author: PARIENTE, J., SHAW, J.,

text:
    THE FLORIDA BAR Re Lydia Owen BOESCH.
    No. SC02-1998.
    Supreme Court of Florida.
    Dec. 12, 2002.
   ORDER

After Lydia Owen Boesch was admitted to The Florida Bar in 1986, she was deemed “delinquent” in 1993 when she failed to pay her membership fees for that year. Subsequently, after she faded to pay her fees for five years in a row, her membership lapsed on October 12, 1998. See R. Regulating Fla. Bar 1-3.6, 1 — 3.7(d). She now has applied for admission to the North Carolina Bar and, despite her delinquency in Florida, asks this Court to certify that she is in good standing.

Rule Regulating the Florida Bar 1-3.2 addresses the issue of “good standing” and its language is unequivocal:

(a) Members in Good Standing. Members of The Florida Bar in good standing shall mean only those persons licensed to practice law in Florida who have paid annual membership fees or dues for the current year and who are not retired, resigned, delinquent, inactive, or suspended members.

R. Regulating Fla. Bar l-3.2(a) (emphasis added). No other provision of the Rules Regulating the Florida Bar authorizes this Court to designate Boesch as being in good standing.

The petition is denied.

WELLS, LEWIS, QUINCE, and CANTERO, JJ., concur.

PARIENTE, J., concurs with an opinion, in which CANTERO, J., concurs.

SHAW, J., dissents with an opinion, in which ANSTEAD, C.J., concurs.

PARIENTE, J.,

concurring.

I am sympathetic to the plight of the petitioner; however, the rules, as currently written, do not permit this Court to issue a limited certifícate of good standing. The majority has made clear that the sole reason that this Court cannot certify that Ms. Boesch is in good standing with The Florida Bar is because her membership lapsed as a result of nonpayment of dues after a period in excess of five years. Hopefully, this will not serve as an impediment to Ms. Boesch’s ability to seek admission to the North Carolina Bar and I urge the North Carolina Bar to recognize that for its purposes, this Court’s order is a limited certifícate. Further, because the Bar has referred to an unintended “glitch” in subchapter 1-3 of the Rules Regulating the Florida Bar for certain individuals seeking admission to other state bars, I suggest that The Florida Bar review our current rules and propose amendments to this Court that would accommodate circumstances similar to the predicament in which Ms. Boesch finds herself.

CANTERO, J., concurs.

SHAW, J.,

dissenting.

I would certify that under subchapter 1-3, Rules Regulating the Florida Bar, Lydia Boesch is in good standing to apply for readmission to The Florida Bar. She has an unblemished disciplinary record, owes no fees, and has no outstanding continuing legal education (CLE) or basic skills course requirements. Should she decide to apply to the Bar, she stands in exactly the same position as any other new applicant in this regard. The Florida Bar agrees with this analysis.

I. FACTS

The following facts are set forth in Lydia Boesch’s pending petition for extraordinary relief. Boesch graduated from Florida State University with a degree in business in 1975 and worked as a certified public accountant in Jacksonville and Orlando until 1983 when she enrolled in law school at American University in Washington, D.C. She graduated from law school in 1986, took and passed the Florida bar exam in 1986, and was admitted to The Florida Bar in 1986. Subsequently, she worked as a staff attorney for a judge on the United States Tax Court in Washington, D.C., until June 1988. She then moved to San Francisco in August 1989, took and passed the California bar exam in 1990, was admitted to the California Bar in October 1990, and worked for a law firm there.

Boesch continued to pay her Florida Bar membership fees until 1993, when she decided that she would not be returning to Florida. Her membership in The Florida Bar lapsed on October 12, 1998, for nonpayment of fees for five years. Boesch moved to North Carolina in June 2001 and in December of that year applied to take the North Carolina bar exam. Section .0501 of the Rules Governing Admission to the Practice of Law in the State of North Carolina provides as follows:

.0501 Requirements for General Applicants
As a prerequisite to being licensed by the Board to practice law in the State of North Carolina, a general applicant shall:
(7) If the applicant is or has been a licensed attorney then the applicant be in good professional standing and entitled to practice in every state or territory of the United States, or the District of Columbia, in which the applicant has been licensed to practice law and not under any pending charges of misconduct. An applicant may be inactive and in good standing in any state in which the applicant has been licensed.

(Emphasis added.) Pursuant to this rule, Boesch obtained a statement from the California Bar that was acceptable to the North Carolina bar examiners.

As for her standing in Florida, Boesch has had extensive correspondence with The Florida Bar and the Bar has written two letters on her behalf in an unsuccessful attempt to satisfy the Board of Law Examiners of the State of North Carolina (“North Carolina law examiners”). Accordingly, The Florida Bar and Boesch have worked together and determined that her best course is to file a petition for extraordinary relief in this Court, which she has done. In her present petition, she requests that “some form of good standing [be] bestowed upon petitioner by this Court for the limited purposes of her pending application with NC Law Examiners.” The Florida Bar has written a letter to the Clerk of this Court stating that it does not oppose the petition and that the Bar in fact helped Boesch frame her petition.

II. THE CORRESPONDENCE

The relevant correspondence in this case consists of a series of letters from the North Carolina law examiners to Boesch, on the one hand, and then from The Florida Bar to the North Carolina law examiners, on the other hand. This correspondence began on March 5, 2002, with the following brief statement to Boesch from the North Carolina law examiners:

This is written in regard to your application to take the July 2002 North Carolina Bar Examination.
If you have been advised that you are not in good standing with the Florida Bar and cannot obtain a certificate of good standing, this affects your application to take the NC Bar Examination. Please note Rule .0501(7).
You are being advised of this so you can take whatever steps necessary to correct this matter.

The Florida Bar on April 1, 2002, responded to the North Carolina law examiners with a lengthy letter explaining that, due to an unintended “glitch” in subchap-ter 1-3 of the Rules Regulating the Florida Bar, the rules “work an undue hardship on certain individuals seeking admission to other state bars or selected employment that is dependent upon an unequivocal Florida Bar representation of their membership ‘in good standing.’ ” The letter concluded as follows:

A formal characterization of Ms. Boesch’s membership highlights the shortcomings in our rules and nomenclature. Rule 1-3.2 of the Rules Regulating The Florida Bar, “Membership Classifications,” specifies only three official member categories: members in good standing, conditionally admitted members, and inactive members....
Prior to Ms. Boesch being administratively dropped from our rolls after the five-year period in which she did not pay annual fees, she was indeed a “member” of The Florida Bar — she was clearly not inactive, nor conditionally admitted, but she did not otherwise meet the full requirements for “good standing” which include payment of current fees. Additionally important — during Ms. Boesch’s entire period of “membership,” she had no history of discipline for professional or other misconduct by The Florida Bar or the Supreme Court of Florida.
Therefore, for the purposes of your inquiry, we would characterize Ms. Boesch as a member in good standing but for unpaid fees at the time that she was dropped from the membership rolls of The Florida Bar. Any other categorization of her membership would be outside the three official membership classifications currently recognized by our governing rules, and may inappropriately affect her pending application for admission to the North Carolina Bar.

The North Carolina law examiners on April 16, 2002, wrote a brief but key dispatch to Boesch, articulating their primary concern:

We have discussed your situation and that you are not a member in good standing in the Florida Bar and I have received follow up materials from Paul F. Hill, General Counsel of the Florida Bar.
Because you are not in good standing with the Florida Bar, this affects your eligibility to take the North Carolina Bar Examination. Rule .0501(7) has been interpreted by the Board to mean that an applicant must be in good standing with any bar in which the applicant has been admitted even if an applicant is not in good standing for nonpayment of dues or not being up to date on CLE.

(Emphasis added.) Apparently, it is the policy of the North Carolina law examiners to deny the application of anyone who is not in good standing because of fee arrear-ages or outstanding CLE requirements.

The Florida Bar on April 30, 2002, again wrote a lengthy letter explaining that due to the unintended “glitch” in subchapter 1-3 “our rules have led to questionable outcomes in certain instances involving other state bar admissions.” The letter explained further:

If Ms. Boesch were to seek admission to practice law in our state anew through the Florida Board of Bar Examiners — and if The Florida Bar were asked to speak officially regarding that issue — we would not offer any unfavorable commentary regarding Ms. Boesch’s character and fitness due to her circumstances while previously admitted to practice in our state. Her final status as a “lapsed” member, who departed The Florida Bar no longer in good standing solely by virtue of nonpayment of membership fees, is not viewed by this organization as an impediment to readmission. Indeed, I understand that individuals situated similarly to Ms. Boesch who have actually applied for readmission in Florida have not experienced any difficulties in this regard with our state’s bar examiners if their lapse in prior membership was not related to professional misconduct.

Having received no clear response to its inquiry as to whether Ms. Boesch still owed membership fees in Florida, the North Carolina law examiners sent Boesch two brief letters. The first, dated June 12, 2002, read as follows:

The Board has recently considered your situation that you are not in good standing in a jurisdiction in which you ■have been previously admitted. I have been requested to advise you that you are not in compliance with Rule .0501(7) of the Board’s Rules. You will be given six months from the date of this letter to get in good standing with that Bar and have the requisite Character and Fitness to take the NC Bar Examination.

The second letter, dated June 28, 2002, read as follows:

In response to your letter, if the Florida Supreme Court will give you a certificate of good standing that would be sufficient.

Based on this final letter, Boesch, with the assistance of The Florida Bar, has submitted the present petition to this Court. The North Carolina law examiners have given Boesch until December 12, 2002, to comply with their requirements.

III. THE APPLICABLE RULES

This Court, of course, encounters the same unintended “glitch” in the rules that the Bar encountered. Rule 1-3.2 sets forth three membership classifications in The Florida Bar: “members in good standing,” “conditionally admitted members,” and “inactive members.” A “member in good standing” is defined thusly:

(a) Members in Good Standing. Members of The Florida Bar in good standing shall mean only those persons licensed to practice law in Florida who have paid annual membership fees or dues for the current year and who are not retired, resigned, delinquent, inactive, or suspended members.

R. Regulating Fla. Bar l-3.2(a). Under this rule, no one .can be characterized as “a member in good standing” unless he or she fits the above criteria.

