author: PER CURIAM.

text:
    Frieda Dianne HORWITZ v. Allan Arnold HORWITZ.
    2040760.
    Court of Civil Appeals of Alabama.
    May 19, 2006.

      Lisa E. Boone of Boone Law Offices, P.C., Auburn, for appellant.
    Thomas S. Melton of Haygood, Cleveland, Pierce, Mattson & Thompson, LLP, Auburn, for appellee.
   PER CURIAM.

Frieda Dianne Horwitz (“the wife”) and Allan Arnold Horwitz (“the husband”) were divorced in 1998. This is the third time they have been before this court. See Horwitz v. Horwitz, 739 So.2d 1118 (Ala.Civ.App.1999) (“Horwitz I ”), and Horwitz v. Horwitz, 897 So.2d 337 (Ala.Civ.App.2004) (“Horwitz II”).

In Horwitz I, this court determined, among other things, that the trial court’s division of the parties’ marital property was inequitable; accordingly, we reversed the property-division and periodic-alimony portions of the parties’ divorce judgment and remanded the case to the trial court. In February 2000, on remand, the trial court amended the alimony and property-division portions of the divorce judgment and provided, among other things, (1) that the wife was to be awarded the marital home free and clear of any debt, that the husband was to make the mortgage payments, and that those payments were to be considered periodic alimony; and (2) that the husband was to pay the wife $3,000 per month for 131 months for the wife’s interest in the family optical business and that those payments were also to be considered periodic alimony. Neither party appealed from the order on remand.

In October 2000, the wife filed a petition seeking to hold the husband in contempt for failing to pay periodic alimony in the amount of $3,000 per month and for failing to make the mortgage payments on the marital home, thus allowing the home to be foreclosed upon. In November 2000, the husband requested that the contempt action be stayed pending the resolution of his petition for Chapter 7 bankruptcy relief. The trial court placed the contempt action on its administrative docket. In April 2001, the bankruptcy court terminated its automatic stay of proceedings involving the collection of periodic alimony.

In December 2001, the State of Alabama filed a contempt petition on behalf of the wife, alleging that the husband was in arrears in paying periodic alimony. In August 2003, the trial court found the husband in civil (but not willful) contempt and entered a judgment in favor of the wife in the amount of $149,576, representing the amount of the arrearage, including interest, resulting from the husband’s failure to pay the wife $3,000 per month for her interest in the family optical business. The court ordered that the husband could purge himself of contempt by paying $800 per month toward the arrearage for 24 months; the court further ordered that, after 24 months, the husband’s payments on the arrearage would be reduced to $500 per month, and it limited the wife’s execution of the judgment to the amount of the monthly payments, rather than the full amount of the judgment.

The wife appealed, arguing that the trial court had exceeded the limits of its discretion (1) by failing to order a reasonable monthly payment toward the husband’s periodic-alimony arrearage; (2) by limiting execution of the judgment to the amount of the monthly payments; and (3) by failing to find the husband in contempt for his failure to make the monthly mortgage payments on the marital home. See Horwitz II, 897 So.2d at 342. With respect to the three issues raised by the wife in Horwitz II, this court held (1) that the trial court had exceeded the limits of its discretion “in ordering payments on the arrearage that will not satisfy the judgment within a reasonable period of time,” 897 So.2d at 343; (2) that the trial court had “erred in restricting execution of the judgment to the monthly payments,” 897 So.2d at 344; and (3) that “[t]he trial court’s finding of contempt regarding the alimony award related to the family business is inconsistent with its implicit finding of no contempt regarding the mortgage payments; therefore, we reverse that portion of the trial court’s judgment.” 897 So.2d at 344.

After this court’s decision in Honoitz II, the trial court heard arguments on December 23, 2004, and allowed the parties to file briefs outlining their positions with respect to the action the court should take on remand. The trial court stated that it did not believe an evidentiary hearing was necessary, and neither party sought to introduce evidence. The court informed the parties that it would review the evidence submitted to a different judge at a previous hearing held on August 20, 2003. That evidence served as the basis for the following facts recited in this court’s opinion in Honoitz II:

“The [husband] testified that he has no retirement accounts, savings accounts, or certificates of deposit and that his current wife owns his car and his home. He testified that his adjusted gross income for 2000 was $76,693, but he claimed that $71,392 of that income was from repayment of loans he made during previous years. The [husband] admitted that he ‘drew money’ out of an alarm business[ ] that he owned in 2000. He testified that several of the optical businesses in which he owned stock or was listed as an officer were involved in a lawsuit that alleges that $800,000 worth of assets belonging to the optical businesses were fraudulently transferred. The lawsuit was filed in 2002 by the trustee for the [husband’s] bankruptcy estate, and it alleges that the [husband] received less than reasonable value for the transfer of the assets to the businesses and seeks to void those transfers. The [husband] stated that he is not a party to that lawsuit. His current wife works for one of the optical businesses involved in the lawsuit.
“The [husband] testified that he obtained a real-estate license in 2001, that his reported adjusted gross income for 2001 was $8,451, and that his reported adjusted gross income from selling real estate in 2002 was $54,133. He testified that he formed a corporation for his real-estate business in which he is the sole shareholder and that the company pays an employee $18,000 per year to manage the [husband’s] commissions and to show property.
“The [husband] testified that he pays his current wife $1,850 per month for expenses, out of a purported $2,700 per month in net disposable income. However, he admitted that he omitted country-club dues of $300 to $400 per month, which his [current] wife pays. The [husband] testified that he owes the Internal Revenue Service for taxes in 2000 and that he paid his taxes for 2002 with a loan from John Rice, who employs the [husband] as a real-estate broker. The [husband] never made any attempt to pay the [wife] the $3,000 per month he was ordered to pay by the Macon Circuit Court in its February 4, 2000, order.
“The [wife] testified that the parties’ son lives with her in an apartment because the [husband] had allowed the marital home to be foreclosed upon. She stated that the son is 19 years old and plans on attending college. She testified that she receives $368 per month in Supplemental Security Income (‘SSI’) and that she is currently unable to work because of physical injuries she received as a result of an automobile accident in 2002. She testified that she is not entitled to Social Security disability benefits because the [husband] failed to pay into the Social Security system for her period of employment with Midway Optical, one of the parties’ optical businesses.

Horwitz II, 897 So.2d at 342.

On February 23, 2005, the trial court entered a judgment that found the husband in civil contempt for failing to make the mortgage payments on the marital home and for allowing a foreclosure on the home; that determined that the arrearage from the husband’s failure to make the mortgage payments as periodic alimony was $47,300 and added that amount to the other arrearage already calculated, making the husband’s total periodic-alimony ar-rearage $196,876; that awarded a judgment in favor of the wife in the amount of $196,876, plus interest; that removed the restriction on the wife’s execution against the judgment and provided that “said judgment can be collected as any other judgment”; and, finding that the husband had presented “extenuating and mitigating circumstances as to his limited ability to pay,” that determined “that $1,000 per month is a reasonable amount for [the husband] to pay as a purge of his contempt herein.” The trial court ordered that the husband’s payments on the arrearage “shall terminate upon the remarriage of the [wife] or the death of either party or under circumstances as provided in § 30-2-55, Ala.Code 1975.”

