text:
    A CHOICE FOR WOMEN, INC., Edward Watson, M.D., and Monica Navarrete, Appellants/Cross-Appellees, v. FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee/Cross-Appellant.
    No. 3D02-3039.
    District Court of Appeal of Florida, Third District.
    April 21, 2004.
    Rehearing and Rehearing En Banc Denied April 21, 2004.

      Larry Spalding, Miami, and Bonnie Scott Jones, for appellants.
    Gregory J. Philo and George D. Shireji-an, for appellee.
    ‘ Thomas A. Horkan, Jr.; Paul Benjamin Linton; Ausley & McMullen and Stephen C. Emmanuel, Tallahassee, for members of the Florida Legislature as Amicus Curiae.
    Before SCHWARTZ, C.J., and RAMIREZ, J„ and NESBITT, Senior Judge.
   CORRECTED OPINION

PER CURIAM.

On consideration of appellee/cross-appel-lant’s motion to correct clerical errors in the opinion, the Court withdraws the opinion issued on September 3, 2003, and substitutes the following corrected opinion in its place.

A Choice for Women, Inc., Edward Watson, M.D., and Monica Navarrete appeal an order of the Division of Administrative Hearings dismissing their petition to determine the invalidity of existing rules pertaining to Medicaid funding for abortions. Florida’s Medicaid program provides funding for only those services for which it will receive federal reimbursement. Medicaid coverage exists for any medically necessary treatment, but pursuant to the Hyde Amendment to Title XIX of the Social Security Act, federal reimbursement is only available for abortions if the life of the mother is endangered by the pregnancy, or if the pregnancy is the result of rape or incest. We affirm the Division’s ruling.

Navarrete has had epilepsy since childhood. She became pregnant in 2000 and suffered seizures during the pregnancy. She takes the drug Dilantin to control her seizures, which is a teratogenic drug that can cause birth defects. Her son was born with osteogenesis imperfecta.

When she again became pregnant, Na-varrete was faced with suffering an increase in the gravity of her seizures if she stopped her medication or the possibility of having another child born with birth defects. In October 2001, Navarrete chose to have an abortion at a clinic called “A Choice for Women.” Dr. Watson performed the procedure. At that time, Na-varrete was thirty years old with three children. She received Aid to Dependent Children benefits, food stamps, and Medicaid. Navarrete had to delay payment of her utilities to pay some of the $200 cost. A private abortion fund paid the remaining costs.

Ten to twenty percent of Dr. Watson’s patients have medical factors which cause complications during pregnancy. These patients require medically necessary abortions, but they are not in danger of death. The appellants/cross-appellees now challenge Florida Agency for Health Care Administration’s ban on funding for medically necessary abortions as a violation of Florida’s equal protection clause because funding exists for all necessary medical services for men.

The appellants/cross-appellees seek a determination that rules 59G-4.150, 59G-4.160, and 59G-4.230, Florida Administrative Code, as well as certain portions of the Florida Medicaid Physician Coverage and Florida Medicaid Provider Reimbursement handbooks incorporated in those rules, are invalid. The rules were implemented pursuant to section 409.902, Florida Statutes (2000) which authorizes the Agency to make payments for medical services under Title XIX of the Social Security Act and state law.

The rules the appellants/cross-appellees challenge were previously challenged in Renee B. v. Florida Agency for Health Care Admin., 790 So.2d 1036 (Fla.2001). As in this case, the challengers in Renee B. were doctors and reproductive health clinics that provide abortions, and Medicaid-eligible women who needed medically necessary abortions. The Florida Supreme Court held that the Agency rules did not violate the Florida Constitution’s right to privacy because Florida’s Medicaid program imposes no restriction on access to abortion and leaves an indigent woman with the same range of choice as she would have if no subsidized health care existed. Id. at 1041.

Although the Florida Supreme Court declined to address the equal protection claim in Renee B., the court determined that “the abortions sought by the petitioners ... are neither required nor optional under the federal program. Section 409.908 gives AHCA the authority to establish-rules for reimbursement in accordance with state and federal law.” Id. at 1039. The court relied heavily on Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980) in reaching its conclusions.

In Harris, the Supreme Court determined that the lack of funding for medically necessary abortions for which federal reimbursement is unavailable is not an equal protection violation. See Harris, 448 U.S. at 326, 100 S.Ct. 2671. In analyzing that particular constitutional challenge, the Court concluded that the Hyde Amendment does not violate any constitutionally protected substantive rights and is not predicated on a constitutionally suspect classification. Id. at 322, 100 S.Ct. 2671. Therefore, “the only requirement of equal protection is that congressional action be rationally related to a legitimate governmental interest.” Id. at 326, 100 S.Ct. 2671. Because the restriction on abortion funding is rationally related to the legitimate governmental objective of protecting potential life, the lack of funding for medically necessary abortions is not a constitutional violation. Id. at 325, 100 S.Ct. 2671.

Childbirth has also been recognized in Florida as a legitimate state purpose because “[t]he state has an unqualified interest in the preservation of life.” Krischer v. McIver, 697 So.2d 97, 103 (Fla.1997). Additionally, containing the cost of the Medicaid program by limiting services to those which are federally reimbursable is also a legitimate state purpose. See Department of Transp. v. Fortune Fed. Sav. and Loan Assoc., 532 So.2d 1267 (Fla.1988) (purchase of more land than necessary in order to save state money was valid public purpose). The Agency rules are therefore rationally related to a legitimate state purpose.

The appellants/cross-appellees argue that the Florida Constitution gives greater protection than the Equal Protection Clause of the United States Constitution and urge a strict scrutiny standard of review. The appellants'/cross-appellees’ argument is based on the 1998 amendment to Article I section 2 which added the words “female and male alike” to modify the term “natural persons.” This argument is contradicted by the commentary of the Constitution Revision Commission. Frandsen v. County of Brevard, 800 So.2d 757, 759 (Fla. 5th DCA 2001). “In adding the term ‘female and male alike,’ the Commission’s intent was to secure equality for women in the Constitution.” Id. at n. 4. Based on the Commission’s commentary, we conclude that the Florida Constitution does not afford greater protection for sex-based classifications and such classifications are thus not subject to strict scrutiny.

We therefore hold that the Agency rules here challenged do not violate the Equal Protection Clause of the Florida Constitution because they are rationally related to the legitimate state interests of protecting life and containing costs.

Affirmed.

      . 42 U.S.C. § 1396 et seq. (1976).

      . The rules incorporate by reference the Florida Medicaid Provider Reimbursement Handbook and the Florida Medicaid Hospital Coverage and Limitations Handbook which restrict reimbursement for induced abortions and related procedures to only those done to save the life of the mother, or when the pregnancy is the result of rape or incest.

      . "[Tjhe principal impact of the Hyde Amendment falls on the indigent. But that fact does not itself render the funding restriction constitutionally invalid, for this Court has held repeatedly that poverty, standing alone is not a suspect classification." Harris, 448 U.S. at 323, 100 S.Ct. 2671.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Randy Lavern SPENCER, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D04-0472.
    District Court of Appeal of Florida, First District.
    April 28, 2004.
    Rehearing Denied May 26, 2004.
    Randy Lavern Spencer, petitioner, pro se.
    No appearance for respondent.
   PER CURIAM.

By petition for writ of mandamus, Randy Lavern Spencer seeks an order compelling the Columbia County Circuit Court to rule on a petition for writ of habeas corpus pending in that forum. As Spencer acknowledges, however, his appeal of an order transferring venue to Columbia County remains pending before this court. Thus, under Florida Rule of Appellate Procedure 9.130(f), the trial court is precluded from rendering a final order disposing of the petition until the pending appeal is resolved. Although the rule does provide that a lower tribunal may proceed with all other matters up to the point of rendering a final order, the trial court is under no ministerial duty to do so. Accordingly, we deny Spencer’s request for mandamus relief.

PETITION FOR WRIT OF MANDAMUS DENIED.

KAHN, VAN NORTWICK and POLSTON, JJ., concur.


text:
    Dale R. PHELPS, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3783.
    District Court of Appeal of Florida, First District.
    May 4, 2004.
    Nancy A. Daniels, Public Defender and Phil Patterson, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General and Karen M. Holland, Assistant Attorney
    General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Although the record does not support the trial court’s finding that the defendant willfully violated the monetary conditions of his community control, it does amply support the more serious charge that he committed a new crime while he was on community control. It is clear that the error had no impact on the revocation or on the sentence imposed. Accordingly, we remand the case with directions to delete the finding that the defendant failed to comply with the monetary conditions, but otherwise affirm the revocation order on the merits.

The defendant also contends that the trial judge failed to award the proper jail credit. We affirm on this point, as well. See Moore v. State, 859 So.2d 613 (Fla. 1st DCA Nov.26, 2003), rev. granted, No. SC03-2136, 870 So.2d 822 (Mar. 1, 2004).

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


author: GROSS, J.

text:
    SUROMAR CORPORATION, Appellant, v. PALM BEACH COUNTY PROPERTY APPRAISER, Palm Beach County Tax Collector, and Florida Department of Revenue, Appellees.
    No. 4D03-1993.
    District Court of Appeal of Florida, Fourth District.
    May 5, 2004.

      Gerald S. Lesher, West Palm Beach, for appellant.
    Jay R. Jacknin and Jeffrey M. Clyman of Christiansen & Jacknin, West Palm Beach for appellee Palm Beach County Property Appraiser.
    Victoria L. Weber and Gary V. Perko of Hopping Green & Sams, Tallahassee, for Amicus Curiae Florida Home Builders Association.
   ON MOTION FOR REHEARING

GROSS, J.

We grant appellant’s motion for rehearing, withdraw our previous opinion, and issue the following.

Appellant, Suromar Corporation, is a property owner that challenged the property appraiser’s valuation of its property. After a trial, the circuit court found that the “property appraiser’s appraiser practices produced an arbitrary and unreasonable assessment when applied to this property.” The court ordered that the matter be remanded to the appraiser “for a rede-termination of the assessed value” utilizing “some legitimate cost numbers [to] carefully and honestly reappraise this property.” The appraiser appealed the court’s order and Suromar filed a notice of cross-appeal. This court affirmed without opinion. See Nikolits v. Suromar Corp., 816 So.2d 641 (Fla. 4th DCA 2002).

After the appeal was affirmed, the property appraiser hired an “expert builder of high-end luxury houses” to perform a cost analysis of the home. The expert’s report was consistent with the appraiser’s previous assessment of the property. Suromar filed a motion seeking further proceedings to challenge the reappraisal. In a final judgment, the circuit court denied the motion on the ground that the court had lost jurisdiction after the appraiser had complied with the final judgment’s directives.

