author: PLEUS, C.J.

text:
    Jose O. HENAO, Appellant, v. PROFESSIONAL SHOE REPAIR, INC. and Luis A. Restrepo, Appellee.
    No. 5D05-2348.
    District Court of Appeal of Florida, Fifth District.
    May 26, 2006.
    Reversed and remanded.

      Mario A. Garcia, of Mario A. Garcia, P.A., Orlando, for Appellant.
    Luis A. Gonzalez, of L.A. Gonzalez Law Offices, and Darren M. Soto of D. Soto Law Offices, P.A., Orlando, for Appellees.
   PLEUS, C.J.

This appeal from an order granting a motion for judgment on the pleadings presents the question of whether a complaint which seeks enforcement of a covenant not to compete, executed by the buyer of a business in favor of the seller, states a viable cause of action. We hold that it does.

According to the amended complaint, Jose Henao and Luis Restrepo were in the business of repairing footwear. At one time, Henao and Restrepo were equal shareholders in Professional Shoe Repair, Inc. (“PSR”). PSR had a lucrative contract with Walt Disney World Company (“Disney contract”). In October 1999, He-nao and Restrepo entered into a stock purchase agreement whereby Henao sold his 50% interest in PSR to Restrepo for $28,000. Under the terms of the stock purchase agreement, Restrepo, as buyer, assigned all rights, title and interest in the Disney contract to Henao, the seller.

The amended complaint continues that the Disney contract was assignable with Disney’s consent and that Disney executed a new contract under the same terms and conditions as the previous one, substituting Henao’s firm, Shoe Repair, USA, for PSR.

The stock purchase agreement included the following covenant not to compete at Article IV:

4.0 The Buyer [Restrepo] agrees that for a period of ten (10) years from the closing date, the Buyer will not engage, directly or indirectly, either as a principal, agent, proprietor, shareholder, director, officer, or employee, or participate in the ownership, management, operation, or control or have any interest of any nature whatsoever in any organization, incorporation, partnership, firm, or business engaged in footwear repairs and/or the sales of related accessories to Walt Disney World Company, or any other subsidiaries, or related entitles and corporations.

Henao alleges that the buyer, Restrepo, and PSR, breached this provision by soliciting and performing footwear repair services on behalf of Disney to his detriment. Henao included counts alleging breach of the stock purchase agreement, intentional interference with an advantageous business and/or contractual relationship, and for injunctive relief.

The defendants convinced the trial court that the covenant not to compete is void and unenforceable against Restrepo as an illegal restraint of trade.

Standard of Review

The standard of appellate review of a decision to grant a motion for judgment on the pleadings is de novo. Syvrud v. Today Real Estate, Inc., 858 So.2d 1125, 1129 (Fla. 2d DCA 2003). A motion for judgment on the pleadings is governed by the same legal test as a motion to dismiss for failure to state a cause of action. Domres v. Perrigan, 760 So.2d 1028 (Fla. 5th DCA 2000).

Florida Law Governing Enforcement of Non-Compete Covenants

This case presents a somewhat atypical covenant not to compete situation — one in which the buyer of a business, as opposed to the seller, agrees not to engage in any business with one of the clients of the business, whom the parties agreed the seller could retain for himself. The defendants argue that the decision in Flatley v. Forbes, 483 So.2d 483 (Fla. 2d DCA 1986), holds that under section 542.33, Florida Statutes (1983), a covenant prohibiting the buyer of a business from competing with the seller is unenforceable.

Flatley involved the sale of a Pasco County dental practice owned by Dr. Flat-ley to Dr. Forbes. The contract contained a covenant expressly barring Dr. Forbes from practicing, for five years, dentistry in Pinellas County where Dr. Flatley continued to practice dentistry. Upon learning of Dr. Forbes’ plan to develop a practice in Pinellas County, Dr. Flatley filed a complaint seeking a declaratory judgment enforcing the anti-competition covenant. Dr. Forbes countered that the covenant was void and unenforceable by reason of section 542.33, Florida Statutes, and the trial court agreed, entering summary judgment in favor of Dr. Forbes.

The Second District affirmed. The court began by explaining that “at common law, contracts which hindered one’s right to follow one’s calling and support one’s self and family were considered invalid as against public policy.” 483 So.2d at 484. Indeed, section 542.18, Florida Statutes (1983), stated (and continues to state) the general rule in Florida that contracts in restraint of trade are unlawful. The court then noted that section 542.33 provides for recognition of a limited class of covenants not to compete. While in certain situations, the seller of a business may agree, as part of the consideration for the transaction, not to compete with the buyer, section 542.33 did not recognize agreements whereby the buyer agrees not to compete with the seller. Id. at 485. The court stated that:

a fundamental difference exists between the matter at hand and one in which the seller of the assets and goodwill of a business promises as part of the consideration received from the sale to forebear from competing with the buyer. In the latter circumstance, the buyer is entitled to the full benefit of the bargain, i.e. the preservation of customers and the ability to enter the field of competition unimpaired by the adverse influence of the seller’s mercantile presence [citation omitted]. That reasoning, however, is not applicable to the setting in which the buyer agrees not to compete with the seller.

483 So.2d at 485.

The Flatley court continued:

We are not willing to construct exceptions that would further undercut the common law principle. That is a matter coming wholly within the contemplation and action of the Legislature.

Id.

The Flatley decision thus is based on a literal reading of section 542.33(1) that all restraints of trade are illegal and unenforceable unless clearly within the narrow exceptions contained in subsections (2) and (3). Section 542.33, however, was repealed with respect to restrictive covenants entered into or having an effective date on or after July 1,1996, as a result of enactment, in 1996, of section 542.335, Florida Statutes, entitled “Valid restraints of trade or commerce.” Since the agreement containing the covenant not to compete here was entered into in 1999, section 542.335 and not section 542.33, applies in considering its enforceability. See generally, Cooper v. Thomas Craig & Co., LLP, 906 So.2d 378 (Fla. 2d DCA 2005).

Section 542.335 contains a comprehensive framework for analyzing, evaluating and enforcing restrictive covenants in Florida based on an “unfair competition” analysis. See John A. Grant & Thomas Steele, Restrictive Covenants: Florida Returns to the Original “Unfair Competition” Approach to the 21st Century, 70 Fla. B.J. 53, 53-56 (Nov. 1996). According to this review, co-authored by the legislation’s Senate sponsor, the term “restrictive covenants” includes all contractual restrictions upon competition, such as noncom-petition/nonsolicitation agreements, confidentiality agreements, exclusive dealing agreements, and all other contractual restraints of trade. Id. at 54. Section 542.335 is broadly “aimed at making enforcement of bona fide restrictive covenants easier and more certain.” Id. at 55.

In contrast to section 542.33(1), which provides that, except to the extent authorized in subsections 542.33(2) and (3), all restraints of trade are illegal and unenforceable, section 542.335(1) provides:

Notwithstanding s. 542.18 and subsection (2), enforcement of contracts that restrict or prohibit competition during or after the term of restrictive covenants, so long as such contracts are i*easonable in time, area, and line of business, is not prohibited....

This language provides broad general authority for enforcement of restrictive covenants though section 542.335 contains several additional prerequisites to enforceability: that the restrictive covenant be set forth in a writing signed by the person against whom enforcement is sought, and that the restraint be shown to be reasonably necessary to protect the “legitimate business interests” justifying the restriction. In using the phrase “legitimate business interests” the legislature rejected the “contract approach” to enforcement of contractual restrictions on competition. Grant & Steele, p. 54. That approach had abandoned the original “unfair competition” theory of enforcement and ignored the protection of legitimate business interests. Id. In adopting the “legitimate business interests” standard, the Legislature took the view that “if the proponent of the restriction demonstrates that the restraint is reasonably necessary to protect one or more ‘legitimate business interests’ then, absent a strong defense, the court must accord such interest or interests an appropriate measure of protection.” Id. at 54.

Subsection 542.335(l)(d) additionally creates certain rebuttable presumptions in determining the reasonableness in time of a restrictive covenant not predicated upon the protection of trade secrets:

3. In the case of a restrictive covenant sought to be enforced against the seller of all or a part of:
a. The assets of a business or professional practice, or
b. The shares of a corporation, or
c. A partnership interest, or
d. A limited liability company membership, or
e. An equity interest, of any other type, in a business or professional practice,
a court may presume reasonable in time any restraint 3 years or less in duration and shall presume unreasonable in time any restraint more than 7 years in duration.

(Emphasis added).

Subsection(l)(d) 3 references a restrictive covenant “sought to be enforced against the seller” of a business or shares of a corporation but contains no corresponding provision dealing with enforcement against the buyer. Does this omission indicate a legislative intent that Flatley survive enactment of section 542.335 and that restrictive covenants remain unenforceable against the buyer of a business?

We conclude that the answer is no. A restrictive covenant which otherwise satisfies the dictates of the statute is not unenforceable because it constitutes a restraint on the buyer of a business or shares of a corporation. As noted above, unlike section 542.33, section 542.335(1) is expansive in scope. Section 542.335(l)(h) specifically provides:

A court shall construe a restrictive covenant in favor of providing reasonable protection to all legitimate business interests established by the person seeking enforcement. A court shall not employ any rule of contract construction that requires the court to construe a restrictive covenant narrowly, against the restraint, or against the drafter of the contract.