The wife filed a postjudgment motion pointing out that the trial court had failed to add the interest that had accrued on the $47,300 arrearage in the mortgage payments; the trial court subsequently amended the judgment to add $9,933 in interest, for a total judgment of $206,809 in favor of the wife. The wife appeals, raising two issues.

I.

The wife argues that the trial court’s order on remand was inconsistent with the appellate mandate in Horwitz II. First, she says, the opinion in Horwitz II required that the husband’s payments toward the arrearage be sufficient to satisfy the judgment within a reasonable time. She maintains that increasing the husband’s monthly payments by a mere $200 will not accomplish that objective. Next, she says, this court’s opinion in Horwitz II “did not condition its holding on a determination by the trial court of [the husband’s] ability to pay the amount ordered.” Therefore, the wife maintains that the trial court was acting, beyond this court’s mandate when it found that the husband “presented extenuating and mitigating circumstances as to his limited ability to pay.”

Addressing the wife’s second argument first, we must point out that in Hor-witz II this court neither held nor implied that the objective of setting the husband’s payments high enough to reduce the ar-rearage within a reasonable time should be accomplished without regard for the husband’s ability to pay. In fact, the main opinion in Horwitz II cited Henderson v. Henderson, 680 So.2d 373 (Ala.Civ.App.1996), for the proposition that “[t]he trial court has discretion to set a reasonable arrearage payment schedule commensurate with a party’s ability to pay.” Horwitz II, 897 So.2d at 343 (emphasis added). The two judges who dissented from the reversal of that part of the judgment ordering the husband to pay $800 per month toward the arrearage noted that

“ ‘[i]f the ability of a party to pay [spousal] support is so exceeded that the [pay- or] is unable to meet his own cost of self-maintenance without sinking into insolvency, the best interests of the [payee ' spouse] are not served.’ ”

Horwitz II, 897 So.2d at 345 (Crawley, J., joined by Murdock, J., concurring in part and dissenting in part)(quoting Cook v. Cook, 578 So.2d 1354, 1358 (Ala.Civ.App.1991)).

The trial court’s ordering the husband to pay $1,000 per month toward an extremely large arrearage judgment was based, in part, on the court’s review of evidence presented at a previous hearing on August 20, 2003. The wife evidently believes that the husband has a greater ability to pay now than he did in 2003, yet she did not seek to present any evidence to that effect on remand. Based on the trial court’s comments at the December 2004 hearing, it is evident that the court attempted to strike a fair balance between ordering the husband to make an arrearage payment that would satisfy his obligations to the wife within a reasonable time and allowing the husband to remain financially solvent. To have disregarded the husband’s ability to pay, as the wife contends the trial court should have done, would have been to have ignored both common sense and our appellate mandate in Horwitz II. The trial court did not violate that mandate by finding that the husband had “presented extenuating and mitigating circumstances as to his limited ability to pay.”

The wife contends that the parties agreed at the December 2004 hearing that a 10-15 year payment schedule would be reasonable. She argues that, if the husband pays only $1,000 per month toward the periodic-alimony arrearage, he will never satisfy the $206,809 judgment in her favor because, she says, $1,000 will not even pay for' the interest that accrues on the judgment each month, much less reduce the principal. That argument is based upon the assumption that § 8-8-10, Ala.Code 1975, which establishes a 12 percent per annum (or a 1 percent per month) rate of interest on judgments, applies, and that the first sentence of § 8-8-11, Ala. Code 1975, applies. It appears, however, that the second sentence of § 8-8-11 is the applicable provision. That section states:

“Except as provided in this section, when partial payments are made, the interest due is first to be paid and the balance applied to the payment of the principal. In the case of a judgment for child or spousal support, or a judgment for medical support of a child or spouse, any partial payment shall be applied first to the principal, and the remaining balance, if any, shall be applied to the interest.”

(Emphasis added.) If the husband makes monthly payments of $1,000 and those payments are first applied to the principal, he will be able to pay the principal amount of the judgment in 17 years, 3 months. Based upon a review of all the circumstances, we cannot say that the trial court exceeded the limits of its discretion by increasing the husband’s payments to $1,000 per month.

II.

The wife contends that the trial court erred by ordering that the husband’s payments on the periodic-alimony arrear-age will terminate upon her remarriage or upon the death of either party. We agree.

“ ‘ “The law in Alabama is clear that past due installments of alimony and child support payments become a debt of record.... Such judgments may be collected in the same way as are other judgments.” ’ ”

Joe v. Joe, 891 So.2d 879, 882 (Ala.Civ.App.2004) (quoting Garrett v. Garrett, 628 So.2d 659, 661 (Ala.Civ.App.1993) (quoting in turn Fletcher v. Fletcher, 56 Ala.App. 492, 493, 323 So.2d 379, 380 (Civ.1975))). The wife’s death will not end the husband’s obligation to satisfy the judgment for the periodic-alimony arrearage entered against him. Joe v. Joe, 891 So.2d at 882. “[T]he amount [of periodic alimony] decreed to [the wife] during her lifetime and in arrears at the time of her death constitutes a liability which survive[s] in favor of her personal representative.” Heaton v. Davis, 216 Ala. 197, 199, 112 So. 756, 757 (1927). The husband’s death will not end the wife’s right to have the judgment satisfied from his estate. See Solinger v. Solinger, 57 Ala.App. 225, 327 So.2d 721 (1975). Nor will the wife’s remarriage affect her right to collect on the judgment. See Sanders v. Burgard, 715 So.2d 808 (Ala.Civ.App.1998).

That portion of the trial court’s judgment ordering that the husband’s payments on the periodic-alimony arrearage terminate upon the remarriage of the wife or upon the death of either party is reversed, and the cause is remanded with instructions to delete the termination provision. All other portions of the trial court’s judgment are affirmed.

The wife’s request for an attorney fee on appeal is denied.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

CRAWLEY, P.J., and PITTMAN, MURDOCK, and BRYAN, JJ., concur.

THOMPSON, J., concurs as to Part II and dissents as to Part I, without writing.

      “3The [husband] testified that the membership was in his current wife’s name but that he has made business contacts through the membership.

      “4SSI is an entitlement program for three groups of people: the aged, the blind, and the disabled. To be eligible for SSI benefits, a person must have limited income and resources.

      “5The [wife] testified that the other driver involved in the accident was at fault and that he is now deceased. She testified that there is no lawsuit pending regarding the accident and that none would be filed.

      “6SSI benefits are different from Social Security disability benefits (often referred to as ‘SSDI’). To be eligible for SSDI benefits, a person must show ‘insured status’ by having paid into the Social Security system through Federal Insurance Contributions Act (‘FICA’) taxes on earned income.”

      . In arguments to the trial court on remand, the wife’s attorney referred to the 12 percent per annum interest rate on judgments; the trial court agreed that 12 percent was the applicable rate of interest.

      . With payments of $1,000 per month ($12,-000 per year), a principal amount of $206,809 will be paid in 17.23 years.


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    Theron C. SPRUELL and Spruell Pharmacy v. ALABAMA STATE BOARD OF PHARMACY.
    2040363.
    Court of Civil Appeals of Alabama.
    May 19, 2006.

      Thomas B. Hanes of Dominick, Fletcher, Yeilding, Wood & Lloyd, P.A., Birmingham, for appellants.
    James S. Ward of Ward & Wilson, L.L.C., Birmingham, for appellee.
   PITTMAN, Judge.

