text:
    THE FLORIDA BAR, Complainant, v. Robert Edmond SENTON, Respondent.
    No. SC00-762.
    Supreme Court of Florida.
    Sept. 2, 2004.

      John F. Harkness, Jr., Executive Director, John Anthony Boggs, Staff Counsel, and Edward Iturralde, Bar Counsel, Tallahassee, FL, for Complainant.
    Richard A. Greenberg, Tallahassee, FL, for Respondent.
   PER CURIAM.

We review a referee’s report recommending that attorney Robert Edmond Sentón be found guilty of professional misconduct and disbarred from the practice of law. We have jurisdiction. See art. V, § 15, Fla. Const.

I. FACTS

The referee made the following findings of fact. In January 1995, a female client (“C.P.”) retained Robert Sentón to assist her in seeking unemployment benefits. Sentón later represented the same client in bankruptcy proceedings. During the course of his representation, Sentón pressured the client to engage in two sexual encounters. On December 6, 1995, Sen-ton arrived unannounced at his client’s house with a cooler of beer. Thinking that her attorney might have documents for her to sign, C.P. invited him inside. While the two drank beer, Sentón told C.P. that “friends needed to help each other out” and then began to massage her neck and shoulders, making increasingly sexual overtures toward her. Although she initially rejected his advances, she eventually relented, and the two engaged in sexual, intercourse. After Sentón left, C.P., collected evidence of the sexual encounter, including hair samples and seminal fluid. All of the items were placed in envelopes and then put into a bag and sealed with tape.

On February 14, 1996, the client met Sentón at his office in anticipation of a bankruptcy hearing. Sentón again insisted on sex. C.P. reluctantly agreed, but afterward she again collected evidence. A few weeks later, on March 8, C.P. filed a complaint with the Perry Police Department stating that Sentón twice sexually assaulted her. She provided the police with the evidence she had collected from both encounters.

Although no criminal charges were ultimately brought, on April 7, 2000, The Florida Bar filed a complaint against Sentón. Throughout- the proceedings, Sentón denied, in a statement under oath and otherwise, that he had ever engaged in sexual conduct with C.P. Because the client had providéd evidence- containing DNA to support her assertions, the Bar filed a motion to obtain a blood, saliva, or semen sample from Sentón, which the referee granted. Chris Larsen, a forensic DNA analyst, compared DNA found in sperm cells that were on the mini-pad submitted by C.P. with DNA found in Senton’s blood sample. According to Larsen, not only were the two DNA samples consistent with each other, but “the. likelihood of the genetic profile from the mini-pad being from somebody else would be 1.4 billion times more likely that it was the suspect and the victim rather than two unknown people from the population.”

Sentón was asked during the investigation how his client could have obtained a sample of his DNA. Sentón asserted that the client may have obtained his DNA from a personal towel that he kept at his office. At the final hearing, however, Sen-ton changed his explanation. According to Sentón, on the night of February 13, he stopped by his office with his girlfriend, so she could use the bathroom. Sentón stated that they engaged in sexual intercourse at his office, and he left a used condom in the wastebasket, implying that C.P. must have later scavenged through his trash can. Sentón alleged that he was no longer dating his girlfriend and could provide no information on her whereabouts.

The referee conducted the final hearing on January 13-14, 2003. After hearing all of the evidence, the referee found as follows:

Respondent has concocted testimony throughout these proceedings to justify his misconduct. The referee finds that the testimony of Respondent to be quite incredible and the testimony of [C.P] to be credible. Respondent was unable to satisfactorily explain the presence of his seminal fluids in the items collected by [C.P] then subsequently delivered to law enforcement and ultimately The Florida Bar. Respondent’s explanation that he had a sexual encounter in his office with a previously undisclosed woman named Ms. [X] did not hold up under cross examination. Ms. [X] had not been disclosed to the police handling the investigation of sexual battery charges against Respondent. Nor did Respondent disclose her existence to The Florida Bar in Respondent’s initial response, in his deposition, nor in Answers to Interrogatories prepared days before trial. Respondent did not have any idea where Ms. [X] lived, worked, or otherwise could be found.
Respondent exploited the lawyer-client relationship by coercing his client into engaging in sexual conduct on two occasions rather than suffer the implied threat of terminating his legal services at a time when she was most vulnerable.
Respondent took advantage of a weak-minded, vulnerable woman, who had a history of emotional and financial problems, for his own sexual satisfaction.

Based on the above factual findings, the referee recommended that the Court find Sentón guilty of violating the following Rules Regulating the Florida Bar: rule 4-8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); rule 4-8.4(d) (engaging in conduct in connection with the practice of law that is prejudicial to the administration of justice); and rule 4-8.4(i) (engaging in sexual conduct with a client that exploits the lawyer-client relationship). The referee found as mitigating circumstances that (1) Sentón did not have a prior disciplinary record, and (2) he had a good reputation. The referee found as aggravating circumstances that (1) Sentón had dishonest or selfish motive, (2) there was a pattern of misconduct, (3) Sentón engaged in bad faith obstruction of the disciplinary proceeding, (4) Sentón submitted false evidence or false statements, and (5) the victim was vulnerable. Based on these findings, the referee recommended that Sentón be disbarred and be ordered to pay the Bar’s costs, which amounted to $11,000.85. Sentón petitioned for review of the referee’s report on numerous bases, including challenges to the findings of fact, the aggravating and mitigating circumstances found by the referee, and the recommended discipline.

II. ANALYSIS

A. Findings of Fact and Recommendations as to Guilt

We first address Senton’s challenge to the referee’s findings of fact. Sentón contends that the testimony from the Bar’s DNA expert, Chris Larsen, did not rise to the level of clear and convincing evidence. As an initial matter, Sentón has not set forth the appropriate standard of review. As this Court has repeatedly held:

A referee’s findings of fact regarding guilt carry a presumption of correctness that should be upheld unless clearly erroneous or without support in the record. Absent a showing that the referee’s findings are clearly erroneous or lacking in evidentiary support, this Court is precluded from reweighing the evidence and substituting its judgment for that of the referee.

Florida Bar v. Wohl, 842 So.2d 811, 814 (Fla.2003) (quoting Florida Bar v. Sweeney, 730 So.2d 1269, 1271 (Fla.1998)). Sentón has not met this burden.

Specifically, Sentón contends that Larsen’s testimony was unreliable because during cross-examination, Larsen admitted that although the sample he tested was a mixture of C.P.’s and Senton’s DNA, he was able to find a definite mixture on only four of the fourteen genes that he analyzed. Furthermore, he admitted that he found one gene which was not possessed by either C.P. or Sentón.

Sentón cannot meet his burden by merely pointing out contradictory or inconelu-sive testimony. See Florida Bar v. Vining, 761 .So.2d 1044, 1048 (Fla.2000) (“[A] party does not satisfy his or her burden of showing that a referee’s findings are clearly erroneous by simply pointing to the contradictory evidence where there is also competent, substantial evidence in the record that supports the referee’s findings.”). Moreover, as Larsen testified at the hearing, he had a difficult, time determining whether there was a mixture as to each of the genes because Sentón and C.P. shared many genetic markers. Despite these difficulties, Larsen concluded that the sample from Sentón was consistent with that on the evidence submitted by the client.

Moreover, even if this Court did not consider the DNA evidence, other testimony supports the referee’s conclusion that a sexual encounter occurred, most notably the testimony of C.P. herself. The referee listened to both C.P. and Sentón, finding C.P.’s version of the facts credible and Senton’s in credible. Because the referee is in the best position to judge the credibility of the witnesses, this Court defers to the referee’s resolution of the conflicting testimony. See Florida Bar v. Batista, 846 So.2d 479, 483 (Fla.2003); Florida Bar v. Fredericks, 731 So.2d 1249, 1251 (Fla.1999) (“The referee is in a unique position to assess the credibility of witnesses, and his judgment regarding credibility should not be overturned absent clear and convincing evidence that his judgment is incorrect.”). C.P.’s testimony provides sufficient support in the record that Sentón pressured her into sexual encounters on two occasions.

As competent, substantial evidence in the record supports the referee’s findings of fact, we adopt them. Moreover, as the referee’s findings of fact support his recommendations of guilt, we approve the referee’s recommendation that Sentón be found guilty of violating rules 4-8.4(c), 4-8.4(d), and 4-8.4(i) without further discussion.

B. Aggravation and Mitigation

Sentón also challenges the referee’s recommended sanction of disbarment, contesting whether the referee properly found various aggravating and mitigating circumstances. Again, in order to successfully challenge a referee’s findings of mitigation and aggravation, Sentón must show that such findings were clearly erroneous or without support in the record. See Florida Bar v. Arcia, 848 So.2d 296 (Fla.2003).

Sentón first asserts that the referee failed to properly consider as a mitigating circumstance that there was an unreasonable delay in the disciplinary proceedings. See generally Fla. Stds. Imposing Law. Sanes. 9.32(i) (providing that unreasonable delay can be a mitigating circumstance where “the respondent did not substantially contribute to the delay and provided further that the respondent has demonstrated specific prejudice resulting from the delay”). The record refutes this contention.

In this case, the Bar was aware of the underlying incidents by early 1996; however, the final hearing did not occur until January 2003. On July 2, 2001, the referee held a hearing on Senton’s Motion to Dismiss based on the delays that occurred. At this hearing, Senton’s counsel agreed he suggested that the Bar wait to complete its investigation until after the FDLE completed its own, in part based on Fifth Amendment concerns. After the FDLE investigation was complete and no criminal prosecution occurred, on April 7, 2000, the Bar filed its complaint. Thereafter, three lengthy delays occurred based on a dispute centered around the acquisition of DNA testing, two of which Sentón initiated. Although Sentón had the right to seek interlocutory review in this Court, he cannot now use his petition to claim an unreasonable delay in the proceedings. Sentón has failed to show that the referee’s findings on this issue were clearly erroneous.