A “legitimate business interest” includes “substantial relationships with specific prospective or existing customers .... ” § 542.335(l)(b)3.

A valid restrictive covenant may be enforced by way of temporary and permanent injunctive relief. § 542.335(l)(j). A violation of an enforceable restrictive covenant creates a presumption of irreparable injury. Id.

This Case

According to the amended complaint, the buyer, Restrepo, agreed for a period of ten years not to engage in the footwear repair business with Disney, an existing customer retained by the seller pursuant to the terms of the agreement. Restrepo and PSR allegedly breached this provision by soliciting and performing services for Disney which Henao would have performed. These allegations adequately allege the existence of a legitimate business interest and breach of the restrictive covenant. Accordingly, Henao has stated a cause of action for enforcement pursuant to section 542.335.

The defendants point out that paragraphs 4.3 and 4.4 of the stock purchase agreement actually grant to the defendant buyer, Restrepo, the power to enforce the covenant not to compete and do not grant such right to the plaintiff seller:

4.3 Buyer and Seller acknowledge that this covenant was separately bargained for and is independent of any other provision of this Agreement, and the existence of any claim or cause of action by Seller against Buyer shall not constitute a defense to the enforcement by Buyer of this covenant.
4.4 Should the Buyer breach this covenant, the Buyer shall be entitled to an immediate temporary injunction without notice or bond and such other relief as may be appropriate under the circumstances. Seller agrees that this provision is reasonable in area and time limitations and is necessary to protect the Buyer. The right to an injunction is cumulative to damage, claims and all other rights of Buyer for breach of this covenant.

(Emphasis added).

We agree with the plaintiff that the parties were erroneously designated in these two provisions. It is otherwise evident from the agreement that the parties intended to restrict the defendants, Res-trepo and PSR, from engaging in business with Disney. Even if the agreement is internally ambiguous, a factual issue is raised which could not be resolved by entry of judgment on the pleadings.

The agreement clearly bars the defendants, Restrepo and PSR, from competing for Disney’s business. While the remedy language erroneously gives to the buyer the right to injunctive relief in the event of a breach of the covenant, this error is not fatal to the plaintiffs claim since subsection 542.335(l)(j) expressly and independently authorizes injunctive relief to enforce a valid restrictive covenant.

The defendants challenge the assignment of the Disney contract to the plaintiffs firm, Shoe Repair, USA, claiming the contract was never assigned. The amended complaint, however, alleges an assignment of contract rights and the stock purchase agreement recites an assignment. A purchase order between Shoe Repair, USA and Disney, reflecting the name change in the shoe repair business is attached to the amended complaint.

The ten year duration of the noncom-pete provision seems problematic given that subsection 542.335(l)(d)3 provides that where a restrictive covenant is sought to be enforced against the seller of a business or the shares of a corporation, a restraint of more than seven years duration is presumed unreasonable. Certainly a buyer should be in no better position than a seller in this regard. However, subsection (c) provides that “If a contractually specified restraint is over-broad, overlong, or otherwise not reasonably necessary to protect the legitimate business interest or interests, a court shall modify the restraint and grant only the relief reasonably necessary to protect such interest or interests.” Given an otherwise valid and enforceable covenant not to compete, the trial court could reduce the ten year time period. Indeed, because the purchase order between Shoe Repair, USA, and Disney provided for their agreement to run from October 1, 1999, to September 30, 2002, it could be argued that the plaintiffs “legitimate business interest” expired on the latter date.

Finally, the basis for entry of judgment on the pleadings as to the count alleging intentional interference with an advantageous business relationship is that the restrictive covenant in the agreement is unenforceable. Because the restrictive covenant is viable, this count states a cause of action, particularly since it alleges the existence of a contract, the defendants’ knowledge of the contract, an intentional and unjustified interference with the contract by the defendants, and resultant damages. See Gossard v. Adia Services, Inc., 723 So.2d 182 (Fla.1998).

The trial court erred in granting judgment on the pleadings. Under section 542.335, the noncompete agreement here is not an illegal restraint of trade.

REVERSED AND REMANDED.

PALMER and TORPY, JJ., concur.

      . Section 542.33 provided in relevant part:
      (1) [E]very contract by which any one is restrained from exercising a lawful profession, trade, or business of any kind, otherwise than is provided by subsections (2) and (3) hereof, is to that extent void.
      (2)(a) One who sells the good will of a business, or any shareholder or a corporation selling or otherwise disposing of all of his shares in said corporation, may agree with the buyer, and one who is employed as an agent or employee may agree with his employer, to refrain from carrying on or engaging in a similar business and from soliciting old customers of such employer within a reasonably limited time and area....
      This statute was amended in 1990 in aspects not relevant to the issue in this appeal.


source: Caselaw Access Project

author: SWEET, GARY L.,

license: Public Domain

text:
    DISCOVER PROPERTY & CASUALTY INSURANCE COMPANY, Appellant, v. BEACH CARS OF WEST PALM, INC., a Florida corporation, and Christina Jackson, Appellees.
    No. 4D04-4675.
    District Court of Appeal of Florida, Fourth District.
    May 31, 2006.

      Jeffrey A. Blaker and Hinda Klein of Conroy, Simberg, Ganon, Krevans & Abel, P.A., West Palm Beach, for appellant.
    Jane Kreusler-Walsh and Barbara J. Compiani of Jane Kreusler-Walsh, P.A., and Andrew M. Pelino of Burman, Critton, Luttier & Coleman, West Palm Beach, for appellee Beach Cars of West Palm, Inc.
   SWEET, GARY L.,

Associate Judge.

In this case, we review the trial court’s judgment obligating an insurer to cover its insured for an incident which occurred after the policy’s expiration date. Because the applicable coverage language did not expressly state the covered loss must occur during the policy period, the lower court found the policy ambiguous, construed its language against the insurer, and found coverage. We affirm and write this opinion for two reasons: 1) to once again make clear that insurers must clearly write in their policies what they mean if they wish to avoid findings of ambiguity; and 2) to address Appellant’s argument that an affirmance would cause an absurd and unreasonable result.

FACTS

In December 2001, Beach Cars of West Palm Beach, Inc. (“Beach Cars”) sold a 1994 Ford Explorer, which was involved in an accident in 2003. The rear seat passenger was injured, and she sued Beach Cars under various legal theories based upon the alleged failure of her seat belt. Beach Cars looked to its insurer, Discover Property and Casualty Insurance Company (“Discover”), to provide a defense against the suit and coverage for any resulting liability. Discover provided Beach Cars a defense pursuant to a reservation of rights and then instituted a declaratory judgment action regarding its obligations to defend and indemnify Beach Cars. The insurance policy that Discover issued to Beach Cars included the following provisions:

GARAGE COVERAGE FORM
SECTION II — LIABILITY COVERAGE
A. Coverage
“GARAGE OPERATIONS” — OTHER THAN COVERED “AUTOS”
We will pay all sums an “insured” legally must pay as damages because of “bodily injury” or “property damage” to which this insurance applies caused by an “accident” and resulting from “garage operations” other than the ownership, maintenance or use of covered “autos”.
“GARAGE OPERATIONS” — COVERED “AUTOS”
We will pay all sums an “insured” legally must pay as damages because of “bodily injury” or “property damage” to which this insurance applies, caused by an “accident” and resulting from “garage operations” involving the ownership, maintenance or use of covered “autos”.
SECTION V — GARAGE CONDITIONS
The following conditions apply in addition to the Common Policy Conditions:
B. General Conditions
7. Policy Period, Coverage Territory
Under this Coverage Form, we cover:
a. “Bodily injury”, “property damage” and “losses” occurring; and
b. “Covered pollution cost or expense” arising out of “accidents” occurring during the policy period shown in the Declarations and within the coverage territory.
SECTION VI — DEFINITIONS
A. “Accident” includes continuous or repeated exposure to the same conditions resulting in “bodily injury” or “property damage”.
C. “Bodily injury” means bodily injury, sickness or disease sustained by a person including death resulting from any of these.
F. “Garage operations” means the ownership, maintenance or use of locations for garage business and that portion of the roads or other accesses that adjoin these locations. “Garage operations” includes the ownership, maintenance or use of the “autos” indicated in SECTION I of this Coverage Form as covered “autos”. “Garage operations” also include all operations necessary or incidental to a garage business.

The policy was effective from March 17, 2001, to March 17, 2002 — a time frame that encompassed the insured’s sale of the vehicle, but not the date of the injury-causing collision.

Both parties moved for summary judgment. Discover insisted there was no duty to defend or indemnify because the coverage afforded pursuant to the “Garage Coverage Form” was limited to liability for “bodily injury,” “property damage” and “losses” occurring during the policy’s effective dates and the relevant bodily injuries were not sustained until nearly two years after the policy’s expiration. This argument was predicated upon the language quoted above in section V(B)(7).

