author: ALLEN, J.

text:
    Lynne NOACK, Harry Noack, and Noack and Associates Insurance and Financial Services, Inc., Appellants, v. BLUE CROSS AND BLUE SHIELD OF FLORIDA, INC., Florida Combined Life Insurance Company, Inc., Florida Combined Agency, Inc., Health Options, Inc., Affiliated Insurance of Pensacola, Inc., and Mark Tubbs, Appellees.
    No. 1D02-3176.
    District Court of Appeal of Florida, First District.
    Nov. 26, 2003.

      Michael J. Pugh of Levin, Tannenbaum, Wolff, Band, Gates & Pugh, P.L., Sarasota, for Appellants.
    Donald H. Partington of Clark, Parting-ton, Hart, Larry, Bond, Stackhouse & Stone, Pensacola; Nancy W. Gregoire and W. Edward McIntyre of Bunnell, Woulfe, Kirschbaum, Keller, McIntyre & Gregoire, P.A., Ft. Lauderdale, for Appellees Blue Cross and Blue Shield of Florida, Inc., Florida Combined Life Insurance Company, Inc., and Health Options, Inc.
   ALLEN, J.

The appellants challenge a summary final judgment entered in their civil action on claims for fraud in the inducement, reformation of a written agreement, and antitrust violations. Because the undisputed material facts do not negate the possibility of relief on the theories of fraud or reformation, the summary judgment should not have been entered as to those claims.

The appellants sought recovery upon a complaint asserting numerous claims pertaining to their insurance business and dealings with the appellees. The trial court initially dismissed the complaint as to all claims and the case was appealed in Noack v. Blue Cross and Blue Shield of Florida, 742 So.2d 433 (Fla. 1st DCA 1999), where this court reversed the dismissal as to the claims for fraud in the inducement, reformation, and antitrust violations. Determining that those claims were facially sufficient, this court remanded the case for further proceedings as to those matters. The parties thereafter made extensive filings below, including written documents, depositions, and affidavits. The trial court then entered the summary judgment now being appealed, finding that there was no evidence to support the remaining claims and that the undisputed facts established that there was no basis for relief.

The summary judgment order is reviewed here de novo, to ascertain whether the record reflects any genuine issue of material fact and whether the court correctly applied the law, after drawing every permissible inference in favor of the appellants against whom the summary judgment was entered. E.g. Floyd v. Department of Children and Families, 855 So.2d 204 (Fla. 1st DCA 2003). Such a judgment is appropriate only if there is not even the slightest doubt as to any issue of material fact, as such doubt must be resolved in favor of the appellants. Id.

The record indicates that the appellants Lynn and Harry Noack (the Noacks) worked for the appellees Mark Tubbs and Affiliated Insurance, with Tubbs being an officer and the major stockholder of Affiliated Insurance, and the other named ap-pellees having associated business interests. The Noacks eventually terminated their relationship with Tubbs and Affiliated Insurance, and started their own business as the appellant Noack and Associates. The record further indicates that the appellee Tubbs and certain representatives of the appellee Blue Cross made various representations, which included statements pertaining to the manner in which the Noacks would be compensated, and their ability to retain certain business, and when they would be allowed to sell Blue Cross insurance, and the assistance which would be provided in this endeavor, and when they would be approved as general agents for Blue Cross and their status in that regard, etc. The Noacks indicated that the appellees did not comply with these promises and representations, and that the referenced statements were made with a fraudulent intent to deceive the Noacks and induce them not to file suit against the appellees who had breached their agreements and failed to honor other promises. Noting that they relied on the various misrepresentations in working for and pursuing their business relationship with several of the appellees, and that they did not file suit and otherwise acted in accordance with the promises and statements, the Noacks indicated that the Blue Cross representatives also informed them that pursuant to their written agreement the Noacks could remain as general agents as long as they produced sales and adequately performed in compliance with the agreement. Again, the Noacks indicated that this was a false statement intended to deceive them, whereby they were led to understand that the cancellation “for any reason” clause in the written agreement meant only that they could be terminated for cause. However, the Noacks asserted that despite their compliance with the agreement their agency was subsequently terminated without cause.

The evidence which the appellants submitted below creates sufficient issues of material fact to preclude summary judgment on the claims for fraud in the inducement, and reformation of the written agreement. In entering summary judgment as to the fraud claim the trial court concluded that there was no evidence that Blue Cross did not intend to perform under the written agreement, or that it had any intent to deceive the Noacks. But while our prior opinion in Noack v. Blue Cross refers to the necessity of showing such fraudulent intent, this does not require direct and explicit testimony to that effect as fraudulent intent may be proved circumstantially, through a series of acts and events which, when taken together and considered in context, collectively demonstrate the requisite intent. E.g. Department of Revenue v. Rudd, 545 So.2d 369 (Fla. 1st DCA 1989). Indeed, cases such as Rudd emphasize that even when there is no dispute as to the occurrence of the predicate acts, issues as to the interpretation of the events in context will often preclude summary judgment on the question of fraudulent intent.

As to the reformation claim, the trial court noted that the written agreement contains a merger clause, and that there was no evidence that anyone from Blue Cross was authorized to alter the terms of the standard agreement. However, as was explained in this court’s prior Noack opinion, the merger clause does not preclude relief by the equitable remedy of reformation. Instead, Noack recognizes that reformation of the written agreement may be had to give effect to the contracting parties’ true intent. And even in instances of unilateral mistake, reformation may pertain in connection with inequitable conduct by the other contracting party. See Smith v. Royal Automotive Group, 675 So.2d 144 (Fla. 5th DCA 1996); Ayers v. Thompson, 536 So.2d 1151 (Fla. 1st DCA 1988).

The factual presentation which the appellants made below, with the permissible inferences created thereby, presents sufficient issues of material fact to preclude summary judgment on the fraud and reformation claims. Such a showing was not made as to the antitrust claim, and the challenged order is affirmed as to that matter but reversed as to the fraud and reformation claims, and the case is remanded.

ERVIN and BARFIELD, JJ., CONCUR.


source: Caselaw Access Project

author: KAHN, J.

license: Public Domain

text:
    James Dion McALLISTER, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4684.
    District Court of Appeal of Florida, First District.
    Nov. 26, 2003.
    Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, for Appellee.
   KAHN, J.

Appellant, James McAllister, seeks review of his conviction for burglary of a dwelling, a second-degree felony. Appellant also challenges the trial court’s refusal to admit certain hearsay statements that appellant characterizes as “exculpatory.” As to the evidentiary issue, we reject appellant’s argument that the rule of completeness would have required the trial court to permit defense counsel to introduce appellant’s statements through the testimony of a police officer, or through testimony of another witness who apparently overheard part of a conversation between appellant and the police officer. Because nothing in the record provides any definitive information as to the substance of the excluded statements, we affirm this issue without further discussion. As to the remaining issue, however, because the evidence introduced at trial was sufficient only to convict appellant of burglary of a structure, a third-degree felony, we reverse the conviction for burglary of a dwelling and remand with instructions.

At trial, the State produced evidence sufficient to make a case that appellant burglarized a garage owned by Geraldine Small. Small testified that while cleaning her refrigerator, she heard a noise in the garage. She went to “the door,” looked out, and saw an automobile parked perpendicular to her driveway. She then opened the door and saw McAllister “in our garage and he had one of our Coleman lamps in his hand.” The evidence presented at trial thus establishes that appellant entered the garage with intent to commit a theft. The question on appeal is whether the evidence is sufficient to sustain a conviction for burglary of a dwelling.

The burglary statute defines “dwelling” as “a building or conveyance of any kind, including any attached porch, whether such building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the curtilage thereof.” § 810.011(2), Fla. Stat. (2001). At trial, appellant moved for judgment of acquittal, relying on what counsel characterized as a lack of evidence “that the garage was sufficiently attached to the house to establish the element of a dwelling....” The trial court denied that motion.

On appeal, appellant argues that this court must reverse under the decision in Martinez v. State, 700 So.2d 142 (Fla. 5th DCA 1997). In Martinez, the burglarized garage was not attached to the home, nor were the improvements on the property enclosed by a fence. Relying on State v. Hamilton, 660 So.2d 1038 (Fla.1995), the Fifth District reversed Martinez’ conviction for burglary of a dwelling because the evidence showed neither that the garage was part of the dwelling, nor that the garage and the dwelling were “sufficiently demarcated from the surrounding land so as to be enclosed,” thus meeting the court’s definition of curtilage. Martinez, 700 So.2d at 143. This court has cited Martinez as the “pertinent case law” establishing that burglary of a detached garage not enclosed together with the home by a fence does not constitute burglary of a dwelling. See Sassnett v. State, 838 So.2d 650, 652 (Fla. 1st DCA 2003). Accordingly, unless Small’s garage was either attached to the house or enclosed substantially along with the house, appellant is guilty of burglary of a structure, not burglary of a dwelling.

We conclude that Small’s testimony was not inconsistent with appellant’s theory that the garage in question was not part of a dwelling. The assistant state attorney failed to elicit information from Small identifying which door she peered out of, or whether that door was the same door she opened when she saw appellant at what she characterized as a very close distance. In fact, Small’s testimony is consistent with her having looked out a door facing the street, rather than a door entering a garage, given her testimony that when she looked out the door, she saw an automobile parked in the street perpendicular to her driveway. Although the State argues that Small must have looked out her kitchen door into the garage, a fair reading of her testimony will not establish such fact. The State apparently accepts the authority of Martinez because its brief does not mention or discuss that case in any attempt to criticize or distinguish its holding. The State can make no persuasive argument with regard to curtilage because the trial record contains no evidence at all as to that factor.