Sentón next alleges that the referee erred in finding that the aggravating factor of bad faith obstruction applied. The referee found that both Standard 9.22(f) (submission of false evidence, false statements, or other deceptive practices during the disciplinary process) and Standard 9.22(e) (bad faith obstruction of disciplinary proceedings) applied. As to Standard 9.22(e), the referee found:

(e) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency (Yes, Respondent has falsely denied his sexual conduct with a client, and fabricated evidence and testimony; he also failed to comply with the referee’s order to submit a blood sample until threatened with suspension by the Supreme Court).

The findings relating to Senton’s false denials and fabricated evidence support the finding of Standard 9.22(f) (false evidence and false statements), rather than Standard 9.22(e) (bad faith obstruction). Accordingly, the remaining evidence to support Standard 9.22(e) is Senton’s refusal to submit a blood sample until this Court approved the procedure. Sentón argues that the referee improperly found Senton’s failure to comply with the referee’s order as an aggravating factor under Standard 9.22(e) because he merely challenged the unprecedented process of an attorney in a grievance matter being ordered to submit a blood sample and that he complied after this Court issued its July 24 order requiring his compliance. We agree with Sentón and disapprove the finding of this aggravating circumstance.

C. Recommended Discipline

Senton’s final claim challenges the referee’s recommended discipline of disbarment. Because it is this Court’s ultimate responsibility to determine the appropriate sanctions, it has broader discretion when reviewing the referee’s recommended discipline. Florida Bar v. McFall, 863 So.2d 303, 307 (Fla.2003). Generally, “this Court will not second-guess the referee’s recommended discipline as long as it has a reasonable-basis in existing case law and the Florida Standards for Imposing Lawyer Sanctions.” Id. Sentón contends that case law supports a lesser discipline, citing to Florida Bar v. Bryant, 813 So.2d 38 (Fla.2002) (imposing a one-year suspension on an attorney who agreed to his client’s suggestion to trade legal representation for sexual favors, among other violations). Senton’s conduct, however, is far more egregious than the conduct in Bryant. This case is more analogous to Florida Bar v. Scott, 810 So.2d 893 (Fla.2002), where we disbarred an attorney for coercing a vulnerable, unwilling client to engage in sexual conduct. In this case, C.P. testified that she did not want to engage in sexual relations, but Sentón kept pressuring her until she felt she had no choice. As we have emphasized, “[e]ven the slightest hint of sexual coercion or intimidation directed at a client must be avoided at all costs.” Id. at 900 (quoting Florida Bar v. Samaha, 557 So.2d 1349, 1350 (Fla.1990)). Moreover, Sentón lied under oath and submitted false evidence to support his denials, which alone is sufficient to permit disbarment. See, e.g., Florida Bar v. de la Puente, 658 So.2d 65 (Fla.1995) (disbarring attorney for ten years for several instances of misconduct, including the making of a false statement to the tribunal during the disciplinary proceedings); Florida Bar v. Smiley, 622 So.2d 465, 467 (Fla.1993) (disbarring attorney and reasoning that a lawyer’s false testimony “defeats the very purpose of legal inquiry [and] ... ' is grounds for disbarment”); Florida Bar v. Rightmyer, 616 So.2d 953, 955 (Fla.1993) (disbarring attorney for perjury convictions among other violations, and observing that “[w]e can conceive of no ethical violations more damaging to the legal profession and process than lying under oath”).

The penalty of disbarment is supported by both case law, see Scott, 810 So.2d at 893; Smiley, 622 So.2d at 467, and the Florida Standards for Imposing Lawyer Sanctions. Although we have disapproved one of the aggravating factors, four others remain, and Sentón presented minimal mitigation. We therefore approve the referee’s recommendation that Sentón be disbarred and be required to pay the applicable costs of the proceeding.

Accordingly, Robert Edmond Sentón is hereby disbarred from the practice of law in the State of Florida. The disbarment will be effective thirty days from the filing of this opinion so that Sentón can close out his practice and protect the interests of existing clients. If Sentón notifies this Court in writing that he is no longer practicing and does not need the thirty days to protect existing clients, this Court will enter an order making the disbarment effective immediately. Sentón shall accept no new business from the date this opinion is filed.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Robert Edmond Sentón in the amount of $11,000.85, for which sum let execution issue.

It is so ordered.

PARIENTE, C.J., with WELLS, ANSTEAD, LEWIS, QUINCE, CANTERO and BELL, JJ., concur.

      . We have considered Senton’s procedural challenge regarding the referee’s order compelling Sentón to submit a DNA sample and find it to be without merits

      . Sentón also relies on Office of Disciplinary Counsel v. Kafantaris, 99 Ohio St.3d 94, 789 N.E.2d 192 (2003) (holding that an attorney's dishonest statements regarding a sexual relationship with an employee warranted a one-year suspension). However, this Court need not turn to other jurisdictions to determine the appropriate discipline, especially where numerous opinions from this Court support disbarment.

      . See Fla. Stds. Imposing Law. Sanes. 5.11(b) (finding disbarment appropriate where "a lawyer engages in serious criminal conduct, a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft”); Fla. Stds. Imposing Law. Sanes. 5.11(f) (finding disbarment appropriate where "a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice”); Fla. Stds. Imposing Law. Sanes. 6.11(a) (finding disbarment appropriate where a lawyer "with the intent to deceive the court, knowingly makes a false statement or submits a false document”).

      . Specifically, Sentón submitted testimony from two judges and an affidavit from a legal aid organization to demonstrate that he had a good reputation in the Second Judicial Circuit, and demonstrated the absence of a prior disciplinary record.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Gwendolyn SINGLETON, et vir., Petitioners, v. GREYMAR ASSOCIATES, Respondent.
    No. SC03-936.
    Supreme Court of Florida.
    Sept. 15, 2004.

      William Chennault of Chennault Attorneys and Counsellors at Law, Fort Laud-erdale, FL, for Petitioner.
    Mark Evans Kass, Miami, FL, for Respondent.
   PER CURIAM.

We have for review Singleton v. Greymar Associates, 840 So.2d 356 (Fla. 4th DCA 2003), which expressly and directly conflicts with the decision in Stadler v. Cherry Hill Developers, Inc., 150 So.2d 468 (Fla. 2d DCA 1963). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons set out below we approve the decision in Singleton and hold that a-dismissal with prejudice in a mortgage foreclosure action does not necessarily bar a subsequent foreclosure action on the same mortgage.

PROCEEDINGS TO DATE

Greymar Associates brought two consecutive foreclosure actions against Gwendolyn Singleton alleging default on a mortgage and note between the parties. Singleton v. Greymar Assqcs., 840 So.2d 356, 356 (Fla. 4th DCA 2003). The first action was predicated on an alleged default that the mortgagors had failed to make payments due from September 1, 1999 to February 1, 2000. Id. After the mortgagee, Greymar, failed to appear at a case management conference, the circuit court dismissed the foreclosure action with prejudice. Id. Subsequently, a second foreclosure action was brought alleging a default that the mortgagors had failed to make payments from April 1, 2000, onward. Id. The circuit court eventually entered a summary final judgment of foreclosure for the mortgagee in the second suit, rejecting the defense that the prior dismissal barred relief in the second action. Id.

On appeal, the Fourth District affirmed the circuit court’s decision, finding that “[e']ven though an earlier foreclosure action filed by appellee was dismissed with prejudice, the application of res judicata does not bar this lawsuit... The second action involved a néw and different breach:” Id.' To support its decision, the Fourth District quoted its holding in a similar previous case, which stated: “ ‘[A] final adjudication in - a foreclosure action that also prays for a deficiency judgment on the underlying debt may, but does not necessarily, bar a subsequent action on the debt.’ ” Id. (quoting Capital Bank v. Needle, 596 So.2d 1134, 1138 (Fla. 4th DCA 1992)). Singleton petitioned this Court for jurisdiction, citing express and direct conflict between the Fourth District’s decision and the Second District’s decision in Stadler v. Cherry Hill Developers, Inc., 150 So.2d 468 (Fla. 2d DCA 1963).

Startler also involved two successive foreclosure actions. Id. at 469. In the first action, the circuit court dismissed the complaint with prejudice upon the defendants’ motion because the plaintiffs did not take testimony within the time period provided by the Rules of Civil Procedure. Id. Thereafter, the plaintiffs filed a second action alleging that the mortgagor had again defaulted on the note. Id. at 469-70. (“Their complaint was essentially identical to that in the first suit except a default of payment due in August, 1960, rather than the May default was alleged.”). The Second District reversed a judgment of foreclosure and held that res judicata prohibited the bringing of the second action. Id. at 472-73. The Second District discussed the fact that the existence of the acceleration clause was key to their analysis:

The essential question is whether the election to accelerate put the entire balance, including future installments at issue. If it was at issue then the second action seeks the same relief under the same contract and is predicated on a failure to comply with the same requirement. There can be no doubt that the accelerated balance was at issue and that the prayer of the complaint sought, not one interest installment, but the entire amount due. Accordingly, it seems clear that the actions are identical.
The cause of action in both suits being identical, the doctrine of res judicata is, as the learned chancellor held, applicable.

Id. at 472-73. We have accepted jurisdiction to review the conflict between the holdings in these cases.

RES JUDICATA IN FORECLOSURE CASES

The Fourth District has consistently taken the position that res judicata does not prevent mortgagees from foreclosing on a mortgage in successive foreclosure cases when the alleged dates of default are different. See Singleton, 840 So.2d at 356; Capital Bank v. Needle, 596 So.2d at 1138; see also Olympia Mortgage Corp. v. Pugh, 774 So.2d 863, 867 (Fla. 4th DCA 2000) (“A comparison of the two foreclosure actions reveals that the facts necessary to establish a default in the first foreclosure action differ from the facts necessary to establish a default in the second foreclosure action.”); State Street Bank & Trust Co. v. Badra, 765 So.2d 251, 254 (Fla. 4th DCA 2000) (“The doctrine of res judicata has no applicability where there was no adjudication on the merits in the first suit and where the relief in the second suit was not the same relief sought in the first suit.”).