Beach Cars also filed a motion for summary judgment, insisting Discover had a duty both to defend and to indemnify. Beach Cars argued the policy was ambiguous as to whether the bodily injury must be sustained during the policy period to trigger coverage. Specifically, Beach Cars argued that neither section II, defining the scope of the coverage, nor section VI, defining “bodily injury” and “accident,” provided the accident or bodily injury had to take place during the policy period to trigger coverage.

The lower court reasoned “there [was] a need to indicate in paragraph 7 sub. (a) that [bodily injury] must occur during the policy period” and entered final judgment in favor of the insured. This appeal followed.

ANALYSIS

A. Standard of Review

Because this case involves the construction of an insurance contract, which is a question of law, the scope of our review is de novo. Gen. Star Indem. Co. v. W. Fla. Village Inn, Inc., 874 So.2d 26, 29 (Fla. 2d DCA 2004).

B. Discussion

Contracts, if written clearly and without ambiguity, are to be considered and interpreted as written. Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So.2d 528, 532 (Fla.2005). Such contractual language should be given its plain and ordinary meaning, and read in the context of the document as a whole. Gen. Star Indem. Co., 874 So.2d at 30. If possible, conflicting provisions of a contract are to be read in such a way as to give a reasonable interpretation and effect to all provisions. Cont'l Ins. Co. v. Collinsworth, 898 So.2d 1085, 1087 (Fla. 5th DCA 2005).

In the event policy provisions are ambiguous and cannot be reasonably reconciled, then well-established rules of construction must be applied. Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732, 735 (Fla.2002). The most basic of these rules is that ambiguous policy provisions are to be construed in favor of the insured and against their drafter, the insurer. Purrelli v. State Farm Fire & Cas. Co., 698 So.2d 618, 620 (Fla. 2d DCA 1997). Such a construction most typically will result in a finding of coverage. Farrer v. U.S. Fid. & Guar. Co., 809 So.2d 85, 88 (Fla. 4th DCA 2002).

In considering Appellant’s argument, it is significant to note the primary cases on which it relies are instructive as to how an insurer should have drafted the policy language in this case. For example, it cites Makarka ex rel. Makarka v. Great American Insurance Co., 14 P.3d 964 (Alaska 2000), for the proposition that coverage may arise only if the triggering event occurs during the policy period. However, in that case, a summary judgment finding no coverage was affirmed “because the policy’s language unambiguously required the policy to be in effect when ... bodily injuries occurred, not when [the insured] committed his negligent acts.” Id. at 965. We decline to write in policy language that Appellant has chosen to omit.

Similarly, Appellant cites Travelers Insurance Co. v. C.J. Gayfer’s & Co., 366 So.2d 1199 (Fla. 1st DCA 1979), because it notes that insurance contracts are usually not intended to be open ended. Again, Appellant overlooks policy language in that case which defined property damage as follows:

The term “property damage” means the physical injury to or destruction of tangible property which occurs during the policy period , or (2) loss of use of tangible property ... provided such loss of use is caused by an occurrence during the policy period.

Id. at 1201 n. 1. As in Makarka, the insurer in Gayfer’s inserted language expressing its intentions. We cannot, under the guise of contract construction, supply language which the insurance company did not include.

Finally, Appellant unsuccessfully attempts to deflect the clear implication of Aetna Insurance Co. v. State Farm Fire & Casualty Co., 457 So.2d 512 (Fla. 1st DCA 1984). In Aetna, the court determined that a factual question existed as to whether language on a policy jacket was to be read as part of the insurance contract. The language on the jacket was significant because it defined “property damage” as “physical injury to or destruction of tangible property which occurs during the policy period.” Id. at 513 n. 2. In remanding, the court stated if the jacket language was not determined to be part of the express contract of insurance, it would not be implied into the policy and coverage would exist.

Although no case directly on point has been cited or found, the cases seem to speak harmoniously. If an insurer wishes to restrict coverage for incidents or circumstances which occur during the policy period, it is free to expressly say so. If it chooses not to, and thereby creates an ambiguity, it cannot later deny coverage claiming it would be exposed to unreasonable risks and absurd results.

In this regard, the ambiguous nature of the policy is highlighted by the insurer’s language in the “Broadened Coverage— Garage” policy endorsement, which clearly provides coverage for both personal injury and advertising injury which arise from “an offense committed ... during the Policy Period.” This language makes clear the insurer’s ability to expressly address a condition of coverage that it wishes us to read in as a matter of contract construction and interpretation.

In this case, Appellant has forcefully argued that an affirmance could expose it to liability for occurrences “whether they occurred 100 years prior to the policy period and coverage [would continue] until the end of time.” It argues that such a result would be absurd and unreasonable. Admittedly, such an argument presents initial concern. However, after carefully reviewing the cases cited in its support and the policy language, we find the argument illusory, and it must yield to the firmly-grounded and well-established rules of contract construction.

Interestingly, the eases Appellant cites in support of its argument, United States Fire Insurance Co. v. Pruess, 394 So.2d 468 (Fla. 4th DCA 1981), and Deni Associates of Florida, Inc. v. State Farm Fire & Casualty Insurance Co., 711 So.2d 1135 (Fla.1998), state that policies should be interpreted reasonably, not absurdly, and consistent with the parties’ intent. However, in those cases, the parties’ intent was clear from the language itself — there were no ambiguities. Unlike this case, the drafter’s intent did not have to be divined and inserted through judicial decree.

In addition, a close reading of the policy makes clear that Appellant’s feared “absurd result” is extremely remote and unlikely to occur. Even as written and interpreted by the trial court, coverage under the policy at issue must be triggered not only by an “accident,” but also one “resulting from ‘garage operations,’” which is what happened in this case. The fear that such circumstances could coalesce at a time so distant in time from the policy period to be unreasonable is not real or persuasive enough to justify disregarding well-established rules of construction and legal authority. For these reasons, the judgment of the lower court is affirmed.

Affirmed.

WARNER and MAY, JJ., concur.


author: SHAHOOD, J.

text:
    Timothy ST. FLEUR, Appellant, v. Olive Schavon ST. FLEUR, Appellee.
    No. 4D05-1240.
    District Court of Appeal of Florida, Fourth District.
    May 31, 2006.
    May L. Cain of Cain & Snihur, LLP, Aventura, for appellant.
    No brief filed for appellee.
   SHAHOOD, J.

This is an appeal by former husband, Timothy St.' Fleur, from a Final Judgment of Dissolution of Marriage. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

In December 2003, appellee, Olive Schavon St. Fleur, the wife, filed a Petition for Support Unconnected with Dissolution of Marriage with Dependent or Minor Children. She alleged that the parties were married on March 10, 1999 and separated on July 21, 2003. They had two minor children who were three and one at the time of the filing of the petition. The wife sought alimony and child support. The husband answered the petition and filed a counter-petition for dissolution of marriage.

In her financial affidavit, the wife, a nurse, stated that she earned a monthly gross income of $1,680. A subsequent financial affidavit filed one year later stated a gross monthly income of $3,360.

The parties entered into a Mediation Agreement wherein they agreed that the parties would have shared parental responsibility of the minor children, but the wife would be the primary residential parent. In the mediation agreement, the wife acknowledged that the father was unable to drive at that time due to a physical disability. In calculating support for the children, the parties used the husband’s monthly disability income of $1,440 and the wife’s net earned monthly income of $3,460. As a result, the wife’s support obligation was calculated to be $1,086.30 and the husband’s was calculated to be $443.70.

Prior to a final hearing, the husband filed a motion to recuse Judge Korda. He asserted that Judge Korda was not impartial and the husband feared he would not receive a fair trial because the judge was “buddy buddy” with the wife’s attorney. The husband explained that the wife had failed to appear for a hearing and the judge rescheduled without even a reprimand to the wife. On a subsequent occasion, however, the husband and his attorney failed to appear for a hearing because they had not received notice. The judge called the husband on his cell phone and yelled at him and told him that the hearing would go on without him and attempted to have the clerk swear in the husband over the phone. The court denied the motion for recusal.

By the time of the hearing, the husband was working and the parties were incurring daycare expenses for the younger child in addition to the older child. The wife sought to modify the agreement based on the changed circumstances. Specifically, the wife asked the court to change the visitation schedule and the support obligations.

The daycare cost for one child was $70 per week or $303.10 per month and for the other was $75 per week or $325.75 per month. The older child would be starting school in the coming school year, so daycare would no longer be required.

At the hearing, the wife stated that her net monthly income was $2,206 and that the income she listed in the mediation agreement included overtime. The wife produced her paystub to the court, which showed a net monthly income of $2,206. She testified that her hourly rate had not changed and, when the court asked whethT er she was still working the same kind of overtime she used to work, she answered that now she works overtime only on Sundays. She stated that in a week, she averages eight to sixteen hours of overtime, depending on whether school is in session. She agreed that ten hours of overtime would be a good estimate.

As his first issue on appeal, appellant urges that the trial court erred in denying his motion for disqualification of trial judge. When presented with a motion to disqualify, a judge must look only to the legal sufficiency of the motion and not pass on the truth of the facts alleged. Lee Mem’l Health Sys. v. State, Agency for Health Care Admin., 910 So.2d 892 (Fla. 1st DCA 2005).

