author: KELLY, Judge.

text:
    In the Interest of C.M., C.M., and Z.M., minor children. C.M., Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D01-4145.
    District Court of Appeal of Florida, Second District.
    May 14, 2003.
    Pedro Amador, Jr., Tampa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Tanya E. DiFilippo, Assistant Attorney General, Tampa, for Ap-pellee.
   KELLY, Judge.

C.M. (the father) appeals from the order adjudicating his biological children, C.M., C.M. and Z.M., dependent. The trial court found that the father had “an anger management problem” and had used “inappropriate parenting approaches” when he became angry, and as a result had harmed his children. The father argues that the Department’s evidence was legally insufficient to warrant an adjudication of dependency. We agree and reverse.

The dependency adjudication in this case was based primarily on an incident involving the father and his teenage stepdaughter. The mother described the incident as a verbal altercation that began when she asked if anyone had put dishwasher detergent into the dishwasher. The argument became physical after the stepdaughter said “sorry” in an “inappropriate” tone. The father felt that the stepdaughter had been disrespectful to him, and he struck her on the shoulder. He struck her a second time as she retreated from the room, causing a small bruise on her back. They continued to fight as the father followed the stepdaughter into her bedroom. At this point, the mother intervened and broke up the fight.

The Department also offered evidence of two other incidents. The first occurred when the father accidentally hit one of his stepsons with a toy crate, causing a black eye. The second was an incident of domestic violence against the mother which occurred in 1995, before the father’s children were born. The mother testified that the incident was the result of the father’s consumption of alcohol and that he had not, to her knowledge, consumed any alcohol since the incident. There was also testimony that some of the stepchildren had scars and bruises on them; however, their mother attributed those injuries to accidents caused by the boys’ hyperactivity. There was no evidence of any injuries to the father’s biological children.

In’ order to adjudicate a child dependent, the trial court must find by a preponderance of the evidence that the child has been abused, abandoned, or neglected or is at substantial risk of imminent abuse, abandonment, or neglect. § 39.01(14), Fla. Stat. (2000); In the Interest of D.J.W., 764 So.2d 825 (Fla. 2d DCA 2000). In this case, the Department sought to establish that the father’s biological children were at substantial risk of imminent abuse, abandonment, or neglect based on incidents involving his stepchildren. Children who have not been abused may be adjudicated dependent based on abuse inflicted upon their siblings; however, the evidence must demonstrate a nexus between the abuse and any prospective abuse to another sibling. O.S. v. Dep’t of Children & Families, 821 So.2d 1145 (Fla. 4th DCA 2002); D.H. v. Dep’t of Children & Families, 769 So.2d 424 (Fla. 4th DCA 2000). Generally, this nexus is established when the parent has a mental or emotional condition that will continue, such as mental illness, drug addiction, or pedophilia, and which will make it highly probable that in the future the parent will abuse or neglect another child. D.H., 769 So.2d at 427. See Gaines v. Dep’t of Children & Families, 711 So.2d 190 (Fla. 5th DCA 1998) (stating that to establish nexus the Department must produce evidence that the parent’s behavior was beyond his control, was likely to continue, and placed the children at risk).

We find this case analogous to D.H., in which the Fourth District reversed the dependency of D.H.’s biological daughter based on prospective abuse. The dependency was based on an incident where D.H.’s stepdaughter was in the yard playing with a dog. D.H. yelled at her to attend to the dog because it was being choked by its leash. D.H. kicked his stepdaughter in the head, causing her to fall. The child did not need medical attention. There was no testimony of any harm or abuse to D.H.’s child, M.H., or any other incidents of abuse to his stepdaughter. The court found that the evidence presented was legally insufficient to support the adjudication of dependency for D.H.’s biological child because there was no nexus between the abuse to his stepdaughter and any prospective abuse to his child.

Likewise, in this case, the evidence upon which the Department relied to establish prospective abuse is legally insufficient to support such a finding. The Department presented no testimony from any professional or expert to suggest that the father had an anger management problem, and the evidence that it did present does not support such a conclusion. Nor did the Department offer evidence that the father had any mental condition or addiction that would cause his reactions to be beyond his control. Finally, although the record shows that the father may have occasionally been harsh in disciplining his stepchildren, there is no evidence that he ever harmed his biological children. Accordingly, we reverse the order adjudicating the father’s biological children dependent.

Reversed.

ALTENBERND, C.J., and CASANUEVA, J., Concur.


source: Caselaw Access Project

author: PER CURIUM.

license: Public Domain

text:
    Deaven GUILFORD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-3258.
    District Court of Appeal of Florida, Third District.
    May 14, 2003.
    Michael Hursey (Fort Lauderdale), for appellant.
    Charles J. Crist, Jr., Attorney General, and Frank J. Ingrassia, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GERSTEN and GODERICH, JJ.
   PER CURIUM.

Because the appellant, Deaven M. Guil-ford, has failed to demonstrate reversible error, the judgment of conviction and sentence is affirmed.

Affirmed.


author: PER CURIAM.

text:
    Keith J. BANNISTER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-884.
    District Court of Appeal of Florida, Third District.
    May 14, 2003.

      Keith J. Bannister, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before COPE, GERSTEN and SHEVIN, JJ.
   PER CURIAM.

Keith J. Bannister appeals an order denying his motion to correct illegal sentence. The circuit court clerk has been unable to locate the file of defendant-appellant Bannister as it has been sent out for microfilming, but it is clear from the materials attached to the motion that the defendant is not entitled to any relief. The charge of second degree murder, to which the defendant pled guilty, is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life. § 782.04, Fla. Stat. (1979); Page v. State, 687 So.2d 1357 (Fla. 3d DCA 1997). If enhanced for use of a weapon, see § 775.087(1), Fla. Stat. (1979), it becomes a life felony. State v. Whitehead, 472 So.2d 730, 731 (Fla.1985). Under either analysis, life imprisonment is an authorized penalty for this crime.

The second charge to which the defendant pled guilty was attempted first degree murder. It is clear from the materials the defendant has submitted that the charge was attempted first degree murder with a weapon. That offense is a life felony. See § 782.04(1), 777.04(4)(a), 775.087(l)(a), Fla. Stat. (1979); Strickland v. State, 437 So.2d 150, 152 (Fla.1983).

The defendant argues that it was impermissible to enhance the attempted first degree murder charge for use of a weapon. The defendant is mistaken, as use of a weapon is not an essential element of the crime of attempted first degree murder. Strickland, 437 So.2d at 152; § 775.087(1), Fla. Stat. (1979).

It follows that the defendant’s sentences are legal.


author: COPE, J.

text:
    LION PLUMBING SUPPLY, INC., Appellant, v. Bienvenido SUAREZ and Delia Suarez, Appellees.
    No. 3D00-3174.
    District Court of Appeal of Florida, Third District.
    May 14, 2003.

      Barnett, Barnard & Sechan; Elizabeth K. Russo, Miami, for appellant.
    Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin and Joel Eaton, Miami, for appellees.
    Before SCHWARTZ, C.J., and COPE and RAMIREZ
      , JJ.

      . Judge Ramirez did not hear oral argument, but participated in the decision.

   COPE, J.

Lion Plumbing Supply, Inc. appeals an adverse judgment in an automobile accident case. We conclude that two expert witnesses of defendant-appellant Lion Plumbing should not have been excluded, and remand for a new trial.

I. .

The car of plaintiff-appellees Bienvenido and Delia Suarez was struck from the rear by defendant Lion Plumbing’s truck. The plaintiffs sought treatment for neck and back pain the day after the accident.

The plaintiffs were treated by a general practitioner, Dr. William Colado. When their complaints of pain persisted, Dr. Co-lado referred them to, and received reports from, an orthopedic surgeon, two neurologists, a clinical psychologist, a psychiatrist, and neuro-psychologist. The medical professionals were of the opinion that the husband, age sixty, had suffered a herniated disk, persistent pain, and an inability to perform his regular job duties. The medical opinion was that the wife, age fifty-eight, had a bulging disk, persistent pain, and an inability to concentrate, which likewise limited her ability to perform her job responsibilities.

The plaintiffs sued the defendant for negligence. It was conceded that the defendant had been negligent in causing the rear-end collision. The main disputes at trial were whether the neck and back ailments of the plaintiffs were attributable to the accident or were the result of degenerative changes in the body, and whether the plaintiffs’ medical complaints were as severe as they claimed.

By pretrial ruling, the trial court indicated that expert witnesses would be limited to one per side per specialty. The plaintiffs’ pretrial disclosure listed all seven treating professionals.

The defense obtained medical examinations of the plaintiffs by a neurologist, as well as an orthopedic examination by Dr. Ramirez for the wife and Dr. Glatzer for the husband.

In opening statement, plaintiffs’ counsel reviewed the course of treatment of the plaintiffs, identifying the medical professionals who had treated them. Plaintiffs’ counsel outlined the plaintiffs’ theory of the case, and also discussed the medical evidence which was anticipated from the defendant’s experts. In opening statement, defense counsel outlined the defense theory of the case and explained that the defense would be calling its neurologist as well as the two orthopedic specialists.

On the first day of trial, the plaintiffs called the neurologist to the stand to testify. On the morning of the second day of trial, plaintiffs’ counsel announced that he had decided not to call the plaintiffs’ orthopedic surgeon — but requested the court to rule that if the plaintiffs withdrew their orthopedic surgeon, then the defense would likewise not be allowed to call either of its orthopedic experts, Dr. Ramirez or Dr. Glatzer. The trial court so ruled, and the plaintiffs withdrew their orthopedic expert. The plaintiffs went on to present testimony from the plaintiffs’ general practitioner and the plaintiffs’ neuro-psychologist.

In the defense case, the defense was only allowed to call its neurologist, Dr. Scheinberg, as an expert. The neurologist acknowledged that he could only testify regarding the plaintiffs’ complaints from a neurological standpoint. The defense neurologist also said:

As I indicated in my report, I felt that in both instances, for Mrs. and Mr. Suarez, that in view of the nature of their complaints, that an independent orthopedic exam might be helpful, because I could not explain on a physiologic basis the persistence of pain for a period of time after the accident.

(TR. 475).

In closing argument, plaintiffs’ counsel emphasized that the plaintiffs had been treated by seven physicians over the years, all of whom agreed from their various viewpoints that the plaintiffs had suffered a permanent injury, whereas the defense had only produced a single hired expert, Dr. Scheinberg.

The jury returned the verdict in favor of the plaintiffs, and the defendant has appealed.

II.