In contrast, the Second District’s holding in Startler shows that it takes a stricter and more technical view of mortgage acceleration elections. See 150 So.2d at 472 (“While it is axiomatic that a suit for one installment payment does not preclude suit for a later installment on a divisible contract, the scant authority found seems unanimous in the view that an election to accelerate puts all future installment payments in issue and forecloses successive suits.”).

We agree with the position of the Fourth District that when a second and separate action for foreclosure is sought for a default that involves a separate period of default from the one alleged in the first action, the case is not necessarily-barred by res judicata. See Capital Bank, 596 So.2d at 1138 (“[W]e do not believe that dismissal of the foreclosure action in this case barred the subsequent action on the balance due on the note.”). In Capital Bank, after reviewing the case law on the issue, the court concluded:

Our reading of the case law set out above leads us to conclude that a final adjudication in a foreclosure action that also prays for a deficiency judgment on the underlying debt may, but does not necessarily, bar a subsequent action on the debt. For instance, if the plaintiff in a foreclosure action goes to trial and loses on the merits, we do not believe such plaintiff would be barred from filing a subsequent foreclosure action based upon a subsequent default. The adjudication merely bars a second action relitigating the same alleged default. A dismissal with prejudice of the foreclosure action is tantamount to a judgment against the mortgagee. That judgment means that the mortgagee is not entitled to foreclose the mortgage. Such a ruling moots any prayer for a deficiency, since a necessary predicate for a deficiency is an adjudication of foreclosure. There was no separate count in the Capital Bank complaint seeking a separate recovery on the promissory note alone.
Accordingly, we do not believe the dismissal of the foreclosure action in this case barred the subsequent action on the balance due on the note.

Id. at 1134; see also Frumkes v. Mortgage Guarantee Corp., 173 So.2d 738, 740-41 (Fla. 3d DCA 1965) (“Denial of an application for deficiency decree for jurisdictional reasons as distinguished from equitable grounds is not res judicata so as to bar an action thereon at law.”)

While it is true that a foreclosure action and an acceleration of the balance due based upon the same default may bar a subsequent action on that default, an acceleration and foreclosure predicated upon subsequent and different defaults present a separate and distinct issue. See Olympia Mortgage Corp., 774 So.2d at 866 (“We disagree that the election to accelerate placed future installments at issue.”); see also Greene v. Boyette, 587 So.2d 629, 630 (Fla. 1st DCA 1991) (holding that a mortgagee can successfully recover twice on one mortgage for multiple periods of default because the payments were different “installments”). For example, a mortgagor may prevail in a foreclosure action by demonstrating that she was not in default on the payments alleged to be in default, or that the mortgagee had waived reliance on the defaults. In those instances, the mortgagor and mortgagee are simply placed back in the same contractual relationship with the same continuing obligations. Hence, an adjudication denying acceleration and foreclosure under those circumstances should not bar a subsequent action a year later if the mortgagor ignores her obligations on the mortgage and a valid default can be proven.

This seeming variance from the traditional law of res judicata rests upon a recognition of the unique nature of the mortgage obligation and the continuing obligations of the parties in that relationship. For example, we can envision many instances in which the application of the Stadler decision would result in unjust enrichment or other inequitable results. If res judicata prevented a mortgagee from acting on a subsequent default even after an earlier claimed default could not be established, the mortgagor would have no incentive to make future timely payments on the note. The adjudication of the earlier default would essentially insulate her from future foreclosure actions on the note' — merely because she prevailed in the first action. Clearly, justice would not be served if the mortgagee was barred from challenging the subsequent default payment solely because he failed to prove the earlier alleged default.

We must also remember that foreclosure is an equitable remedy and there may be some tension between a court’s authority to adjudicate the equities and the legal doctrine of res judicata. The ends of justice require that the doctrine of res judicata not be applied so strictly so as to prevent mortgagees from being able to challenge multiple defaults on a mortgage. See deCancino v. Eastern Airlines, Inc., 283 So.2d 97, 98 (Fla.1973) (“[T]he doctrine [of res judicata] will not be invoked where it will work an injustice.... ”). We can find no valid basis for barring mortgagees from challenging subsequent defaults on a mortgage and note solely because they did not prevail in a previous attempted foreclosure based upon a separate alleged default.

CONCLUSION

We conclude that the doctrine of res judicata does not necessarily bar successive foreclosure suits, regardless of whether or not the mortgagee sought to accelerate payments on the note in the first suit. In this case the subsequent and separate alleged default created a new and independent right in the mortgagee to accelerate payment on the note in a subsequent foreclosure action. Thus, we approve the Fourth District’s decision in Singleton, and disapprove of the Second District’s holding in Stadler.

It is so ordered.

PARIENTE, C.J., and WELLS, ANSTEAD, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.

      . The petitioners' brief relates that the circuit court dismissed the first action due to the respondent's failure to appear at the case management conference. Additionally, the petitioners' brief states that both foreclosure actions sought to accelerate the entire indebtedness against the petitioners. The respondent does not challenge these assertions.


author: ' LEVY, Judge. PER CURIAM. FLETCHER, Judge

text:
    ISLAMORADA, VILLAGE OF ISLANDS, Appellant, v. Ervin HIGGS, as Property Appraiser of Monroe County, Appellee.
    No. 3D03-1508.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 2003.
    Order Denying Rehearing En Banc and Opinion Dissenting From Denial of Rehearing En Banc Aug. 11, 2004.
    Weiss Serota Helfman Pastoriza Guedes Cole & Boniske and Edward G. Guedes and Nina L. Boniske, for appellant.
    John C. Dent, Jr., and Sherri L. Johnson(Sarasota), for appellee.

      Before LEVY, GERSTEN, and WELLS, JJ.
   ' LEVY, Judge.

Islamorada, Village of Islands (“Village”), appeals from a Final Summary Judgment entered in favor of Ervin Higgs, the Property Appraiser of Monroe County, Florida (“Property Appraiser”). We reverse.

The Village has exclusively owned and operated the Plantation Yacht Harbor Marina (“Marina”) since April 13, 2000. The Marina is a portion of a recreational facility formerly known as Plantation Yacht Harbor, but now known as Islamorada Founders Park (“Founders Park”). The master plan for Founders Park includes various recreational facilities, and administrative offices for the Village and fire rescue. In 2001, the Village operated the Marina for the purpose of serving the recreational needs of both its residents and the general public, including out-of-town visitors. Boat slips at the Marina were rented on a daily, weekly, monthly, or annual basis. The Marina and the- services provided at the Marina were available and open to members of the public. The services included, but are not limited to, the use of a boat ramp, dockage, and refueling. The Village set standardized charges for both fueling and dock space. The revenues of the Village’s operation of the' Marina exceeded the expenses associated with its operation. In setting the rates for the Marina, the Village intended to provide a flow of revenue and funds to the Village’s general fund to help pay debt service incurred when the entire facility was purchased. In 2001, the Property Appraiser denied the Village’s application for an exemption from ad valorem taxation for the Marina. The Village appealed to the Monroe County Value Adjustment Board (“VAB”X After an evidentiary hearing before a special master, the special master determined that the Marina represented a proper public function, and was not-a proprietary venture. The VAB adopted these findings. The Property Appraiser then appealed the VAB’s determination by filing suit in the Circuit, Court pursuant to Section 194.036, Florida Statutes. Both parties filed Motions for Summary Judgment. The Circuit Court denied the Village’s Motion for Summary Judgment and granted the Property Appraiser’s Motion for Summary Judgment. This appeal follows.

Municipalities are not subdivisions of the State and, thus, are not immune to taxation. See Greater Orlando Aviation Auth. v. Crotty, 775 So.2d 978, 980 (Fla. 5th DCA. 2000) (citing Orlando Utils. Comm’n v. Milligan, 229 So.2d 262 (Fla. 4th DCA 1969), rev. denied, 237 So.2d 539 (Fla.1970)). However, according to Article VII, Section 3(a) of the Florida Constitution, “[a]ll property owned by a municipality and used exclusively by it for municipal or public purposes shall be exempt from taxation.” Moreover, Section 196.199(1)(c), Florida Statutes (2002), provides that the property of the municipalities of the state used “for governmental, municipal, or public purposes shall be exempt from ad valorem taxation, except as otherwise provided by law.”

The issue in the instant case is whether a marina that is owned and operated by a municipality is entitled to an ad valorem tax exemption when the marina serves both residents and nonresidents, despite (1) operating in competition with other marinas in the area and (2) generating a profit for the municipality which is deposited into the municipality’s general fund. The Village contends that the Marina is entitled to an ad valorem tax exemption because, as the eloquent argument of appellant’s attorney clearly demonstrates, the Marina is a recreational facility that is available to residents and nonresidents and is operated without the involvement of a non-governmental lessee or operator. We agree.

The resolution of the issue centers around whether the Marina is being used exclusively by the Village for municipal or public purposes. If the Marina is being used for municipal or public purposes, then it is exempt from ad valorem taxation. The term “municipal purpose” embraces all activities essential to the health, morals, protection and welfare of the municipality. See Crotty, 775 So.2d at 980 (citations omitted). “Municipal functions” are functions created for or granted for the benefit and advantage of the community included within the corporate boundaries. See id. at 980-81 (citations omitted). Municipal functions are those which “specifically and peculiarly promote the comfort, convenience, safety and happiness of the citizens of the municipality rather than the welfare of the general public.” Id. at 981. In Page v. City of Fernandina Beach, 714 So.2d 1070, 1076 (Fla. 1st DCA 1998), the First District stated,

Municipal operation of a marina is a legitimate municipal corporate undertaking for the comfort, convenience, safety, and happiness of the municipality’s citizens .... When a city operates a marina it owns, marina property it has not leased to a nongovernmental entity is exempt from ad valorem taxation,

(emphasis added). We agree with the foregoing language from the First District.