We hold that the circuit court did not lose jurisdiction after it remanded the case to the property appraiser for a reappraisal. Suromar retained the ability to challenge the reappraisal de novo under section 194.301, Florida Statutes (2002). Because it was not raised in this appeal, we do not address whether the assessment based on the reappraisal shall be entitled to the presumption of correctness described in section 194.301.

Reversed and remanded for further proceedings.

STONE and HAZOURI, JJ., concur.


author: SHARP, W., J.

text:
    Frank Kendall TIPTON, Appellant, v. Barbara CROTTY f/k/a Barbara Dixon Tipton, Appellee.
    No. 5D03-3204.
    District Court of Appeal of Florida, Fifth District.
    May 7, 2004.
    Elaine A. Barbour, Orlando, for Appellant.
    Jon S. Rosenberg, Orlando, for Appellee.
   SHARP, W., J.

Tipton, the former husband, appeals from an order modifying and increasing the temporary child support owed to his former wife, Crotty, for the parties’ nine-year-old daughter. Because portions of the order relate to issues not noticed for the hearing, and other portions of the order are not based on substantial competent evidence, we reverse and- remand for further proceedings.

The trial court ordered Tipton to pay $1,956.74 in child support and $400.00 in arrearages for past child support. The court added $200.00 per month for medical arrearages and $200.00 towards the general arrearage, to be determined in the future. However, arrearages were not encompassed in the notice for the hearing and, at the commencement of the hearing, the attorney for Crotty told the judge the parties were not there for a determination of arrearages. In addition, no competent evidence of any arrearage amount was presented to the court. The attorney for Crotty relied on a “summary” which was objected to by Tipton’s attorney. Accordingly, this part of the order must be reversed. See Newberry v. Newberry, 831 So.2d 749 (Fla. 5th DCA 2002); Douglas v. Douglas, 795 So.2d 99 (Fla. 5th DCA 2001); Hammond v. Hammond, 492 So.2d 837 (Fla. 5th DCA 1986).

With regard to the child support award, it appears the trial court failed to properly consider Tipton’s argument that the court, in making its calculations, should impute some income to Crotty. The court failed to make any fact findings as to why it chose not to impute income to the former wife, although testimony at the hearing provided a basis for such an award. The evidence at the hearing established that Crotty previously earned $30,000.00 when she was employed full time as an audiologist for Belltone from 1999 to 2000. In 2000, Crotty opened her own audiology business, but had been unable to earn any income and had been putting money back into the business. However, she testified she could earn $15,000.00 per year if she worked part time for an employer.

There may be reasons the court chose not to impute income to Crotty. She testified the parties’ daughter has a mental illness, requiring frequent doctor visits and unusually large amounts of her mother’s time and attention. In addition, Crotty had remarried and was expecting the birth of another child close to the time of the hearing. However, without fact findings this part of the order is not reviewable on appeal. See Quinones v. Quinones, 870 So.2d 108 (Fla. 2d DCA 2003); McMullan v. McMullan, 710 So.2d 1045 (Fla. 5th DCA 1998).

In addition, it appears from this record that the court awarded Crotty sums for expenses which either Tipton was not required to make or which were not being incurred:

1. Pursuant to the parties’ prior divorce decree, Tipton was supplying health insurance coverage through his employer, Delta Airlines, for the parties’ daughter. Unhappy with that policy, Crotty elected to obtain additional health insurance for her daughter which cost $548.99 per month. This sum was erroneously included in Tipton’s child support obligations. He cannot be, in effect, double charged for health insurance simply because Crotty is unhappy with the providers available under his employer’s plan, without substantial cause or reason.

2. Tipton was required to pay $225.00 per month for day care for the parties’ daughter. However, the daughter was not in daycare. This was error. See Rowland v. Rowland, 868 So.2d 608 (Fla. 2d DCA 2004).

3. Crotty’s financial affidavit listed approximately $500.00 per month less in expenses for the daughter than the trial judge awarded her. There is no competent, substantial evidence to support this overage award.

Because the temporary child support order in this case suffers from multiple mistakes and errors, we reverse and remand for further proceedings.

REVERSED and REMANDED.

MONACO and TORPY, JJ., concur.

      . See Gerthe v. Gerthe, 857 So.2d 306 (Fla. 2d DCA 2003); Bracero v. Bracero, 849 So.2d 388, 390 (Fla. 5th DCA 2003).


author: SMITH, MAURA A., Associate Judge.

text:
    James J. BENTZ and Eileen Bentz, Appellant, v. Carroll McDANIEL and Melvene J. McDaniel, etc., Appellee.
    No. 5D03-1898.
    District Court of Appeal of Florida, Fifth District.
    May 7, 2004.

      Michael W. Youkon, Port Orange, for Appellant.
    Fred A. Morrison of McLin & Burnsed, P.A., Leesburg, for Appellee.
   SMITH, MAURA A., Associate Judge.

Appellants seek review of a final judgment which extinguished their easement due to the appellees’ adverse possession, and granted quiet title to appellees. We conclude that there was no clear and convincing proof that appellees adversely possessed the disputed parcel of property. Likewise there was no competent evidence to establish the affirmative defense that the easement did not extend to the river. Therefore, we reverse the final judgment and remand the cause to the trial court.

Appellees Carroll and Melvene McDaniel own 100 feet of frontage on the west bank of the St. Johns River in Lake County. They purchased this real property in two transactions: the North 80 feet in 1983 which contains their home, and the South 20 feet in 1991. Appellants James and Eileen Bentz bought property across the street on July 14, 1995, with an easement across the South 20 feet of the McDaniels’ property which gave them river access. This easement read in pertinent part:

A non-exclusive easement over, upon and across the north 20 feet of the south 80 feet of lot 24 ...

The Bentzes filed suit on April 30, 2001, complaining that on June 13, 2000, Mr. McDaniel sent a letter to a representative of Mr. Bentz denying the easement and refusing access. The letter claimed that while the original developer of the property dedicated a 20 foot easement platted “to the edge of what was then the water,” he later dredged and created additional property between the eastern boundary of lot 24 and the river edge, but “never extended the 20 foot easement over the dredged/fill property he had created.” Consequently, Mr. McDaniel concluded there was no easement.

The Bentzes asked the court to declare that they had an easement, and to define its scope. They also sought injunctive relief to remove any barriers erected by McDaniel to block the Bentzes from using the easement. The McDaniels filed an answer and affirmative defenses asserting adverse possession and abandonment, and on the basis that the claimed easement could not be recognized to give river access, since due to fill, it did not run to the river. The McDaniels also filed a counterclaim to quiet title to the claimed easement.

The trial court entered a final judgment after a non-jury trial, holding that the easement had been extinguished by adverse possession by the McDaniels. Any use by the Bentzes, unknown to the McDaniels, was deemed “de minimis in nature” and insufficient to overcome adverse possession. In addition, the court found that even if the easement was still in existence, it would not reach the waters of the St. Johns River. The opinion stated:

The easement came into being in March 1972. The fill work was completed sometime prior to the creation of a 1972 U.S. Geological Survey quadrangle map dated 1972, which showed the river bank to be more or less where it stands today. The precise date of filling is uncertain on this record but it would be pure conjecture to conclude that the filling was completed before the easement came into being in March, 1972. Accordingly, the Court finds the Easterly extent of the easement, even if it remained in existence, would be the waters of the St. Johns River in their location as shown on the Hall, Farner survey, not the current river boundary. Filling is not a gradual and imperceptible process which would qualify as natural accretion. Board of Trustees of the Internal Improvement Trust Fund v. Sand Key Associates, Ltd., 512 So.2d 934 (Fla.1987). Therefore, the riparian rights which would attach to the easement [City of Daytona Beach v. Tuttle, 630 So.2d 586 (Fla. 5th DCA 1993)] would not result in the easement being extended to the new boundary of the river as the property was filled. While it may be that if the filling were conducted with appropriate permits and approvals, the easement may have been extended, the record is silent as to what permission had been granted by the State and other agencies for the filling activity, and once Defendants established the fact of the filling the burden shifted to Plaintiffs to demonstrate why, despite the filling, the easement should extend to the river as it existed after the fill was deposited on the property. Plaintiffs presented no evidence at all in this regard.

The Bentzes then appealed, raising several issues.

Initially, the Bentzes claim that the trial court committed reversible error in finding there was sufficient evidence to establish adverse possession where the trial court found that the building of a bulkhead along the river’s edge was sufficient to extinguish the easement.

Generally, in order to prevail on a claim that adverse possession by the ser-vient owner extinguished an easement, the servient owner must show that he or she continuously excluded or prevented the easement’s use by the dominant owner for a specified time period. See Enos v. Casey Mountain, Inc., 532 So.2d 703, 705 (Fla. 5th DCA 1988), review denied, 542 So.2d 988 (Fla.1989). The Enos court indicated that Florida case law holds that adverse possession for 7 years by the servient owner extinguishes an easement (citing to Mumaw v. Roberson, 60 So.2d 741 (Fla.1952)).

In adverse possession, the right is acquired by actual, continuous and uninterrupted use by the claimant of the lands of another for a prescribed period. In addition, the use must be adverse under claim of right and must either be with the knowledge of the owner or so open, notorious, and visible that knowledge of the use of the claimant is imputed to the owner. See Downing v. Bird, 100 So.2d 57, 63-64 (Fla.1958). The use or possession must be inconsistent with the owner’s use and enjoyment of his lands and must not be a permissive use, for the use must be such that the owner has a right to a legal action to stop it such as an action for trespass or ejectment. See Id. at 64. Use or possession is presumed to be in subordination to the title of the true owner, and with his permission. The burden is on the claimant to prove that the use or possession is adverse. This essential element must be proved by clear and positive proof and cannot be established by loose, uncertain testimony. In Florida there is no presumption that adverse possession, once shown to exist, continues to do so. The claimant must by clear, definite and accurate proof show that the possession continued for the full period required by law. Acquisition of rights by one in the lands of another, based on possession or use is not favored in the law and the acquisition of such rights will be restricted. Any doubts as to the creation of the right must be resolved in favor of the owner. See Id. at 64; See also Goss v. Dunbar, 834 So.2d 185 (Fla. 2d DCA 2002) (most adverse possession claims involve evidence of a fence, a substantial enclosure, or cultivation. However, plaintiff must prove this cause of action, not by the greater weight of evidence but by clear and positive proof or by clear and convincing evidence); Suwannee River Water Mgmt. Dist. v. Price, 651 So.2d 749 (Fla. 1st DCA), review denied, 660 So.2d 714 (Fla.1995) (to establish entitlement to a prescriptive easement the burden is on the claimant to prove that such use or possession is adverse to the owner).

