author: HAZOURI, J. STONE, J.,

text:
    Peter F. MERKLE, M.D., P.A., on behalf of itself and all others similarly situated, Appellants, v. HEALTH OPTIONS, INC., Aetna Health, Inc., Vista Healthplan, Inc., and Neighborhood Health Partnership, Inc., Appellees.
    Nos. 4D05-4552 to 4D05-4555.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 2006.
    Rehearing Denied Nov. 20, 2006.

      Paul J. Geller, Stuart A. Davidson, Marisa N. DeMato and Nicole R. Avallone of Lerach Coughlin Stoia Geller Rudman & Robbins, LLP, Boca Raton, Sanford Svet-cov of Lerach Coughlin Stoia Geller Rud-man & Robbins, LLP, San Francisco, California, Eric Lee of Lee & Amtzis, P.L., Boca Raton, Lawrence Kopelman and Douglas Blankman of Kopelman & Blank-man, P.A., Fort Lauderdale, and Patrick W. Lawlor of Patrick Lawlor, P.A., Fort Lauderdale, for appellants.
    Stephanie Alexander and Edward J. Pozzuoli of Tripp Scott, P.A., Fort Lauder-dale, for Amici Curiae Florida Hospital Association, Florida College of Emergency Physicians, Florida Medical Association, the American Medical Association, the American College of Emergency Physicians, and the Florida Orthopaedic Society.
    Steven R. Weinstein and William J. Spratt, Jr., of Kirkpatrick & Lockhart Nicholson Graham, LLP, Miami, for Amici Curiae The Florida Society of Pathologists and The American Pathology Foundation.
    Miguel A. Estrada and Geoffrey M. Si-gler of Gibson, Dunn & Crutcher, LLP, Washington, D.C., and Michael Keith Winston of Carlton Fields, P.A., West Palm Beach, for appellee Aetna Health, Inc.
    W. Edward McIntyre and Nancy W. Gregoire of Bunnell, Woulfe, Kirschbaum, Keller, McIntyre, Gregoire & Klein, P.A., Fort Lauderdale, Scott Jared Fisher of Neal, Gerber & Eisenberg, LLP, Chicago, IL, Eileen M. Considine of Gardner Carton & Douglas, LLP, Albany, NY, and David S. Almeida of Gardner Carton & Douglas, LLP, Chicago, IL, for appellee Neighborhood Health Partnership, Inc.
    Steven M. Ziegler and Andres Gonzalez of Law Offices of Steven M. Ziegler, P.A., Hollywood, for appellee Vista Healthplan, Inc.
    Steven E. Siff, Justin B. Uhlemann and Michael G. Austin of McDermott, Will & Emery, LLP, Miami, for appellee Health Options, Inc.
   HAZOURI, J.

Peter F. Merkle, M.D., P.A. (Merkle) filed four class action complaints against Health Options, Inc., Vista Healthplan, Inc., Neighborhood Health Partnership, Inc., and Aetna Health, Inc., individually (collectively referred to as the “HMOs”). Merkle is a professional association providing emergency orthopaedic services, as a non-participating provider, to patients insured by the HMOs. Merkle raised four claims in each complaint: (1) violations of section 641.513(5), Florida Statutes (2003), (2) unjust enrichment and quantum meruit, (3) account stated, and (4) declaratory and injunctive relief. Merkle appeals from orders dismissing, with prejudice, each of its four complaints. We affirm the trial court’s dismissal of Merkle’s account stated claims, but reverse the trial court’s dismissal of the remaining claims.

Emergency service providers like Mer-kle are required to care for HMO subscribers regardless of whether the provider participates in the HMO’s health plan. See § 641.513(2), Fla. Stat. (2003). However, section 641.513(5), Florida Statutes (2003), dictates how an HMO must reimburse these non-participating providers. The statute mandates that:

Reimbursement for services pursuant to this section by a provider who does not have a contract with the health maintenance organization shall be the lesser of:
(a) The provider’s charges;
(b) The usual and customary provider charges for similar services in the community where the services were provided; or
(c) The charge mutually agreed to by the health maintenance organization and the provider within 60 days of the sub-mittal of the claim.
Such reimbursement shall be net of any applicable copayment authorized pursuant to subsection (4).

§ 641.513(5), Fla. Stat. (2003). Specifically, Merkle claimed that beginning in 2003, the HMOs violated section 641.513(5) by paying class members “artificially reduced payment amounts” equal to 120% of the Medicare reimbursement schedule, rather than the usual and customary provider charges.

The HMOs filed four separate motions to dismiss Merkle’s complaints. Collectively, they argued the following:

1. Merkle’s claims ■ under section 641.513(5) and for declaratory relief fail to state a cause of action because section 641.513(5) does not authorize a private cause of action for its violation. Thus, Merkle must assert his claims through an alternative dispute resolution process provided for in section 408.7057, Florida Statutes.
2. Merkle’s unjust enrichmenVquan-tum meruit claim fails to state a cause of action because it does not allege any ultimate facts to show that Merkle conferred a benefit on the HMOs, or that the HMOs voluntarily and knowingly accepted any benefit from Merkle.
3. Merkle’s claim for account stated fails to state a cause of action because the parties never agreed on the amount the HMOs would pay Merkle.
4. Merkle’s request for declaratory relief is a request for an impermissible advisory opinion because section 641.513(5) does not authorize a private cause of action.

The trial court held a consolidated hearing on the motions to dismiss, and entered four virtually identical orders granting the motions to dismiss, with prejudice, and entering final judgment in favor of the HMOs on all claims. The trial court concluded that:

1. No private right of action exists under section 641.513(5).
2. Merkle’s complaints failed to state a cause of action for unjust enrichment/quantum meruit because the HMOs received no benefit from Merkle.
3. The dismissal of Merkle’s unjust enrichment claim did not violate his fundamental right of access to the courts because any final agency order would be subject to appellate review.
4. Merkle’s claims for account stated failed to state a cause of action because the Explanation of Benefits attached to Merkle’s complaints showed that the HMOs did not agree to pay Merkle’s billed charges.
5. Granting Merkle leave to amend would be futile.

“In reviewing a motion to dismiss, a trial court is limited to the four corners of the complaint, and it must accept all the allegations in the complaint as true.” Royal & Sunalliance v. Lauderdale Marine Ctr., 877 So.2d 843, 845 (Fla. 4th DCA 2004) (citing Taylor v. City of Riviera Beach, 801 So.2d 259, 262 (Fla. 4th DCA 2001)). “ ‘Because a ruling on a motion to dismiss for failure to state a cause of action is an issue of law, it is renewable on appeal by the de novo standard of review.’ ” Royal & Sunalliance, 877 So.2d at 845 (quoting Bell v. Indian River Mem’l Hosp., 778 So.2d 1030, 1032 (Fla. 4th DCA 2001)).

Merkle argues first that the trial court erred in finding that section 641.513(5) does not imply a private right of action. We agree. Merkle relies on the recent Fifth District decision in Adventist Health System/Sunbelt, Inc. v. Blue Cross & Blue Shield, 934 So.2d 602 (Fla. 5th DCA 2006).

Adventist Health is directly analogous to the instant case. In Adventist Health, a hospital providing emergency treatment to HMO subscribers brought a declaratory judgment complaint against the HMO seeking an interpretation of section 641.513(5). 934 So.2d at 603. The HMO argued that it was obligated only to pay an amount equal to 120% of Medicare reimbursement rates. Id. The hospital argued that section 641.513(5) required the HMO to pay the “ ‘usual and customary provider charges for similar services in the community.’ ” Adventist Health, 934 So.2d at 603. The appellate court recognized the distinction set forth in Murthy v. N. Sinha Corp., 644 So.2d 983 (Fla.1994), between statutes that “purport to establish civil liability” and statutes that “merely [make] provision to secure the safety or welfare of the public as an entity.” Adventist Health, 934 So.2d at 604 (quoting Murthy, 644 So.2d at 986). The court recognized that “ ‘[i]n general, a statute that does not purport to establish civil liability but merely makes provision to secure the safety or welfare of the public as an entity, will not be construed as establishing civil liability.’ ” Id. The court concluded that:

[Section 641.513(5) ] ... does establish civil liability. This the litigants acknowledge. The dispute here is not whether liability is imposed by the statute, but the methodology for use in establishing the amount of that liability and the applicable enforcement remedy. Under these circumstances, a private right of action may be implied.

Adventist Health, 934 So.2d at 604 (citing Murthy, 644 So.2d at 986) (footnotes omitted).

In reaching this conclusion, the court in Adventist Health distinguished three cases that the HMOs in the present case rely on: Villazon v. Prudential Health Care Plan, Inc., 843 So.2d 842 (Fla.2003); Fla. Physicians Union, Inc. v. United Healthcare of Fla., Inc., 837 So.2d 1133 (Fla. 5th DCA 2003); and Greene v. Well Care HMO, Inc., 778 So.2d 1037 (Fla. 4th DCA 2001). In Villazon, the personal representative of an HMO subscriber brought a wrongful death action based on negligence against the subscriber’s doctor and HMO. 843 So.2d at 844. The personal representative claimed that the HMO “ ‘assumed a non-delegable duty to render medical care to his wife in a non-negligent manner when she purchased health care coverage from [the HMO].’ ” Id. at 852 (quoting Villazon v. Prudential Health Care Plan, Inc., 794 So.2d 625, 628 (Fla. 3d DCA 2001)). The personal representative claimed that the nondelegable duty arose under the Health Maintenance Organization Act (“HMO Act”), sections 641.17-641.3923, Florida Statutes (2000). Villazon, 843 So.2d at 852. The Supreme Court of Florida concluded that a private right of action could not be implied under the HMO Act absent an expression of legislative intent to do so. Id. (citing Murthy, 644 So.2d at 986). The supreme court distinguished the HMO Act from acts like the nursing home statute, where the legislature expressly recognized a right of nursing home residents to receive adequate health care and a corresponding private right of action for deprivation of the residents’ rights. Villazon, 843 So.2d at 852 (citing § 400.022(1)(Z), Fla. Stat. (1997); § 400.023(1), Fla. Stat. (1997)). The supreme court refused to imply a private cause of action where the legislature did not specifically provide for one.

