author: STONE, J.

text:
    Judy CLARK, Appellant, v. Christopher CLARK, Appellee.
    No. 4D02-994.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2003.

      Martin L. Haines, III and Benjamin T. Hodas of Martin L. Haines, III, Chartered, Lake Park, for appellant.
    Jane Kreusler-Walsh and Rebecca Mer-cier-Vargas of Jane Kreusler-Walsh, P.A., West Palm Beach, and Noel A. Bobko of McCarthy, Summers, Bobko, Wood, Sawyer & Perry, P.A., Stuart, for appellee.
   STONE, J.

Clark appeals the final judgment on the petition to modify custody which gave primary custody to the former husband. We affirm, addressing only the issue of the child support award.

In the final judgment, the trial court modified the child support award declaring that “[t]he Father and Mother will be responsible 50/50 for all reasonable and necessary medical, dental, optical, orthodontic and prescription expenses not covered by any insurances.” Clark argues that this award was improper because such relief was not requested by the former husband in the pleading. We disagree.

It is settled that a trial court cannot modify a child support obligation absent a pleading or motion requesting such modification. Torres v. Torres, 739 So.2d 599, 600 (Fla. 2d DCA 1997) The former husband’s petition for modification sought primary residential responsibility, abatement of his child support obligation, and a requirement “that both parties should pay child support in accordance with the Florida Child Support Guidelines”. This pleading was sufficient to put Clark on notice. See Schwartz v. Schwartz, 712 So.2d 1243, 1244 (Fla. 4th DCA 1998)(holding that the pleading function of a petition for modification is to reasonably inform the other side of what is to be established in support of the petition, so that the opponent has a fair opportunity to defend and prepare a case).

Medical, dental, optical, orthodontic, and prescription expenses fall within the category of child support. Section 61.30(8), Florida Statutes, discusses the provision of non-covered medical, dental and prescription expenses as being part of the basic obligation unless “these expenses have been ordered to be separately paid on a percentage basis.” Thus, those expenses are contemplated as being child support under the guidelines. The cases relied on by the former wife are not applicable as in each of them, either no request was made for child support in the pleading or the basis for child support was not properly pled. See Cortina v. Cortina, 98 So.2d 334 (Fla.1957); Owens v. Eshelman, 712 So.2d 472 (Fla. 1st DCA 1998); Todaro v. Todaro, 704 So.2d 138 (Fla. 4th DCA 1997).

As to all other issues, finding no error or abuse of discretion, we affirm.

GROSS, J. and STERN, KENNETH, Associate Judge, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    MICHAEL J. EDISON AND COMPANY, INC., and Michael J. Edison and Company, d/B/A Michael J. Edison, Appellants, v. COLUMBIA PICTURES TELEVISION, INC., C. Elvin Feltner, Jr., individually and as the last known chairman and director of Krypton International Corporation, Krypton International Corporation, Internationale Nederlanden US Capital Corporation, The United States of America, Jeffrey H. Aikman, and Florida Film Library Sales, Inc., Appellees.
    No. 4D02-602.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2003.
    Paul R. Golis of Paul R. Golis, P.A., Boca Raton and Richard I. Chaifetz, Columbia, Maryland, for appellant.
    Michael J. Compagno, Carlton Fields, P.A., West Palm Beach, and Steven J. Brodie, Carlton Fields, P.A., Miami, for appellees-Columbia Pictures Television, Inc., and Florida Film Library Sales, Inc.
   PER CURIAM.

We affirm. We find that the trial court did not abuse its discretion by denying appellants’ motion to intervene filed four days before the scheduled foreclosure sale. See Fla. Wildlife Fed’n, Inc. v. Bd. of Trs. of Internal Improvement, 707 So.2d 841, 842 (Fla. 5th DCA 1998) (holding that “intervention is a matter of a court’s discretion”); Hatcher v. Roberts, 478 So.2d 1083, 1086 (Fla. 1st DCA 1985) (finding no abuse of discretion in order denying intervention where motion was filed one day before final arguments were heard on defendant’s summary judgment motion which was filed three months earlier).

AFFIRMED.

STONE, WARNER and GROSS, JJ., concur.


text:
    Ayodele O. SHEDEKE, f/k/a Hilgard Lambert Carey, Appellant, v. Antonia (Poy Wing) GOMEZ, individually and as Trustee and Executrix of the Estate of Rosa Emily Carey, Appellee.
    No. 4D01-4845.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2003.

      Ayodele 0. Shedeke, Decatur, GA, pro se.
    Scott D. Rubinchik of Scott Rubinchik, P.A., Plantation, for appellee.
   PER CURIAM.

We affirm the dismissal of count I of appellant’s complaint for failure to state a cause of action. The complaint describes a dispute between siblings over an inheritance. The facts as pled fell short of intentional infliction of emotional distress, since there was no conduct “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Metro. Life Ins. Co. v. McCarson, 467 So.2d 277, 278-79 (Fla.1985) (quoting Restatement (Second) op ToRts § 46 (1965)).

We reverse the dismissal of count II, because it states a cause of action for slander. Paragraph iii of the second count alleges that appellee told a third party that appellant had forged a letter from his sister, upon which appellant -relied as proof of his claim. The statement that appellant was a forger stated a cause of action for slander. See Axelrod v. Califano, 357 So.2d 1048, 1050 (Fla. 1st DCA 1978). Defensive matters, such as the statute of limitations, may be considered in a motion for summary judgment.

Affirmed in part, reversed in part, and remanded.

STONE, WARNER and GROSS, JJ., concur.


text:
    Sharon POHL, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4823.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2003.

      Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Robert A. Butterworth, Attorney General, Tallahassee, and Donna M. Hoffmann, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm appellant’s convictions of tampering with a witness, contrary to section 914.22(1), Florida Statute (2000), and retaliation against a witness, in violation of section 914.23, Florida Statutes (2000). We reverse appellant’s conviction of harassing a witness under section 914.22(2), Florida Statutes (2000), because there was no evidence that appellant’s contact with the police informant hindered, delayed, prevented, or dissuaded the informant from engaging in any of the conduct specified in section 914.22(2)(a)-(d).

Affirmed in part, reversed in part.

STONE, GROSS and MAY, JJ„ concur.


text:
    Ariel Jean MYRTIL, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1205.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2003.
    Carey Haughwout, Public Defender, and Tara Finnigan, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Ariel Jean Myrtil seeks reversal of the trial court’s revocation of his probation. We affirm the revocation of Myrtil’s probation, but remand the case for entry of a written order of revocation. See, e.g., Mitchell v. State, 717 So.2d 609 (Fla. 4th DCA 1998).

FARMER, SHAHOOD and MAY, JJ., concur.


text:
    Michael L. BULLARD, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-809.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2003.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant entered an open plea of no contest to the charge of robbery with a deadly weapon. He was sentenced on February 12, 2002. Four days later he filed a motion to withdraw his plea. See Fla. R.Crim. P. 3.170(i). The motion contained a factually-based claim that his lawyer coerced him into entering the plea. At the hearing on the motion, the lawyer disputed appellant’s contention that he had coerced his client. We reverse and remand for the trial court to appoint conflict-free counsel to represent appellant for his Florida Rules of Criminal Procedure 3.170(Z) motion and to hold a new evidentiary hearing on the motion. See Cadet v. State, 795 So.2d 228, 229 (Fla. 4th DCA 2001); Padgett v. State, 743 So.2d 70, 73-74 (Fla. 4th DCA 1999); Hope v. State, 682 So.2d 1173, 1174 (Fla. 4th DCA 1996); Roberts v. State, 670 So.2d 1042, 1045-46 (Fla. 4th DCA 1996); Jones v. State, 827 So.2d 1086, 1087 (Fla. 1st DCA 2002); Bible v. State, 779 So.2d 517 (Fla. 2d DCA 2000); George v. State, 753 So.2d 678 (Fla. 1st DCA 2000).

REVERSED AND REMANDED.

STONE, SHAHOOD and GROSS, JJ., concur.


text:
    James BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3562.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2003.

      James Brooks, Moore Haven, pro se.
    Charlie Crist, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

James Brooks filed a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). While he raised several issues, we address one. He contends he was improperly sentenced as a habitual violent offender based upon the offense of carjacking, which is not an enumerated offense on which to base enhancement under section 775.084(l)(b), Florida Statutes (2000). We agree and reverse.

Because this error is apparent from the face of the record, a Rule 3.800(a) motion is the proper vehicle to raise this challenge. See Carter v. State, 786 So.2d 1173, 1180 (Fla.2001). A sentence is “illegal” if it imposes a “kind of punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances.” Id. at 1181, (quoting Blakley v. State, 746 So.2d 1182, 1186-87 (Fla. 4th DCA 1999)).

Brooks was convicted of attempted robbery, Case No. 00-19029, and sentenced as a habitual violent felony offender (“HVFO”) to ten years in prison with an enhancement of five years minimum mandatory imprisonment. See § 775.084(l)(b), (4)(b). Brooks challenged this sentence as the offense relied upon to habitualize him, carjacking, was not an enumerated offense upon which enhancement is authorized. Brooks is correct; carjacking is not an offense enumerated under section 775.084(l)(b)l.

The state argues that because carjacking involves a robbery, and robbery is an enumerated offense, .Brooks qualifies as an HVFO. See Fryer v. State, 732 So.2d 30, 32 (Fla. 5th DCA 1999). While Fryer held that robbery is a necessarily lesser included offense of carjacking, that is unrelated to the statutory sentencing scheme. Carjacking and robbery are still classified as separate offenses. See Cruller v. State, 808 So.2d 201, 204 (Fla.2002) (concluding the Legislature intended to authorize separate punishments for carjacking and robbery and convictions for both, arising out of the same transaction, did not violate double jeopardy).

A plain reading of the statute, moreover, undermines the state’s argument. The Legislature was aware of the differences in the crimes, as it included carjacking as a qualified offense for a three time violent felony offender in section 775.084(l)(c)l.q., yet it chose not to include it as a qualifying offense for HVFO status. When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning. See Rollins v. Pizzarelli, 761 So.2d 294, 299 (Fla.2000).

The order below denying Brooks’ motion is reversed and the matter remanded for a proper sentence to be entered. On remand, the state would be entitled to present evidence of another prior conviction that would support the enhancement if appellant failed to object to the enhanced sentence when it was imposed. See Bover v. State, 797 So.2d 1246, 1251 (Fla.2001).

Reversed and remanded.