At the non-jury trial, the fact of the recorded easement was stipulated to by the parties. The McDaniels then had the burden of proving adverse possession and/or abandonment. The Court heard testimony from Mr. McDaniel, Mr. Bentz, adjoining property owners Gary Miller and Don Morgan, and surveyors Carroll God-win and Manhar Jadav. Mr. McDaniel testified that from the time he bought his first parcel of river front property in 1983, he knew of the 20 foot easement parcel directly to the south, owned by Flo Smith. South of her, the property along the river was owned by the Moodys. Prior to 1991, both the McDaniel parcel and the Moody parcel were “bulkheaded” with a wooden sea wall at water’s edge. The easement represented a “gap” or 20 foot strip between the two sea walls. Even though he did not own it, Mr. McDaniel said he maintained this property. Neighbor Don Morgan testified that he also maintained and mowed it. Mr. McDaniel built a garage on his property that he later discovered encroached into the easement property by some 18 inches. Concerned about this he talked to his neighbor Flo Smith who owned the easement parcel. According to Mr. McDaniel, Flo Smith told him there were no remaining easements over it. So, in 1991 the McDaniels, relying on this oral information and their real estate agent, purchased the servient parcel from Flo Smith. The legal description of the property deeded by Flo Smith to the McDan-iels is identical to the legal description of the easement in the Bentzes’ deed. Mr. McDaniel testified at trial that this property then went to “within about a foot of the St. Johns.”

Mr. McDaniel testified that in 1991 he erected a wooden bulkhead to connect his and Mr. Moody’s sea walls and close the gap. McDaniel also testified that he planted a grapefruit tree and some shrubbery in the middle of the easement at the same time. Mr. McDaniel testified that his southern neighbor, Mr. Moody, used the first half of the easement as a driveway, which was the only road access to get to his property. Finally, Mr. McDaniel stated that he never saw the Bentzes walk down the easement or use it.

Mr. Bentz testified that he bought his property across the street from the McDaniels in 1995, and although he visited, he did not relocate there until February of 1997. Mr. Bentz claimed he would walk across the easement parcel, to the water to check river levels and to enjoy rocket launches and wildlife. Mr. Bentz stated that it was important to him to be able to go down to the water and that he had not been prevented, up until 2000, from using the easement. He said he thought it was available when he wanted to use it even though there were several encroachments. These, he said did not interfere with his use. Thus, the unrebutted testimony was that while limited, there was use. Nothing in the testimony supported abandonment. In Estate of Johnston v. TPE Hotels, Inc., 719 So.2d 22 (Fla. 5th DCA 1998), review denied, 727 So.2d 904 (Fla.1999), this court held that abandonment requires proof by clear and convincing evidence of the intent of the owner of the dominant tenement to extinguish or abolish an easement previously acquired.

The erection of a permanent structure such as a wall is sufficient to extinguish easement rights if incompatible with an authorized right of use. See Kitzinger v. Gulf Power Co., 432 So.2d 188, 191-92 (Fla. 1st DCA 1983). McDaniel’s counsel argued that the building of the seawall or bulkhead across the “gap” in 1991, prevented access to the water. Neighbors testified that at one time people used the easement parcel for small boat launches from a makeshift ramp and that such activity appears to have stopped after 1991. However, at trial Mr. McDaniel did not claim that he intended to close a boat ramp. Mr. McDaniel asserted that no boat ramp ever existed. McDaniels’ counsel admitted to this court in oral argument that the seawall was constructed to keep out alligators and vermin from the river which kept coming up through the gap. Other obstructions, placed by the McDan-iels in the easement were not done for the specific purpose of denying access to others. Indeed, it is clear that the McDaniels were operating under the misimpression that there was no remaining easement of record, and therefore they did not do all that might have been done to adversely possess the property. There was no evidence of any trespass sign posted, no gate was erected across the entrance to the easement, and in fact, a Vt% foot driveway opening was maintained. All structures or plantings placed in the 20 foot easement were undisputedly for the purpose of aesthetic enhancement and not as barriers.

In the instant case, the burden was at all times on the McDaniels to establish adverse possession by clear and convincing evidence. The evidence at trial was insufficient to meet this standard. The McDan-iels had purchased the twenty foot wide parcel and used the property as any property owner might, but there was nothing done to the property to put the Bentzes on notice that their easement was denied or extinguished. Their actions did not prevent the Bentzes’ use of the property. It is undisputed that there was no notification orally or in writing until an encounter and conversation between the parties in May, 2000. Likewise, as indicated earlier, a party claiming title to adverse possession bears a “heavy burden of proof.” Downing; Kerrigan v. Thomas, 281 So.2d 410 (Fla. 1st DCA 1973). The McDaniels failed to meet this burden.

The Bentzes’ other issue on appeal is whether the lower court erred in holding, in the alternative, that if the easement exists, it does not extend to the current bank of the St. Johns River.

The Bentzes argue that the trial court’s holding, that the easement would only extend approximately 75 feet East of River Trace Road, is unsupported by competent substantial evidence. We agree. The McDaniels’ asserted affirmative defense was that Lot 24 extended on its East side to the river when it was first created and platted, but that since then the river moved east, due to filling, which likely occurred after the easement was created. Mr. Bentz and Mr. McDaniel were unable to give any personal testimony on the issue. Two neighbors, who had lived in the area since prior to 1970, both testified from personal observation that they believed the river to be in about the same location today along the McDaniel property, as it was in 1972 when the easement was created. The other two witnesses, professional surveyors, each reviewed an unrecorded survey by Hall, Farner & Associates, Inc. from 1970 (the Hall Survey) and produced a current survey of a portion of Lot 24.

Godwin, a surveyor testifying on behalf of the McDaniels, explained that the legal description of the easement to the Bentzes is identical to the legal description of the 20 foot wide parcel purchased by the McDaniels in their deed. Neither specifies an eastern boundary to the strip, except the eastern boundary of Lot 24, which was the water. There being no survey from March, 1972, Mr. Godwin looked at the Hall survey and a U.S. geological survey quadrangle map of the area from 1972. The 1972 map showed current river boundaries, or a length of 240 feet from River Trace Road down the 20 foot easement parcel to the river bank. The 1970 Hall survey showed only 75 feet at the same point. The difference of 165 feet, Mr. Godwin said, if filled in (as stipulated to by the parties), was sovereign land. That is to say, it did not belong to the McDaniels or the Bentzes, but the government.

On cross examination, Godwin agreed that the original plat showed the eastern line of lot 24 being the same as the west line of the river. Godwin said he did not know when the area was filled in but guessed it was between 1970 and 1972.

The other surveyor, hired by the Bentzes, Manhar Jadav, disagreed with Godwin’s conclusions. Jadav testified he made a survey in January 2003. From review of the Bentzes’ deed, the easement contained therein, the title insurance documents and tax records, it was his opinion that the easement goes to the water’s edge.

There was no competent evidence to support the affirmative defense that the land was filled in after the creation of the easement in March 1972 other than conjecture. All the evidence at trial supported the proposition that filling was completed by the time the quadrangle map of 1972 was published. The trial court agreed and found that the quadrangle map showed the river bank to be “more or less where it stands today.” The court then, however, granted judgment on the affirmative defense, even though it had no evidence to support its central tenet that in March 1972, the river bank was not where it is today. The McDaniels, who had the burden of establishing the affirmative defense by a preponderance of the evidence, never testified as to what month in 1972 the quadrangle map was published nor was this map offered in evidence. Yet they asked the Court to speculate that the fill was probably placed there sometime between April and December 1972.

We note that the trial court’s finding that Lot 24 does not extend to the river, but ends some 165 feet west of it, means that the McDaniels’ home improvements would be on property not included in their deeds. It is noteworthy that when the Bentzes’ counsel attempted to ascertain the actual ownership of this 165 feet, the lower court would not allow questioning on that point. The only testimony at trial as to this issue was offered by Godwin who said the property probably belonged to the State of Florida as sovereign land. If this were true, the Bentzes argue these are public lands over which McDaniel has no right to prohibit use by the Bentzes or anyone else. In any case, we find that the McDaniels also failed to establish, by substantial competent evidence, that the easement stops short of the river.

Finally, based upon the foregoing analysis, we hold that the McDaniels should not prevail on their counter-claim quieting title. Accordingly, we reverse the Final Judgment and remand for entry of judgment in favor of the Bentzes. Upon remand the court may consider the Bentzes request for injunctive relief pursuant to this court’s opinion in Sand Lake Shoppes Family Ltd. P’ship v. Sand Lake Courtyards, L.C., 816 So.2d 143 (Fla. 5th DCA 2002).

REVERSED and REMANDED.

SHARP, W., and MONACO, JJ., concur.

      . We do not consider whether the trial court erred in holding that once the McDaniels established adverse possession, the burden then shifted to the Bentzes to show their use was sufficient to defeat the adverse possession since we find in the first instance that the McDaniels failed to establish adverse possession.

      . The 1972 U.S. geological survey quadrangle map was not entered into evidence.

      . Powell v. Walbek, 209 So.2d 488 (Fla. 3d DCA), cert. denied, 219 So.2d 704 (Fla. 1968); Kelly v. Threlkeld, 193 So.2d 7 (Fla. 4th DCA 1966), cert. denied, 201 So.2d 553 (Fla.1967).


text:
    HANGER PROSTHETICS & ORTHOTICS, INC., Appellant, v. J.L. SAUNDERS, Appellee.
    No. 5D03-2872.
    District Court of Appeal of Florida, Fifth District.
    May 7, 2004.
    Robert W. Thielhelm, Jr., Michael R. Levin and Leslie B. Bissinger of Baker & Hostetler LLP, Orlando, for Appellant.
    Mark O. Cooper and John B. Liebman of O’Neill, Liebman & Cooper, P.A., Orlando, for Appellee.
   PER CURIAM.

Hanger Prosthetics & Orthotics, Inc., (“Hanger”), appeals an order denying its motion to vacate a default judgment granted to J.L. Saunders. We reverse.