In Florida Physicians, an organization representing medical care providers filed suit against an HMO seeking a declaration that the HMO violated section 641.3903, Florida Statutes, by engaging in various payment methods. Florida Physicians, 837 So.2d at 1134. The trial court dismissed the action, ruling that section 641.3903 did not provide a private cause of action. Id. at 1134-35. The appellate court agreed, concluding that the action merely sought an advisory opinion because the statute did not “expressly or impliedly [authorize] a private suit brought for purposes of enforcing or declaring violations of the statute.” Id. at 1137.

In Greene, an HMO subscriber alleged that the HMO’s “failure to honor her claim for benefits constituted bad faith handling of a claim and unfair trade practice in violation of sections 641.3901-3905 and 624.155, Florida Statutes (1997).” 778 So.2d at 1039. The HMO subscriber in Greene argued that the trial court erred when it found that the HMO Act did not authorize a private cause of action. Id. at 1039. This court disagreed and declined to imply a bad faith or unfair trade practice cause of action in the HMO Act. Id. at 1040. Instead, this court directed that the HMO subscriber could pursue breach of contract and tort law claims against the HMO based on common law principles. Id. at 1041-42.

In Adventist Health, the appellate court found the holdings in Villazon, Florida Physicians and Greene inapplicable to section 641.513(5). Adventist Health, 934 So.2d at 604. In Adventist Health, the appellate court concluded:

We think Floñda Physicians is distinguishable. The statute at issue there did not purport to establish civil liability. Rather, it merely made provision for the safety and welfare of the public by declaring certain business practices by HMOs to be unfair and deceptive and empowering the Department of Insurance to investigate and punish offenders.

Adventist Health, 934 So.2d at 604 (citing Murthy, 644 So.2d at 986). The appellate court went on to note that Villazon and Greene were similarly distinguishable. Adventist Health, 934 So.2d at 604 n. 3.

As recognized in Adventist Health, the cases of Villazon, Floñda Physicians and Greene are distinguishable from the instant case. First, Villazon, Floñda Physicians and Greene are specifically limited to provisions in the HMO Act, sections 641.17-641.3923. Section 641.513(5), at issue in this case, is not part of the HMO Act. Rather, it is included within part III of Chapter 641. Second, unlike 641.513(5), each of the statutory provisions at issue in Villazon, Floñda Physicians and Greene were aimed specifically at protecting the public as an entity; i.e.: preventing negligence, unfair and deceptive trade practices and bad faith. Section 641.513(5) is aimed at protecting non-participating providers who must provide emergency medical services to HMO subscribers, ensuring they are compensated fairly. The question is not whether the HMOs are liable under section 641.513(5), but rather what is the appropriate method for determining the extent of that liability. Adventist Health, 934 So.2d at 604.

Not only is the instant case distinguishable from Villazon, Floñda Physicians and Greene, but it is well-settled in Florida that “[i]t must be assumed that a provision enacted by the legislature is intended to have some useful purpose.” Smith v. Piezo Tech. & Prof'l Adm’rs, 427 So.2d 182, 184 (Fla.1983) (citing Girard Trust Co. v. Tampashores Dev. Co., 95 Fla. 1010, 117 So. 786 (1928)). In Smith, the Supreme Court of Florida implied a statutory cause of action for the wrongful discharge of employees who sought workers’ compensation benefits. 427 So.2d at 183-84. The supreme court acknowledged that “because the legislature enacted a statute that clearly imposes a duty and because the intent of the section is to preclude retaliatory discharge, the statute confers by implication every particular power necessary to insure the performance of that duty.” Id. at 184 (citing Mitchell v. Maxwell, 2 Fla. 594 (1849)). Section 641.513(5) clearly imposes a duty on HMOs to reimburse non-participating providers according to the statute’s dictates, not based on Medicare reimbursement rates. The intent of the section is to ensure that the non-participating providers are adequately paid for a service they are required by law to perform. See § 641.513(2), Fla. Stat. (2003) (“[p]rehospital and hospital-based trauma services and emergency services and care must be provided to a subscriber of a health maintenance organization as required under ss. 395.1041, 395.4045, and 401.45”).

The HMOs contend also that this court’s decision in Plantation General Hospital Ltd. Partnership v. Horowitz, 895 So.2d 484 (Fla. 4th DCA 2005), rev. granted, 924 So.2d 808 (Fla.2006), supports their argument that no private right of action may be implied in this case. There, the plaintiff, who held an unsatisfied medical malpractice judgment against an uninsured physician, sought recovery under section 458.320, Florida Statutes (2004), from the hospital which granted staff privileges to the physician. Horowitz, 895 So.2d at 485-86. Section 458.320 in part requires licensed physicians to establish financial responsibility to satisfy malpractice judgments by specified methods. This court concluded in Horowitz that:

We are unable to find any indication anywhere in the entire statutory scheme that a money damages remedy against a hospital is within any legislative purpose discernible from the text adopted. From the statute itself, we are unable to find any legal justification for any kind of money damages remedy against the hospital under any theory.

895 So.2d at 488. Thus, a court may imply a private cause of action only where the statutory scheme and statute itself indicate a legislative purpose to do so. Id. at 487-88.

Horowitz is inapposite to this case. Unlike Horowitz, this is not a case where we are unable to find any justification in the statutory scheme or text for any kind of money damages remedy against the HMOs under any theory. Parties have “the right to maintain a private cause of action as the persons the legislature intended to protect by the enactment” of a particular statute. Moyant v. Beattie, 561 So.2d 1319, 1320 (Fla. 4th DCA 1990). In enacting 641.513(5), the legislature intended to protect not only subscribers, but also nonparticipating providers. As the amici curiae supporting Merkle’s position point out, the terms of section 641.513(5) are obligatory (“shall”). Further, legislative history confirms that the legislature intended nonparticipating providers to be reimbursed in accordance with the statute. See Fla. H.R. Comm, on Health Care, CS for HB 979 (1996) Bill Analysis 4 (May 14, 1996) (on file with comm.) (indicating that the legislature intended “that subscribers will receive needed services for which hospitals and emergency room physicians will receive reimbursement”).

The HMOs argue further that the only avenues for vindication of Merkle’s rights under section 641.513(5) are either (1) filing a claim under ERISA, the federal Employee Retirement Income Security Act, or (2) participating in the alternative dispute resolution process established in section 408.7057, Florida Statutes. We decline to address ERISA’s applicability to this case, as the issue was not discussed or raised below, and we disagree with the HMOs’ contention that dispute resolution under section 408.7057 is mandatory. Section 408.7057(2)(a), Florida Statutes (2005), provides in pertinent part, that:

[T]he [Florida Agency for Health Care Administration (AHCA) ] shall establish a program by January 1, 2001, to provide assistance to contracted and non-contracted providers and health plans for resolution of claim disputes that are not resolved by the provider and the health plan. The agency shall contract with a resolution organization to timely review and consider claim disputes submitted by providers and health plans and recommend to the agency an appropriate resolution of those disputes.

There is no indication in section 408.7057 that the dispute resolution process is mandatory. In Adventist Health, the court noted the following:

We disagree that anything in the language of the statute manifests an intent by the Legislature to confer upon [AHCA] exclusive jurisdiction to resolve this dispute, nor do we agree that the statutory, voluntary dispute resolution process established pursuant to section 408.7057, Florida Statutes (2005), must first be exhausted. Although not determinative, it is noteworthy that the AHCA responded to a complaint made by Florida Hospital involving the instant dispute by stating that it “‘does not have specific rule making authority to determine what specific payment amounts would comply with Section 641.513(5)(b), Florida Statutes.Instead, the AHCA directed the parties to bring this issue before a ‘court of competent jurisdiction or the provider dispute resolution program as outlined in section 408.7057.’

934 So.2d at 604 n. 2; see also Found. Health v. Garcia-Rivera, M.D., 814 So.2d 537, 538 (Fla. 3d DCA 2002) (finding that class action proceedings may be appropriate despite arbitration provisions in agreements between providers and HMOs). Thus, while the dispute resolution process under section 408.7057 may provide an adequate review of a non-participating provider’s claims under section 641.513(5), it is not the only avenue of review.

Thus, we find that the trial court erred in concluding that section 641.513(5) does not imply a private cause of action.

Merkle’s next argument on appeal is that the trial court erred in failing to grant it leave to amend its complaints to assert a third-party beneficiary claim under Westside EKG Associates v. Foundation Health, 932 So.2d 214 (Fla. 4th DCA), rev. granted, 917 So.2d 193 (Fla.2005). We disagree. “Failure to seek leave of court or written consent of [the] adverse party to amend [a] complaint prior to dismissal with prejudice and failure to then move for a rehearing requesting leave to amend, precludes raising [the] issue for [the] first time on appeal.” Johnson v. RCA Corp., 395 So.2d 1262, 1263 (Fla. 3d DCA 1981); see also Century 21 Admiral’s Port, Inc. v. Walker, 471 So.2d 544, 544 (Fla. 3d DCA 1985); Hohenberg v. Kirstein, III, 349 So.2d 765, 766-67 (Fla. 3d DCA 1977). The record reveals that Merkle was aware of Westside’s holding before the trial court dismissed its claims, but failed to seek leave of court or consent of the HMOs to amend its complaints. Further, Merkle never sought leave to amend by moving for a rehearing. Accordingly, Merkle may not be heard for the first time on appeal regarding its right to amend its complaint to add a third-party beneficiary claim.

Merkle claims also that the trial court erred in dismissing its unjust enrichment claims on the basis that Merkle conferred no benefit on the HMOs. We agree. In Hillman Construction Corp. v. Wainer, 636 So.2d 576 (Fla. 4th DCA 1994), this court explained:

The elements of a cause of action for unjust enrichment are: (1) plaintiff has conferred a benefit on the defendant, who has knowledge thereof; (2) defendant voluntarily accepts and retains the benefit conferred; and (3) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying the value thereof to the plaintiff.