As the Bar points out, this rule works an undue hardship on Ms. Boesch and others who in good faith have “constructively retired” under rule l-3.7(d) by declining to pay membership fees for five years in a row. Such persons cannot be characterized as “former members in good standing” because they in fact did owe fees for five years prior to their constructive retirement. And yet such “constructive retirements” are sanctioned by the rules and are pursued innocently by members.

The rules themselves, I believe, offer a common sense solution to this “glitch.” In addition to the three membership classifications noted above under rule 1-3.2, two other rules, i.e., rules 1-3.5 and 1-3.6, denote two de facto classifications: “retired members,” and “delinquent members.” Reading sections l-3.2(c), 1-3.5, and 1-3.6 in pari materia, a member in good standing may alter his or her membership status in three ways: the member may become “inactive,” may “retire,” or may become “delinquent.” The present case- concerns only the latter classification.

A member may become “delinquent” by declining to pay membership fees or declining to meet CLE or basic skills course requirements. A delinquent member (a) must continue to pay annual membership fees, (b) must continue to meet CLE requirements, and (c) may petition to be reinstated if delinquent for less than five years or may apply to be readmitted if delinquent for five years or more. Specifically, a member — if delinquent for less than five years — can extinguish the delinquency by paying fee arrearages and completing outstanding course requirements. On the other hand, a member — if delinquent for five years or more — -“shall not be reinstated ... and must be readmitted upon application to and approval by the Florida Board of Bar Examiners.”

In the present case, prior to the time Ms. Boesch’s membership lapsed on October 12, 1998, she was eligible to be reinstated by paying her fee arrearages and completing her outstanding course requirements. After October 12, 1998, however, she no longer was eligible for reinstatement, even if she so desired. The only way for her to become a member was to apply for readmission just as anyone else seeking to take the bar examination. Although Ms. Boesch no longer was eligible for reinstatement, she nevertheless was in good standing with the Bar in terms of applying for readmission, for the slate had been wiped clean of fee arrearag-es and outstanding course requirements.

V. CONCLUSION

Ms. Boesch did everything right under the above rules to accomplish her stated goal of unilaterally ending her membership in The Florida Bar. Instead of filing to become an inactive member or petitioning to retire, she simply declined to pay her fees. After five years, her membership lapsed. According to her sworn petition, Ms. Boesch was not a scofflaw- trying to cheat the Bar out of membership fees but rather was a rule-abiding member who was seeking only to effect a “constructive retirement.”

All parties agree that. Ms. Boesch has an unblemished disciplinary record in Florida, Washington, D.C., and California. According to her sworn petition, Ms. Boesch has compiled an exemplary record during her years of practice. While a member of the California Bar, Ms. Boesch was accorded numerous awards for her selfless devotion to the citizens of that state and she has garnered national recognition for her pro bono work on behalf of the homeless. In fact, one of the largest cities in the nation has designated May 12, 2001, as “Lydia Boesch Day”:

Petitioner has devoted a substantial portion of her practice to performing pro bono work. In 1991, she was given the Outstanding Pro Bono Attorney award by the San Francisco Bar Association for her work on behalf of the homeless. Her work on behalf of the homeless also was featured in a video presentation shown at the 1992 Annual Meeting of the American Bar Association. This presentation was commissioned by Talbot “Sandy” D’Alemberte, then President of the ABA. In 2001, the Board of Supervisors of the City and County of San Francisco named May 12, 2001, “Lydia Boesch Day” in San Francisco, in commendation for the pro bono work petitioner had provided on behalf of the citizens of San Francisco.

This Court, in denying Ms. Boesch’s petition, is perpetrating a double injustice. First, the Court is working an injustice against Ms. Boesch, for the Court is barring an extraordinarily gifted and passionate member of the legal profession from contributing to society in a manner that is commensurate with her abilities and expertise. Second, the Court is working an injustice against society, for the Court is depriving society of the substantial services of this highly skilled and nationally recognized advocate of the poor and underprivileged. Instead of interposing a procedural bar that effectively ivill prevent Ms. Boesch from practicing law ever again in many states, this Court should be lauding her exemplary devotion to the legal profession.

On this record, Ms. Boesch appears to embody all that is fíne and noble in the legal profession and I would certify to the North Carolina law examiners the simple truth:

Under subchapter 1-3, Rules Regulating the Florida Bar, Ms. Boesch is in good standing to apply for readmission to The Florida Bar. She has an unblemished disciplinary record, owes no fees, and has no outstanding OLE or basic skills course requirements.

No party opposes Ms. Boesch’s petition. Just the opposite. As noted above, not only does the The Florida Bar not oppose the petition, but the General Counsel for the Bar has written several letters on Ms. Boesch’s behalf and has assisted her in framing the present petition. Additionally, the Executive Director of the Bar has written to the Clerk of this Court on her behalf. The Bar concedes that the unintended “glitch” in subchapter 1-3 is largely unforeseeable and can cause an unfair hardship on former members such as Ms. Boesch. The Bar, however, feels “handcuffed” by the rules and looks to this Court for guidance in solving this problem.

No party has briefed this Court in opposition to the Bar’s and Ms. Boesch’s position.

In my opinion, subchapter 1-3 was promulgated to foster the ideal of professionalism in the practice of law and never was intended to “handcuff’ the Bar and compel that body to forsake the principles of fair play and essential justice. Accordingly, I would read these rules broadly — as intended — to promote the interests of society and the legal profession at large, not narrowly and parsimoniously to effect this heart-rending injustice.

ANSTEAD, C.J., concurs.

      . See R. Regulating Fla. Bar 1-3.2(a).

      . See R. Regulating Fla. Bar 1-4-3.2(b).

        .See R. Regulating Fla. Bar 1 — 3.2(c); 1-7.3(d).

      . See R. Regulating Fla. Bar 1-3.5.

      . See R. Regulating Fla. Bar 1-3.6.

      . See R. Regulating Fla. Bar 1-3.6.

      . See generally id. (providing no exemption for fees).

      . See generally id. (providing no exemption for CLE requirements).

      . See R. Regulating Fla. Bar 1-3.7(a)-(c).

      . See R. Regulating Fla. Bar 1-3.7(d).

      . See id.

      . R. Regulating Fla. Bar 1-3.7(d) (emphasis added).

      . The General Counsel to The Florida Bar was emphatic on this point in his letter of April 30, 2002:
      If Ms. Boesch were to seek admission to practice law in our state anew through the Florida Board of Bar Examiners — and if The Florida Bar were asked to speak officially regarding that issue — we would not offer any unfavorable commentary regarding Ms. Boesch's character and fitness due to her circumstances while previously admitted to practice in our state. Her final status as a "lapsed” member, who departed The Florida Bar no longer in good standing solely by virtue of nonpayment of membership fees, is not viewed by this organization as an impediment to readmission. Indeed, I understand that individuals situated similarly to Ms. Boesch who have actually applied for readmission in Florida have not experienced any difficulties in this regard with our state’s bar examiners if their lapse in prior membership was not related to professional misconduct.
      (Emphasis added.)


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Nathan I. LEEDER and G.T. Privateer, Petitioners, v. Heberto R. ESPINOSA and Merchant Financial Solutions, Inc., Respondents.
    No. 3D02-138.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 2002.
    Paul H. Bass, for petitioners.
    George, Hartz, Lundeen, Flagg & Ful-mer, Coral Gables, and C. Robert Murray, Jr., for respondents.
    Before JORGENSON, GODERICH and FLETCHER, JJ.
   PER CURIAM.

The petitioners seek a writ of prohibition ordering the Honorable Eleanor Schockett to disqualify herself from presiding over the case below. As this Court stated in a previous case involving petitioner’s counsel and Judge Eleanor Schockett, disqualification of a trial judge is appropriate where the petitioner asserts that he. cannot receive a fair trial or hearing because his counsel was an opponent in the judge’s reelection campaign. Tower Group, Inc. v. Doral Enterprises Joint Ventures, 760 So.2d 256, 257 (Fla. 3d DCA 2000). Furthermore, we must reiterate that:

[Under certain circumstances], we believe that the trial judge may have had an obligation to sua sponte recuse herself from this cause pursuant to Canon 3(E)(1)(a), Code of Judicial Conduct; that canon requires that:
(1) A.judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where:
(a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of disputed evidentiary facts concerning the proceedings^]

Tower, 760 So.2d at 257.

Accordingly, we grant the petition, quash the order under review, and remand for entry of an order disqualifying the trial judge from this proceeding.


text:
    Henry M. RUBINSTEIN, D.C., Appellant, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 3D00-3468.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 2002.
    Henry M. Rubinstein, D.C., in proper person.
    Gregory J. Philo, Chief Appellate Counsel, Agency for Health Care Administration, Tallahassee, for appellee.

      Before COPE, GREEN, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

Appellant, a chiropractic physician, appeals a final order requiring him to reimburse Medicaid in the amount of $70,518.26 and personally fining him $5,000 for having claimed and been paid for unauthorized and unsubstantiated services. Because appellant did not file any exceptions to the Administrative Law Judge’s recommended order, he has not reserved any of his claims here for review. See Fla. Dept. of Corrections v. Bradley, 510 So.2d 1122, 1124 (Fla. 1DCA 1987). We have nonetheless reviewed the briefs and records and find that in a substantial number of patients, Dr. Rubinstein submitted claims for which there was no medical necessity demonstrated nor was there adequate support of any standardized methods to show patients in need of the services. We also observed that there is ample competent and substantial evidence to fully support the Administrative Law Judge’s finding as adopted by the agency. We find that there was no error in the case not having been referred to the attorney general for criminal prosecution. The acts which precipitated the complaint and order were much more appropriately handled by the Agency for Health Care Administration which is the agency responsible for overseeing part of the Medicaid program covering overpayments of Medicaid money. Moreover, the Administrative Law Judge found there was no reasonable basis to suspect there was a criminal violation.

Affirmed.


author: COPE, J.

text:
    The STATE of Florida, Appellant, v. Diane GROSS and Jerry Goodner, Appellees.
    No. 3D01-455.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 2002.

      Robert A. Butterworth, Attorney General, and Andrea D. England, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellee.
    Before SCHWARTZ, C.J, and COPE and GERSTEN, JJ.
   COPE, J.