The Saunders Family Real Estate Partnership filed a complaint seeking damages arising from a landlord/tenant relationship with Hanger. Realizing that the Saunders Family Real Estate Partnership had not been formed at the time the cause of action accrued, the complaint was amended to change the plaintiff to J.L. Saunders. The original complaint was then served on CT Corporation System, but not the amended complaint.

When Hanger failed to respond to the original complaint, J.L. Saunders obtained a default and a final judgment, based upon the amended complaint. Hanger eventually learned of the suit and moved to vacate the judgment citing corporate internal errors in processing the summons and complaint as excusable neglect, a meritorious defense, and Saunder’s failure to serve it with the amended complaint upon which the final judgment is based.

Rule 1.090(a), Florida Rules of Civil Procedure provides:

Amendments. A party may amend his pleading once as a matter of course at any time before a responsive pleading is served ... a party shall plead in response to an amended pleading within twenty days after service of the amended pleading unless the court otherwise orders.

(Emphasis added.)

Because Hanger was never served with the amended complaint that existed before service of the original complaint, the default based upon a failure to answer the original complaint is a nullity.

The default and final judgment are vacated and we remand for further proceedings.

REVERSED and REMANDED.

PETERSON, THOMPSON and MONACO, JJ., concur.


text:
    Steve AMARNEK, Petitioner, v. STATE of Florida and James Crosby, Secretary Florida Department of Corrections, et al., Respondents.
    No. 1D04-1308.
    District Court of Appeal of Florida, First District.
    May 10, 2004.
    Steve Amarnek, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondents.
   PER CURIAM.

The petition for writ of habeas corpus is denied. See Denhart v. Dugger, 567 So.2d 1041 (Fla. 1st DCA 1990).

PETITION DENIED.

WOLF, C.J., BOOTH and BENTON, JJ., concur.


text:
    J.M., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3468.
    District Court of Appeal of Florida, First District.
    May 10, 2004.

      Nancy A. Daniels, Public Defender; David P. Gauldin, Assistant Public Defender, Tallahassee, for appellant.
    Charlie Crist, Attorney General; Anne C. Conley, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

Appellant, J.M., a juvenile, was charged with and found guilty of (I) possession of a weapon on school property in violation of section 790.115(2)(b) or 790.115(2)(c), Florida Statutes; and (II) intentional assault with a knife, a deadly weapon without intent to kill, in violation of section 784.021(l)(a), Florida Statutes. The issue on appeal is whether the trial court erred in denying appellant’s motion to dismiss as to count II at the close of the State’s case and at the close of all the evidence. We affirm.

Appellant concedes that the small pocket knife possessed and used by appellant falls within the proscription of a “weapon” as used in the statute governing the possession offense charged in count I. Appellant also concedes that as to the charge of aggravated assault under count II, the weapon in this case, a common pocket knife, may constitute a “weapon” for purposes of the charging statute, section 784.021(l)(a), if it is used as a deadly weapon, i.e., if it is used in a manner likely to produce death or great bodily injury.

The assault in this case took place during school hours in the hallway of a middle school where both the victim and appellant were students. The victim testified that appellant was waving the pocket knife at him with the blade exposed, threatening to “poke” him, and almost poking him in the chest area. Although upon viewing the pocket knife alone reasonable people could disagree as to whether the pocket knife was a “deadly weapon” there was sufficient testimony and evidence in the record to support the trial court’s conclusion that appellant’s display of the knife blade and threat to poke the victim with the pocket knife in the chest made it a deadly weapon.

The order appealed from is affirmed.

ERVIN and BOOTH, JJ., SMITH, LARRY G., Senior Judge, concur.

      . See A.B. v. State, 757 So.2d 1241 (Fla. 4th DCA 2000); State v. AM., 765 So.2d 927 (Fla. 2d DCA 2000); and State v. Coleman, 802 So.2d 422 (Fla. 3d DCA 2001).

      . See Arroyo v. State, 564 So.2d 1153 (Fla. 4th DCA 1990); State v. Nixon, 295 So.2d 121 (Fla. 3d DCA 1974); see, e.g., Dale v. State, 703 So.2d 1045 (Fla. 1997) (finding whether or not unloaded BB gun was a deadly weapon was issue for jury); Porter v. State, 798 So.2d 855 (Fla. 5th DCA 2001) (distinguishing per se rule that a common pocket knife is not a deadly weapon as enunciated in L.B. v. State, 700 So.2d 370 (Fla. 1997); finding rule does not apply where pocket knife is in open position); Durden v. State, 743 So.2d 77, 78 (Fla. 1st DCA 1999), approved, 111 So.2d 416 (Fla. 2001) (holding offense of carjacking while armed with a deadly weapon may be committed by holding the open blade of a pocket knife to the victim’s throat; whether an object is a “deadly weapon — i.e., whether it is likely to produce death or great bodily harm — is a factual question to be answered by the jury in each case.”).


text:
    Charles Edgar WEST, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-4245.
    District Court of Appeal of Florida, First District.
    May 10, 2004.
    Charles Edgar West, pro se, petitioner.
    Charlie Crist, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Based on the special master’s findings and recommendations, the petition for belated appeal is denied.

PETITION DENIED.

WOLF, C.J., BOOTH and BENTON, JJ., concur.


text:
    John HAUSER and George Sperber, Petitioners, v. VOLUSIA COUNTY DEPARTMENT OF CORRECTIONS, and Risk Management, Volusia County, Respondents.
    No. 1D03-4550.
    District Court of Appeal of Florida, First District.
    May 10, 2004.

      Bill McCabe, of Shepherd, McCabe & Cooley, Longwood, for petitioners.
    Nancye R. Jones, Assistant County Attorney, County of Volusia, DeLand, for respondents.
   PER CURIAM.

Petitioners John Hauser and George Sperber, claimants in a workers’ compensation proceeding below, seek certiorari review and quashing of a discovery order by the judge of compensation claims (JCC) granting the employer/carrier’s (E/C) motion to compel inspection of claimants’ homes by a certified industrial hygienist. Upon review of the petition, the response by the E/C, and claimants’ reply, we approve the order under review and deny the petition for certiorari.

I. DISCOVERY PROCEEDINGS BEFORE THE JCC

Claimants Hauser and Sperber, along with sixty-three other claimants, filed petitions for workers’ compensation benefits alleging injuries due to repetitive exposure to toxic molds and related organic substances in the Volusia County Jail, where all claimants were employed as corrections officers. The E/C filed an amended motion for order compelling inspections of the claimants’ residences by a certified industrial hygienist. The scope of the discovery sought is described in the motion to compel as follows:

The consultant will take photographs, as necessary, collect air and dust samples from various locations within and outside the home, observe the ventilation system and collect environmental data. He will need approximately five to six hours in each claimants home.

Claimants filed their written response objecting to the E/C’s request for inspection and testing of their homes. Although based upon numerous grounds, they primarily contended that the discovery sought had not been shown to be necessary or relevant to the pending issues, and that the discovery should be denied in the absence of a full evidentiary hearing. Claimants stressed the importance of demanding adequate proof of entitlement to the discovery, giving fair consideration to the “intrusive nature” of the request. Claimants also asserted that allowance of the discovery should be conditioned upon certain reciprocal actions by the E/C not pertinent to our present discussion.

After receiving the E/C’s reply to claimants’ response to the motion for order compelling inspection of premises, and a surreply in the form of a letter from claimants’ counsel, the JCC entered an order granting the E/C’s motion for an order compelling inspection of the claimants’ residences. The JCC’s order states, in part:

The court finds the employer/carrier’s request for inspection to be relevant and-reasonably calculated to lead to the discovery of admissible evidence even after consideration of the intrusive nature of the request'.

(Emphasis added.) '

The JCC denied claimants’ request for an evidentiary hearing, citing as authority rules 60Q — 6.114(2) and (5), of the Florida Administrative Code (2003). This denial was accompanied by the JCC’s finding:

The court finds determination of the employer/carrier’s motion for inspection of premises does not require the taking of evidence. Please see 60Q-6.115(1) through (4).

II. RIGHT TO EVIDENTIARY HEARING

As an initial matter, we conclude that the JCC did not err in finding the E/C’s request for inspection of claimants’ homes to be relevant and reasonably calculated to lead to the discovery of admissible evidence. It seems patently obvious that because the injuries suffered by claimants are alleged to be related to the environmental condition of their workplace (toxic molds and other organic substances), the environmental condition of claimants’ homes would also be relevant.

In their response to E/C’s request for discovery, claimants asserted their “right to a full evidentiary hearing.” Claimants cite no statutory or regulations authority for this asserted “right.” Rather, in their petition for certiorari, claimants rely upon the decision in Roberts v. Ben Hill Griffin, Inc., 629 So.2d 236 (Fla. 1st DCA 1993). We find Roberts to be inappo-site to the case before us. The Roberts decision found that it was error to grant “ex parte” a motion to compel a second IME without affording claimant any notice or opportunity to be heard, and there were no facts alleged in the motion to compel which would support a statutory ground for a second IME. Roberts did not set forth any requirement for an evidentiary hearing. Furthermore, the Roberts decision was based upon rule 4.140(a), Florida Rules of Workers’ Compensation Procedure, which is no longer in effect. The subsequent rule, rule 4.065, does not require a hearing for procedural motions. The Committee Notes to rule 4.065 state in relevant part: “... the judge has discretion to determine whether and when an evidentiary hearing is necessary.” In re Amendments to the Fla. Rules of Workers’ Comp. Procedure, 795 So.2d 863, 871 (Fla.2000).

Further, under chapter 60Q-6 of the Florida Administrative Code “... unless the judge determines that a hearing is necessary based upon the statements in the motion and/or response as to why a hearing is necessary, written motions will normally be disposed of without a hearing. ...” Fla. Admin. Code r. 6.115(4) (2003). It is apparent from the finding of the JCC in the order before us that the need for an evidentiary hearing was considered and rejected by the JCC. In their reply to the E/C’s response to their petition for certiorari, claimants in fact concede that the current workers’ compensation rules “do not mandate a hearing on discovery disputes” unless deemed necessary by the JCC.

In support of their argument for the right to an evidentiary hearing, claimants also cite Suburban Propane v. Estate of Pitcher, 564 So.2d 1118 (Fla. 1st DCA 1990), and Southeast Recycling Corp. v. McClure, 658 So.2d 670 (Fla. 1st DCA 1995). We find nothing in these cases to alter our view that the necessity for an evidentiary hearing in workers’ compensation discovery disputes is a matter within the discretion of the JCC. Contrary to the position urged by claimants, the burden is upon the party opposing discovery to state objections and to set forth with some particularity the reasons why an evidentiary hearing is needed. Unless the objections set forth a claim of privilege, a trade secret or work-product, the party seeking discovery does not have to show good cause. See generally Hartford Accident & Indem. Co. v. McGann, 402 So.2d 1361 (Fla. 4th DCA 1981) (noting Florida Rules of Civil Procedure 1.350, committee notes no longer contain a good cause requirement and objecting party has first burden of establishing privilege).