A limitation on the number of experts per side is allowed as a mechanism to prevent the “needless presentation of cumulative evidence.” § 90.403, Fla. Stat. (1999); see Charles W. Ehrhardt, § 403.1, at 159-60 (2002); see also § 90.612(l)(b), Fla. Stat. (1999). The application of a restriction of this kind must take into account the circumstances of the case, and the ruling is reviewable for abuse of discretion.

Our initial concern is that the exclusion of expert witnesses came after the trial was under way, without fair notice. As this court has said:

[A]ny limitation placed on the number of witnesses to be called should be imposed only after trial counsel has had fair and adequate warning, so that if the limitation imposed requires a reduction in the number of anticipated witnesses, counsel may have fair opportunity to select (within the limitation imposed) the witness or witnesses whom counsel wishes to call. For the court to arbitrarily and without any advance notice terminate the right to call an additional expert witness is an abuse of discretion when, as in this case, it is made to appear that counsel had every reasonable expectation of calling such additional expert witness, the anticipated testimony is not merely cumulative, and the witness would have testified but for the unfore-warned limitations precluding the party’s right to call further witnesses.

Fogel v. Mirmelli, 413 So.2d 1204, 1208 (Fla. 3d DCA 1982); see also Pascual v. Dozier, 771 So.2d 552, 554-55 (Fla. 3d DCA 2000); C.E. Huffman Trucking, Inc. v. Red Cedar Corp., 723 So.2d 296, 298 (Fla. 2d DCA 1998).

In this case Dr. Colado, the plaintiffs’ treating general practitioner, testified at trial. Dr. Colado had referred the plaintiffs to a number of specialists, including a neurologist and orthopedic surgeon. The specialists provided their reports to Dr. Colado. Dr. Colado testified about the course of treatment and assigned permanent partial impairment ratings to each plaintiff.

As we view the matter, Dr. Colado based his medical opinion in part on the reports of other experts. Further, through his testimony the substance of the expert reports was placed before the jury. Clearly the opposing side must have a fair opportunity to controvert the specialist evidence.

Furthermore, when the defendant’s lone expert testified, he explained that he could only testify from a neurological point of view. He stated that an independent orthopedic examination may be helpful in evaluating the plaintiffs’ continuing complaints of pain. The plaintiffs argued to the jury that the defense neurologist had acknowledged he could only testify about neurology and could not address the other areas of expertise presented by the plaintiff.

The plaintiffs argue that this district has established a black letter rule whereby the testimony offered by a treating practitioner is never considered for purposes of a one-expert-per-side limitation. We do not think the cases support so rigid an interpretation. In such cases as Carpenter v. Alonso, 587 So.2d 572 (Fla. 3d DCA 1991), and Maler v. Geraldi, 502 So.2d 973 (Fla. 3d DCA 1987), the limitations on medical experts were upheld in the circumstances there presented, but the circumstances are not set forth in the opinions. In Ryder Truck Rental, Inc. v. Perez, 715 So.2d 289 (Fla. 3d DCA 1998), the trial court had ruled that the defendant could not question the plaintiffs’ treating physicians without hiring the plaintiffs’ physicians to serve as the defense experts. Id. at 290-91. The ethical problem in such a procedure is obvious, and this court held that in those circumstances, the treating physicians did not count against the expert witness limitation. Id. at 291.

Where, as here, a treating general practitioner serves as a conduit to place specialist testimony before the jury, or offers medical opinions based on specialist reports, the defending parties must have a fair opportunity to respond by presenting opposing expert testimony.

III.

Since there must be a new trial, we address the directed verdict issue. We agree with the defendant that the wording of the directed verdict may have misled the jury. On remand, the problem can be avoided by using the language of the standard jury instructions.

The plaintiffs moved for a directed verdict on the issue of negligence. The trial court instructed the jury, over defense objection, as follows:

The court has also determined and now instructs you as a matter of law that there was negligence on the part of Lion Plumbing Supply, Inc. which was a legal cause of loss, injury or damage to Mr. and Mrs. Suarez.

(TR. 647).

While the defendant acknowledges that a directed verdict on the issue of negligence was appropriate, the defendant points out that the sharply contested issue at trial was whether the injuries claimed by the plaintiffs had, in fact, been caused by the collision. It was the defense position that while the plaintiffs suffered from a herniated disk, and bulging disk, respectively, that those resulted from degenerative changes in the body and had not been caused by the accident. The defense also maintained that some of the plaintiffs’ complaints were exaggerated or nonexistent.

On this appeal, the defense argues that the jury may have misunderstood the jury instruction to tell them that the defendant was responsible for all of the plaintiffs’ claims. It would appear that the correct resolution is provided by civil standard jury instruction 3.1(d), which states:

The court has determined and now instructs you, as a matter of law, that
d. directed verdict on liability:
(defendant) was negligent and that such negligence was a legal cause of [loss] [injury] [or] [damage] to (claimant). (Claimant) is therefore entitled to recover from (defendant) for such [loss] [injury] [or] [damage] as is shown by the greater weight of the evidence to have thus been caused.

Fla. Std. Jury Instr. (Civ.) 3.1(d) (emphasis in original).

V.

For the stated reasons, we reverse the judgment and remand for a new trial.

      . The defendant counterclaimed for comparative negligence, contending that the plaintiffs’ automobile stopped abruptly when the defendant had no reason to anticipate it. The jury found against the defendant on this issue.


text:
    Johnny BRADY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2529.
    District Court of Appeal of Florida, Third District.
    May 14, 2003.
    Johnny Brady, in proper person.
    Charles J. Crist, Jr. Attorney General, for appellee.
    Before SCHWARTZ, C.J., and FLETCHER, J., and NESBITT, Senior Judge.
   PER CURIAM.

Because the record does not refute appellant’s facially valid claim that he timely requested his attorney to file a post conviction motion, which his attorney failed to do, we reverse the trial court’s order denying his petition for writ of habeas corpus to file a belated Rule 3.850 motion. This case is remanded to the trial court for an evi-dentiary hearing on appellant’s petition.

Reversed and remanded.


author: SHAHOOD, J.

text:
    FLORIDA DEPARTMENT OF TRANSPORTATION, Appellant, v. Morris Joseph STEWART, Appellee.
    No. 4D02-1407.
    District Court of Appeal of Florida, Fourth District.
    May 14, 2003.
    Lee E. Muschott of Law Office of Lee E. Muschott, P.A., Fort Pierce, for appellant.

      Glenn M. Blake and Roy T. Mildner of Blake, Torres & Mildner, Fort Pierce, for appellee.
   SHAHOOD, J.

We affirm the denial of appellant’s, Florida Department of Transportation (DOT), motion for a new trial. However, we write to comment on the DOT’s argument that Owen v. Morrisey, 793 So.2d 1018 (Fla. 4th DCA 2001), review dismissed as improvidently granted, 831 So.2d 142 (Fla.2002), stands for the proposition that an inconsistent verdict can be raised as a basis in a motion for new trial after the jury has been discharged.

The DOT claims that the jury returned an inconsistent verdict on damages where the jury found that Stewart had not sustained any permanent loss of an important bodily function or permanent injury as a result of the accident, yet at the same time awarded damages for future medical expenses and lost income.

Appellee argues that the DOT’s claim for a new trial based on an inconsistent verdict was not preserved since the issue was not raised before the jury was discharged. We agree.

The DOT argues that in its motion for new trial, it claimed that the “verdict [was] inconsistent, contrary to the law and the evidence and contrary to the manifest weight of the evidence and should be reversed. See Owen v. Morrisey, 793 So.2d 1018 (Fla. 4th DCA 2001).” In relying upon Owen, the DOT argues that an inconsistent verdict can be raised for the first time in a motion for new trial after the jury has been discharged. We reject that notion. In Owen, appellant appealed a final judgment in favor of appellees maintaining that the jury’s verdict was inconsistent, excessive and contrary to the manifest weight of the evidence. See id. at 1018. This court held that the trial court abused its discretion in failing to grant a new trial on causation and damages where the verdict was inconsistent and excessive. See id. The court held that the verdict was inconsistent and excessive because the jury awarded Owen the future economic losses for medical expenses over his life expectancy of 30 years and earning ability over his working-life expectancy of 20 years without a finding that Owen sustained a permanent injury. See id. at 1023. No discussion was had as to when the trial court was apprised of the inconsistent verdict.

To preserve the issue of an inconsistent verdict, the party claiming inconsistency must raise the issue before the jury is discharged. If the trial court agrees, the trial court may reinstruct the jury and send it back for further deliberations. See Cocca v. Smith, 821 So.2d 328, 330 (Fla. 2d DCA 2002). This procedure allows the jury an opportunity to “correct” the inconsistency. See id. This procedure is in contrast to what is needed to challenge an inadequate verdict, which a party may raise for the first time in a post-trial motion. See id. This court has consistently held that a party’s failure to object or otherwise inform the court of an inconsistent verdict before the jury is dismissed waives the inconsistency in the verdict as a point on appeal. See Hendelman v. Lion Country Safari, Inc., 609 So.2d 766, 766-67 (Fla. 4th DCA 1992)(Dell, J., concurring specially), review dismissed, 618 So.2d 209 (Fla.1993). It follows that a party may not circumvent these cases by later arguing the verdict is inadequate or contrary to the manifest weight of the evidence. See id. at 767. It logically follows that most inconsistent verdicts, in some respect, would be either inadequate or contrary to the manifest weight of the evidence. See id.; see also C.G. Chase Constr. Co. v. Colon, 725 So.2d 1144, 1145 (Fla. 3d DCA 1998), review denied, 740 So.2d 527 (Fla.1999). However, where the thrust of DOT’s objection to the verdict was based on the inconsistency between an award for future economic damages and no finding of permanent injury, the DOT waived any error by not raising this issue before the jury was discharged.

AFFIRMED.

POLEN, C.J., and GUNTHER, J., concur.


text:
    Deidria J. DAVIS, Appellant, v. COMMUNITY TELEVISION FOUNDATION OF SOUTH FLORIDA WPBT and Florida Unemployment Appeals Commission, Appellees.
    No. 3D02-2751.
    District Court of Appeal of Florida, Third District.
    May 14, 2003.
    Deidria J. Davis, in proper person.
    John D. Maher (Tallahassee), for Unemployment Appeals Commission.
    Before SCHWARTZ, C.J., and FLETCHER, J., and NESBITT, Senior Judge.
   PER CURIAM.

The appellant has presented cogent evidence to this court that, contrary to the basis of the order dismissing the claimant’s appeal from the denial of benefits to the appeals commission, that appeal was not untimely. We deem it appropriate therefore to vacate the order of dismissal below and remand for an evidentiary hearing on this issue.


text:
    Winston L. JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-3231.
    District Court of Appeal of Florida, Third District.
    May 14, 2003.