The State appeals a trial court order granting a motion to suppress evidence. We conclude that there was probable cause for issuance of the search warrant, and reverse the suppression order.

I.

The Monroe County Sheriffs Department applied for a warrant to search the home of defendant-appellant Diane Gross at 839 Largo Road, Key Largo. Defendant Gross had recently moved to that address.

The affidavit in support of the search warrant stated that defendant Gross had previously resided at 232 King Avenue, Key Largo. In April of 2000, defendant Gross sold cocaine to an undercover officer at that address. Soon thereafter, law enforcement officers twice inspected the contents of the garbage can located in front of 232 King Avenue. They found ziploc bags with cocaine residue, as well as other paraphernalia. On May 9, the officers served a search warrant at 232 King Avenue and located more such objects, as well ,as 19 grams of cocaine.

The affidavit went on to explain that in August, the affiant (Detective Madnick) received an anonymous tip that the defendant had moved to 839 Largo Road and was back in business selling drugs. Sheriffs officers set up surveillance and observed the defendant leaving that address in a car. The officers searched the garbage can. Inside was mail addressed to defendant Gross at her post office box. The officers recovered approximately fifty two inch by two inch ziploc bags, half of which contained suspected cocaine residue. According to the affidavit, such bags are commonly used to sell cocaine. The white powder residue was field tested and was positive for cocaine. Other paraphernalia was also in the garbage can.

The circuit court issued a search warrant for 839 Largo Road. The officers searched the residence. They found various items of drug paraphernalia as well as twenty-four grams of suspected cocaine, and marijuana.

The officers arrested defendant Gross and codefendant-appellee Jerry Goodner for possession of cocaine and marijuana. The defendants moved to suppress the evidence, contending that the search warrant was not supported by probable cause.

The trial court granted the motion to suppress. The trial court concluded that there was insufficient corroboration for the anonymous tip that defendant Gross was back in the business of selling cocaine, and that the facts set forth in the affidavit were insufficient to constitute probable cause for the issuance of a search warrant. The State has appealed.

II.

The United States Supreme Court has said that affidavits in support of a search warrant

“are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleading have no proper place in this area.” ...
Similarly, we have repeatedly said that after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate’s “determination of probable cause should be paid great deference by reviewing courts.” “A grudging or negative attitude by reviewing courts toward warrants!]” is inconsistent with the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant; “courts should not invalidate ... warrants] by interpreting affidavits in a hypertechnical, rather than a commonsense, manner.”

Illinois v. Gates, 462 U.S. 213, 235-36, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (citations omitted).

Probable cause is to be determined based on the totality of the circumstances. Id. at 238, 103 S.Ct. 2317.

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for ... concluding]” that probable cause existed.

Id. at 238-39, 103 S.Ct. 2317 (citation omitted).

III.

We conclude that there was probable cause for the issuance of the search warrant, and that the anonymous tip was adequately corroborated.

According to the affidavit, defendant Gross had sold cocaine to an undercover officer on April 14, 2000, from her home at 232 King Ave. Two subsequent searches of the garbage can turned up various items of drug paraphernalia. The search of the defendant’s home on May 9 revealed cocaine and paraphernalia.

In August there was an anonymous tip that defendant Gross had moved to 839 Largo Road and was back in business selling drugs. The fact that the defendant had moved was confirmed by the investigating officers, who saw the defendant leaving 839 Largo Road. This was also confirmed by a search of the garbage can, which revealed mail addressed to defendant Gross at her post office box.

With respect to the tip that defendant Gross had resumed selling drugs, the garbage search revealed fifty two inch by two inch ziploc bags containing suspected cocaine residue. According to the affidavit, such ziploc bags are commonly used for the sale of cocaine. The cocaine residue field tested positive for cocaine. The tip was adequately corroborated.

Given the facts indicating that defendant Gross was selling drugs at her new address, there was a fair probability that drugs, paraphernalia, and proceeds would be found there. See Illinois v. Gates, 462 U.S. at 238, 103 S.Ct. 2317. The judge who issued the warrant “had a substantial basis for ... conclud[ing] that probable cause existed.” Id. (citation omitted); see Lopez v. State, 775 So.2d 1007 (Fla. 3d DCA 2001); Baker v. State, 762 So.2d 977 (Fla. 4th DCA 2000).

IV.

Relying on Gesell v. State, 751 So.2d 104 (Fla. 4th DCA 1999), the trial court ruled that the single inspection of trash at the new address was not sufficient to corroborate the anonymous tip. The trial court expressed some uncertainty on the point, however, and indicated that appellate review of the question would be welcome.

It appears the trial court felt the prior activities of defendant Gross should be discounted as having occurred several months previously, and at a different address. But the existence of probable cause is to be determined from the totality of the circumstances, and a prior history of drug offenses is one factor which may be taken into account. See State v. Stevenson, 707 So.2d 902, 903 (Fla. 2d DCA 1998); State v. Jacobs, 437 So.2d 166, 168 (Fla. 5th DCA 1983). The prior activities of the defendant at the earlier address were matters that properly could be considered.

The trial court alluded to the phrase “pattern of continuous drug activity,” which appears in Gesell, 751 So.2d at 106, and other cases. The court felt that a pattern of continuous drug activity had to be shown at the new location, and that the single garbage inspection at 839 Largo Road was not enough.

The idea of looking for a continuous or continuing drug violation appears to have originated in State v. Jacobs, which involved possession (not sale) of contraband. In Jacobs, law enforcement received an anonymous tip that the two defendants possessed marijuana in their home. 437 So.2d at 167. A police officer searched curbside garbage and found a small amount of marijuana seeds. Four weeks later, another such search yielded more marijuana seeds.

The Fifth District ruled that these two garbage searches provided probable cause for issuance of a search warrant. “The fact that marijuana and cannabis seeds were found on two separate occasions within one month’s time suggests a continuing violation of the drug laws and indicates a ‘fair probability’ that marijuana or cannabis would be found in the house.” Id. (emphasis added).

In other words, when the first garbage search turned up a small amount of marijuana seeds, that was not enough to establish probable cause for a search warrant. That is because the small amount of marijuana remains suggested only that the household occupants had once possessed marijuana but had used it up. However, when marijuana seeds showed up twice within a month, this allowed the inference that the occupants possessed marijuana on a regular basis, thus creating “a continuing violation of the drug laws.... ” Id. That being so, there was “a ‘fair probability’ that marijuana or cannabis would be found in the house.” Id. Thus, probable cause existed for the issuance of the search warrant.

In Gesell and Raulerson v. State, 714 So.2d 536 (Fla. 4th DCA 1998), there had been anonymous tips suggesting that the defendant in each case was selling drugs from the home. Law enforcement officers did not come up with any information to corroborate the idea that sales were taking place. However, a single garbage search in each case turned up a small amount of marijuana remains. The small amount of marijuana recovered was consistent with possession for personal use. The garbage contents yielded no packaging materials which would have indicated that sales were being conducted.

In that context, the Gesell and Raulerson courts fell back to the reasoning of Jacobs. No evidence of sale existed. Considering the alternative possibility that the household occupants were regularly possessing contraband for personal use, a single garbage search was insufficient. See Jacobs. Thus there was no probable cause for the issuance of a search warrant.

The present case is entirely different. In the present case there was a history of cocaine sales. The packaging materials at the new address were indicative of sale. Where a person is in the business of selling cocaine, it is reasonable to expect that contraband, paraphernalia, and proceeds will be found on the premises. In light of all the other available information, the single trash search at the new address was sufficient to corroborate the anonymous tip •and to provide probable cause for the issuance of the search warrant. See Lopez, 775 So.2d at 1007-08; Baker, 762 So.2d at 978.

In sum, the Fourth Amendment test is whether, based on “all the circumstances set forth in the affidavit, ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. at 238, 103 S.Ct. 2317. The inquiry regarding a continuing or continuous drug violation has evolved as an aid to analysis in possession cases, but it does not alter the Fourth Amendment test.

V.

The defendants argue that the affidavit in this case is defective because Detective Madnick did not set forth his training and experience therein. The detective referred to his training and experience but did not outline what that training and experience consisted of.

Defendants argue that if the officer states in the affidavit that a substance is suspected cocaine, or that an object is commonly used for the storage or sale of cocaine, the officer must set forth his training and experience which allows him to make that assertion. The defendants do not say that the detective lacks appropriate training and experience, but only that the detective should have outlined his qualifications in the affidavit. The law is to the contrary. “[W]e do not believe this omission renders the affidavit insufficient.” Younger v. State, 433 So.2d 636, 640 (Fla. 5th DCA 1983); State v. Knapp, 294 So.2d 338, 342 (Fla. 2d DCA 1974) (Grimes, J.); see also Illinois v. Gates, 462 U.S. at 234-48 & n. 9, 103 S.Ct. 2317. The cases relied on by defendants on this issue are not search warrant cases.

VI.

For the reasons stated, the suppression order is reversed.

      . A search of curbside garbage requires no warrant. California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988). Some of the cases refer to such a search as a "trash pull." See, e.g., Lopez v. State, 775 So.2d 1007 (Fla. 3d DCA 2001).

      . If it is shown that the affidavit contains baseless assertions, that is, "intentionally and knowingly or recklessly false statements, the court must excise the falsity from the affidavit to determine whether there remained sufficient grounds to establish probable cause.” Terry v. State, 668 So.2d 954, 958 (Fla.1996) (citing Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)).


text:
    Josephine PARDO, Appellant, v. THE DECOPLAGE CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 3D01-1891.
    District Court of Appeal of Florida, Third District.
    March 6, 2002.
    David C. Arnold, for appellant.

      Hyman, Kaplan, Miami, Ganguzza, Spec-tor & Mars and Christi R. Romero, for appellee.
    Before COPE, SORONDO and RAMIREZ, JJ.
   COPE, J.

Josephine Pardo appeals an order denying her motion for relief from judgment. We reverse.

The Decoplage Condominium Association, Inc. brought a successful injunction action to prohibit the use of unit 623 for commercial purposes. The defendants were appellant Josephine Pardo, the former owner of the unit; her daughter, Beatrice, the owner at the time of the suit; and Jose Nino, the tenant. The Decoplage contended that the tenant was conducting a real estate business from his unit, in violation of condominium rules. The injunction was affirmed on appeal without opinion. Nino v. The Decoplage Condominium Ass’n, Inc., 773 So.2d 553 (Fla. 3d DCA 2000).