III. NEED FOR ADDITIONAL PARAMETERS AND LIMITATIONS ON DISCOVERY

We next consider claimants’ argument that the JCC’s order departs from the essential requirements of law for failure to set parameters or limitations on the inspection of claimants’ homes. We note initially that the JCC’s order grants the E/C’s motion to compel which by its terms set forth, albeit in general terms, the scope of the discovery request and a description of the actions to be taken by the inspector. From the contents of the motion and the JCC’s order it is clear that the inspection will consist only of the collection of “air and dust samples” from various locations “within and outside the home,” observation of the “ventilation system,” and collection of “environmental data.” Photographs will also be taken “as necessary.” The estimated time for inspection will be “approximately five to six hours in each claimant’s home.”

We disagree with claimants’ assertion that the JCC’s order contemplates “unfettered access.” Nothing in the order prevents claimants or their representatives from being present at all stages of the discovery inspection. Any attempted actions taken by the E/C’s inspector other than as encompassed by the E/C’s motion and the JCC’s order granting the motion would be impermissible, and would necessarily be within claimants’ right to prohibit based upon claimants’ right of dominion and control over their own homes.

Although claimants deplore the absence of additional parameters and limitations in the JCC’s order, neither in their objections filed below, nor in the petition before us have they described any further parameters or limitations they deem essential to protection of claimants’ privacy interest. Considering the nature of the information sought and the means for obtaining it, we find that claimants have failed to show the need for additional parameters and limitations. We are not persuaded that remand to the JCC for further elaboration is necessary to comply with the essential requirements of law, and therefore reject this ground for the petition.

IV. RIGHT OF PRIVACY AND NEED FOR “BALANCING”

We agree that the “potential for invasion of privacy is inherent in the litigation process.” Rasmussen v. S. Fla. Blood Serv., 500 So.2d 533, 535 (Fla.1987). As a consequence, the Rasmussen court stated:

In deciding whether a protective order is appropriate in a particular case, the court must balance the competing interest that would be served by granting discovery or by denying it.

Id. at 535 (citations omitted).

Although claimants rely heavily on the decision in Rasmussen, we find that the “competing interests” with which the court was dealing in Rasmussen do not remotely resemble those involved in the case before us. Rasmussen involved the primary interests of blood donors, a blood service, and society in maintaining a strong volunteer donor system which would have been threatened by the disclosure of the blood donors’ names and addresses. It was therefore of great concern to the court that these interests be carefully weighed against the need for these names and addresses by a plaintiff who claimed to have contracted AIDS from a transfusion provided by the defendant blood service. After extensive discussion of the right of privacy under the U.S. Constitution, the Rasmussen court noted that a Florida citizen’s right to privacy is independently protected by our state constitution under Article I, section 23. As to this constitutional right to privacy, the court observed:

Although the general concept of privacy encompasses an enormously broad and diverse field of personal action and belief, there can be no doubt that the Florida amendment was intended to protect the right to determine whether or not sensitive information about oneself will be disclosed to others.

Id. at 536 (footnote omitted; emphasis added).

The privacy interests of a homeowner in the dust and air found in his home involves nothing that we can imagine in the way of “personal action and belief’ that might be considered “sensitive information about oneself.” We find no comparison between claimants’ asserted privacy interests and the privacy interests of a voluntary donor of ‘blood to a blood service accused of supplying blood contaminated with the AIDS virus. Here, only the claimants and members of their respective households will be inconvenienced, and the only “sensitive information” relates to the presence or absence of toxic molds or related organic substances in their household dust or air. In Rasmussen, the court found that disclosure of non-party blood donor identities “in any context involving AIDS could be extremely disruptive and even devastating to the individual donor.” Id. at 537. The stigmatizing effect of being associated with the AIDS virus is so self-evident as to need no further elaboration.

We find the same lack of comparison between discovery in this case and others cited by claimants, including Beverly Enterprises-Florida, Inc. v. Deutsch, 765 So.2d 778 (Fla. 5th DCA 2000) (quashing discovery order allowing entry and inspection of nursing home room where a patient fell and broke her hip, finding inspection would violate privacy rights of other nursing home residents, who are innocent non-parties, disapproved on other grounds by Alterra Healthcare v. Estate of Shelley, 827 So.2d 936 (Fla.2002)); Strasser v. Yalamanchi, 669 So.2d 1142 (Fla. 4th DCA 1996); and S. Diagnostic Assocs. v. Bencosme, 833 So.2d 801 (Fla. 3d DCA 2002). In Strasser, the Fourth District found the need for additional evidence to demonstrate the likelihood of retrieving purged information from defendant’s computer, and a further order defining parameters of time and scope, and sufficient access restrictions to prevent compromising patient confidentiality. In Southern Diagnostic Assocs. an order compelling inspection of a non-party’s computer system was determined to be overly-broad, and required on remand the crafting of a narrowly tailored order providing confidentiality. Here, claimants have no argument why they would have a need for privacy and confidentiality as to the air and dust samples from their homes that would tend to outweigh the need for determination of the presence of toxic molds or other harmful substances in their home environment.

V. ABSENCE OF “MATERIAL HARM”

Finally, claimants’ petition alleges that the order for inspection will cause “material harm” that could not be adequately remedied on appeal. Neither in their objections filed below nor in their petition before this court have claimants identified the nature of any “material harm” they anticipate from the proposed inspections. Significantly, they also do not suggest what, if any, evidence they would produce if given an opportunity to establish the likelihood of such harm at an evidentiary hearing. Furthermore, they do not elaborate in any respect upon the nature of any parameters or limitations they feel are essential to preventing or reducing such unspecified harm.

Accordingly, the petition for certiorari is denied.

ERVIN and BOOTH, JJ„ SMITH, LARRY G., Senior Judge, concur.


author: STEVENSON, J.

text:
    Jennifer SMITH, Appellant, v. 2001 SOUTH DIXIE HIGHWAY, INC. d/b/a City Mazda, Appellee.
    No. 4D03-2293.
    District Court of Appeal of Florida, Fourth District.
    May 12, 2004.
    Rehearing Denied June 18, 2004.

      Robyn S. Hankins of Robyn S. Hankins, P.L., West Palm Beach, for appellant.
    James S. Telepman of Cohen, Norris, Scherer, Weinberger & Wolmer, North Palm Beach, for appellee.
   ON MOTION FOR REHEARING

STEVENSON, J.

We grant appellee’s motion for rehearing, withdraw our prior opinion filed in this case on March 3, 2004, and affirm the order of the trial court which dismissed appellant’s complaint with prejudice.

Jennifer Smith appeals an order of the trial court dismissing her complaint with prejudice for failure to state a cause of action against City Mazda under Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”). Because a proper cause of action for a violation of FDUTPA was not pled within the four corners of Smith’s complaint, we affirm.

The essential facts are framed by the allegations in the complaint, which must be accepted as true for purposes of the motion to dismiss. See Sovran Bank, N.A. v. Parsons, 547 So.2d 1044 (Fla. 4th DCA 1989). Smith was employed by City Mazda and its predecessor company for thirteen years. Smith attempted to purchase a used car from City Mazda at a discount, but was told that the discount would apply only to the purchase of a new vehicle. Smith then purchased a used Mazda from one of City Mazda’s competitors. Thereafter, Smith was summarily terminated by City Mazda because she purchased a vehicle from another dealership.

Smith alleged that City Mazda violated FDUTPA by violating section 448.03, Florida Statutes, which prohibits an employer from discharging an employee for trading or dealing with any particular merchant, or for not trading or dealing with any particular merchant. Smith sought injunctive relief and other legal and equitable damages. City Mazda filed a motion to dismiss, arguing that Smith’s complaint “in essence, asserts a claim for damages for wrongful termination, under the guise of a claimed violation of the Florida Deceptive and Unfair Trade Practices Act.” Ultimately, the trial court granted City Mazda’s motion and dismissed the complaint with prejudice.

The Florida Deceptive and Unfair Trade Practices Act (FDUTPA), sections 501.201-.213, Florida Statutes (2002), provides a civil cause of action for “[ujnfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce.” § 501.204(1), Fla. Stat. A violation of FDUTPA may be based upon “[a]ny law, statute, rule, regulation, or ordinance which proscribes unfair methods of competition, or unfair, deceptive, or unconscionable acts or practices.” § 501.203(3)(c). Smith alleges that City Mazda violated section 448.03, which proscribes an unfair method of competition or an unfair or unconscionable act or practice. Section 448.03 provides in part that:

Any person or persons, firm, joint stock company, association or corporation ... having persons in their service as employees, who shall discharge any employee or threaten to discharge any employee in their service for trading or dealing, or for not trading or dealing as a customer or patron with any particular merchant ... shall be guilty of a misdemeanor of the first degree....

We conclude that the trial court was correct in dismissing appellant’s complaint because appellant did not allege a recoverable loss under the statute and, therefore, failed to state a cause of action. The essence of appellant’s demand for recovery under her complaint is clearly to seek reinstatement in her employment and the recovery of monetary damages related to the loss of her employment. FDUTPA authorizes a person “who has suffered a loss” as a consequence of a violation of the statute to recover “actual damages.” See § 501.211(2). In the context of FDUTPA, “actual damages” have been defined as “ ‘the difference in the market value of the product or service in the condition in which it was delivered and its market value in the condition in which it should have been delivered according to the contract of the parties.’ ” Rollins, Inc. v. Heller, 454 So.2d 580, 585 (Fla. 3d DCA 1984)(quoting Raye v. Fred Oakley Motors Inc., 646 S.W.2d 288, 290 (Tex.Ct.App.1983)). Actual damages, as pertaining to FDUTPA, does not include “actual consequential” damages. See Orkin Exterminating Co. v. DelGuid-ice, 790 So.2d 1158, 1162 (Fla. 5th DCA 2001), review denied, 821 So.2d 294 (Fla. 2002); Urling v. Helms Exterminators, Inc., 468 So.2d 451, 454 (Fla. 1st DCA 1985)(holding that FDUTPA allows recovery for diminished value of goods received but does not authorize recovery of special or consequential damages).