Theron C. Spruell and Spruell Pharmacy (hereinafter collectively referred to as “the licensees”) appeal from a judgment of the Jefferson Circuit Court upholding an order entered by the Alabama State Board of Pharmacy (“the Board”) suspending the licensees from the practice of dispensing drugs in Alabama for a 30-year period.

In February 2003, the Board first initiated administrative disciplinary proceedings against the licensees. In the pertinent part of that complaint, the Board alleged that the licensees had failed to keep required records, to maintain a complete inventory list, to generate computer printouts of drugs dispensed daily, to cull outdated drugs from stock, and to maintain inventories and records of controlled substances; the licensees were also accused of having dispensed controlled substances without a prescription and having committed gross negligence or gross malpractice. At a hearing on those charges, counsel for the Board and counsel for the licensees stipulated that sufficient evidence existed to support the pertinent charges in the February 2003 administrative complaint. The Board then entered an order in April 2003 in which the licensees were fined and their pharmacy licenses were suspended pending “the completion of a satisfactory inspection by the Board” of Spruell Pharmacy “wherein all drugs are properly labeled, out of date drugs properly disposed of and all records and documentation required by law have been provided,” after which the license suspensions would revert to probationary status.

After the April 2003 order went into effect, an investigation by Board representatives indicated that the licensees might have continued to dispense drugs despite the Board’s suspension of their licenses. The Board then sought and obtained an injunction from the Jefferson Circuit Court against the licensees; the Board also initiated new administrative proceedings against the licensees on October 10, 2003, alleging that the licensees had violated the April 2003 order by continuing to fill prescriptions while the licenses were under suspension — in effect, engaging in pharmaceutical practice without valid licenses. The October 2003 complaint indicated that a hearing would be held on November 18, 2003, on the matters alleged therein. The licensees filed a motion for a more definite statement, which the Board expressly denied, and a motion for a continuance, which was denied by implication.

At the start of the November 18, 2003, hearing, the Board’s hearing officer asked whether there were “any pre-hearing matters to [be taken] care of,” at which time both counsel for the Board and counsel for the licensees responded in the negative. The hearing then proceeded normally, with the attorneys for both sides tendering witnesses for testimony and documentary evidence for the Board’s consideration. After that hearing, the Board met and deliberated. On November 25, 2003, an order was issued containing findings of fact, including findings that the licensees had filled 838 prescriptions, had obtained reimbursement from major third-party payors for those prescriptions, and had ordered drugs from wholesalers while their licenses were suspended pursuant to the Board’s April 2003 order; the order also contained conclusions of law, including conclusions that the licensees’ conduct amounted to violations of a number of statutes governing the pharmaceutical practice. The order stated that each licensee would be required to pay a fine of $10,000 and that each license would be suspended for 30 years (subject to a right to apply for reinstatement in 5 years). The order was signed by the Board’s secretary.

The licensees filed a petition in the Jefferson Circuit Court seeking judicial review of the November 2003 order. After a hearing, the circuit court entered an order determining that the Board’s statement of charges had adequately and sufficiently set forth the matters upon which the licensees were charged, that the administrative proceedings were fair and reasonable, and that the licensees had the “full benefit” of counsel; however, the court, after opining that the Board’s secretary was not empowered to execute final orders, remanded the cause to the Board for the Board to decide whether the November 2003 order reflected its findings and its judgment. The Board responded to the remandment by issuing an order in October 2004 that was executed by the Board’s current and immediate past presidents but that made no substantive changes to the November 2003 order. The circuit court then entered a judgment of affirmance, concluding that the Board had complied with the remand order. The licensees then appealed to this court.

In Jones v. Alabama State Board of Pharmacy, 624 So.2d 613, 614-15 (Ala.Civ.App.1993), we noted the applicable principles that govern appellate review here:

“Appellate review of administrative actions is limited to a determination of ‘whether the agency acted within its powers conferred upon it by law and the constitution, whether its decision is supported by substantial evidence, and whether the agency’s decision is reasonable and not arbitrary.’ Alabama Board of Nursing v. Herrick, 454 So.2d 1041, 1043 (Ala.Civ.App.1984).
“The Board has powers and duties via Ala.Code 1975, § 34-23-92. Among those duties, § 34 — 23—92(12)[ ] provides that the duty of the Board is to conduct hearings to revoke, suspend, or probate any license or permit granted by the Board, and it additionally provides that an appeal may be taken in accordance with the provisions of § 34-23-94.
“The determination of whether a licensee should have his license revoked involves judgment and expertise in the particular field of the licensee. This judgment and expertise is presumed to exist in the board of each field, and we will not disturb the decision of a board unless judgment or discretion is abused or exercised in an arbitrary or capricious manner.”

On appeal, the licensees assert that “the cumulative effect” of what they term “the lack of rules for disciplining pharmacists throughout the [administrative] process” warrants a conclusion that the licensees’ constitutional right to due process has been violated (and, therefore, that the circuit court’s judgment should be reversed). In support of that single contention, however, the licensees merely present a laundry list of generalized grievances. To the extent that the licensees have supported their arguments with citations to authority, as required by Rule 28(a)(10), Ala. R.App. P., we summarize those grievances as follows: (1) that the Board does not have sufficient guidelines that govern the institution of disciplinary actions against its licensees; (2) that the Board does not specify its standard of proof; (3) that the Board improperly allows its secretary to fill multiple roles; and (4) that the Board in this case improperly relied on hearsay evidence. We conclude that each of those grievances lacks merit.

We first examine the contention that the Board is not governed by adequate standards regarding the institution of disciplinary proceedings. The licensees advance the following argument: because criminal judicial proceedings are to be initiated by a written statement to be made under oath, and because civil judicial proceedings are subject to a good-faith pleading requirement, the Board should not be permitted to impose disciplinary sanctions that may deprive the licensees of protected rights without some sort of guarantee of the veracity of the allegations in the administrative complaint.

However, any force that the licensees’ argument might have dissipates in the face of the specific language of the Alabama Administrative Procedure Act, § 41-22-1 et seq. (“the AAPA”). In contrast to the licensees’ apparent belief that rigorous due-process requirements must be met in the institution of administrative proceedings, the AAPA requires only “reasonable notice in writing” of “the time, place, and nature of the hearing,” a recitation of “the legal authority and jurisdiction under which the hearing is to be held,” a reference “to the particular sections of the statutes and rules involved,” and “[a] short and plain statement of the matters asserted.” Ala.Code 1975, § 41-22-12(a) and (b).

We agree with the Board that the notice standards of § 41-22-12 were met with respect to the October 2003 complaint. As we have stated, that complaint averred that the licensees had violated the specific terms of the Board’s April 2003 order by continuing to fill prescriptions while their licenses were under suspension and included a number of attached documentary records that had been obtained from the licensees by the Board tending to confirm that factual assertion. The October 2003 complaint also indicated the date and place of the scheduled hearing on the matters alleged and the Board’s statutory authority to regulate conduct of its licensees. The complaint thus provided the licensees with the minimum notice required by the AAPA, and we thus may not reverse the circuit court’s judgment on the basis that the Board’s complaint was, in some subjective manner, objectionable.