      Winston L. Johnson, in proper person.
    Charles J. Crist, Jr., Attorney General, and Steven R. Parrish, Assistant Attorney General, for appellee.
    Before COPE, GREEN and RAMIREZ, JJ.
   On Rehearing Denied

PER CURIAM.

We conclude that Winston Johnson is not entitled to a hearing on his postconviction motion under McLin v. State, 827 So.2d 948 (Fla.2002).

Defendant-appellant Johnson was convicted of attempted second degree murder. He was charged with shooting a grocery store employee, Artis Walker (also known as Artis Harris). The evidence showed that prior to trial, the defendant attempted to get the victim to change his testimony. The defendant was convicted at a trial in which he was identified as the shooter by the victim as well as three witnesses: Nathaniel Blash (who was the intended victim), Benjamin McKinney, and Rabeeh Aviad.

The victim subsequently filed an affidavit which states in its entirety, “I Artis K. Harris have made a mistake also chose the wrong person who is Winston L. Johnson who is now in prison for a crime he did not commit. I was not pressured by anyone to change my plead.”

The defendant is not entitled to a hearing. All of the trial witnesses were individuals who knew the defendant and could readily identify him. The victim’s recantation affidavit in no way undercuts the testimony of the other witnesses who identified the defendant as the shooter.

Rehearing denied.


text:
    Jorge Luis LOPEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2455.
    District Court of Appeal of Florida, Third District.
    May 14, 2003.
    Bennett J. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr. Attorney General, and Richard L. Polin, Senior Assistant Attorney General, and Brian J. O’Toole, Certified Legal Intern, for appellee.
    Before SCHWARTZ, C.J., and GERSTEN, and WELLS, JJ.
   PER CURIAM.

Affirmed. See State v. Freber, 366 So.2d 426 (Fla.1978); Allen v. State, 789 So.2d 1154 (Fla. 3rd DCA 2001); Stanford v. State, 576 So.2d 737 (Fla. 4th DCA 1991).


text:
    Darwin WARD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-358.
    District Court of Appeal of Florida, Third District.
    May 14, 2003.

      Kenneth P. Speiller, for appellant.
    Charles J. Crist, Jr., Attorney General, and Jill K. Traína, Assistant Attorney General, for appellee.
    Before SCHWARTZ , C.J., and LEVY and GERSTEN, JJ.

       Chief Judge Schwartz did not hear oral argument.

   PER CURIAM.

Defendant appeals from a judgment of conviction and sentence for sale of cocaine. We affirm, as the errors alleged are not fundamental and no timely objections were made during the proceedings. This affir-mance is without prejudice to defendant fifing motions for postconviction relief.


text:
    Archie L. ANDERSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1383.
    District Court of Appeal of Florida, Third District.
    May 14, 2003.
    Archie Lee Anderson, in proper person.
    Charles J. Crist, Jr., Attorney General, and John D. Barker, Assistant Attorney General, for appellee.
    Before GODERICH, GREEN, and FLETCHER, JJ.
   ON MOTION FOR REHEARING

PER CURIAM.

We deny the defendant’s motion for rehearing. We have thoroughly reviewed the record below, including the trial court’s comprehensive order considering the issues defendant raised in his motion for postconviction relief pursuant to rule 3.850, Florida Rules of Criminal Procedure. We find no reversible error.


text:
    Timothy TAYLOR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1550.
    District Court of Appeal of Florida, Third District.
    May 14, 2003.
    Timothy Taylor, in proper person.
    Charles J. Crist, Jr., Attorney General, and John Barker, Assistant Attorney General, for appellee.
    Before SCHWARTZ , C.J., COPE, and LEVY, JJ.

       Chief Judge Schwartz did not hear oral argument.

   On Motion for Rehearing Granted

PER CURIAM.

We grant defendant’s motion for rehearing, reverse in part the order denying his motion for postconviction relief, and remand this matter to the trial court for an evidentiary hearing on points two and five of defendant’s motion. See McLin v. State, 827 So.2d 948 (Fla.2002) (holding that where no evidentiary hearing on ineffective assistance of counsel is held below, appellate court must accept defendant’s factual allegations to the extent they are not refuted by the record). We affirm the trial court’s order as to the remaining issues raised.

Affirmed in part; reversed in part; remanded for an evidentiary hearing.


text:
    Oscar J. RODRIGUES, Appellant, v. Celso CASSIANO, Appellee.
    No. 3D02-2383.
    District Court of Appeal of Florida, Third District.
    May 14, 2003.
    A. Margaret Hesford, Margate, for appellant.
    Arthur J. Morburger, Miami, for appel-lee.
    Before SCHWARTZ, C.J., and FLETCHER, J., and NESBITT, Senior Judge.
   PER CURIAM.

Affirmed. See Mangus v. Present, 135 So.2d 417, 419 (Fla.1961)(either a benefit or advantage to the promisor, or detriment or inconvenience to the promisee, is legal consideration for a contract); 11 Fla. Jur 2d Contracts § 88, Benefit or Detriment (2003).


text:
    R.A., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-3147.
    District Court of Appeal of Florida, Fourth District.
    May 14, 2003.
    Carey Haughwout, Public Defender, and Louis G. Carres, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Zachary v. State, 269 So.2d 669 (Fla.1972); Wilton v. State, 455 So.2d 1142 (Fla. 2d DCA 1984).

KLEIN, SHAHOOD and GROSS, JJ, concur.


text:
    Tommie E. CARTER, Appellant, v. Lark THOMAS, Appellee.
    No. 3D02-2819.
    District Court of Appeal of Florida, Third District.
    May 14, 2003.
    Tommie E. Carter, in proper person.
    Charles J. Crist, Jr., Attorney General, and Toni C. Bernstein and William H. Branch (Tallahassee), Assistant Attorneys General, for appellee.
    Before SCHWARTZ, C.J., and ■ FLETCHER, J., and NESBITT, Senior Judge.
   PER CURIAM.

Affirmed. Fla. Dept. of Revenue v. Edden, 761 So.2d 436 (Fla. 3d DCA 2000).


text:
    The STATE of Florida, Appellant, v. Rafael RIVERA, Appellee.
    No. 3D02-2960.
    District Court of Appeal of Florida, Third District.
    May 14, 2003.
    Charles J. Crist, Jr., Attorney General and John D. Barker, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender and Harvey J. Sepler, Assistant Public Defender, for appellee.
    Before SCHWARTZ, C.J., and FLETCHER, J., and NESBITT, Senior Judge.
   PER CURIAM.

Affirmed. See State v. Henriquez, 717 So.2d 1087 (Fla. 3d DCA 1998); State v. Woods, 783 So.2d 361 (Fla. 3d DCA 2001).


author: NESBITT, Senior Judge.

text:
    Carlos HOYOS, Appellant, v. WAL-MART ASSOCIATES INC., and Florida Unemployment Appeals Commission, Appellees.
    No. 3D02-2967.
    District Court of Appeal of Florida, Third District.
    May 14, 2003.

      Carlos Hoyos, in proper person.
    John D. Maher (Tallahassee), for appel-lee Commission.
    Before SCHWARTZ, C.J., and FLETCHER, J., and NESBITT, Senior Judge.
   NESBITT, Senior Judge.

A former Wal-Mart employee appeals a Florida Unemployment Appeals Commission affirmance of an appeals referee’s determination that claimant had been discharged for “misconduct” connected with work by reason of excessive absenteeism. We reverse because the record shows the appeals referee’s determination is not supported by competent substantial evidence, and the employer did not carry its burden of proving misconduct.

After the employee’s termination, the claims and benefits adjuster originally determined that:

The claimant was discharged for absenteeism, which was due to circumstances beyond the claimant’s control. In accordance with section 443, Florida Statutes, benefits are payable because the discharge was for reasons other than misconduct connected with the work.

The employer, Wal-Mart, through its agent, the Frick Company, appealed this initial determination, triggering a telephone hearing conducted by an appeal’s referee.

The employee, Mr. Hoyos, testified that he broke his big toe which caused the toenail to fall off, and that the toenail which grew back was an in-grown toenail, causing him considerable pain and lasting for several months. It was uncontroverted that the employee’s painful broken toe and recurring ingrown toenail, which twice had to be removed, led to the employee being unable to perform his duties on a number of days over a period of months.

In reviewing the appeals referee’s finding of misconduct we are guided by Mason v. Load King Mfg. Co., 758 So.2d 649, 654-55 (Fla.2000):

In order to prove misconduct under Tallahassee Housing Authority, era- ployers have the burden of demonstrating both excessiveness and mlfulness in the employees actions. The term “unauthorized” implicitly connotes an element of mlfulness because it means that the absences were unexcused and without permission of the employer. By “unauthorized absences,” we are generally referring to those absences where the employee has wilfully chosen to violate her fundamental obligation to an employer to come to work and carry out her assigned duties, (emphasis added).

Our review of the record shows that, while there were certainly a large number of absences, they were largely excused or ignored.

[BJefore an award of unemployment benefits can be denied, the employer must prove misconduct by satisfying the heavy burden of proving “excessive unauthorized absenteeism.”

Mason v. Load King Mfg. Co., supra, at 656. Because the employer did not meet its “heavy burden” on the issue of wilfulness and there was no competent substantial evidence to support the finding of “misconduct,” we must reverse. Randy International, Ltd. v. American Excess Corp., 501 So.2d 667 (Fla. 3d DCA 1987)(If lower tribunal’s decision is not supported by competent substantial evidence it becomes duty of District Court of Appeal to reverse).

First, the appeal’s referee made no effort to determine whether Mr. Hoyos’ absences were approved or unapproved. The employee’s testimony that he had consistently advised the employer in advance he would be absent due to medical reasons was not controverted other than as to one specific date. Other than the one date identified on which the employee failed to call in an absence, there is nothing in the record disputing the employee’s testimony that all of his absences were called in, in advance, and were the result of his medical problems.

[T]o prove “excessive unauthorized absenteeism,” an employer must prove more than one act.

Mason v. Load King Mfg. Co., supra, at 654. The employee handbook introduced below specifically lists absences due to medical emergencies as “approved absences.”

Next, the appeals referee’s finding that the employee received two written warnings for unapproved absences is incorrect and flatly contradicted by the record. While one entry in the employee’s personnel file does specify a single date on which there was an absence with no advance notification, the other purported written warning for excessive absences was in fact for socializing with co-workers and returning back late from lunch on one occasion, matters which were not claimed to be either “misconduct” or the reason for the employee’s termination.

Tellingly, in the exit interview signed by the facility manager Lamar Thomas, when the employee was terminated, Mr. Thomas recommended that he be re-hired. The record supports the original determination that the claimant was discharged for absenteeism which was due to circumstances beyond his control, and does not support the finding of misconduct.