The judge’s behavior in this case is similar to that in Strasser v. Yalamanchi, 783 So.2d 1087 (Fla. 4th DCA 2001), where the trial judge merely vented his anger at the defendant for having destroyed certain documents and chastised and fined him for doing so. This court held that such gratuitous comments did not warrant disqualification. Id. at 1091; see also Ennis v. Ennis, 855 So.2d 229 (Fla. 5th DCA 2003) (where trial judge expressed frustration with wife’s and counsel’s non-appearance at a hearing due to a conflict in federal court and wife moved for disqualification of judge based on certain comments, it was held that “not all comments in the nature of vented frustration require disqualification”).

In this case, based on the record before us, we hold that the trial court looked only to the legal sufficiency of the motion and did not pass on the truth of the facts alleged. We, therefore, affirm as to this issue

Appellant next argues that the trial court erred by: (A) making findings as to the wife’s income without sufficient evidence; (B) failing to impute income to the wife; (C) making miscalculations as to the child support that should be paid pursuant to the child support guidelines; and (D) including “marital debt” in the monthly child support obligation payable through the support enforcement division. We affirm as to all of these issues without further discussion except issue (D) which we reverse and remand to the trial court to enter an amended final judgment based on the following.

The court equally divided the parties’ credit card and medical debt, requiring each to pay $2,462. The court directed that payment be made by the husband “as set forth herein above.” The payment plan ordered by the court was the following:

5. The Husband shall pay to the Wife as child support for the two minor [children] as follows:
$900 per month, beginning on the 1st day of January, 2005 and continuing on the first day of each month thereafter for the next forty (40) consecutive months (to represent $838.00 Child Support, one month of arrearage of $838.00 and one half of his obligation of the marital debt in his proportionate sum of $1624.00 totaling $2462.00 over and above his support obligation.)

After the husband had paid his share of the marital debt in this manner, his monthly payment would be reduced to the child support obligation of $838.00. The court further directed that child support payments be made to the Support Enforcement Division (SED).

The husband complains that the marital debt was “improperly made a child support arrearage payable through the Support Enforcement Division of the Court.” He argues, and we agree, that payment of the marital debt is a settlement of property and not an obligation for support. See generally Whelan v. Whelan, 736 So.2d 732 (Fla. 4th DCA 1999); Filan v. Filan, 549 So.2d 1105 (Fla. 4th DCA 1989) (contempt power of court may not be invoked if an obligation is in the nature of property settlement and not support). Although the final judgment does not classify the marital debt payments . as support, the method of payment ordered by the court suggests that the payments are to be treated in the same manner. We accordingly reverse that portion of the final judgment and remand to the trial court to enter an amended final judgment clarifying that child support should be paid through SED and appellant’s marital debt be paid directly to appellee. See generally Reed v. Reed, 914 So.2d 26 (Fla. 4th DCA 2005) (reversing and remanding for trial court to clarify that amounts owed for mortgage payments are not support obligations).

As his final point on appeal appellant urges reversal arguing that the trial court erred in ordering the husband to pay a portion of the wife’s attorney’s fees. He argues that the evidence was insufficient and the final judgment included findings that the parties earned the same amount of income and/or the wife actually earned more and had the greater ability to pay her own attorney’s fees and costs.

In considering a request for attorney’s fees in a dissolution proceeding, the trial court must make findings as to the requesting party’s need and the other party’s ability to pay. See DeLillo v. DeLillo, 848 So.2d 454 (Fla. 4th DCA 2003). In addition, the court must make findings as to the reasonable hourly rate and number of hours reasonably expended. Id. at 455. In this case, the trial court did neither, yet ordered the husband to pay twenty-five percent of the wife’s attorney’s fees.

The record before us does not support a finding that the appellant has the ability to pay even a portion of the appel-lee’s attorney’s fees. The parties had no assets to speak of. At the time of the hearing, the appellant had just returned to work after having been on disability due to an injury at work. There were no investment or savings accounts and the court found that the parties’ income was equal. Under these circumstances, the court erred in finding that the appellant has the ability to pay even a portion of the appel-lee’s fees.

Accordingly, we vacate that portion of the final judgment ordering the appellant to pay twenty-five percent of the appellee’s attorney’s fees.

Affirmed in part, Reversed in part, and Remanded.

POLEN and TAYLOR, JJ., concur.


author: STEVENSON, C.J.

text:
    A.A.R., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3223.
    District Court of Appeal of Florida, Fourth District.
    May 31, 2006.
    See also 926 So.2d ½63.

      Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, C.J.

A.A.R. appeals his delinquency adjudication and disposition after the trial court found he violated the terms of a deferred prosecution agreement, referred to locally in the juvenile court as a “plea and pass agreement.” Pursuant to the agreement, A.A.R. pled guilty to the pending charges of battery and battery on a law enforcement officer and was required to complete a diversionary program. If A.A.R. completed the program without being arrested for a new offense, A.A.R. would be allowed to withdraw his guilty plea and the State would dismiss the charges. Before A.A.R. completed the diversionary program, the police arrested A.A.R. for providing a false name. Based on the new arrest, the trial court held A.A.R. violated the agreement and committed him to the Department of Juvenile Justice. While the instant appeal was pending, this court reversed A.A.R.’s conviction for providing a false name and, in so doing, implicitly determined that the arrest was improper. See A.A.R. v. State, 926 So.2d 463, 463 (Fla. 4th DCA 2006) (reversing conviction for “giving a false name to a police officer” where juvenile corrected the false information before he was arrested). In the interest of justice, we reverse A.A.R.’s adjudication of delinquency and remand for further proceedings consistent with this opinion.

Reversed and Remanded.

GUNTHER and MAY, JJ„ concur.

      . We note that we cannot fault the trial court for its initial ruling in this case. A.A.R.’s defense counsel failed to challenge the legality of the arrest at the hearing below.


author: PER CURIAM.

text:
    Darcy Craig PENICHET, Appellant, v. AMERICAN RECRUITERS CONSOLIDATED, INC., American Recruiters of South Florida, Inc., a Florida corporation, and Executive Futures, Inc., a Florida corporation, Appellees.
    No. 4D05-2139.
    District Court of Appeal of Florida, Fourth District.
    May 31, 2006.
    Kevin Markow and Joann Nesta Burnett of Becker & Poliakoff, P.A., Fort Lauder-dale, for appellant.

      Sarah Weitz, Paul 0. Lopez, and Alexander D. Brown of Tripp Scott, P.A., Fort Lauderdale, for appellees.
   PER CURIAM.

We reverse the final judgment entered against Darcy Penichet, which arose from an order imposing sanctions against Peni-chet for failure to post a bond.

This case arose from a 2002 settlement agreement. The agreement required that a bond be posted upon the breach of certain conditions. The agreement also provided the remedy upon the failure to post a bond — a default final judgment was to be entered against a corporation that was a party to the settlement agreement. The circuit court’s final judgment against Peni-chet exceeds the remedy that the parties bargained for in the settlement agreement.

Reversed and remanded.

WARNER, GROSS and HAZOURI, JJ., concur.


author: DAVIS, Judge.

text:
    AIRFLO A/C & HEATING, INC., Appellant/Cross-Appellee, v. Edwin PAGAN, Daniel Jimenez, and Dansea Services, Inc., Appellees/Cross-Appellants.
    No. 2D05-400.
    District Court of Appeal of Florida, Second District.
    June 2, 2006.

      Joshua Magidson of Macfarlane Ferguson & McMullen, Clearwater; Susan W. Fox of Fox <& Loquasto, P.A., Tampa; and Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee, for Appellant/Cross-Ap-pellee.
    Brian E. Johnson of Brian E. Johnson, P.A., Seminole, for Appellees/Cross-Appel-lants.
   DAVIS, Judge.

Airflo A/C & Heating, Inc. (“Airflo”), a Florida corporation, challenges the final judgment denying Airflo monetary damages and attorney’s fees in this unfair competition action it filed against Edwin Pagan, Daniel Jimenez, and Dansea Services, Inc. (“Appellees”). Appellees challenge the same judgment on cross-appeal, addressing that portion of the judgment that affirmed certain prior findings of the trial court. We affirm the trial court’s rulings denying monetary damages and the issues raised on cross-appeal, but we reverse the denial of attorney’s fees.

In the late 1940s, Donald Miravalle and Joy Miravalle, his wife, started a business that produced marine air conditioning systems under the name “King-Air.” After the death of Donald Miravalle, his widow entered into an agreement transferring the “property” of King-Air to Airflo. Due to circumstances that are not essential to this opinion, the parties rescinded this agreement and Airflo entered into a separate agreement with Edwin Pagan, an employee of the Miravalles’, by which Airflo allegedly purchased Pagan’s interest in King-Air. Pagan had been key to the manufacture of the air conditioning units sold by the Miravalles due to his technical expertise, and he apparently assumed operation of the business before Mrs. Mira-valle’s original sale of the business to Air-flo.

After it acquired the King-Air name, Airflo began to manufacture and sell marine air conditioning units under that name. Although Pagan worked for Airflo for a period of time, he ultimately entered into an agreement with Jimenez and Dan-sea, by which they agreed to manufacture and sell marine air conditioning units, again using the King-Air name. Airflo filed this action against Pagan, Jimenez, and Dansea, seeking damages for unfair competition and for injunctive relief pursuant to the Florida Deceptive and Unfair Trade Practices Act, §§ 501.201-.213, Fla. Stat. (2004) (“the Act”).

