discovered evidence, or fraud have been demonstrated. Fla. R. Civ. P. 1.540.

G.B. Holdings, Inc. contends that the trial court erred by permitting the amendment of the complaint and final judgment because it is unrebutted that G.B. Holdings, Inc. had no relationship to the entity sued. Furthermore, the amendment did not correct a mere misnomer or scrivener’s error because it brought an entirely new party into the litigation at a point where a final judgment had been entered and it was too late to defend the suit.

Steinhauser counters that G.B. Holdings, Inc. had a duty to defend the lawsuit because a copy of the complaint was served on G.B. Holdings, Inc. As a result, Steinhauser argues that the entry of a default judgment was appropriate and the amendment necessary to enforce that judgment was proper, notwithstanding any misnomer.

We conclude that this was not a case of a mere misnomer that could be corrected post-judgment without prejudice to any party. A mere misnomer is defined as the misdescription of a party. Lindsey v. H.H. Raulerson Jr. Mem’l Hosp., 505 So.2d 577, 578 (Fla. 4th DCA 1987). The cases allowing post-judgment amendment in cases of mere misnomer are distinguishable from the case at bar. First, this is not a case where the entity sued and the entity intended to be sued were related companies functioning through the same management structure. See, e.g., Sexton v. Panning Lumber Co., 260 So.2d 898, 899, 903 (Fla. 4th DCA 1972). Instead, K.B. Holdings, Inc. and G.B. Holdings, Inc. were entirely separate and unrelated companies. Second, this is not a case where the intended defendant was improperly sued under its fictitious name and defended the suit in its fictitious name. See, e.g., Royal Atlantic Health Spa, Inc. v. B.L.N., Inc., 677 So.2d 1385, 1386 (Fla. 4th DCA 1996). Here, G.B. Holdings, Inc. was not even sued under its fictitious name, because that name is KB Holdings, not K.B. Holdings, Inc. Additionally, G.B. Holdings, Inc. did not appear in the proceedings.

Furthermore, permitting the amendment of the final judgment so that it could be enforced against G.B. Holdings, Inc. raises due process concerns. The United States Supreme Court has held that due process rights are offended where a party is added to a suit after an award of attorney’s fees is made, because that party is not given the opportunity to contest liability before a final judgment is entered. Nelson v. Adams USA, Inc., 529 U.S. 460, 120 S.Ct. 1579, 146 L.Ed.2d 530 (2000). This concern is present in the case at bar. G.B. Holdings, Inc. was made a party to the litigation only after a default judgment was entered against K.B. Holdings, Inc., and therefore, will have no opportunity to defend the case and contest liability.

In conclusion, it was an abuse of discretion for the trial court to allow Steinhauser to amend the complaint and final judgment after the entry of a default to change the name of the defendant from K.B. Holdings, Inc. to G.B. Holdings, Inc. This is not a case of mere misnomer suggesting amendment to conform to the evidence or in the interests of justice, because K.B. Holdings, Inc. is not a misdescription of G.B. Holdings, Inc., but an entirely separate corporate entity. Likewise, this is not a case of a clerical mistake or any other demonstrated grounds for amendment. This is not a case where an intended defendant was sued in a related corporate name or its fictitious name. This is not a case where the intended defendant appeared in the proceedings. Instead, this is a case where despite being told by both the party sued and the intended defendant that she had sued the wrong party, the plaintiff "failed to amend the complaint to sue the proper defendant in the proper name. This is a case where an intended defendant was brought into a case as an entirely new party at the conclusion of that case and where a judgment was imposed against the party without an opportunity to defend. Accordingly, because the trial court abused its discretion, the orders allowing the amendment of the complaint and final judgment and requiring G.B. Holdings, Inc. to provide financial documents in aid of execution are reversed.

REVERSED.