The Decoplage moved for attorney’s fees under the condominium statute. See § 718.303, Fla. Stat. (1997). Counsel for The Decoplage prepared a judgment for its attorney’s fees, to which counsel for defendants agreed. The trial court entered the agreed judgment which was an award of $25,856 against all three defendants, jointly and severally.

Eventually, defendant Josephine Pardo became aware that this judgment had been entered against her. She retained new counsel and moved for relief from judgment. The trial court denied relief, and defendant Josephine Pardo has appealed.

Ms. Pardo argues, and The Deco-plage does not dispute, that there is no legal basis for the entry of this judgment against her. That is so because Ms. Pardo had sold her condominium unit to her daughter over two years prior to The De-coplage’s filing of the instant lawsuit in 1998. The deed had been duly recorded. The injunction did not enter any relief against Josephine Pardo, but was directed only to defendants Jose Nino and Beatrice Pardo.

We will indulge the presumption that trial counsel for The Decoplage would not knowingly prepare a final judgment which would grant relief against a party, when there was no legal basis for relief against that party. The record is clear that trial counsel for defendants simply failed to note that Josephine Pardo had been included in the judgment when she should have been excluded. This amounts to the sort of “mistake” which justifies relief under Florida Rule of Civil Procedure 1.540(b). See Curbelo v. Ullman, 571 So.2d 443, 445 (Fla.1990); Meyer v. Scutieri, 539 So.2d 602, 603 (Fla. 3d DCA 1989).

As an alternative basis of relief, trial counsel agreed to the entry of judgment against Josephine Pardo without consulting her. This amounted to a settlement made without authority — which Ms. Pardo is permitted to disavow. See Cross-Aero Corp. v. Cross-Aero Service Corp., 326 So.2d 249 (Fla. 3d DCA 1976).

For the stated reasons, the order under review is reversed and the cause remanded with directions to vacate the attorney’s fee judgment as to Josephine Pardo.

       We would have hoped that The Decoplage would have consented to vacate the judgment as to Josephine Pardo rather than necessitating litigation of the issue. The Decoplage's appellate counsel was not trial counsel.


text:
    Kenneth C. BRODFUEHRER, Appellant, v. In re ESTATE OF Richard K. BRODFUEHRER, Appellee.
    No. 3D01-295.
    District Court of Appeal of Florida, Third District.
    March 13, 2002.

      Gerald V. Walsh, Coral Springs, for appellant.
    David G. Hutchinson, for appellee.
    Before SCHWARTZ, C.J., and COPE and SORONDO, JJ.
   PER CURIAM.

Kenneth C. Brodfuehrer (“father”) appeals the probate court’s order on the Estate of Richard K. Brodfuehrer’s (“Estate”) Notice of Claimant’s Failure to Abide By Circuit Court Order and Motion to Strike Probate Claims. We affirm.

On October 19, 1998, Richard K. Brod-fuehrer (decedent) died intestate as a result of a motorcycle accident. His survivors include his two children, Krisstina and Jon Brodfuehrer, and his father, Kenneth C. Brodfuehrer. The largest asset remaining from the Estate was the motorcycle, which was damaged in the accident that claimed the decedent’s life (estimated value of $15,000.00). The decedent’s father paid for his son’s funeral expenses, prior to a personal representative being appointed to the Estate. The decedent’s daughter was subsequently appointed personal representative.

On April 9, 1999, the father filed a claim for funeral expenses and delinquent rent paid to the decedent’s landlord. The decedent’s stepbrother, Steven Prentice, also filed a claim the same day against the Estate for expenses incurred in repairing the motorcycle and transporting it to Indiana. On May 24, 1999, the personal representative petitioned the probate court for aid in marshaling estate assets and requested an order for the return of the motorcycle. The father and the stepbrother filed a motion to abate the petition for aid in marshaling assets, alleging that the probate court did not have jurisdiction over them and that the property in dispute was located in Indiana, outside the jurisdiction of the probate court. The probate court ordered that the motorcycle, its parts and equipment be transferred to the personal representative.

On May 27, 1999, the personal representative objected to both the father and stepbrother’s claims and notified the parties that they had to file independent actions upon their claims against the Estate within thirty days from the service of the objection. The father subsequently filed a complaint in county court to enforce his claim and the stepbrother joined in the suit. The Monroe County clerk recorded the filing of the complaint on July 13, 1999. This filing fell after the thirty day deadline. On August 4, 1999, the Estate filed, in probate court, a notice of claimant’s failure to file an independent action and sought dismissal of the father and stepbrother’s claims with prejudice.

On September 8, 1999, the father filed a motion for an extension of time to file the independent action. The father alleged that he had mailed the complaint on June 24, 1999 and for reasons unknown to him, the action was not recorded until July 13, 1999. The probate court abated the motion for extension of time and held that an order granting the motion was contingent upon the father and stepbrother turning over the motorcycle.

The stepbrother filed a motion for payment of the costs of repairing and transporting the motorcycle as a condition of delivery of the motorcycle. On March 7, 2000, the father filed a motion to sever his claim from the stepbrother’s claim, alleging he had no control over the stepbrother’s delivery of the motorcycle. The probate court denied both motions.

On October 3, 2000, the stepbrother voluntarily dismissed his claim. On November 15, 2000, the probate court heard the Estate’s motion to strike probate claims and entered an order holding that the father and stepbrother shall immediately complete the transfer of the motorcycle to the Estate and in the event that the motorcycle was not transferred by December 11, 2000, the court would sua sponte strike the claims of the father and stepbrother. This appeal follows.

The father contends that (I) the trial court erred in imposing conditions upon the granting of an extension of time to file an independent action, (II) the trial court erred in denying the stepbrother’s motion to make delivery of the motorcycle contingent upon the payment of repair costs, (III) the trial court erred in failing to allow severance of the father and stepbrother’s claims, and (IV) the trial court erred in denying the father’s request for an extension of time because of a third party’s refusal to deliver the motorcycle. Our analysis follows.

I.

Under section 733.705(4), Florida Statutes (1999), a claimant is limited to a period of thirty days from the date of service of an objection within which to bring an independent action. The court may for good cause, extend the time for filing an action or proceeding after the objection is filed. § 733.705(4) Fla. Stat.(emphasis added); see In re Estate of Goldman, 79 So.2d 846 (Fla.1955)(good cause for an extension of time is restricted to a “substantial reason”, one that affords a legal excuse).

Here, the father and stepbrother were served with objections to their claims on May 29, 1999 and their independent actions were not filed until July 13, 1999, more than thirty days after being served with the objections. The father filed a motion for extension of time to file his independent action on September 8, 1999, attaching an affidavit stating that the independent action had been timely mailed but was not recorded timely. The court did not rule whether this constituted good cause or not. Instead, the probate court entered an order abating the motion for extension of time and made the granting of the motion contingent upon the motorcycle being returned. This order was not an abuse of discretion. It is a matter within the broad judicial discretion of a judge in probate to grant or deny an extension of time to commence an action to which an objection has been properly filed. Johnson v. Estate of Fraedrich, 472 So.2d 1266, 1268 (Fla. 1st DCA 1985); In re Estate of Herskowitz, 342 So.2d 530, 531 (Fla. 3d DCA 1977); In re Estate of Sanchez, 155 So.2d 419 (Fla. 3d DCA 1963).

The father complains that the court was without jurisdiction to make the extension of time contingent upon the return of the motorcycle. However, probate courts have the power to help marshall assets of an estate and to order those assets turned over through a personal representative. § 733.607, Fla. Stat.(1999); In re Estate of Barsanti, 773 So.2d 1206 (Fla. 3d DCA 2000)(probate court has inherent jurisdiction to monitor the administration of an estate and take appropriate action as it may deem necessary to preserve the assets of the estate for the benefit of the ultimate beneficiaries). The probate court had the power to order the father and stepbrother to turn over the motorcycle. The motorcycle was the only tangible asset of the decedent’s Estate and was removed out of state to a location unknown to the personal representative or the court. The stepbrother had indicated in a letter that he was holding the motorcycle as collateral for his father’s claim. The father had placed an ad putting the motorcycle up for sale. These actions made it necessary for the court to take appropriate action to preserve the assets of the Estate. The granting of the motion for extension of time contingent upon the delivery of the sole tangible asset of the Estate was not an abuse of discretion.

II.

The claim that the trial court erred by denying the stepbrother’s request for repair costs is not properly before this court. The father does not have standing to appeal the court’s order denying the stepbrother’s request for costs. The stepbrother voluntarily dismissed his case and is no longer a party. See Millar Elevator Serv. Co. v. McGowan, 804 So.2d 1271, 1272 n. 1 (Fla. 2d DCA 2002). Even if the father did have standing, we would find the argument meritless. The motorcycle was not the stepbrother’s property and he had no authority to take possession of it. Furthermore, the stepbrother chose to make the repairs to the motorcycle without consulting or obtaining the consent of the beneficiaries of the Estate. It is completely unreasonable that the stepbrother would refuse to return a motorcycle that was property of the Estate until he was reimbursed for unauthorized expenses he chose to undertake.

III.

The trial court properly denied the motion to sever the father and the stepbrother’s claims. A severance in civil cases is a matter of discretion in the trial court. Compania Dominicana de Aviacion v. Knapp, 251 So.2d 18, 19 (Fla. 3d DCA 1971). Under Florida Rule of Civil Procedure 1.270(b), “[t]he court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross claim, counterclaim, or third party claim, or any separate issue.... ” However, a severance under rule 1.270(b), “while residing in the sound discretion of the trial court upon an appropriate showing, should remain the exception.” Travelers Express, Inc. v. Acosta, 397 So.2d 733, 737 (Fla. 3d DCA 1981).