The trial court granted Airflo’s motion to bifurcate the proceedings. In the first hearing, the trial court addressed only the issue of liability, that is, who actually owned the King-Air name. Airflo argued that it had agreed to pay Pagan $30,000 for all of his rights and interest in King-Air, including the name, and that, even though it had not paid the full purchase price, it had made two payments that totaled over $6000. Appellees argued that the agreement was not a sales agreement but a partnership agreement by which Pagan agreed to allow Airflo to use the King-Air name and to work with Airflo in the manufacturing process. They maintained that Pagan and Airflo agreed to split the profits on a 70-30 basis and that the amount that Airflo paid to him constituted payments pursuant to that agreement. The parties stipulated that whatever the agreement was, it was not in writing.

After considering the testimony of the parties and their witnesses, the trial Court entered a partial final judgment, finding that Airflo had purchased the name and other rights of King-Air and that Pagan had “breached the Purchase Agreement by setting up a competing marine air conditioning business utilizing thé KING AIR rights and mark ‘King-Air’ with Defendant DANIEL JIMENEZ and Defendant, DANSEA SERVICES, INC., in violation of the Purchase Agreement.” The judgment enjoined Appellees from using the King-Air rights or the King-Air name for any purpose. Finally, the partial final judgment retained jurisdiction to determine damages, if any, for the “unauthorized use” of the King-Air name, to determine if there was a violation of the Act, and to determine entitlement to attorney’s fees. That partial final judgment was affirmed by this court. Pagan v. Airflo A/C Heating, Inc., 860 So.2d 421 (Fla. 2d DCA 2003).

The parties then proceeded to litigate the damages issues. Airflo requested damages based on the fact that Appellees had sold several units using the King-Air name and had established web sites and telephone numbers, advertising themselves as the owners of King-Air. Airflo argued that these were acts of unfair competition as contemplated by the Act and that Airflo was therefore entitled to attorney’s fees.

The trial court found that Airflo failed to prove its claim for damages and, accordingly, denied its request. The trial court specifically pointed to the inconsistencies in the testimony of the witnesses presented by Airflo as contrasted with the credibility of the witnesses presented by Appel-lees. Additionally, the trial court found that since Pagan assumed that he continued to own the rights to the King-Air name until the trial court ruled to the contrary in the partial final judgment, his competition with the rightful owner, Airflo, was not a violation of the Act up to that point in time. Accordingly, the trial court denied Airflo’s request for attorney’s fees. The parties then filed this appeal and cross-appeal.

We affirm the trial court’s denial of monetary damages without further comment. Likewise, we affirm the ruling challenged by the cross-appeal without discussion. However, we reverse the final judgment on the issue of the award of attorney’s fees.

The issue is whether Pagan’s establishment of the competing business was a violation of the Act, which entitled Airflo to an award of attorney’s fees pursuant to the Act. Under the Act, unfair methods of competition are unlawful. In the statement of the purpose of the Act, the legislature provided that it was enacted “[t]o protect the consuming public and legitimate-business enterprises from those who engage in unfair methods of competition, ... in the conduct of any trade or commerce.” § 501.202(2), Fla. Stat. (2004). The statute provides that any unfair methods of competition or other deceptive practices or acts are unlawful. § 501.204(1). The Act further provides that any aggrieved party may file an action asking the trial court for a declaratory judgment that a given practice violates the Act and for injunctive relief to prevent a subsequent violation. § 501.21. Finally, the Act provides that in any civil litigation arising under the Act, the prevailing party shall be entitled to reasonable attorney’s fees and costs. § 501.2105.

Airflo claims that Appellees engaged in unfair methods of competition and thus violated the Act when they formed the competing business knowing that Airflo was the owner of the King-Air name. Ap-pellees respond that claims of unfair or deceptive practice, as defined by section 501.204, are limited to consumer transactions and that, accordingly, any competitive acts that they committed did not violate the Act.

In the partial final judgment, the trial court determined that Pagan had transferred his rights in King-Air to Airflo and that Pagan had continued his unauthorized use of the King-Air name. The judgment went on to entertain the possibility of damages for Pagan’s unauthorized use of the King-Air name. Given the trial court’s use of the term “unauthorized” in. referring to Appellees’ appropriation of the King-Air name, it would appear that the trial court considered Appellees’ acts improper. Thus, the trial court’s conclusion in the final judgment that Pagan thought he owned the rights to King-Air until the trial court ruled otherwise appears to be inconsistent. Acts that were a “breach” of the agreement and were considered “unauthorized” so as to support a claim for monetary damages must be considered acts of unfair competition in violation of the Act. Pagan knew that Airflo believed that it owned the name, and he knew that he had entered an agreement with Airflo that caused Airflo to believe it owned the name. Yet, Pagan left Airflo and began to make and sell units under the same name knowing that he was competing with Air-flo. He intentionally went into competition with Airflo without attempting to resolve any dispute over the ownership of the name. We conclude that the trial court erred in finding such conduct not to be “unfair” competition because Pagan thought he had a claim to the name, a claim he did not attempt to resolve until Airflo filed its action.

Furthermore, Airflo was the prevailing party in the prior proceeding given the trial court’s determination that Airflo was the owner of the name and was entitled to injunctive relief. Although Airflo failed to prove its damages, it did prevail in the trial court’s determination that Pagan breached the contract and in the trial court’s order granting the injunction. Furthermore, contrary to Pagan’s assertion, a claim for injunctive relief, such as was contained in Airflo’s complaint, is appropriate under the Act. See Klinger v. Weekly World News, Inc., 747 F.Supp. 1477 (S.D.Fla.1990). Because Airflo filed a valid complaint for injunctive relief pursuant to the Act, which was granted, Airflo is the prevailing party and, accordingly, is entitled to attorney’s fees pursuant to section 501.2105(1).

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

ALTENBERND and CANADY, JJ„ Concur.

      . The record is not clear, but it appears that at some point Pagan assumed some ownership rights in the business. Neither party disputes Pagan's right to sell King-Air to Air-flo.


text:
    In re Wade Paul PETITE.
    No. 2006-OB-1131.
    Supreme Court of Louisiana.
    May 17, 2006.
   ORDER

Considering the Joint Petition for Transfer to Disability Inactive Status,

IT IS ORDERED that Wade Paul Petite, Louisiana Bar Roll number 25824, be and he hereby is transferred to disability inactive status. All disciplinary proceedings against respondent shall be deferred until such time as he resumes active status.

Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

/s/ Chet D. Traylor

Justice, Supreme Court of Louisiana


author: HUGHES, J. PARRO, J.,

text:
    THE BOARD OF DIRECTORS OF THE INDUSTRIAL DEVELOPMENT BOARD OF THE CITY OF GONZALES, LOUISIANA, INC. v. ALL TAXPAYERS, PROPERTY OWNERS, CITIZENS OF THE CITY OF GONZALES, State of Louisiana and of the Gonzales Economic Development District Number 1 and Non-Residents Owning Property or Subject to Taxation in Said City or District, and All Other Persons Interested in or Affected in Any Way by the Issuance of Not to Exceed $49,875,000 of Tax Increment Taxable and/or Tax-Exempt Revenue Bonds.
    No. 2005 CA 1935.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 7, 2005.

      O. Ray Cornelius, David M. Wolf, Eric A. Holden, Thomas E. Gottsegen, Adams and Reese, L.L.P., Baton Rouge, Malcolm J. Dugas, Jr., Donaldsonville, Robert Ry-land Percy, III, Percy & Percy, Gonzales, for Plaintiffs-Appellees The Board of Directors of the Industrial Development Board of the City of Gonzales, La., Inc.
    Robert S. Angelico, Cheryl M. Kornick, K. Todd Wallace, Kelly Brechtel Becker, Liskow & Lewis, Lafayette, for Defendants-Appellants C.J. Hebert and Carl Singletary.
    Before: CARTER, C.J., PARRO, DOWNING, McDonald, and HUGHES, JJ.
   HUGHES, J.

| ?In this appeal, two Ascension Parish residents who own sporting goods stores in the parish, contending that the use of public funds to finance a private retail establishment is unconstitutional, challenge the trial court’s bond validation judgment. We affirm the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

On July 27, 2005, plaintiff, the Board of Directors of the Industrial Development Board of the City of Gonzales, Louisiana, Inc. (Board), acting as the governing authority of the Industrial Development Board of the City of Gonzales, Louisiana, Inc. (IDB), filed this petition for a motion for judgment under the “Louisiana Bond Validation Act,” La. R.S. 13:5121 through 5130, which permits an expeditious judicial determination of the legality and validity of bonds prior to their issuance in order to ensure their marketability in investment channels. The Board sought validation of the issuance of “Tax Increment Revenue Bonds” (Bonds) to fund a proposed project to be known as the “Cabe-la’s Project” (the Project), featuring the construction of a Cabela’s retail store, a 165,000 square foot facility specializing in hunting, fishing, camping, and outdoor gear. Specifically, the Project included: (1) the acquisition of approximately 49.22 acres of real estate (the Cabela’s property); (2) the acquisition, development, construction, and equipping of the Cabela’s retail store and related infrastructure, to be operated by Cabela’s; (3) the construction of related public improvements and infrastructure to support the retail store and remaining Cabela’s property within the economic development district; (4) the construction of a wildlife museum; and (5) the development and construction of related public improvements and infrastructure needed to support approximately 48.5 acres within the economic development district, constituting the “Sportsman Park Center.”