We REVERSE appellant’s conviction and sentence for burglary of a dwelling, and REMAND to the trial court with directions to enter a judgment of guilty of the lesser charge of burglary of a structure.

ERVIN and BOOTH, JJ., concur.

       Although Sassnett refers to the 1993 version of the burglary statute, subsequent amendments to the statute, including the 1996 amendment, did not alter the meaning of ''dwelling” for purposes of the present case. See Ch. 96-388, § 47, at 2337, Laws of Fla.


author: WEBSTER, J.

text:
    Geanetta MOORE a/k/a Jeanetta Moore, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-617.
    District Court of Appeal of Florida, First District.
    Nov. 26, 2003.
    Nancy A. Daniels, Public Defender; P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   WEBSTER, J.

In this direct criminal appeal, appellant seeks review of sentences imposed following revocation of probation. She argues that, because she was originally sentenced on two counts in one case to concurrent 24-month prison terms to be followed by concurrent 5-year probationary terms on two counts of a second case, the decisions in Tripp v. State, 622 So.2d 941 (Fla.1993), and its progeny mandate that she receive credit upon the revocation of her probation in the second case for the time she spent in prison on the sentences imposed in the first case. Because appellant was sentenced pursuant to the Criminal Punishment Code rather than its predecessor (the sentencing guidelines), we disagree and, accordingly, affirm. We also certify to the supreme court a question which we believe to be of great public importance.

I.

In November 2000, appellant entered no-contest pleas to charges of grand theft and felony failure to appear in case number 99-2202, and to identical charges in case number 99-4516. In January 2001, the trial court sentenced appellant pursuant to the Criminal Punishment Code (§§ 921.002-921.0027, Fla.Stat.(1999)) to concurrent 24-month prison terms on the two counts in case number 99-2202, to be followed by concurrent 5-year probationary terms on the two counts in case number 99-4516. Appellant served the prison terms imposed in case number 99-2202, and began her probation in case number 99-4516.

In Januax-y 2003, appellant admitted that she had violated her probation. Her attorney argued that she was entitled to credit for prison time previously served in case number 99-2202 on any prison sentence imposed in case number 99-4516 for violation of probation because the original Criminal Punishment Code scoresheet used had included both cases. The trial court agreed with the prosecutor that appellant was not entitled to such credit because she was being sentenced in only case number 99-4516. Accordingly, the trial court revoked appellant’s probation in that case, sentencing her to concuiTent 36-month prison terms on the two counts. It did not award any credit for the time appellant had previously served in prison on the sentences imposed in case number 99-2202.

Appellant subsequently filed a timely motion pursuant to Florida Rule of Criminal Procedure 3.800(b), again requesting credit on her sentences in case number 99-4516 for the time she had spent in prison on the sentences imposed in case number 99-2202, and relying on Tripp v. State, 622 So.2d 941 (Fla.1993), and State v. Witherspoon, 810 So.2d 871 (Fla.2002). The trial court denied the motion, concluding that Tripp and Witherspoon did not apply because appellant had been sentenced pursuant to the Criminal Punishment Code rather than the pre-1998 sentencing guidelines. This appeal follows.

II.

A.

In Tripp, the defendant had pleaded guilty pursuant to a plea agreement to charges of burglary and grand theft, which had occurred in November 1988, and had been charged in a single information. State v. Tripp, 591 So.2d 1055, 1056 (Fla. 2d DCA 1991). In return, the state had agreed to imposition of a guidelines sentence. Id. Pursuant to the sentencing guidelines, the maximum permitted sentence was 4/6 years. Id. The trial court imposed a 4-year prison sentence for the burglary. Id. For the grand theft, the court placed Tripp on probation. Id. The probation was to run consecutively to the prison sentence. Id. After completing his prison sentence, Tripp began his probationary term. Id. A short time later, he violated the terms of that probation. Id. Probation was revoked, and Tripp was sentenced to 4^ years in prison. Id. He was also given credit against that sentence for the 4 years he had already served for the burglary conviction. Id.

On appeal, the Second District Court of Appeal reversed. It concluded that the sentences imposed had not amounted to a split sentence for which jail credit was required but, instead, involved one sentence followed by a separate, consecutive, sentence of probation. Id. Because two separate sentences were involved, the court reasoned that Tripp was not entitled to jail credit on the second, consecutive, sentence for time spent in prison on the first sentence. Id. at 1056-57. However, recognizing that its holding would permit trial courts to exceed the maximum permitted sentence contemplated by the sentencing guidelines (id. at 1057), the court certified the following question to the supreme court:

IF A TRIAL COURT IMPOSES A TERM OF PROBATION ON ONE OFFENSE CONSECUTIVE TO A SENTENCE OF INCARCERATION ON ANOTHER OFFENSE, CAN JAIL CREDIT FROM THE FIRST OFFENSE BE DENIED ON A SENTENCE IMPOSED AFTER A REVOCATION OF PROBATION ON THE SECOND OFFENSE?

Id.

The supreme court accepted review, answered the certified question in the negative, and quashed the Second District’s decision. Tripp v. State, 622 So.2d 941, 942-43 (Fla.1993). It “h[e]ld that if a trial court imposes a term of probation on one offense consecutive to a sentence of incarceration on another offense, credit for time served on the first offense must be awarded on the sentence imposed after revocation of probation on the second offense.” Id. at 942 (footnote omitted). In support of this holding, the court offered the following analysis:

The purpose of the sentencing guidelines is “to establish a uniform set of standards to guide the sentencing judge in the sentence decision-making process” so as to eliminate unwarranted variation in sentencing.... One guidelines scoresheet must be utilized for all offenses pending before the court for sentencing_A sentence must be imposed for each separate offense, but the total sentence cannot exceed the permitted range of the applicable guidelines scoresheet unless a written reason is given.... Sentences imposed after revocation of probation must be within the recommended guidelines range and a one-cell bump.
When Tripp was originally sentenced, the maximum jail time he could have received within the permitted range of the sentencing guidelines was four and one-half years. Under ordinary circumstances, when he violated his probation, his sentence could not exceed the five- and-one-half-year maximum of the next highest permitted range (limited by the fact that the maximum sentence for a third-degree felony is five years), less credit for time served. The problem arises because Tripp committed two crimes. Unless he is given credit for time served on the one against the sentence imposed for the other upon the probation violation, his total sentence for the two crimes will be eight and one-half years, which is three years beyond the permitted range of a one-cell bump.
[I]t appears that the sentencing method sanctioned by the district court of appeal is inconsistent with the intent of the sentencing guidelines. Under this method, trial judges can easily circumvent the guidelines by imposing the maximum incarcerative sentence for the primary offense and probation on the other counts. Then, upon violation of probation, the judge can impose a sentence which again meets the maximum incarcerative period. Without an award of credit for time served for the primary offense, the incarcerative period will exceed the range contemplated by the guidelines.
The State argues that Tripp was convicted of two separate crimes and received two separate sentences. Thus, Tripp is not entitled to credit for time served on his first conviction after revocation of probation on his second conviction. The State, however, ignores the fact that both offenses were factors that were weighed in the original sentencing through the use of a single scoresheet and must continue to be treated in relation to each other, even after a portion of the sentence has been violated.

Id.

B.

Less than two years later, the supreme court extended Tripp in Cook v. State, 645 So.2d 436 (Fla.1994). In 1989, Cook had been convicted of five counts in three cases, and placed on concurrent 3-year probationary terms for all counts. Id. at 436. In 1990, Cook was convicted of four new counts, and found to have violated his probation in the earlier eases. Id. For the four new counts, Cook received concurrent 454-year guidelines sentences. Id. In addition, his probation was revoked on the 1989 convictions and he was again given concurrent 3-year probationary terms, to be served consecutively to the prison terms. Id. Following his release from prison, Cook promptly violated the probation imposed in the 1989 cases. Id. His probation was revoked, and he was sentenced in the 1989 cases to concurrent 354-year prison terms. Id. at 436-37. The trial court denied Cook’s request that he be given credit on those sentences for the 4/4 years he had served for the 1990 convictions, and we affirmed. Id. at 437.

The supreme court quashed our decision, “concluding] that Cook should have been credited with the four and a half years he served for the 1990 offenses when he was sentenced ... for violating his probation on the 1989 offenses for a second time.” Id. at 438. In doing so, the court appeared to focus on the fact that, like Tripp, the sentencing guidelines had required that Cook be sentenced using a single scoresheet. Id. at 437. Because of this, according to the court, Tripp required that the multiple offenses included on the original scoresheet

must continue to “be treated in relation to each other, even after a portion of the sentence has been violated.” ... Accordingly, where a defendant is sentenced to prison to be followed by probation for multiple offenses, and ultimately violates that probation, that defendant’s cumulative sentence may not exceed the guidelines range of the original score-sheet. ... Otherwise, trial judges could structure sentences in such a manner as to circumvent the guidelines.

Id. at 437-38 (citing Tripp, 622 So.2d at 942). The court reached this conclusion notwithstanding the fact that, unlike the situation in Tripp, in Cook the total sentence imposed did not exceed the permitted guidelines range — -i.e., there was nothing to suggest the trial court had attempted “to circumvent the guidelines.”