GUNTHER, WARNER and MAY, JJ., concur.


author: CASANUEVA, Judge.

text:
    Kimberly D. BARRETT, Appellant, v. Lowell Scott BARRETT, Appellee.
    No. 2D03-475.
    District Court of Appeal of Florida, Second District.
    Nov. 21, 2003.
    Tyrone Zdravko of Reeser, Rodnite & Zdravko, P.A., Palm Harbor, for Appellant.

      M. Katherine Ramers of M. Katherine Ramers, P.A., Dunedin, for Appellee.
   CASANUEVA, Judge.

In this postdissolution action, Kimberly D. Barrett asserts that the trial court abused its discretion in modifying the visitation provisions of the final judgment of dissolution of marriage. With the exception of the Christmas holiday visitation terms, we disagree and affirm. Competent, substantial evidence supports the trial court’s conclusion that a substantial change of circumstances has occurred and that it is in the child’s best interest to have increased visitation with his father.

To assure that Mr. Barrett and his son would have more time together, the trial court fashioned a new visitation schedule based upon exhibit 16, submitted by Mr. Barrett. That schedule provides for the parties to alternate visitation with their son on specific holidays and occasions, such as the child’s birthday, Easter Sunday, Thanksgiving Day, Halloween, and the Fourth of July, depending on whether the year ends in an even or odd number. For Christmas, however, Mr. Barrett is scheduled to have the child on Christmas Day and Ms. Barrett to have him on Christmas Eve — -every year. We are unable to find any record evidence to support the trial court’s decision to deviate from the alternating holiday plan for Christmas. Therefore, we reverse this determination and remand with instructions for the trial court to modify the schedule so that the parties will alternate visitation with their son on Christmas Eve and Christmas Day in a manner similar to the schedule of other holidays.

Finally, Ms. Barrett argues that the detriment factor as set out and discussed in Gibbs v. Gibbs, 686 So.2d 639 (Fla. 2d DCA 1996), applies to proceedings seeking to modify visitation as well as custody. We disagree. Gibbs concerns custody modification and requires the court to find that detriment would occur to the child if custody were not changed. Id. at 642. We do not interpret Gibbs as requiring a similar standard for visitation modification.

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

FULMER and CANADY, JJ., Concur.


author: DAVIS, Judge.

text:
    PRISON HEALTH SERVICES, INC., Appellant, v. FLORIDA ASSOCIATION OF COUNTIES TRUST, Appellee.
    No. 2D02-4656.
    District Court of Appeal of Florida, Second District.
    Nov. 21, 2003.
    Robert P. Major and James Edward Cheek, III, of Winderweedle, Haines, Ward & Woodman, P.A., Orlando, for Appellant.
    Robert H. Sturgess of Motes & Carr, P.A., Jacksonville, for Appellee.
   DAVIS, Judge.

Prison Health Services, Inc. (PHS), challenges the trial court order requiring it to pay the attorney’s fees and costs that Florida Association of Counties Trust (FACT) was awarded as the prevailing party in the underlying litigation between the parties on a contract dispute. Because this court has reversed the summary judgment entered in favor of FACT, see Prison Health Servs., Inc. v. Fla. Ass’n of Counties Trust, 28 Fla. L. Weekly D2510 (Fla. 2d DCA Oct.31, 2003), FACT is no longer the prevailing party; therefore, we reverse the instant award of attorney’s fees and costs. See § 57.105(1), Fla. Stat. (2002).

Reversed.

FULMER and KELLY, JJ., Concur.


text:
    Curtis James ROBERTSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2524.
    District Court of Appeal of Florida, Second District.
    Nov. 26, 2003.
   ALTENBERND, Chief Judge.

Curtis James Robertson appeals the denial of his motion seeking postconviction relief, which was filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court denied this motion as untimely. We reverse.

Mr. Robertson was charged with burglary of a dwelling and violation of a domestic violence injunction for events occurring on January 2, 2000. While subject to the domestic violence injunction, he apparently returned to his former home, where his ex-wife was living, with the intent to commit suicide. He entered the home without consent and refused his ex-wife’s requests that he leave. He attempted suicide by cutting his wrists but claims that he cut his wrists before he entered the home.