The father and stepbrother elected to join their claims together, allegedly for cost benefits. Both the father and stepbrother were seeking reimbursement from the Estate for expenses they chose to take without consulting or obtaining authorization from the decedent’s children. The father and stepbrother’s claims were interrelated as the only tangible asset of the Estate was the motorcycle and the stepbrother had asserted that he was holding it as collateral for his father’s claims. See Maris Distrib. Co. v. Anheuser-Busch, Inc., 710 So.2d 1022 (Fla. 1st DCA 1998)(improper to sever when the facts underlying the claims of the respective parties are inextricably interwoven).

The trial court’s order to return the motorcyelewas an order to both the father and stepbrother. It appeared that the motion for severance was an attempt by the father to escape the court’s order to return the motorcycle. Once it became apparent that neither party was going to be reimbursed until the motorcycle was returned to the Estate, the father wanted the claims severed. The father alleged that he could not compel his son to turn over the motorcycle and therefore he should not be precluded from filing his lawsuit. A severance under this reasoning would allow the stepbrother to maintain possession of the motorcycle and allow the father to be free to pursue his independent action and recover for funeral expenses, while the Estate would never recover its largest asset. Moreover, neither party provided testimony regarding their failure or inability to return the motorcycle as ordered. Denial of the motion to sever was not an abuse of the trial court’s discretion. Hartford Accident & Indem. Co. v. Myers, 247 So.2d 83, 84 (Fla. 2d DCA 1971).

IV.

For several reasons, the father’s final claim that the trial court erred in denying his request for an extension of time because of a third party’s refusal to deliver the motorcycle is also meritless. First, the trial court did not deny the motion, rather she abated the motion until the parties returned the motorcycle to the estate. Second, both parties were under order of the court to return the motorcycle to the Estate and neither had complied. Third, neither party showed that they could not have complied with the court’s order to produce the motorcycle. Finally, the only reason offered for the motion for extension of time was that it was unknown why the complaint mailed to the county court was untimely recorded. • The absence of a substantial reason or sufficient legal excuse to support a finding of “good cause” to extend the time for bringing the independent action supports the trial court’s order abating the extension of time. Devine v. Kirkovich, 754 So.2d 789, 791 (Fla. 3d DCA 2000).

As long as orders are entered by a court that has jurisdiction of both the subject matter and the parties, they cannot be completely ignored without running the risk that an appropriate sanction may be imposed. Johnson v. Allstate Ins. Co., 410 So.2d 978, 980 (Fla. 5th DCA 1982). In this case, the appropriate sanction was to abate the motion for extension of time until the parties complied with the court order. The failure to return the motorcycle caused prejudice and delay to the disposition of the Estate. The personal representative of the Estate had to file a petition to extend the time for filing final accounting based on the father and stepbrother’s failure to turn over the motorcycle. The father and stepbrother had been in violation of the court’s order to turn over the motorcycle for over one year.

We conclude that the trial court’s action was not an abuse of discretion. Accordingly, we affirm the order below.

Affirmed.


text:
    MOTTER ROOFING, INC., Petitioner, v. Brian LEIBOWITZ, and Terry Leibowitz, his wife, Respondents.
    No. 3D01-2601.
    District Court of Appeal of Florida, Third District.
    March 13, 2002.

      H. Hugh McConnell, Coral Gables, for appellant.
    Randy D. Ellison (West Palm Beach), for appellees.
    Before JORGENSON, GERSTEN, and SORONDO, JJ.
   CONFESSION OF ERROR

PER CURIAM.

We reverse the order denying appellate attorney’s fees based upon the respondent’s proper confession of error. Section 768.79(1), Florida Statutes (2001), provides for mandatory recovery of reasonable costs and attorney’s fees by a plaintiff who has prevailed upon the merits, providing the plaintiff has complied with the requirements of the statute. See Hartley v. Guetzloe, 712 So.2d 817 (Fla. 5th DCA 1998).

This Court, along with all district courts in Florida, has ruled that Section 768.79 also applies to fees incurred on appeal. See Lantigua v. Lopes, 696 So.2d 532 (Fla. 3d DCA 1997); Mark C. Arnold Constr. Co. v. Nat’l Lumber Brokers, Inc., 642 So.2d 576 (Fla. 1st DCA 1994); Westfield Ins. Co. v. Mendolera, 647 So.2d 223 (Fla. 2d DCA 1994); Schmidt v. Fortner, 629 So.2d 1036 (Fla. 4th DCA 1993); Williams v. Brochu, 578 So.2d 491 (Fla. 5th DCA 1991). Under Sections 768.79 and 59.46, Florida Statutes (2001), attorney’s fees are not discretionary. See Noble v. Martin Mem’l Hosp. Ass’n, Inc., 710 So.2d 567 (Fla. 4th DCA 1997), review denied, 718 So.2d 169 (Fla.1998). Thus, the circuit court, sitting in its appellate capacity, departed from the essential requirements of law by denying the petitioner’s request for appellate attorney’s fees. See Disney v. Vaughen, 804 So.2d 581 (Fla. 5th DCA 2002).

Accordingly, we grant the petition for certiorari and reverse that portion of the order pertaining to appellate attorney’s fees. This case is remanded for determination of fees for all appellate proceedings.

Certiorari granted; reversed in part and remanded.


text:
    Michael WITHERSPOON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-3014.
    District Court of Appeal of Florida, Third District.
    March 13, 2002.
    Michael Witherspoon, in proper person.
    Robert A. Butterworth, Attorney General, for appellee.
    Before LEVY, GERSTEN and GODERICH, JJ.
   CONFESSION OF ERROR

PER CURIAM.

The defendant, Michael Witherspoon, appeals from the denial of his motion to correct illegal sentence pursuant to Rule 3.800(a), Florida Rules of Criminal Procedure, alleging that the imposition of consecutive three year minimum mandatory sentences for his two attempted first degree murder convictions was illegal. We reverse based on the State’s proper confession of error. See Ward v. State, 630 So.2d 217 (Fla. 3d DCA 1993)(“It is error to impose consecutive mandatory minimum sentences for the use of a firearm during a single criminal episode, even where there are two victims, where the episode occurred without interruption in time and location.” (quoting Weatherspoon v. State, 624 So.2d 405, 407 (Fla. 2d DCA 1993))). On remand, the trial court is directed to correct the sentences so that the mandatory minimum sentences will be served concurrently to the attempted first degree murder sentences. See Palmer v. State, 438 So.2d 1, 4 (Fla.1983). The defendant need not be present for such resentencing.

Reversed and remanded for resentenc-ing with directions.


text:
    Patricia FRAZIER, Appellant, v. John POZZI, Sr., and Madge Bladh, Appellees.
    No. 3D01-1842.
    District Court of Appeal of Florida, Third District.
    March 20, 2002.
    Rehearing Denied April 24, 2002.
    Charles M. Milligan (Key West), for appellant.
    Horan, Horan & Wallace, and Edward W. Horan (Key West), for appellees.
    Before LEVY, GERSTEN, and GODERICH, JJ.
   PER CURIAM.

Affirmed. See Wilson v. Wilson, 382 So.2d 773 (Fla. 3d DCA 1980); Sadowsky v. Levine, 135 So.2d 776 (Fla. 3d DCA 1961).


text:
    Samir D. HERRERA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-32.
    District Court of Appeal of Florida, Third District.
    March 20, 2002.
    Samir D. Herrera, in proper person.
    Robert A. Butterworth, Attorney General, for appellee.
    Before SCHWARTZ, C.J., and COPE and GERSTEN, JJ.
   PER CURIAM.

Affirmed on the authority of Foster v. State, 794 So.2d 731 (Fla. 3d DCA 2001). Conflict is certified with Murphy v. State, 773 So.2d 1174 (Fla. 2d DCA 2000) and Mortimer v. State, 770 So.2d 743 (Fla. 4th DCA 2000).


author: PER CURIAM. RAMIREZ, Judge

text:
    NEW COMMODORE CRUISE LINES LIMITED, INC., a Florida corporation a/k/a Commodore Cruise Line Ltd., Petitioner, v. Ralston MOODIE, Respondent.
    No. 3D02-1070.
    District Court of Appeal of Florida, Third District.
    May 8, 2002.
    Rehearing Denied May 10, 2002.
    Horr, Novak & Skipp and David J. Horr, Miami, for petitioner.
    Sweetapple, Broeker & Varkas, Miami, and Paul B. Feltman, for respondent. ^
    Before SCHWARTZ, C.J., and GREEN and RAMIREZ, JJ.
   PER CURIAM.

In the exercise of the court’s discretion, the petition for writ of certiorari is denied.

SCHWARTZ, C.J. and GREEN, J., concur.

RAMIREZ, Judge

(dissenting).

I respectfully dissent. I would grant the petition for writ of certiorari because the trial court’s order precludes petitioner New Commodore Cruise Lines, Ltd., Inc. from obtaining defense medical examinations of respondent Ralston Moodie. While the majority probably agrees that the order departs from the essential requirements of law, it is denying the petition in the exercise of its discretion. I believe that New Commodore Cruise Lines will suffer irreparable harm which cannot be corrected on appeal after final judgment.

Moodie was a crew member aboard New Commodore Cruise Lines’ vessel when he suffered eye and skull injuries, as well as brain damage, during a lifeboat drill. New Commodore flew Moodie to Jackson Memorial Hospital in Miami, Florida for treatment. The emergency room physicians first treated Moodie at the trauma center and then referred him to various specialists.

New Commodore provided, maintenance and cure through U.S. Maritime Consultants, the firm that handles its claims. Moodie executed written waivers so that his treating physicians could provide U.S. Maritime Consultants with medical records and written reports regarding his condition.

Moodie filed suit for negligence to recover damages, continued maintenance and cure, and lost wages. When New Commodore sought to compel a defense medical examination of Moodie pursuant to Florida Rule of Civil Procedure 1.360(a), Moodie challenged the request He argued that because New Commodore chose the hospital he was brought to, it in effect chose his treating physicians. Moodie also argued that a defense examination in effect gives New Commodore “two bites at the apple” because New Commodore had access to his medical records through its insurance adjuster, he has not retained any other doctors, and he has waived his patient-physician privilege.

The trial court sustained Moodie’s objection to the defense examinations, holding that further examinations were not warranted because all of Moodie’s experts were physicians hired and paid for pursuant to New Commodore’s obligation of maintenance and cure. In my opinion, this ruling is totally unprecedented and clearly departs from the essential requirements of the law. New Commodore will be trying this case without any defense experts and will, in effect, be deprived of its right to put on a defense. In a case where damages is the only real issue being tried, New Commodore’s role at trial will be limited to cross-examining Moodie’s experts.