C.

More recently, the court has reiterated its position in Cook that, when guidelines sentences are imposed for multiple offenses using a single seoresheet, those sentences must continue to be treated “as an interrelated unit” when imposing a sentence following a subsequent violation of probation because all of the offenses “ ‘were factors that were weighed in the original sentencing.’ ” Hodgdon v. State, 789 So.2d 958, 963 (Fla.2001) (citing Tripp). Noting that “[a]t the root of [its] decision [in Tripp ] was a desire to effectuate the intent underlying the sentencing guidelines” (id. at 959), the court said:

Although we were concerned in Tripp with the circumvention of the sentencing guidelines, we were equally concerned with ensuring that offenses treated together at sentencing via a single score-sheet continue to be treated as a single unit for purposes of sentencing upon a violation of probation.

Id. at 962 n. 5. Some six months later, the court reaffirmed Hodgdon in State v. Witherspoon, 810 So.2d 871 (Fla.2002).

III.

We begin our analysis with recognition of the fact that, “[i]n Florida, the plenary power to prescribe the punishment for criminal offenses lies with the legislature, not the courts.” Woods v. State, 740 So.2d 20, 23 (Fla. 1st DCA 1999) (citations omitted). See also § 921.002(1), Fla. Stat. (1999) (“The provision of criminal penalties and of limitations upon the application of such penalties is a matter of predominantly substantive law and, as such, is a matter properly addressed by the Legislature”); Hall v. State, 823 So.2d 757, 763 (Fla.2002). Accordingly, to answer the question posed by this appeal we must determine what the legislature intended the result to be pursuant to the Criminal Punishment Code (§§ 921.002-921.0027, Fla.Stat.(1999)). This is consistent with the supreme court’s effort in Tripp and its progeny “to effectuate the intent underlying the sentencing guidelines.” Hodgdon, 789 So.2d at 959.

Tripp and its progeny (Cook, Hodgdon and Witherspoon) all involved sentences imposed pursuant to the sentencing guidelines. The legislature has since abandoned that sentencing scheme in favor of the Criminal Punishment Code. Because the sentences in this case were imposed pursuant to the latter, and our task is to ascertain and give effect to the legislature’s intent thereunder, we do not believe that the Tripp line of cases constitutes binding precedent. However, the only other appellate decision on point in Florida which we have found appears to reach the contrary conclusion. See Thomas v. State, 805 So.2d 850 (Fla. 2d DCA 2001). Accordingly, we note apparent conflict with Thomas, and certify to the supreme court the question at the conclusion of this opinion, which we believe to be of great public importance.

Appellant contends that, because all of her offenses were originally scored on the same seoresheet, Tripp and its progeny mandate that she be given credit on her sentences in case number 99-4516 for the time she previously served in prison on the sentences imposed in case number 99-2202. The state responds that, because appellant’s sentences were imposed pursuant to the Criminal Punishment Code rather than the sentencing guidelines, the Tripp line of cases has no bearing. For the reasons that follow, we agree with the state.

It is apparent from a reading of the Criminal Punishment Code that it was intended to return to trial judges most of the discretion regarding sentencing that they had traditionally enjoyed prior to the adoption of the sentencing guidelines. The Code states that “[t]he trial court judge may impose a sentence up to and including the statutory maximum for any offense, including an offense that is before the court due to a violation of probation or community control.” § 921.002(l)(g), Fla. Stat. (1999). It further provides:

The total sentencing points shall be calculated only as a means of determining the lowest permissible sentence. The permissible range for sentencing shall be the lowest permissible sentence up to and including the statutory maximum, as defined in s. 775.082, for the primary offense and any additional offenses before the court for sentencing. The sentencing court may impose such sentences concurrently or consecutively. However, any sentence to state prison must exceed 1 year. If the lowest permissible sentence under the code exceeds the statutory maximum sentence as provided in s. 775.082, the sentence required by the code must be imposed.

§ 921.0024(2), Fla. Stat. (1999). Unlike the sentencing guidelines, the Code does not provide an upper limit to the possible sentence other than the statutory maximum (unless the lowest permissible sentence exceeds the statutory maximum), and expressly permits the trial court to impose concurrent or consecutive sentences without restriction. Hall v. State, 773 So.2d 99, 101 (Fla. 1st DCA 2000), approved, 823 So.2d 757 (Fla.2002); Pruitt v. State, 801 So.2d 143, 144 (Fla. 4th DCA 2001). Compare Fla. R.Crim. P. 3.701(d)(12) (“A sentence must be imposed for each offense. However, the total sentence cannot exceed the total guideline sentence unless a written reason is given”); Fla. R. Crim P. 3.702(d)(19) & 3.703(d)(31) (“The sentencing court shall impose or suspend sentence for each separate count, as convicted. The total sentence shall be within the guidelines sentence unless a departure is ordered”).

Given these differences, we conclude that Tripp and its progeny have no bearing on sentences such as appellant’s, imposed pursuant to the Criminal Punishment Code. Although appellant’s offenses were scored on a single scoresheet, the scoresheet was relevant only to determining the lowest permissible sentence. The trial court remained free to sentence up to the statutory maximum on each offense (including offenses before it on a violation of probation) and to impose those sentences either concurrently or consecutively. The sentences cannot be considered an interrelated unit. Thus, when probation on one offense is ordered to run consecutively to incarceration on another, there is simply no logical reason to award credit for the prison time previously served for the first offense against a newly imposed prison sentence on the second offense following a revocation of probation. To do so would provide a windfall to the defendant, in contravention of the Code’s relatively clearly expressed intent. Accordingly, we hold that appellant was not entitled to credit against her sentences in case number 99-4516 for the time she had previously served in prison on the sentences imposed in case number 99-2202.

IV.

We affirm appellant’s sentences. However, we also certify to the supreme court the following question, which we believe to be of great public importance:

WHEN SENTENCING PURSUANT TO THE CRIMINAL PUNISHMENT CODE (§§ 921.002-921.0027, Fla. Stat.(1999)) FOR A VIOLATION OF A PROBATIONARY TERM ORIGINALLY IMPOSED TO RUN CONSECUTIVELY TO A PRISON TERM IMPOSED FOR A DIFFERENT OFFENSE, DO Tripp v. State, 622 So.2d 941 (Fla.1993), AND ITS PROGENY REQUIRE THE TRIAL COURT TO AWARD CREDIT FOR TIME PREVIOUSLY SERVED ON THE SENTENCE IMPOSED FOR THE DIFFERENT OFFENSE?
AFFIRMED.

KAHN and VAN NORTWICK, JJ., concur.


author: ALLEN, J. BENTON, J.,

text:
    FLORIDA DEPARTMENT OF REVENUE, Appellant/Cross-Appellee, v. Joseph C. HOWARD and Joyce Forman; Joel W. Robbins, in his official capacity as the Property Appraiser of Miami-Dade County, Florida, and William Markham, in his official capacity as the Property Appraiser of Broward County, Appellees/Cross-Appellants.
    No. 1D02-3762.
    District Court of Appeal of Florida, First District.
    Nov. 26, 2003.
    Charles J. Crist, Jr., Attorney General, and Nicholas Bykowsky, Assistant Attorney General, Tallahassee, for Appel-lanVCross-Appellee.
    Evan J. Langbein of Langbein & Lang-bein, P.A. Aventura, for Appellees/Cross-Appellants Joseph C. Howard and Joyce Foreman.
    Robert A. Ginsburg, Miami-Dade County Attorney, and Thomas W. Logue, Assistant County Attorney, Miami, for Appel-lee/Cross-Appellant Joel W. Robbins.
    Gaylord A. Wood, Jr., of Law Office of Wood & Stuart, P.A., Ft. Lauderdale, for Appellee/Cross-Appellant William Markham.
   ALLEN, J.

This case requires us to decide whether section 193.016, Florida Statutes, violates the uniform valuation requirement of article VII, section 4 of the Florida Constitution. Although the trial court found only a portion of the statute unconstitutional, we conclude that the entire statute is facially unconstitutional.

Subject to exceptions not relevant in this case, article VII, section 4 requires the legislature to enact a property valuation methodology for purposes of ad valorem taxation, and it directs that this methodology must be uniformly applicable to all types of property. Interlachen Lakes Estates, Inc. v. Snyder, 304 So.2d 433 (Fla.1973). In furtherance of this constitutional directive, the legislature has specified uniform factors to be considered by property appraisers in arriving at just valuations for all types of property. See § 193.011, Fla. Stat.

When the legislature has departed from the constitutional directive by enacting statutes which provide alternative methodologies for valuation of specific classes of property, challenges to such statutes have been sustained. Snyder, supra (holding unconstitutional a statute providing a valuation methodology unique to unsold lots in platted subdivisions); Valencia Center, Inc. v. Bystrom, 543 So.2d 214 (Fla.1989)(holding unconstitutional a statute providing a valuation methodology unique to real property subject to specified pre-1965 lease agreements).

Section 193.016 suffers from the same constitutional infirmity as did the statutes involved in Snyder and Bystrom, because it prescribes a valuation methodology applicable to only a special class of tangible personal property. The statute provides:

193.016 Property appraiser’s assessment; effect of determinations by value adjustment board. — If the property appraiser’s assessment of the same items of tangible personal property in the previous year was adjusted by the value adjustment board and the decision of the board to reduce the assessment was not successfully appealed by the property appraiser, the property appraiser shall consider the reduced values determined by the value adjustment board in assessing those items of tangible personal property. If the property appraiser adjusts upward the reduced values previously determined by the value adjustment board, the property appraiser shall assert additional basic and underlying facts not properly considered by the value adjustment board as the basis for the increased valuation notwithstanding the prior adjustment by the board.