Although Smith is asking for injunctive relief, which is authorized under section 501.211(1), the relief she requests here is reinstatement to her employment position. The loss of her employment is an indirect and “consequential” result of the employer’s alleged violation of the statute — which was to require City Mazda’s employees to purchase vehicles from City Mazda. The proper injunctive relief under the statute would be to enjoin the violation. In addition, appellant could potentially have sought monetary damages in relation to the value of the vehicle she actually purchased. Nevertheless, these proper elements of damages were not sought in the complaint and appellant declined the trial judge’s invitation to amend, instead requesting dismissal with prejudice.

Accordingly, the judgment on review dismissing appellant’s complaint with prejudice is affirmed.

STONE and WARNER, JJ., concur.


author: FARMER, C.J.

text:
    Todd NADRICH, Appellant, v. Renee NADRICH, Appellee.
    No. 4D03-2045.
    District Court of Appeal of Florida, Fourth District.
    May 12, 2004.

      Hal Vogel, Aventura, for the husband.
    Lawrence A. France of Lawrence A. France, P.A., North Miami Beach, for the wife.
   FARMER, C.J.

A husband appeals from an omnibus pretrial order that, among other things, held him in contempt for refusing, while able to do so, to comply with past orders for the payment of temporary alimony, support and attorney’s fees. Among its several provisions, the order imposed an equitable lien on a separate homestead, purchased by the husband for himself after the parties separated, and an income deduction order. These remedies were premised on the trial court’s conclusion that he was attempting to hide income and assets so as to defeat or reduce any required alimony. We reverse the equitable lien and the income deduction order.

In reversing these two aspects of the order, by no means do we intend to foreclose the use of such remedies in this case. We simply require more pointed evidence, accompanied by specific factual findings for the equitable lien, and the adjustment of any income deduction order to an amount that on its face will fit within the statutes. We affirm on all other issues.

As for the equitable lien, there is certainly some evidence from which a court might begin to justifiably compare his conduct to Gepfrich v. Gepfrich, 582 So.2d 743 (Fla. 4th DCA 1991) (forced sale of man’s homestead proper where it was used to defraud former spouse and avoid payment of marital judgment debt to her). Here, however, the court did not make any finding that the husband is using the newly acquired homestead itself as an “instrument of fraud” or as a means to escape his support obligation to his wife. While the trial court expressly relied on Sibley v. Sibley, 833 So.2d 847 (Fla. 3d DCA 2002), this record lacks the particularized evidence and findings detailed there, except perhaps for an “adamant” refusal to produce the financial information the court had several times ordered produced. On remand, to reconsider the imposition of an equitable lien, the court may receive additional evidence and should make specific findings.

As for the income deduction order, it purports to take $4,930 out of the husband’s net pay of $3,262 from his new employer, which — apart from the mathematical problem — violates both the federal and state statutes on wage garnishments and income deduction orders. 15 U.S.C. § 1673(b); § 61.1301(l)(b), Fla. Stat. (2003).

POLEN and MAY, JJ., concur.


author: WARNER, J.

text:
    Michelle L. HUGHES, Appellant, v. Robert SCHATZBERG, Appellee.
    No. 4D03-3721.
    District Court of Appeal of Florida, Fourth District.
    May 12, 2004.
    Debra D. Duckett, Boca Raton, for appellant.
    Kathleen K. Pena, Pembroke Pines, for appellee.
   WARNER, J.

In challenging a final judgment modifying a custody decree and naming the father as primary residential parent of the minor child, the mother contends that the court abused its discretion on several issues. We affirm as to all issues, addressing only whether the trial court erred in permitting the child’s therapist to testify without establishing a waiver of the patient-psychotherapist privilege. We hold that the mother had no standing to assert the privilege on behalf of the child, nor was the court required to appoint a guardian ad litem to assert the privilege.

After a final judgment that provided for joint custody and shared parental responsibility of their child, the parties continued to dispute custody and visitation. In February 2002, the mother filed a petition to modify the final judgment, requesting that she be designated the primary residential parent. The father counter-petitioned, also asking to be the primary parent.

The father moved for a psychological evaluation of both the mother and child, alleging that the child was exhibiting signs of severe anxiety, and that the mother refused to allow the child to attend counseling. The parties then agreed to the appointment of Dr. Amy Swan, a psychologist, to counsel the child. The court ordered the parties to abide by the psychologist’s recommendations.

Dr. Swan met with both parents, visited their respective homes, and counseled the child for several months. She recommended blended family therapy with another therapist, and the trial court abated the proceedings for six months to allow the parties to work through their differences. Dr. Swan also met with the guardian ad litem appointed in the case to discuss the family’s issues.

Despite all efforts, the parties were unable to resolve the custody issues, and the case went to trial. When the father called Dr. Swan to testify, the mother objected to her testimony because the court failed to appoint a guardian ad litem on behalf of the child to waive the child’s patient-psychotherapist privilege. The trial court overruled her objection, and Dr. Swan testified. Her testimony consisted of evaluations of the condition of the child and both the mother and father. She observed that the child suffered from severe anxiety caused by the parents’ disputes and the constant switching between the parents due to the joint custody arrangement. She believed that the child’s needs would best be served by giving the father primary physical residence, as she opined that the mother needed intense psychotherapy and was unable to place the child’s needs ahead of her own. In her testimony, Dr. Swan also related that she had discussed the family and their issues with the appointed guardian ad litem.

After hearing all of the testimony, the court determined that a substantial change of circumstance had occurred since the entry of the final order in that the child was now exhibiting severe emotional distress as a result of her parents’ continued conflict and was at risk for further emotional harm if the joint custody continued. Therefore, the court found it in the best interest of the child for the father to become the primary residential parent.

While the mother contends that Dr. Swan should not have been allowed to testify without waiver of the patient-psychotherapist privilege on behalf of the child, the mother has no standing to assert the patient-psychotherapist privilege on behalf of the child where she is involved in litigation over the child’s welfare. See Attorney ad Litem for D.K v. Parents of D.K. 780 So.2d 301, 307 (Fla. 4th DCA 2001). In D.K we held that “a child has a privilege in the confidentiality of her communications with her psychotherapist [, and]- [wjhere the parents are involved in litigation themselves over the best interests of the child, the parents may not either assert or waive the privilege on their child’s behalf.” Id. The child involved was a seventeen-year-old girl who had asserted the privilege herself, and the court appointed an attorney ad litem to assist her in presenting the issue to the court. Here, the child is nine years old and did not assert any privilege herself.

The question presented is whether the court was required to appoint a guardian ad litem to assert or waive the privilege for the child. We cited to Nagle v. Hooks, 296 Md. 123, 460 A.2d 49 (1988) in D.K There, the Maryland Court of Appeals determined that because the parents’ interests may be in conflict, where the child is too young to personally exercise the privilege, the court must appoint a guardian ad litem to act in the best interest of the child in asserting or waiving the privilege. * See 460 A.2d at 51. Our supreme court has not adopted a similar bright line rule, nor did we in D.K In In re Adoption of Diane, 400 Mass. 196, 508 N.E.2d 837, 840 (1987), the court suggested that it would be a proper procedure to appoint a guardian ad litem to waive the patient-psychotherapist privilege, but the mother who had tried to assert the privilege in a custody proceeding did not have the standing to challenge the procedures regarding the waiver any more than she had standing to challenge the admission of the psychotherapist’s testimony.

Here, the child was appointed a guardian ad litem pursuant to section 61.403, Florida Statutes (2002). Unfortunately, the guardian ad litem was not at the hearing and did not either assert or waive the child’s privilege. She did speak to Dr. Swan and they discussed the case several times. However, section 90.503(3)(d) also permits the psychotherapist to assert the privilege on behalf of the patient. Thus, Dr. Swan herself could have asserted the privilege had she thought that it was in her patient’s interest to do so. She did not, most likely because a young child’s welfare was at stake, and the information she obtained regarding the family both from the child and her parents was essential to the court for it to make a decision in the best interests of the child.

The mother here is not asserting this position for the child’s benefit, which is why we said in D.K that the parents involved in litigation over the child’s best interest could neither assert nor waive their child’s patient-psychotherapist privilege. If the child’s privilege was not recognized, it does not constitute legal harm to the mother. Therefore, it is not a ground for reversal of the final judgment.

Affirmed.

POLEN and KLEIN, JJ., concur.

      . Because Dr. Swan was appointed to counsel the child, we do not believe that this falls within the exception for court-ordered evaluations and examinations excluded from the patient-psychotherapist privilege under section 90.503(4)(b), Florida Statutes (2002). Cf. In re Eduardo A., 209 Cal.App.3d 1038, 261 Cal. Rptr. 68, 69 (1989) (holding court order referring juvenile for counseling was not equivalent of court-ordered examination within meaning of exception to patient-psychotherapist privilege).


author: HAZOUEI, J.

text:
    Calvin L. GRIFFIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-801.
    District Court of Appeal of Florida, Fourth District.
    May 12, 2004.

      Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOUEI, J.

Calvin Griffin was charged by Information with one count of tampering with or fabricating physical evidence and one count of resisting an officer without violence. The jury found him guilty on both counts and a Judgment was entered in accordance with the jury verdict. Griffin appeals his Judgment and Sentence on the basis that the trial court improperly allowed certain prejudicial testimony to come into evidence during the trial. He alleges three separate instances of improper testimony. We agree that the trial court erred in allowing certain testimony relating to general criminal behavior and reverse for a new trial on the charge of tampering with or fabricating physical evidence.

The charges against Griffin arose from an incident that occurred on September 13, 2002. The Boynton Beach Police Department received information from an informant that at a certain location there would be a black male wearing a white shirt and purple pants with several cocaine rocks in his possession for the purpose of sale. Officers Rodriguez and Kelley went to the location and observed Griffin dressed in similar clothing. The officers alleged that they observed crack cocaine in Griffin’s mouth. They ordered Griffin to spit the cocaine rocks out, but he did not comply. The officers then attempted to arrest Griffin, but he resisted. Two other officers approached the scene and assisted in Griffin’s arrest. The cocaine was never recovered. The officers believed that Griffin swallowed the cocaine during the struggle.

At trial, Officer Rodriguez testified that he observed white crack cocaine rocks in Griffin’s mouth as the officers were talking to him. The prosecutor asked him: “In your experience as a police officer is it common for people to keep crack cocaine in their mouth?” Officer Rodriguez answered: “Through my training and experience, I’ve experienced lots of people place the crack on the side pocket between their gum line and their cheek where they conceal the crack cocaine.” Defense counsel objected to this testimony and argued that it is improper for police officers to testify regarding the characteristics or conduct of certain classes of criminals in general. The trial court overruled the objection. We reverse.