“When a plaintiff in a negligence action asserts that he has sustained a mental or physical injury, he places his condition in controversy, and thus good cause for the examination is shown [as required by rule 1.360(a)(2), Florida Rules of Civil Procedure].” Florida Emergency Physicians-Kang and Assocs., M.D., P.A. v. Parker, 800 So.2d 631, 634 (Fla. 5th DCA 2001). “It is not enough that the defendants are allowed to review the plaintiffs medical or psychiatric records and to depose plaintiffs medical or psychiatric experts.” Id.

The trial court’s order hinges on its finding that New Commodore selected the treating physicians. The only “selection” New Commodore made was to fly Moodie from Cozumel to Miami for treatment of his injuries. New Commodore’s relationship with Moodie’s treating physicians is comparable to that of an auto accident victim with a PIP insurance carrier who investigates and pays for certain medical expenses. The treating physicians do not become defense experts by virtue of the fact that the insurance carrier paid the medical bills. Here, New Commodore is being penalized for fulfilling its maintenance and cure obligations as imposed by maritime law. This undermines the public policy behind the Jones Act by encouraging vessel owners to consider which hospital has personnel they would like to have as experts when seeking emergency care for their seamen.

In his response to the petition for certio-rari, Moodie has been unable to cite a single Florida case to support the trial court’s unprecedented ruling. Apparently the only support it could find for the trial court’s order is a federal case out of Minnesota, Stewart v. Burlington Northern Railroad Co., 162 F.R.D. 349, 350-51 (D.Minn.1995) denying a request for successive IMEs. Here, New Commodore has not requested successive examinations. It has been denied any defense examinations.

Additionally, the wrongful exclusion of defense experts is an irreparable harm that cannot be remedied on appeal after final judgment. See Ruiz v. Steiner, 599 So.2d 196, 198 (Fla. 3d DCA 1992) (discovery orders denying the right to take testimony from material witness is irreparable harm that cannot be remedied on appeal). See also Sabol v. Bennett, 672 So.2d 93, 94 (Fla. 3d DCA 1996) (order denying the right to depose a witness inflicts the type of harm that cannot be corrected on appeal). On appeal, this court will be unable to weigh the impact of testimony that was never presented.

I would therefore grant the petition and quash the order under review.

      . Trial was originally set for February 14, 2002. The first request for an IME was made on December 27, 2001 with examination scheduled for January 30, 2002. Although the examination would not have been completed in a timely fashion (45 days prior to trial), Moodie did not object to the request as untimely nor did tire trial court base its order on that issue.


text:
    Carlos A. MILLAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-564.
    District Court of Appeal of Florida, Third District.
    May 22, 2002.
    John H. Lipinski, Hollywood, for appellant.
    Robert A. Butterworth, Attorney General, and Barbara A. Zappi, Ft. Lauderdale, Assistant Attorney General, for appellee.
    Before JORGENSON and GERSTEN, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

Affirmed. See Bertolotti v. State, 565 So.2d 1343 (Fla.1990); State v. DiGuilio, 491 So.2d 1129(Fla.1986); Thomas v. State, 326 So.2d 413 (Fla.1975); Mendez v. State, 747 So.2d 1032 (Fla. 3d DCA 1999); see also § 90.803(23), Fla. Stat. (1999).


author: RAMIREZ, J.

text:
    Robert S. YOUNG, Appellant, v. Alice G. HECTOR, Appellee.
    Nos. 3D02-283, 3D02-235.
    District Court of Appeal of Florida, Third District.
    June 12, 2002.

      Dittmar & Hauser, and Helen Hauser, Coconut Grove, for appellant.
    Amy D. Ronner, Miami, for appellee.
    Before JORGENSON, FLETCHER, and RAMIREZ, JJ.
   RAMIREZ, J.

Robert Young appeals from an order granting his former wife Alice G. Hector’s motion for permission to send the parties’ elder daughter to boarding school in New Jersey and an order setting a visitation schedule with the younger daughter. Because the decision to move the elder child to boarding school is not a “relocation” under section 61.13(2)(d), Florida Statutes (1999), but simply an educational decision, we affirm. We also affirm the visitation schedule with the younger daughter.

The parties dissolved their marriage in 1996. They have two minor daughters. This Court reviewed the original judgment of dissolution of marriage between the parties via a panel opinion and subsequent en banc opinion. See Young v. Hector, 740 So.2d 1153 (Fla. 3d DCA 1999), rev. dismissed 763 So.2d 1046 (Fla.2000). A petition for a writ of prohibition brought by Young during the following year was denied. See Young v. Hector, 768 So.2d 460 (Fla. 3d DCA 2000). After rehearing en banc, this Court affirmed the award of primary residential custody to the mother and directed the trial court to grant the father liberal and frequent access to the children, but reversed the amount of alimony awarded to the father, the distribution of assets, and the award of attorney’s fees.

After a one year period in which the children resided with the father, they returned to the mother and the parties proceeded under an oral visitation agreement by which the father had two weekday overnights and alternating weekends, as well as after school if he picked them up.

In December 1999, the elder child expressed an interest in attending a boarding school in the New York area and at the end of March 2000, she was accepted into Blair Academy. At a hearing on July 17, 2000, the school guidance counselor, the guardian ad litem, and the mother testified regarding the benefits to the child that the boarding school would provide. The trial court held that the decision to allow the child to attend Blair Academy was an educational one and not an issue of “relocation.” There was ample support for the trial court’s finding that boarding school was in the child’s best interest. At a hearing one year later, the testimony presented indicated that the elder daughter was flourishing at Blair Academy and had improved both academically and socially.

The father argues that the mother’s decision to have the elder daughter attend Blair Academy was a “relocation” as governed by section 61.13(2)(d), Florida Statutes. We disagree. The statute indicates that the relocation issue only arises when the residential parent seeks to move to another state with the child. The decision to permit a child to attend boarding school was clearly an educational one which, as found by the trial court, benefitted the child. Furthermore, both parents have equal opportunities to see the child when she is on vacation and may visit her at school anytime they choose.

At this point, the elder daughter is completing her second year at Blair Academy, where she continues to thrive. Yet the father is still seeking to deprive her of this excellent educational opportunity. At the same time, he complains that the trial court found that the elder daughter was “desirous of attending boarding school in order to avoid conflict between her parents, including the anger and rage of her father which have a deleterious effect on the child.” In our view, the facts speak for themselves.

The trial court also altered the father’s visitation schedule with the younger daughter by eliminating the two weekday overnights. Our mandate merely ordered the trial court to grant the father liberal and frequent access to the children. The current visitation schedule does so.

As to Young’s motion for appellate attorney’s fees, we remanded to the trial court. If Young establishes his entitlement pursuant to section 61.16, Florida Statutes, and Rosen v. Rosen, 696 So.2d 697 (Fla.1997), the trial court is authorized to award him all or a portion of the reasonable appellate attorney’s fees. This court concludes that the appeal by Young lacked merit, and therefore the trial court should give great weight to the factors set forth in Rosen. See generally, Rados v. Rados, 791 So.2d 1130 (Fla. 2d DCA 2001).

Affirmed.


text:
    Pedro DIAZ-PERNA, Appellant, v. Marcus EVENS and Florida Unemployment Appeals Commission, Appellees.
    No. 3D02-542.
    District Court of Appeal of Florida, Third District.
    June 19, 2002.
    Pedro Diaz Perna, in proper person.
    John D. Maher (Tallahassee), for appel-lee Commission.
    Before SCHWARTZ, C.J., and COPE and FLETCHER, JJ.
   PER CURIAM.

Pedro Diaz-Perna appeals an order denying unemployment compensation benefits. We affirm.

Under the unemployment compensation law, an employee is disqualified for benefits when “he or she has voluntarily left his or her work without good cause attributable to his or her employing unit .... ” § 443.101(l)(a), Fla. Stat. (2001). In this case the appellant quit his employment because he believed he was going to be terminated or have his salary reduced. Under the unemployment compensation law, that constitutes voluntarily leaving the employment without good cause attributable to the employing unit. Id. Thus, unemployment benefits were correctly denied under the applicable statute.

Affirmed.


author: SHEVIN, Judge.

text:
    Philip GEVAS and Monique Gevas, Petitioners, v. Ted FERNANDEZ, Respondent.
    No. 3D02-2048.
    District Court of Appeal of Florida, Third District.
    Aug. 14, 2002.
    Aragon, Burlington, Weil & Crockett and Jeffrey B. Crockett, Miami, for petitioners.
    Katz, Barron, Squitero & Faust and Richard A. Morgan, Miami; Lauri Wald-man Ross, Miami, for respondent.
    Before COPE, SHEVIN and RAMIREZ, JJ.
   SHEVIN, Judge.

The Gevases seek a writ of certiorari. We grant the petition as the order denying the motion to compel respondent’s deposition and discovery of documents departs from the essential requirements of law from which there is no adequate remedy on appeal. Medero v. Florida Power & Light Co., 658 So.2d 566 (Fla. 3d DCA 1995); Beekie v. Morgan, 751 So.2d 694 (Fla. 5th DCA 2000).

In this case, despite the court’s statement that it would readdress the discovery matters if the case was not tried as scheduled, and Fernandez’s counsel’s representation that the requested discovery would be provided expeditiously, the court refused to consider the motion to compel discovery, believing discovery had been foreclosed at a prior hearing. Because the discovery sought was material to the central issue in the case, Lifemark Hosp. of Fla., Inc. v. Hernandez, 748 So.2d 378 (Fla. 3d DCA 2000), certiorari is granted and the order under review is quashed.

On remand, the court is directed to compel compliance with the discovery requests as outlined in the petition and to allow a reasonable time for discovery prior to trial.

Certiorari granted; order quashed; and remanded with directions.


text:
    Lawrence WALLACE a/k/a Steve Allen, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-3339.
    District Court of Appeal of Florida, Third District.
    Aug. 14, 2002.