Although the statute specifies a valuation methodology applicable only to a limited class of tangible personal property, the trial court determined that only the second sentence of the statute violates article VII, section 4. As to the first sentence of the statute, the trial court reasoned:

The requirement that the property appraiser “shall consider” the reduced values of the value adjustment board (“VAB”) does not usurp the discretion and power of the property appraiser to value property at just value. The property appraiser can consider and reject this additional factor in determining the just value of the property.

The trial court is correct that the first sentence of the statute merely requires the property appraiser to “consider” the prior year tangible personal property assessment reduction made by the value adjustment board. However, this mandated consideration is nevertheless an essential component of the valuation methodology for this special class of property.

As previously indicated, the legislature enacted section 193.011 in compliance with article VII, section 4, which requires the legislature to adopt a uniform methodology for valuation of all types of property for purposes of ad valorem taxation. Section 193.011 specifies a list of eight factors which “the property appraiser shall take into consideration ” in arriving at a just valuation for all types of property (emphasis supplied). The legislature is authorized to add to or modify the list of factors to be considered by the property appraiser when determining valuations for all types of property. But, except in circumstances specified in article VII, section 4, and not present in this case, it may not provide additional or different factors which are applicable to only a limited class of property. Because this is the effect of both sentences of section 193.016, the statute violates article VII, section 4 of the state constitution and is facially unconstitutional in its entirety.

The order under review is accordingly affirmed in part and reversed in part.

DAVIS, J, concurs; BENTON, J., dissents with written opinion.

BENTON, J.,

dissenting.

“[Cjonscious of our duty to interpret a legislative act so as to effect a constitutional result if it is possible to do so,” Chatlos v. Overstreet, 124 So.2d 1, 2 (Fla.1960), I would construe section 193.016, Florida Statutes, as imposing process requirements that do not inherently — and ought not be interpreted to — interfere with the constitutional imperative of “just valuation of all property for ad valorem taxation.” Art. VII, § 4, Fla. Const. On that basis, I would uphold the statute.

The first sentence in section 193.016, which requires only that the property appraiser “consider” what the valuation adjustment board did the year before (assuming no successful appeal), is not a directive to arrive at any assessment that does not represent just valuation. While the second sentence imposes more onerous requirements ■ and presents a closer question, I would reject an interpretation of the second sentence, too, that would cabin exercise of the property appraiser’s discretion in any way that would not leave the property appraiser free to arrive at just valuation in keeping with section 193.011, Florida Statutes.

The majority opinion relies on the decisions in Interlachen Lakes Estates, Inc. v. Snyder, 304 So.2d 433 (Fla.1973), and Valencia Center, Inc. v. Bystrom, 543 So.2d 214 (Fla.1989), cases in which our supreme court struck down statutes that dictated preferential assessments for certain owners of real estate. The court described the effect of the statute at issue in Interlachen as giving “a subdivision developer a tax break by treating his unsold lots as unplat-ted for tax valuation purposes until he sells sixty per cent of his lots, while all of the purchasers of his lots are not so favored.” 304 So.2d at 435. The statute struck down in Valencia would have required the property appraiser to favor the owners of property subject to certain long-term, below-market leases, by prohibiting assessment on the basis of the highest and best use of the property. In both Interlachen and Valencia, the offending statutes would, under the statutorily prescribed circumstances, have required discriminatory assessment even of adjacent parcels of real estate, on the basis of factors other than the parcels’ just value. Interlachen and Valencia are thus readily distinguishable from the present case.

Section 193.016 clearly does not, in the way the Interlachen and Valencia statutes did, “arbitrarily classify property for favored tax treatment.” Valencia, 543 So.2d at 216. There is nothing arbitrary about the historic distinction between real property and tangible personalty. Far from being arbitrary, some classification of property is necessary for the administration of the tax laws. See, e.g., § 193.052(2), Fla. Stat. (2002) (requiring returns of tangible personal property but not, ordinarily, any return of “real property the ownership of which is reflected in instruments recorded in the public records of the county in which the property is located”). In legal contemplation, moreover, no “class” consisting of property (real, personal or both) for which the value adjustment board adjusts assessments (without being appealed) receives “favored tax treatment.”

In enacting section 193.016, the Legislature did not “tax different classes of property on different bases.” Interlachen, 304 So.2d at 434. It prescribed certain procedures. Considering last year’s assessment — whether adjusted by the value adjustment board or not — in the course of arriving at this year’s assessment — whether of tangible personalty or of realty- — is a perfectly reasonable way to proceed, and is no more an impediment to attaining just valuation than considering last year’s sales is. I respectfully dissent.

      . Our review is de novo. See City of Miami v. McGrath, 824 So.2d 143, 146 (Fla.2002); Florida Fish & Wildlife Conservation Comm'n v. Caribbean Conservation Corp., Inc., 789 So.2d 1053, 1054 (Fla. 1st DCA 2001); Philip J. Padovano, Florida Appellate Practice § 9.4, at 132 (2003 ed.).

      . We reject the appellant/cross-appellee’s contention that the appellees/cross-appellants lack standing.

      . The dissent posits that the statute should be upheld because it does not "arbitrarily classify property for favored tax treatment.” This observation overlooks two important points.
      First, although a non-arbitraiy, rational basis might exist for providing a different valuation methodology for the class of property referenced in section 193.016, this is not the proper inquiry for determining whether the statute complies with article VII, section 4.
      Under the 1885 Constitution, we had held that the legislature could tax different classes of property on different bases, as long as the classification was reasonable. Lanier v. Overstreet, 175 So.2d 521 (Fla.1965). The people of this State, however, by enumerating in their new Constitution which classifications they want, have removed from the legislature the power to make others.

        Snyder, 304 So.2d at 434.
      Second, section 193.016 does provide favored treatment for the class of property referenced therein. In requiring the property appraiser to consider the prior year tangible personal property assessment reduction made by the value adjustment board, and in further requiring the property appraiser to explain any upward deviation from the prior year assessment, the statute increases the likelihood of a favorable assessment for the owners of this special class of property, by either the property appraiser or the value adjustment board.

      . The declaratory judgment below dealt with section 193.016, Florida Statutes (2001). Section 193.016 has not been amended since it was originally enacted. See Ch.2000-262, § 2, at 2693-94, Laws of Fla. Nor has section 193.011, which should be read in pari materia
        with section 193.016, been amended since section 193.016 was enacted.

      . Other elected constitutional officers have been required to articulate the basis on which they exercise their discretion. See § 775.087(5), Florida Statutes (2002) (“In every case ... in which the defendant did not receive the mandatory penalty, the state attorney must place in the court file a memorandum explaining why the minimum mandatory penalty was not imposed.”); Green v. State, 792 So.2d 643, 644 (Fla. 1st DCA 2001) (“[T]his statute does not appear to encroach on the executive's prosecutorial discretion any more tha[n] the Prison Releasee Reoffen-der Act, the constitutionality of which was upheld by the supreme court in the face of arguments very similar to those advanced here. See State v. Cotton, 769 So.2d 345 (Fla.2000).”).

      . The majority opinion's assertion that “section 193.016 does provide favored treatment ... increasing] the likelihood of a favorable assessment” is not based on any evidence of record.

      . Except as provided otherwise by article VII, section 4, subsection (c)(1), of the Florida Constitution, the property appraiser is not bound by any prior year's assessment. See, e.g., Keith Invs., Inc. v. James, 220 So.2d 695, 697 (Fla. 4th DCA 1969).


text:
    BROWARD CHILDREN’S CENTER, INC. and the Zenith, Appellants/Cross-Appellees, v. Carolyn HALL, Appellee/Cross-Appellant.
    No. 1D03-1379.
    District Court of Appeal of Florida, First District.
    Nov. 26, 2003.

      Robert L. Teitler and Bernard I. Probst of Walton Lantaff Schroeder & Carson, LLP, Miami, for Appellants/Cross-Appel-lees.
    William F. Souza of William F. Souza, P.A., North Miami, for Appellee/Cross-Ap-pellant.
   WEBSTER, J.

In this workers’ compensation case, the employer and carrier appeal, and the claimant cross-appeals, from a non-final order adjudicating compensability which includes the required certification. We have jurisdiction. Fla. Const. art. V, § 4(b)(1); Fla. R.App. P. 9.180(b)(1)(C). See generally Cadco Builders, Inc. v. Roberts, 712 So.2d 457 (Fla. 1st DCA 1998). Because the judge of compensation claims resolved a disagreement between the parties’ independent medical examiners regarding the cause of the claimant’s staphylococcal infection and resulting endocarditis without the benefit of an evaluation and opinion by an expert medical advisor, we reverse.

I.