[A]wards determinations must be made against the backdrop that the remedial aspect of the unemployment compensation statutory scheme requires a liberal construction in favor of awarding benefits. See St. Joe Paper Co. v. Gautreaux, 180 So.2d 668 (Fla. 1st DCA 1965). The denial of unemployment benefits is a very serious consequence with very serious repercussions for employees, adopted by the Legislature only to deter misconduct in the employment context. As such, awards determinations under this statutory scheme should not be taken lightly and should not be made via a mere technical and formalistic procedure.

Mason v. Load King Mfg. Co., supra, at 655. Accordingly, we reverse the order of the Unemployment Appeals Commission and direct that the original determination of the claims and benefits adjuster be reinstated.

      . Instead of determining whether the absences were unauthorized, or whether the employee had given advance notice, the appeals referee simply asked whether the absences were "scheduled” or "unscheduled,” an inquiry which does not shed light on the issue of misconduct:
      REFEREE: Now these absences were they scheduled or unscheduled?
      EMPLOYER: Unscheduled, that’s why they were absences.
      REFEREE: They were what?
      EMPLOYER: They were scheduled, unscheduled; he was scheduled to work them.
      REFEREE: So but he, unscheduled absences and absences, oh never mind. The fact is that he was supposed to work on these particular days?
      EMPLOYER: That is correct.


text:
    PARK A PARTNERS, LTD., East Brickell Associates, et al., Appellants, v. The CITY OF MIAMI, etc., et al., Appellees.
    No. 3D02-3235.
    District Court of Appeal of Florida, Third District.
    May 14, 2003.
    Stearns Weaver Miller Weissler Alha-deff & Sitterson and Patrick A. Barry, Fort Lauderdale, and Joseph Cartolano, for appellants.
    Weiss Serota Helfman Pastoriza & Gue-des and Joseph H. Serota and Edward G. Guedes, Miami, for The City of Miami; Alejandro Vilarello, City Attorney, and Maria J. Chiaro, Assistant City Attorney, for The City of Miami; Robert A. Ginsburg, County Attorney and Jess McCarty, Assistant County Attorney for Miami-Dade County and Laureen Varga; Korge & Korge and Thomas J. Korge and Christopher G. Korge, Miami, for Patrick McGrath III; Boies, Schiller & Flexner, Fort Lauderdale, and Mark J. Heise, Miami, for Patrick McGrath III.
    Before LEVY and RAMIREZ, JJ., and NESBITT, Senior Judge.
   NESBITT, Senior Judge.

Following invalidation of Section 218.503, Florida Statutes (1999), in McGrath v. City of Miami, 789 So.2d 1168 (Fla. 3d DCA 2001) affirmed 824 So.2d 143 (Fla.2002), the matter was remanded to the trial court with directions for it to consider the effect of Florida legislative action relating to the amendment of the statute in 2001.

Without notice to, or the knowledge of, present appellants (who are parking garage operators) the remaining parties entered into a joint stipulation and presented it ex parte to the trial judge, representing that it completely and totally settled all matters in the pending class litigation except with respect to a final “fairness” hearing. On October 23, 2002, the trial court entered an order preliminarily approving the settlement, certifying the class for purposes of the settlement (using a narrowed definition of the class from that contained in the pleadings, which narrowed definition excluded appellants) and scheduling a fairness hearing. Prior to that, appellants had filed an appearance and motions to intervene, to consolidate, and determine whether the action was maintainable as a class action (under the original class definition which arguably included appellants). Those matters had been duly noticed by appellants to be heard on October 24, 2002. On October 24, 2002, the trial court denied the plaintifPappellants motion to intervene in the class action. The plaintiff/appellants appeal both orders.

On appeal the appellees argue that appellants are not members of the class as defined either in the amended complaint or settlement agreement. In plain words they argue that the appellants have virtually no interest in the matter. Appellants argue convincingly that subsections (a) and (b) of section 202 of the Parking Surcharge Regulation (the ordinance which implemented the statute) provide in part that “[a] Surcharge is imposed upon each User entering into a parking transaction” and that “[a]ny Operator required under Article IX to collect the Surcharge and who fails to do so shall be liable for the Surcharge upon the full consideration received from the User” and that section 101(r) of the Regulation defines “Surcharge Payer” as “either the Operator or User.” Thus, appellees argument that the tax is imposed solely upon “Users” fails. It has long been the rule that the appropriateness of intervention is evaluated by whether the inter-venor will either gain or lose by the direct legal operation and effect of the judgment. Union Central Life, Ins. Co. v. Carlisle, 593 So.2d 505 (Fla.1992); Morgareidge v. Howey, 75 Fla. 234, 78 So. 14 (1918).

Consequently, it is apparent that appellants should have been permitted to intervene and have an opportunity to participate in the merits of the class action. The order entered October 23, 2002 was void for lack of notice or an opportunity for the appellants to respond. Accordingly, we reverse both orders with directions to implement the Florida Supreme Court mandate.

It is so ordered.


author: FLETCHER, Judge.

text:
    Luis R. CASTRO and Ofelia Castro, Petitioners, v. MIAMI-DADE COUNTY CODE ENFORCEMENT, County Clerk Division, Respondent.
    No. 3D03-92.
    District Court of Appeal of Florida, Third District.
    May 14, 2003.
    Richard L. Lapidus, Miami, for petitioners.
    Robert A. Ginsburg, County Attorney, and Rashmi Helen Airan, Assistant County Attorney, for respondent.
    Before LEVY, FLETCHER, and SHEVIN, JJ.
   FLETCHER, Judge.

Luis R. Castro and Ofelia Castro seek certiorari review of a circuit court, appellate division, decision upholding a Miami-Dade County hearing officer’s finding of a code violation. We have concluded that the circuit court failed to apply the correct law and thus we quash the decision of that court.

Luis Castro, a member of the Coast Guard Auxiliary, and Ofelia Castro were ticketed for “storing” their boat illegally by parking it in front of their house on two separate days (December 15 and December 21, 2001). The record reflects that the location where the boat is normally kept is at the Coast Guard facility. On the two days here involved, however, the boat was parked in front of the Castros’ home so as to be available for Luis Castro to rapidly deploy on Coast Guard orders.

The county code provision which the Castros were accused of violating, Section 33-20(e)(l), allows boat storage in residential areas, limiting such storage to a location to the rear of the front budding line of residential structures:

“(e) Boat storage. Boats of less than twenty-six (26) feet in length, not more than ninety-six (96) inches in width and thirteen (13) feet six (6) inches in height, may be stored in the RU, EU, AU and GU zoning districts subject to the following conditions:
(1) the place of storage shall be to the rear of the front building line.... ”

The county contends that on December 15 and December 21, 2001 the boat was “stored” in front of the front building line of the Castros’ house. The Castros admit that the boat was (for the two nights in question) parked in front of the front building line, but not “stored” or “in storage.” We conclude that the Castros’ contention is the correct one.

The county code contains no definition of “stored” or “in storage,” at least not for section 33 — 20(e)(1), thus the words used therein are to be given their plain and ordinary meaning. State Farm Mut. Automobile Ins. Co. v. West Gables Open MRI Servs., 846 So.2d 538, 2003 WL 729147 (Fla. 3d DCA March 5, 2003); Specialty Restaurants Corp. v. City of Miami, 501 So.2d 101 (Fla. 3d DCA 1987). One looks to the dictionary for the plain and ordinary meaning of words. Specialty Restaurants Corp. v. City of Miami; City of Miami Beach v. Royal Castle System, Inc., 126 So.2d 595 (Fla. 3d DCA 1961).

Turning to the American Heritage Dictionary (1979) one finds “store” defined relevantly as “to reserve or put away for future use,” while “storage” is defined as “the act of storing goods, as in a warehouse for safekeeping.” Section 33-20(e)(1) of the county code thus contemplates a placing away of boats for a considerable period, and not for a brief placement. This conclusion is reinforced by the Second District Court’s opinion in International Ins. Co. v. Mason, 442 So.2d 379 (Fla. 2d DCA 1983), that “stored” and “storage” contemplate a certain degree of permanency. International cites as persuasive State v. Breidenbach, 5 Ohio App.2d 52, 213 N.E.2d 745 (1964) and Williams v. Grier, 196 Ga. 327, 26 S.E.2d 698 (1943). In Breidenbach the Ohio Court of Appeals, in reviewing a county zoning resolution, stated (at 746) “we observe in passing that storage of automobiles indicates a certain degree of permanency, while the term ‘parking’ connotes transience.” In Williams v. Grier, the Georgia Supreme Court concluded that “parking” does not equate to “storing.”

It is our conclusion that the Castros’ boat was not stored, or in storage, but rather parked on the dates in question. The circuit court thus failed to apply the correct law, i.e., the plain meaning rule. Accordingly we grant the petition for writ of certiorari. The decision of the circuit court is quashed with instructions to quash the decision of the county hearing officer.

Petition granted; decision quashed, with instructions.

      . See Jesus Fellowship, Inc. v. Miami-Dade County, 752 So.2d 708 (Fla. 3d DCA 2000); Herrera v. City of Miami, 600 So.2d 561 (Fla. 3d DCA), rev. denied, 613 So.2d 2 (Fla.1992).

      . Other than on August 15, 2001, for which date a warning was issued, and on December 15 and 21, 2001, the record is devoid of any evidence that the Castros’ boat was parked in front of their house.


text:
    Armen MELKONIAN and Diana Melkonian, Appellants, v. BROWARD COUNTY BOARD OF COUNTY COMMISSIONERS, Appellee.
    No. 4D02-800.
    District Court of Appeal of Florida, Fourth District.
    May 14, 2003.

      Barbara J. Compiani of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach and Theodore L. DiSalvo of Kogan & DiSalvo, P.A., Boca Raton, for appellants.
    Edward A. Dion, County Attorney for Broward County, Andrew J. Meyers, Chief Appellate Counsel, and Tamara M. Scrud-ders, Assistant County Attorney, Fort Lauderdale, for appellee.
   SHAHOOD, J.

The sole issue presented in this appeal is whether the trial court improperly provided the jury with instructions which were confusing, misleading, and inaccurate, thereby resulting in prejudice to appellants. We agree with appellants and reverse and remand for a new trial.

Appellants, Armen and Diana Melkoni-an, filed a negligence action against the Broward County Board of County Commissioners for damages resulting from injuries sustained in a slip and fall by Mr. Melkonian at the North Regional Broward County Courthouse on November 15, 1996. Appellants alleged that while on his way to the Department of Motor Vehicles at the courthouse, Melkonian slipped and fell on water which had accumulated on the tile floor near the entrance way.