Id. at 577 (citing Henry M. Butler, Inc. v. Trizec Props., Inc., 524 So.2d 710 (Fla. 2d DCA 1988)). This court went on to state that “[c]omplaints should not be dismissed for failure to state a cause of action unless the movant can establish beyond any doubt that the claimant could prove no set of facts whatever in support of his claim.” Hillman Constr. Corp., 636 So.2d at 578 (citing Martin v. Highway Equip. Supply Co., 172 So.2d 246 (Fla. 2d DCA 1965)). In reviewing the dismissal of a claim, the appellate court “do[es] not consider the ultimate merits of [a party’s] claim, but merely whether [the party] can plead it.” Greenfield v. Manor Care, Inc., 705 So.2d 926, 931 (Fla. 4th DCA 1997) (citing Hillman Constr. Corp., 636 So.2d at 577), overruled on other grounds, Beverly Enters.Fla., Inc. v. Knowles, 766 So.2d 335 (Fla. 4th DCA 2000).

In the instant ease, the trial court found, as a matter of law, that “any benefit from services rendered by Merkle flowed to emergency room patients, not [the HMOs].” However, as Merkle argues, this conclusion defies the dictates of Hillman and Greenfield. The trial court should not have considered the ultimate merits of Merkle’s unjust enrichment claim at the motion to dismiss stage. Merkle alleged facts sufficient to support its argument that Merkle’s treatment of the subscribers conferred a benefit on the HMOs. The complaints also alleged the elements of an unjust enrichment/quantum meruit claim.

Merkle’s next argument on appeal is that the trial court erred in dismissing Merkle’s account stated claims. We disagree. “For an account stated to exist, there must be agreement between the parties that a certain balance is correct and due and an express or implicit promise to pay this balance.” Carpenter Contractors of Am., Inc. v. Fastener Corp. of Am., Inc., 611 So.2d 564, 565 (Fla. 4th DCA 1992) (citing Merrill-Stevens Dry Dock Co. v. Corniche Exp., 400 So.2d 1286 (Fla. 3d DCA 1981)). Merkle contends that sections 641.513(2) and 641.513(5) create an implied agreement between Merkle and the HMOs as to the balance owed by the HMOs. However, this argument is tenuous, at best. Merkle’s entire lawsuit is premised on the HMOs’ failure to pay according to their statutory obligations, which compels the conclusion that there is no agreement between Merkle and the HMOs as to the balance that is due and owing. As the HMOs argue, the Explanation of Benefits attached to each of Mer-kle’s complaints illustrates that the parties have failed to reach an agreement on what amount is owed to Merkle in these cases. “ ‘If an exhibit facially negates the cause of action asserted, the document attached as an exhibit controls and must be considered in determining a motion to dismiss.’ ” Shumrak v. Broken Sound Club, Inc., 898 So.2d 1018, 1020 (Fla. 4th DCA 2005) (quoting Fladell v. Palm Beach County Canvassing Bd., 772 So.2d 1240, 1242 (Fla.2000)). Accordingly, the trial court did not err in dismissing Merkle’s account stated claims.

Merkle’s last argument is that the trial court erred in dismissing its claim for declaratory relief pursuant to section 86.021, Florida Statutes (2005), to clarify its rights, and those of the putative class, under section 641.513(5). In Adventist Health, the court reversed the trial court’s dismissal of a provider’s declaratory judgment complaint seeking an interpretation of section 641.513(5)(b). Adventist Health, 934 So.2d at 604. The court concluded:

Because a civil remedy exists, whether arising from statute or common law, a request for declaratory relief is authorized because an actual dispute, not merely a hypothetical one, exists between the parties.
Here, the request for a declaration falls squarely within the plain language of the declaratory judgment statute. The request involves an actual controversy between two parties who have an ongoing dispute concerning the meaning of the statute. Unquestionably, the parties’ transactions are governed by the statute. The request for judicial construction of the statute, therefore, is proper.

Id. Because we agree with the court’s reasoning in Adventist Health, we conclude that the trial court erred in dismissing Merkle’s claims for declaratory relief.

We affirm the trial court’s dismissal of Merkle’s account stated claims, but reverse the trial court’s dismissal of Merkle’s remaining claims and remand for further proceedings.

Affirmed in Part, Reversed in Part, and Remanded.

SHAHOOD, J., concurs.

STONE, J., concurs in part and dissents in part with opinion.

STONE, J.,

concurring in part and dissenting in part.

As to dismissal of the count for unjust enrichment, I would affirm. In all other respects, I concur fully with the opinion.

      . These four cases were consolidated for the purposes of appeal.

      . Two amici curiae briefs were filed in this case on behalf of Merkle’s position. The first brief was filed by the Florida Hospital Association, Florida College of Emergency Physicians, Florida Medical Association, the American Medical Association, the American College of Emergency Physicians and the Florida Orthopaedic Society. The second brief was filed by the Florida Society of Pathologists and the American Pathology Foundation.

      . The HMOs argue correctly that the dispute resolution process results in final agency orders that may be appealed to the district courts of appeal, and that AHCA can order HMOs to make additional payments to providers on disputed claims submitted to the dispute resolution program. See § 408.7057, Fla. Stat. (2005); § 120.68(1), Fla. Stat. (2005); Fla. Admin. Code R. 59A-12.030(3)(4) (2006); Fla. R.App. P. 9.030.

      . Merkle argues also that the dispute resolution process cannot be the exclusive remedy because the enabling statute, section 408.7057, was passed years after section 641.513(5). Before the availability of the dispute resolution process, then, AHCA could presumably only levy fines and impose administrative sanctions, but not order appropriate reimbursement. A legal action would have been necessary.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    M.U., and O.U., Individually, etc., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D06-467.
    District Court of Appeal of Florida, Fifth District.
    Oct. 24, 2006.
    Jerri A. Blair, Tavares, for Appellant.
    Ralph J. McMurphy, of Department of Children & Families, Wildwood, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Guardian Ad Litem Program v. Department of Children and Families, 936 So.2d 1183 (Fla. 5th DCA 2006).

SAWAYA, ORFINGER and EVANDER, JJ., concur.


text:
    Jamal J. GAZALEH, Appellant, v. Christine REEVES, Appellee.
    No. 1D06-1409.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2006.

      Elaine L. Cooper of the Law Office of Thaxter A. Cooper, P.A., Tampa, for Appellant.
    Michael R. Yokan, Jacksonville, for Ap-pellee.
   PER CURIAM.

Appellant, Jamal J. Gazaleh, appeals the trial court’s Final Judgment of Paternity (“Final Judgment”), raising three arguments on appeal, only one of which merits discussion. Appellant contends that the trial court abused its discretion in ordering him to obtain and maintain a life insurance policy to secure his child support obligation because it failed to make the requisite findings. We agree and, therefore, reverse the Final Judgment as to this issue and remand. We otherwise affirm the Final Judgment.

As we have explained, before a trial court orders a party to obtain and maintain a life insurance policy, it is required to make findings with regard to the necessity for the coverage. See Schoditsch v. Schoditsch, 888 So.2d 709, 709 (Fla. 1st DCA 2004). In determining necessity, a trial court should consider the financial impact on the obligor and the cost and availability of the coverage. Id.; see also Smith v. Smith, 912 So.2d 702, 704 (Fla. 2d DCA 2005) (noting that to require a life insurance policy, a trial court must make findings as to the availability and cost of insurance, the obligor’s ability to pay, and the special circumstances that warrant the policy); Guerin v. DiRoma, 819 So.2d 968, 969 (Fla. 4th DCA 2002) (reversing the insurance protection requirement in the final judgment because the trial court did not make any finding with respect to the necessity for insurance protection or the obligor’s ability to pay for the life insurance policy). Appellee, Christine Reeves, concedes that the trial court did not make the requisite findings in this case.

Accordingly, we REVERSE the Final Judgment as to this issue and REMAND for further proceedings.

WOLF, LEWIS, and THOMAS, JJ., concur.


text:
    Jeromy J. BAUTZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3550.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 2006.

      Jeromy J. Bautz, Arcadia, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed, without prejudice to appellant filing a motion in the circuit court that includes the oath required by Florida Rule of Criminal Procedure 3.850 no later than thirty (30) days from the date of this opinion or the time remaining for such a motion under rule 3.850, whichever comes later.

GUNTHER, WARNER and MAY, JJ., concur.


text:
    Shannon M. LYLE, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D06-3923.
    District Court of Appeal of Florida, First District.
    Oct. 26, 2006.
    Shannon M. Lyle, pro se, Appellant.
    Charlie Crist, Attorney General, and Rosa Carson, General Counsel, Florida Department of Corrections, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order dated August 24, 2006, the appeal is hereby dismissed. Gibson v. McDonough, 937 So.2d 721 (Fla. 1st DCA 2006).

ALLEN, BENTON, and HAWKES, JJ., concur.


text:
    DEVEREUX FLORIDA TREATMENT NETWORK, INC., Petitioner, v. Kenneth McINTOSH, Individually, Etc., Respondent.
    No. 5D06-1195.
    District Court of Appeal of Florida, Fifth District.
    Oct. 27, 2006.

      Hinda Klein of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Petitioner.
    Dean Mosley of Mosley and Mosley, Attorneys at Law, P.A., Orlando, and Thomas J. Brown of Brown and Brown, Attorneys at Law, P.A., Tallahassee, for Respondent.
   PER CURIAM.

Devereux Florida Treatment Network, Inc., (“Devereux”), seeks certiorari review of an order overruling its objections to a subpoena duces tecum for trial. We grant the petition, and quash the order.

In 1999, Kenneth McIntosh filed suit against Devereux alleging that it was negligent in its care of his minor daughter. Devereux operates a private residential treatment facility for children with severe emotional and mental disorders. McIntosh’s daughter was involuntarily committed into Devereux’s facility, where it is alleged that she was raped by another Devereux patient, Levar Burke, in late 1995 or early 1996. According to McIntosh’s complaint, Burke had a prior conviction for sexual assault, and Devereux failed to take reasonable steps to protect McIntosh’s daughter from this known predator.