To implement the Project, governmental officials created and empowered certain entities to enter into a series of agreements detailing the funding structure of the Project, pursuant to the “Tax Increment Financing Act” (TIF Act), La. R.S. 33:9038.1 through 9038.10. On April 11, 2005, the governing authority for the City of Gonzales created the Gonzales Economic Development District No. 1 (the District) as an |/‘economic development district” within the City of Gonzales, pursuant to La. R.S. 33:9038.2, which gives such an entity the status of a political subdivision of the state. The ordinance creating the District identifies it as encompassing a tract of land containing 223.41 acres along Interstate 10. Various “project documents” were drafted, including a “Cooperative Endeavor Agreement” to be executed by the District; Cabela’s Retail LA, LLC; developer Carlisle Resort, LLC (Carlisle); the IDB; and the State of Louisiana. Other documents involving some of the principal parties included a “Trust Indenture,” a “Lease Agreement with the Option to Purchase,” and a “Public Facilities Management Agreement.”

Basically, the project documents set forth the terms of the project in several steps. The IDB would issue the Bonds in an amount not to exceed $49,875,000. Cabela’s agreed that it or an affiliate would purchase, on a “pay-as-you-go” basis, up to $42,375,000 of the Bonds, and Carlisle agreed that it or an affiliate would purchase, on a “pay-as-you-go” basis, up to $7,500,000 of the Bonds. Through a series of transactions, upon issuance of the bonds, the IDB would acquire ownership of the Cabela’s property; it would continue to own the Cabela’s property, including all facilities and improvements constructed thereon, as long as the Bonds remained issued and outstanding. During that time, the IDB would lease the Cabela’s property and facilities to Cabela’s. Serving as partial consideration for the lease was the economic benefit of the Project to the City and surrounding areas. Under the lease agreement, Cabela’s “rents” would consist of payments in an amount equal to the ad valorem taxes that would have been due had the site been privately owned, and “additional rents” would include payment of insurance costs, maintenance costs, and improvement costs to the suppliers of those services. Carlisle was obligated to develop a “Sportsman Park Center” on 48.5 acres adjoining the Cabela’s retail center in the District. Upon expiration or payment in full of the Bonds, Cabela’s would be given the option to purchase the Cabela’s property, including all improvements thereon, for its adjusted fair market value, with the purchase price being subject to a number of offsets. These offsets would include, among other things, credits for all rents and additional rents paid |4by Cabela’s during the lease term, credits for each job created by Cabela’s, and a $1,900,000 credit for each year Cabela’s operated the retail center during the lease term.

The project documents provided that the Bonds were to be secured by, and the principal and interest thereon were payable from, a pledge and dedication of taxes from two sources: (1) the “incremental increase” of the one and one-half percent city sales tax from the City of Gonzales collected within the District, and (2) the “incremental increase” of the one and one-half percent state sales tax collected within the District. The project documents define the term “sales tax increment” as those tax revenues from taxpayers in the economic development district exceeding the sales tax revenues that were collected for the taxing authority in the year immediately prior to the year in which the area was designated as an economic development district. According to the documents, there were no sales and use taxes collected within the District during the “Base Year,” defined as the fiscal year of the City of Gonzales ending May 31, 2005.

On April 23, 2005, the voters in the District were asked to approve the rededi-cation of two local sales taxes to fund the project in a special election held in the City of Gonzales. The first tax, initially approved by voters on September 10,1966, authorized the City of Gonzales to collect a one percent sales tax to be dedicated and used for certain enumerated purposes, including the construction, maintenance, and operation of streets, sidewalks, public utilities, and recreational facilities, as well as public entities, including the Fire Department, City Hall, and a civic building. The second, approved by voters on April 1, 1989, authorized the City to collect a one-half of one percent sales tax for the purpose of constructing and operating sewerage and drainage facilities, streets, and gas and water supply and distribution facilities. In the 2005 special election, voters were asked to authorize the City of Gonzales to amend the provisions to add the language “promoting economic development” in addition to the purposes set forth in the respective sales tax propositions approved at the 1966 and 1989 elections. The proposition to amend the tax ordinances was approved by a vote of 78%.

IbA series of resolutions was passed over the next several months giving the parties authority to enter into agreements to carry out the proposed financing. On July 22, 2005, the State Bond Commission approved the issuance, sale, and delivery of not more than $49,875,000 Tax Increment Revenue Bonds, taxable or tax-exempt or both, maturing no later than thirty years from the date of issuance. Thereafter, the Joint Legislative Committee on the Budget approved the contribution of one and one-half percent of the state portion of the sales tax generated by the District, subject to several limitations, including a $10,500,000 limit on the sales tax revenues dedicated to the venture, the maintenance of a certain number of jobs, and the provision of health care benefits to the employees.

In this proceeding, the Board asked the court to render a judgment establishing and declaring: (1) the legality and validity of the issuance of the Bonds; (2) the legality and validity of all proceedings held and actions taken by the Board and others in connection with the authorization or issuance of the Bonds; (3) the legality and validity of the project documents and all other documents executed in connection with the issuance of the Bonds and all terms and provisions contained therein; (4) the legality and validity of all proceedings held and actions taken by the Board in connection with the authorization and execution of the project documents and all other documents executed in connection with the Bonds; (5) the exemption of the Bonds and income therefrom from all taxation in the state in accordance with La. R.S. 33:9038.8; (6) the exemption of the Project from the Public Bid Law; and (7) the legality and validity of the rededication of the sales and use tax pledged to finance the Bonds. The Board also asked the court to issue a permanent injunction against any person’s institution of an action or proceeding contesting, among other things, the legality and validity of the Bonds, the project documents, the pledges of revenue, and the legality and validity of the TIF Act and the Act’s authorization of the project documents and transactions contemplated thereby.

The named defendants in the litigation included all taxpayers, property owners, citizens of the City of Gonzales and the Gonzales Economic Development District, non-residents owning property or subject to taxation in the City or District, and “all other | ^persons interested in or affected in any way” by the issuance of the Bonds. On August 16, 2005, two Ascension Parish residents who owned sporting goods stores in the parish, C.J. Hebert and Carl Single-tary, filed a response to the Board’s motion for judgment in which they asserted a peremptory exception raising the objection of no cause of action. Therein, the defendants challenged the constitutionality of the TIF Act to the extent that it allowed public bodies to loan, pledge, or donate public funds for uses by a private retailer in the development, construction, and equipping of a retail store, which, they asserted, is prohibited by Article VII, § 14(A) of the Louisiana Constitution. They also charged that the Project’s use of public funds to, in effect, subsidize a particular retailer violated the equal protection clauses of the federal and state constitutions because of its unequal treatment of similarly situated retail sporting goods stores. The defendants did not challenge the constitutionality of the use of public funds for the development and construction of the infrastructure to support the Project or for the museum construction.

A hearing was held on the motion, during which both sides introduced documentary evidence. Thereafter, the trial judge entered judgment declaring the TIF Act constitutional as applied to the Project and denying the exception of no cause of action. In written reasons for judgment, the judge concluded that the defendants had failed to demonstrate a specific constitutional provision that would prohibit the legislature from enacting the TIF Act. Additionally, the judge rejected the equal protection challenge upon finding that the defendants failed to demonstrate that they were in fact subject to different treatment under the TIF Act, observing that any individual or business qualifying as an “economic development project” could avail itself of the Act’s provisions.

Thereafter, the trial judge upheld the validity and legality of the Cabela’s Project, finding that the Board acted legally and within the scope of its authority in approving the acquisition of the Bonds. Judgment was entered, granting the Board all of the relief it sought in its motion for judgment, decreeing that the Bonds, the proceedings held and documents confected in connection therewith, and the rededication of the sales 17and use taxes pledged to finance the Bonds were legal and valid and, therefore, were binding on the defendants.

This appeal, taken by defendants, followed. Because this appeal has been taken pursuant to the Bond Validation Act, it has been assigned expedited status. See La. R.S. 13:5128.

DISCUSSION

The Bond Validation Act precludes a court from invalidating bonds unless it finds substantial defects, material errors and omissions in the incidents of such bond issue. In this appeal, we are asked to decide whether the bond issuance is constitutionally defective with respect to that portion of the Project authorizing the use of public funds to finance the construction of a retail sporting goods store.