This court has previously held that general criminal behavior testimony is not allowed as substantive proof of a defendant’s guilt because every defendant has the right to be tried based on the evidence against him or her, not on the characteristics or conduct of certain classes of criminals in general. See Dean v. State, 690 So.2d 720, 723 (Fla. 4th DCA 1997).

This principle was applied in Lawrence v. State, 766 So.2d 250 (Fla. 4th DCA 2000). In that case, the testimony at issue was the officer’s testimony that it was not unusual for cocaine not to be recovered in certain situations. The prosecutor asked the officer in his experience what was common in those situations. The officer responded that sometimes people try to throw the cocaine away, throw it over the fence, or eat it. This court, relying on Dean, held that testimony of generalized common practices among drug dealers is not admissible as proof of guilt. See Lawrence, 766 So.2d at 251. The testimony was found to be inadmissible and prejudicial and the ease was reversed for a new trial.

In the instant case, Officer Rodriguez’s testimony was improper and prejudicial because it asked the jury to infer that Griffin did in fact have crack cocaine in his mouth, which he later swallowed, since it is a common practice. The State has not established that there is no reasonable possibility that the error contributed to the conviction, therefore the error is not harmless. See Goodwin v. State, 751 So.2d 537, 541 (Fla.1999) (quoting State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986)). Even though both Officers Rodriguez and Kelley testified that they were 100% sure that Griffin had cocaine in his mouth, their testimony was supported by Officer Rodriguez’s testimony that it is common practice for people to conceal crack cocaine in their mouth in that particular manner. In addition, the prosecutor relied on this statement during closing argument.

The improper testimony related to only the charge of tampering with or fabricating physical evidence. Therefore, we reverse the conviction of tampering with or fabricating physical evidence and remand for a new trial. We affirm the conviction of resisting an officer without violence; however, we remand for resentencing based on the removal of the conviction of tampering with or fabricating physical evidence which was originally included in the scoresheet.

FARMER, C.J., and GUNTHER, J., concur.


author: GUNTHER, J.

text:
    Johnny PANTIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1480.
    District Court of Appeal of Florida, Fourth District.
    May 12, 2004.

      Richard C. Komando and Jonathan C. Buekland of Komando & Associates, P.A., Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for appellee.
   GUNTHER, J.

Johnny Pantin pleaded nolo contendere to felony driving while license revoked (habitual offender). He specifically reserved the right to appeal the denial of his motion to suppress evidence of the crime based on an insufficient BOLO. We reverse.

At approximately 4:15 p.m., the Broward County Sheriffs Office issued a BOLO for a stolen late-model two-door Mitsubishi with one occupant. At the time, Deputy Ivan Roiz was driving westbound on West Hallandale Boulevard in heavy traffic. At approximately 4:30 p.m., he noticed the only automobile in the area matching the BOLO description and conducted a traffic stop.

Pantin was the driver of the car stopped by Roiz. Pantin admitted that he was driving with a suspended license. Roiz confirmed that Pantin’s license was revoked due to his status as a habitual offender, and arrested Pantin. However, the Mitsubishi that Pantin was driving was not stolen.

Pantin was charged by information with felony driving while license revoked (habitual offender). He then filed a motion to suppress the evidence resulting from the traffic stop on the ground that the BOLO was not specific enough to create a legal justification for stopping Pantin’s car. The trial court denied the motion. Pantin then pleaded nolo contendere and reserved his right to appeal the ruling.

“The standard of review applicable to a motion to suppress evidence requires that this Court defer to the trial court’s factual findings but review legal conclusions de novo.” Backus v. State, 864 So.2d 1158, 1159 (Fla. 4th DCA 2003)(citing Batson v. State, 847 So.2d 1149, 1150 (Fla. 4th DCA 2003)).

For an investigatory traffic stop to be lawful, “the police officer must be able to point to specific and articulable facts” that warrant “ ‘intrusion upon the constitutionally protected interests of the private citizen.’ ” Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1967) (citation omitted). Such facts must point to a “reasonable, well-founded suspicion that the person has committed, is committing, or is about to commit a criminal offense,” and a mere hunch is insufficient to meet this constitutional burden. Williams v. State, 454 So.2d 737, 738 (Fla. 2d DCA 1984)(eiting Kearse v. State, 384 So.2d 272 (Fla. 4th DCA 1980)). The totality of the circumstances determines whether reasonable suspicion exists. State v. Rizo, 463 So.2d 1165, 1167 (Fla. 3d DCA 1984)(citing Terry; Gorney v. State, 409 So.2d 220 (Fla. 4th DCA 1982)). When an investigatory traffic stop is not based on reasonable suspicion, it violates the Fourth Amendment and is unlawful, making evidence obtained as a result of the stop inadmissible as “fruit of the poisonous tree.” Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Lee v. State, 868 So.2d 577, 582 (Fla. 4th DCA 2004)(citing Wong Sun); Rizo, 463 So.2d at 1167 (citing Wong Sun).

Pantin contends that the BOLO on which Roiz acted was not specific enough to provide reasonable, well-founded suspicion for conducting an investigatory traffic stop. In support of his contention, Pantin relies on Sapp v. State, 763 So.2d 1257 (Fla. 4th DCA 2000). In Sapp, a BOLO for a “ ‘newer white, four-door vehicle containing at least two black males’ near 701 Northwest 19th Terrace” was issued. Id. at 1258. Law enforcement stopped a vehicle matching the description, and containing Sapp and another black male, about five blocks from the stated address, and over two hours after the BOLO was issued. Id. Cocaine was discovered in plain view in the vehicle, and Sapp was arrested and charged. Id. Sapp filed a motion to suppress that was denied by the trial court. Id.

This Court reversed after applying factors relevant to reviewing an investigatory traffic stop based on a BOLO: “the length of time and distance from the offense, route of flight, specificity of the description of the vehicle and its occupants, and the source of the BOLO information.” Id. at 1258-1259. This Court held the BOLO in Sapp’s case to be too general under these standards because it:

provided no information as to the speed, direction, make or model of the car, the car was stopped some 2 1/2 to 3 1/2 hours after the BOLO was issued, Officer Fuller did not testify that appellant engaged in any suspicious conduct or activity consistent with guilt, and, as the trial court noted below, there were “probably a hundred cars driving around in the street at that time that were white and had two black males in it.”

Id. at 1259.

Other cases reach similar conclusions to that in Sapp. For example, in Walker v. City of Pompano Beach, 763 So.2d 1146 (Fla. 4th DCA 2000), this Court concluded that law enforcement did not have a reasonable, well-founded suspicion to stop a vehicle based on a BOLO for a “small red colored vehicle Nissan/Toyota type” and lacking details of the crime or flight. Id. at 1148.

We conclude that the BOLO in Pantin’s case was not sufficient to create a reasonable, well-founded suspicion of criminality to warrant an investigatory traffic stop given the totality of the circumstances. Based on Sapp, the BOLO did not provide an adequate description of the vehicle under pursuit where Roiz did not recall whether it contained any information about the model, color, or window tinting of the vehicle. Roiz also could not recall any information about the speed, direction, or route of the vehicle. This information is especially important in the case at bar because there is no indication of whether the stolen car could be at Pantin’s location in heavy traffic in fifteen minutes where the BOLO lacked the location where the ear was stolen and its direction of travel. Additionally, Roiz could not indicate whether the source of the BOLO information was included or whether the occupant was further described. Lastly, Roiz did not testify that Pantin was engaged in any conduct indicative of guilt. Therefore, as in Sapp, the BOLO could have described countless cars being driven on the roads of, in this case, south Broward County.

The cases cited by the State in support of the sufficiency of the BOLO are distinguishable from the case at bar. The BO-LOs in those cases included significantly more information than the BOLOs in Sapp or the ease at bar. The BOLOs included information regarding flight route, vehicle occupant descriptions, detailed car descriptions, and license tag numbers, that are noticeably absent in the case at bar.

As such, the bare bones description in the case at bar leads inexorably to the conclusion that the BOLO was not specific enough to create the reasonable, well-founded suspicion necessary for a traffic stop. As a result, the stop violated the Fourth Amendment and tainted the evidence of Pantin’s revoked license, so that the motion to suppress should have been granted by the trial court. Therefore, we reverse.

REVERSED AND REMANDED for further proceedings consistent with this opinion.

FARMER, C.J., and HAZOURI, J., concur.


author: MAY, J. KLEIN, J,,

text:
    Charlotte SHIELDS, Appellant, v. ANDROS ISLE PROPERTY OWNERS ASSOCIATION, INC., Appellee.
    No. 4D03-1855.
    District Court of Appeal of Florida, Fourth District.
    May 12, 2004.

      Bryan J. Yarnell, P.A., West Palm Beach, for appellant.
    Lawrence M. Abramson, West Palm Beach, for appellee.
   MAY, J.

The rigors of living in compliance with the rules and regulations of a homeowner’s association set the stage for this appeal. The homeowner appeals a judgment entered in favor of the association. She chai-lenges the trial court’s interpretation of provisions of the Declaration of Covenants and the consequent injunctive relief granted. She also suggests that genuine issues of material fact precluded entry of a summary judgment on the issue of selective enforcement. We affirm in part and reverse in part.

Charlotte Shields purchased a home in the Andros Isles subdivision. Dissatisfied with the builder, she' displayed a sign in her front yard advertising the sale of her house and criticizing the builder. She placed other signs complaining about her home and its builder in the windows of her automobile.

A notice was sent to her concerning the “for sale” yard sign in November 2000. Around that time, the property manager came to her home and gave her a copy of the applicable sections of the Declaration. He told her to reduce the size of her “for sale” sign to not greater than two square feet in area to be in conformity with the rules. Accordingly, she reduced the size of her sign as instructed.

Notices about the signs were again sent in October, and November 2001. This time, the association demanded that she remove all the signs because they violated the Declaration.

On January 7, 2002, the association filed a complaint against the homeowner for temporary and permanent injunctive relief. Following a temporary relief hearing, the trial court entered an order granting a temporary injunction that enjoined the homeowner from posting signs on her lot, but denied relief with respect to the signs posted in her automobile windows.

The homeowner filed a motion for partial summary judgment, requesting the court to find that the signs displayed in her automobile windows were not in violation of the Declaration. The association filed a response and counter-motion for summary judgment. It requested the court to find the Declaration not only prohibited the sign in her yard, but those in the windows of her automobile.