The next issue concerns the Board’s failure to specify or profess adherence to a particular governing standard of proof. The statute governing the Board’s disciplinary powers leaves no doubt, however, that such a legal standard of proof does exist. Under § 34-23-33, Ala.Code 1975, “[t]he [B]oard may ... suspend ... any licensed pharmacist ... and take the same or similar action against the permit to operate any pharmacy in this state[] whenever the [B]oard finds by a preponderance of the evidence ... that the pharmacist has been guilty of any ... act[ ] or offense[ ]” listed in that statute (emphasis added). In other words, the Board is required by the legislature to apply a preponderanee-of-the-evidence standard as a matter of law, and counsel for the licensees is likewise bound by that standard. That the Board found that that standard had been met in this case is, of course, the basis upon which it could lawfully discipline the licensees; therefore, the licensees’ challenge to that standard as somehow amounting to a “vague” and “indefinite” one must necessarily fail.

We next turn to the role of the secretary of the Board in the proceedings. Pursuant to statute (Ala.Code 1975, § 34-23-91), the Board’s secretary is “the executive officer in charge of the [Bjoard’s office,” is required to “make, keep, and be in charge of all records and record books required to be kept by the [Bjoard,” is to “attend to the correspondence of the [Bjoard,” and is to “perform any other duties the [Bjoard may require in keeping with the office of secretary.” Not surprisingly, according to the record, the secretary fulfilled several functions in this case, including reviewing and referring investigative findings to the Board’s counsel for the preparation of a new administrative complaint after the licensees’ conduct during their license suspension indicated that they were practicing without a license. When the licensees attempted to defend the October 2003 complaint on the basis that the secretary had allowed them to fill prescriptions, the secretary rebutted that evidence by testifying before the Board in the November 2003 hearing. Finally, the secretary signed the order issued after the November 2003 hearing (although the Board’s current and past presidents signed a substantively similar order on remand when the secretary’s authority was questioned).

The licensees, citing Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975), contend that the secretary’s roles amount to an unlawful blending of prosecution and adjudication. We disagree. The Supreme Court rejected in Withrow the proposition that “the combination of investigative and adjudicative functions necessarily creates an unconstitutional risk of bias in administrative adjudication.” 421 U.S. at 47, 95 S.Ct. 1456. Here, the record reflects even less: even if the secretary’s referral of investigative findings to the Board’s counsel for potential administrative action evidences a “prosecutorial” role under Ala.Code 1975, § 41-22-18(a), the absence of any evidence demonstrating that the secretary played a role in the actual adjudication of the matters alleged in the subsequently pleaded administrative complaint — apart from completing the ministerial act of issuing the written November 2003 order evidencing the Board’s decision — indicates that the circumstances of this case do not begin to demonstrate a potential conflict of interest that might rise to the level of the potential conflict of interest that was envisioned in Withrow. As in Horn v. State Board of Examiners in Counseling, 689 So.2d 93, 95 (Ala.Civ. App.1996), “the actual decision ... was rendered by the Board.”

Finally, we turn to the licensees’ claim that the Board impermissibly relied upon what the licensees term “hearsay”; the licensees allege that several witnesses, representatives of Blue Cross and Blue Shield of Alabama and Medicaid, relied in their testimony on information contained in computer printouts. We note that Ala. Code 1975, § 41-22-13(1), expressly allows admission in administrative hearings of evidence “of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs,” even if such evidence would be inadmissible in judicial proceedings. Although the transcript of the Board hearing indicates that certain computer printouts were admitted into evidence by the Board during the November 2003 hearing and that those printouts apparently tended to show that the licensees had filed claims for payment with Blue Cross and Blue Shield of Alabama and Medicaid while their licenses were suspended, those documents are not in the record on appeal. Without the ability to examine the printouts, we cannot properly conclude that the Board admitted or considered evidence upon which “reasonably prudent persons” do not rely so as to warrant reversal of the circuit court’s judgment.

Based upon the foregoing facts and authorities, the circuit court’s judgment affirming the Board’s November 2003 order (as adopted by its October 2004 order) is itself due to be affirmed.

AFFIRMED.

CRAWLEY, P.J., and THOMPSON, MURDOCK, and BRYAN, JJ., concur.


author: WISE, Judge. COBB, Judge,

text:
    David W. MANN v. STATE of Alabama.
    CR-04-1382.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 2006.
    Rehearing Denied March 10, 2006.
    Certiorari Denied May 12, 2006 Alabama Supreme Court 1050844.
    Walter L. Gray III, Phenix City, for appellant.
    Troy King, atty. gen., and Jean A. Ther-kelsen, asst. atty. gen., for appellee.
   WISE, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, P.J„ concurs. SHAW, J., concurs in the result. COBB, J., dissents, with opinion, which BASCHAB, J., joins.

COBB, Judge,

dissenting.

David Mann was convicted of unlawful breaking and entering of a motor vehicle, § 13A-8-11, Ala.Code 1975. The State presented a videotaped statement Mann had given to Sgt. Toomey. The tape was introduced through the testimony of another police officer, Sonny Banzaca; Toomey was unavailable because he was on military duty in Iraq with his National Guard Unit. Mann objected to the admission of the videotape on grounds that the State had failed to establish the proper predicate. The unpublished memorandum holds that Banzaca’s testimony was sufficient to meet the seven-prong standard for admission required by the “silent-witness” theory, Voudrie v. State, 387 So.2d 248 (Ala.Crim.App.1980). I disagree.

The “silent-witness” theory allows for the admission of a videotape, even without the testimony of a witness who observed the event, because another witness testifies as to the process by which the videotape was made, thus ensuring the trustworthiness and reliability of the videotape. The unpublished memorandum correctly states the seven-prong Voudrie standard, which requires certain proof:

1. The device or process that produced the videotape was capable of recording what a witness would have seen or heard if he had been present.
2. The operator of the device or process was competent to operate it.
3. The resulting videotape was authentic and correct.
4. No changes, additions, or deletions were made.
5. The videotape was properly preserved.
6. The persons depicted on the videotape are identified.
7. Any statement made in a criminal case was voluntarily given. E.g., Straughn v. State, 876 So.2d 492, 503 (Ala.Crim.App.2003). Several of these requirements were not met in this case.

Banzaca testified that he had worked with Toomey for several years and that he recognized Toomey’s handwriting on the outside sleeve of the videotape. He also testified that the police department had placed a hidden video camera and microphone in a clock in the interview room so that interrogations could be recorded. Banzaca identified Toomey and Mann on the videotape. He also testified that “normally” a police officer would advise a defendant of his constitutional rights before questioning began. Finally, Banzaca testified that he had obtained the videotape from a secured locker in the evidence room at the police department.

I disagree with the conclusion in the unpublished memorandum that Banzaca’s testimony was sufficient to satisfy the Voudrie requirements. Banzaca did not testify that Toomey was competent to operate the videotaping equipment or that the videotape offered at trial was authentic and correct. Banzaca also did not testify that the videotape had not been changed in any way. Finally, Banzaca did not testify that Mann’s statement had been voluntarily made, without any coercion. The State failed to establish four of the seven requirements of the “silent-witness” theory.

I am sympathetic to the State’s dilemma here, because of Toomey’s unavailability as a result of his military service. However, Toomey’s unavailability in no way eliminates the State’s obligation to satisfy the Voudrie requirements under the “silent-witness” theory. The State did not satisfy the requirements, and the trial court erred when it admitted the videotape.