STONE, WARNER and MAY, JJ., concur.


text:
    A. Wayne LACKEY, Appellant, v. Sheila FRANKLIN, Appellee.
    No. 4D02-5107.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2003.
    Scott M. Behren of Waldman, Feluren & Trigoboff, P.A., Weston, for appellant.
    Russell T. Beyer of Russell Beyer, P.A., Port Lauderdale, for appellee.
   PER CURIAM.

AFFIRMED. See Florida Rule of Appellate Procedure 9.315(a).

FARMER, TAYLOR and MAY, JJ., concur.


text:
    NOVARTIS PHARMACEUTICALS CORPORATION, f/k/a Sandoz Pharmaceuticals Corporation, a Delaware corporation, doing business in Florida, Petitioner/Appellant, v. Connie CARNOTO and Celina Poy-Wing, M.D., et al., Respondents/Appellees.
    No. 4D02-3578.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2003.

      Benjamine Reid and Wendy Frank Lumish of Carlton, Fields, Miami, R. Lay-ton Mank of Wilson, Elser, Moskowitz, Edelman & Dicker, Miami, and Joe G. Hollingsworth, Katharine R. Latimer, Martin C. Calhoun and Cynthia L. Kendrick of Spriggs & Hollingsworth, Washington, DC, for petitioner/appellant.
    Richard A. Sherman of the Law Offices of Richard A. Sherman, P.A., Fort Lauder-dale, and Wilton L. Strickland of Wilton L. Strickland, P.A., Fort Lauderdale, for respondents/appellees.
   PER CURIAM.

This cause was filed as a petition for writ of mandamus or certiorari, challenging one circuit court order finding time sheets and invoices submitted by a special master factually and legally sufficient, and another order authorizing the special master to utilize funds in a trust to pay her fees and costs to date. The second order is sufficiently final in nature to be treated by this court as an appealable, final order, making the earlier order reviewable as part of that final appeal. See Sole v. Kneale, 629 So.2d 999 (Fla. 3d DCA 1993). We find that petitioner has not demonstrated jurisdictional grounds for certiorari or mandamus, but we sua sponte redes-ignate this cause as a final appeal pursuant to Florida Rule of Appellate Procedure 9.040(c). See also Kobayashi v. Kobayashi, 777 So.2d 951 (Fla.2000); Bared & Co., Inc. v. McGuire, 670 So.2d 153 (Fla. 4th DCA 1996).

Appellant has argued on the merits that the trial court erred in authorizing payment to the special master in this ongoing products liability and medical malpractice action without a full evidentia-ry hearing, and because the orders were based on billing information withheld from appellant. We agree that the trial court erred in failing to afford appellant an evi-dentiary hearing before authorizing special master fees and costs. We find that the hearing which was held and which led to the orders now on review did not satisfy the requirements of due process. At the hearing, the special master and counsel informally advised the court on the progress of the discovery efforts in the case. No evidence was submitted at the hearing and provided to appellant to document the claim for special master costs and fees before the court. Appellant did not waive the right to a full evidentiary hearing.

Section 69.051, Florida Statutes (2002), provides that masters shall be allowed such compensation for any services the court deems reasonable. While the trial court has discretion in awarding special master fees, exercise of this discretion calls for the trial court to consider many factors. As the fifth district said in Clark v. Finger, 763 So.2d 560 (Fla. 5th DCA 2000):

Relevant considerations include the extent to which a master hears witnesses, examines and considers evidence, tries and determines controverted questions of facts, investigates, determines controverted accounts, and makes reports of proceedings and results to the court.... Marion Mortg. Co. v. Moorman, 100 Fla. 1522, 131 So. 650 (1930). The difficulty, intricacy, complexity and burden of the controversy are also important factors.... And compensation should be commensurately with the master’s ability, experience and fitness, and the responsibility imposed on him or her. Marion Mortg. Similarly, the helpfulness of the report and the expertise used to prepare the report is an appropriate consideration for the trial court. Anderson v. City of North Miami, 99 So.2d 861 (Fla.1957). Useless and unnecessary labor would not be a proper ground for compensation. Id.

Id. at 562.

While one of the two orders on review showed that the trial court duly considered time sheets and invoices submitted by the special master, appellant has argued that these were not provided to it so that it could examine and contest them before the trial court awarded special master fees and costs. Appellant also argues that the hearing held by the trial court was not a full evidentiary hearing to which it is entitled. On the record before us, we conclude that appellant has demonstrated grounds for reversal. See Waite v. Hewitt, 451 So.2d 528 (Fla. 3d DCA 1984). Cf. Am. Indem. Co. v. Comeau, 419 So.2d 670 (Fla. 5th DCA 1982); Posner v. Flink, 393 So.2d 1140 (Fla. 3d DCA), rev. denied, 402 So.2d 612 (Fla.1981).

Accordingly, we reverse and remand for an evidentiary hearing in the trial court on the matter of the special master’s claim for fees and costs. Appellant shall be provided access to the evidence to be submitted to the trial court relating to the special master’s claim for fees and costs. We reject appellant’s additional claim of trial court error in the denial of its motion to terminate referral of matters to the special master, as no such order was before this court at the time appellant filed its petition for relief here, and appellant has not separately appealed such a written, rendered order, or requested consolidation of such an appeal with these proceedings.

REVERSED AND REMANDED.

GUNTHER, KLEIN and MAY, JJ., concur.


text:
    IDS LONG DISTANCE, INC., a Florida corporation, IDS Telcom, IDS Telcom, LLC, a Florida limited liability company, and Joan M. Canny, Esq., Petitioners, v. Phyllis HEIFFER, Telecomstart.Com, Inc., a Florida corporation, and Teresa Grosso, an individual, Respondents.
    No. 4D02-3164.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2003.
    Eugene E. Stearns and Mimi L. Sail of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Miami, for petitioners.
    Franklin L. Zemel and John M. Cooney of Broad and Cassel, Fort Lauderdale, for respondent, Phyllis Heiffer.

      M. Glenn Curran, III of Curran & Cur-ran, Fort Lauderdale, for respondents, Telecomsmart.com, Inc., and Teresa Gros-so.
   PER CURIAM.

Somehow this case has gotten terribly off track. The suit began with a claim for breach of employment contract, which generated a counterclaim for breach of a covenant not to compete. Discovery ensued. At some point, petitioner, IDS Long Distance, Inc. (IDS), arranged for depositions of respondents’s customers, who had previously been customers of IDS. It then came to light that IDS had agreed to cancel a deponent’s deposition upon the deponent’s agreement to return to IDS as a customer. This came to the attention of the trial judge, who understandably began to inquire into whether discovery was being abused.

At this point, things went astray. The parties asked for more discovery, this time limited to the issue of discovery abuse. This request operated on the questionable assumption that it is okay to utilize more discovery to see whether the discovery already done has been abused. Nonetheless, the trial judge allowed it, and this additional discovery, in turn, led to still more depositions. As before, objections abounded — some being based on an assertion of the attorney-client privilege — and witnesses were instructed not to answer questions. Again the issue of discovery abuse came back before the trial judge.

After a hearing, the trial judge announced a decision that IDS had indeed abused discovery and imposed sanctions. In addition, the judge found that the attorney-client privilege did not apply to certain questions asked at a deposition. Later, the judge entered the July 24, 2002 written order for which IDS seeks certiorari review.

IDS contends that the scope of the order extends to “any and all questions that may be asked by [respondent] Heiffer at future depositions.” However, the scope of the order is limited to depositions taken in connection with Heiffer’s motion to restrain harassment arising from IDS’s purported use of discovery tools to coerce business away from Heiffer.

We agree with the trial court’s conclusion that the attorney-client privilege did not apply to the four questions asked at the deposition and set forth at pages eight and fifteen of the order, and that sanctions were appropriate.

We agree with IDS that the trial court’s application of the crime-fraud exception was not preceded by the evidentia-ry hearing contemplated by American Tobacco Co. v. State, 697 So.2d 1249 (Fla. 4th DCA 1997). The July 16 hearing was not such a hearing. The “sword and shield” doctrine is not applicable here. IDS did not waive anything by implication; it was not basing any of its claims on the matters for which it seeks to invoke the privilege. We therefore quash that portion of the order finding that IDS could not invoke the attorney-client privilege in depositions directed at the discovery abuse issue.

As to the remaining matters raised in the petition concerning the imposition of attorney’s fees and other sanctions, we find that they are not subject to certiorari review. See, e.g., State Farm Mut. Auto. Ins. Co. v. Bravender, 700 So.2d 796 (Fla. 4th DCA 1997) (holding that order assessing $300 in attorney’s fees for discovery misconduct is not reviewable by certiorari). We note that the trial judge has very broad discretion to fashion sanctions for the type of discovery abuse that appears in this record. This case may very well be a paradigm for what is wrong with civil discovery. The patience of Job would have been sorely tried by what has transpired here.

We quash only that portion of the order finding “no attorney-client privilege exists between IDS and their counsel,” “the crime-fraud exception applies to work product of IDS and their counsel,” and “because IDS has affirmatively placed information protected by the attorney-client privilege at issue, IDS is precluded from asserting attorney-client privilege to prevent discovery of such information.” Nothing in our ruling precludes the trial court from finding that the crime-fraud exception applies after an evidentiary hearing.

Writ granted in part, dismissed in part.

FARMER, SHAHOOD and GROSS, JJ., concur.


text:
    Michelle HIATT, Petitioner, v. The ESTATE OF John HIATT, Respondent.
    No. 4D02-2940.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2003.
    Chris Keith, Ft. Lauderdale, for petitioner.
    Gary L. Rudolf and Douglas F. Hoffman of Rudolf & Hoffman, P.A., Ft. Lauder-dale, for respondent.
   PER CURIAM.

We grant Michelle Hiatt’s petition for writ of certiorari and quash the order disqualifying her counsel in this litigation with the personal representative of her husband’s estate.

Attorney Chris Keith (“Keith”), represents Ms. Hiatt in this probate action where the validity of the parties’ antenup-tial agreement is at issue. In a motion to discharge Keith, the personal representative alleged that Keith will be called as a witness because he offered Ms. Hiatt advice on the antenuptial agreement prior to its execution. A hearing was held on the motion, during which no evidence was presented and Keith denied being a material witness. Based solely on the personal representative’s motion, which contained no affidavits, and arguments at the hearing, the trial court granted the motion to discharge and disqualified Keith as trial counsel. However, the court allowed him to remain counsel for pre-trial proceedings.