      Lawrence Wallace, in proper person.
    Robert A. Butterworth, Attorney General, and Fredericka Sands, Assistant Attorney General, for appellee.
    Before COPE, GREEN and RAMIREZ, JJ.
   COPE, J.

Lawrence Wallace appeals an order denying his motion for postconviction relief. We affirm.

I.

In his postconviction motion, defendant-appellant Wallace states that he is currently serving a habitual offender sentence in Miami-Dade County circuit court case number 95-2924. He alleges that the basis for his habituahzation was his earlier convictions in circuit court case numbers 93-13837 and 93-16285.

In his motion, defendant seeks to set aside the two 1993 convictions. Defendant’s motion is timely under Wood v. State, 750 So.2d 592 (Fla.1999).

The defendant pled guilty in the 1993 cases and was sentenced to 364 days incarceration in each case. The charges in case number 93-13837 were grand theft and burglary, while the charges in case number 93-16285 were sale and possession of cocaine.

Defendant alleges affirmative misadvice of counsel in connection with these pleas. Defendant says that he was told he would receive a withhold of adjudication in each case, and that the convictions would not be used against him in the future.

With regard to the claim that the plea bargain was for a withhold of adjudication in the 1993 cases, the judicial records refute the claim. The judgment and sentencing documents as well as the handwritten notes on the scoresheet indicate that there was an adjudication of guilt. After searching, the court reporter has been unable to locate the notes of the 1993 plea colloquy. To the extent that the defendant desires to base his claim on the plea colloquy, the claim is barred by lach-es. He did not seek relief from the 1993 plea until 2001, and the court reporter notes are not available. As the existing records all indicate there was an adjudication of guilt, the trial court correctly denied relief on this point.

The trial court pointed out that even if there were an impediment to using the 1993 convictions for the defendant’s 1995 habitualization, the defendant still qualifies as a habitual offender. The defendant has three other qualifying offenses, circuit court case numbers 90-19862, 91-23954, and 92-18808, all of which were sentenced on different dates. Assuming for purposes of discussion that there were any infirmity in using the 1993 convictions as predicate offenses, the defendant nonetheless qualifies as a habitual offender.

II.

The defendant alleges that his counsel told him that if he entered the plea to the two 1993 cases, those convictions would not be used against him in the future. The defendant says that this advice turned out to be incorrect, and that the two 1993 convictions were used as predicate offenses for a habitual offender adjudication against him in circuit court case number 95-2924.

Under this court’s precedent, counsel’s advice that a plea could not be used against the defendant in the future “is properly viewed as addressing the civil effects of the plea, not future recidivism.” Collier v. State, 796 So.2d 629, 630 (Fla. 3d DCA 2001).

“[Njeither the trial court nor counsel has a duty to advise a defendant that the defendant’s plea in a pending case may have sentence enhancing consequences on a sentence imposed for a crime committed in the future.” Major v. State, 814 So.2d 424, 431 (Fla.2002).

This court also bars postconviction relief even if counsel gives affirmative mis-advice regarding the sentence enhancing consequences of a plea for a new crime committed in the future. Rhodes v. State, 701 So.2d 388 (Fla. 3d DCA 1997); see also Ford v. State, 753 So.2d 595 (Fla. 3d DCA 2000). That is so for practical, and public policy, reasons. “[T]he defendant is under a legal duty to refrain from committing further crimes. It makes no difference whether the defendant is given correct, or incorrect, advice regarding the possibility of enhanced punishment.” Scott v. State, 813 So.2d 1025, 1026-27 (Fla. 3d DCA 2002).

The Fourth District Court of Appeal follows a different rule. See Love v. State, 814 So.2d 475 (Fla. 4th DCA 2002); Jones v. State, 814 So.2d 446 (Fla. 4th DCA 2001); Smith v. State, 784 So.2d 460 (Fla. 4th DCA 2000). As we did in McPhee v. State, 823 So.2d 160(Fla. 3d DCA 2002), and Cifuentes v. State, 816 So.2d 804 (Fla. 3d DCA 2002), we certify direct conflict with Smith.

Affirmed; direct conflict certified.

       Although not argued by the defendant, only one of the two 1993 convictions could be used as a predicate offense because both were imposed on the same day. Use of both of die 1993 convictions would violate the sequential conviction rule. See § 775.084(5), Fla. Stat. (1993). (The 1993 statute applies because the date of the offense in the 1995 case was December 26, 1994.) As just stated, the defendant has other qualifying offenses, so he qualifies as a habitual offender even if one of the 1993 convictions is eliminated as a predicate offense.


text:
    The STATE of Florida, Petitioner, v. Joanne FAHNER, Respondent.
    No. 3D00-2574.
    District Court of Appeal of Florida, Third District.
    Sept. 4, 2002.
    Robert A. Butterworth, Attorney General, and Roberta G. Mandel, Assistant Attorney General, for petitioner.
    Bennett H. Brummer, Public Defender, and Bruce Rosenthal, Assistant Public Defender, for respondent.
    Before SCHWARTZ, C.J., and COPE and SORONDO, JJ.
   PER CURIAM.

This case is before us on remand from the Florida Supreme Court for reconsideration in light of State v. Johnson, 814 So.2d 390 (Fla.2002). Upon reconsideration, this court vacates its earlier opinion, State v. Fahner, 794 So.2d 712 (Fla. 3d DCA 2001), and remands this cause to the circuit court with directions to remand it to the county court for a hearing under Johnson.


text:
    Bryan M. WRIGHT, Appellant, v. STATE of Florida, DEPARTMENT OF REVENUE, by and on behalf of Tina M. TURNER, Appellee.
    No. 1D02-65.
    District Court of Appeal of Florida, First District.
    Oct. 4, 2002.
    Rehearing Denied Jan. 8, 2003.
    Seth E. Wright, Pensacola, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

We affirm the judgment of paternity established in the permanent support order pursuant to section 742.12, Florida Statutes (1999), because appellant failed to object to the test results that showed a 99.99 percent probability that he is the child’s father.

We affirm the trial court’s finding that appellant is voluntarily unemployed, thereby warranting the imputation of income under section 61.30(2)(b), Florida Statutes (1999); however, we reverse the imputation of $2,000 per month net income to appellant, because the amount is not supported by competent, substantial evidence. The trial court is directed on remand to follow the procedures outlined in subsections 61.30(2)(b)-(6) in determining the amount of gross income to impute to appellant based on his work history and/or current earnings from his corporate golf sponsorship, the allowable deductions, and the amount of net income to be imputed to appellant prior to determining the amount of child support under subsection 61.30(6). In addition, the trial court is directed to consider subsection 61.30(17) in the event retroactive child support is awarded on remand.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.

ERVIN, BOOTH and DAVIS, JJ., concur.


text:
    Herbert ROSE, Appellant, v. The VILLAGE OF KINGS CREEK CONDOMINIUM ASSOCIATION, INC., Mayra Arrondo, Astrid Buttari, Derrick Chin, Eric Collazo, Patricia Coons, Bettye Creary, Winnie Dellow, Lance Paskewich, Edward Sheets, Linnea Sheets, Thomas Springer & Cy Tetenman, Appellees.
    No. 3D02-498.
    District Court of Appeal of Florida, Third District.
    Oct. 16, 2002.
    Rehearing Denied Nov. 27, 2002.
    Law Offices of Murphy & O’Brien, and William F. Murphy, III, Miami; Herbert S. Rose, Miami, for appellant.
    Tew, Cardenas, Rebak, Kellogg, Lehman, DeMaria, Tague, Raymond & Levine, L.L.P., and Joseph L. Rebak, and Peter F. Valori, Miami; Holland & Knight, L.L.P., Brandenton, and Lance G. Paskewich (New York), for appellees.
    Before GREEN, FLETCHER, and SHEVIN, JJ.
   PER CURIAM.

Affirmed. See Fox v. Prof'l Wrecker Operators of Fla., Inc., 801 So.2d 175, 181 (Fla. 5th DCA 2001); Perlow v. Goldberg, 700 So.2d 148, 150 (Fla. 3d DCA 1997); Munder v. Circle One Condo., Inc., 596 So.2d 144, 145 (Fla. 4th DCA 1992). See also Banco Latino Int’l v. Gomez Lopez, 95 F.Supp.2d 1327, 1334 (S.D.Fla.2001).


author: PER CURIAM. COPE, J.

text:
    Richardson FRANCOIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2494.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 2002.
    Rehearing Denied Dec. 11, 2002.

      Richardson Francois, in proper person.
    Robert A. Butterworth, Attorney General, for appellee.
    Before JORGENSON, COPE, and GODERICH, JJ.
   PER CURIAM.

Affirmed.

JORGENSON and GODERICH, JJ., concur.

COPE, J.

(concurring).

I do not agree with the trial court’s ruling that the motion under Florida Rule of Criminal Procedure 3.850 was impermis-sibly successive. Defendant-appellant Francois adequately explained that the instant motion could not have been filed until he obtained the trial transcript, whereas the earlier 3.850 motion raised exclusively a sentencing issue under Heggs v. State, 759 So.2d 620 (Fla.2000).

On the merits, however, I concur in affirming the order denying Rule 3.850 relief. After taking judicial notice of the briefs in the direct appeal, it is dear that the claims do not satisfy the standard for Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). While the defendant claims that alibi witnesses, whom he has identified, would exculpate him, the defendant has not stated what the substance of their testimony would be, and how that would apply to the facts of his case.


text:
    SOUTHERN DIAGNOSTIC ASSOCIATES, Petitioner, v. Luz BENCOSME, et al., Respondents.
    No. 3D02-886.
    District Court of Appeal of Florida, Third District.
    Oct. 30, 2002.

      Hengber & Goldstein, P.A., and Frank S. Goldstein (Fort Lauderdale); Bunnell, Woulfe, Kirschbaum, Keller, McIntyre & Gregoire, P.A., and Nancy W. Gregoire (Fort Lauderdale), for petitioner.
    Ver Ploeg & Lumpkin, P.A., and Stephen A. Marino, Jr., Miami, and Christine A. Gudaitis, Hallandale, for respondent Bencosme.
    Before JORGENSON, COPE, and GODERICH, JJ.
   PER CURIAM.