For the foregoing reasons, I dissent.


author: COBB, Judge. BASCHAB, Judge,

text:
    R.A. v. STATE of Alabama.
    CR-04-1360.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 2006.
    Rehearing Denied March 17, 2006.
    Certiorari Denied May 12, 2006 Alabama Supreme Court 1050849.
    John C. Taylor, Huntsville, for appellant.
    Troy King, atty. gen., and Andy Scott Poole, asst. atty. gen., for appellee.
   COBB, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, P. J., and SHAW and WISE, JJ., concur. BASCHAB, J., dissents, with opinion.

BASCHAB, Judge,

dissenting.

In this case, the appellant was convicted of one count of first-degree sodomy, a violation of § 13A-6-63(a)(l), Ala.Code 1975, and one count of second-degree sodomy, a violation of § 13A-6-64(a)(l), Ala. Code 1975. However, both of the appellant’s convictions were based on evidence that, on one occasion, the appellant put his mouth or tongue on the victim’s vagina. Therefore, the appellant’s convictions for both first-degree sodomy and second-degree sodomy violate double jeopardy principles, and one of his convictions should be set aside. See Ex parte Robey, 920 So.2d 1069 (Ala.2004); Ex parte Washington, 571 So.2d 1062 (Ala.1990). Accordingly, I must respectfully dissent.


text:
    In re STANDARD JURY INSTRUCTIONS IN CIVIL CASES (NO. 06-01).
    No. SC06-1197.
    Supreme Court of Florida.
    Nov. 22, 2006.
    Scott D. Makar, Chair, Supreme Court Committee on Standard Jury Instruction (Civil), Office of the General Counsel, Jacksonville, Florida, Tracy Raffles Gunn, Vice Chair, of Fowler, White, Boggs, Banker, P.A., Tampa, Florida, Bruce J. Berman, Chair, Plain English Subcommittee, of McDermott, Will and Emery, LLP, Miami, Florida, and Joseph H. Lang, Jr., Filing Subcommittee, of Carlton Fields, P.A., Tampa, Florida, for Petitioner.
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Civil Cases (Committee) has submitted proposed changes to the Standard Jury Instructions in Civil Cases. We have jurisdiction. See art. V, § 2(a), Fla. Const.

On June 15, 2006, the Committee filed a report proposing changes to Standard Jury Instructions 1.0, Preliminary Voir Dire Instruction, and 1.1, Preliminary Instruction. The Committee also proposes new Standard Jury Instruction 7.0, Closing Argument. Prior to submitting this report to the Court, the Committee published the proposed revisions and new instruction in the June 1, 2005, edition of The Florida Bar Neius. After considering four comments received following this publication and undertaking further review, the Committee modified instruction 1.1 in response to one comment and rejected the other comments. The changes made subsequent to the comments were not significant and did not warrant republication.

The proposals were made as a part of the Committee’s ongoing effort to simplify and clarify existing standard instructions in response to the Jury Innovations Committee’s recommendation that “[a]ll instructions should be as simple and clear as possible.” See Judicial Mgmt. Council, Final Report of Jury Innovations Committee 52 (May 2001) (on file with Clerk, Fla. Sup.Ct.). The proposals are intended to afford venirepersons and jurors with a better understanding of the jury process.

Upon consideration, we hereby authorize for publication and use the revised instructions and new instruction as set forth in the appendix attached to this opinion. We express no opinion on the correctness of these instructions and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of these instructions. The amendments shall be effective when this opinion becomes final. We wish to express our appreciation to the Committee for its dedication in presenting to the Court its recommendations.

It is so ordered.

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

APPENDIX

PRELIMINARY INSTRUCTION 1.0

[Prior to Voir Dire]

Welcome. [I] [The clerk] will now administer your oath.

Now that you have been sworn, I’d like to give you an idea about what we are here to do.

What is this proceeding?

This is a civil trial. A civil trial is different from a criminal case, where a defendant is charged by the state prosecutor with committing a crime. The subject of a civil trial is a disagreement between people or companies [or others, as appropriate], where the claims of one or more of these parties has been brought to court to be resolved. It is called “a trial of a lawsuit.”

(Insert brief description of claim(s) brought to trial in this case)

Who are the people here and what do they do?

Judge/Court: I am the Judge. You may hear people occasionally refer to me as “The Court.” That is the formal name for my role. My job is to maintain order and decide how to apply the rules of the law to the trial. I will also explain various rules to you that you will need to know in order to do your job as the jury. It is my job to remain neutral on the issues of this lawsuit.

Attorneys: The attorneys to whom I will introduce you have the job of representing their clients. That is, they speak for their client here at the trial. They have taken oaths as attorneys to do their best and to follow the rules for their profession.

Plaintiff’s Counsel: The attorney on this side of the courtroom, (introduce by name), represents (client name) and is the person who filed the lawsuit here at the courthouse. [His] [Her] job is to present [his] [her] client’s side of things to you. [He] [She] and [his] [her] client will be referred to most of the time as “the plaintiff.”

Defendant’s Counsel: The attorney on this side of the courtroom, (introduce by name), represents (client name), the one who has been sued. [His] [Her] job is to present [his] [her] client’s side of things to you. [He] [She] and [his] [her] client will usually be referred to here as “the defendant.”

Court Clerk: This person sitting in front of me, (name), is the court clerk. [He] [She] is here to assist me with some of the mechanics of the trial process, including the numbering and collection of the exhibits that are introduced in the course of the trial.

Court Reporter: The person sitting at the stenographic machine, (name), is the court reporter. [His] [Her] job is to keep an accurate legal record of everything we say and do during this trial.

Bailiff: The person over there, (name), is the bailiff. [His] [Her] job is to maintain order and security in the courtroom. The bailiff is also my representative to the jury. Anything you need or any problems that come up for you during the course of the trial should be brought to [him] [her]. However, the bailiff cannot answer any of your questions about the case. Only I can do that.

Jury: Last, but not least, is the jury, which we will begin to select in a few moments from among all of you. The jury’s job will be to decide what the facts are and what the facts mean. Jurors should be as neutral as possible at this point and have no fixed opinion about the lawsuit. At the end of the trial the jury will give me a written verdict. A verdict is simply the juiy’s answer to my questions about the case.

Voir Dire:

The last thing I want to do, before we begin to select the jury, is to explain to you how the selection process works.

Questions/Challenges. This is the part of the case where the parties and their lawyers have the opportunity to get to know a little bit about you, in order to help them come to their own conclusions about your ability to be fair and impartial, so they can decide who they think should be the jurors in this case.

How we go about that is as follows: First, I’ll ask some general questions of you. Then, each of the lawyers will have more specific questions that they will ask of you. After they have asked all of their questions, I will meet with them and they will tell me their choices for jurors. Each side can ask that I exclude a person from serving on a jury if they can give me a reason to believe that he or she might be unable to be fair and impartial. That is what is called a challenge for cause. The lawyers also have a certain number of what are called peremptory challenges, by which they may exclude a person from the jury without giving a reason. By this process of elimination, the remaining persons are selected as the jury. It may take more than one conference among the parties, their attorneys, and me before the final selections are made.