In the instant case, it is abundantly clear that, despite the fact that the Village earns a profit from its operation of the Marina, the Marina exists and is operated for the comfort, convenience, safety, and happiness of the citizens of the Village. Accordingly, the Order granting Summary Judgment in favor of the Property Appraiser is reversed with directions to enter Summary Judgment in favor of the Village.

Reversed and remanded with directions.

ON MOTION FOR REHEARING EN BANC

PER CURIAM.

After Oral Argument having been heard by the Court, the Motion for Rehearing En Banc is denied.

COPE, LEVY, GODERICH, GREEN, SHEVIN and WELLS, JJ., concur.

FLETCHER, Judge

(dissenting).

The majority has concluded that Islamo-rada’s marina is entitled to tax exemption. I disagree.

In order for the marina to be exempted from ad valorem taxation Islamorada [the Village] must prove that the marina meets the requirements of Article VII, Section 3(a), Florida Constitution:

“All property owned by a municipality and used exclusively by it for municipal or public purposes shall be exempt from taxation.”

The marina is owned by the Village and not leased to anyone. The issues then are whether the property is used by the Village for a municipal purpose and, if so, whether the property is exclusively used for that purpose. In that regard, other Florida courts have been clear as to municipal purpose or functions. “ ‘Municipal functions’ are those ... for the .., benefit and advantage of the - urban community embraced within the corporate boundaries.” Greater Orlando Aviation Auth. v. Crotty, 775 So.2d 978, 980-81 (Fla. 5th DCA 2000), rev. dismissed, 790 So.2d 1103 (Fla.2001)[e.s.]. “Our courts have ruled that the municipal functions include functions which specifically and peculiarly promote the comfort, convenience, safety and happiness of the citizens of the municipality rather than the welfare of the general public.” Crotty at 981 [e.s.]. Specifically as to marinas the First District Court, in Page v. Fernandina Beach, 714 So.2d 1070, 1076 (Fla. 1st DCA), rev. denied, 728 So.2d 201 (Fla.1998), pointed out that the “Municipal operation of a marina is a legitimate municipal corporate undertaking for the comfort, convenience, safety and happiness of the municipality’s citizens.” [e.s.]

The Fifth District’s ultimate conclusion in Greater Orlando Aviation Auth. v. Crotty is:

“The question here is whether the hotel property provides for the comfort, convenience, safety and happiness of the citizens of Orlando. We agree with the trial court’s conclusion that it does not. The purpose of the hotel is not to serve the citizens of Orlando, but to serve persons who reside elsewhere and therefore require public accommodations. It is not like a park or a marina constructed for the enjoyment of the citizenry as in Page ... [r]ather the hotel’s purpose was to make a profit and not to provide for the citizens of Orlando. The city might just as well open a pizzeria.”

775 So.2d at 981 [e.s.](footnotes omitted).

In Department of Revenue v. City of Gainesville, 859 So.2d 595, 601 (Fla. 1st DCA 2003), the court stated:

In analyzing whether a provision of services constitutes a municipal purpose pursuant to Article VII, Section 3(a) the focus is whether the function promotes comfort, convenience, safety, and happiness .of the ■citizens of the municipality. [e.s.] . ■ ■

Thus, if the municipality’s proprietary use is to serve the “general public,” rather than just the “urban community embraced within the corporate boundaries,” then it is not a municipal purpose and is constitutionally prohibited from being exempted from taxation.

So, does the Village’s marina serve the general public? As laid out in the panel opinion, as well as the trial court’s final summary judgment, the Village operated the marina for the purpose of its serving the “general public” as a first class, full service marina catering to owners of large boats throughout the United States and the world.

As it serves the general public the marina is not a municipal use and is not enti-tied to tax exemption. But let us assume for argument’s sake that the marina use is a municipal use on the (erroneous) theory that some boat slips are available to the citizens of the Village. (This would require us to ignore Crotty, Page, and City of Gainesville.) The Village still would not have shown that the marina passes the constitutional test of Article VII, Section 3(a), which permits exemption only when the municipal property is used exclusively for a municipal purpose, i.e., exclusively for use by the Village’s citizens. Obviously, this is not the case. For this reason also the marina is prohibited from receiving tax exemption.

The Village tries to avoid this impact of general public use by arguing that the use of the marina by the world’s boaters is incidental or generates “incidental” revenue, thus the use by Village citizens is “exclusive.” For this proposition the Village cites several decisions: Dade County v. Pan American Airlines, 275 So.2d 505 (Fla.1973); Gwin v. City of Tallahassee, 132 So.2d 273 (Fla. 1st DCA 1961); Saunders v. City of Jacksonville, 157 Fla. 240, 25 So.2d 648 (Fla.1946) and Northcutt v. Orlando Util. Comm’n, 614 So.2d 612 (Fla. 5th DCA 1993). With the soon-to-be-discussed exception of Gwin, these eases cast no light.

And so it is necessary to do an analysis of “incidental use.” First, the dictionary definition of “incidental” is:

“Occurring as a fortuitous or minor concomitant.”

“Fortuitous” is defined as:

“Happening by accident or chance.”

It is not difficult to recognize that the marina’s availability to the general public did not happen by accident or chance. This class A marina is deliberately open to the world’s boaters by design of the Village. Further, the use by the general public does not occur as a minor concomitant (minor “accompaniment”). Just as the marina is available to Villagers, it is available to the general public. Each availability is part of the purpose for which the marina was established, i.e., housing sea-going vessels. No incidental use there.

What, then, is an incidental use? As previously stated, Gwin v. City of Tallahassee is the only helpful case the Village cited in relation to incidental uses. Unfortunately for the Village’s argument, Gwin supports the property appraiser’s position. From Gwin v. City of Tallahassee, is the examination of what comprises an incidental use:

“This court takes judicial notice of the fact that in many municipal and county buildings ... space is leased or concessions are granted to private individuals for the sale of food, magazines, newspapers, public telephones and other things which are mere incidents to the main or primary purpose of the buildings, but are for the convenience of those who use the buildings for a public purpose.” [emphasis is the court’s.]

132 So.2d at 277 (quoting Gate City Garage, Inc. v. City of Jacksonville, 66 So.2d 653, 659 (Fla.1953)). Substitute “marinas” for “buildings” and the instant situation is clear. The Village’s “incidental use” argument fails. ,

The marina is precluded by Article VII, Section 3(a), Florida Constitution, from being granted tax exemption. I would set aside the panel opinion and affirm the trial court’s decision.

I would add that taxing the marina is the only equitable thing to do. If the marina does not pay property taxes it is not carrying its share of the costs of services provided by Monroe County and the various relevant taxing districts serving Monroe County (and the Village). The marina’s fair share of taxes thus becomes the burden .of the other Monroe County taxpayers. As the Florida Supreme Court put it, in ITT Comty. Dev. Corp. v. Seay, 347 So.2d 1024, 1028 (Fla.1977):

“Democratic philosophy mandates that every taxpayer be treated consistently, and that everyone contribute his [or her] fair share, no more and no less, to the tax revenues.”

Couldn’t be said better.

SCHWARTZ, C.J., and GERSTEN and SHEPHERD, JJ., concur.

      . Tax exemptions are strictly construed against the party claiming them. Sebring Airport Auth. v. McIntyre, 642 So.2d 1072 (Fla.1994).

      . As related to qualifications for tax exemption, “municipal purpose” and "public purpose” are synonymous. Daytona Beach R & R Dist. v. Paul, 179 So.2d 349 (Fla.1965).

      .If leased to a private entity for a proprietary use for that entity to make a profit, municipally owned property is not tax exempt. Page v. City of Fernandina Beach, 714 So.2d 1070 (Fla. 2d DCA 1998), rev. denied, 728 So.2d 201 (Fla.1998).

      . Crotty, 775 So.2d at 981.

      . Islamorada, Village of Islands v. Higgs, 28 Fla. L. Weekly D2650, 2003 WL 22715633. 882 So.2d 1009 (Fla. 3d DCA Nov. 19, 2003).

      . R. 93.

      . The "general public,” the panel noted, includes out-of-town visitors as well as residents of the Village. ”[T]he [m]arina is a recreational facility that is available to residents and non-residents....” Islamorada, 28 Fla. L. Weekly at D2650, 882 So.2d at 1010-11.

      .It is not a cheap place to park your Bertram. It throws off more revenue than it costs the proprietor (the Village) to operate it.

      . "Exclusively” has been defined by the Florida Supreme Court as "apart from all others” or "only.” Lee v. Gulf Oil Corp., 148 Fla. 612, 4 So.2d 868 (Fla.1941).

      . The American Heritage Dictionary of the English Language (1979), p. 665.

      . Id. at 518, 4 So.2d 868.

      . Id. at 8, 4 So.2d 868.


author: KELLY, Judge.

text:
    ENTERPRISING PROFESSIONAL INVESTMENT CORPORATION, Appellant, v. DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 2D02-5665.
    District Court of Appeal of Florida, Second District.
    March 5, 2004.
    1 Mark N. Miller of Gray Robinson, P.A., Lakeland,' for Appellant.
    Pamela S. Leslie, General Counsel, and Gregory G. Costas, Assistant General Counsel, Tallahassee, .for Appellee.
   KELLY, Judge.