We note that both parties have submitted the transcript of Keith’s deposition to this court and their arguments thereon. Significantly, however, this deposition was not before the trial court, as evidenced by its order stating, “[t]he Court heard argument of counsel, but received no testimony, deposition or documentary evidence at the hearing.”

Generally, disqualification of counsel, contrary to the wishes of counsel and the client, should be resorted to sparingly. See Arcara v. Philip M. Warren, P.A, 574 So.2d 325, 326 (Fla. 4th DCA 1991). The moving party bears the burden of demonstrating the necessity of the attorney’s testimony and thus his disqualification. See Swensen’s Ice Cream Co. v. Voto, Inc., 652 So.2d 961, 962 (Fla. 4th DCA 1995); accord Ray v. Stuckey, 491 So.2d 1211, 1214 (Fla. 1st DCA 1986).

Under the circumstances here, where no evidence was proffered or offered below, the personal representative has failed to carry her burden. Nothing in the record demonstrated that Keith “is likely to be a necessary witness on behalf of his ... client on a contested matter.” Allstate Ins. Co. v. English, 588 So.2d 294, 295 (Fla. 2d DCA 1991). Absent the personal representative’s showing that Keith will be a necessary witness or that his testimony would be adverse to Ms. Hiatt’s position, see id., the court departed from the essential requirements of the law in granting the motion to discharge counsel. See In re Estate of Gory, 570 So.2d 1381, 1383 (Fla. 4th DCA 1990); Stuckey, 491 So.2d at 1214.

We grant the petition, quash the order, and remand for an evidentiary hearing on the motion.

POLEN, C.J., WARNER and MAY, JJ., concur.


author: SHARP, W., J.

text:
    The FLORIDA PHYSICIANS UNION, INC., Appellant, v. UNITED HEALTHCARE OF FLORIDA, INC., Appellee.
    No. 5D01-2622.
    District Court of Appeal of Florida, Fifth District.
    Feb. 21, 2003.

      Donald W. Weidner and Matthew D. Weidner of Weidner, Bowden & Weidner, Jacksonville, and Christene M. Miele and Lewis W. Harper of Brennan, Manna & Diamond, PL, Jacksonville, for Appellant.
    Edward Soto and Jennifer J. Ator of Weil, Gotshal & Manges, LLP, Miami, for Appellee.
   SHARP, W., J.

Florida Physicians Union (Florida Physicians) appeals from a final judgment which granted United Health Care of Florida, Inc.’s (United Health Care) motion for judgment on the pleadings. The issue in this case is whether or not Chapter 641 (known as the Health Maintenance Organization Act) and specifically section 641.3903, et seq., creates a private cause of action to bring a declaratory judgment suit to enforce the statute or to declare its violation. We affirm, finding no such cause of action exists.

This proceeding commenced in 1999 when Florida Physicians filed a lawsuit against United Health Care (a Health Maintenance Organization) seeking a declaration that various payment methods engaged in by United Health Care, violated section 641.3903. Florida Physicians is an organization which represents medical care providers (medical doctors and their associations) who are under contracts with United Health Care to provide medical services for United Health Care’s subscribers (or insureds) and receive payment from United Health Care for services rendered to those subscribers. In its pleadings Florida Physicians alleged that United Health Care had implemented a software system which, it claimed, created coding and billing errors. Specifically, it alleged the system automatically converted billing codes to a lower reimbursement rate (downcoding), which resulted in the systematic denial of full reimbursement to the providers. It also alleged United Health Care systematically lost or misplaced claims, rejected claims or delayed payment of them as a general business practice, resulting in lost interest, delayed payment and damages to the providers.

The remedy sought by Florida Physicians in this case is a declaration by the court that the alleged practices by United Health Care violate section 641.3903 and for an award of attorney fees and costs.

The trial court ruled that section 641.3903 did not create a private cause of action for Florida Physicians in this context, relying on Greene v. Well Care HMO, Inc., 778 So.2d 1037 (Fla. 4th DCA 2001). In Greene, the issue before the court was whether an insured and spouse could bring a cause of action against the HMO for bad faith handling of a claim constituting an unfair trade practice in violation of sections 641.3901-95 and 624.155, Florida Statutes (1997). The court held that the insured and spouse could pursue breach of contract and tort claims based on common law against the HMO, but that the legislature intended no private cause of action for an individual to enforce the statute. We agree with this view.

Chapter 641 primarily seeks to regulate the business of health management organizations in this state, to ensure that they provide at least acceptable quality health care to their insureds (or subscribers as defined by the statute). It requires them to obtain and keep a current certificate of authority to operate, issued by the Department of Insurance; it mandates standards and requirements for their operation and requires them to file reports and submit to examination by the Department of Insurance. Certain kinds of improper business practices are prohibited in sections 641.3901, 641.3903 and 641.3905 and are labeled as “unfair methods of competition and unfair or deceptive acts or practices.”

Some business practices described in section 641.3903(5) appear to be encompassed by the kinds of practices described in Florida Physician’s allegations. Specifically:

(5) UNFAIR CLAIM SETTLEMENT PRACTICES.
(c) Committing or performing with such frequency as to indicate a general business practice of the following:
1. Failing to adopt and implement standards for the proper investigation of claims;
3. Failing to acknowledge and act promptly on communications regarding claims;
4. Denying of claims without conducting reasonable investigations based on available information;
5. Failing to affirm or deny coverage ... within a reasonable time ... not more than 30 days after claims or proof of last statement has been completed and ... received.

However, most of the provisions in the statute appear to be designed to protect and safeguard the subscribers against business practices of the HMOs. The statute defines providers and they are acknowledged as playing an essential part in the general overall plan of prepaid medical service. But, at least as the statute was originally drafted, they are not focused on as parties needing protection. For example, section 641.315 provides that only the HMO is liable for services rendered, not the subscriber or insured. The providers are prohibited from collecting funds from a subscriber for services provided and covered by the HMO. The statute also requires the provider to give the HMO 60 days notice before cancelling a contract with the HMO. Another provision allows the HMO to terminate a contract with a provider who over charges for services or at the direction of the Department and requires that such termination provisions be included in all contracts with providers. See § 541.234, Fla. Stat.

As revised after 1997, some protections and safeguards were written into the statute to address some of the perhaps more recently realized conflicts between providers and HMOs. See §§ 641.31(18)(f)(3); 641.3155. Relevant to this case, section 641.3903 added as an “unfair claim settlement practice (5)(e)9 — systematic down coding with the intent to deny reimbursement otherwise due.”

However, the general scheme of the statute is to empower the Department of Insurance to enforce the statute’s requirements and determine whether the provisions are being complied with or violated. The Department may seek a temporary or permanent injunction against an HMO, if the statute or any regulation is being violated. § 641.281. It also has been given extensive powers to examine and. investigate HMOs or other persons and entities operating in this regulated business. § 641.3905. It may conduct hearings in accord with chapter 120 to determine whether a person has engaged in unfair methods of competition or an unfair or deceptive practice. § 641.3907. If the Department finds a violation of the statute, it can issue cease and desist orders, revoke or suspend an HMO’s certificate of authority to operate and invoke administrative penalties. § 641.3909.

Florida Physicians argues that Greene is not detenninative of this case because the plaintiff in this case is a provider, not an insured or a subscriber. That difference does not help Florida Physicians’ position. As noted above, the statute appears primarily designed to protect and safeguard the subscribers or the insureds. Although providers may also need protection in this business context against HMOs if the subscribers do not have a private cause of action under this statute, then even more clearly providers do not.

Florida Physicians points to two provisions in chapter 641 which refer to lawsuits brought by private parties in support of its argument that a private statutory cause of action is implied.

First, section 641.28. It provides that: In any civil action to enforce the terms and conditions of a health maintenance organization contract the prevailing party is entitled to recover reasonable attorney fees and costs. This section shall not be construed to authorize a civil action against the Department, its employees or the insurance commissioner or against the Department of Health and Rehabilitation, its employees or the secretary of that Department.

We agree with the court in Greene that civil suits to enforce a contract with an HMO are unaffected by the statute and clearly can be brought in a proper case. This statute merely authorizes prevailing party attorney fees for those lawsuits. Suit on a contract with an HMO is not involved in this appeal. As noted above, Florida Physicians is seeking only a declaratory judgment that United Health Care has and is violating the statute.

Second, section 641.3917. It provides that the provisions of the statute are “cumulative to rights under the general and civil and common law, and no action of the Department shall abrogate such rights to damages or other relief in any court.” In our view, this statute merely clarifies that other causes of action which may exist, are not superceded or cancelled by any provision in chapter 641. See Cycle Dealers Ins., Inc. v. Bankers Ins. Co., 394 So.2d 1123 (Fla. 5th DCA 1981).

Neither provision expressly or impliedly authorizes a private suit brought for purposes of enforcing or declaring violations of the statute. Indeed, if in the context of a declaratory judgment, a circuit court found that statutory violations were ongoing or in existence, its judgment would either be advisory and still require the Department to take action, or it would usurp the jurisdiction of the Department to investigate, find violations of and enforce the provisions of the statute. Conceivably the Department might disagree with a circuit court about the existence of a violation or the method to remedy it. And, there would be no ready appellate mechanism to resolve the dispute.

The courts of this state have long been reluctant to find the legislature intended private parties to have causes of action to enforce statutes like chapter 641, without strong indication that was the legislature’s intent. In our view that intent is contraindicated (to use medical jargon) by the context of this statute.

AFFIRMED.

THOMPSON, C.J., concurs.

SAWAYA, J., concurs in result only.

      . The problem complained about in this case, deliberate delaying of and refusal to pay valid claims, and other interference in the payment process of valid claims, is an increasing problem in the managed care industry. See "Managing Managed Care: Providers Fight Back Against HMOS,” Ralph W. Barbier and Matthew B. Roberts, South Carolina Lawyer, September/October 2001 (13 Oct SCLAW 22). Hospitals and physicians complain that they are forced to submit the same valid claim numerous times, and that valid claims are denied for no reason or some arbitrary reason. Id. When claims are paid, they are often paid late, even though most provider agreements require payment within 30 to 60 days of the receipt of the claim. Id. At least forty-four states have passed prompt payment statutes which generally impose financial penalties, e.g., interest or fines, if the statute is violated. Id. Some state insurance commissioners have levied stiff fines, including Florida. Id. But this apparently has not solved the problem. Nearly one-third of hospitals in this country have terminated contracts with HMOs, citing poor financial results; for large hospitals, that number increases to 60 percent. Id. When providers terminate HMO contracts, consumers of healthcare are negatively impacted.