Purpose of Questioning. The questions that you will be asked during this process are not intended to embarrass you or unnecessarily pry into your personal affairs, but it is important that the parties and their attorneys know enough about you to make this important decision. If a question is asked that you would prefer not to answer in front of the whole courtroom, just let me know and you can come up here and give your answer just in front of the attorneys and me. If you have a question of either the attorneys or me, don’t hesitate to let me know.

Response to Questioning. There are no right or wrong answers to the questions that will be asked of you. The only thing that I ask is that you answer the questions as frankly and as honestly and as completely as you can. You [will take] [have taken] an oath to answer all questions truthfully and completely and you must do so. Remaining silent when you have information you should disclose is a violation of that oath as well. If a juror violates this oath, it not only may result in having to try the case all over again but also can result in civil and criminal penalties against a juror personally. So, again, it is very important that you be as honest and complete with your answers as you possibly can. If you don’t understand the question, please raise your hand and ask for an explanation or clarification.

In sum, this is a process to assist the parties and their attorneys to select a fair and impartial jury. All of the questions they ask you are for this purpose. If, for any reason, you do not think you can be a fair and impartial juror, you must tell us.

NOTE ON USE

The publication of this recommended instruction is not intended to intrude upon the trial judge’s own style and manner of delivery. It may be useful in cataloging the subjects to be covered in an introductory instruction.

PRELIMINARY INSTRUCTION 1.1

[After Jury Selection]

(Administer oath)

What mil be happening?

You have now taken an oath to serve as jurors in this trial. Before we begin, I want to let you know what you can expect.

Opening Statements: In a few moments, the attorneys will each have a chance to make what are called opening statements. In an opening statement, an attorney is allowed to give you [his] [her] views about what the evidence will be in the trial and what you are likely to see and hear in the testimony.

Evidentiary Phase: After the attorneys’ opening statements the plaintiffs will bring their witnesses and evidence to you.

Evidence. Evidence is the information that the law allows you to see or hear in deciding this case. Evidence includes the testimony of the witnesses, documents, and anything else that I instruct you to consider.

Witnesses. A witness is a person who takes an oath to tell the truth and then answers attorneys’ questions for the jury. The answering of attorneys’ questions by witnesses is called “giving testimony.” Testimony means statements that are made when someone has sworn an oath to tell the truth.

The plaintiffs lawyer will normally ask a witness the questions first so as to provide you the testimony that the plaintiffs lawyer believes is helpful to [his] [her] case. That is called direct examination. Then the defense lawyer may ask the same witness additional questions about whatever the witness has testified to. That is called cross-examination. Certain documents or other evidence may also be shown to you during direct or cross-examination. After the plaintiffs witnesses have testified, the defendant will have the opportunity to put witnesses on the stand and go through the same process. Then the plaintiffs lawyer gets to do cross-examination. The process is designed to be fair to both sides.

It is important that you remember that testimony comes from witnesses. The attorneys do not give testimony and they are not themselves witnesses.

Objections: Sometimes the attorneys will disagree about the rules for trial procedure when a question is asked of a witness. When that happens, one of the lawyers may make what is called an “objection.” The rules for a trial can be complicated, and there are many reasons for attorneys to object. You should simply wait for me to decide how to proceed. If I say that an objection is “sustained,” that means the witness may not answer the question. If I say that the objection is “overruled,” that means the witness may answer the question.

When there is an objection and I make a decision, you must not assume from that decision that I have any particular opinion other than that the rules for conducting a trial are being correctly followed. If I say a question may not be asked or answered, you must not try to guess what the answer would have been. That is against the rules, too.

Side Bar Conferences: Sometimes I will need to speak to the attorneys about legal elements of the case that are not appropriate for the jury to hear. The attorneys and I will try to have as few of these conferences as possible while you are giving us your valuable time in the courtroom. But, if we do have to have such a conference during testimony, we will try to hold the conference at the side of my desk so that we do not have to take a break and ask you to leave the courtroom.

Recesses: Breaks in an ongoing trial are usually called “recesses.” During a recess you still have your duties as a juror and must follow the rules, even while having coffee, at lunch, or at home.

Instructions Before Closing Arguments: After all the evidence has been presented to you, I will instruct you in the law that you must follow. It is important that you remember these instructions to assist you in evaluating the final attorney presentations, which come next, and, later, during your deliberations, to help you correctly sort through the evidence to reach your decision.

Closing Arguments: The attorneys will then have the opportunity to make their final presentations to you, which are called closing arguments.

Final Instructions: After you have heard the closing arguments, I will instruct you further in the law as well as explain to you the procedures you must follow to decide the case.

Deliberations: After you hear the final jury instructions, you will go to the jury room and discuss and decide the questions I have put on your verdict form. [You will have a copy of the jury instructions to use during your discussions.] The discussions you have and the decisions you make are usually called “jury deliberations.” Your deliberations are absolutely private and neither I nor anyone else will be with you in the jury room.

Verdict: When you have finished answering the questions, you will give the verdict form to the bailiff, and we will all return to the courtroom where your verdict will be read. When that is completed, you will be released from your assignment as a juror.

What are the rules ?

Before we begin the trial, I want to give you just a brief explanation of the applicable rules.

Keeping an Open Mind. You must pay close attention to the testimony and other evidence as it comes into the trial. However, you must avoid forming any final opinion or telling anyone else your views on the case until you begin your deliberations. This rule requires you to keep an open mind until you have heard all of the evidence and is designed to prevent you from influencing how your fellow jurors think until they have heard all of the evidence and had an opportunity to form their own opinions. The time and place for coming to your final opinions and speaking about them with your fellow jurors is during deliberations in the jury room, after all of the evidence has been presented, closing arguments have been made, and I have instructed you on the law. It is important that you hear all of the facts and that you hear the law and how to apply it before you start deciding anything.

Consider Only the Evidence. It is the things you hear and see in this courtroom that matter in this trial. The law tells us that a juror can consider only the testimony and other evidence that all the other jurors have also heard and seen in the presence of the judge and the lawyers. Doing anything else is wrong and is against the law. That means that you cannot do any homework or investigation of your own. You cannot obtain on your own any information about the case or about anyone involved in the case, from any source whatsoever, including the internet, and you cannot visit places mentioned in the trial.

The law also tells us that jurors cannot have discussions of any sort with friends or family members about the case or its subject. So, do not let even the closest family members make comments to you or ask questions about the trial. Similarly, it is important that you avoid reading- any newspaper accounts or watching or listening to television or radio comments that have anything to do with this case or its subject.

No Mid-Trial Discussions. When we are in a recess, do not discuss anything about the trial or the case with each other or with anyone else. If attorneys approach you, don’t speak with them. The law says they are to avoid contact with you. If an attorney will not look at you or speak to you, do not be offended or form a conclusion about that behavior. The attorney is not supposed to interact with jurors outside of the courtroom and is only following the rules. The attorney is not being impolite. If an attorney or anyone else does try to speak with you or says something about the case in your presence, please inform the bailiff immediately.

Only the Jury Decides. Only you get to deliberate and answer the verdict questions at the end of the trial. I will not intrude into your deliberations at all. I am required to be neutral. You should not assume that I prefer one decision over another. You should not try to guess what my opinion is about any part of the case. It would be wrong for you to conclude that anything I say or do means that I am for one side or another in the trial. Discussing and deciding the facts is your job alone.