In this eminent domain proceeding, the landowner, Enterprising Professional Investment Corporation (EPIC), appeals an order denying its motion for an award of attorney’s fees under section 73.092(2), Florida Statutes (2001). The motion sought to recover fees EPIC had incurred during posttrial proceedings to recover the cost of its experts under section 73.091(1), Florida Statutes (2001). We conclude that those posttrial proceedings are supplemental proceedings under section 73.092(2) and that EPIC is entitled to recover the attorney’s fees it incurred in those proceedings.

After entry of the final judgment, EPIC moved to tax its attorney’s fees and costs under section 73.091(1). Among other things, EPIC sought to recover fees for its experts. The Department of Transportation (the Department) disputed the amount of fees EPIC sought for its experts and engaged EPIC in several adversarial proceedings related to those fees. At the conclusion of these proceedings, EPIC filed a second motion for attorney’s fees seeking to recover the fees it had incurred in the proceedings to recover the experts’ fees. EPIC argued that the award of fees was proper because these were supplementary proceedings under section 73.092(2). The trial court denied EPIC’s motion.

In State, Department of Transportation v. Smithbilt Industries, Inc., 715 So.2d 963, 967 (Fla. 2d DCA 1998), this court recognized that section 73.092(2) contains no definition of'“other supplemental proceedings,” but noted that “in normal usage, a supplemental proceeding occurs at the end of the proceeding, usually after final judgment has been entered.” In Amoco Oil Co. v. State, Department of Transportation, 765 So.2d 111 (Fla. 1st DCA 2000), the court agreed with that reasoning and held that postjudgment hearings on the issue of costs in eminent domain actions were supplemental proceedings that could form the basis for assessment of attorney’s fees. In light of these precedents, we conclude that the trial court erred when it denied EPIC’s motion for attorney’s fees. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

WHATLEY and STRINGER, JJ„ concur.


text:
    Daniel E. CAMPBELL, Trustee of the Daniel E. Campbell Living Trust, Appellant, v. The SHORES AT COCO PLUM CONDOMINIUM ASSOCIATION, INC., a Florida not-for-profit corporation, Appellee.
    Nos. 3D03-3268, 3D03-1801.
    District Court of Appeal of Florida, Third District.
    May 19, 2004.
    Rehearing and Rehearing En Banc Denied Sept. 17, 2004.
    Cohen & Fox and Robert Cohen, Cape Coral, and Mario M. Ruiz, for appellant.
    Vernis & Bowling and Scott C. Black, Islamorada, for appellee.
    Before SCHWARTZ, C.J., and WELLS and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. § 718.104(4), Fla. Stat. (2003); Elmore v. Enterprise Developers, Inc., 418 So.2d 1078 (Fla. 4th DCA 1982); Kaufman v. Shere, 347 So.2d 627 (Fla. 3d DCA 1977), cert. denied, 355 So.2d 517 (Fla.1978); Rylander v. Sears Roebuck & Co., 302 So.2d 478 (Fla. 3d DCA 1974).


text:
    Vicky J. WARWICK, Appellant, v. Edward WARWICK, Appellee.
    No. 5D03-1913.
    District Court of Appeal of Florida, Fifth District.
    June 18, 2004.
    Rehearing Denied Sept. 29, 2004.
    Vicky J. Warwick, Apopka, pro se.
    Laura Louise Jacobs, Altamonte Springs, for Appellee.
   PER CURIAM.

In view of the 1999 order from the Family Court of the State of New York terminating a support order entered in New York, and in view of the submission of this case to the jurisdiction of Florida as reflected in the Order on Child Support of June 3, 1999, rendered by the Circuit Court In and For Orange County, Florida, we have concluded that the courts of Florida have jurisdiction over this matter. We have reviewed the record associated with the May 5, 2003, Final Order Modifying Child Support, and find no error. Accordingly, we affirm.

AFFIRMED.

GRIFFIN and MONACO, JJ., and EVANDER, K, Associate Judge, concur.


author: GODERICH, Judge.

text:
    The EXPRESSWAY COMPANIES, INC., Appellant, v. PRECISION DESIGN, INC., Appellee.
    No. 3D03-1317.
    District Court of Appeal of Florida, Third District.
    July 14, 2004.

      Jorden Burt and Sonia Escobio O’Donnell and Enrique D. Arana, Miami, for appellant.
    Levey, Airan, Brownstein, Shevin, Friedman, Roen & Kelso, and John R. Kelso, Miami, for appellee.
    Before SCHWARTZ, C.J., and GODERICH, JJ., and DELL, JOHN W., Senior Judge.
   GODERICH, Judge.

The Expressway Companies, Inc. [Expressway] appeals from an amended final judgment granting Precision Design, Inc.’s [Precision] Petition to Confirm Arbitration Award; denying Expressway’s Application to Vacate Arbitration Award; and granting pre-award interest to Precision. We affirm in part and reverse in part.

Expressway and Precision entered into an “Abbreviated Form of Agreement Between Owner and Contractor” which provided for the resolution of claims and disputes by arbitration. After the construction project was terminated, Precision filed a Demand for Arbitration [Demand] seeking $449,000, and later amended the Demand seeking $849,926.

Expressway filed a Motion to Dismiss the Demand [Motion to Dismiss] raising several arguments. Expressway also filed an answer to the Demand and raised a counterclaim alleging that it had overpaid Precision.

The arbitrator heard the matter over a six-day period and thereafter, entered its arbitration award [Award]. The Award in part denied Expressway’s Motion to Dismiss; awarded post-award interest, administrative fees and expenses, and $716,719 in damages to Precision; and denied Precision’s request for pre-award interest.

Following entry of the Award, Expressway filed an Application to Vacate Arbitration Award [Application to Vacate] and Precision filed a Petition to Confirm Arbitration Award [Petition to Confirm], In the Petition to Confirm, Precision also requested that the trial court grant it pre-award interest.

Following a hearing, the trial court entered an amended final judgment granting Precision’s Petition to Confirm; dismissing Expressway’s Application to Vacate; and awarding pre-award interest to Precision. This appeal followed.

Expressway raises numerous points on appeal, but only one merits discussion. Expressway contends that the trial court erred by modifying the Award by granting pre-award interest to Precision. We agree.

As previously noted, Precision filed a motion to confirm the arbitration award, not a motion to modify the arbitration award. If a trial court rules to confirm the arbitration award, it must enter a judgment confirming the arbitration award in its entirety. See Andrew H. Warner, Inc. v. Siga, Inc., 690 So.2d-626, 628 (Fla. 4th DCA 1997)(holding that “[i]n confirming an arbitration award, the trial court must enter a judgment in conformity with the arbitration award.”).

In the instant case, the Award specifically denied pre-award interest to Precision. As such, the trial court’s .amended final judgment granting pre-award interest to Precision was not in conformity with the Award. Therefore, the portion of the amended final judgment awarding pre-award interest to Precision must be reversed.

Assuming that Precision had filed a motion to modify the award pursuant to section 682.14, Florida Statutes (2003), the facts do not support such a modification. Precision argues that the trial court was authorized to modify the Award to add pre-award interest because the arbitrator made “a conscious decision to not bother completing the task ' [of calculating pre-award interest] because it [was] too arduous.” Precision also argues that the trial court correctly granted pre-award interest because it is entitled to such interest pursuant to Argonaut Insurance Co. v. May Plumbing Co., 474 So.2d 212 (Fla.1985).

First, in reviewing the Award, it is clear that the arbitrator’s decision to deny pre-award interest was’ not because the arbitrator believed that the task of ealcu-lating the pre-award interest “was too arduous.” Rather, the arbitrator denied Precision’s request for pre-award interest after considering what it believed to be the law on pre-award interest and the facts of the case. Therefore, because a trial court “is not empowered to set aside arbitration awards for mere errors of judgment as to law or facts,” even if Precision, had filed a motion to modify the Award, the trial court could not have granted the motion. Dasso v. Fernandez, 831 So.2d 714, 716 (Fla. 3d DCA 2002), review denied, 845 So.2d 889 (Fla.2003); see Verzura Constr., Inc. v. Surfside Ocean, Inc., 708 So.2d 994, 996 (Fla. 3d DCA 1998)(holding that “awards made by arbitration panels cannot be set aside for mere errors of judgment either as to the law or as to the facts”); Goldberger v. Hofco, Inc., 422 So.2d 898, 900 (Fla. 4th DCA 1982)(holding that where an arbitration award denies pre-award interest, “[a]bsent justification to vacate or modify the award, the trial court was without authority to alter the terms.”).

Finally, Precision’s reliance on Argonaut is misplaced. As the Fourth District held in Preserve Estates v. Bryant Contracting Corp., 657 So.2d 59 (Fla. 4th DCA 1995),

[t]he fact that Argonaut Ins. Co. v. May Plumbing Co., 474 So.2d 212 (Fla.1985), requires a court to add prejudgment interest to a determination of liquidated damages by a jury or judge does not overcome the provisions of sections 682.13 and 682.14, Florida Statutes (1993). Those statutes allow a court to vacate or modify a final arbitration award in very limited circumstances, none of which apply here; the permitted grounds do not include legal error by the arbitrator.

Preserve Estates, 657 So.2d at 60 (emphasis in original); see also § 682.13(e), Fla. Stat. (2003)(“But the fact that the relief was such that it could not or would not be granted by a court of law or equity is not ground for vacating or refusing to confirm the award.”).

Accordingly, we reverse the portion of the amended final judgment awarding pre-award interest to Precision and affirm the remaining portions of the amended final judgment.

Affirmed in part and reversed in part.