      . We do not specifically address the question of whether this statute authorizes prevailing party attorney fees in the context of a suit by a provider against an HMO on a contract. Section 641.28 authorizes attorney fee awards specifically on a "health maintenance organization contract” and section 641.19(6) defines a "health maintenance contract” as one entered into by a HMO with a subscriber or group of subscribers.

      . See Murthy v. N. Sinha Corp., 644 So.2d 983 (Fla.1994); Baumstein v. Sunrise Community, Inc., 738 So.2d 420 (Fla. 3d DCA 1999); Mora v. South Broward Hosp. Dist., 710 So.2d 633 (Fla. 4th DCA 1998); Freehauf v. School Bd. of Seminole County, 623 So.2d 761 (Fla. 5th DCA 1993); Moyant v. Beattie, 561 So.2d 1319 (Fla. 4th DCA 1990); Fischer v. Metcalf, 543 So.2d 785 (Fla. 3d DCA 1989).


author: PETERSON, J.

text:
    Alan Montes DEOCA, Appellant, v. Susan Montes DEOCA, Appellee.
    No. 5D02-1329.
    District Court of Appeal of Florida, Fifth District.
    Feb. 21, 2003.

      Charles A. Dehlinger, Altamonte Springs, for Appellant.
    Wiley Andrew Rariden, Orlando, for Ap-pellee.
   PETERSON, J.

Alan Montes Deoca appeals an order modifying his child support payments. The former husband contends that the trial court based the monthly amount of support upon his gross income and not his income adjusted by the mandatory deductions required by section 61.30(3), Florida Statute (2001).

Our review of the record leads us to suspect that gross income was used to calculate the modified child support. We use the word “suspect” because the order modifying the child support does not include a finding as to the amount of income of either party that was used to calculate the child support. Unless such a finding is made, it is impossible for us to review the calculations for child support and for the parties to show a change of circumstances that could lead to an increase or decrease of child support in the future. See e.g., Pedroza v. Pedroza, 779 So.2d 616, 618-619 (Fla. 5th DCA 2001) (“The trial court is required to determine net income based upon section 61.30, Florida Statues, by determining ‘gross income’ as defined in subsection (2)(a) 1-14 and then subtracting from this figure ‘allowable deductions’ as defined in subsection (3)(a)-(g).”); McDaniel v. McDaniel, 653 So.2d 1076 (Fla. 5th DCA 1995) (trial court erred in failing to provide specific findings regarding parties income breakdowns).

The proceedings at the trial level were hampered by the former husband’s lack of cooperation when he furnished incomplete records during discovery requests and failed to provide evidence that would lead to an accurate calculation of his gross income and allowable deductions for child support purposes. For example, he produced only the first pages of his federal income tax returns and only a few months of his employee pay detail that accompanied his paychecks for the calendar year 2001 although that must have been available for the January 2002 hearing.

Although it appears that the former husband has no one to blame but himself for any miscalculation of his available income and the child support, it is the burden of the trial court to determine the amounts based upon the evidence presented. If a litigant fails to cooperate with the legal process by failing to introduce evidence that would lead to an accurate computation, the trial court can still make and state a finding of the necessary amounts including the amount of income imputed to the recalcitrant litigant. Those findings can be made from the evidence presented by the litigant having the burden to show a change of circumstances. If that evidence fails to support an adjustment for appropriate deductions, the entitlement to the missing deduction will be forfeited.

We vacate the order and final judgment modifying child support and remand for the purpose of making findings as to the amounts used to calculate child support as required by section 61.30. If the former husband failed to present evidence to support the deductions that he claims entitlement to, he has forfeited his opportunity to do so. It is not the trial court’s burden, as suggested in oral arguments, to maintain a schedule of federal income tax rates on the bench in order to calculate a litigant’s tax deductions.

REVERSED and REMANDED; ORDER VACATED.

PLEUS, J. and COBB, W„ Senior Judge, concur.


author: WHATLEY, Judge.

text:
    PUBLIX SUPER MARKETS, INC., a Florida Corporation, Appellant/Cross-Appellee, v. Julie GRIFFIN and William Griffin, her husband, Appellee/Cross-Appellant.
    Nos. 2D01-4279, 2D01-5126.
    District Court of Appeal of Florida, Second District.
    Feb. 21, 2003.

      Robert M. Brush and E. Alexander Pu-jol of Brush & Pujol, P.A., Lakeland, for Appellant/Cross-Appellee.
    Gary D. McCallister of Gary D. McCal-¡ister & Associates, Ltd., Chicago, IL, and J. Ron Smith of Smith, Cassidy & Rada-baugh, P.A., Lakeland, and David J. Fee-ley of Feeley & Hielscher, Chicago, IL, for Appellees/Cross-Appellants.
   WHATLEY, Judge.

Publix Super Markets, Inc., appeals the orders granting Julie Griffin and William Griffin a new trial in their personal injury action and imposing sanctions against Pub-lix for the actions of its private investigator. The Griffins cross-appeal the jury verdict finding Mrs. Griffin 50% negligent. We find merit only in Publix’s appeal and reverse.

Mrs. Griffin sustained severe injuries as a result of being hit in the head with the rear door of her van by the Publix employee who closed that door after helping her load her groceries into the van. She and her husband filed a personal injury action against Publix seeking damages for her injuries and concomitant losses. Because Mrs. Griffin’s physical abilities were at issue, Publix hired an investigator to conduct and record surveillance of her. At trial, the Griffins played a portion of the surveillance tapes for the jury and had their expert comment on Mrs. Griffin’s appearance. During its case-in-chief, Pub-lix proceeded to play all of the surveillance tapes for the jury. At the point when the tapes showed the investigator going into the restroom at a McDonald’s restaurant, the Griffins’ counsel asked for a bench conference. Counsel advised the court that the copies of the surveillance tapes the Griffins had been given during discovery did not contain this scene. After much discussion, the jury was removed from the courtroom, and the tape was played further. It showed the Griffins’ seven-year-old son washing his hands in the restroom. The tapes that had been provided to the Griffins were then played, and they did not contain this restroom scene. The copies of the tapes that Publix had been given also did not contain this scene.

The Griffins’ counsel moved to strike the tapes and for a curative instruction. He also moved for a mistrial, as well as for attorneys’ fees and discovery sanctions. The trial court granted the motion to strike and for a curative instruction. Counsel withdrew his motion for a mistrial after the court suggested he discuss a mistrial with his clients. After a recess, Publix’s counsel moved for a mistrial on the ground that the total exclusion of the surveillance tapes greatly hampered its defense. The Griffins’ counsel stated that he had discussed the matter with his clients and that they wished to resist a mistrial. They believed a curative instruction should be issued because to do otherwise would reward the wrongdoer. Further discussion was had, and the trial court denied Publix’s motion for mistrial. The court asked the Griffins’ counsel if he was withdrawing his motion for mistrial, and he responded affirmatively. The jury was brought back in the courtroom, and the trial court gave them a curative instruction before trial proceeded.

After the conclusion of trial, the jury returned a verdict finding Mrs. Griffin 50% negligent and awarding her damages of $270,000, which amount was reduced to $135,000 due to the comparative negligence finding. Final judgment in accordance with the jury’s verdict was entered. The Griffins then moved for a new trial on several grounds: introduction of what they characterized as the illegally obtained and improper surveillance tapes; what they characterized as Publix’s serious discovery violation involving spoliation of evidence; the trial court’s failure to give a sufficiently strong curative instruction that advised the jury that the surveillance video was obtained improperly due to the misconduct of Publix and its agents; the trial court’s denial of their motion for a directed verdict on the issue of comparative negligence; and that the jury’s verdict was against the manifest weight of the evidence. The trial court granted the Griffins’ motion and ordered a new trial. Pub-lix filed an appeal of that order. The Griffins then filed a motion in the trial court for the sanctions of attorneys’ fees, costs, and travel expenses. The trial court also granted this motion, and Publix appealed this order as well. The two appeals were consolidated upon motion of Publix. The Griffins cross-appeal the final judgment on the ground that the comparative negligence finding was against the manifest weight of the evidence. We reverse the orders granting a new trial and imposing sanctions.

ORDER GRANTING NEW TRIAL

In the order granting the Griffins’ motion for new trial, the trial court set forth as the basis of the order “the misconduct of the private investigator, agent of the defendant, Publix.” The trial court abused its discretion in entering this order for two reasons. First, during trial, the Griffins sought a mistrial because of the investigator’s conduct but then withdrew their motion, expressly stating that they wished to resist a mistrial and believed a curative instruction should be issued. The trial court not only gave a curative instruction, it granted the Griffins’ motion to strike the surveillance tapes from evidence. Thus, the Griffins waived their right to a new trial on the ground of the investigator’s conduct. See Robinson v. Bucci, 828 So.2d 478 (Fla. 2d DCA 2002); Saxon v. Chacon, 539 So.2d 11 (Fla. 3d DCA 1989).

Second,

[although an order for new trial need not incant language to the effect that the verdict is against the manifest weight of the evidence or was influenced by considerations outside the record, the order must give reasons which will support one of these two conclusions so that it will be susceptible of appellate review.

Wackenhut Corp. v. Canty, 359 So.2d 430, 435 (Fla.1978). The misconduct of Publix’s private investigator is not a reason that will support either of the conclusions required by Canty. It certainly has nothing to do with the weight of the evidence, and it could not have influenced the jury because the jury neither saw the restroom scene nor was made aware of the discrepancy between the original tapes and the copies. Furthermore, while we understand the outrage of the Griffins and the trial court over the investigator’s filming of the Griffins’ son in the restroom, it was irrelevant to the jury’s determination of Mrs. Griffin’s comparative negligence.

Thus, we reverse the order granting the Griffins’ motion for new trial.

ORDER IMPOSING SANCTIONS

In the order granting the Griffins’ motion for sanctions, the trial court elaborated on the investigator’s misconduct and noted that it had granted a new trial. Where the issues raised in a posttrial motion for discovery sanctions are directly intertwined with the issues raised in the main appeal, the trial court lacks jurisdiction to entertain the posttrial motion after the appeal has been filed. See Amlan, Inc. v. Detroit Diesel Corp., 651 So.2d 701, 706 (Fla. 4th DCA 1995). Thus, we reverse the order imposing sanctions on Publix for discovery violations.