Discovery proceeded for six years, with a discovery cut-off of January 2, 2005, and trial set to begin two weeks later. On January 5, 2005, McIntosh served Dever-eux with a subpoena duces tecum for trial, which requested: (1) all records relating to Levar Burke; (2) all complaints, logs of calls or reports by Devereux clients to the Florida Department of Children and Families, (“DCF”), or the Florida Department of Health and Rehabilitative Services, (“HRS”), from 1993 to present; and (3) all investigative reports or documents maintained by or in the possession of Devereux. The records relating to Levar Burke had already been produced during discovery, and prompted no objection from Devereux. However, items (2) and (3) of the subpoena required Devereux to produce, at trial, documents that had either never been requested during discovery or, if requested, were properly objected to and never the subject of a motion to compel. Therefore, no materials responsive to items (2) or (3) were ever produced during the six-year discovery process.

On January 7, 2005, two days after service of the subpoena, Devereux’s counsel filed its response to the subpoena and raised numerous objections to producing items (2) and (3) for trial, including various statutory privileges. At trial, which began on January 10, 2005, McIntosh’s counsel complained when Devereux failed to produce all documents called for by the subpoena. Devereux argued that it had properly objected, and that McIntosh was attempting to misuse a trial subpoena to avoid the previously-imposed discovery deadlines.

The trial court would have acted well within its discretion if it had simply sustained Devereux’s objection on procedural grounds. Absent extraordinary circumstances not apparent here, a party should not be allowed to use a trial subpoena as a substitute for a timely request for production of documents. E.g., Ohio Casualty Ins. Co. v. Jackman, 621 So.2d 531 at n. 1 (Fla. 2d DCA 1993) (“We do not condone any practice that attempts to circumvent the time frames and procedures set forth in the rules [of civil procedure].”). While there is no requirement that every document sought for production at trial must have been the subject of a prior discovery request, in this case it appears from our review of the record that McIntosh’s broad subpoena was a “fishing expedition.” In fact, McIntosh never even attempted to articulate why the subpoenaed documents were needed for trial. Instead, he argued that the documents might ultimately lead to the discovery of admissible evidence. However, discovery had ended. The trial had started. The issue, at that point, should not have been whether the documents were discoverable, but whether McIntosh could demonstrate that they were needed for trial. Since McIntosh admitted that he could not even assess whether the documents would be relevant to any issue in the litigation unless they were first produced for review, he certainly could not demonstrate their necessity for trial.

However, instead of simply sustaining Devereux’s objection, the trial judge attempted to oversee the new discovery dispute during the course of the trial, ordering documents for inspection, conducting multiple hearings, and reviewing documents with counsel. Ultimately, the judge determined that he could not simultaneously conduct the trial and oversee resolution of the discovery issues raised by the trial subpoena. So, on the fifth day of trial, the judge declared a mistrial, sent the jury home, and continued dealing with the issues raised by the subpoena. Ultimately, the court overruled Devereux’s objections and ordered production of the documents. We find that this ruling constituted a departure from the essential requirements of the law in that it requires Devereux to produce certain documents that are clearly privileged, with no showing that the documents are relevant to any issue in the litigation.

First, Devereux was ordered to produce records that included all abuse reports to HRS. However, under section 39.202, Florida Statutes, all unfounded reports of child abuse (until September 30, 1995), are privileged and inadmissible in any private negligence action. Therefore, an order requiring production of documents evidencing any unfounded reports of child abuse (covering this period) constitutes a departure from the essential requirements of the law. E.g., Cebrian ex rel. Cebrian v. Klein, 614 So.2d 1209 (Fla. 4th DCA 1993).

Second, Devereux was ordered to produce documents that may include clinical psychiatric records of its patients. Under section 394.4615(1), Florida Statutes, these records are to be kept confidential unless confidentiality is “waived by express and informed consent, by the patient or the patient’s guardian.” Where there is no express waiver, a court may order production of clinical records, but only upon a finding that the need for disclosure outweighs the possible harm to the patients whose records are being sought. E.g., Community Psychiatric Centers of Florida, Inc. v. Bevelacqua, 673 So.2d 948 (Fla. 4th DCA 1996). In this case, the trial court did not even attempt to weigh the need for disclosure against the interest of the other patients at Devereux whose records McIntosh sought. Instead, the judge simply ruled that although the vast majority of the records appeared to have no relevance to any issue in the litigation, production could “theoretically” lead to the discovery of admissible evidence. This constituted a departure from the essential requirements of the law. Id.

Third, although certiorari generally will not lie to address an order requiring the production of irrelevant documents, Colbert v. Rolls, 746 So.2d 1134 (Fla. 5th DCA 1999), we fail to see how reports regarding incidents occurring years after Devereux’s alleged negligence in this case could be even remotely relevant to any issue to be raised at the trial of this case. See Tanchel v. Shoemaker, 928 So.2d 440 (Fla. 5th DCA 2006) (granting certiorari and quashing discovery order requiring production of patient records generated years after alleged negligence). Therefore, McIntosh’s trial subpoena was so clearly overbroad that the trial court’s order overruling Devereux’s objections constituted a departure from the essential requirements of the law. Id.

For these reasons, we grant the petition for writ of certiorari, and quash the order under review.

PETITION GRANTED; ORDER QUASHED.

PALMER, MONACO and LAWSON, JJ., concur.

      . Devereux argues that some of the documents were also protected from discovery by section 456.057, Florida Statutes (providing limited confidentiality for medical records) and section 90.503, Florida Statutes (the psychotherapist-patient privilege). Given our decision to quash the trial court’s order on other grounds, we need not address these issues.


author: KELLY, Judge.

text:
    Richard SOLA, Appellant, v. Sylvette Noemi SOLA, Appellee. Sylvette Noemi Sola, Appellant, v. Richard Sola, Appellee. Richard Sola, Appellant, v. Sylvette Noemi Sola, Appellee.
    Nos. 2D05-1145, 2D05-3392, 2D05-4061.
    District Court of Appeal of Florida, Second District.
    Oct. 27, 2006.
    Joseph R. Park and Michael J. Park of Park & Ossian, P.A., Clearwater, for Appellant.
    David A. Maney and Patricia Kuhlman of Maney, Damsker, Jones & Kuhlman, P.A., Tampa, for Appellee.
   CONSOLIDATED

KELLY, Judge.

In these consolidated cases, the parties appeal from the final judgment dissolving their marriage and from the order awarding attorney’s fees and costs. Richard Sola (the husband) challenges the permanent periodic alimony award to Sylvette Noemi Sola (the wife). Both parties challenge the trial court’s award of attorney’s fees and costs. Because the alimony award is based in part on an expense the wife no longer has, we reverse the alimony award. We affirm the award of attorney’s fees and costs and remand for further proceedings.

As part of the equitable distribution of the parties’ assets, the wife was awarded the marital residence valued at $880,000. The husband contends that because he had satisfied the mortgage on the marital residence before the final hearing, the trial court erred in including the $8,788 monthly mortgage payment in the wife’s alimony award. We agree.

“The purpose of permanent periodic alimony is to provide for the needs and necessities of life for a former spouse as they were established during the marriage of the parties.” Mallard v. Mallard, 771 So.2d 1138, 1140 (Fla.2000); see also Tarkow v. Tarkow, 805 So.2d 854, 856 (Fla. 2d DCA 2001). The trial court should determine the payee spouse’s need based upon circumstances that exist at the time of the final dissolution hearing. Italiano v. Italiano, 873 So.2d 558, 560 (Fla. 2d DCA 2004); see also LaSala v. LaSala, 806 So.2d 602, 604 (Fla. 4th DCA 2002). At the time of the final hearing, the wife no longer had the expense of the mortgage payment. Accordingly, the trial court should not have considered it in determining the wife’s need for alimony. Cf. Loss v. Loss, 714 So.2d 1093, 1094 (Fla. 4th DCA 1998) (holding that a reduction in alimony in the amount of a monthly mortgage payment is proper where the party responsible for the monthly payment satisfies the mortgage). On remand, the trial court is directed to reduce the alimony award by $3,788.

Both parties challenge the trial court’s award of attorney’s fees; however, we cannot conclude that the award constituted an abuse of the trial court’s discretion. See Rosen v. Rosen, 696 So.2d 697, 700 (Fla.1997). Therefore, we affirm the award of attorney’s fees and costs. On remand, however, the trial court should reconsider this award, as well as the award of child support, in light of the reduction in the wife’s alimony award. We affirm the final judgment of dissolution in all other respects.

Affirmed in part, reversed in part, and remanded.

ALTENBERND, J., and FOSTER, ROBERT A., Associate Judge, Concur.

      . The reduction should be applied to both the prospective and retroactive periods for which alimony was awarded.


author:
BENTON, J.
      SILVERMAN, SCOTT J., Associate Judge,

text:
    Theron REMINGTON, Appellant, v. CITY OF OCALA/UNITED SELF INSURED, Appellees.
    No. 1D05-6038.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2006.

      Todd J. Sanders and Kelli Biferie Hastings of Bichler & Kelley, P.A., Winter Park, for Appellant.
    Mary L. Wakeman and Betty D. Marion of McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A., Tallahassee, for Appel-lees.
   BENTON, J.

Theron Remington appeals the final order denying the petition for benefits he filed seeking to recover transportation costs necessarily incurred in obtaining medicines prescribed by his authorized treating physicians. The judge of compensation claims ruled that “Florida workers’ compensation law does not require an employer or carrier to provide reimbursement to an injured worker for travel related to obtaining prescription drugs or other pharmacy supplies.” We reverse and remand for further proceedings.