During appellants’ case, counsel raised an issue as to the appropriateness of the jury instructions in light of the recent decision in Owens v. Publix Supermarkets, Inc., 802 So.2d 315 (Fla.2001), released shortly before trial.

Prior to Owens, Florida courts required that in slip-and-fall cases concerning a transitory foreign substance, the injured person had to prove that the premises owner had actual or constructive knowledge of the dangerous condition in that the condition existed for such a length of time that in the exercise of ordinary care, the premises owner should have known of it and taken action to remedy it. See id. at 320.

In Owens, the Florida Supreme Court reexamined that practice and decided to eliminate the plaintiffs burden to prove that the business owner had actual or constructive notice of the substance. The court, in its opening paragraph, held that “[f]or the reasons that follow, we hold that where a plaintiff slips and falls on a transitory foreign substance in a defendant’s business premises, once the plaintiff establishes' that he or she fell as a result of that transitory foreign substance, the burden shifts to the defendant to produce evidence that it exercised reasonable care under the circumstances.” Id. at 317. In a footnote, the court defined “transitory foreign substance” as follows: “we refer generally to any liquid or solid substance, item or object located where it does not belong.” Id. at 317 n. 1.

Following an in-depth analysis regarding slip-and-fall cases involving transitory foreign substances, the Owens court presented its full holding:

Accordingly, we adopt the following holding to be applied to slip-and-fall cases in business premises involving transitory foreign substances. We hold that the existence of a foreign substance on the floor of a business premises that causes a customer to fall and be injured is not a safe condition and the existence of that unsafe condition creates a rebut-table presumption that the premises owner did not maintain the premises in a reasonably safe condition.
Thus, once the plaintiff establishes that he or she fell as a result of a transitory foreign substance, a rebutta-ble presumption of negligence arises. At that point, the burden shifts to the defendant to show by the greater weight of the evidence that it exercised reasonable care in the maintenance of the premises under the circumstances.

802 So.2d at 331.

The trial court stated that in its opinion, Owens dealt “with foreign substances that have been on the floor; you know, bananas, banana peels, lettuce leaves. Rainwater is not a foreign substance, the ilk of which they’re discussing, natural rain water is not the kind of cases they’re talking about.” Appellants’ counsel pointed out the Owens court’s footnote defining foreign transitory substances, but the trial court would not retract its opinion.

The trial court stated that it would give an instruction “parallel” to the abbreviated holding at the beginning of the Owens decision but declined to consider the elaborated holding at the close of the decision.

At the close of appellants’ case, both appellants and the County presented special instructions and objected when the trial court indicated that although it did not believe that an Owens instruction was appropriate, it was going to follow the holding at the beginning of the Owens decision. The court chose to write out the instruction as follows:

All right, here’s the instructions I’m going to give: If the plaintiff proves from the greater weight of the evidence that he slipped and/or fell as a result of the transitory foreign substance while in or around the defendant’s premises, then the testimony [sic] must produce evidence that it exercised reasonable care under the circumstances, translating the word establishes in the holding in this opinion to mean prove by the greater weight of the evidence.
That’s the most reasonable interpretation I can give it. So and I will slip that in.

Both parties objected to this instruction.

Appellants’ counsel then inquired whether, in light of the special instruction, standard jury instruction 3.5 was necessary. The court disagreed with appellants’ counsel’s argument that Owens removed the burden of a plaintiff to show that a defendant knew or should have known of the condition, and had established constructive knowledge of its existence. Appellants objected to the inclusion of jury instruction 3.5.

Standard jury instruction 3.5(f) provided as follows:

The issues for your determination on the claim of ARMEN MELKONIAN and DIANA MELKONIAN is whether BROWARD COUNTY negligently failed to maintain its premises in a reasonably safe condition, or negligently failed to correct a dangerous condition of which BROWARD COUNTY either knew or should have known by the use of reasonable care, or negligently failed to warn ARMEN MELKONIAN of a dangerous condition concerning which BROWARD had, or should have had, knowledge greater than that of ARMEN MELKO-NIAN, and whether or not the negligence of the Defendant was the legal cause of any loss, injury or damage to either or both of the Plaintiffs.

As a result, the court instructed the jury with a “parallel” Owens instruction and a paraphrased standard jury instruction 3.5(f), which stated in relevant part, as follows:

Now the issues for your determination in this case on the claim of the plaintiffs is whether or not Broward County was negligent. Now on the premises liabilities causes there is three different ways you can be negligent under the law. So the claim of plaintiffs is that they were negligent and they either negligently failed to maintain the premises in a reasonably safe condition or negligently failed to correct a dangerous condition of which Broward County either knew or should have known by the use of reasonable care or negligently failed to warn the plaintiff of a dangerous condition which Broward County knew or should have had knowledge of greater than the defendant.
Everybody understand what I mean? The claim is they were negligent. There is three possible ways to be negligent, failure to maintain, failure to correct and failure to warn. And the other issues are explained on the first question of the verdict form. If you find Bro-ward County was negligent, then you decide whether or not their negligence was the legal cause of any loss, injury, damage by the plaintiffs.
Also under our law if the plaintiff proves by the greater weight of the evidence that he slipped and/or fell as a result of a transitory foreign substance while in or on the defendant premises, then the defendant must show by the greater weight of the evidence that it exercised reasonable care under the circumstances in the maintenance of the premises.

After a two-day trial, the jury returned a verdict of no negligence on the part of Broward County. Appellants moved for a new trial claiming that the trial court erred in refusing to instruct the jury with their requested special instruction which conformed to the recent Florida Supreme Court decision in Owens v. Publix Supermarkets, Inc., 802 So.2d 315 (Fla.2001), and instead used a modified instruction which did not conform to the holding in Owens. Further, appellants claimed that despite their objection, the court’s inclusion of standard jury instruction 3.5(f), in light of Owens, was confusing to the jurors as to which standard they should apply. The trial court denied the motion for new trial.

Following the issuance of the Owens decision and during the pendency of this appeal, the Florida Legislature, in response to Owens ’ discussion regarding the burden of proof in slip-and-fall cases, enacted section 768.0710, Florida Statutes (2002), effective May 30, 2002. See Ch.2002-285, § 2, Laws of Fla. The Legislature specifically stated that the act shall take effect May 30, 2002 and shall apply to all causes of action pending on or after that date. See id. As a result, Owens, may have been abrogated to some extent by section 768.0710.

On appeal, appellants argue that the above instructions were confusing, misleading and inaccurate, resulting in prejudice to appellants. Further, they claim that the instructions given by the trial court were neither in accordance with Owens nor with the subsequently enacted, but applicable, section 768.0710. We agree with appellant’s position that the instructions given were not in accordance with Owens and were confusing, misleading and inaccurate.

It is quite clear that the instructions given in this case to the jury not only failed to conform to the holding set forth in Owens, but also created confusion with the inclusion of instruction 3.5(f) coupled with the court’s own version of an Owens instruction. Accordingly, a new trial is warranted.

REVERSED AND REMANDED FOR A NEW TRIAL.

TAYLOR, J., and FLEET, J. LEONARD, Associate Judge, concur.

      . Owens was issued on November 15, 2001 and trial took place December 3 and 4, 2001.

      . We decline to address the applicability of the recent enacted section 768.0710. As we held in Silvers v. Wal-Mart Stores, Inc., 826 So.2d 513, 514 n. 1 (Fla. 4th DCA 2002),
      We are not deciding if section 768.0710, in which the Legislature addressed the burden of proof in slip and fall cases, in response to Owens, can be applied retroactively to this accident. The statute provides that it applies to all pending cases; however, it may not be that simple. As our supreme court explained in State Farm Mutual Automobile Insurance Co. v. Laforet, 658 So.2d 55, 61 (Fla.1995):
      The general rule is that a substantive statute will not operate retrospectively absent clear legislative intent to the contrary, but that a procedural or remedial statute is to operate retrospectively. Even when the Legislature does expressly state that a statute is to have retroactive application, the Court has refused to apply a statute retroactively if the statute impairs vested rights, creates new obligations, or imposes new penalties, [citations omitted.]


author: WARNER, J.

text:
    Bernard L. FRIEDMAN, Appellant, v. Terry S. FRIEDMAN, Appellee.
    No. 4D02-1937.
    District Court of Appeal of Florida, Fourth District.
    May 14, 2003.

      Jeffrey D. Fisher of Fisher & Bendeck, P.A., and Philip M. Burlington of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, for appellant.
    Denise S. Calegan-Desmond of Joel M. Weissman, P.A. and Doreen M. Yaffa, P.A., West Palm Beach, for appellee.
   WARNER, J.

In the trial court’s award for temporary relief in this dissolution action, it ordered the husband to pay $100,000 within a month and $50,000 a month thereafter but failed to designate whether the money was for attorney’s fees, costs, temporary support, or equitable distribution. The husband contends the court erred in its award because the undifferentiated amount bears no relationship to the wife’s needs, the husband’s ability to pay, and relies on trust assets where the trust is not a party to the suit. We agree and reverse.

The husband and wife have been married for forty years. The wife, age 76, suffers from various physical ailments for which the husband has always paid the medical expenses. The husband, age 79, has been the sole supporter for the family. His assets consist of stock in Analogic Corporation, the marital home in Palm Beach, and a trust containing approximately $10,000,000 in assets. The trust provides for the husband, the wife, the husband’s sister, and the wife’s mentally ill son. The husband testified that he did not believe he had the power to revoke the trust’s current trustee, and all the trustee’s decisions required the consideration of the needs and interests of all the beneficiaries. Despite this testimony, the trustee was not made a party to the dissolution proceeding.

The wife moved for an order of temporary support and attorney’s fees. The wife’s accountant testified that the wife’s expenses amount to $22,500 per month, which includes household expenses that the husband currently pays. The wife would need an additional $11,000 per month if the husband continues to pay the household expenses. Included in the $11,000 figure is $1,500 to support her mentally ill son, who is currently being supported by the trust.

Due to the complications surrounding the trust, the parties significantly disputed the husband’s income. While the wife’s accountant testified that the husband nets about $44,000 per month, the husband’s expert testified that the husband’s monthly net income is actually $19,000. Moreover, according to his accountant, after paying both parties’ expenses, the husband has a monthly deficit of $7,000.

As to the wife’s motion for attorney’s fees, her attorney testified that he had expended $127,000 in attorney’s fees to date and requested approximately $500,000 in additional attorney’s fees pendente lite. In rebuttal, the husband’s attorney testified the entire expenses for the case should total only one quarter of that amount.