THE GRIFFINS’ CROSS-APPEAL

The Griffins argue in their cross-appeal that the trial court erred in denying their motion for directed verdict on the issue of comparative negligence and that the jury’s verdict is against the manifest weight of the evidence. These arguments are without merit. Mrs. Griffin testified that she was looking right at the Publix employee as he closed her van door. However, she told her physical therapist and a friend that she reached into the van at the last minute. The jury could have based its comparative negligence finding on either of these circumstances. Thus, the trial court properly denied the Griffins’ motion for directed verdict. The jury’s verdict is supported by substantial, competent evidence.

Accordingly, we reverse the order granting a new trial and imposing sanctions and remand for reinstatement of the final judgment entered in accordance with the jury’s verdict.

DAVIS and KELLY, JJ„ Concur.

      . Publix has stated in its brief filed in this appeal that the jury witnessed at most only the fast forwarding of the restroom scene and that it was never advised that the boy in the scene was the Griffins’ son. Our reading of the transcript reveals, as explained above, that the jury had been removed from the courtroom before the subject scene was played. Our analysis of the issues in this case would not change even if the jury did witness the scene.


author: CASANUEVA, Judge.

text:
    Selina AKREY, as Next Best Friend of Timothy Barber, Petitioner, v. KINDRED NURSING CENTERS EAST, L.L.C. f/k/a Vencor Nursing Centers East, L.L.C. d/b/a Bay Point Nursing Pavilion, Vencor, Inc., Ventas, Inc., and Kindred Healthcare Operating, Inc., f/k/a Vencor Operating, Inc., Respondents.
    No. 2D02-2944.
    District Court of Appeal of Florida, Second District.
    Feb. 21, 2003.

      John Calhoun Bales, David B. Wein-stein, Kimberly S. Mello of Bales Wein-stein, Tampa, for Petitioner.
    Ronald E. Bush and H. Hamilton Rice, III, of Bavol, Bush & Sisco, P.A., Tampa, for Respondents.
   CASANUEVA, Judge.

Selina Akrey, as next best friend of Timothy Barber (“Barber”), sued various entities in this case involving injuries Mr. Barber sustained at a nursing home owned and operated by one of the defendants (referred to in this opinion collectively as “Vencor”). After filing its answer and affirmative defenses, Vencor moved to disqualify the plaintiffs law firm, Bales Weinstein, on the ground that one of its attorneys, Scott DiStasio, had formerly represented Vencor while associated with the firm of Shear, Newman, Hahn and Ro-sencranz, P.A. Upon consideration of affidavits and arguments of counsel, the trial court granted Vencor’s motion and disqualified the Bales Weinstein firm from representing Barber in this matter. Barber has now sought a writ of certiorari in this court. Because the trial court’s order departed from the essential requirements of the law, we grant certiorari and quash the disqualification order.

Disqualification of counsel is a matter uniquely suited for review by cer-tiorari because it is an extraordinary remedy that should be used most sparingly. Legion Ins. Co. v. Bank of America, N.A., 807 So.2d 690 (Fla. 2d DCA 2002) (citing Therriault v. Berghmans, 788 So.2d 1119 (Fla. 2d DCA 2001)). The effect is for a party to be denied counsel of its choice, a material injury without appellate remedy. Therefore, upon a showing that the order departed from the essential requirements of law, a reviewing court can issue the writ. See Pinebrook Towne House Ass’n v. C.E. O’Dell & Assocs., 725 So.2d 431 (Fla. 2d DCA 1999).

At the outset, we note that Ven-cor has not alleged that Mr. DiStasio is personally representing Barber. Rather, this is a case of imputed disqualification. If any of a firm’s lawyers would be disqualified, all must be disqualified under this ethical precept. See Matluck v. Matluck, 825 So.2d 1071 (Fla. 4th DCA 2002).

In particular, this matter is governed by rule 4-1.10(b) of the Rules Regulating the Florida Bar, which states:

(b) Former Clients of Newly Associated Lawyer. When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm with which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by rule 4-1.6 and 4 — 1.9(b) that is material to the matter.

Here, a Bales Weinstein lawyer previously represented a client — Vencor—whose interests are adverse to Barber. However, the underlying litigation of this case is not the same litigation in which Mr. DiStasio previously represented Vencor, so an issue is raised whether Barber’s suit against Vencor is a “substantially related matter.” Furthermore, it must be shown that Mr. DiStasio not only received protected client confidences but also that the confidential information was “material to [this] matter.”

The burden of proof does not lie entirely with either party. First, as the moving party, Vencor’s lawyers must establish a prima facie case for disqualification by showing that Mr. DiStasio acquired confidential information during Ms prior representation of Vencor in a substantially related case. If it can carry that burden, the Bales Weinstein firm must then show that Mr. DiStasio has no actual knowledge of any confidential information material to this case. See Scott v. Higginbotham, 834 So.2d 221 (Fla. 2d DCA 2002) (citing Gaton v. Health Coalition, Inc., 745 So.2d 510, 511 (Fla. 3d DCA 1999); Koulisis v. Rivers, 730 So.2d 289, 292 (Fla. 4th DCA 1999)).

The comments to the Rules Regulating the Florida Bar provide guidance in making these determinations. The Bar recognizes that an individual lawyer is obligated to decline representation “involving positions adverse to a former client arising in substantially related matters.” R. Regulating Fla. Bar 4-1.10 cmt. That duty does not extend to every lawyer in the firm with which he or she is newly associated, however, unless the representation involves “the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client.” R. Regulating Fla. Bar 4-1.9(a). In those situations the precepts of rule 4-1.9(a) are of paramount importance. R. Regulating Fla. Bar 1.10 cmt. “Thus, if a lawyer left [one] firm for another, the new affiliation would not preclude the firms involved from continuing to represent clients with adverse interests in the same or related matters so long as the conditions of rule 4-1.10(b) ... concerning confidentiality have been met.” Id. As the comment to rule 4-1.9(a) observes, “a lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a wholly distinct problem of that type even though the subsequent representation involves a position adverse to the pri- or client.”

The attorneys and the court in this case attempted to resolve these serious issues through affidavits. Vencor filed an affidavit of one of its attorneys averring that the affiant had attended a 1999 seminar sponsored by Vencor for its outside counsel in which Mr. DiStasio moderated a panel discussion entitled “Discovery Issues: Defending Against Production of All Personnel Files and All Resident Records.” Vencor’s attorneys also alleged in their unsworn motion that Mr. DiStasio represented Vencor, as defense counsel, in lawsuits filed by twenty-five different plaintiffs, and during the course of his representation he learned confidential litigation and settlement strategies, as well as other confidential corporate information. Mr. DiStasio filed an opposing affidavit averring that during the course of his defense of Vencor nursing home cases he acquired no confidential information “other than fact specific information regarding whether or not proper care was provided to the particular resident that was suing the facility.” Furthermore, he never received confidential corporate information in his prior representation because none of those cases involved punitive damage claims. As to his participation in the 1999 seminar, Mr. DiStasio stated that the information presented “was no different than the same presenters have presented in seminars attended by plaintiffs and defense lawyers throughout the State of Florida.” Mr. DiStasio averred to the best of his knowledge that none of his prior cases involved the same facility where Mr. Barber was injured; and Mr. Barber was not admitted to that facility until six months after Mr. DiStasio left the Shear Newman firm.

At the end of the hearing on the motion for disqualification, the lawyer for Bales Weinstein specifically requested more time to present his case and suggested that he would be “happy” to have an evidentiary hearing. The judge, taking the matter under advisement, agreed that he would be willing to have an evidentiary hearing and speculated that it might be necessary to hold one. Nevertheless, he entered a written order without taking further evidence.

The trial court departed from the essential requirements of law when it ordered disqualification of the Bales Weinstein firm based only upon these affidavits. The affidavit filed by Vencor’s lawyer lacks competent evidence to carry its burden, and the only possible conclusion is that the trial court improperly relied upon unsworn testimony of Vencor’s attorney. A bald assertion that Bales Weinstein’s present case against Vencor involves subject matter identical to Mr. DiStasio’s former representation of Vencor cannot meet the burden required to disqualify an attorney. As observed in Royal Caribbean Cruises, Ltd. v. Buenaagua, 685 So.2d 8, 11 (Fla. 3d DCA 1996), it is “a basic principle of our jurisprudential system ... [that] [a]ll patent cases are similar; all bankruptcy cases are similar; indeed, all eviction, negligence and immigration cases, and all cases of any singular type share elements in common.” No competent evidence as to the relevant dates of Mr. DiStasio’s representations, the types of claims he defended, or the facilities involved was presented to the trial court. Because the trial court ordered disqualification based on insufficient affidavits, we hold, as did the First District in Simon DeBartolo Group, Inc. v. Bratley, 741 So.2d 1254, 1254 (Fla. 1st DCA 1999), “that the trial court departed from the essential requirements of law by reaching its conclusion without conducting an evi-dentiary hearing.” See also Graham v. Wyeth Labs. Div. of Am. Home Products Corp., 906 F.2d 1419, 1424 (10th Cir.1990) (holding that dispositive factual issues remained unresolved on the issue of disqualification, necessitating an evidentiary hearing).

Accordingly, Barber’s petition for certio-rari is granted, the order granting disqualification is quashed, and this cause is remanded for an evidentiary hearing.

FULMER and COVINGTON, JJ., Concur.


author: BROWNING, J.

text:
    Keith BINES, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-3779.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2003.
    Nancy A. Daniels, Public Defender; and Carl S. McGinnes, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, J.

This case number was assigned to three separate notices of appeal filed by Appellant. The first was on an order denying a motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm that order without further comment. The second was on an order granting a motion to correct sentencing error filed pursuant to rule 3.800(a). The third was directed toward the resentencing that stemmed from the granting of that rule 3.800(a) motion. These latter notices of appeal were redes-ignated by this Court as a direct appeal from the resentencing. See King v. State, 795 So.2d 1086 (Fla. 1st DCA 2001). On this direct appeal, Appellant is entitled to relief.

Appellant was resentenced because he correctly alleged in his rule 3.800(a) motion that he should not have been habit-ualized on his conviction, which was for a life felony with an offense date between October 1, 1995, and May 24, 1997. See Green v. State, 810 So.2d 1101 (Fla. 1st DCA 2002). He appeals the resentencing because, he alleges, he was neither present nor represented by counsel at the resen-tencing. His claim has merit.