The TIF Act was enacted in 2002 to promote economic development and allows money generated from an economic development project to serve as a funding source for the project. Specifically, the Act authorizes a local governmental subdivision or entity to participate in tax increment financing of economic development projects. La. R.S. 33:9038.2 and 9038.4. For the purposes of the Act, the term “economic development project” includes, without limitation, “any and all projects suitable to any industry determined by the local governmental subdivision, or as appropriate, the issuers of revenue bonds, to create economic development.” La. R.S. 33:9038.4(M). The term also encompasses “public works and infrastructure and projects” to assist eight categories of industries “within the meaning of Article VI, Section 21 of the Louisiana Constitution.” La. R.S. 33:9038.4(M). Specifically identified as industries falling under the scope of the TIF Act are “commercial, retail, and related industries,” along with “[a]ny other industry determined by the local governmental subdivision or issuer of revenue bonds, as appropriate, whose assistance will result in economic development.” La. R.S. 33:9034.4(M)(4) and (8).

The TIF Act, in La. R.S. 33:9038.4, permits a local government to issue revenue bonds payable from revenues generated by economic development projects with a pledge and dedication of the amount of the “sales tax increment.” The term “sales tax increment” is defined as that portion of the designated sales tax collected each year |sfrom taxpayers located within an economic development district which exceeds the designated sales tax revenues so designated that were collected in the year immediately prior to the year in which the district was established. La. R.S. 33:9038.4(A)(2). The Act provides that the economic development district is to comprise the “sales tax area,” which “shall be the area from which sales tax increments are to be pledged and dedicated to the payment of the revenue bonds.” La. R.S. 33:9038.4(B). The local governmental authority and each participating tax recipient entity are required to designate the local sales taxes which are to be used in determining the sales tax increment and the initial baseline collection rate for the sales area. La. R.S. 33:9038.4(0). The increment of the designated taxes that can be pledged and dedicated to the amount of the revenue bonds is the amount of designated sales tax collected in the sales tax area each year in excess of the initial annual baseline collection rate. La. R.S. 33:9038.4(D). The TIF Act also authorizes the State of Louisiana to pledge and dedicate incremental increases in sales taxes to pay the revenue bonds of a local economic development project. La. R.S. 33:9038.4(A)(6).

In this appeal, the financing agreement utilized by the governmental authorities in connection with the Project is attacked on several fronts. In one of their assignments of error, appellants urge that the TIF Act itself does not provide the authority for the Project. Appellants submit the TIF statute only contemplates the use of public funds for those projects that will assist in the development of businesses, such as public works and infrastructure.

However, in La. R.S. 33:9038.4(J), the legislature mandated that the TIF Act be liberally construed for the accomplishment of its purposes of encouraging economic development. In addition to authorizing the use of sales tax increments to finance economic development projects, the Act broadly defines those costs of an economic development project that may be incurred by local governmental subdivisions to include “the sum total of all reasonable or necessary costs incurred incidental to or in furtherance of an economic development project ....” La. R.S. 33:9038.6. Such allowable costs include, but are not limited to property acquisition, including land and other real or personal property rights, assembly costs, costs of construction of public _[c¡improvements, including buildings, and even costs of renovating existing buildings within an economic development district. La. R.S. 33:9038.6(2), (4), and (5). Thus, we decline to read the Act as limiting governmental assistance to only those aspects of an economic development project falling within the ambit of public works and infrastructure to support the project development. Rather, the Act specifically authorizes public assistance to economic development projects involving the private retail industry, and we find nothing therein that would prohibit the financing scheme developed in connection with the Project.

Having concluded that the Project’s funding scheme is authorized under the TIF Act, we now address appellants’ arguments that public financial assistance to the private retail industry is unconstitutional.

Unless the fundamental rights of a person are involved, legislative acts are presumed to be valid. Board of Directors of the Louisiana Recovery District v. All Taxpayers, 529 So.2d 384, 387 (La.1988). This presumption is especially forceful in the case of statutes enacted to promote a public purpose, such as statutes relating to taxation and public finance. Id. The party attacking such a statute has the burden of showing clearly that the legislation is invalid or unconstitutional, and any doubt as to the legislation’s constitutionality must be resolved in its favor. Id. This is a heavy burden. It is not sufficient to show that a statute’s constitutionality is fairly debatable; it must be shown clearly and convincingly that it was the constitutional aim to deny the legislature the power to enact the statute. Hite v. Larpenter, 2004-1821, p. 4 (La.App. 1st Cir.9/23/05), 923 So.2d 140, 145. Thus, to successfully challenge a legislative act as unconstitutional, the challenger must establish that no circumstances exist under which the act would be valid. AFSCME, Council #17 v. State ex. Rel. Dept. of Health & Hospitals, 2001-0422, p. 8 (La.6/29/01), 789 So.2d 1263,1269.

We first address appellants’ argument that the funding scheme amounts to donation of public funds prohibited by Article VII, § 14(A) of the Louisiana Constitution.

First, appellants submit the use of public funds to pay for the construction and equipping of Cabela’s constitutes a donation of public funds to a private entity prohibited by Article VII, § 14(A) of the Louisiana Constitution. Secondly, appellants Imcontend the local government’s action in assisting one retail outlet to the detriment of other sporting goods outlets already in business results in differential treatment in violation of the equal protection clauses of the federal and Louisiana constitutions.

Louisiana Constitution article VII, § 14(A) provides that “[e]xeept as otherwise provided by this constitution, the funds, credit, property, or things of value of the state or of any political subdivision shall not be loaned, pledged, or donated to or for any person, association, or corporation, public or private.” This court has previously addressed the issue of whether the use of sales tax increments pursuant to the TIF Act to fund the development of a retail facility for use by a private business is unconstitutional. In Denham Springs Economic Dev. Dist. v. All Taxpayers, Property Oimers and Citizens of the Den-ham Springs Economic Dev. Dist., 04-1013 (La.App. 1 Cir. 6/4/04), 885 So.2d 1153, rev’d on other grounds, 04-1674 (La.2/4/05), 894 So.2d 325, a taxpayer asserted that the use of sales tax increments to fund the development of a Bass Pro Shops retail outlet amounted to a loan, pledge, or donation of funds belonging to the state or political subdivision in violation of Article VII, § 14(A). In rejecting this argument, this court held that the first paragraph of Article VII, § 14 could not be read in isolation, but instead must be considered in light of the other paragraphs of that article, along with two sections of Article VI, which empower governmental entities to incur debts and issue bonds. This court concluded that when Article VII, § 14(A) was read in conjunction with paragraphs (B) and (C) of that article, along with §§ 19 and 20 of Article VI, it was clear that the redactors of the Louisiana Constitution expressly excepted the pledge and/or transfer of governmental property in connection with bond issuances from the prohibition against things of value owned by the state being “loaned, pledged, or donated.”

Article VII, § 14(B)(3) specifically provides that the prohibited uses noted in § 14(A) shall not prevent “the pledge of public funds, credit, property, or things of value for public purposes with respect to the issuance of bonds or other evidences of indebtedness to meet public obligations as provided by law.” The law has been clearly set forth by the Legislature in the TIF Act.

InNor can the agreement between the IDB and Cabela’s be strictly considered a wholly gratuitous donation. Cabela’s has obligations to fulfill to the IDB and to third parties as contemplated by the agreement. And as discussed in the Den-ham Springs case, an economic enterprise such as Cabela’s does not come to the table empty handed. Jobs, tax revenues, and general economic development and growth cannot be ignored in the equation.

We agree with this court’s original holding in the Denham Springs case, and adopt the reasoning of that court in holding that a bond issuance secured by the pledge of sales tax increments generated by the project to fund the development of a private retail facility does not violate Article VII, § 14(A) of the Louisiana Constitution. In so doing, we emphasize that in enacting the TIF Act, the legislative aim was limited to allowing a governmental entity use of incremental tax dollars generated by an economic development project to provide public assistance to retailers in order to stimulate the economy. The TIF Act does not permit a governmental entity to use existing public funds or properties to assist a private retailer. Rather, it gives a local government the power to use funds generated by the project itself, funds the taxing authority would not have otherwise had in the absence of that project, to actually increase its overall tax revenues and provide jobs to its citizens. We conclude appellants failed to meet their heavy burden of demonstrating clearly and convincingly that the Louisiana "Constitution deprives the Legislature of the power to enact legislation allowing local governments to promote economic development by offering financial incentives to businesses in exchange for the financial advantages accruing therefrom.

In their last assignment of error, appellants contend that the financing scheme permitted by the TIF Act violates the equal protection clauses of the Fourteenth Amendment to the United States Constitution and Article I, § 3 of the Louisiana Constitution. Appellants contend that the Project creates two classifications: the beneficiary class, Cabela’s, and the disadvantaged class, consisting of all other existing retail stores. They urge that public assistance to one retailer while denying such assistance to other retailers clearly violates notions of equal protection. Specifically, they submit that public financing of Cabela’s provides an unfair economic advantage to |1?the retail outlet and causes other taxpayers to be treated differently. Appellants stress that they have already paid the costs of acquiring their buildings and the costs of equipping their stores, and will continue to pay these costs, while the public will bear such costs for the Cabela’s store. This allows Cabela’s to have an unfair pricing advantage, they contend, as Cabela’s will not have to pass the costs of operating its building or its rent costs on to its customers. Additionally, appellants contend the TIF Act itself allows for disparate treatment of new retailers and existing retailers, because it allows financing only by “incremental” tax dollars, effectively meaning that a retailer who opens on undeveloped land has an advantage over those who are already operating, because the existing retailer will not be able to amass the same level of “incremental” taxes.