Southern Diagnostic Associates, Inc., (Southern Diagnostic) a non-party, seeks certiorari review of an order compelling discovery of certain contents of its computer system. For the following reasons, we grant the petition and quash the order.

Bencosme sued United Automobile Insurance Company (United Auto) alleging statutory bad faith for United Auto’s alleged failure to conduct a reasonable investigation of her PIP claim. During discovery, Bencosme sought records of payments to two individual physicians who performed IMEs and their professional associations over a three-year period. United Auto responded that it did not have records of doctors used in IMEs because it retained Southern Diagnostic to arrange, schedule, and pay for such examinations on behalf of United Auto.

Bencosme served a subpoena duces te-cum on Southern Diagnostic for records of payments to the two physicians. Southern Diagnostic responded that it had no such records, as its computer system would only accept searches by claim number, patient, and accident date. Bencosme then filed a Motion for Leave to Inspect Southern Diagnostic’s computer system to retrieve the information. The trial court granted the motion and Southern Diagnostic petitioned for a writ of certiorari.

In Allstate Insurance Co. v. Boecher, 733 So.2d 993 (Fla.1999), the Florida Supreme Court held that information on the frequency of an expert’s testimony and payments to the expert is discoverable from the insurer. Id. at 998-999. Here the insurer, United Auto, does not keep records of this sort; United Auto has conveniently delegated that responsibility to Southern Diagnostic, a “non-party”. Southern Diagnostic’s current status as non-party is of no moment in this case, however. As the Boecher court held, Florida Rule of Civil Procedure 1.280(b)(4)(A)(iii) was not intended to shield a party from inquiries regarding the extent of the party’s relationship with an expert witness. 733 So.2d at 999; cf., Springer v. West, 769 So.2d 1068 (Fla. 5th DCA 2000) (holding that regardless of an insurer’s status as “party” or “nonparty,” information about the relationship between a non-party liability insurer and the insurer’s experts is discoverable under Boecher). United Auto cannot avoid the mandate of Boecher by employing Southern Diagnostic in an attempt to shield itself from inquiries about its relationship with its experts.

Nevertheless, we grant certiorari and quash the order under review, as Southern Diagnostic has demonstrated irreparable harm. See Strasser, M.D., P.A. v. Yala manchi, M.D., P.A., 669 So.2d 1142, 1145 (Fla. 4th DCA 1996). The trial court’s order is overly broad, setting no parameters or limitations on the inspection of Southern Diagnostic’s computer system, notwithstanding Southern Diagnostic’s claim that there is confidential and privileged information in its computer system. See Strasser, 669 So.2d at 1145 (Fla. 4th DCA 1996) (granting certiorari and holding that an order permitting discovery by computer search might be appropriate, but the “order must define parameters of time and scope and must place sufficient access restrictions to prevent compromising patient confidentiality and to prevent harm to the computer and databases”). Accordingly, we grant certiorari, quash the order under review and remand with directions to the trial court to craft a narrowly tailored order that accomplishes the purposes of the discovery requests and provides for confidentiality of the discovery.

WRIT GRANTED.

      . To aid the court, the parties may wish to have their IT experts provide advice to the court.


text:
    David Dean FLEISCHFRESSER, Appellant, v. Susan ACCURSIO, a/k/a Susan Fleischfresser, Appellee.
    No. 3D02-1493.
    District Court of Appeal of Florida, Third District.
    Oct. 30, 2002.
    Perez-Abreu & Martin-Lavielle and Javier Perez-Abreu, Coral Gables, and Andy W. Acosta, for appellant.
    Daniel Kaplan, Aventura, for appellee.
    Before FLETCHER and RAMIREZ, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

David Dean Fleischfresser, the husband, appeals from a non-final order requiring him to pay temporary alimony and support to his wife, Susan Accursio, arguing that the trial court erred by entering its order without making the required findings of fact establishing the wife’s need and his ability to pay, and by failing to apply the child support guidelines. We agree and reverse.

The trial court ordered the husband to pay, in addition to expenses which had been paid through the family business, a temporary award that appears to exceed the husband’s ability to pay. If so, the trial court has abused its discretion. See Barclay v. Barclay, 554 So.2d 1191 (Fla. 2d DCA 1989); Abraham v. Abraham, 700 So.2d 421 (Fla. 3d DCA 1997).

Further, as the trial court failed to identify which share of the award was for child support, we cannot determine whether the temporary child support portion of the award is appropriate in relation to the child support guidelines. See Burkhart v. Burkhart, 620 So.2d 225, 226 (Fla. 1st DCA 1993)(noting that child support guidelines are applicable to temporary child support awards); Garcia v. Garcia, 560 So.2d 403 (Fla. 3d DCA 1990)(same). It does not appear on this record that the trial court gave any consideration to the requirements of the child support guidelines.

We reverse the order in its entirety and remand for a complete reconsideration of the issues of child support and temporary alimony, to include, inter alia, specific findings regarding the wife’s need and the husband’s ability to pay. If the trial court finds the temporary awards should have been set at a lower amount, the husband shall receive retroactive credit.

Reversed and remanded for further proceedings consistent herewith.

      . An undifferentiated (combined) award of alimony and support was ordered by the trial court.


text:
    Idalia CHINCHILLA, Appellant, v. STAR CASUALTY INSURANCE COMPANY, Appellee.
    No. 3D01-3121.
    District Court of Appeal of Florida, Third District.
    Nov. 6, 2002.
    Lidsky, Vaccaro & Montes, and Leonardo Bueno, for appellant.
    Aragon, Burlington, Weil, and Crockett, and Paul J. Schwiep, for appellee.
    Before SCHWARTZ, C.J., and RAMIREZ, J., and NESBITT, Senior Judge.
   RAMIREZ, J.

Idalia Chinchilla appeals from a non-final order denying class certification in her suit against Star Casualty Insurance Company to recover unearned premiums. We affirm because Chinchilla lacks standing to represent the plaintiff class.

Chinchilla purchased automobile insurance from Star on June 10, 1995. On August 31, 1995, Star sent her a “three option” letter informing Chinchilla that she needed to pay an additional premium of $10 by September 30, 1995, in order to keep the policy in force. She could also choose to cancel her policy by October 12, 1995, and demand a refund of any unearned premium. If she did neither, her policy would be cancelled as of October 12, 1995, and any unearned premium would be refunded. Chinchilla, however, never received this “three option” letter. Star can-celled her policy on October 15,1995.

In December 1995, Chinchilla was involved in an automobile accident. She learned that the policy had been cancelled when she made a claim for approximately $10,000 in accident-related medical expenses. Chinchilla’s attorney wrote to Star on February 29,1996, demanding that it afford coverage or return the unearned premium.

After determining that Chinchilla could reasonably have believed she had paid all premiums due, and wishing to avoid litigation, Star responded on March 8, 1996, that it agreed to reinstate the policy and provide coverage for the accident. Chinchilla, however, would not accept yes for an answer. Instead of accepting coverage, Chinchilla brought a class action suit on behalf of persons who, among other things, had their policies cancelled for non-payment of the additional premiums and who were charged a premium beyond the cancellation date stated in the “three-option” letter. Chinchilla’s individual claim was for less than $100.

The trial court denied class certification finding that Chinchilla lacked standing to be the class representative because Star had reinstated her policy so that coverage existed to pay her medical bills, just as Chinchilla had demanded in her February 29, 1996 letter. The court also found that Chinchilla was an improper class representative because her claims were not typical of the purported class, the recipients of “three-option” letters whose policies were cancelled and the incorrect amount refunded. The trial court further found that Chinchilla was an inadequate representative because unique and individualized defenses were available against her which were inapplicable to the class.

Chinchilla has no standing to maintain a class action against Star because she has no claim to unearned premiums. See Ramon v. Aries Ins. Co., 769 So.2d 1053, 1055 (Fla. 3d DCA 2000) (insured had no standing to maintain an action on behalf of a class since he had sustained no damages). See also Taran v. Blue Cross Blue Shield of Florida, Inc., 685 So.2d 1004, 1006 (Fla. 3d DCA 1997) (“[I]f none of the named plaintiffs purporting to represent a class establishes a case or controversy with the defendant, none may seek relief on behalf of himself or any other member of the class.”). Chinchilla’s policy was reinstated retroactively so that she had full coverage for her accident. Chinchilla thus obtained the relief she sought and Star earned all the premiums Chinchilla had paid.

Chinchilla argues that Star reinstated her policy in order to “pick off’ the class representative. We disagree. In Taran, the filing of the class action complaint caused the insurers to discover billing errors upon review of their internal procedures. See Taran, 685 So.2d at 1007. They then issued refunds to the affected customers, including the wife of one of the named plaintiffs. Id. This Court held that where the insurer, prior to class certification, recognizes billing errors and desires to correct them, it may do so. Id. In this case, the insurer reinstated Chinchilla’s policy well before class certification. In fact, it did so prior to any suit being filed.

We therefore affirm.


text:
    R.W. SMITH & CO. OF FLORIDA, INC., Appellant, v. R. Wilbur SMITH & Co., Inc. d/b/a R.W. Smith & Co., Inc., Appellee.
    No. 3D01-1531.
    District Court of Appeal of Florida, Third District.
    Nov. 6, 2002.
    Roger M. Dunetz; Lauri Waldman Ross and Theresa L. Girten, Miami, for appellant.
    Katz, Barron, Squitero & Faust and Philippe Lieberman, Miami, for appellee.
    Before COPE, LEVY and FLETCHER, JJ.
   PER CURIAM.

R.W. Smith & Co. of Florida, Inc., appeals an adverse summary judgment in its suit against R. Wilbur Smith & Co., Inc. We agree with the trial court that the instant suit is barred by res judicata. See Red Carpet Corp. of Panama City Beach v. Roberts, 443 So.2d 377 (Fla. 1st DCA 1983); see also Harrington v. Batchelor, 781 So.2d 1133 (Fla. 3d DCA 2001).

R. Wilbur Smith & Co., Inc. appeals an order denying its motion to tax costs against Antonio Elortegui, the president and sole shareholder of R.W. Smith & Co. of Florida. We reverse on authority of subsection 607.1421(4), Florida Statutes (2001), and Barrie v. Buchsbaum, 547 So.2d 1009 (Fla. 3d DCA 1989).

Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.