A defendant has a right to be present at resentencing from a rule 3.800(a) motion. Roy v. State, 711 So.2d 1348 (Fla. 1st DCA 1998). A defendant also has the right to be represented by counsel at resentencing under a meritorious rale 3.800(a) motion. McDonald v. State, 679 So.2d 1273 (Fla. 1st DCA 1996). Here, Appellant alleges that he was denied these rights, and the record does not refute his allegations. In fact, the record supports his allegations, in that the trial court’s order on the rale 3.800(a) motion states that “[t]he Clerk of this Court shall do an Amended/Corrected Judgment and Sentencing Order consistent with [the trial court’s findings],” and that “[t]he Clerk shall send a certified copy of the Amended/Corrected Judgment and Sentencing Order to the Department of Corrections.” Thus, the trial court erred, the new sentence must be vacated, and Appellant must be resentenced at a hearing where he is present and is represented by counsel.

Appellant’s offense date of May 4, 1997, also falls within the window period for claims under Heggs v. State, 759 So.2d 620 (Fla.2000), which declared the 1995 sentencing guidelines unconstitutional. See Trapp v. State, 760 So.2d 924 (Fla.2000). Therefore, on remand, Appellant should be sentenced under the 1994 sentencing guidelines.

Accordingly, we AFFIRM the order denying Appellant’s rule 3.850 motion, and AFFIRM the order granting the rale 3.800(a) motion to the extent that it strikes Appellant’s habitual violent felony offender designation, but REVERSE the order on the rule 3.800(a) motion to the extent that it orders resentencing without the presence of Appellant or his counsel, and REMAND for resentencing under the 1994 guidelines in the presence of Appellant and his counsel.

DAVIS and POLSTON, JJ., concur.


author: COVINGTON, Judge.

text:
    David HUFFMAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5089.
    District Court of Appeal of Florida, Second District.
    Feb. 21, 2003.
   COVINGTON, Judge.

In 1986, David Huffman was convicted of sexual battery with a deadly weapon and armed burglary. He was sentenced to life in prison. Pursuant to Florida Rule of Criminal Procedure 3.853, Huffman filed a motion for postconviction relief requesting DNA testing. He is appealing the trial court’s denial of that motion. Because there is a “reasonable probability” that Huffman would have been acquitted had the DNA evidence demonstrated that the contents of the victim’s rape kit did not match his DNA, we reverse and remand for further proceedings. See Knighten v. State, 829 So.2d 249, 252 (Fla. 2d DCA 2002).

The victim was attacked during the early morning hours of July 21, 1985, while sleeping in her bedroom. When the victim awoke, the assailant was sitting on top of her. The victim testified that she was unable to see the assailant’s face because he covered her eyes. The victim was then threatened with a knife and raped. Throughout the assault, the victim’s face was covered with a pillowcase. After the assailant left, the victim contacted the police. Rape kit evidence was collected at the hospital.

In his motion, Huffman alleged that DNA testing on the contents of the rape kit would exonerate him. He stated that the last known location of the evidence was the Florida Department of Law Enforcement in Tampa or the Sarasota County Police Department.

In its response to Huffman’s motion, the State failed to indicate whether the rape kit evidence was still available for testing. The trial court never made any findings with regard to this issue. Rule 3.853(c)(5) provides:

(5) The court shall make the following findings when ruling on the motion:
(A) Whether it has been shown that physical evidence that may contain DNA still exists.
(B) Whether the results of DNA testing of that physical evidence likely would be admissible at trial and whether there exists reliable proof to establish that the evidence containing the tested DNA is authentic and would be admissible at a future hearing.
(C) Whether there is reasonable probability that the movant would have been acquitted or would have received a lesser sentence if the DNA evidence had been admitted at trial.

The trial court acknowledged that the State failed to allege whether the evidence sought to be tested was still available for testing. However, the trial court did not address this issue because it concluded that “based upon the other evidence that was introduced at the Defendant’s trial, the Defendant cannot show that there is a reasonable probability that he would be acquitted if the DNA evidence had been admitted at trial.”

There was significant circumstantial evidence of Huffman’s guilt presented at trial, including: (1) a fingerprint that matched Huffman’s fingerprints; (2) phone calls traced to Huffman’s house that were made to the victim’s house after the attack; and (3) the victim’s in-court identification of Huffman’s voice as the voice of her assailant. However, identity remained an issue at trial. This court has noted that “the fact that the victim identified [the defendant] as her assailant at trial does not mean that identity was not genuinely disputed at trial for purposes of postconviction DNA testing.” Zollman v. State, 820 So.2d 1059, 1062 (Fla. 2d DCA 2002).

“Cases addressing this issue have uniformly held that DNA testing will not be permitted if the requested DNA testing would shed no light on the defendant’s guilt or innocence.” Id. at 1063. Here, as in Zollman, DNA testing of the evidence in this case would show whether Huffman was the perpetrator of the sexual battery. Id. There is a “reasonable probability” that Huffman would have been acquitted had the DNA evidence demonstrated that the contents of the rape kit were inconsistent with his DNA. See Knighten, 829 So.2d at 252. Therefore, we reverse and remand for further proceedings consistent with this opinion and the requirements of rule 3.853.

Reversed and remanded.

FULMER and DAVIS, JJ., Concur.

      . In Huffman v. Singletary, 696 So.2d 788 (Fla. 2d DCA 1997), this court prohibited Huffman from challenging his 1986 convictions in this court either by appeal or original proceeding. The motion under review in this proceeding was filed pursuant to Florida Rule of Criminal Procedure 3.853, which creates an avenue to pursue postconviction relief based upon allegations that DNA evidence will exonerate the claimant. This rule was adopted October 18, 2001, after the date that this court restricted Huffman’s access to this court to challenge his 1986 convictions. We believe that strict adherence to Huffman under these circumstances is unwarranted, and we except from the holding in Huffman those challenges to Huffman's convictions premised upon rule 3.853. We will continue to abide by Huffman insofar as Huffman may attempt to invoke this court’s jurisdiction to attack his 1986 convictions by appeal or original proceeding raised pursuant to other postconviction remedies.


text:
    T.W., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-2084.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2003.
    Nancy A. Daniels, Public Defender; P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for appellant.
    Robert A. Butterworth, Attorney General; Philip W. Edwards, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. See N.W. v. State, 767 So.2d 446 (Fla.2000).

ALLEN, C.J., WOLF and PADOVANO, JJ., concur.


text:
    Sherri Dawn HOVIS, Appellant, v. Anthony Parker HOVIS, Appellee.
    No. 2D01-4552.
    District Court of Appeal of Florida, Second District.
    Feb. 21, 2003.
    Tamara Lynne Nicola of Tamara Lynne Nicola, P.A., Grogan & Nicola, Naples, for Appellant.
    No appearance for Appellee.
   CASANUEVA, Judge.

Sherri Dawn Hovis (the Wife) appeals from a final judgment for dissolution of marriage, contending that the judgment improperly allowed Anthony Parker Hovis (the Husband) to seek modification of his child support obligation as of the date of the marital settlement agreement rather than the date the petition was filed. Because there is no finality as to the contested clause of the final judgment, we affirm.

The parties filed their petition for dissolution in September 1999 and entered into a marital settlement agreement in November 2000 that provided for the Husband to pay child support for his two minor children based on his earnings from his then-thriving carpentry business. Apparently the business suffered reversals almost immediately thereafter, because the record reflects a series of motions for contempt and orders to show cause based upon the Husband’s failure to pay child support. When the case came before the general master for a pre-final judgment case management conference in early September 2001, the general master designated child support and child support modification as pending issues. The report noted that the Husband would file a motion to modify child support. Trial was set for later in the month.

The Husband filed his motion to modify child support, alleging that he had suffered a material and permanent change in circumstances because he was forced to close his business and take a job with a lower rate of pay. On September 20, 2001, the court held a brief hearing at which it entered a final judgment of dissolution in open court. The final judgment specifically incorporated the marital settlement agreement but also included the following provision: “The Husband shall be allowed to proceed on his Petition to modify child support as it relates back to the date of the marital settlement agreement, not the date of the entry of the final judgment.”

Although we question the propriety of allowing the Husband’s petition for modification to relate back to a time before it was filed, any decision by this court on that matter would be premature. The trial court has not ruled upon the petition for modification as it relates to any date; it has only permitted the Husband to “proceed.” Because the trial court has not entered a final decision as to the petition for modification, it would be inappropriate for this court to enter a ruling on the Wife’s contention. Accordingly, we affirm the final judgment.

Affirmed.

WHATLEY and COVINGTON, JJ„ Concur.


text:
    Michael LILES, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-4313.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2003.
    Nancy A. Daniels, Public Defender; David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Robert R. Wheeler, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Michael Liles, appellant, challenges the sentence entered upon his revocation of probation. He contends that because he initially received a true split sentence of three years’ incarceration (suspended) and eight years’ sex offender probation, the trial court could not now sentence Mm to three years’ incarceration and ten years’ sex offender probation. We agree and reverse.

On January 11, 2001, the trial court accepted appellant’s plea of attempted sexual battery upon a child under age twelve, a lesser included offense, and followed the State’s recommendation for a suspended sentence of three years’ incarceration followed by eight years’ sex offender probation. Appellant admitted violating his probation on October 16, 2001, and the trial court sentenced him to a term of three years’ incarceration followed by ten years’ probation.

As properly conceded by the State, because appellant’s original sentence was a true split sentence, the maximum sentence he could receive for violating his probation was three years’ incarceration. Poore v. State, 531 So.2d 161 (Fla.1988); State v. Powell, 703 So.2d 444 (Fla.1997); Crawford v. State, 763 So.2d 1240 (Fla. 1st DCA 2000); Kelly v. State, 762 So.2d 924 (Fla. 2d DCA 2000); Evans v. State, 730 So.2d 768 (Fla. 1st DCA 1999). Accordingly, we reverse with instructions for the trial court to sentence appellant to not more than three years’ incarceration with credit for time served.

Reversed and remanded with directions.

DAVIS, BROWNING and POLSTON, JJ., concur.


text:
    John Mark BEACHY, Appellant, v. STATE of Florida, Appellee.