      . Section 682.14 provides as follows:
      Modification or correction of award
      (1)Upon application made within 90 days after delivery of a copy of the award to the applicant, the court shall modify or correct the award when:
      (a) There is- an evideht miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award.
      (b) The arbitrators or umpire have awarded upon a matter not submitted to them or him or her and the award may be corrected without affecting the merits of the decision upon the issues submitted.
      (c)The award is imperfect as a matter of form, not affecting the merits of the controversy.
      (2) If the application is granted, the court shall modify and correct the award so as to effect its intent and shall confirm the award as so modified and corrected. Otherwise, the court shall confirm the award as made.
      (3) An application to modify or correct an award may be joined in the alternative with an application to vacate the award.


author: KLEIN, J.

text:
    Anthony L. BREWER, Appellant, v. Gail Susan SOLOVSKY, Appellee.
    No. 4D03-3222.
    District Court of Appeal of Florida, Fourth District.
    July 14, 2004.
    Claire Cubbin, Fort Lauderdale, for appellant.
    Alan D. Saekrin of the Law Offices of Alan D. Saekrin, Hallandale Beach, for appellee.
   KLEIN, J.

The trial judge, under the assumption that she was maintaining the status quo, ordered the father, who had relocated to Indiana and had the child with him, to return the child to the mother in Florida. Under the facts of this case, this amounted to a change of custody without an eviden-tiary hearing or any other prerequisites. We accordingly reverse.

The judgment dissolving the marriage granted each of the parents fifty percent custody, neither being primary. Nor did the judgment preclude a parent from moving out of state with the child.

The father later moved to Indiana and, after having the child with him in Indiana during the summer of 2003, filed an emergency motion seeking to be designated primary residential custodian so that the child could attend school in Indiana. The mother, who had a pending petition for modification, filed a response seeking return of the child, who had previously attended school in Florida. At a hearing, after the court was advised of the above facts by counsel, the court ruled, without taking testimony, that the child had to be immediately returned to Florida until the modification petitions could be heard.

The court assumed that it was maintaining the status quo, but, because the judgment provided the father with the same rights as the mother, and did not prohibit relocation, this order modified the father’s custody rights. We accordingly reverse. Matin v. Hill, 801 So.2d 1003, 1005 (Fla. 4th DCA 2001) (“For a party to obtain a temporary modification of custody, he or she must prove that: (1) a substantial change in the condition of one or both of the parties has occurred, and (2) the best interests of the child will be promoted by the change.”).

WARNER and TAYLOR, JJ., concur.


text:
    Guillermo Gabriel BAKULA, Appellant, v. Jaime Shoop BAKULA, Appellee.
    No. 3D03-1679.
    District Court of Appeal of Florida, Third District.
    July 21, 2004.
    Rehearing and Rehearing En Banc Denied Oct. 6, 2004.
    Scott Alan Orth, for appellant.
    Stephens, Lynn, Klein and Marlene S. Reiss, Miami, for appellee.
    Before SCHWARTZ, C.J., and COPE and GODERICH, JJ.
   PER CURIAM.

No error has been demonstrated in any of the challenged rulings in this dissolution proceeding.

Affirmed.


text:
    Johnny JONES, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-2218.
    District Court of Appeal of Florida, Fifth District.
    July 27, 2004.

      Johnny Jones, Pro Se.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Hitchcock v. State, 866 So.2d 23 (Fla.2004).

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


author: PETERSON, J. SHARP, W., J.,

text:
    The CHATLOS FOUNDATION, INC., et al, Appellants, v. Joy Chatios D’ARATA, etc., Appellee.
    Nos. 5D02-3330, 5D02-3590.
    District Court of Appeal of Florida, Fifth District.
    Aug. 6, 2004.
    Rehearing Denied Oct. 1, 2004.
    I. William Spivey, II, and Dawn Giebler Millner, of Greenberg Traurig, P.A., Orlando, and Elliot H. Scherker and Paul C. Savage, of Greenberg Traurig, P.A., Miami, for Appellants.
    Wendell R. Bird, P.C., of Bird & Loechl, LLC, Atlanta, GA, and Frederick H. Nelson, of Law Offices of Frederick H. Nelson, P.A., Altamonte Springs, for Appellee.
   PETERSON, J.

The Chatios Foundation, Inc., (“the Foundation”), appeals an order granting the right to indemnification and advancement of legal fees and costs to plaintiff below, Joy Chatios D’Arata, (“D’Arata”).

The facts of this case and the order appealed are set forth in the following excerpts from the lower court’s order:

1.D’Arata was a director or trustee of the Chatios Foundation (and D’Arata contends that she was wrongfully terminated from that position).... It appears to be an undisputed fact that D’Arata was also an officer and employee of the Foundation (and D’Arata contends that she was wrongfully terminated from those positions), and that D’Arata was a member at least through early 2001 (though the parties differ as to whether the Board of Trustees validly eliminated the position of members then).
5. The nature of the proceeding is D’Arata’s action as a director, vice president, and member ..., which is in substantial part derivative ..., alleging various illegal acts by the Foundation and [Chatios] in his official and individual capacities.
6. The Foundation is using Foundation funds to pay its own legal fees and costs, and to pay those of [Chatios] as an individual defendant.

The court then found the following “relevant circumstances:”

1. Without addressing the merits of the causes of action, the facts alleged and the causes of action pled in the Amended Complaint raise serious issues under federal and/or Florida law that need to be adjudicated....
2. The Chatios Foundation is a nonprofit organization under federal law, and is a New York corporation that is qualified to do business in Florida, and that warrants certain judicial and administrative oversight over nonprofit organizations.
3. It would not be fair, and would allow the larger party to smother the smaller party, if the Foundation did not indemnify and advance D’Arata’s legal fees and costs in seeking, from her viewpoint, to protect the Foundation and its assets against these activities.
6. D’Arata is entitled to indemnification, based upon all the relevant evidence contained in the record before the Court, and the evidence of significant litigation which has gone on to date, which includes innumerable hearings, extraordinarily detailed and competent memoranda, and the outstanding arguments of counsel.

The court then addressed both Florida law and New York law, and the application of each to the undisputed facts and relevant circumstances, finding entitlement to indemnification under both. The court concluded:

1. Pursuant to F.S.A. § 607.0850(8) and (9), “indemnification and advancement of expenses, including expenses incurred in seeking court-ordered 'indemnification or advancement of expenses,” are awarded to D’Arata from The Chat-ios Foundation. Expenses are defined as legal fees and costs of this action. Alternatively, this award is entered pursuant to New York Nob-for-Profit Corporation Law §§ 724, 720.
2. The amount of legal fees to be indemnified by The Chatios Foundation to D’Arata is the reasonable amount to be determined by this Court in a separate hearing.

At a subsequent hearing, the court awarded $132,181.50 attorney’s fees and $11,636.44 expenses to one of D’Arata’s attorneys and $20,796.00 attorney’s • fees and $1,098.84 expenses to another.

STANDARD OF REVIEW

Review of the lower court’s order requires ús to consider the standard of review of that order, whether Florida or New York law applies and the requirements of the law of the appropriate state. In awarding D’Arata attorney’s fees, the lower court stated in its order that it examined the affidavits, documents and pleadings filed by both parties. We are asked to review these same documents. Accordingly, since this court is in the same position as the lower court to review these documents, as well as interpret the various statutes, we find that the lower court made a decision of law renewable by this court de novo. See Philip J. Padovano, Florida Appellate Practice, §§ 9.4-9.5 (2003); see also Racetrac Petroleum, Inc. v. Delco Oil, Inc., 721 So.2d 376, 377 (Fla. 5th DCA 1998) (holding that judicial interpretation of state statutes is a purely legal matter and therefore subject to de novo review).

CONFLICT OF LAWS

Section 617.1505(3), Florida Statutes, provides:

(3) This [Florida Not For Profit Corporation] act does not authorize this state to regulate the organization or internal affairs of a foreign corporation authorized to conduct its affairs in this state.

Davis & Cox v. Summa Corp., 751 F.2d 1507 (9th Cir.1985), is helpful in determining what is meant by the internal affairs of a corporation.

Claims involving “internal affairs” of corporations, such as the breach' of fiduciary duties, are subject to the laws of the state of incorporation. See Weiss v. Kay Jewelry Stores, Inc., 470 F.2d 1259, 1268 (D.C.Cir.1972); Wiltshire Oil Co. of Texas v. Riffe, 409 F.2d 1277, 1283 & n. 16 (10th Cir.1969); see generally Restatement (Second) of Conflict of Laws §§ 302, 309 (1971). Here, corporate indemnification involves issues peculiar to the affairs of a corporation. Indemnification of corporate directors, like the fiduciary obligations of corporate directors, is an “internal affair” of a corporation and is therefore subject to the law of the state of incorporation.

Id. at 1527; see also Gross v. Texas Plastics, Inc., 344 F.Supp. 564, 566 (D.N.J.1972). Because the Foundation was incorporated in New York, we find that based upon section 617.1505(3) and the federal case law interpreting “internal affairs,” New York law would apply in the instant case.

NEW YORK LAW

The Foundation contends that D’Arata is entitled to no indemnification under the applicable New York law because section 724(c) of New York Business Corporation Law is limited by its own express terms to indemnification of directors and officers in defense of an action and D’Arata is not defending an action. On the other hand, D’Arata contends that New York law allows for indemnification under the facts of this case.

The governing New York statute as set forth in the lower court’s order and parties’ briefs, provides:

(a) Notwithstanding the failure of a corporation to provide indemnification, and despite any contrary resolution of the board or of the shareholders in the specific case under section 723 (Payment of indemnification other than by court award), indemnification shall be awarded by a court to the extent authorized under section 722 (Authorization for indemnification of directors and officers), and paragraph (a) of section 723. Applications therefor may be made, in every case, either:
(1) In the civil action or proceeding in which the expenses were incurred or other amounts were paid, ...
(b) The application shall be made in such manner and form as may be required by the applicable rules of court or, in the absence thereof, by direction of a court to which it is made. Such application shall be upon notice to the corporation. The court may also direct that notice be given at the expense of the corporation to the shareholders and such other persons as it may designate in such manner as it may require.
(c) Where indemnification is sought by judicial action, the court may allow a person such reasonable expenses, including attorneys’ fees, during the pendency of the litigation as are necessary in connection with his defense therein, if the court shall find that the defendant has by his pleadings or during the course of the litigation raised genuine issues of fact or law.