The claimant maintained that she had contracted the staph infection in the course, and as a result, of her employment. She also alleged that healthcare workers such as she were at a greater risk of contracting the type of staph infection she had acquired than were members of the general public. The employer and carrier denied those allegations. During the merits hearing, the judge of compensation claims concluded that the testimony of the parties’ independent medical examiners was in conflict as to whether healthcare workers such as the claimant were at greater risk of contracting the type of staph infection acquired by the claimant and whether the claimant had contracted the staph infection in the course, and as a result, of her employment. Accordingly, he sua sponte “order[ed] that the [claimant be evaluated by an expert medical advisor ... in the specialty of infectious diseases ... [,]” and reserved jurisdiction as to the issue of compensability pending the results of the expert medical advisor’s evaluation.

The judge of compensation claims subsequently entered an order appointing Dr. Feldman as the expert medical advisor. Nearly four months later, the judge held a status conference at which he told the parties that Dr. Feldman had declined the appointment “because the records [we]re too many and too extensive.” The judge further informed the parties that Dr. Feld-man was “the only infectious disease specialist who is certified as an [ejxpert [mjedical [ajdvisor in the entire State of Florida.”

By a subsequent order, the judge held that, because there was no other qualified expert medical advisor available, he would proceed to determine the issue of com-pensability. He then resolved the disagreement between the parties’ medical experts by accepting the opinions of the claimant’s independent medical examiner and rejecting those of the employer’s and carrier’s. Based on that factual determination, he held that the claim was compen-sable.

The employer and carrier timely served a motion for rehearing in which they argued that section 440.13(9)(c), Florida Statutes (1997), mandated the appointment of an expert medical advisor. They further argued that Florida Administrative Code rule 59A-30.006 authorized the Agency for Health Care Administration to select a “temporary expert medical advis- or” when “the particular area of expertise requested is not represented among the available expert medical advisors.” Accordingly, they requested the judge to vacate his previous order, and to request such a “temporary expert medical advisor” from the Agency for Health Care Adminis--tration. In response, the claimant argued that no temporary expert medical advisor should be appointed because the administrative rule was irreconcilable with section 440.13(9)(a), which addresses the certification of expert medical advisors, and because doing so would result in additional delay. At a subsequent hearing, the judge concluded that he was not obliged to resort to rule 59A-30.006 and seek a temporary expert medical advisor because the rule was not intended to apply in situations such as that which was presented by this case, and because to do so would result in additional delay. Accordingly, he denied the motion for rehearing. This appeal and cross-appeal follow.

II.

A.

To the extent pertinent, section 440.13(9)(c), Florida Statutes (1997), reads:

If there is disagreement in the opinions of the health care providers [or] if two health care providers disagree on medical evidence supporting the employee’s complaints ... [,] the judge of compensation claims shall, upon his or her own motion or within 15 days after receipt of a written request by either the injured employee, the employer, or the carrier, order the injured employee to be evaluated by an expert medical advis- or. The opinion of the expert medical advisor is presumed to be correct unless there is clear and convincing evidence to the contrary....

We have previously held that this statutory provision is “mandatory and binding on the judge of compensation claims” and that “[t]he statutory language provides no support for the view that the statute is directory only, or that evaluation by expert medical advisors is to be left to the discretion of the judge of compensation claims.” Palm Springs Gen. Hosp. v. Cabrera, 698 So.2d 1352, 1356 (Fla. 1st DCA 1997). We reaffirm that holding. It is apparent that the legislature’s intent was to create a mechanism by which an independent medical expert would offer assistance to the judge of compensation claims when he or she is faced with conflicting medical evidence from the parties’ experts. It is further apparent that the legislature intended for the provisions of section 440.13(9)(c) to be mandatory. Walsdorf Sheet Metal Works, Inc. v. Gonzalez, 719 So.2d 355 (Fla. 1st DCA 1998), upon which the claimant relies, is distinguishable on its facts. There, we held that the employer and carrier had waited too long before requesting the appointment of an expert medical ad-visor. Here, in contrast, the judge of compensation claims sua sponte concluded that an expert medical advisor was required upon hearing the testimony of the parties’ experts. In Walsdorf, we expressly declined to address whether the judge of compensation claims had a duty to appoint an expert medical advisor on his own motion, because the employer and carrier did not make such an argument. Id. at 357 n. 3. Moreover, the claimant’s argument to the contrary notwithstanding, there is nothing in the plain language of the statute to suggest that a judge of compensation claims need make only one attempt to appoint an expert medical advisor in order to satisfy its mandate.

B.

Section 440.13(9)(a), Florida Statutes (1997), which provides for the certification of expert medical advisors, reads:

The division [of workers’ compensation] shall certify expert medical advis-ors in each specialty to assist the division and the judges of compensation claims within the advisor’s area of expertise as provided in this section. The division shall, in a manner prescribed by rule, in certifying, recertifying, or decer-tifying an expert medical advisor, consider the qualifications, training, impartiality, and commitment of the health care provider to the provision of quality medical care at a reasonable cost. As a prerequisite for certification or recertifi-cation, the division shall require, at a minimum, that an expert medical advis- or have specialized workers’ compensation training or experience under the workers’ compensation system of this state and board certification or board eligibility.

Responsibility for certification of expert medical advisors was transferred from the Division of Workers’ Compensation to the Agency for Health Care Administration by chapter 2002-194, section 25, Laws of Florida, effective July 1, 2002. Ch.2002-194, § 71, at 1267, Laws of Fla.

The Agency for Health Care Administration has rules in place addressing expert medical advisors. Among those is rule 59A-30.006, entitled “Temporary Expert Medical Advisors.” That rule reads:

(1) When the Agency or a judge of compensation claims requests the services or opinion of an expert medical advisor and the particular area of expertise requested is not represented among the available expert medical advisors, the Agency shall select a qualified individual upon the recommendation of a state or national medical professional organization.
(2) The selectee shall send to the Agency a copy of his/her license and board certification or verify his/her board eligibility before being assigned the status of temporary expert medical advisor.
(3) Approval to serve as a temporary expert medical advisor shall be limited to the specific case for which the services are requested.
(4) A physician who has been suspended or decertified pursuant to Chapter 59A-29, F.A.C., shall not be approved as a temporary expert medical advisor.

The judge of compensation claims concluded that rule 59A-30.006 was not intended to apply to a situation such as that with which he was presented. In his opinion, the rule was intended to apply only when there are no expert medical advisors certified in a particular area of expertise. The plain language of the rule precludes such a narrow interpretation. See Boca Raton Artificial Kidney Ctr., Inc. v. Dep’t of Health & Rehab. Servs., 493 So.2d 1055, 1057 (Fla. 1st DCA 1986) (when interpreting administrative rules, words used should be given their plain and ordinary meaning). Here, because the only certified expert medical advisor in the area of infectious diseases had declined appointment, that “area of expertise ... [wa]s not represented among the available expert medical advisors.” Fla. Admin. Code R. 59A-30.006(1) (emphasis added). Accordingly, pursuant to rule 59A-30.006, the Agency for Health Care Administration had the authority to “select a qualified individual” to serve as a “temporary expert medical advisor” in this case. Id. R. 59A-30.006(1) & (3).

C.

The claimant argues that rule 59A-30.006 is in direct conflict with section 440.13(9)(a) in several respects and that, therefore, the latter, rather than the former, must control. We agree that, when a rule is in direct conflict with a statute, the latter must control. See, e.g., Willette v. Air Products, 700 So.2d 397, 399 (Fla. 1st DCA 1997) (“a duly promulgated administrative rule, although ‘presumptively valid until invalidated in a section 120.56 rule challenge,’ ... must give way in judicial proceedings to any contradictory statute that applies”). However, we are not persuaded by the claimant’s arguments that rule 59A-30.006 conflicts with section 440.13(9)(a). On the contrary, we believe that the two are consistent.

Section 440.13(9)(a) places responsibility for certification, recertification and decertification of expert medical advisors on the Agency for Health Care Administration. It authorizes the Agency to adopt rules to implement that directive. Nothing in the language of section 440.13(9)(a) precludes temporary certification. Moreover, the clear intent of section 440.13(9)(c) is to require participation of an expert medical advisor in every case where a disagreement exists between healthcare providers. To read section 440.13(9)(a) as the claimant urges would thwart that clearly expressed intent in cases such as this, where no previously certified expert medical advisor is available in the appropriate area of expertise. We decline to give such an interpretation to the statute. Although the claimant presents additional arguments in support of her position that rule 59A-30.006 is inapplicable, those arguments are both unpreserved (because not presented to the judge of compensation claims) and without merit.

D.

It is true, as the judge of compensation claims and the claimant have observed, that resolution of the claim has been delayed. However, given the complicated nature of the claim and the peculiar procedural history of the case, we are not prepared to categorize that delay as inordinate. Moreover, to the extent that our decision will result in further delay, such delay is the result of the legislature’s clearly expressed intent that the opinion of an expert medical advisor be obtained in cases of this type.

III.

In summary, we hold that section 440.13(9)(c), Florida Statutes (1997), mandates the appointment of an expert medical advisor in this case. Given the existence of rule 59A-30.006, the fact that the only certified expert medical advisor in the area of infectious diseases declined appointment does not excuse the failure of the judge of compensation claims to appoint one. Accordingly, we reverse, and remand. On remand, the judge of compensation claims shall appoint an expert medical advisor. Should there now be additional physicians certified in the relevant area of expertise, the appointment must come from that list. If no physicians are certified in that area, the judge shall request the Agency for Health Care Administration to select a temporary expert medical advisor in accordance with rule 59A-30.006. We affirm, without discussion, as to all other issues raised by the appeal and cross-appeal.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.