      No. 1D01-4844.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2003.
    Michael Gibson, Pace, for Appellant.
    Charlie Crist, Attorney General and Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

John Mark Beachy seeks reversal of his conviction for third degree felony murder, arguing that the trial court reversibly erred in denying his request for a jury instruction on the independent act doctrine. See Fla. Std. Jury Instr. (Crim.) 3.6(1). As a general rule, the felony murder rule and the law of principals combine to make a felon liable for the acts of a co-felon. Bryant v. State, 412 So.2d 347, 350 (Fla.1982). Nevertheless, under the independent act doctrine, a defendant whose co-felon exceeds the scope of, and acts independently of, the original common plan is exonerated from any punishment imposed as a result of the co-felon’s independent act. Ray v. State, 755 So.2d 604, 609 (Fla.2000). Further, a defendant is entitled to have the jury instructed on the law applicable to his theory of defense, if there is any evidence to support the requested instruction. Woodyard v. State, 823 So.2d 853 (Fla. 1st DCA 2002); Mathews v. State, 799 So.2d 265 (Fla. 1st DCA 2001); Langston v. State, 789 So.2d 1024 (Fla. 1st DCA 2001); Bozeman v. State, 714 So.2d 570 (Fla. 1st DCA 1998). Thus, “[w]here there is evidence from which a jury could determine that acts of the co-felon resulting in murder were independent from the underlying felony, a defendant is entitled to an independent act instruction.” McGee v. State, 792 So.2d 624, 626 (Fla. 4th DCA 2001). Here, appellant’s unrebutted statement to the police supported the granting of the independent act instruction, and at trial the prosecution stipulated to the appellant’s request for the instruction. Accordingly, the trial court reversibly erred in denying appellant’s request for an independent act instruction, and we reverse and remand for a new trial.

REVERSED and REMANDED.

WEBSTER, DAVIS and VAN NORTWICK, JJ., concur.


text:
    PERDIDO BAY PARTNERSHIP, and Lacour Investments, Inc., Appellants, v. Bobby WARNER, 10 Corporation Of Pensacola, and James Whigham, Appellees.
    No. 1D02-1017.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2003.
    Charles F. Beall, Jr., and J. Lofton Westmoreland of Moore, Hill & Westmore-land, P.A., Pensacola, for Appellants.
    Jeffrey T. Sauer of Smith, Sauer & De-Maria, Pensacola, for Appellees.
   PER CURIAM.

Appellants, Perdido Bay Partnership and Lacour Investments, Inc., appeal a final judgment determining that appellees, Bobby Warner and 10 Corporation of Pensacola, and/or James Whigham, were entitled to purchase 145 parcels of land in Escambia County from the Clerk of the Circuit Court. Appellants contend that although they submitted their offer to purchase the property after appellees, appellants’ application took precedence, because appellants tendered the full amount while appellees tendered only a partial amount. We affirm, because we find nothing in the statute precluding the clerk from accepting the parties’ offers to purchase in the sequence in which they were submitted to the clerk.

Section 197.502(7), Florida Statutes (2000), provides that once a county declines to purchase property on its list of “lands, available for taxes,” the clerk must make the property available for public purchase for the amount equivalent to the “opening bid” described in subsection (6)(a) thereof, which, for county-held, non-homestead property, consists of “the sum of the value of all outstanding [tax] certificates against the land, plus omitted years’ taxes, delinquent taxes, interest, and all costs and fees paid by the county.” A representative of the clerk’s office testified that it accepts offers to purchase on a first-come, first-served basis, and thereafter it calculates the amount of the opening bid and informs the applicant of the amount due. The trial court decided from the evidence that all three parties were ready, willing and able to pay the total amount, although the clerk’s calculation of the price later showed that only Perdido Bay’s tender exceeded the total amount due.

The trial court held that the clerk was not required by the statute to disregard the earlier offers simply because Perdido Bay’s offer covered the entire amount. We agree. Because there is nothing in the statute or pertinent rules that outlines the procedure the clerk must follow when offering land for sale under section 197.502(7), the interpretation the lower court placed on the statute does not appear at variance with such provisions. Accordingly, the order appealed is

AFFIRMED.

ERVIN, BOOTH and BROWNING, JJ., concur.


author: KAHN, J. BENTON, J.,

text:
    Dan CURTIS, Bob Hewitt, W.C. Hudson, and Aerostar Electronics Corporation, Appellants, v. Sven OLSON, Leistritz Corporation, and Leistritz A.G., Appellees.
    No. 1D02-2792.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2003.
    James P. Green and Winston R. Grow, Mobile, AL, for Appellants.
    Alan R. Horky of Fuller, Johnson & Farrell, P.A., Pensacola, for Appellees.
   KAHN, J.

We have for review an order of the Circuit Court for Escambia County denying appellants’ motion to stay or enjoin the arbitration proceeding commenced by ap-pellees before the American Arbitration Association. The circuit court’s denial of appellants’ motion to stay or enjoin arbitration, in effect, compels appellants to proceed with arbitration. We thus construe the circuit court’s ruling as an order determining entitlement of a party to arbitration. We have jurisdiction. See Fla. R.App. P. 9.130(a)(3)(C)(ív).

Appellants raise four issues on appeal; because we find one issue dispositive, we decline to address the remaining issues at this time. We hold that the circuit court erred in not deciding the threshold question of whether the issue is arbitrable before denying appellants’ motion and, accordingly, we reverse and remand for further proceedings.

In July 1992, John Payne and certain of the appellants formed Aerostar Electronics Corporation (“AEC”) for the purpose of selling aircraft parts. As consideration for his interest, Payne conveyed to AEC all right, title, and interest in his Federal Aviation Administration Parts Manufacture Approval drawings, including compressor blade drawings for the Allison T-56 501 turbine jet engine at issue in the instant case. In June 1993, Payne, allegedly without AEC’s knowledge, entered into an agreement with appellee Leistritz Corporation, revised in July 1997 (“Restated Agreement”), under which Aerostar Manufacturing Corporation (“AMC”) would be formed for the purpose of manufacturing and marketing Allison T-56 501 compressor blades. Appellants brought suit against Payne and Leistritz Corporation to assert their rights in the manufacture and marketing of the Allison T-56 501 compressor blades.

In November 1998, appellants reached a settlement with Payne. The circuit court approved the settlement “without prejudice to Leistritz Corporation’s legal rights and entitlements.” Curtis v. Payne, No. 94-949-CA-01-M (Fla. 1st Cir.Ct. May 10, 2001). Under the settlement, appellants were assigned, among other things, fifty percent of Payne’s interest in AMC. Negotiations with Leistritz Corporation to approve appellants as shareholders in AMC, as required under sections six and seven of the Restated Agreement, failed. Leistritz Corporation now refuses to acknowledge the assignment of Payne’s interest in AMC to appellants, relying on rights purportedly established by the Restated Agreement.

In January 2002, Leistritz Corporation filed a demand for arbitration pursuant to section eighteen of the Restated Agreement. In March 2002, appellants filed a Motion to Stay and for Injunction of Arbitration Proceedings, claiming that arbitration would be premature because the court has yet to determine what, if any, rights appellants have under the Restated Agreement, and that appellants are not signatories to that contract, which contains the arbitration provisions. The circuit court entered an order denying appellants’ motion to stay or enjoin the arbitration, and directing both parties to file briefs addressing “the issue of whether the restriction on transfer of shares in AMC is effective to prohibit a transfer of part of the Payne Interest in AMC to the Plaintiffs.” Curtis v. Payne, No. 94-949-CA-01 (Fla. 1st Cir. Ct. May 30, 2002, nunc pro tunc April 19, 2002). Both parties have briefed the issue, but the circuit court has yet to enter a ruling. Appellees claim that this issue is itself arbitrable; appellants claim it is not.

As set out earlier, we construe the circuit court’s denial of appellants’ motion to stay or enjoin arbitration as an order requiring arbitration to go forward. “Under both federal statutory provisions and Florida’s arbitration code, there 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).

The circuit court here entered an order obliging appellants to proceed with arbitration before making a determination as to whether the issue (Leistritz’ right to restrict the transfer of shares in AMC and thereby prohibit a transfer of part of the Payne Interest in AMC to the appellants) was arbitrable. Arbitration is designed to settle disputes arising between contracting parties which relate to such contract. See § 682.02, Fla. Stat. (2002). The determination of jurisdictional disputes, such as whether a claim is subject to arbitration, must be made by a court of law. See Seifert, 750 So.2d at 636 (holding that “because arbitration provisions are contractual in nature, construction of such provisions and the contracts in which they appear remains a matter of contract interpretation”); Thomas W. Ward & Assoc. v. Spinks, 574 So.2d 169, 170 (Fla. 4th DCA 1990) (holding “[wjhether or not a dispute should be submitted to arbitration is a question for the court to determine from the contract of the parties”).

Accordingly, we REVERSE and REMAND for further proceedings consistent with this opinion.

LEWIS, J., concurs, and BENTON, J., dissents.

BENTON, J.,

dissenting.

I share the majority’s view that we have jurisdiction because the non-final order under review “determine[s] ... the entitlement of a party to arbitration.” Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv). I therefore find it perplexing that the majority reverses on the stated rationale that “the circuit court erred in not deciding ... whether the issue is arbitrable.” As I see it, the order under review necessarily decided this question, and appellants have not shown that the circuit court’s decision was erroneous. I would affirm.


text:
    PRIMECO PERSONAL COMMUNICATIONS, L.P., a Delaware limited partnership, d/b/a Verizon Wireless, Petitioner, v. Ernie MASTROIANNI, as Property Appraiser of Duval County, Florida, Respondent. ARC IV, LLC, a Delaware limited liability company, Petitioner, v. Ernie Mastroianni, as Property Appraiser of Duval County, Florida, Respondent.
    Nos. 1D02-4706, 1D02-4708.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2003.

      Beth E. Antrim, Hernando, for petitioners.
    Richard A. Mullaney, General Counsel, Duval County, Florida, and Lee S. Carlin, Assistant General Counsel, Jacksonville, for respondent.
   PER CURIAM.

Petitioners seek writs of prohibition from this court, contending that the circuit court lacks jurisdiction to consider the claims of Ernie Mastroianni, Property Appraiser of Duval County. As these petitions raise the identical legal issue, we have consolidated them for this opinion. We have jurisdiction. See Department of Revenue v. Eastern American Technologies, Corp., 762 So.2d 1044 (Fla. 5th DCA 2000); Nikolits v. Ballinger, 736 So.2d 1253 (Fla. 4th DCA 1999); Robbins v. Friedman, 625 So.2d 83 (Fla. 3d DCA 1993); § 194.171(6), Fla. Stat. (2002). We agree with Mastroianni that his circuit court proceedings were timely filed, and deny the petitions.