NOTE ON USE

The publication of this recommended instruction is not intended to intrude upon the trial judge’s own style and manner of delivery. It may be useful in cataloging the subjects to be covered in an introductory instruction.

7.0 CLOSING ARGUMENT

Members of the jury, you have now heard all of the evidence in this case. The attorneys will now make their final arguments. What the attorneys say is not evidence. The arguments are a final opportunity for the attorneys to discuss the case and to persuade you to reach a verdict in favor of their clients.

Each side has equal time. (Plaintiffs attorney) will go first. (Defendant’s attorney) will then make [his] [her] [its] argument. Finally, (plaintiffs attorney) may make a rebuttal argument.

Please give the attorneys your close attention.


author: SUAREZ, J.

text:
    David B. INGRAHAM, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1471.
    District Court of Appeal of Florida, Third District.
    June 7, 2006.
    Rehearing and Rehearing En Banc Denied Dec. 28, 2006.
    David B. Ingraham, in proper person.
    Charles J. Crist, Jr., Attorney General, and Angel L. Fleming, Assistant Attorney General, for appellee.
    Before COPE, C.J., and LEVY, and SUAREZ, JJ.
   SUAREZ, J.

The defendant, David B. Ingraham, appeals the trial court’s order prohibiting the defendant from filing any further post-trial motions raising claims previously decided. We affirm.

The defendant was convicted and sentenced on April 3, 1992. Since that time, according to an order of the trial court and the record, the defendant has filed six post-trial conviction motions alleging the same claim concerning the co-defendant’s polygraph. The defendant correctly claims that he has filed only four post-conviction motions. The issues raised have been previously ruled upon and affirmed on appeal. Upon the filing of defendant’s last post-trial motion on the same issue, the trial court ordered a hearing pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999), to determine whether the defendant should be prohibited from filing further motions on the same issue. The defendant was noticed and was transported to Dade County for the hearing.

The Spencer hearing was conducted. The trial court found that the defendant was abusing the system by filing these frivolous successive petitions. The trial court went so far at the hearing as to ask the defendant if he had any more motions to file as to the co-defendant’s polygraph. The trial court ordered, both orally in the presence of the defendant and by written order sent to the defendant, that he was prohibited from filing any further pro se motions for post-conviction relief or any other motions relating to issues previously heard and decided by the trial court, including but not limited to any issue related to the co-defendant’s testimony and/or any polygraph examinations. If the defendant files any motion in violation of the order he will face possible denial of earned gain time or subtraction of gain time earned for each motion filed.

We find that the trial court did not abuse its discretion and affirm the order. See Rivera v. State, 728 So.2d 1165 (Fla.1998); Graham v. Graham, 898 So.2d 210 (Fla. 2d DCA2005).


author: CORTIÑAS, Judge. SCHWARTZ, Senior Judge

text:
    PASTEUR MEDICAL CENTER, INC., et al., Petitioners, v. WELLCARE OF FLORIDA, INC., etc., et al., Respondents.
    Nos. 3D06-826, 3D06-816.
    District Court of Appeal of Florida, Third District.
    June 28, 2006.
    Rehearing and Rehearing En Banc Denied Dee. 7, 2006.

      McIntosh, Sawran, Peltz & Cartaya and Douglas M. McIntosh, Robert C. Weill and Marilyn Garcia, Fort Lauderdale, for petitioners.
    Boies, Schiller & Flexner and Jennifer G. Altman and Antonio C. Castro, Miami, for respondents.
    Before FLETCHER and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.
   CORTIÑAS, Judge.

Petitioners seek a writ of prohibition or, alternatively, a writ of mandamus based on the trial judge’s refusal to disqualify the Special Master, finding Petitioners’ claims legally insufficient. Because we find that the Special Master’s conduct does not reach the high threshold necessary for disqualification, we deny the petitions.

I. BACKGROUND

Ariadna Marrero, Luis Menes, and Julio Herrera are health insurance agents (collectively “Agents”) and former employees of respondent, Comprehensive Health Management Inc. (“Comprehensive”), a provider of healthcare management services. Gerardo Necuze, Luis A. Perez, and Manuel Enriques are principals of Pasteur Medical Centers (“Pasteur”). The Agents managed the patient relations between Pasteur and respondent, Wellcare of Florida, Inc., f/k/a Wellcare HMO, Inc. (“Wellcare”), a health maintenance organization. In December 2005, Respondents, Wellcare and Comprehensive, filed an action against the Agents and Pasteur (collectively “Petitioners”), alleging, inter alia, breach of contract and breach of confidentiality.

On December 22, 2005, the trial court appointed a Special Master to oversee the interests of the patients in the transition phase while Wellcare separated from Pasteur. Specifically, the Special Master was to administer the orders set forth by the trial judge to assure the parties’ compliance with federal guidelines and other laws and regulations, and to assure continuity of care for the patients. The Special Master was conferred, in part, the following powers:

It shall be up to the Court and/or the Special Master to determine the manner in which such compliance ... shall be determined. To the extent that the Special Master desires to utilize covert investigatory tactics, he/she shall obtain prior Court approval without the necessity of notice to any of the parties. Further, the Special Master shall be free to communicate with counsel for the parties to obtain information or other materials, as he/she deems appropriate, relating to their services described hereunder.

On January 5, 2006, the trial court appointed attorney Joseph Zumpano (“Zum-pano”) as the Special Master upon the parties’ selection and approval. On that same day, Zumpano provided full disclosure to the parties of his intent to hire the law firm of Zumpano Patricios & Winker, P.A. and its investigative arm, ZP & W Investigations, LLC, to effectuate the trial court’s orders. At that time, Petitioners did not object.

Thereafter, Petitioners filed various motions questioning Zumpano’s authority under the order. On February 22, 2006, Zumpano sent a letter to the trial judge recommending the denial of the Agents’ motion to vacate an order that approved the Special Master’s course of action. Additionally, attorney Leon N. Patricios (“Pa-tricios”), on Zumpano’s behalf, submitted to the trial judge a courtesy copy of the Special Master’s Interim Application for Award of Fees and Costs (“Interim Application for Fees”). The Interim Application for Fees, in pertinent part, specified that Petitioners: were causing unnecessary hearings; sought to thwart the trial court’s efforts to put in place a Special Master; challenged the Special Master’s ability to get the process moving; and were stalling the case.

On February 24 and 27, 2006, Petitioners filed motions for recusal and disqualification, contending that Zumpano, through his filings with the trial court, improperly assumed an adversarial role by advocating positions contrary to Petitioners’ court filings and abandoning his impartial role. The trial court denied the motions as legally insufficient. Petitioners now seek review of these orders.

Florida Rule of Civil Procedure 1.490(d) specifies that the grounds for disqualifying a Special Master are the same as those to disqualify a judge. Fla. R. Civ. P. 1.490(d). Regarding matters of impartiality, the “special master must hold himself to the same high standards applicable to the conduct of judges.” Jenkins v. Sterlacci 849 F.2d 627, 631-32 (D.C.Cir.1988)(citing U.S. v. Conservation Chemical Co., 106 F.R.D. 210, 234 (W.D.Mo.1985)). Thus, since the Special Master performs duties similar to a trial judge and is held to the same high standard, the same high threshold for the purposes of disqualification should apply. See id. at 631, n. 1.