In May 2000, he pleaded guilty to these offenses and was placed on probation. He did not appeal his judgment and sentence. A few months later, he violated the terms of his probation. As a result, he was sentenced in August 2001 to five years’ incarceration. Mr. Robertson appealed the order on violation of probation and the sentence imposed as a result of the violation. This court affirmed the direct appeal, case number 2D01-4382, and issued mandate on February 19, 2003. See Robertson v. State, 840 So.2d 241 (Fla. 2d DCA 2003) (table decision).

While Mr. Robertson’s direct appeal of the order revoking his probation was pending, he filed a motion for postconviction relief in the trial court challenging his convictions and raising a jail credit issue. He argued that he may have committed trespass, but that he did not commit burglary. He claimed that his lawyer was ineffective in advising him to plead guilty to burglary. On June 13, 2002, the trial court denied this motion on the ground that it could not be filed while a direct appeal was pending. Mr. Robertson appealed that ruling in case number 2D02-3043. See Robertson v. State, 827 So.2d 997 (Fla. 2d DCA 2002) (table decision). We affirmed the trial court in August 2002 with a per curiam opinion that merely cited to Wells v. State, 736 So.2d 24 (Fla. 2d DCA 1999), and Daniels v. State, 712 So.2d 765 (Fla.1998). Both Wells and Daniels hold that a trial court is without jurisdiction to rule on a motion filed pursuant to rule 3.850 during the pendency of a direct appeal. See Wells, 736 So.2d at 24; Daniels, 712 So.2d at 765.

The day after this court issued mandate in the direct appeal of the order revoking his probation, Mr. Robertson refiled his postconviction motion. The trial court entered an order denying this motion without an evidentiary hearing on the ground that the original judgment and sentence were entered in May 2000 and that this second motion was untimely. Mr. Robertson is understandably perplexed by the inconsistency within these rulings.

Although the general rule states that a trial court lacks jurisdiction to rule on a postconviction motion when a direct appeal is pending, the case law has recognized that a trial court has jurisdiction to resolve a motion when the appeal relates to an earlier postconviction motion, Ottesen v. State, 844 So.2d 753 (Fla. 2d DCA 2003), or to an issue such as sexual predator designation, Clark v. State, 720 So.2d 1097 (Fla. 2d DCA 1998). If the postconviction motion is unrelated to the matters on appeal and could not affect the order that is pending in the appellate court on direct appeal, there is a tendency to allow the trial court to resolve the postconviction motion. The problem, of course, is that the trial court is often m a position where it does not know whether the postconviction motion could affect the judgment and sentence on appeal.

The Fourth District has recently attempted to solve the problem of premature postconviction motions. In order to avoid unnecessary appeals, that district is now encouraging trial courts to stay such motions pending the outcome of the direct appeal. See Perez v. State, 834 So.2d 882 (Fla. 4th DCA 2002). Such an approach may require the trial court clerk to expend a little extra effort on case management, but it avoids the time and expense incurred by the trial court clerk in preparing records for appeals from such premature motions. Trial courts in the Second District would do well to follow the approach suggested by the Fourth District.

The issues raised in Mr. Robertson’s first motion may have been sufficiently separate from the direct appeal that they could have been resolved at that time. Even if the trial court had the authority to resolve them at that time, it ruled that it did not. This court affirmed both the ruling and the reasoning of the trial court. Accordingly, both the trial court and this court are bound by our earlier rulings. Based on those rulings, Mr. Robertson’s motion was not untimely and should be reviewed on its merits.

Reversed and remanded.

WHATLEY and SILBERMAN, JJ., Concur.

      . From our record it is unclear what crime the State maintained that Mr. Robertson entered the home to commit. It may be that the criminal violation of the domestic violence injunction occurred within the home.