In granting temporary relief, the trial court awarded the wife the exclusive possession of the marital home and required the husband to pay all of the household expenses as well as the wife’s medical expenses. The court ordered a direct payment of $100,000 followed by payments of $50,000 per month. The court stated:

And I think that Mr. Friedman should cough up $100,000 no later than May 10th. I make no determination whatsoever at this time whether those are fees, costs, supports or advance (sic) against equitable distribution. That will be determined at a later time. And at the 10th of each month thereafter he should fund another $50,000. The wife has complete discretion as to how she spends that money. Whether she spends it on accountants, lawyers or clothes or jewelry, whatever she wants, we will decide how to designate it at the end.

From this order the husband appeals.

While unallocated support awards of alimony and child support have been approved in special circumstances, see, e.g., Pastore v. Pastore, 497 So.2d 635, 637 (Fla.1986) (awarding unallocated child support and alimony award consisting of house payment, taxes, and insurance;) McKelvey v. McKelvey, 534 So.2d 801, 801 (Fla. 3d DCA 1988) (awarding undifferentiated temporary alimony and support of $10,000 per month), a support award must still be governed by the wife’s needs as established by the parties’ standard of living during the marriage and the husband’s ability to pay. See Wenzel v. Wenzel, 512 So.2d 275, 275 (Fla. 4th DCA 1987) (citations omitted). We have never approved a temporary award where an undifferentiated amount was allowed to both support the spouse and compensate the spouse’s attorney.

The wife’s needs, as testified to by her own accountant, would be at most around $11,000 per month, including the household and medical expenses paid for by the husband. Therefore, the trial court’s suggestion that the remaining $39,000 might be spent on additional clothes or jewelry shows that the $50,000 monthly amount had no relation to the wife’s needs as determined from the marital standard of living. It is similar to the award we disapproved of in Couples v. Couples, 623 So.2d 585, 586 (Fla. 4th DCA 1993), of an additional $25,000 per month in monies to the wife to spend “however she desires.”

The wife contends that the court intended any remaining funds be used to pay her attorney’s fees. However, the trial court did not require that the money be paid to the attorney. If the court intended to award attorney’s fees as part of the $50,000 it should have determined the amount. Without such a determination, the husband cannot challenge the reasonableness of the amount. Moreover, without determining the amount of the award allocable to attorney’s fees, the tax consequences of the award cannot be determined.

An award of support, or attorney’s fees, also must consider the paying spouse’s ability to pay. See Belcher v. Belcher, 271 So.2d 7, 11 (Fla.1972). Here, the wife’s accountant testified that the husband has a net monthly income of $44,000. This amount would not cover the $50,000 per month the husband is ordered to pay, plus the household and medical expenses he also is obligated to pay. The court made no findings as to the husband’s income or his ability to pay these amounts.

From the comments at the hearing, we assume that the trial court considered the trust as the source from which the husband could pay any award. However, there was no evidence that the trustee had any obligation to pay these awards on behalf of the husband. A trustee has the duty to administer a trust diligently for the benefit of the beneficiaries. See § 737.301, Fla. Stat. (1995). Although the trustee of the trust in the instant appeal has absolute discretion to pay out income and principal to the beneficiaries, he still must exercise good faith and be judicious in the administration of the trust. See Mesler v. Holly, 318 So.2d 530, 533 (Fla. 2d DCA 1975). A trustee must deal impartially with the trust beneficiaries, i.e., treat them even-handedly and act in the interest of the trust as a whole. See Morse v. Stanley, 732 F.2d 1139, 1145 (2d Cir.1984) (citations omitted). Because there is no evidence of an obligation to pay these support amounts from the trust, and the trustee is not a party to the action so that the court might compel payments, the trial court erred in relying on the trust assets when determining the husband’s ability to pay the monthly sums ordered.

For these reasons, we reverse the order of the trial court and remand for further proceedings.

GUNTHER, J., and HARNAGE, HENRY H., Associate Judge, concur.


author: STERN, KENNETH D., Associate Judge.

text:
    Nicholas PASSALACQUA, individually, Matt Sechter, individually, E-mail Analytics.Com, Inc., a Florida corporation, Appellants, v. NAVIANT, INC., a Florida corporation, f/k/a E-Direct, Inc., Appellee.
    No. 4D02-2285.
    District Court of Appeal of Florida, Fourth District.
    May 14, 2003.

      Clifford J. Hunt of Law Office of Clifford J. Hunt, P.A., Clearwater, for appellants.
    P. Benjamin Zuckerman of Ritter Chu-sid Bivona & Cohen, LLP, Boca Raton, for appellee.
   STERN, KENNETH D., Associate Judge.

This is an appeal from a non-final order of the circuit court, granting a temporary injunction to enforce a non-compete agreement. For the reasons set forth below, we reverse and remand.

Background

Appellants, Nicholas Passalacqua (“Pas-salacqua”) and Matt Sechter (“Sechter”), had both known each other in their prior vocation as telemarketing “cold callers,” making unsolicited sales calls to sell securities. Both had held various jobs, always in the securities industry.

Appellee, Naviant, Inc. (“Naviant”), was founded in 1999 by one Scott Hirsch (“Hirsch”). The company is one of scores of businesses that provide “opt-in e-mail marketing services,” which in essence involve offering to other companies services for marketing their products and services on the Internet. It is undisputed that Naviant has become a very large company, highly significant, if not dominant, among a large number of such companies.

This case essentially involves a dispute between Naviant’s claim that its quick rise to prominence is due to its unique concepts and techniques, and Appellants’ claim that Naviant’s rise is due solely to its aggressive, high volume marketing, without the use of any novel ideas or methods.

Passalacqua applied for a job with Navi-ant, using as a reference Sechter, who was not then known to Naviant. Upon being hired by Naviant, Passalacqua signed a non-compete agreement. Passalacqua was hired in early January, 2002, and quit his employ after about three weeks, on January 30, 2002. Passalacqua told Naviant’s CEO, Hirsch, that he did not think he could make enough money at Naviant and that he wanted to start his own business in the opt-in e-mail marketing industry. Hirsch responded that they would enforce their nondisclosure and non-compete agreement.

Sechter thereafter applied for a position at Naviant. He was hired and began to work there on February 25, 2002. On the day Sechter began to work at Naviant, Passalacqua joined another man to form Appellant E-Mail Analytics, Inc. (“E-Mail Analytics”), to provide opt-in e-mail services. Eighteen days after being hired at Naviant, Sechter, too, resigned. Shortly thereafter, he joined E-Mail Analytics, and bought out the ownership interest of Passalacqua, who continued to work there.

The Confidentiality Agreement (“the Agreement”) which both Passalacqua and Sechter executed, defines “confidential information,” in pertinent part, as including any information or material “in which there is a proprietary interest and that [sic ] there is a legitimate business reason for guarding against unauthorized use or disclosure.” There is a category of “subject information,” defined as “any Confidential Information, Trade Secret(s) or other proprietary information provided by one party to the other whether orally or in writing or stored on any form of Medium.” “Trade secrets” are defined, in pertinent part, as involving information or material “that (i) derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use;, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” There is the customary, boilerplate language asserting that “[t]he [employee] acknowledges that irreparable injury and damage will result from disclosure to third parties, or utilization for purposes other than those connected with the proposed Venture or other business relationship, of the Confidential Information.”

The Agreement excludes certain material, including, in pertinent part, “any such Confidential Information that [the employee] can establish: (a) has become generally known or available to the public without breach of this Agreement by the [employee]; (b) was known by the [employee] before receiving such information from the Corporation; [or] (c) has become known by or available to [the employee] from a source other than Corporation, without any breach of any obligation of confidentiality owed to Corporation, subsequent to disclosure of such information to it by Corporation....”

Finally, the Agreement provides that, in consideration for compensation from the Corporation, the employee applicant covenants that s/he “will not, for a period of two (2) years after the end or termination of individual’s relationship with Corporation, irrespective of the time, manner or cause of such termination, ... engage in a business in the continental United States that is the same or similar to the [business of the company].” The parties agree that, in the event of a breach of the agreement by the employee, “Corporation shall be entitled, in addition to any other remedies and damages available at law, to an injunction to restrain the violation by [the employee], his/her/its partners, agents, servants, employers, employees and all persons acting for or with him/her/it.”

On April 19, 2002, Naviant filed suit, seeking injunctive relief, an accounting and damages, and a temporary injunction against Passalacqua, Sechter and E-Mail Analytics. An adversarial evidentiary hearing was held on May 10, 2002. The trial court made no findings of fact from the bench during or following the hearing. Its sole findings of fact are those statements contained in the temporary injunction issued four days later which prohibited appellants from engaging in competition with appellee Naviant in the opt-in e-mail marketing business and from revealing or disclosing any confidential information they received from Naviant. The temporary injunction lacks any specific findings that Appellants have obtained, much less used, any trade secrets or any extraordinary or specialized training from Naviant.

The Law Regarding Enforcement of Restrictive Covenants

Of central importance to this appeal is the following language of the controlling statute, section 542.335(l)(b), Florida Statutes (2002):

(b) The person seeking enforcement of a restrictive covenant shall plead and prove the existence of one or more legitimate business interests justifying the restrictive covenant. The term “legitimate business interest” includes, but is not limited to:
1. Trade secrets, as defined in s. 688.002(4).
2. Valuable confidential business or professional information that otherwise does not qualify as trade secrets.
3. Substantial relationships with specific prospective or existing customers, patients, or clients.
4. Customer, patient, or client goodwill associated with:
a. An ongoing business or professional practice, by way of trade name, trademark, service mark, or “trade dress”;
b. A specific geographic location; or
c. A specific marketing or trade area.
5. Extraordinary or specialized training.
Any restrictive covenant not supported by a legitimate business interest is unlawful and is void and unenforceable.

Even before the statute contained its present expansive list of the types of information which could constitute a “legitimate business interest,” the courts recognized the essence of the concept. In the landmark Florida case of Hapney v. Cent. Garage, Inc., 579 So.2d 127 (Fla. 2d DCA 1991), the court noted that “[generally, three such interests were generally recognized: (1) trade secrets and confidential business lists, records, and information; (2) customer goodwill, and (3) to a limited degree, extraordinary or specialized training provided by the employer.” Id. at 131 (citations omitted).

The Hapney court quoted with approval the Tennessee Supreme Court’s statement of the essential rationale underlying the concept of a “legitimate business interest”:

[A]ny competition by a former employee may well injure the business of the employer. An employer, however, cannot by contract restrain ordinary competition. In order for an employer to be entitled to protection, there must be special facts present over and above ordinary competition. These special facts must be such that without the covenant not to compete the employee would gain an unfair advantage in future competition with the employer.