BARFIELD and BROWNING, JJ., CONCUR.


author: PER CURIAM.

text:
    Vel TYLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-1550.
    District Court of Appeal of Florida, First District.
    Nov. 26, 2003.
    Vel Tyler, pro se, petitioner.
    Charlie Crist, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Vel Tyler petitions this court for a writ of mandamus, contending that the Circuit Court in and for Alachua County has unreasonably delayed disposition of his motion for postconvietion relief. Having now considered the petition and the response filed on behalf of respondent State of Florida, we agree with petitioner. See Bernard v. State, 734 So.2d 606 (Fla. 1st DCA 1999).

The petition for writ of mandamus is granted and the circuit court is directed to act on the motion within 30 days of issuance of mandate in this proceeding by either acting on the motion or by entering an order which sets an evidentiary hearing to be conducted within a reasonable time after entry of the order.

PETITION GRANTED.

ERVIN, BOOTH and KAHN, JJ., concur.


text:
    Walter WYATT, Appellant, v. NATIONAL BANK OF COMMERCE and Kevin Gay Family LLC, Appellee.
    No. 1D03-2126.
    District Court of Appeal of Florida, First District.
    Nov. 26, 2003.
    Scott B. Parks of Parks and Associates, Jacksonville, for Appellant.
    Marc L. Schatten, Memphis, Tenn., and Chad Walker, Jacksonville, for Appellee.
   PER CURIAM.

The appellant bought this appeal seeking review of an order that granted a motion for summary judgment. However, because the order on appeal did not enter judgment, the order is not final and this Court lacks appellate jurisdiction to review it. Cf. McQuaig v. Wal-Mart Stores, Inc., 789 So.2d 1215 (Fla. 1st DCA 2001). See generally Benton v. Moore, 655 So.2d 1272 (Fla. 1st DCA 1995). As the appellant concedes that the instant order is not ap-pealable, the appeal is hereby DISMISSED. This dismissal is without prejudice to the appellant’s right to file a timely notice of appeal once a final order has been entered.

VAN NORTWICK, PADOVANO and HAWKES, JJ., concur.


text:
    Bruce C. WRINKLE, Individually, as Assignee of all Rights and Interests of Miners Pension Trust, Appellant, v. Arlene M. COOPER and Edward Holt, et al, Appellees.
    No. 1D03-2936.
    District Court of Appeal of Florida, First District.
    Nov. 26, 2003.
    Appellant, pro se.
    Barry A. Bobek, Jacksonville; Kevin A. Schoeppel, Jacksonville; Richard J. Lan-tinberg of Cooper, Ridge & Beale, Jacksonville; Calvin E. Hayden, Amelia Island; Alan Kluger, Miami; Simon D. Rothstein of Rothstein & Siegel, Jacksonville; and Valerie Pistole, Sonoma, CA, for Appel-lees.
   PER CURIAM.

Upon consideration of the appellant’s responses to the Court’s orders of September 2, 2003, and September 30, 2003, the Court has determined that because the appellant was never made a party to the proceedings below, the appellant does not have standing to maintain the appeal. See Forcum v. Symmes, 101 Fla. 1266, 133 So. 88 (1931)(holding that it is a fundamental principle of appellate law that appeal jurisdiction is only available to parties); see also Stas v. Posada, 760 So.2d 954 (Fla. 3d DCA 1999). Accordingly, the appeal is hereby dismissed. All pending motions are denied as moot.

VAN NORTWICK, PADOVANO and HAWKES, JJ., concur.


author: B KIMBALL, Justice.

text:
    ANTHONY CRANE RENTAL, L.P. v. Rufus FRUGE, Jr., Director of Calcasieu Parish Sales & Use Tax Dept.
    No. 2003-C-0115.
    Supreme Court of Louisiana.
    Oct. 21, 2003.
    Rehearing Denied Dec. 12, 2003.

      Toni L. Petrofes, Russell J. States, Jr., John M. Veron, Jr., John C. Guillet, Sco-field, Gerard, Veron, Singletary & Pohorel-sky, Lake Charles, Counsel for Applicant.
    David R. Cassidy, David R. Kelly, Breazeale, Sachse & Wilson, Baton Rouge, Counsel for Respondent.
    Robert F. Mulhearn, Jr., and Robert R. Rainer, Baton Rouge, Counsel for amici curiae Ascension Parish Sales and Use Tax Collection, Caddo Parish Sales and Use Tax Collection, Livingston Parish Sales and Use Tax Collection, St. Mary Parish Sales and Use Tax Collection, West Baton Rouge Sales and Use Tax Collection.
    James M. Wooderson, Lafayette, Counsel for amicus curiae Lafayette Parish School Board.
    Lea Anne Batson, Baton Rouge, Counsel for amicus curiae City of Baton Rouge, East Baton Rouge Parish.
    Andrew A. Lemmon, New Orleans, Roy M. Lilly, Jr., Minden, Johnette L. Martin, Houma, Counsel for amici curiae St. Charles Parish School Board, and St. John the Baptist Parish School Board, Plaque-mines Parish Government.
    Margaret H. Kern, Covington, Counsel for amicus curiae Rodney Strain, Jr.
    John A. Gallagher, Jr., Baton Rouge, Counsel for amicus curiae Louisiana Municipal Association.
   B KIMBALL, Justice.

In this case, we are asked to reconsider our holding in Elevating Boats v. St. Bernard Parish, 00-3518 (La.9/5/01), 795 So.2d 1153, that a local taxing authority’s combined interest, penalties and attorney fees assessment against delinquent taxes cannot exceed the 15% interest penalty provision of La. R.S. 33:2746. For the reasons that follow, after considering the language in La. R.S. 33:2841 and La. R.S. 33:2746 and the legislative history of the statutes, we hold that local taxing authorities are authorized to impose, through proper elections, 15% interest, 25% penalties and 10% attorney fees on delinquent taxes. Any holding in Elevating Boats to the contrary is hereby overruled.

FACTS AND PROCEDURAL HISTORY

Anthony Crane Rental, L.P. (ACR), is a Pennsylvania limited partnership that operates a crane rental business with an office in Westlake, Louisiana, in Calcasieu Parish. Through this office, ACR leases cranes, purchased outside of Louisiana, to companies in the State. ACR was audited by the Calcasieu Parish School System Sales and Use Tax Department (the Department) for the period covering January 1, 1995 through June 30, 1998, and was assessed sales and use taxes for the cranes. ACR protested the assessment, but was denied relief. ACR then paid, under protest, the Department’s final assessment of February 25, 2000, and filed a Petition for | ¡.Refund to recover the amounts, essentially arguing that the cranes were excluded from taxation, that certain statutes relating to taxation were unconstitutional, that if it were liable for the taxes the Department failed to apply a mandated credit, and that the interest charged by the Department was excessive. The Department answered and requested attorney fees as provided by law. Cross motions for summary judgment were filed by both parties.

After a hearing in April 2001, the trial court denied ACR’s motion for summary judgment and granted the Department’s motion for summary judgment ordering that ACR pay taxes, interest, penalties and attorney fees of 10% up to a maximum of $60,000.00. The original judgment assessed interest at the rate of 15% per annum, penalties in the amount of 25% of the outstanding tax, and attorney fees under Calcasieu Parish School Board Sales Tax Ordinance section 6.09. ACR filed a Motion for New Trial, which was granted only on the issue of attorney fees, interest and penalties. The trial court ruled that the combined interest and penalties charged by the Department could not exceed 15%, citing Elevating Boats, a case in which this court held that a Parish’s combined interest, penalties and attorney fees cannot exceed the 15% interest penalty permitted by La. R.S. 33:2746 when collecting delinquent | «sales and use taxes. However, the trial court allowed the stipulation of 10% attorney fees the parties entered into prior to judgment to stand. Both parties appealed.

The Third Circuit Court of Appeal affirmed the district court judgment in part, reversed in part and remanded the case for further proceedings. See Anthony Crane Rental, L.P. v. Fruge, 02-0635 (La.App. 3 Cir. 12/11/02), 833 So.2d 1070. Specifically, the court of appeal affirmed the trial court’s grant of summary judgment in favor of the defendant, Rufus Fruge, Jr., Director of Calcasieu Parish Sales and Use Tax Department, finding that ACR, was subject to its sales and use tax and was not entitled to a credit. However, the court of appeal reversed the trial court’s judgment regarding penalties, holding that the combined interest, penalties and attorney fees award was not to exceed the 15% interest penalty permitted by La. R.S. 33:2746. Thus, the court of appeal held that the trial court, under Elevating Boats, should have abated the attorney fee award to bring the combined interest, penalties and attorney fees award to 15%. Accordingly, the court of appeal remanded the case to the trial court for a determination of the exact amount owed in penalties.

On the application of Director Fruge on behalf of Calcasieu Parish, we granted cer-tiorari to reconsider our holding in Elevating Boats regarding La. R.S. 33:2746. See Anthony Crane Rental, L.P. v. Fruge, 03-0115 (La.3/28/03), 842 So.2d 1082.

LAW AND DISCUSSION

The function of statutory interpretation and the construction to be given to legislative acts rests with the judicial branch of the government. Touchard v. Williams, 617 So.2d 885 (La.1993). In Elevating Boats, this court addressed the conflict between St. Bernard Parish’s local ordinance imposing a 25% penalty and 10% attorney fees and La. R.S. 33:2746, which provides for a 15% interest penalty for the nonpayment of tax. Based only on the language of the statute itself, we | interpreted La. R.S. 33:2746 as setting a 15% cap on the combined interest, penalties and attorney fees that a local taxing authority can assess on the collection of delinquent taxes.