      . The motion also raised a jail credit issue that was resolved on other grounds. Mr. Robertson does not challenge that ruling on appeal, and the order has attachments supporting that ruling. Thus, the trial court does not need to address that issue on remand.


author: EZELL, Judge.

text:
    Andrea SEYFARTH v. NEW DAY OUTPATIENT REHAB.
    No. WCA 03-500.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2003.
    Rehearing Denied Jan. 21, 2004.
    Christopher Alan Edwards, Ewards Law Firm, Lafayette, LA, for Plaintiff/Appellant, Andrea Seyfarth.
    Debra Talbot Parker, Johnson, Stiltner & Rahman, Baton Rouge, LA, for Defendant/Appellee, New Day Outpatient Rehab.
    Court composed of BILLIE COLOMBARO WOODARD, MICHAEL G. SULLIVAN, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

Andrea Seyfarth appeals a workers’ compensation judgment holding that a July 19, 1999 work accident was a very temporary aggravation of a pre-existing neck condition and that there was insufficient evidence to establish a work-related accident on September 3, 1999.

FACTS

Seyfarth was employed by New Day Outpatient Rehabilitation as an occupational therapist. For approximately ten years she suffered with neck problems, taking a turn for the worse in 1997. On February 23, 1999, Dr. Luiz DeAraujo performed a hemilaminectomy of C6 on the right side and foraminotomies at C5-6 and C6-7 on the right side. Her pain improved re-markedly after surgery, but she testified that she still suffered with some significant pain. She was referred to Dr. Norman Anseman for physical rehabilitation following surgery.

Dr. Anseman first examined Seyfarth on April 7, 1999. He diagnosed her with cervical spondylosis with some residual problems from the surgery. He observed a considerable amount of spasm on the right side. On June 12, 1999, Seyfarth had a flare-up resulting in a worsened range-of-motion and or spasm. She had just gotten married and believed that tension and stress were causing her problems.. On June 24, Dr. Anseman injected her left shoulder which had also become aggravated.

Dr. Anseman next saw Seyfarth on July 21, 1999, a few days after her first claimed work accident. Seyfarth related to Dr. Anseman how she had been preparing to give a workshop on July 19 and had to move an exercise mat causing another flare-up. His examination indicated that there was no spasm on the right but her left side had increased spasm. Her neurological exam was normal. He thought she would be better by the next visit.

Seyfarth next called Dr. Anseman on September 9 to complain that she was on the downhill with her neck. She was seen by Dr. Anseman on September 15, at which time she reported the second claimed work accident at issue in this case. Seyforth explained to Dr. Anseman that, while performing a functional capacity evaluation, she lifted a seventy-pound weight off a patient, again causing a flareup. At trial, Seyfarth explained that she actually removed ten pounds at a time for a total of forty pounds and then lowered a box with the remaining thirty pounds. He noted a new area of spasm along the thoracic spine.

On November 5, 1999, Seyfarth left her employment with New Day. She gave one-month notice before she left. On.August 31, 2000, Seyfarth filed a disputed claim for compensation. Following trial of the matter, the workers’ compensation judge (WCJ) issued judgment dismissing Sey-farth’s claims. Seyfarth appeals to this court arguing that the facts and testimony overwhelmingly support her description of the accidents and their effect on her.

SEPTEMBER 3, 1999

Seyfarth first claims that the WCJ was manifestly erroneous in finding the evidence insufficient to establish a work-related accident on September 3, 1999. Restating the definition of the “manifest error” standard, the supreme court in Edwards v. Sawyer Indus. Plastics, Inc., 99-2676, p. 9 (La.6/30/00), 765 So.2d 328, 333, quoted from Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973), as follows:

When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.

The WCJ gave the following reasons for her decision:

The WCJ finds the evidence insufficient to establish a work-related accident on September 3, 1999. While the defense witnesses completely contradicted the claimant’s testimony as to the occurrence of the second accident, Dr. Anseman noted a new area of spasm along the thoracic spine at his examination of September 15. This new objective finding tended to corroborate the claimant’s allegation of a new event between his last exam of July 21 and the exam of September 15. However, the physical therapy records introduced as Plaintiffs exhibit 18 reflect that the thoracic complaints began on August 19, some two weeks before the alleged accident of September 3. Those complaints decreased on August 26 and August 31, but increased on September 2, the day before the alleged incident with the FCE. There is no corroboration of a September 3 accident and the WCJ finds that no work-related accident occurred on that date.