Id. at 130 (quoting Hasty v. Rent-A-Driver, Inc., 671 S.W.2d 471, 473 (Tenn.1984)) (citations omitted; emphasis supplied).

Plaintiff /Appellee Naviant Failed to Demonstrate a “Legitimate Business Interest”

The record of the hearing in this case contains nothing constituting proof of any “legitimate business interest,” as defined in the statute, or of any other proprietary or confidential interest of Navi-ant, being violated or otherwise affected by appellants’ competing with appellee. On the contrary, appellee’s presentation at the hearing consists of rank supposition by the sole witness to testify on behalf of Naviant, CEO Hirseh. Although the Verified Complaint and the Motion for Temporary In-junction contain allegations that appellants misappropriated Naviant’s customer data and solicited its customers, not one such customer was named in the complaint, the motion or any exhibits filed. Hirsch could not identify a single customer of Naviant that had been approached by appellees. Moreover, he was unable to describe any confidential data base or other customer-related material that appellees had appropriated or used. In fact, Hirsch conceded that new employees are not given names of any existing customers, but are given sales leads which Naviant had obtained through commercial sources; he also conceded that, while employed with Naviant, Passalacqua and Sechter had no contact with any of Naviant’s customers.

Naviant’s claim that Passalacqua and Sechter were making use of a legitimate business interest of Naviant consisted essentially of its claim, through the testimony of CEO Hirsch, that, since its founding in 1998, Naviant had developed a wholly unique methodology which enabled it to capture a large percentage of the market. Appellants do not dispute Naviant’s claims of success in the marketplace, but vigorously dispute its claim to a unique methodology. The record shows that Hirsch’s testimony during the evidentiary hearing on the temporary injunction lacks any showing of a unique system or method of attracting or doing business. Hirsch claims that Naviant uses a sales manual which presents a very unique sales presentation for soliciting business from companies, and other unique items as well. The manual, Hirsch said, explains how to make a cold call, how to make a second call, and gives closing techniques. He testified that neither Passalacqua nor Sechter returned his manual before leaving, but admitted on cross-examination that no one saw either of them remove a manual.

Hirsch did not articulate how any activity, method or technique utilized by Navi-ant was unique or proprietary in any way. Nor did he give any reason to believe that the manual was anything but a compilation of widely known and commonly used sales and marketing techniques. Naviant failed to prove, through Hirsch or otherwise, anything which even approximates a “legitimate business interest” as defined in the statute, section 542.335(l)(b), Florida Statutes.

Appellants Demonstrated the Apparent Absence of “Legitimate Business Interests”

Even if Naviant had made the statutorily-requisite prima facie case for the existence of a “legitimate business interest,” the presumption of irreparable harm which thereby would have been raised under section 542.335(l)(j) is rebuttable, not conclusive. Don King Prods., Inc. v. Chavez, 717 So.2d 1094, 1095 (Fla. 4th DCA 1998). Although not required to disprove Naviant’s conclusory and unsubstantiated claims of proprietary information, appellants presented detailed and uncontrovert-ed testimony and other evidence showing that there was nothing unique about Navi-ant’s operations, sales methods or other aspects of its business that anyone with their history of making unsolicited sales calls (“cold calling”) does not know.

The unrebutted testimony of Passalac-qua and Sechter thoroughly described material and methods that are generic and not proprietary. They insisted that Navi-ant’s training book contained nothing that is not generally available, being little more than sales scripts which were nearly identical to those used in the business of soliciting securities sales through cold calling. They denied Hirsch’s claim that Naviant has a two-week training program. Sechter claimed he was at Naviant only an hour and a half on his first day, before he was given a desk and a computer and told to “get to work.” He initially generated leads by “surfing the Internet.” He testified that the “training” he received lasted two to three hours on each of two consecutive days during his first week there; he was told to review the manual and review other opt-in e-mail companies’ information. Sechter stated that on Monday of his second week on the job, he was “trained” to use Outlook Express software, which he had been using in securities sales for several years. He testified that the sales tactics used by Naviant were generic: “It’s the same sales tactics in every business.”

Hirsch and Sechter testified that E-Mail Analytics is developing its own database, which takes a long time. There Was no proprietary database which they could have taken from Naviant. E-mail Analyt-ics formed a partnership with another company, Future.Net, which provided a substantial amount of data. Sechter . daily visits many websites on the Internet to keep abreast of trends in the industry, and to obtain both new data and new ideas. He readily concedes that E-mail Analytics has nowhere near the quantity of marketing data that Naviant has. The information provided to him by Naviant involved the same basic information and even the same marketing glossary of terms, and the same methods of obtaining data, running the business, and building.customer relations, as are used by other opt-in companies. He knows this from having retrieved this information from the Internet. Sechter introduced evidence of the very high number of e-mail companies, gleaned from the Internet. He claimed that he received 1,140,000 entries when he searched the phrase “opt-in e-mail marketing.” He introduced at the hearing a computer printout containing a long list of such companies; the first three were in Delray Beach, Boca Raton, and Ft. Lauderdale, all within the immediate area where Naviant’s offices are located.

Appellant Passalacqua also testified. He has a stockbroker background similar to Sechter’s. He had used the Red Book to obtain leads as a securities broker. He also has visited many opt-in e-mail sites on the Internet. As had Sechter, Passalac-qua denied ever seeing, much less downloading or using, Naviant’s customer list. As to the sales scripts and rebuttals used by Naviant, Passalacqua says that the material “was written years ago by a bunch of stock brokers,” and is in common use in the securities industry.

Conclusion

Thus, the record lacks the showing required of the Plaintiff/Appellee, and contains much to suggest that that showing cannot be made. Accordingly, the Order Granting Temporary Injunction is hereby reversed, and this case is remanded to the trial court with instructions to vacate said order forthwith, without prejudice to the court’s right to conduct further hearings with regard to a temporary injunction, should the court deem it appropriate.

STONE and GROSS, JJ., concur.

      . More particularly, the predecessor statute, section 542.33, Florida Statutes (1989).


author: STEVENSON, J.

text:
    Judith Hope WAX, Appellant, v. Jim HORNE, as Commissioner of Education, Appellee.
    No. 4D02-2832.
    District Court of Appeal of Florida, Fourth District.
    May 14, 2003.
    Ron Renzy of Wallberg & Renzy, P.A., Coral Springs, for appellant.
    Charles T. Whitelock of Whitelock & Associates, P.A., Fort Lauderdale, for ap-pellee.

      . The caption has been changed to reflect the new Commissioner of Education, Jim Home, as appellee, instead of former Commissioner, and now Attorney General, Charles J. Crist, Jr.

   STEVENSON, J.

In this appeal, appellant, Judith Hope Wax, challenges the final order of the Education Practices Commission permanently revoking her Florida educator’s certificate. We affirm.

The administrative complaint alleged that Wax, a seventh-grade middle school teacher, had sent several of her students electronic mails and audio files over the Internet that contained sexually suggestive jokes, profanity and “sexual material not suitable for students.” Wax chose not to dispute the factual allegations in the complaint and requested an informal hearing where her attorney argued that her license should only be suspended, followed by probation. Wax’s attorney stated that she was only twenty-five years old at the time of the incident and that her husband had died a month earlier. The Commission was also informed that Wax had resigned from her position in Florida and was now working on. getting her teaching certificate in Nevada.

At the hearing, the Commissioner recommended that Wax’s license be permanently revoked because Wax “showed a lack of recognition of the inappropriate action” in dealing as an educator with the seventh-grade students. The Commissioner argued that Wax lacked any remorse for her actions. Further, the Commissioner pointed out that the incident was not isolated and inadvertent, but that Wax had solicited the e-mail addresses so she could send the students profanity-laced, sexually-explicit material and had sent the emails to sixteen students.

Ultimately, the Commission imposed a penalty of permanent revocation of Wax’s educator’s certificate and permanently barred Wax from re-application. On appeal, Wax argues that her permanent revocation is inconsistent with prior agency practice since there are other cases where the conduct was more egregious, but the penalty less severe. For the same reasons, Wax also argues that the Commission’s order violates the equal protection clauses of the United States and Florida constitutions. Thus, Wax argues that the decision violates Florida Statutes section 120.68(7)(e)3.^L

We affirm for several reasons. First, permanent revocation was clearly a penalty authorized by the statute, and appellant cannot ask this court to substitute its judgment for that of the Commission in the discretionary matter of punishment. The Florida Supreme Court has stated that “so long as the penalty imposed [by an administrative agency] is within the permissible range of statutory law, the appellate court has no authority to review the penalty unless agency findings are in part reversed.” Fla. Real Estate Comm’n v. Webb, 367 So.2d 201, 201 (Fla.1978); Weiss v. Dep’t of Bus. & Prof'l Regulation, 677 So.2d 98 (Fla. 5th DCA 1996)(affirming revocation of broker’s license, which was allegedly too harsh a penalty, citing Webb); Clark v. Dep’t of Prof'l Regulation, Bd. of Med. Exam’rs, 463 So.2d 328 (Fla. 5th DCA 1985)(a£firming revocation of medical license based on Webb). Whether Wax’s conduct warrants the statutorily permissible penalty of permanent revocation is a matter for the Education Practices Commission to decide.

Second, even if this court were at liberty to reverse the Commission’s choice of penalty where it is “inconsistent with prior agency practice,” appellant has not met her burden of demonstrating that this is such a case. Appellant has provided examples where suspensions were meted out where (1) a middle school teacher had accessed a “naturalist” website during class and, although the screen was turned away, some of the students caught a glimpse of the nude images on the screen, see Crist v. Arnaldo, EPC Case No. 00-0586-RT (2001); (2) a high school teacher showed the “R” rated movie “Posse” to her students, which contained profanity, nudity and scenes depicting sexual acts, see Brogan v. Carter, EPC Case No. 94-117-RT (1994); and (3) a teacher purchased beer for some high school students who were members of a rowing team and had a party after a “regional” competition, see Brogan v. Gaul, EPC Case No. 95-209-RT (1995). On the other side of the ledger, appellant cited two cases in which permanent revocations were imposed where (1) a high school teacher fondled one female student and had consensual sexual relations with another, see Gallagher v. Teifer, EPC Case No. 97-123-RT (1997); and (2) a teacher sexually harassed two of his female colleagues with uninvited hugs, kissing and touching, see Brogan v. Thomas, EPC Case No. 97-119-RT (1997).

Appellant argues that this case is more in line with those in which the Commission merely suspended the teacher’s license. All of the cases cited by appellant are different in some meaningful way from the instant case. Here, the Commission was faced with a unique case involving a teacher sending sexually explicit material over the Internet directly to sixteen seventh-grade students. Wax has failed to show that the permanent revocation of her educator’s certificate is “inconsistent” with any prior agency practice. In our analysis, appellant is simply asking this court to substitute its judgment for that of the Commission on an issue of discretion.