Under the general rules of statutory construction, courts begin with the premise that legislation is the solemn expression of legislative will and, therefore, the interpretation of a law involves, primarily, the search for the legislature’s intent. La. Civ. C. art. 1; Falgout v. Dealers Truck Equipment Co., 98-3150, p. 2 (La.10/19/99), 748 So.2d 399, 401 (citing Fontenot v. Chevron U.S.A. Inc., 95-1425, p. 6 (La.7/2/96), 676 So.2d 557, 562). When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. La. Civ. C. art. 9; Falgout, 98-3150 at p. 2, 748 So.2d at 401 (citing Breaux v. Hoffpauir, 95-2933, pp. 2-3 (La.5/21/96), 674 So.2d 234, 236).

Further, it is a well-recognized and long-established rule of statutory construction that statutory provisions should be construed along with the remainder of the statute, and all statutes on the same subject matter should be read together and interpreted as a whole to effect the legislative intent and should be construed in such a way as to reconcile, if possible, apparent inconsistencies or ambiguities so that each part is given effect. Comm-Care Corp. v. Bishop, 96-1711 (La.7/1/97), 696 So.2d 969. Courts should give effect to all parts of a statute and should not give a statute an interpretation that makes any part superfluous or meaningless, if that result can be avoided. In re Succession of Boyter, 99-0761, p. 9 (La.1/7/00), 756 So.2d 1122, 1129 (citing First Nat’l Bank of Boston v. Beckwith Mach. Co., 94-2065 (La.2/20/95), 650 So.2d 1148). It is presumed that the intention of the legislative branch is to achieve a consistent body of law. Boyter, 99-0761 at p. 9, 756 So.2d at 1130 (citing Stogner v. Stogner, 98-3044, p. 2 (La.7/7/99), 739 So.2d 762).

The starting point for the interpretation of any statute, then, is the language of the statute itself. Touchard v. Williams, 617 So.2d at 888. In this case, the two statutes at issue are La. R.S. 33:2841 regarding the collection of taxes and La. R.S. 33:2746 regarding the penalty for nonpayment of taxes.

La. R.S. 33:2841

The Department argues that in deciding Elevating Boats, wherein this court held that under La. R.S. 33:2746, a Parish’s combined interest, penalties and attorney fees on delinquent taxes could not exceed 15%, this court failed to consider the provisions of La. R.S. 33:2841.

La. R.S. 33:2841 provides:

A political corporation may through the officer whose duty it is to receive and collect the taxes and moneys due the corporation, enforce the collection of any taxes due to it, within the time and in the manner provided for the collection of taxes due to the state.

Specifically, the Department argues that the phrase “within the time and in the manner provided for the collection of taxes due to the state” authorizes municipalities to collect local taxes using the same enforcement remedies available to the State of leveling 15% interest per year, 25% penalties and 10% attorney fees on delinquent 1 fitaxes. Accordingly, the Department contends that the voters of Calcasieu Parish, by the authority of La. R.S. 33:2841, enacted Calcasieu Parish School Board Ordinance § 6.09, which adopted the same remedies utilized by the State for the collection of interest, penalties and attorney fees. Conversely, ACR argues that the phrase “within the time and in the manner provided for the collection of taxes due to the state” applies only to the assessment and collection procedures utilized by the State, set forth in La. R.S. 47:1561, et seq and not the State’s interest and penalty provisions, set forth in La. R.S. 47:1602, et seq.

Initially, in considering the legislature’s reasons in enacting La. R.S. 33:2841 |7to determine the scope of the statute, it is helpful to consider the development of the statute in the legislative history. Enacted as Acts 1882 No. 119 § 1, La. R.S. 33:2841’s original language gave municipalities the authority to enforce the collection of taxes due within the “time and in the manner” provided to the State. Thus, as can be seen, the pertinent language of La. R.S. 33:2841 has been virtually unchanged since 1882.

This court has long interpreted the words “manner” and “procedure” synonymously, defining “manner” as “a course or mode of action; procedure.” See Fegan v. Lykes Bros. S.S. Co., 198 La. 312, 320, 3 So.2d 632, 635 (1941). Thus, while the Department is entitled under La. R.S. 33:2841 to utilize any enforcement procedure for collection of taxes outlined in the statutes, the use of the phrase “time and in the manner” cannot be construed, as the Department contends, as authority for the adoption of Title 47 in toto. See also, Shell Oil Co. v. St. Charles Parish School Bd., 03-116, p. 5 (La.App. 5 Cir. 5/28/03), 848 So.2d 129, 131; Way v. Andries, 02-0057, p. 5 (La. 3 Cir. 6/5/02), 819 So.2d 465, 469; Pointe Coupee Parish v. Amoco Production Co., 472 So.2d 292, 296 (La.App. 1 Cir.), writ denied, 475 So.2d 1107 (La.1985).

While ACR’s argument regarding the interpretation of La. R.S. 33:2841 and La. R.S. 33:2746 seems plausible at first blush when reading the statutes in isolation, it is the duty of this court to consider the context of the statutes as whole in relation to the entire statutory scheme. Such a reading shows that the legislative history regarding sales and use tax is helpful in resolving the ultimate question in this matter.

A general sales tax was first authorized for municipalities in 1950. La. R.S. 33:2711-2715, enacted as Act 285 of 1950, authorizes any local taxing authority to levy and collect a sales tax of one percent, provided the tax is approved by a majority 1 ¿vote of the electors of the local taxing authority and the use of the proceeds is limited to the purposes specified in submitting the proposition to the voters. Bennet, “Louisiana Revised Statutes of 1950” 11 La. L.Rev. 4, 63 (1950).

Importantly, for purposes of the matter at hand, Act 285 of 1950 gave to local taxing authorities the authorization to implement sales and use taxes in accordance with the procedures, definitions and exemptions set forth in Title 47 sections 301-317. While most of the provisions in La. R.S. 47:801-317 deal with definitions, exemptions and exclusions, and other such procedural matters, La. R.S. 47:312 and 47:314 provide for penalties for failure to pay taxes. La. R.S. 47:312 provides:

The failure of any dealer to pay the tax and any interest, penalties, or costs due under the provisions of this Chapter on any tangible personal property imported from outside the state for use, consumption, distribution or storage to be used in this state, or imported for the purpose of leasing or renting the same, shall make the tax, interest, penalties, or costs ipso facto delinquent. This failure shall moreover be a sufficient ground for the attachment of the personal property imported wherever it may be found, whether the delinquent taxpayer is a resident or nonresident, and whether the property is in the possession of the delinquent taxpayer or in the possession of other persons.
It is the intention of this law to prevent the disposition of the said tangible personal property in order to insure payment of the tax imposed by this Chapter, together with interest, penalties and costs, and authority to attach is hereby specifically granted to the collector. The procedure prescribed by law in attachment proceedings shall be followed except |flthat no bond shall be required of the State.

(emphasis added).

La. R.S. 47:314 provides:

Failure to pay any tax due as provided in this Chapter shall ipso facto, without demand or putting in default, cause the tax, interest, penalties, and costs to become immediately delinquent, and the collector has the authority, on motion in a court of competent jurisdiction, to take a rule on the dealer, to show cause in not less than two or more than ten days, exclusive of holidays, why the dealer should not be ordered to cease from further pursuit of business as a dealer. This rule may be tried out of term and in chambers, and shall always be tried by preference. If the- rule is made absolute, the order rendered thereon shall be considered a judgment in favor of the state, prohibiting the dealer from the further pursuit of said business until such time as he has paid the delinquent tax, interest, penalties and costs, and every violation of the injunction shall be considered as a contempt of court, and punished according to law. For the purpose of the enforcement of this Chapter and the collection of the tax levied hereunder, it is presumed that all tangible personal property imported or held in this state by any dealer is to be sold at retail, used or consumed, or stored for use or consumption in this state, or leased or rented within this state, and is subject to the tax herein levied; this presumption shall be prima facie only, and subject to proof furnished to the collector.

(emphasis added).

In this case, Act 285 of 1950 clearly provides municipalities with the authority, through proper elections, to levy and collect sales and use taxes in accordance with the definitions, practices and procedures of 47:301 through 47:317. La. R.S. 33:2713. By authorizing the local taxing authorities to utilize both the “practices” and “procedures” as set forth in La. R.S. 47:301-317, the legislature, through Act 285, has empowered local taxing authorities to employ the customary actions, or “practices,” and the modes of enforcement, or “procedures,” enjoyed by the State in levying and collecting sales and use taxes. The provisions of La. R.S. 47:312 and 47:314 provide that interest, penalties and costs “due under the provisions of this Chapter” are imposed as a practice for failure to pay taxes when due under Title 47. Thus, by reading the statutes as a whole, La. R.S. 33:2711-2715 provide | inmunicipalities with the authority, through proper elections, to impose the interest, penalties and attorney fees set forth in La. R.S. 47:1601, 47:1602 and 47:1512 on delinquent taxes.