N.Y. Bus. Corp. Law § 724 (McKinney 2002) (emphasis added). The trial court cites Professional Insurance Co. v. Barry, 60 Misc.2d 424, 303 N.Y.S.2d 556 (N.Y.Sup.Ct.1969), affirmed, 32 A.D.2d 898, 302 N.Y.S.2d 722 (1969), in support of finding D’Arata’s entitlement to indemnification based on this statute. In that case, Professional Insurance Co. filed a cause of action against Chaut, a former director for accounting for damages arising from alleged breaches of fiduciary duties. In his answer, Chaut set forth a counterclaim for indemnification from Professional Insurance Co. under the above statute. The court found:

The allowance of expenses pendent lite pursuant to section 725, subdivision (c) of the Business Corporation Law is involved only where the corporation has failed to provide indemnification and it makes no difference whether the allowance is sought within the ambit of a derivative (s 722) or non-derivative (s 723) category as long as such allowance is necessary in connection with the defense in the litigation.

(Emphasis added). Due to the statutory requirement of awarding indemnification as necessary in connection with a defense, we find that D’Arata, who has filed a cause of action against the Foundation, is not entitled to indemnification under the law of New York. Simply stated, because D’Arata is not conducting a defense in this cause, the lower court erred in finding entitlement.

Accordingly, the award of fees to fund litigation initiated by D’Arata is vacated and we remand for further proceedings.

ORDER VACATED; REMANDED.

TORPY, J., concurs.

SHARP, W., J., dissents with opinion.

SHARP, W., J.,

dissenting.

I respectfully dissent. Joy Chatios D’Arata filed this lawsuit against the Chatios Foundation and her brother, William Chatios, individually and as President and Member of the Board of Directors of the Foundation, alleging among other things, that she was wrongfully terminated as vice-president, trustee, and employee of the Foundation and that the Foundation has engaged in a variety of illegal acts. The Foundation is a not-for profit New York corporation with its principal place of business in Longwood, Florida. The Foundation is qualified to do business in Florida and does, in fact, transact business in Florida.

The Foundation is using Foundation funds to pay its own legal fees and costs and to pay those of William Chatios as an individual defendant. The trial court ordered the Foundation to likewise indemnify and advance legal fees and costs to D’Arata to “level the playing field” in a case which has already been extensively litigated although it is only at the pleading stage.

I conclude that such an award is authorized under Florida law and would affirm. As a foreign corporation qualified to do business in Florida, the Foundation is governed by section 617.1505:

(1) A certificate of authority authorizes the foreign corporation to which it is issued to transact business in this state subject, however, to the right of the Department of State to suspend or revoke the certificate as provided in this act.
(2) A foreign corporation with a valid certificate of authority has the same but no greater rights and has the same but no greater privileges as, and except as otherwise provided by this act is subject to the same duties, restrictions, penalties, and liabilities now or later imposed on, a domestic corporation of like character, (emphasis added)

One duty or liability imposed upon domestic corporations is the obligation to indemnify officers, directors, employees and agents pursuant to section 607.0850:

(8) Indemnification and advancement of expenses as provided in this section shall continue as, unless otherwise provided when authorized or ratified, to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of the heirs, executors, and administrators of such a person, unless otherwise provided when authorized or ratified.
(9) Unless the corporation’s articles of incorporation provide otherwise, notwithstanding the failure of a corporation to provide indemnification, and despite any contrary determination of the board or of the shareholders in the specific case, a director, officer, employee, or agent of the corporation who is or was a party to a proceeding may apply for indemnification or advancement of expenses, or both, to the court conducting the proceeding, to the circuit court, or to another court of competent jurisdiction. On receipt of an application, the court, after giving any notice that it considers necessary, may order indemnification and advancement of expenses, including expenses incurred in seeking court-ordered indemnification or advancement of expenses, if it determines that:
(c) The director, officer, employee, or agent is fairly and reasonably entitled to indemnification or advancement of expenses, or both, in view of all the relevant circumstances ...

In DeSaad v. Banco Industrial de Venzuela, 843 So.2d 953 (Fla. 3d DCA 2003), the third district held that section 607.0850 applied to a foreign corporation qualified to do business in Florida by virtue of section 607.1505(2). In that case, DeSaad was arrested for money laundering and conspiracy while employed by Banco Industrial. She successfully defended against those charges and sought indemnification against Banco Industrial, pursuant to section 607.0850. Her claim was dismissed on the basis that section 607.0850 was facially inapplicable to foreign corporations such as Banco Industrial and that inapplicability was not changed by the fact that Banco Industrial was operating under a certificate of authority to transact business in Florida.

On appeal, the court held that section 607.0850 applied to Banco Industrial given the fact that it was qualified to do business in Florida. Thus pursuant to section 607.1505(2), the corporation assumed the same liabilities imposed upon a domestic corporation. Liability under the indemnification statute is a liability imposed upon a domestic corporation and thus it is likewise imposed upon a foreign corporation authorized to do business in Florida.

Like Banco Industrial, the Foundation should be subject to Florida’s indemnification statute, the same as domestic corporations. I disagree with the majority that section 617.1505(3) applies here as this section only bars regulation of the “internal affairs” of a foreign corporation. In my view, indemnification in this case does not involve the internal affairs of the Foundation.

The “internal affairs” of a foreign corporation is very generally defined as matters that involve only the inner workings of a corporation, such as dividend declarations and the selection of officers. Black’s Law Dictionary (8th ed 2004). However, there is no bright line between those matters which do and those which do not pertain to the internal affairs of a foreign corporation. In sum, the term has no very definite or fixed meaning. 23 Am.Jur. Foreign Corporations § 427.

“Internal affairs” of a corporation usually involve matters such as the steps taken in the course of the original incorporation, the election or appointment of directors and officers, the adoption of by-laws, the issuance of corporate shares, preemptive rights, the holding of directors’ and shareholders’ meetings, methods' of voting including any requirement for cumulative voting, shareholders’ rights to examine corporate records, charter and by-law amendments, mergers, consolidations and reorganizations and the reclassification of shares. See Restatement (Second) of Conflict of Laws § 302 (1971).

In contrast, indemnity is defined as “the duty to make good any loss, damage, or liability incurred by another” or- “the right of an injured party to claim reimbursement for its loss, damage, or liability from a person who has such a duty.” (emphasis added) Black’s Law Dictionary. (8th ed 2004). These duties -and rights involve much more than the mere “inner workings” of the corporation. In fact, under section 607.8050, a legal duty , may be imposed on a corporation to indemnify an officer, director, employee or agent despite a contrary determination by the board or shareholders. Since the Foundation is subject to this statutory indemnification provision as though it were a domestic corporation, I believe the trial court properly indemnified and advanced D’Arata her legal fees and costs in this lawsuit.

      . The Foundation is a not-for-profit New York corporation with a principal place of business in Longwood, Florida. It was formed as a private foundation in 1953 by William F. Chatios, grandfather of D'Arata and her brother William J. Chatios, established "exclusively for charitable, religious, scientific, literary or educational purposes” under section 501(c)(3) of the Internal Revenue Code and subject to sections 4941-4945 of the Code. The complaint alleges that the Foundation had assets of over $146,000,000, which because of the acts of its manager and others, declined to less than $90,000,000 at the time the complaint was filed. Appellants claim that since 1953, the Foundation has donated more than $76 million to causes, with more than $42 million having been donated over the past ten years.

      . Section 725 was renumbered section 724.

      . According to D’Arata, the Foundation violated federal, Florida and New York laws that could subject it to penalties in the millions of dollars. She alleged that it mismanaged and wasted assets by paying William Chatios $187,000 (including a $25,000 bonus) plus, without authorization or disclosure, another $188,640 per year (including a $125,0900 bonus), by paying two sisters who did no substantial work $143,750 and $152,000 per year (including $20,000 bonuses), plus another $29,400 without authorization or disclosure and by paying "discretionary funds” of $50,000 to each of these board members of , the Foundation including various personal expenses. D'Arata also alleged the Foundation had violated the prudent investor standard so that Foundation assets plummeted from $146 million to $80 million. Furthermore, D'Arata alleged she was wrongfully terminated as a "whistleblower” when the Foundation cut off her salary and medical insurance.

      . The court awarded the following legal fees and cost to D’Arata:
      9. [A]ttorneys’ fees of $84,272.50 for Wendell R. Bird (260.7 hours X $325.00 per hour); attorneys' fees of $2,028.00 for Richard Brittain (7.8 hours x $260.00 per hour thru 3/15/02); attorneys' fees of $1,350.00 for Richard Brittain (5 hours x $270.00 per hour after 3/15/02); attorneys’ fees of $12,714.00 for Philip Craig (48.9 hours x $260.00 per hour); attorneys’ fees of $252.00 for David Treadwell (1.2 hours x $210.00 per hour thru 3/15/02); attorneys' fees of $528.00 for David Treadwell (2.4 hours x $220.00 per hour after 3/15/02); attorneys’ fees of $4,826.00 for Kevin J. Loechl (25.4 hours x $190.00 per hour); attorneys’ fees of $12,992.00 for David Markese (81.2 hours x $160.00 per hour); attorneys' fées pf $4,306.50 for Jonathan McCants (29.7 hours x $145.00 per hour thru 3/15/02); attorneys’ fees of $4,309.00 for Jonathan McCants (27.8 hours x $155.00 per hour thru 3/15/02); legal support fees of $2,465 for Collette Adams (23.4 hours x $85.00 per hour); legal support fees of $1,989.00 for Karin Adams (29.0 hours x $85.00 per hour) and costs totaling $11,636.44 is reasonable for the legal services of Bird & Associates, P.C., through September 15, 2002. The downward adjustment by. Plaintiff's counsel brings the total of fees through September 15, 2002, to $132,181.50 and expenses of $11,636.44. 10. [A]ttorneys' fees of $22,950.00 for Frederick H. Nelson (100.2 hours x $225.00 per hour); legal support fees of $756.00 for Satu Nelson (12.6 hours x $60.00 per hour) and costs totaling $1,098.84 is reasonable for the legal services of The Law Offices of Frederick H. Nelson, P.A., through September 30, 2002. The downward adjustment by Plaintiff's counsel brings the total of fees through September 30, 2002, to $20,796.00 and expenses of $1,098.84.