The employer’s responsibility to furnish medicines that authorized physicians prescribe is not in question. At the time of the claimant’s initial compensable injury in December of 1997, as well as at the time of his second compensable injury in May of 2002, the Florida’s Workers’ Compensation Act provided:

Subject to the limitations specified elsewhere in this chapter, the employer shall furnish to the employee such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or the process of recovery may require, including medicines, medical supplies, durable medical equipment, orthoses, prostheses, and other medically necessary apparatus.

§ 440.13(2)(a), Fla. Stat. (2001) (emphasis supplied); § 440.13(2)(a), Fla. Stat. (1997) (emphasis supplied). Under the Act, the word “ ‘[mjedicine’ means a drug prescribed by an authorized health care provider _” § 440.13(l)(n), Fla. Stat. (2001); § 440.13(l)(n), Fla. Stat. (1997).

Asked in Mobley v. Jack & Son Plumbing, 170 So.2d 41 (Fla.1964), to decide whether this statutory language required an employer to furnish injured employees “travel expenses incident to medical treatment,” id. at 46, along with the cost of the medical treatment itself, our supreme court answered with what remains the definitive construction of the statute:

Chapter 440 does not specifically require or authorize payment of travel expenses incurred in obtaining medical treatment. Nevertheless, we are of the view that Section 440.13, which requires the employer to furnish to the employee “such remedial treatment, care and attendance” as the injury shall require, must be interpreted to include reasonable travel expenses incurred by the employee in presenting himself at the place where such treatment and care is provided.
There can be no doubt that the Legislature intended that an injured employee be given medical treatment at the expense of the employer-carrier and without expense to himself. This legislative intent would not be fully accomplished if the employee were required to pay his own travel expenses necessarily incurred in obtaining medical treatment.
We doubt that anyone would question payment of an ambulance charge for transporting an injured employee to or from his home when necessary in the course of his treatment. Yet, technically, such a charge is not for “remedial treatment, care and attendance.” Again, if a claimant were to be offered treatment by the employer at one of the out of state clinics, failure of the employer to also furnish travel expenses would make the offer of treatment an empty gesture. These two illustrations may be said to be unusual, but, as we view the question, the difference in the cited situations and travel by a claimant from his home to a doctor or hospital is one only in degree, not in kind.
Considering the purposes of the Workmen’s Compensation Act and the benefits to be given injured employees by its terms, we conclude that travel expenses necessarily incurred in enjoying the medical benefits provided by the Act are an incident of medical care and treatment. Therefore, the employer-carrier must either furnish such transportation or pay claimant the reasonable actual cost thereof.

Id. at 47. While the supreme court was concerned in Mobley with the cost necessitated in transporting a claimant “from his home to a doctor or hospital” to obtain care or treatment from medical personnel, we see nothing in principle that justifies a different result for transportation costs necessarily incurred to obtain treatment from medicines.

I.

Ever since it was decided, the Mob-ley decision has remained controlling authority, see Sam’s Club v. Bair, 678 So.2d 902, 904 (Fla. 1st DCA 1996) (“[T]he legislature must be presumed to have continued its approval of the supreme court’s construction of this language in Mobley to permit reimbursement of medical transportation.”), statutory changes notwithstanding. The Legislature added a provision to section 440.13, after Mobley was decided, authorizing inclusion of certain medical mileage as “part of [an injured employee’s] remedial treatment, care, and attendance,” Ch. 77-290, § 3, at 1287, Laws of Fla., thereby adopting pro tanto the supreme court’s construction of statutory language that antedated (and survived) chapter 77-290. “[0]nce a court has construed a statutory provision, subsequent reenactment of that provision may be considered legislative approval of the judicial interpretation. Seddon v. Harpster, 403 So.2d 409 (Fla.1981).” Bair, 678 So .2d at 903.

When the Legislature later removed the medical mileage provision it had added in 1977, see Ch. 93-415, § 17, at 98-111, Laws of Fla., it was simply excising sur-plusage. We so held in Bair, where

[w]e conclude[d] that this omission did not abrogate the judicial construction in Mobley and its progeny that section 440.13(2)(a) implicitly authorizes such costs.
.... Although it might be reasonable to conclude that the legislature intended to eliminate reimbursement for costs of transportation by deleting that provision from the 1993 amendment, any such conclusion must be harmonized with the recognition that the legislature reenacted the long-standing requirement that the employer shall furnish “remedial treatment, care, and attendance for such period as the nature of the injury or the process o[f] recovery may require.” Accordingly, the legislature must be presumed to have continued its approval of the supreme court’s construction of this language in Mobley to permit reimbursement of medical transportation.
.... Presumably, the legislature omitted the costs provision with full knowledge that payment of costs would still be awarded as part of a claimant’s remedial treatment, care, and attendance, as held in Mobley, else it would have stated the contrary.

Bair, 678 So.2d at 903-04. See also Wal Mart Stores, Inc. v. Mann, 690 So.2d 649, 650 (Fla. 1st DCA 1997) (affirming award of medical mileage on the authority of Bair).

When, by enacting section 17 of chapter 93-415 of the Laws of Florida, the Legislature deleted the medical mileage provision that it had enacted after Mobley, Ch. 77-290, § 3, at 1287, Laws of Fla., the Legislature also added another provision for claiming and litigating transportation costs:

(2) The Office of the Judges of Compensation Claims shall review each petition and shall dismiss each petition, upon its own motion or upon the motion of any party, that does not on its face specifically identify or itemize the following:
(g) All travel costs to which the employee believes he is entitled, including dates of travel and purpose of travel, means of transportation, and mileage.

Ch. 93-415, § 25, at 137, Laws of Fla. (codified at § 440.192(2)(g), Fla. Stat. (Supp.1994)). In the decade since Bair was decided, the Legislature has left the pertinent language in sections 440.13(2)(a) and 440.192(2)(g) intact, other amendments to the Act notwithstanding. See, e.g., Ch. 2006-197, § 91, at 1625, Fla. Sess. Law Serv. (West) (amending section 440.13, Florida Statutes).

II.

Ostensibly recognizing the continued viability of Mobley and the authority of Bair’s holding to that effect, the judge of compensation claims purported to distinguish those eases and to limit the principle that animated them, ruling that section 440.13(2)(a) “does not require an employer or carrier to provide reimbursement to an injured worker for travel related to obtaining prescription drugs or other pharmacy supplies.” But the order under review identifies as its central underpinning a rationale that is antithetical to the teachings of Mobley and Bair and cannot be squared with their holdings. The order states:

To require the E/SA to reimburse an injured worker for travel expenses incurred in going to and from the pharmacy to obtain medicines prescribed by an authorized physician would require a conclusion that the act of going to the pharmacy constitutes treatment.
Therefore, since the act of going to a pharmacy does not fit within the definition of treatment, reimbursement of mileage for that kind of travel would not seem to be required....

The order below runs counter to every other decision on the point by a judge of compensation claims to which our attention has been drawn. See Mills v. Orange County Fire Rescue, OJCC No. 05-016395TWS, Order on Expedited Hr’g, at 3-4 (Dec. 14, 2005) (on file with clerk, Office of the Judge of Compensation Claims, Orlando District) (holding, “pursuant to Mobley ..., the Claimant is entitled to payment of pharmacy mileage” because “the definition of ‘treatment’ includes ‘medicine’ ”); Antonelli v. Orange County Fire Rescue, OJCC No. 96-002024WJC, Final Order on Expedited Hr’g, at 6 (Oct. 13, 2005) (on file with clerk, Office of the Judge of Compensation Claims, Orlando District) (concluding that “pharmacy bills and mileage related thereto constitutes medical care and treatment under § 440.13(2)(a)”); O’Donnell v. Laborer’s Int’l Union, OJCC No. 03-0250290RL, Compensation Order, at 9 (Apr. 6, 2004) (on file with clerk, Office of the Judge of Compensation Claims, Orlando District) (“Claimant is entitled to medical mileage for all treatment including the pharmacy mileage.”); Rodney v. Fla. Hosp., OJCC No. 02-0370570RL, Compensation Order, at 7 (Nov. 6, 2003) (on file with clerk, Office of the Judge of Compensation Claims, Orlando District); see also Cicero v. Sheraton Safari Hotel, OJCC No. 04-027315JPT, Order Approving Joint Stipulation for Att’ys Fees, at 1 (June 14, 2005) (on file with clerk, Office of the Judge of Compensation Claims, Orlando District) (approving employer’s stipulation to pay pharmacy mileage).

If medicines remain uncollected at a pharmacy, they do a claimant no good. The claimant in the present case does not contend that the act of driving to the pharmacy is therapeutic, just as the claimant in Mobley did not contend that driving to a hospital or to a doctor’s office was therapeutic. But transportation is necessary in all these instances for treatment to occur. This is not to say, of course, that a claimant must necessarily travel personally to a pharmacy to obtain medicines. But even if, for example, prescription drugs are periodically mailed to an injured employee, the requisite postage is a cost necessarily incurred to transport them to the point at which they can serve as the treatment the employer is responsible for providing. “The statutory obligation ... to furnish medical care includes ‘medicine’, and travel costs are reasonably due for obtaining medicine as part of treatment.” Antonelli, Final Order on Expedited Hearing, at 7 (“Clearly, if a Claimant has no ... means of transportation, the employer would be responsible ... to assist him in obtaining his medications.”).

Under the view espoused by the judge of compensation claims, in contrast, a worker rendered quadriplegic by an industrial accident might have to pay somebody out of his own pocket to deliver the drugs that his authorized physician prescribed for him, effectively suffering a reduction in indemnity benefits. This flies in the face of the construction our supreme court gave to the statute in Mobley, 170 So.2d at 47 (“There can be no doubt that the Legislature intended that an injured employee be given medical treatment at the expense of the employer-carrier and without expense to himself.”). Under the view espoused by the judge of compensation claims, would the cost of a claimant’s trip to a doctor’s office or to a hospital be compensable, even if the only purpose was to obtain a cortisone shot or some other medicine?