La. R.S. 33:2746 and Elevating Boats

However, the inquiry is not over, as, under the rules of statutory construction, the interest, penalties and attorney fees provisions of Title 47 must be examined together with La. R.S. 33:2746 for any conflicts that may exist keeping in mind that specific provisions should control over more generalized provisions. State in the Interest of A.C., 93-1125 (La.01/27/94), 643 So.2d 719, 730. La. R.S. 33:2746 provides:

Upon local taxes not paid and delinquent thirty days after the date upon which the tax is due, there shall be an interest penalty of one and one-quarter percent per month on the amount of the tax due, which shall be collected by the tax recipient body, together with and in the same manner as the tax.

As originally enacted by Acts 1882 No. 109 § 2, La. R.S. 33:2746 provided:

That upon municipal taxes not paid and delinquent thirty (30) days after the completion of the tax bills, there shall be and is hereby imposed an interest penalty of ten (10) per cent, per annum on the amount of tax due, which shall be collected by the municipal corporation, together with and in the same manner as the tax.

As can be seen, the original language of R.S. 33:2746 authorized the local municipalities to levy an “interest penalty” on delinquent taxes and the only substantive change to the statute has been the amount of the interest penalty. The 1982 legislative history details the increase of this “interest penalty” to its present amount of 15% was in response to the high interest lending institutions were paying at that time. Act No. 853, Regular Sess., Digest (1982). Thus, in 1982, at least, the | nlegislature believed that the “interest penalty” provision of R.S. 33:2746 was meant to be applicable to interest only; that is, as a remedy to make the state whole and not as a punishment to discourage a particular activity.

In Elevating Boats, this Court addressed the conflict between St. Bernard Parish’s local ordinance imposing a 25% penalty and 10% attorney fees and La. R.S. 33:2746, which provides for a 15% interest penalty for the nonpayment of tax and interpreted La. R.S. 33:2746 as follows:

We find that the Parish’s combined interest, penalty, and attorney fees cannot exceed the 15% interest penalties permitted by La.Rev.Stat. § 33:2746. Just as the parish ordinance cannot be less beneficial to the taxpayer than a state statute regarding refunds, it similarly cannot be more burdensome regarding delinquencies. In this case, the Parish ordinance permits a 6% per annum interest charge, a 25% maximum delinquency penalty geared to the length of delay, and a 10% attorney fee in the event of a lawsuit. The state statute, on the other hand, permits only a 15% annual “interest penalty” (1-1/4% per month). We find that the Parish ordinance’s increased burden on the taxpayer is impermissible and that the state statute’s 15% interest penalty sets the maximum allowable burden for delinquent taxes.

00-3518 at p. 32, 795 So.2d at 1174. This court went on to conclude that “the Parish’s combined interest, penalty, and attorney fees cannot exceed the 15% interest penalties permitted by La. R.S. 33:2746.” In so holding, this court read a requirement into the statute that did not exist; namely, that penalties and attorney fees must be calculated as part of the 15% interest penalty provision of R.S. 33:2746 when the legislative history shows that the provision is intended to apply to interest only.

Therefore, the provisions of R.S. 33:2746, as the provision specific to the local taxing authorities, must be meshed with the interest provision of Title 47 to give effect to the statutes as a whole. In this case, there is no conflict between the 15% interest provision of La. R.S. 33:2746 and the 15% interest provision of La. R.S. 47:1601.

Accordingly, local taxing authorities are authorized to impose, through proper | ^elections, a 15% interest penalty under La. R.S. 33:2746 and, in addition, 25% penalties and 10% attorney fees as set forth in La. R.S. 47:1602 and 47:1512 on delinquent taxes.

CONCLUSION

After considering the language in La. R.S. 33:2841 and La. R.S.33:2746 and the legislative history of the statutes, we hold that local taxing authorities are authorized to impose, through proper elections, a 15% interest penalty under La. R.S. 33:2746 and, in addition, 25% penalties and 10% attorney fees as set forth in La. R.S. 47:1602 and 47:5712 on delinquent taxes. Any holding in Elevating Boats v. St. Bernard Parish, 00-3518 (La.9/5/01), 795 So.2d 1153 to the contrary is hereby overruled.

DECREE

For the foregoing reasons, we reverse the court of appeal’s judgment regarding the assessment of interest, penalties and attorney fees and remand to the district court for a determination of the precise amount of sales and use taxes, interest, penalties and attorney fees owed by Anthony Crane Rental L.P. consistent with this opinion.

COURT OF APPEAL JUDGMENT REVERSED IN PART; CASE REMANDED TO THE DISTRICT COURT.

      . Calcasieu Parish Ordinance § 6.09 provides:
      If the amount of tax due by the dealer is not paid on or before the twentieth (20th) day of the month next following the month for which the tax is due, there shall be collected with said tax, interest upon said unpaid amount at the rate of one and one-quarter (1-1/4%) percent per month, or fractional part thereof. In addition, there shall be collected a penalty equivalent to five (5%) percent per month, or fraction thereof, not to exceed twenty-five (25%) in aggregate, of the tax due, when such tax is not paid on or before the twentieth (20th) day of the month next following the month for which the tax is due. Both interest and penalty will be computed from the first day of the month next following the month for which the tax is due. In the event of suit, attorney's fees will be charged the dealer at the rate of ten (10%) percent of the aggregate of the tax, interest and penalty. All interest and penalties due for subsequent months will be assessed and due as of the first day of each succeeding month. The Collector is authorized to employ private counsel to assist in the collection of any sales and use taxes, penalties or interest due under this Ordinance, or to represent him in any proceeding under this Ordinance.

      . La. R.S. 47:1601, which provides:
      A. When any taxpayer fails to pay a tax, or any portion thereof, on or before the day where it is required to be paid under the provisions of this Subtitle, interest at the rate of one and one-quarter percent per month shall be added to the amount of tax due and such interest shall be computed from the due date until the tax is paid. However, in the case of a waiver of restrictions and delays as provided for in R.S. 47:1565.1, if the taxpayer pays the tax due within ten days after the notice of assessment is mailed to him, the one and one-quarter percent per month interest shall be computed to the thirtieth day after the filing of such waiver or to the date the deficiency is paid, whichever is earlier. The interest provided for herein shall be an obligation to be collected and accounted for in the same manner as if it were a part of the tax due and can be enforced in a separate action or in the same action for collection of the tax and shall not be waived or remitted.

      . La. R.S. 47:1602, which provides, in pertinent part:
      A. When any taxpayer fails to make and file any return required to be made under the provisions of this Subtitle before the time that the return becomes delinquent or when any taxpayer fails to timely remit to the secretary of the Department of Revenue the total amount of tax that is due on a return which he has filed, there shall be imposed, in addition to any other penalties provided, a specific penalty to be added to the tax.
      (1) In the case of a failure to file a tax return or of the filing of a return after the return becomes delinquent, the specific penalty shall be five percent of the total tax due on the return if the failure or delinquency is for not more than thirty days, with an additional five percent for each additional thirty days or fraction thereof during which the failure or delinquency continues, not to exceed twenty-five percent of the tax in the aggregate.

      . La. R.S. 47:1512, which provides:
      The collector is authorized to employ private counsel to assist in the collection of any taxes, penalties or interest due under this Sub-title, or to represent him in any proceeding under this Sub-title. If any taxes, penalties or interest due under this title are referred to an attorney at law for collection, an additional charge for attorney fees, in the amount of ten per centum (10%) of the taxes, penalties and interest due, shall be paid by the tax debtor.

      . Calcasieu Parish School Board Ordinance § 6.09 provides:
      If the amount of tax due by the dealer is not paid on or before the twentieth (20th) day of the month next following the month for which the tax is due, there shall be collected with said tax, interest upon said unpaid amount at the rate of one and one-quarter (1-1/4%) percent per month, or fractional part thereof. In addition, there shall be collected a penalty equivalent to five (5%) percent per month, or fraction thereof, not to exceed twenty-five (25%) in aggregate, of the tax due, when such tax is not paid on or before the twentieth (20th) day of the month next following the month for which the tax is due. Both interest and penalty will be computed from the first day of the month next following the month for which the tax is due. In the event of suit, attorney’s fees will be charged tire dealer at the rate of ten (10%) percent of the aggregate of the tax, interest and penalty. All interest and penalties due for subsequent months will be assessed and due as of the first day of each succeeding month. The Collector is authorized to employ private counsel to assist in the collection of any sales and use taxes, penalties or interest due under this Ordinance, or to represent him in any proceeding under this Ordinance.

      . La. R.S. 33:2712 provides:
      Said sales tax shall be imposed by an ordinance of the governing body and shall be levied upon the sale at retail, the use, the lease or rental, the consumption and storage for use or consumption of tangible personal property and on sales of services in the municipality, all as presently defined in R.S. 47:301-47:317, provided however that the ordinance imposing said tax shall be adopted by the governing body only after the question of the imposition of such a tax shall have been submitted to the qualified electors of the municipality at an election to be conducted in accordance with the general election laws of the state of Louisiana, and the majority of those voting in said election shall have voted in favor of the adoption of such ordinance.
      La. R.S. 33:2713 provides:
      Said tax shall be in addition to all other taxes and shall be collected at the same time and in the same manner and pursuant to the definitions, practices and procedure set forth in R.S. 47:301 through 47:317.

      . While the Digest does not form part of the law, it is prepared together with proposed legislation and, in this case, it serves to elucidate the understanding and intent of the legislators. See Falgout v. Dealers Truck Equipment Co., 98 3150 p. 11 n. 7 (La.10/19/99), 748 So.2d 399, 407 n. 7.