We have reviewed the record and find no manifest error in the WCJ’s decision. Seyfarth began attending physical therapy at the Orthopedic and Sports Physical Therapy Clinic of Lafayette on August 10, 1999. On her visit on August 19, 1999, she complained of upper thoracic pain and left scapula tightness which was also observed by the therapist. It was even noted that she had increased upper thoracic pain the day before the alleged September 3, 1999 accident.

Seyfarth also testified that she told several people at work about the incident, which they all denied. Sarah Leblanc, who worked at New Day, but was no longer employed when she testified, stated that she was taking pictures while Seyfarth was performing the evaluation on September 3, 1999. Leblanc testified that Seyfarth did not complain to her that she was hurt. She did not recall Seyfarth lifting any weights that day.

Testimony also revealed that Seyfarth was involved in an automobile accident in August 1999. She had also experienced a flare-up in July 1999 when she was lifting and unloading chairs at a family reunion. In addition to these incidents, the WCJ was aware of the fact that Seyfarth made numerous telephone calls requesting that Dr. Anseman issue addendums to his medical notes about her medical problems.

Seyfarth testified that she left work because she was still having pain and she wanted to get healthy to have a baby. She was also trying to lose weight and get her cholesterol levels down. She did continue to work for a month after she gave notice.

While Dr. Anseman’s medical records support that Seyfarth reported the September 3 incident to him on her September 15 visit, and he noticed what he considered to be a new finding, the record is replete with instances that discredit Sey-farth’s testimony. In addition to the fact that no one at work supported her testimony that she told them about the incident, medical records indicate that she had existing problems in this same area, even the day before the incident. There were also intervening, nonwork-related incidents that could have just as well caused Sey-farth’s problems. We cannot say the WCJ was clearly wrong in finding that there was no accident on September 3, 1999.

JULY 19, 1999

Seyfarth also claims that the WCJ was manifestly erroneous in finding that any work incident of July 19, 1999, was a very temporary aggravation of the preexisting condition which subsided quickly and without residual problems. She claims that the medical evidence proves that Seyfarth continued to have problems as a result of the July 19 incident.

In explaining how she hurt herself, Sey-farth stated that she and Jackie Cusimano were getting ready the morning of July 19 for a workshop. They needed additional room, so they decided to move a mat out of the way. Seyfarth pushed the mat, and about an hour later, experienced spasms and increased pain in her neck.

The WCJ found that, “Comparison of the June 17 and July 21, 1999 examinations reflect that Ms. Seyfarth was actually improved after the alleged July 19, 1999 incident. In fact, in his July 21 report, Dr. Anseman stated he believed she would be ready for discharge by the time of her next visit.”

We agree with WCJ that Dr. Anseman’s medical records indicate improvement in Seyfarth’s condition from her initial visit with him following her July 19 incident. Furthermore, Seyfarth saw Dr. DeAraujo on the day of the incident and his notes reveal that Seyfarth is “doing well, is virtually free of pain and with a normal neu-rologic examination.... I am discharging her today from my care.... ” Additionally, while Seyfarth testified that Cusimano knew she had hurt her neck, Cusimano testified that she never saw or heard anything that indicated Seyfarth’s neck was hurting.

We cannot say the WCJ was clearly wrong in finding that Seyfarth did not suffer any residual problems as a result of the July 19, 1999 incident. The record indicates that Seyfarth continues to suffer with the neck problems she was experiencing before any of these incidents. There is also evidence that she had flare-ups before the incident which resolved, and it could be assumed that she would continue to have flare-ups which would also resolve.

For the above reasons, we find the record supports the judgment of the WCJ and affirm the judgment of the Office of Workers’ Compensation. Costs of this appeal are assessed to Andrea Seyfarth.

AFFIRMED.