There is no basis in statute or case law for a distinction between transportation expenses incurred to obtain treatment (other than medicine) at a doctor’s office or hospital and transportation expenses incurred to obtain treatment from a pharmacy in the form of medicine. Section 440.13(2)(a) specifically includes “medicines” among the types of “treatment, care, and attendance” that an employer is legally obligated to provide a sick or injured employee. § 440.13(2)(a), Fla. Stat. (2001) (“[T]he employer shall furnish to the employee such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or the process of recovery may require, including medicines.... ”). Construing the language in section 440.13(2)(a), our supreme court plainly said that, where “travel expenses [are] necessarily incurred in enjoying the medical benefits provided by the Act,” the “employer-carrier must either furnish such transportation or pay claimant the reasonable actual cost thereof.” Mobley, 170 So.2d at 47.

III.

Although injured employees, not employers, have the right to choose their pharmacy or pharmacist, see § 440.13(3)(j), Fla. Stat. (2001); § 440.13(3)©, Fla. Stat. (1997) (“It is expressly forbidden for the division, an employer, or a carrier, or any agent ... to ... interfere in the selection by the sick or injured employee of a pharmacy or pharmacist.”), only transportation “expenses necessarily incurred,” Mobley, 170 So.2d at 47, are the employer’s responsibility.

In the proceedings below, the claimant sought to prove that he (or sometimes his wife) drove back and forth to the pharmacy nearest his home. The judge of compensation claims made no findings of fact, however, because the judge of compensation claims ruled that it was “unnecessary to address the other issues and defenses presented, such as the rate at which any travel should be reimbursed ... [and] the admissibility of some of the evidence sought to be introduced,” on account of his ruling — which we now reverse — that the cost of transporting pharmaceuticals is not reimbursable, as a matter of law. The questions surrounding the admissibility of some of the claimant’s evidence, the evidence itself, and other matters the judge of compensation claims did not reach will have to be addressed on remand, in light of our decision.

Reversed and remanded.

LEWIS, J., concurs.

SILVERMAN, SCOTT J., Associate Judge, dissents with opinion.

SILVERMAN, SCOTT J., Associate Judge,

dissenting.

I respectfully dissent from the majority’s opinion.

In my view, the majority is engaging in judicial legislation by creating an entitlement that simply does not exist under current Florida law. “It is axiomatic that courts may not rewrite legislation or fashion new law that they deem to be ‘fair’ and ‘just.’ ” Smith v. Crawford, 645 So.2d 513, 525 (Fla. 1st DCA 1994); see Holly v. Auld, 450 So.2d 217, 219 (Fla.1984). I would affirm the decision of the Judge of Compensation Claims (JCC) that a claimant’s reimbursement for medical mileage (which only exists by virtue of the Florida Supreme Court’s decision in Mobley v. Jack & Son Plumbing, 170 So.2d 41 (Fla.1964), and its progeny) does not include a contemporaneous or separate right to reimbursement for mileage resulting from travel to and from a pharmacy.

The majority does not cite a single source, nor does it reference any statute or case, which specifically provides for the reimbursement of mileage to and from a pharmacy. Instead, the majority is relying on Mobley and has chosen to extend its otherwise broad language to create a substantive right which has yet to be recognized or voted upon by Florida’s Legislature. While it may be sound policy to permit reimbursement for mileage to and from the pharmacy, the creation of any law relating to this workers’ compensation issue falls squarely before the Legislature and not the courts. Under our constitutional system, courts cannot legislate. See Art. II, § 3, Fla. Const.; State v. Wershow, 343 So.2d 605, 607 (Fla.1977) (citing State v. Egan, 287 So.2d 1 (Fla.1973)).

To further bolster its argument, the majority is relying upon opinions of the JCCs. However, with all due respect to the Office of the Judges of Compensation Claims (OJCC) cases cited by the majority, our court accords no deference to legal conclusions made by JCCs. See Mylock v. Champion Intern., 906 So.2d 363, 365 (Fla. 1st DCA 2005) (explaining that this court reviews a JCC’s interpretation of law de novo).

“[I]t is not a judicial function to add words to statutory language.” Nat’l Airlines, Inc. v. Div. of Employment Sec. of Fla. Dep’t of Commerce, 379 So.2d 1033, 1035 (Fla. 3d DCA 1980). Had the Legislature intended an entitlement to pharmaceutical mileage, it would have expressed itself by enacting appropriate legislation. “[CJourts have judicial power to interpret statutes, but that power cannot be used as a license to assume the prerogative of the legislature.” Closet Maid v. Sykes, 763 So.2d 377, 382 (Fla. 1st DCA 2000).

This court does not have the “liberty to disregard an applicable rule of law pronounced by the Florida Supreme Court.” Burke v. State, 672 So.2d 829, 831 (Fla. 1st DCA 1995). In Sam’s Club v. Bair, 678 So.2d 902, 903 (Fla. 1st DCA 1996), we concluded that Mobley survived the 1993 amendments to the Workers’ Compensation Act. Accordingly, we must accord the Mobley decision complete deference by following it obediently. However, the Court’s holding in Mobley was limited to reimbursement for medical mileage. It did not address whether mileage to and from the pharmacy was reimbursable.

The Workers’ Compensation Act “is a statutory substitute for common law rights and liabilities,” and must be “strictly construed to include only those subjects clearly embraced within its terms.... ” Fla. Birth-Related Neurological Injury Comp. Ass’n v. Fla. Div. of Admin. Hearings, 686 So.2d 1349, 1354 (Fla.1997). Nowhere in Chapter 440, Florida Statutes, does there appear any right for a claimant to be reimbursed for mileage to and from a pharmacy.

Accordingly, I dissent.


text:
    Thomas Joseph CUTAIA, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1443.
    District Court of Appeal of Florida, Fifth District.
    Oct. 31, 2006.
    Thomas Joseph Cutaia, Gainesville, pro se.
    Charles J. Crist, Jr. Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. Proc. 9.315(a).

SAWAYA, EVANDER and PALMER, JJ., concur.


text:
    Noel HAMLETT, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2982.
    District Court of Appeal of Florida, Fifth District.
    Oct. 31, 2006.
    James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Zuluaga v. State, 915 So.2d 1251 (Fla. 3d DCA 2005) and Hernandez v. State, 547 So.2d 138 (Fla. 3d DCA 1988).

THOMPSON, PALMER and TORPY, JJ., concur.


text:
    Hector RUIZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2734.
    District Court of Appeal of Florida, Fifth District.
    Oct. 31, 2006.

      Hector Ruiz, Okeechobee, pro se.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. Proc. 9.315(a).

SAWAYA, EVANDER and PALMER, JJ., concur.


text:
    Otis WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-1062.
    District Court of Appeal of Florida, Second District.
    Nov. 1, 2006.
    James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

Otis Wright appeals from his judgment and sentence for sexual battery and kidnapping. We find no merit in his arguments on appeal except for his claim that the trial court improperly assessed additional court costs in the amount of $150 pursuant to section 939.18(l)(a), Florida Statutes (2004). Section 939.18(l)(b) permits a court to impose this additional court cost if “it finds that the person has the ability to pay the additional assessment.” Because the trial court failed to make the requisite finding, that cost must be stricken from Wright’s sentence. On remand, the trial court may again assess this additional cost provided it finds that Wright has the ability to pay it. Accordingly, we reverse the portion of Wright’s sentence assessing $150 in additional court costs. The trial court shall strike this cost from the sentence. We otherwise affirm the judgment and sentence.

Affirmed in part, reversed in part, and remanded with directions.

NORTHCUTT and SALCINES, JJ., concur.

      . Wright preserved this argument by filing a rule 3.800(b) motion to correct sentence. The trial court granted the motion in part, but denied Wright's challenge to the imposition of costs.


author: LAWSON, C. ALAN, Associate Judge.

text:
    Jere Andre WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1975.
    District Court of Appeal of Florida, Second District.
    Nov. 1, 2006.
   LAWSON, C. ALAN, Associate Judge.

Jere Andre Walker appeals from the denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In denying Walker’s motion, the trial court misconstrued the basis for Walker’s claims and erroneously found that none were cognizable under rule 3.800(a). Because we find that two of Walker’s claims are cognizable under rule 3.800(a), we reverse and remand with instructions that the trial court consider the merits of these claims from Walker’s motion.

Walker’s motion alleges a number of errors to his criminal punishment score-sheet. In the order on appeal, the trial court summarily denied all of the claims, reasoning that Lomont v. State, 506 So.2d 1141 (Fla. 2d DCA 1987), precludes a defendant from raising scoresheet error claims in a rule 3.800(a) motion. However, Lomont involved a defendant’s claim that his scoresheet erroneously included crimes for which he had never been convicted as scored prior convictions. The Lomont court held that this type of claim, which would require an evidentiary hearing, was inappropriate for resolution under rule 3.800(a). The court recognized, however, that a claim of scoresheet error readily apparent from the face of the record is cognizable under rule 3.800(a). 506 So.2d at 1141.

Unlike the type of scoresheet error alleged in Lomont, Walker raises two claims that are cognizable under rule 3.800(a). First, he claims that the offenses for which he was convicted in this case were erroneously scored at the wrong offense level. If true, this error would be apparent on the face of the record, and would be cognizable in a rule 3.800(a) motion. See McCullough v. State, 777 So.2d 1091 (Fla. 2d DCA 2001). Walker also claims that his scoresheet erroneously included victim injury points when there was no evidence at trial suggesting any physical injury or trauma to the victim. This claim can also be determined from the face of the record, and is cognizable under rule 3.800(a). See Dickson v. State, 826 So.2d 412 (Fla. 2d DCA 2002).

Because Walker’s motion presented these two facially sufficient claims, cognizable under rule 3.800(a), the trial court must address them. See Carroll v. State, 914 So.2d 1014 (Fla. 2d DCA 2005). Therefore, we reverse the order on appeal and remand with instructions that the court address the merits of these two claims.

Reversed and remanded.

PLEUS, ROBERT J., JR., and GRIFFIN, JACQUELINE R., Associate Judges, concur.