Accordingly, the order on review is AFFIRMED.

STONE and WARNER, JJ., concur.

      .Section 120.68, Florida Statutes (1999), providing for judicial review, states in part:
      (7) The court shall remand a case to the agency for further proceedings consistent with the court’s decision or set aside agency action, as appropriate, when it finds that:

      (e) The agency's exercise of discretion was:

      3. Inconsistent with officially stated agency policy or a prior agency practice, if deviation therefrom is not explained by the agency; or
      4. Otherwise in violation of a constitutional or statutory provision;
      but the court shall not substitute its judgment for that of the agency on an issue of discretion.
      § 120.68(7)(e)3.-4.


text:
    Hector J. RUIZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-270.
    District Court of Appeal of Florida, Third District.
    May 14, 2003.
    Hector Ruiz, in proper person.
    Charles J. Crist, Jr., Attorney General, and Jason Helfant, Assistant Attorney General, for appellee.
    Before LEVY, RAMIREZ, and WELLS, JJ.
   PER CURIAM.

The defendant appeals the denial of his most recent motion to correct illegal sentence which challenges his sentence, imposed on September 23, 1993, as a habitual felony offender. Specifically, the defendant argues that under section 775.084 of the Florida Statutes, the trial court used prior felony convictions too remote in time as a predicate for habitualizing him. We disagree and affirm.

For purposes of this appeal, we apply the 1991 version of section 775.084 which was in effect at the time that the defendant committed the felonies charged in case number 93-1993 on which he was habitualized. See Smith v. Moore, 782 So.2d 955, 957-58 (Fla. 1st DCA 2001). In sentencing the defendant as a habitual felony offender, the trial court relied, in part, upon felony convictions from case numbers 87-18028, 89-2059A, and 89-6131 on which the defendant was subsequently released from prison on either probation or community control. Because the defendant committed the felonies for which ha-bitualization was being imposed in the instant matter within 5 years of release on at least two of these three prior felonies, we find that the trial court properly habit-ualized him. See § 775.084(l)(a)(2), Fla. Stat. (1991)(authorizing habitualization where the new offense is “within 5 years of the defendant’s release, on parole or otherwise, from a prison sentence or other commitment”); Bacon v. State, 620 So.2d 1084 (Fla. 1st DCA 1993)(applying the former version of section 775.084 to prior felonies on which the defendant was released on community control); Allen v. State, 487 So.2d 410 (Fla. 4th DCA 1986)(applying the former version of section 775.084 to prior felonies on which the defendant was released on probation); see also Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979)(confirming that the trial court “will generally be affirmed if the evidence or an alternative theory supports it”).

We expressly reject the defendant’s alternative argument directed at the trial court’s alleged violation of section 775.084(5), Fla. Stat. (1993) regarding separate sentencing. Subsection (5) was added to the habitual offender statute in 1993, after the defendant had committed the felonies on which he was habitualized. See ch. 93-406, § 2, Laws of Fla. (1993) (effective June 17, 1993). Consequently, subsection (5) does not apply to the instant matter. See Smith, 782 So.2d at 957-58 (holding that the court should apply the version of section 775.084 “which was in effect at the time Appellant committed the crime for which he was habitualized”); Barnhill v. State, 788 So.2d 313 (Fla. 5th DCA 2001)(confirming that, prior to the enactment of subsection (5), habitualization did not have to be based on sequential convictions or offenses). Accordingly, we affirm.

      . The defendant was arrested in January 1993 on the charges for which he was habitualized. These crimes were, therefore, committed before the June 17, 1993 effective date of the 1993 version of section 775.084. See ch. 93-406, § 2, Laws of Fla. (1993).

      . Defendant was released on probation in case number 87-18028 in January 1988; he was released on community control in case number 89-2059A in May 1991; and he was released on probation in case number 89-6131 in May 1991.


text:
    Daniel E. TAYLOR, Appellant, v. Kimberly G. WOJTUSIK, Appellee.
    No. 4D02-1716.
    District Court of Appeal of Florida, Fourth District.
    May 14, 2003.

      Luther Martin Taylor, Palm Beach Gardens, for appellant.
    John F. Schütz of Manoff & Schütz, P.A., West Palm Beach, for appellee.
   WARNER, J.

We affirm the order holding appellant in contempt for failure to pay a support obligation, concluding that the trial court made sufficient determinations that appellant, the ex-husband, had the actual ability to comply with the order at all times. Appellee, the ex-wife, testified that the ex-husband showed her his Rolex watch and told her he paid $18,000 for it. Appellant offered no contrary proof. The proof of assets from which payment could be made was sufficient evidence of the ex-husband’s present ability to pay the purge amount of $11,376.10. See, e.g., Albright v. Albright, 788 So.2d 1125 (Fla. 4th DCA 2001).

Ex-wife cross-appeals the trial court’s failure to hold ex-husband in contempt for failure to pay a ten year old attorney’s fee judgment entered in the original divorce decree. An attorney’s fee award in a dissolution action may be enforced by contempt, see Wertkin v. Wertkin, 763 So.2d 465, 466 (Fla. 4th DCA 2000); however, the court has discretion in determining the remedy for contempt. See Nical of Palm Beach, Inc. v. Lewis, 815 So.2d 647, 651 (Fla. 4th DCA 2002). Here, the court determined that the ex-wife had an enforceable judgment and that the amount was not connected to either child support or visitation, but rather, the ability of the ex-wife to support herself. We, therefore, find no abuse of discretion in refusing to require imprisonment and to set a purge amount relating to the ex-husband’s failure to pay the attorney’s fee judgment.

STONE and STEVENSON, JJ., concur.


text:
    Andre BARRETT, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2522.
    District Court of Appeal of Florida, Fourth District.
    May 14, 2003.

      Martin S. Fein, Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant challenges the order denying his motion to suppress cannibas found in his vehicle during a police investigatory stop. Stripped to its essence, he argues that the police officer’s testimony was not credible and thus did not justify the stop.

The officer testified that he smelled marijuana as he approached the vehicle; this constitutes probable cause to conduct a search. See State v. Betz, 815 So.2d 627, 633 (Fla.2002). That the officer faile'd to include this important detail in his police reports goes to the credibility of his testimony. However, we defer to the trial court’s findings of historical fact. See Curtis v. State, 748 So.2d 370, 371 (Fla. 4th DCA 2000). “It is not the function of an appellate court to substitute its judgment for that of the trial court by reevaluating the evidence presented below.” State v. Melendez, 392 So.2d 587, 590 (Fla. 4th DCA 1981).

Affirmed.

STONE, WARNER and STEVENSON, JJ., concur.


text:
    Joel H. CARVER, Appellant, v. Arlene L. CARVER, Appellee.
    No. 4D02-2574.
    District Court of Appeal of Florida, Fourth District.
    May 14, 2003.

      Ronald E. D’Anna and David J. Pascuzzi of McClosky, D’Anna, Ioannou & Dieterle, LLP, Boca Raton, for appellant.
    David A. Riggs of Hunt, Cook, Riggs, Mehr & Miller, P.A., Boca Raton, for ap-pellee.
   PER CURIAM.

Joel Carver (“Former Husband”) asserts that it was error for the trial court to include his pension proceeds when determining his ability to pay for purposes of calculating alimony. Former Husband’s pension was equitably distributed between himself and his former wife, so that he and his former wife each receive one-half of the monthly pension proceeds. Former Husband contends that considering the pension in both the equitable distribution and alimony determinations is impermissible “double-dipping.” However, it is important to note that Former Husband still receives half of the pension as part of his monthly cash flow, and that it is only this portion that was considered in determining the alimony award.

Including the proceeds of an equitably distributed pension in the calculation of ability to pay alimony is not “double-dipping” and is supported by both statutory and case law. Lauro v. Lauro, 757 So.2d 523 (Fla. 4th DCA 2000); Acker v. Acker, 821 So.2d 1088 (Fla. 3d DCA 2002). Therefore, the trial court properly included the pension income received by Former Husband in the alimony calculation.

Additionally, Former Husband contends that the trial court erred by including the proceeds of a long-term care insurance policy purchased with marital funds in the alimony calculation. Former Husband receives a daily benefit from this policy because he is confined to a care facility; however, the benefit he receives is greater than his monthly medical expenses. Former Husband believes these proceeds should not be considered income because he needs to keep the excess in reserve for future medical expenses.

When determining alimony, a court must consider all relevant economic factors, the financial resources of each party, and all sources of income. § 61.08, Fla. Stat. (2002). The proceeds of the long-term care policy represent cash flow to Former Husband, and therefore comprise part of his economic resources. The proceeds should consequently be considered when determining Former Husband’s ability to pay alimony. If Former Husband’s medical and financial circumstances were to change in the future, he could seek modification of alimony. However, this is no longer a concern because his former wife has subsequently remarried.

In conclusion, we affirm the trial court’s inclusion of both the Former Husband’s portion of the monthly pension proceeds and the proceeds of the long-term care insurance policy in the alimony calculation.

AFFIRMED.

GUNTHER, TAYLOR, JJ., and TOBIN, and VICTOR, Associate Judge, concur.


text:
    John S. BUERSTER, Appellant, v. Juan C. FERMIN, Appellee.
    No. 4D02-3323.
    District Court of Appeal of Florida, Fourth District.
    May 14, 2003.

      Bruce F. Silver and Wendy V. Schreck of Silver & Astor, Boca Raton, for appellant.
    No appearance for appellee.
   PER CURIAM.

John S. Buerster appeals an injunction for protection against repeat violence obtained against him by Juan C. Fermín. We reverse.

Appellee obtained an injunction against appellant for repeat violence. Pursuant to section 784.046(l)(a), Florida Statutes, violence is defined as “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death, by a person against any other person.” Section 784.046(l)(b) defines repeat violence as “two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner’s immediate family member.”

Appellee’s own testimony demonstrates that only one act, if any, occurred. While appellee testified that appellant yelled, screamed and threatened him on a daily basis for two and one-half years, he admitted that appellant’s alleged threats did not cause him any fear. Thus, there is no evidence that appellant’s alleged threats created a well-founded fear in appellee such that violence was imminent.

After reviewing the record, we conclude that the evidence was insufficient to support the injunction. See Orr v. Koutsogiannis, 829 So.2d 962 (Fla. 4th DCA 2002). We therefore reverse the final judgment for injunction for protection against repeat violence.

GUNTHER, TAYLOR, JJ., and TOBIN, and VICTOR, Associate Judge, concur.