II. STATEMENT BY THE SPECIAL MASTER

A motion for disqualification is legally sufficient “when the alleged facts would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial.” Valdes-Fauli v. Valdes-Fauli 903 So.2d 214, 216 (Fla. 3d DCA 2005)(ciimp Johnson v. State, 769 So.2d 990, 996 (Fla.2000); MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332, 1335 (Fla.1990)). Specifically, “[t]he question of disqualification focuses on those matters from which a litigant may reasonably question a judge’s impartiality rather than the court’s own perception of its ability to act fairly and impartially.” Valdes-Fauli 903 So.2d at 217 (citing Livingston v. State, 441 So.2d 1083, 1086 (Fla.1983)). Based on the facts presented in this case, we find insufficient evidence that the Special Master acted in such a manner that created in the litigants a well-founded fear of unfairness and impartiality.

Since the appointment of the Special Master, Petitioners have questioned his authority to effectuate his functions as ordered by the trial court. The trial court intended for the Special Master to be the “eyes and ears” of the court, and stated that the Special Master “would have the opportunity to get some aids to go and check what’s going on at different facilities ... and oversee the care of these [patients].” The trial court also allowed, with its prior permission and proper notice to the parties, the use of “covert investigatory tactics.” From this language, it is clear that the trial judge intended for the Special Master to have broad powers in carrying out his duties.

Under these guidelines from the trial court, the Special Master initially sought to interview Petitioners, with counsel present, to gather the necessary information. In response, Petitioners challenged the Special Master’s authority to conduct such interviews and set the matter for a hearing before the trial judge. During that hearing, the trial court allowed Zumpano to proceed accordingly, and commended Zumpano’s efforts to gather information from the parties rather than proceed blindly in his efforts. Thereafter, Pasteur challenged the retention of Zumpano’s firm and investigators, almost seven weeks after receiving full disclosure and consenting to the Special Master’s retention. Finally, Petitioners challenged Zumpano’s Interim Application for Fees alleging that Zumpano made improper and impartial statements in his attempt to keep the trial court informed of his progress in the matter.

We do not find that the Special Master’s statements rise to the level of bias sufficient to create a reasonable fear in Petitioners that they will not receive a fair and impartial trial. The requirements for disqualification were established, in part, to prevent the process from being abused by one party for purposes of delay, and to prevent judge and master shopping, unrelated to the fairness and impropriety of the proceeding. See Livingston, 441 So.2d at 1086; Crespo v. Crespo, 762 So.2d 568, 570 (Fla. 3d DCA 2000). At a minimum, as the “eyes and ears” of the court, the Special Master informed the trial court of what it would have encountered in the Special Master’s absence. Ultimately, the trial court observed:

It’s been the [Petitioners] who have tried after initially agreeing to everything, tried everything they could to stop this.... I’ve never seen such a flood of paper in 25 years of practice, and six years — five years on the bench.

Petitioners claim that Zumpano’s statements in various communications with the trial court were improper and demonstrated a bias towards them. Yet, there is no evidence that Zumpano’s remarks were of a “specific and personalized nature” sufficient to warrant disqualification. Valdes-Fauli, 903 So.2d at 218 (finding exceptional circumstances and disqualification proper when the trial judge, among other things, specifically made derogatory comments to a party for seeking alimony). On the contrary, Zumpano made comments regarding the progression of the case and issues that hindered his ability to proceed. This is not a case which would support a reasonable fear of unfairness, such as when the judge or his agent has predetermined certain facts against a party, see Kopel v. Kopel, 832 So.2d 108 (Fla. 3d DCA 2002), or questioned the credibility of a defendant, see Campbell Soup Co. v. Roberts, 676 So.2d 435 (Fla. 2d DCA 1995).

A Special Master, just as a trial judge, must be heard and be an active participant in the trial. See Kopel, 832 So.2d at 108-09 (Schwartz, J., specially concurring). The Special Master must be permitted to relay information regarding compliance with the court’s orders, and the progress in carrying out such orders. “The task of the courts is too important, indeed too sacred, to be left to the litigants and their counsel alone. The meaningful participation of the trial judge [or his agent] is indispensable to that process.” Valdes-Fauli, 903 So.2d at 219 (Schwartz, C.J., dissenting). The fact that the comments were made in the Interim Application for Fees, and not in a ruling or at the trial court’s request, is irrelevant. Zumpa-no’s actions were well within the mandate of the trial court’s order providing that the Special Master shall be responsible for “overseeing and enforcing” its orders and keeping it abreast of his progress.

III. ROLE OF SPECIAL MASTER

Petitioners also argue that the Special Master improperly assumed an adversarial posture throughout the proceedings below by having Patricios personally attend certain hearings before the trial court. However, although not necessarily advisable, there is nothing inherently improper or adversarial in the attendance of the Special Master’s agent during hearings which specifically addressed the scope of powers of and the course of action to be taken by the Special Master. This is distinguishable from attendance at proceedings which raise other types of issues, such as a summary judgment motion or a motion to dismiss, where advocates argue their positions regarding the underlying case and substantive findings are rendered.

Additionally, the Agents contend that Zumpano’s filings support a conclusion that he was advocating to support his own decisions. We find this argument meritless since the Special Master or his agent may communicate with the trial court regarding matters of his own appointment, without assuming the role of an advocate.

IV. CONCLUSION

The trial court found insufficient evidence to warrant disqualification of the Special Master. We agree, and find Petitioners’ claims of bias insufficient to support a finding that Petitioners reasonably-feared not receiving a fair and impartial trial. Accordingly, we deny the petitions.

Petitions for writs of prohibition and mandamus denied.

FLETCHER, J., concurs.

SCHWARTZ, Senior Judge

(dissenting).

I believe that the circumstances, as fairly described by the majority, reflect that the master has entered into an intolerable adversary relationship with the petitioners and their counsel with respect to the vital issues of his own authority, duties and responsibilities (as well as the billable hours required to discharge them) which requires his disqualification. See Bundy v. Rudd, 366 So.2d 440 (Fla.1978); Dep’t of Revenue v. Golder, 322 So.2d 1 (Fla.1975).

      . The Florida Supreme Court amended Florida Rule of Civil Procedure 1.490, changing references of ''masters” to "magistrates,” to conform to new legislation. See Amendments to the Fla. R. of App. P., the Fla. R. of Civ. P., etc., 887 So.2d 1090, 1090-91 (Fla.2004). For consistency with the lower court, we continue to use the term "master.”

      . Pasteur and the Agents have since filed several appeals regarding the appointment of the Special Master and the course of action taken by the trial court. See consolidated cases 3D06-598, -600, -657 & -809.

      . An "advocate” is defined as "a person who assists, defends, pleads, or prosecutes for another.” Black's Law Dictionary 60 (8th ed. 2001)(emphasis added). A Special Master, supporting his own decisions, cannot reasonably be found to act on behalf of another.

      . Although we have conducted a de novo review in order to afford Petitioners' claims ample consideration, in light of the importance of a judge’s impartiality, appellate review of a trial court’s disqualification findings concerning a Special Master may be reviewable under an abuse of discretion standard. See Rios v. Ent. Ass’n Steamfitters Local Union 638 of U.A., 860 F.2d 1168, 1174-75 (2d Cir.1988).