      . Walker also attempted to state a claim based upon alleged errors in “dates” and "docket numbers” either placed on the score-sheet or missing from it. However, these allegations are so vague as to be indecipherable. Walker does not allege what dates or docket numbers are missing or incorrect, nor does he explain how these errors affected his sentence or now entitle him to relief. As such, these allegations are facially insufficient, and need not be addressed on remand. See Stapler v. State, 939 So.2d 1092 (Fla. 5th DCA 2006) (explaining that, at a minimum, a rule 3.800(a) motion must “address how and where the record demonstrates an entitlement to relief”) (quoting Baker v. State, 714 So.2d 1167, 1167 (Fla. 1st DCA 1998)). Additionally, in the body of his motion, Walker makes a somewhat convoluted argument that scoring multiple convictions based upon the same criminal act or acts violates double jeopardy. However, this claim is not cognizable under rule 3.800(a), and therefore need not be addressed on remand. See Coughlin v. State, 932 So.2d 1224 (Fla. 2d DCA 2006).


author: FARMER, J. STONE, J.,

text:
    Victoria PISCIOTTI, Appellant, v. Eugene STEPHENS, Appellee.
    Nos. 4D05-3648, 4D05-3649.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 2006.

      Thomas F. Luken, Fort Lauderdale, for appellant.
    Douglas R. Bell, Fort Lauderdale, for appellee.
   FARMER, J.

The personal representative (PR) of her parents’ estates has filed separate petitions seeking certiorari review of two probate court orders, directing her to answer deposition questions and to file final ac-countings. We treat the petitions as appeals of non-final orders. We reverse both on the grounds that they violate her Fifth Amendment constitutional right against self-incrimination.

Victoria and Eugene are sister and brother. Their mother died in May 2001, leaving her entire estate to their father. Four months later father also passed away. His will provided for the equal division of assets between the two children if mother had predeceased him. Sister was appointed PR of mother’s estate and, although never formally appointed, also assumed the role of PR of father’s estate.

During the administration of the estates, brother uncovered three undisclosed checks — two purporting to have been signed and dated by father after his own death. Around this time, sister also testified at a hearing held on homestead, making statements regarding the parents’ bank accounts. In light of the undisclosed checks and sister’s testimony, brother filed adversary proceedings to remove her as PR, accusing her of stealing money by forging signatures on checks and giving false testimony at the hearing. He also sought judgment against her for the funds and other assets wrongfully taken. In an attempt to partially resolve these proceedings, the parties entered into an agreed order wherein sister agreed to resign as PR from both estates.

Thereafter at her first deposition, sister asserted her Fifth Amendment privilege to all questions posed, and brother stated that he may pursue criminal prosecution if she remained silent. She maintained her right to remain silent and, accordingly, he filed a motion to direct her to answer the questions. The trial court ultimately granted brother’s motion and ordered sister to testify and file a final accounting of mother’s estate and an asset flow of father’s estate. At a second deposition, she once again asserted her Fifth Amendment privilege. In response, brother filed another motion directing her to answer and requested that she be held in contempt. The trial court granted the motion and repeated that sister must provide an accounting of both estates. In its order, the court did not review the nature of the deposition questions on a question-by-question basis.

Certiorari lies to review orders compelling discovery in civil cases “over an objection that the order violates the Fifth Amendment privilege against self-incrimination.” McKay v. Great Am. Ins. Co., 876 So.2d 666, 669 (Fla. 4th DCA 2004) (referencing Boyle v. Buck, 858 So.2d 391, 392 (Fla. 4th DCA 2003)). “The reviewing court must determine whether the trial court’s discovery order departed from the essential requirements of law, resulting in harm to the petitioner not remediable on plenary appeal.” McKay, 876 So.2d at 669. The order must violate clearly established principles of law and result in a miscarriage of justice. Fassy v. Crowley, 884 So.2d 359, 364 (Fla. 2d DCA 2004) (citing Combs v. State, 436 So.2d 93, 95-96 (Fla.1983)).

Sister’s first argument on appeal is that the trial court’s order requiring her to answer deposition questions violates her Fifth Amendment privilege against self-incrimination, particularly in light of her brother’s comments regarding criminal prosecution of her. We agree.

The Fifth Amendment to the United States Constitution provides in pertinent part that no person “shall be compelled in any criminal case to be a witness against himself.” U.S. Const. Amend. V; see also Art. I, § 9, Fla. Const. This protection exists primarily to “assure that an individual is not compelled to produce evidence which later may be used against him as an accused in a criminal action.”
One aspect of the privilege against self-incrimination is a witness’s right in a civil proceeding to refuse to respond to a question on the grounds that his answer may tend to incriminate him. See Kastigar v. United States, 406 U.S. 441, 444-45, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972); DeLisi v. Bankers Ins. Co., 436 So.2d 1099, 1101 (Fla. 4th DCA 1983).
During discovery in a civil case, a litigant may assert the Fifth Amendment privilege when the litigant has reasonable grounds to believe that the response to a discovery request would furnish a link in the chain of evidence needed to prove a crime against the litigant.
The Fifth Amendment privilege does not shield every kind of incriminating evidence. Rather, it protects only testimonial or communicative evidence, not real or physical evidence which is not testimonial or communicative in nature. See Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). [c.o.]

Boyle, 858 So.2d at 392-93. Moreover, this privilege is a fundamental principle; thus “waiver of privilege will not be lightly inferred, [and] courts will generally indulge every reasonable presumption against finding a waiver.” Jenkins v. Wessel, 780 So.2d 1006, 1008 (Fla. 4th DCA 2001).

Significantly, in Magid v. Winter, 654 So.2d 1037, 1039 (Fla. 4th DCA 1995), we emphasized that:

“[i]t need not be probable that a criminal prosecution will be brought or that the witness’s answer will be introduced in a later prosecution; the witness need only show a realistic possibility that the answers will be used against him.”

654 So.2d at 1039; see also Hoffman v. United States, 341 U.S. 479, 486-87, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). Moreover, “a trial court order that compels a witness to answer all questions raised, even those which may incriminate the witness, should be considered overbroad and a departure from the essential requirements of law.” Magid, 654 So.2d at 1039. Here, given the potentially incriminating nature of the evidence, coupled with brother’s professed intent to seek criminal prosecution, sister had reasonable grounds to fear that her deposition testimony could be used as a link in a chain of evidence against her in a later criminal proceeding. See O’Neal v. Sun Bank, N.A., 754 So.2d 170, 171-72 (Fla. 5th DCA 2000) (holding Fifth Amendment properly invoked because “civil litigant has reasonable grounds to believe that direct answers to deposition ... would furnish a link in the chain of evidence and subject him to a perjury charge”). Thus, in this case the trial court failed to recognize that there was a reasonable possibility of prosecution, and ultimately applied the wrong law. See Pillsbury Co. v. Conboy, 459 U.S. 248, 266, 108 S.Ct. 608, 74 L.Ed.2d 430 (1983); see also Magid, 654 So.2d at 1039; Fassy, 884 So.2d at 364.

Second, sister argues that the trial court’s order requiring her to file final accountings also violates her Fifth Amendment privilege. Generally, the privilege does not apply to documents that are required under the law to be prepared by a PR to carry out a fiduciary duty. In the case of In re Rasmussen, 335 So.2d 634, 636 (Fla. 1st DCA 1975), the First District noted:

“The privilege against self-incrimination is a personal one. The individual and his records are both constitutionally protected. However, this immunity is designed to protect personal documents or papers, or at least those in his possession in a purely personal capacity.... To hold otherwise, would permit a fiduciary to neglect his duties, and then to refuse to comply with a court order, which seeks to compel him to comply, by taking the ‘fifth’. We do not mean that an individual serving in a fiduciary capacity is prohibited from asserting his privilege against self-incrimination as to purely personal documents which may be located in the file or records maintained by him in his fiduciary capacity.” [c.o.]

Rasmussen, 335 So.2d at 636. Thus, the court reasoned that while the privilege may attach to a PR’s personal documents, it does not attach to those documents the PR is required by law to prepare.

Yet given the fundamental nature of the Fifth Amendment’s constitutional guarantees, we perceive grave difficulties in applying the privilege to the deposition questions but not to the related final ac-countings. To refuse to apply the privilege to the order for a final accounting document in this case would have the rather perverse effect of protecting sister from giving testimonial answers conceivably providing a link in the chain of evidence but then refusing the same protection by requiring her to file accountings yielding the same information. Because of the facts and circumstances of this case, we distinguish Rasmussen.

Reversed.

POLEN, J., concurs.

STONE, J., concurs in part and dissents in part with opinion.

STONE, J.,

concurring in part and dissenting in part.

I concur in reversing as to application of the Fifth Amendment to the compelled deposition testimony. However, as to the order directing Appellant to file account-ings, I would affirm. See Wright v. Dep’t of Health and Rehabilitative Servs., 668 So.2d 661 (Fla. 4th DCA 1996).


author: FARMER, J.

text:
    Craig DONOFF, Appellant, v. Mitzi Robin DONOFF, Appellee.
    No. 4D05-3918.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 2006.

      Stephen Rakusin of the Rakusin Law Firm, Fort Lauderdale, for appellant.
    Steven M. Katzman and Alexandra Sierra-De Varona of Katzman, Wasserman & Bennardini, P.A., Boca Raton, for appellee.
   FARMER, J.

In this latest entry in the unfinished history of the Donoff divorce, Craig appeals a final order granting his request to modify alimony. Of course he does not quarrel with the trial judge’s finding that he successfully proved a substantial enough change in the circumstances of Mitzi to warrant a modification. He does argue, however, that in determining the amount by which alimony should be modified the trial judge made prejudicial errors. We agree and affirm the trial judge’s finding that modification is warranted, but reverse the modified alimony and remand for a determination as to a new amount, if any at all.

As grounds for modification, Craig alleged that Mitzi had entered into a permanent arrangement of cohabiting with another man who provides her with economic support. The trial court found that she has in fact entered into such a supportive relationship for the past 10 years and that it is “equivalent to a marriage.” That finding is the basis for the court’s determination that modification of alimony was warranted. We hold that the evidence supports the trial court’s determination in this regard and leave it undisturbed.