Primeco challenged Mastroianni’s assessment of its Duval County property and obtained relief from the Value Adjustment Board (VAB) by order of November 26, 2001. The VAB reduced the assessed value of ARC IV, LLC’s property on April 2, 2002. The final recertification of the Du-val County tax roll was made on June 3, 2002. Mastroianni’s circuit court complaint against Primeco was filed June 25, 2002, and the proceeding relating to ARC IV was commenced on June 27, 2002. The defendant taxpayers moved to dismiss, contending that the claims were time barred pursuant to section 194.171(2), Florida Statutes:

No action shall be brought to contest a tax assessment after 60 days from the date the assessment being contested is certified for collection under s. 193.122(2), or after 60 days from the ' date a decision is rendered concerning such assessment by the value adjustment board if a petition contesting the assessment had not received final action by the value adjustment board prior to extension of the roll under s. 197.323.

The circuit court, however, accepted Mastroianni’s argument that the time for filing was controlled by section 193.122(4), which provides:

An appeal of a value adjustment board decision pursuant to s. 194.036(l)(a) or (b) by the property appraiser shall be filed prior to extension of the tax roll under subsection (2) or, if the roll was extended pursuant to s. 197.323, within 30 days of recertification under subsection (3). The roll may be certified by the property appraiser prior to an appeal being filed pursuant to s. 194.036(l)(c), but such appeal shall be filed within 20 days after receipt of the decision of the department relative to further judicial proceedings.

The circuit court found, and the parties agree that, under these facts, the circuit court filings were untimely under section 194.171(2) but timely under section 193.122(4).

Petitioners argue that section 194.171(2) should be given its plain meaning because it provides that “[n]o action shall be brought....” They also note that section 194.171(2) is the more recent expression of the Florida Legislature, having been last substantively amended in 1983. We find these arguments unpersuasive. Section 193.122(4) sets out the time limits within which the property appraiser may appeal a decision of the VAB pursuant to 194.036(1). By contrast, section 194.036(2) states that “[a]ny taxpayer may bring an action to contest a tax assessment pursuant to s. 194.171” (emphasis supplied). Read in pari materia, 194.171(2) has no bearing on appeals by the property appraiser to the circuit court contesting a decision of the VAB. Instead, it relates to actions by taxpayers to contest tax assessments. This interpretation gives a field of operation to both statutory sections and avoids rendering section 193.122(4) meaningless, a construction which is to be avoided in harmonizing statutes. See Oldham v. Rooks, 361 So.2d 140 (Fla.1978).

The circuit court correctly determined that Mastroianni’s actions were timely and denied the motions to dismiss. Accordingly, the petitions for writ of prohibition are denied.

PETITIONS DENIED.

WEBSTER, DAVIS and VAN NORTWICK, JJ., concur.


text:
    S.C., a child, Appellant, v. STATE of Florida, Appellee.
    No. 02-2369.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2003.
    Nancy A. Daniels, Public Defender, Second Judicial Circuit; David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.

      Charlie Crist, Attorney General; Robert R. Wheeler, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant argues, in this appeal of an order adjudicating him a delinquent child, the trial judge erred in determining that the four year old alleged victim was competent to testify. Appellant also claims the trial judge erred in admitting child hearsay testimony through the child’s mother and a treating physician. Because we decide the first issue in favor of appellant, we need not reach these additional claims.

When the competency of a child witness is at issue, as it was here, the trial judge must determine whether the child is capable of observing, recohecting, and narrating facts, and whether the child has a moral sense of the duty to tell the truth. See Griffin v. State, 526 So.2d 752, 753 (Fla. 1st DCA 1988); Lloyd v. State, 524 So.2d 396, 400 (Fla.1988). Here, the trial judge failed to conduct an adequate inquiry into whether the alleged child victim possessed a moral sense of duty to tell the truth prior to finding her competent to testify. Seccia v. State, 689 So.2d 354 (Fla. 1st DCA 1997) (reversing and remanding for a new trial when the trial judge failed to conduct a sufficient competency examination to establish a child witness was capable of observing, recollecting, and narrating facts, and had a moral sense of duty to tell the truth). Accordingly, we reverse appellant’s adjudication and remand for a new adjudicatory hearing.

REVERSED AND REMANDED.

BARFIELD, POLSTON and HAWKES, JJ., concur.


text:
    Willie F. JONES, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D02-3460.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2003.
    Willie F. Jones, pro se, petitioner.
    William L. Camper, General Counsel, and Bradley R. Bischoff, Assistant General Counsel, Florida Parole Commission, Tallahassee, for respondent.
   PER CURIAM.

Willie F. Jones petitions this court for a writ of mandamus, complaining that the Circuit Court for Madison County has unduly delayed ruling on a petition for writ of habeas corpus which has been pending there for over one year.

In response to an order to show cause, the Florida Parole Commission concedes that petitioner is entitled to the relief he seeks from this court. We agree. Bernard v. State, 734 So.2d 606 (Fla. 1st DCA 1999); Kramp v. Fagan, 568 So.2d 479 (Fla. 1st DCA 1990).

We grant the petition and issue the writ of mandamus. The circuit court shall rule on the petition for writ of habeas corpus within 30 days of the date of issuance of mandate in this cause.

PETITION GRANTED; WRIT ISSUED.

WEBSTER, DAVIS and VAN NORTWICK, JJ., concur.


text:
    Quintin FERGUSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D02-4206.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2003.
    Quintín Ferguson, pro se, petitioner.
    Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the March 20, 2002, order rendered in Gadsden County Circuit Court case number 96-759 CFA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

ERVIN, BOOTH and BROWNING, JJ„ concur.


text:
    Maria H. SANCHEZ, as Personal Representative, Appellant, v. Albert Fenton MASTERHAN, Doris King, Appellee.
    No. 1D02-4652.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2003.
    Theodore M. Burt, Trenton, for Appellant.
    Peter C.K. Enwall, Gainesville, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order, dated December 17, 2002, we dismiss this appeal for lack of jurisdiction. The order on appeal, Order on Motion to Dismiss Supplemental Petition for Revocation of Probate of Will, dated October 15, 2002, does not “finally determine a right or obligation of an interested person,” Fla. R.App. P. 9.110(a)(2) (emphasis added), where it merely denies a motion to dismiss, and does not revoke the probate of the will. The appellant’s January 14, 2002, Motion for Thirty Day Extension of Time to File Appellants’ Initial Brief, is denied as moot.

DISMISSED.

WEBSTER, DAVIS and VAN NORTWICK, JJ., concur.


text:
    Robert J. FYVIE, and Donna FYVIE, Appellants, v. FIRST BANK OF CRESTVIEW, Appellee.
    No. 1D02-4879.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2003.
    James M. Weber, Pensacola, for Appellants.
    James E. Wilson, Pensacola, and Dale E. Rice, East Crestview, for Appellee.
   PER CURIAM.

Having considered the appellants’ response to this Court’s order, dated January 2, 2003, we dismiss for lack of jurisdiction. The order on appeal, Order Granting Motion for Summary Judgment and Partial Summary Final Judgment, rendered on October 12, 2002, dismisses claims for wrongful eviction, wrongful conversion, and damages which arose out of the samé operative facts surrounding the foreclosure action and contract that are at issue in the remaining pending claim of breach of contract. Because the order does not resolve a distinct and severable cause of action and judicial labor remains on an interrelated claim involving the same transaction and parties, the appeal is premature. See S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla.1974); Odham v. Mouat, 484 So.2d 95, 96 (Fla. 1st DCA 1986); Croteau v. Operator Service Co., 721 So.2d 386, 387 (Fla. 4th DCA 1998); Fla. R.App. P. 9.110(k), (m).

DISMISSED.

ERVIN, BOOTH and BROWNING, JJ., concur.


text:
    Arnold VINING, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 1D02-5130.
    District Court of Appeal of Florida, First District.
    Feb. 25, 2003.
    Arnold Vining, pro se, appellant.
    Geri Atkinson-Hazelton, General Counsel, Unemployment Appeals Commission, Tallahassee, for appellee.
   PER CURIAM.

Having considered appellant’s response to the court’s order, the court determines that the notice of appeal was not timely filed within 30 days of the date the final order was rendered on November 1, 2002. The appeal is hereby dismissed for lack of jurisdiction.

APPEAL DISMISSED.

ERVIN, BOOTH and BROWNING, JJ., concur.


text:
    In re GUARDIANSHIP OF Valerie LUCZKA, Appellant, v. Jose A. BAHAMONDE, a Protective Investigator for the State of Florida, Department of Children and Families, Appellee.
    Nos. 3D02-1208, 3D02-1209.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 2003.
    Kutner, Rubinoff, Bush & Lerner and Susan S. Lerner, Miami, for appellant.
    Tahina Caridad Planas and Barbara Chung, for appellee.
    Before GODERICH and GREEN, JJ. and NESBITT, Senior Judge.
   PER CURIAM.

Despite the appellant’s arguments to the contrary, we conclude that there is substantial competent evidence in the record to support the trial court’s finding that there was clear and convincing evidence showing the appellant totally incapacitated, and therefore directing a plenary guardianship. See Poteat v. Guardianship of Poteat, 771 So.2d 569, 571 (Fla. 4th DCA 2000) (stating that in guardianship cases: “[t]he function of the appellate court is to determine whether there is ‘substantial competent evidence to support the trial judge’s finding of clear and convincing evidence.’ ” (citation omitted)). Accordingly, we affirm the orders under review.

Affirmed.


text:
    Fredi REINWALD a/k/a Ruben Gomez, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-2185.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 2003.
    Fredi Rainwald a/k/a Ruben Gomez, in proper person.
    Charlie Crist, Attorney General, for ap-pellee.
    Before GODERICH, GREEN, and FLETCHER, JJ.
   PER CURIAM.

We affirm the order of the trial court denying the defendant’s motion to correct sentence imposed in Orange County, Florida. The trial court’s ruling was proper because it had no authority to modify a sentence imposed in another jurisdiction.

Affirmed.


text:
    Jennifer BACH, Appellant, v. UNITED PARCEL SERVICE, INC., a foreign company, Appellee.
    No. 4D01-252.
    District Court of Appeal of Florida, Fourth District.
    Feb. 26, 2003.
    Stacy Strolla of Law Offices of Strolla & Scott, West Palm Beach, for appellant.
    Michael F. McAuliffe and Edward Diaz of Holland & Knight LLP, West Palm Beach, for appellee.
   ON REMAND FROM THE SUPREME COURT

PER CURIAM.

Upon receiving the mandate from the supreme court, we vacate our prior opinion and reverse the final order of dismissal. See Woodham v. Blue Cross and Blue Shield of Florida, Inc., 829 So.2d 891 (Fla.2002).

GUNTHER, WARNER, JJ., and STREITFELD, JEFFREY E., Associate Judge, concur.