The homeowner filed a reply, response, and counter-motion for summary judgment. She alleged selective enforcement and waiver as affirmative defenses. She also filed an affidavit attaching photographs of several other sign violations.

The court heard the motions for summary judgment, and granted the association’s motion. The court held that “Article VIII, Section 8, of the Declaration providing ‘no sign of any kind shall be displayed to public view on any lot ... ’ encompasses the signs displayed in Defendant’s vehicle.” The court also found that “Article VIII, Section 11 of the Declaration, which provides a prohibition against signage on vehicles, also encompasses a prohibition against the signs displayed in Defendant’s vehicle.” The court reserved ruling on costs and attorneys fees.

Interpreting the Declaration

Well-established rules of construction control our review and interpretation of the Declaration. Written documents, including declarations, and the legal effects to be drawn therefrom, are essentially questions of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000); Royal Oak Landing Homeowner’s Ass’n v. Pelletier, 620 So.2d 786 (Fla. 4th DCA 1998).

“Restrictions found within a Declaration are afforded a strong presumption of validity, and a reasonable unambiguous restriction will be enforced according to the intent of the parties as expressed by the clear and ordinary meaning of its terms....” Emerald Estates Cmty. Ass’n, v. Gorodetzer, 819 So.2d 190, 193 (Fla. 4th DCA 2002). However, “[rjestrictive covenants are not favored and are to be strictly construed in favor of the free and unrestricted use of real property.” Wilson v. Rex Quality Corp., 839 So.2d 928, 930 (Fla. 2d DCA 2003) (citing Moore v. Stevens, 90 Fla. 879, 106 So. 901, 903 (1925)). “Due regard must be had for the purpose contemplated by the parties to the covenant, and words used must be given their ordinary, obvious meaning as commonly understood at the time the instrument containing the covenants was executed.... ” Id. (quoting Moore, 106 So. at 903). “Any doubt as to the meaning of the words used must be resolved against those seeking enforcement.” Id.

The homeowner argues that the trial court misinterpreted sections 8 and 11 of the Declaration. We agree in part. Section 8 states “[n]o signs of any kind shall be displayed to public view on any Lot except one sign of not more than two (2) square feet advertising such Lot for sale or rent.” (Emphasis added.) A “Lot” is defined by the Declaration as “any plot of land within” Andros Isle including the “[rjesidence and all improvements constructed on a Lot.” Relying on Wilson, the homeowner argues that section 8 clearly and unambiguously applies only to “any plot of land.” In that case, the second district reasoned that in applying the ordinary and obvious meaning of the words utilized, a similarly worded provision applied only to lots and not vehicles. We agree. The court erred in applying this provision to the signs inside the automobile windows.

The question then becomes whether section 11 encompasses signs located within the interior of an automobile. Section 11 states that “[njo vehicles, except four wheeled passenger automobiles ... with no lettering or signage thereon, shall be placed, parked or stored upon any Lot....” The homeowner argues that section 11, which specifically applies to automobiles and signage thereon, only prohibits signage “thereon,” not “therein”. Riser v. Fed. Life Ins. Co., 207 Iowa 1101, 224 N.W. 67, 68 (1929) (When used to designate location, the prepositions “in” and “on” are never synonymous. “In” means within the interior, “on” mean upon the surface.) The association responds that section 11 prohibits signs anywhere on the vehicle. Once again, we agree with the homeowner.

“Thereon” is defined as “[ojn or upon this, that, or it.” The AMERICAN HeRitage DICTIONARY OF THE ENGLISH LANGUAGE, 1335 (New College ed.1981). “Therein” is defined as “[ijn that place or context.” Id. The clear and ordinary meaning of the term “thereon” suggests that the signs located within the interior of the homeowner’s car do not violate section 11 of the Declaration.

The language employed in section 11 as a whole does not suggest an intent to prohibit interior vehicle signs displayed to criticize the builder’s workmanship. Rather, as worded, the section allows four wheeled passenger automobiles, standard sized pick ups not exceeding a one-ton capacity, sports utility vehicles, and passenger vans to be placed, parked, or stored on a Lot. It disallows larger four wheeled vehicles, which tend to be commercial or recreational in nature. Typically, what sets personal use vehicles apart from commercial vehicles is not only their size, but the signage or lettering on the vehicle advertising their business. Thus, section 11 is aimed at prohibiting four wheeled vehicles of a recreational or commercial nature from parking on any lot in plain view, not from prohibiting residents from hanging signs, in their car windows. The trial court misinterpreted section 11 as a matter of law and erred in applying it to prohibit the signs in the homeowner’s vehicle.

Selective Enforcement

Lastly, the homeowner argues that the undisputed evidence established that the association selectively enforced the Declaration against her. She presented evidence showing: -1) 124 violations of the sign restrictions; 2) the association’s new board was aware of the nonconforming signs; and 3) the new board sent only 11 violation notices to homeowners. “When selective enforcement is demonstrated, the association is ‘estopped’ from applying a given regulation.” Chattel Shipping & Inv., Inc. v. Brickell Place Condo. Ass’n, 481 So.2d 29, 30 (Fla. 3d DCA 1985) (citing White Egret Condo., Inc. v. Franklin, 379 So.2d 346, 352 (Fla.1979)).

Viewing all inferences in favor of the homeowner, the association failed to conclusively show the absence of genuine issues of material fact on this issue. See Holl v. Talcott, 191 So.2d 40 (Fla.1966). The trial court erred in granting the association’s motion for summary judgment in this regard.

The judgment is reversed as it relates to the signs inside the automobile. To the extent the judgment enjoined the homeowner concerning the “for sale” sign based upon its noncompliance with the Declaration, it is affirmed subject to further proceedings concerning the issue of selective enforcement.

HOROWITZ, ALFRED J., Associate Judge, concur.

KLEIN, J., concurring in part and dissenting in part.

KLEIN, J,,

concurring in part and dissenting in part.

I concur with that portion of the opinion concluding there are issues of fact as to selective enforcement. I dissent from that portion of the opinion concluding that there is a distinction between a sign on the inside of a window of a vehicle and a sign on the outside of a vehicle.

Ms. Shields acknowledged in her deposition that signs were “attached on the inside of the windows” of her vehicle facing out. The majority agrees that “thereon” as used in the restriction means “on.” I see no difference between a sign being “on” the inside surface of a window or being “on” the outside surface.

Words, as the majority recognizes, should be given their “ordinary’, obvious meaning as commonly understood.” I submit that any reasonable person, if asked whether there was a sign “on” this vehicle, would answer yes. The majority appears to have been persuaded by the fact that the sign also happens to be in the vehicle; however, that fact does not preclude the sign from being on the vehicle. I would affirm the summary judgment in that respect.

      . The developers transferred control of the Board of Directors to the homeowners association in December 2002.

      . The homeowner also argues that the association has waived its right to enforce the sign restrictions. Waiver, if any, by the developer-controlled board cannot be imputed to the new board that has consistently sought to enforce the sign restrictions against this homeowner. This court has previously held that a new board may enforce restrictions which were unenforced by a prior board where the “overall examination of the record discloses a consistent effort by the association to enforce the restriction since it acquired the right to do so.” Estates of Fort Lauderdale Prop. Owners Ass’n v. Kalet, 492 So.2d 1340, 1342 (Fla. 4th DCA 1986). There is no genuine issue of material fact as to this issue.


text:
    Michael A. PUSKAC, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-1077.
    District Court of Appeal of Florida, Fourth District.
    May 12, 2004.
    Michael A. Puskac, Arcadia, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Michael Puskac appeals the summary denial of his motion for postconviction relief, which raised two claims. We affirm as to the first issue without comment.

In the second claim of error, Puskac argues his habitual felony offender sentence is illegal since the predicate convictions used to habitualize him were not sequential. Based on this court’s holding in Richardson v. State, 28 Fla. L. Weekly D1716, — So.2d-, 2003 WL 21697171 (Fla. 4th DCA July 23, 2003), supplemented on reh’g, 29 Fla. L. Weekly D215 (Fla. 4th DCA Jan.14, 2004) we agree. While this issue was raised and rejected in a prior motion for postconviction relief, denying the instant claim, in light of the recent holding in Richardson, would result in manifest injustice. See State v. McBride, 848 So.2d 287, 291 (Fla.2003).

As such, we reverse the summary denial as to this issue alone and remand. As we did in Richardson, the State may introduce evidence of other qualifying convictions which would allow for a habitual felony offender sentence, should any exist. Additionally, we again certify conflict with McCall v. State, 862 So.2d 807 (Fla. 2d DCA 2003), and subsequent cases from the Second District Court of Appeal.

FARMER, C.J., WARNER and TAYLOR, JJ., concur.


text:
    Thomas V. GALLON, Petitioner, v. Jerry REIGER, Secretary, Department of Children and Families, Respondent.
    No. 1D04-0438.
    District Court of Appeal of Florida, First District.
    May 13, 2004.

      Thomas V. Gallon, pro se, petitioner.
    No appearance for respondent.
   PER CURIAM.

DENIED. Cartwright v. State, 859 So.2d 526 (Fla. 1st DCA 2003).

ALLEN, PADOVANO and LEWIS, JJ., concur.


text:
    Calvin B. WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-0389.
    District Court of Appeal of Florida, First District.
    May 13, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Baker v. State, 714 So.2d 1167 (Fla. 1st DCA 1998).

ERVIN, BENTON and LEWIS, JJ., Concur.


text:
    Michael K. HALL, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-0211.
    District Court of Appeal of Florida, First District.
    May 13, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s summary denial of his motion for additional jail and prison credit. Because his motion is facially insufficient, we affirm.

The appellant claims he is due an additional 257 days of credit for time served in the Jackson County Jail against his Columbia County conviction. However, the appellant failed to allege when he was arrested for the Columbia County charge, where in the record the dates of his Columbia County arrest can be located, and that his Columbia County warrant was conveyed to Jackson County. See Gethers v. State, 838 So.2d 504 (Fla.2003); Travis v. State, 724 So.2d 119, 120 (Fla. 1st DCA 1998).

The appellant also alleges that he is entitled to 168 days of prison credit for time spent in the Department of Corrections. However, the appellant has failed to allege any legal theory supporting entitlement to relief. See, e.g., Tripp v. State, 622 So.2d 941 (Fla.1993).

AFFIRMED.

BARFIELD, DAVIS, and BENTON, JJ., concur.