To some extent, all economic inducement projects result in one or more private enterprises receiving public assistance while others do not. However, equal protection clauses have never required absolute equality or precisely equal advantages. Johansen v. Louisiana High School Athletic Ass’n, 04-0937 (LaApp. 1 Cir. 6/29/05), 916 So.2d 1081, 1089. The TIF Act undeniably is a purely economic regulation. Where, as here, no fundamental or express constitutional right or “suspect” class, such as race or religion, or any other enumerated class such as birth, age, sex, culture, or political affiliation is alleged as the basis for discrimination, the use of another classification is subject to the minimal or lowest level of scrutiny under the guarantees of both constitutions. Id. Thus, in determining whether an economic regulation violates the equal protection clauses, a court may not sit as a super-legislature to judge the wisdom or desirability of legislative policy determinations. Lakeside Imports, Inc. v. State, 94-0191, p. 6 (La.7/5/94), 639 So.2d 253, 257. Instead, an economic classification must only be rationally related to a legitimate governmental purpose to withstand an equal protection challenge. Livingston Downs Racing Ass’n, Inc. v. State of Louisiana, 96-2890, p. 10 (La.12/2/97), 705 So.2d 149, 154.

In the TIF Act, the legislature declared that bonds issued under the Act are declared to be for an essential public and governmental purpose. La. R.S. 11S33:9038.8(H). In Denham Springs Economic Dev. Disk, 885 So.2d at 1161 n. 9, this court recognized that the TIF Act served the valid governmental purposes of economic development and the enhancement of future revenues, noting the heightened emphasis placed on the need for economic development expressed by the legislature, and the obvious intent to allow local governmental entities to share in the financing of such ventures that will result in increased revenues. We find the Cabela’s funding, authorized by the TIF Act, to be rationally related to the legitimate governmental purposes of economic development and enhancement of future revenues. Therefore, we reject the equal protection argument raised by appellants.

CONCLUSION

For the foregoing reasons, the judgment appealed from is affirmed. All costs of this appeal are assessed to appellants.

AFFIRMED.

PARRO, J., dissents and assigns reasons.

DOWNING, J., concurs.

McDONALD, J., dissents for the reasons assigned by Judge Parro.

PARRO, J.,

dissenting.

hi disagree with the majority in this case, because I believe that the Project’s financing scheme violates Article VII, Section 14(A) of the Louisiana Constitution by donating the use of government-owned property to a private entity.

The complex series of transactions in the Project can be summarized as follows. Carlisle and Cabela’s want to develop a sportsman’s retail facility and entertainment complex on certain undeveloped property that they currently own or will purchase in Gonzales, Louisiana. Ultimately, for approximately $50 million, the IDB will buy about 49 acres of the property from Cabela’s, on which a Cabela’s hunting and fishing retail store, a wildlife museum, boat facility, restaurant, and related infrastructure will be constructed. To finance the land purchase, the construction of the improvements, and related transactions, the IDB will incur approximately $50 million in debt by issuing thirty-year Bonds, which will be purchased by Car-lisle and Cabela’s. This debt of the 12IDB will be repaid to Carlisle and Cabela’s (and/or any subsequent bondholders), with interest, using sales tax revenue of the City of Gonzales and the State of Louisiana generated by the Cabela’s property. Cabela’s will lease the multi-million dollar retail store and all related improvements on the property from the IDB during the term of the Bonds, but will not pay any rent to the IDB. Under the lease agreement, the only “rent” Cabela’s will pay for the use of the property will be property taxes equal to what would be owed by a private owner of the property, plus “additional rents” in the form of maintenance costs, insurance costs, and improvement costs to whatever companies supply those services to Cabela’s. None of those payments will go to the property owner/lessor, the IDB. Cabela’s will also manage the property and will be entitled to a management fee from IDB during the term of the Bonds, which fee will be deferred. When the Bonds expire or are paid in full, Cabela’s will have the option to buy the property, including the retail store, museum, the related facilities, and infrastructure for its then fair market value, whatever that may be. However, that purchase price will be substantially reduced (and possibly eliminated) by certain offsets, including the price Cabela’s paid for the property before transferring it to the IDB, all of the above-described “rents” and “additional rents” that were paid to entities other than the IDB, the amount of the full deferred management fee with accrued interest, a credit of $2500 for each full-time job and $1250 for each part-time job created at Cabela’s retail store, and $1.9 million for each year of operation. In the lease agreement, Cabela’s magnanimously agrees that, should these offsets exceed the purchase price, the IDB will not have to pay Cabela’s the excess.

Regardless of what might ultimately occur when Cabela’s exercises its option to purchase the property from the IDB, it is clear that during the term of the Bonds, while Cabela’s is enjoying the use of the retail store and related facilities, it will not be paying IDB anything for the use of this property, all of which will be bought and paid for using [.-¡public tax dollars. This rent-free use of government-owned property amounts to a donation of that property to a private entity.

Article VII, Section 14 of the Louisiana Constitution of 1974 states unequivocally in the first sentence of paragraph A:

Except as otherwise provided by this constitution, the funds, credit, property, or things of value of the state or of any political subdivision shall not be loaned, pledged, or donated to or for any person, association, or corporation, public or private.

This being a distinct prohibition in the constitution, the only way the financing scheme for this Project can be constitutional is if there is some constitutional authority for this subsidizing of a private business entity. Legislative authority in the form of the TIF Act will not suffice. There are certain exceptions in Article VII, Section 14(B), none of which apply to this type of endeavor. The IDB contends that constitutional authority for this Project is found in Article VI, § 21, which states, in pertinent part:

(A) Authorization. In order to (1) induce and encourage the location of or addition to industrial enterprises therein which would have economic impact upon the area and thereby the state, (2) provide for the establishment and furnishing of such industrial plant, or (3) provide movable or immovable property, or both, for pollution control facilities, the legislature by law may authorize, subject to restrictions it may impose, any political subdivision, deep-water port commission, or deep-water port, harbor, and terminal district to:
(a) issue bonds, subject to approval by the State Bond Commission or its successor, and use the funds derived from the sale of the bonds to acquire and improve industrial plant sites and other property necessary to the purposes thereof;
(b) acquire, through purchase, donation, exchange, and (subject to Article I, Section 4) expropriation, and improve industrial plant buildings and industrial plant equipment, machinery, furnishings, and appurtenances; and
(c) sell, lease, lease-purchase, or demolish all or any part of the foregoing.

The key to this article of the Louisiana Constitution is the use of the words, “industrial enterprises,” “industrial plant,” “industrial plant sites,” “industrial plant buildings and industrial plant equipment, machinery, furnishings, and appurtenances.” The consistent and repeated use of the modifier, “industrial,” emphasizes that the drafters of this article intended to limit it to a particular type of enterprise, not just any | ¿business venture that might have some positive economic impact on the area or the state. Constitutional provisions must be given their ordinarily understood meaning, using the same rules of interpretation that govern the interpretation of statutes. Caddo-Shreveport Sales and Use Tax Comm’n v. Office of Motor Vehicles, 97-2233 (La.4/14/98), 710 So.2d 776, 780. The word, “industrial,” is generally understood to encompass a manufacturing process or an enterprise using heavy equipment and/or complex technology to produce or assemble a product. The word is never understood as the equivalent of “retail,” and in fact, is more likely to denote the opposite of “retail.”

Had the drafters of the Louisiana Constitution wanted to allow public funds to be used for any type of “economic or industrial development,” they could certainly have broadened the constitutional authority in Article VI or created another exception to the prohibition in Article VII, § 14(A). In fact, no less than six separate attempts have been made to amend and expand the Louisiana Constitution to allow governmental entities to use public funds to directly or indirectly subsidize private business entities in order to further “economic or industrial development” in various ways. Each of those proposed amendments were defeated, indicating clearly that the public does not want its tax dollars to be spent for the benefit of selected private - enterprises under the banner of “economic development.”

For these reasons, I do not believe there is constitutional authority for this particular use of public funds, which amounts to a donation of thirty years’ rent-free use of property purchased, and constructed by a governmental entity using tax dollars. Accordingly,. I respectfully dissent.

      . Cabela's and Carlisle were authorized to sell the Bonds at their discretion and in accordance with the restrictions set forth in the Bond Indenture Agreement.

      . The Bonds will also be used to finance public improvements and infrastructure needed for the "Sportsman Park Center" to be developed on other property in the District that will continue to be owned by Carlisle.

      . The state's contribution is limited to $10.5 million.

      .A point of interest is that the management compensation is described as "the actual costs and expenses arising out of the operation, maintenance and repair” of the Cabela's property, plus associated personnel costs, which sounds very much like the items designated as "additional rents.”

      . Incidentally, the Project also involves a pledge of city and state sales taxes as security for the Bonds.

      . See 1989 La. Acts, No. 843; 1990 La. Acts, No. 1102; 1991 La. Acts, No. 1067; 1992 La. Acts, No. 1145; 2000 La. Acts, No. 152; and 2003 La. Acts, No. 1303.