      . Section 617.1505(3) provides:
      This act does not authorize this state to regulate the organization or internal affairs of a foreign corporation authorized to transact business in this state.

      . D’Arata might not be entitled to indemnification had the lawsuit been filed in New York, because the New York law apparently only requires indemnification when the officer/director is a defendant. Professional Ins. Co. of New York v. Barry, 60 Misc.2d 424, 303 N.Y.S.2d 556 (N.Y.Sup.Ct.), affirmed, 32 A.D.2d 898, 302 N.Y.S.2d 722 (1969). However, the fact that New York has chosen to heavily regulate the indemnification of corporate directors and officers, and provides for indemnification by judicial action, supports my conclusion that indemnification is in the nature of a right, or a duty, and is not a mere internal affairs issue left solely to the corporation to decide.


author: GREEN, J.

text:
    MILLENNIUM DIAGNOSTIC IMAGING CENTER, INC., Appellant, v. SECURITY NATIONAL INSURANCE COMPANY, Appellee.
    No. 3D03-960.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 2004.
    Rehearing Denied Oct. 6, 2004.

      Lidsky, Vaccaro & Montes, P.A., and Carlos Lidsky, and Leonardo Bueno; Pastor, Montes & Naveo, P.A. and Carlos Pastor, for appellant.
    Barranco, Kircher & Vogelsang, P.A. and Beth T. Vogelsang, for appellee.
    Before COPE, GERSTEN, and GREEN, JJ.
   GREEN, J.

Millennium Diagnostic Imaging Center, Inc. (“Millennium”) appeals from an order dismissing its class action suit against Security National Insurance Company (“Security National”). The issue here involves the interpretation of a 2001 amendment to Florida’s Motor Vehicle No-Fault Law which established a fee schedule for personal injury protection (“PIP”) benefits payable to magnetic resonance imaging (“MRI”) providers.

Millennium provided MRI services on February 22, 2002 to Pedro Perez, an automobile accident victim insured by Security National. Perez assigned his PIP medical benefits to Millennium. A claim for PIP benefits under Security National’s policy was submitted by Millennium totaling $2,178.00. Security National paid Millennium $903.68 for the services. Millennium claimed that pursuant to section 627.736(5)(b)5, Fla. Stat. (2001), it should have been paid $987.21 and therefore it had been underpaid by $83.53.

Thereafter, Millennium filed a putative class action against Security National claiming that an MRI provider’s charges, according to section 627.736(5)(b)5, should be based on the highest of the three available (“participating”, “nonparticipating” or “limiting charge”) Medicare Part B rate schedules, the “limiting charge” schedule. Security National claimed that the statutory scheme required a payment of eighty-percent (80%) of the “participating” fee schedule, as opposed to the “limiting charge,” and moved to dismiss the complaint because it had paid Millennium the amount it was due under the “participating” fee schedule. The trial court agreed and dismissed Millennium’s complaint.

Millennium appeals, claiming that the plain language of the statute provides that the Medicare Plan B “limiting charge” is an “allowable” amount upon which MRI service charges may be based. We disagree and affirm.

In 2001, the Florida Legislature enacted a fee schedule regulating, among other things, the amount MRI providers could charge PIP insurers and their insureds. See § 627.736(5)(b)5, Fla. Stat. (2001). This schedule provided that:

Effective upon this act becoming a law and before November 1, 2001, allowable amounts that may be charged to a personal injury protection insurance insurer and insured for magnetic resonance imaging services shall not exceed 200 percent of the allowable amount under Medicare Part B for year 2001, for the area in which the treatment was rendered. Beginning November 1, 2001, allowable amounts that may be charged to a personal injury protection insurance insurer and insured for magnetic resonance imaging services shall not exceed 175 percent of the allowable amount under Medicare Part B for year 2001, for the area in which the treatment was rendered, adjusted annually by an additional amount equal to the medical Consumer Price Index for Florida, except that allowable amounts that may be charged to a personal injury protection insurance insurer and insured for magnetic resonance imaging services provided in facilities accredited by the American College of Radiology or the Joint Commission on Accreditation of Healthcare Organizations shall not exceed 200 percent of the allowable amount under Medicare Part B for year 2001,- for the area in which the treatment was rendered, adjusted annually by an additional amount equal to the medical Consumer Price Index for Florida. This paragraph does not apply to charges for magnetic resonance imaging services and nerve conduction testing for inpatients and emergency services and care as defined in chapter 395 rendered by facilities licensed under chapter 395.

Soon after the trial court entered its order in this case, the legislature amended section 627.736(5)(b)5 to explicitly provide that “the participating physician fee schedule” controls the amounts payable to MRI service providers. See Ch. 03-411, § 8, at 3833, Laws of Fla. Given the cavalcade of litigation regarding this issue, we believe that the amendment was enacted as a clarification of the legislature’s intent on what an “allowable amount” would be. See Lowry v. Parole & Prob. Comm’n, 473 So.2d 1248, 1250 (Fla.1985) (“When, as occurred here, an amendment to a statute is enacted soon after controversies as to the interpretation of the original act arise, a court may consider that amendment as a legislative interpretation of the original law and not as a substantive change thereof.”).

This intention to clarify is further illustrated by the legislative staff analyses to the amendment. See Asphalt Pavers, Inc. v. Dep’t of Revenue, 584 So.2d 55, 57 (Fla. 1st DCA 1991) (holding that legislative staff analyses are admissible as an aid in ascertaining legislative intent). The 2003 amendment began as Committee Substitute for Senate Bill 32-A (2003). The Senate Staff Analysis and Economic Impact Statement dated May 15, 2003 provides that:

The bill clarifies that the allowable amounts for medically necessary nerve conduction tests, under specified conditions, will be under the “participating physician fee schedule” of the Medicare Part B fee schedule and adjusted annually on August 1 to reflect the prior calendar year’s changes in the Medical Care Item of the Consumer Price Index (CPI) for All Urban Consumers in the South Region as determined by the Bureau of Labor Statistics. The CPI provisions also pertain to MRI services.

Senate Staff Analysis and Economic Impact Statement, CS/SB 32-A, § 8 (2003). This analysis shows that the purpose of the amendment was to clarify that the participating fee schedule was. the proper fee schedule under the original statute. See Gay v. Canada Dry Bottling Co., 59 So.2d 788, 790 (Fla.1952) (holding that the interpretation of a statute by a legislative department goes far to remove doubt about the meaning of the law).

Because the 2003 amendment to section 627.736(5)(b)5 confirms that the trial court’s interpretation of the 2001 statute was correct, we affirm.

      . The statute now reads:
      Effective upon this act becoming a law and before November 1, 2001, allowable amounts that may be charged to a personal injury protection insurance insurer and insured for magnetic resonance imaging services shall not exceed 200 percent of the allowable amount under Medicare Part B for year 2001, for the area in which the treatment was rendered. Beginning November 1, 2001, allowable amounts that may be charged to a personal injury protection insurance insurer and insured for magnetic resonance imaging services shall not exceed 175 percent of the allowable amount under the participating physician fee schedule of Medicare Part B for year 2001, for the area in which the treatment was rendered, adjusted annually on August 1 to reflect the prior calendar year's changes in the annual Medical Care Item of the Consumer Price Index for All Urban Consumers in the South Region as determined by the Bureau of Labor Statistics of the United States Department of Labor for the 12-month period ending June 30 of that year, except that allowable amounts that may be charged to a personal injury protection insurance insurer and insured for magnetic resonance imaging services provided in facilities accredited by the Accreditation Association for Ambulatory’Health Care, the American College of Radiology, or the Joint Commission on Accreditation of Healthcare Organizations shall not exceed 200 percent of the allowable amount under the participating physician fee schedule of Medicare Part B for year 2001, for the area in which the treatment was rendered, adjusted annually on August 1 to reflect the prior calendar year's changes in the annual Medical Care Item of the Consumer Price Index for All Urban Consumers in the South Region as determined by the Bureau of Labor Statistics of the United States Department of Labor for the 12-month period ending June 30 of that year. This paragraph does not apply to charges for magnetic resonance imaging services and nerve conduction testing for inpatients and emergency services and care as defined in chapter 395 rendered by facilities licensed under chapter 395.
      § 627.736(5)(b)5, Fla. Stat. (2003)' (emphasis added).

      . See, e.g., Advanced Diagnostics Testing v. Allstate Ins. Co., Case No. 3D03-3077; Oakland Park Open MRI, Inc. v. Progressive Express Ins. Co., 11 Fla. L. Weekly Supp. 259 (Fla. 17th Cir.Ct. December 23, 2003); MDC Diagnostics Inc. v. Progressive Express Ins. Co., No.2003-CC-12625-RF (Fla. Palm Beach County Ct. May 14, 2004); Diagnostic Rehab. Servs. v. Progressive Express Ins. Co., 11 Fla. L. Weekly Supp. 647 (Fla. Hernando Co. Ct. April 27, 2004);.