Turning, therefore, to the question of any amount that might be newly fixed, the trial judge held that he was not required to apply the criteria of section 61.08(2) to determine a modified amount of alimony. In holding these criteria inapplicable, the trial judge said he thought it “inexplicable why, in a post-judgment modification proceeding, the court should once again consider many of the factors under section 61.08(2).”

In Mirsky v. Mirsky, 474 So.2d 9, 9 (Fla. 5th DCA 1985), the Fifth District held that it was an abuse of discretion not to consider the section 61.08(2) criteria in determining the amount by which permanent alimony should be modified. We do not think this requirement incomprehensible. For one thing, it is apparent that the legislature has used specified “factors” or “circumstances” in chapter 61 to create standards governing the exercise of trial court discretion. These section 61.08(2) factors operate to direct and circumscribe all awards of alimony, thereby making outcomes more predictable. Nothing in any statute purports to eliminate these “relevant economic factors” when modifying alimony under section 61.14. Indeed section 61.08(2) specifies that it applies whenever the court is “determining a proper award of alimony” under the statute. We therefore join the Fifth District in holding that all applicable section 61.08(2) factors must be considered in modification proceedings under section 61.14.

While we agree that some of these factors may turn out to be inapt in post-judgment modification proceedings, we note that the legislature has unambiguously required that the trial judge shall consider all relevant factors in determining what alimony is proper. We interpret that command to recognize that some factors may not relate to the actual issues in a given case but the trial court should consider all those that are relevant to the facts and issues. Two of the section 61.08(2) factors seem always relevant in both an original award and any modification:

(d) The financial resources of each party, the nonmarital and the marital assets and liabilities distributed to each....
(g) All sources of income available to either party.

In this case the trial judge failed to consider these very relevant and important economic factors to determine the amount of any continued alimony under the new circumstances.

For one, the trial judge refused to consider all of Mitzi’s investment income. The record shows that Mitzi has more than $1.9 million in investments, but the trial judge considered only $704,000. He also refused to consider $25,000 in annual income from an IRA account, even though it was available to her without tax penalty. The rationale of the trial judge was that these excluded investments and the IRA account effectually represented segregated sums that should be allowed to grow for her use in later years.

We find this reasoning in conflict with Mallard v. Mallard, 771 So.2d 1138 (Fla.2000), where the court reaffirmed the principle that the purpose of periodic alimony is to provide the needs and necessities of life. More specifically the court held that “[cjurrent necessary support rather than the accumulation of capital is the purpose of permanent periodic alimony.” 771 So.2d at 1140. Mallard explicitly rejected the idea that a trial court should increase the amount of alimony by adding an investment (i.e., growth) allowance, disapproving of the holding to that effect in Messina v. Messina, 676 So.2d 483 (Fla. 1st DCA 1996). 771 So.2d at 1141; see also Rosecan v. Springer, 845 So.2d 927, 930 (Fla. 4th DCA 2003) (holding that Mallard bars a court from using alimony to “forge economic equality, without regard to the needs of the recipient spouse”); Pietras v. Pietras, 842 So.2d 956, 962 (Fla. 4th DCA 2003) (holding that alimony may not include a savings component); Lauro v. Lauro, 757 So.2d 523 (Fla. 4th DCA 2000) (equitably distributed income in prior divorce is source of income for purposes of calculating amount of alimony). Property distributed to a spouse in dissolution of marriage, even a pension plan, must be considered a source of income in determining the amount of income available to a spouse seeking alimony. Acker v. Acker, 904 So.2d 384, 388 (Fla. 2005). It was therefore error not to consider Mitzi’s entire investment portfolio and IRA income.

Next, in fixing the amount of any need for alimony, the trial judge included in her relevant expenses the annual sums Mitzi spends on behalf of their adult daughter for some expenses while attending college: fuel, clothing, utilities, insurance, recreational expenses, vacation travel, and spending money. According to testimony, these sums amount to $4,000 on a monthly basis. In the final order, the trial judge thought it appropriate to include these sums in assessing Mitzi’s needs, saying that this was a modification proceeding rather than an initial determination on alimony in the dissolution final judgment. The court voiced reliance on a principle that “the purposes to which the recipient puts the alimony generally do not support a modification,” citing Tinsley v. Tinsley, 502 So.2d 997 (Fla. 2d DCA 1987), and Springstead v. Springstead, 717 So.2d 203 (Fla. 5th DCA 1998).

Apart from the doubtful formulation of the principle he sought to apply, neither case supports the trial judge’s decision. Springstead is no help because by the time of the modification hearing the spouse there had stopped cohabiting and the former companion had also reimbursed her for all sums she had given him. Tinsley involved a former agreement between the parties for a specified amount of alimony, which the trial court later reduced in a modification proceeding on account of distributions by the receiving spouse from the alimony to an adult child and a grandchild. In reversing the modification, the court emphasized that a party who seeks to reduce agreed alimony bears a heavy burden that was not sustained in the case. The opinion in Tinsley makes apparent that in spite of the sums the recipient gave to the children, the paying spouse had not shown that her needs had decreased by reason of any other income — the essential difference in the present case. Section 61.08 makes clear that in determining any need for alimony, whether original or modification, the entire financial resources and income of the party seeking the award must be considered.

It is obvious from the trial judge’s written order that he placed considerable — even undue — emphasis on the standard of living during the marriage. In effect the judge concluded that even the amount of modified alimony in this case must insure that Mitzi’s lifestyle continues at the level achieved during marriage when both shared the same financial resources and income. In other words, his formula was that x divided by 2 must continue to equal x. We think the trial judge erred.

The standard-of-living is not a super-factor in setting the amount of alimony— trumping all others. It has only a case specific and quite limited purpose. When the living standard during marriage was significantly high and the payor has the ability to pay more than minimum wage (so to speak), its purpose is to avoid having alimony set at bare subsistence levels. The wealthy plutocrat who exposes a spouse during marriage to a standard well beyond the basic necessaries of life on a meager level, should be required to do better than mere subsistence with alimony.

But, as we made clear in Rosecan: “The purpose of permanent periodic alimony is not to divide future income to establish financial equality.” 845 So.2d at 929. Instead it is intended to avoid — where possible — having a recipient pass from the ease and comfort of always having more than enough, to the distress of having only just enough for the essentials of minimum food, shelter and clothing.

After the division of marital assets and other property in this case, Mitzi has a net worth of nearly $2 million, while Craig’s is above $3.2 million. Here the standard established during marriage has little relevance — if in fact it has any at all — to the amount of any modification because the net worth of the ex-spouse seeking to continue to receive alimony is now considerably above any fear of impoverishment and, prima facie, would appear to amount to more than sufficient financial resources and income to meet her appropriate needs at the appropriate level when all of her financial resources and income are properly considered.

And then there is this. In Bridges v. Bridges, 842 So.2d 983, 984 (Fla. 1st DCA 2003), the court held that when a former spouse paying alimony has established that the payee is receiving support from an unmarried cohabiting partner, a substantial change in circumstances has been shown, and the burden then shifts to the recipient spouse to show if there is any continued need for alimony. Bridges explained that the burden of proof shifts to the receiving party to justify an amount of alimony because the true economic condition is uniquely within her knowledge and may not be available to the payor. The court followed Lee v. Lee, 544 So.2d 1083 (Fla. 1st DCA 1989), in this holding. In Bridges the ex-wife who was cohabitating with another man failed to meet her burden of showing a continued need for alimony, and thus the ex-husband’s request to reduce alimony was granted so that she would thereafter receive $1 per month in permanent alimony. 842 So.2d at 983-84.

We agree with the First District and follow its decisions in this regard. As in Bridges, the facts show that Mitzi also has significant individual resources and her living companion is willing and able to support her (having done so for 10 years). With her own assets of nearly $2 million, plus the additional support afforded by her cohabiting partner, she would now appear to require at best only nominal support to protect her future should she experience any significant adverse change in her circumstances.

On remand the trial court shall allow Mitzi to show — if she can do so even with financial resources of nearly $2 million and the significant income and the support of her cohabiting partner — that she continues to have any real need for alimony. We also deny her request for attorneys fees on this appeal because of her obvious lack of need. See Satter v. Satter, 709 So.2d 617 (Fla. 4th DCA 1998) (where former spouses have respective net worths of $13.3 million and $1.1 million, attorney fees should be denied).

Reversed and Remanded with Instructions.

GUNTHER, J., and KRATHEN, DAVID H., Associate Judge, concur.

      . For prior entries, see Donoff v. Donoff, 777 So.2d 1078 (Fla. 4th DCA 2001), and Donoff v. Donoff 691 So.2d 1091 (Fla. 4th DCA 1997).

      . § 61.08(2) Fla. Stat. (2005).

      . § 61.08(2) Fla. Stat. (2005).

      .§ 61.08(2), Fla. Stat. (2005) ("in determining a proper award of alimony ... the court shall consider all relevant factors").

      . Paradoxically, the evidence also showed that the daughter had her own brokerage account with more than $200,000 in it.

      . Tinsley traced the principle regarding spending to Phillippi v. Phillippi, 148 Fla. 393, 4 So.2d 465 (1941), where the supreme court stated the issue thus: "whether the subsequent alleged extravagance of the divorced wife will support a bill to reduce alimony.” 4 So.2d at 466. The issue was whether a payee’s extravagant spending of alimony in gambling was by itself grounds to reduce it. Id. The holding in Phillippi was that, by itself, such spending was not a basis to modify the award. 4 So.2d at 466-67. Yet without explanation, Springstead somehow reformulated the Phillippi principle to be this: "As a general rule, how the recipient spouse chooses to spend the alimony is irrelevant [e.s.] in a modification action.” 717 So.2d at 204. Spring-stead thus remade the Phillippi holding into a statement of principle that the purpose to which the alimony is put is irrelevant. That is obviously not the holding in Phillippi. As here, such purposes could be relevant in determining whether the alimony claimant has a need for such assistance.

      . § 61.08(2)(a), Fla. Stat. (2005).