author: KHOUZAM, Judge.

text:
    NATIONWIDE MUTUAL FIRE INSURANCE COMPANY; Nationwide General Insurance Company; Titan Indemnity Company; Nationwide Property & Casualty Insurance Company; Nationwide Assurance Company; Allied Property & Casualty Insurance Company; Depositors Insurance Company; Victoria Select Insurance Company; Victoria Fire & Casualty Insurance Company; Peak Property & Casualty Insurance Corp.; Dairyland Insurance Company, a/k/a Sentry Insurance, A Mutual Company; and Siamco, Appellants, v. AFO IMAGING, INC., as assignee, individually, and on behalf of all those similarly situated, Appellee.
    Nos. 2D10-929, 2D10-2274.
    District Court of Appeal of Florida, Second District.
    July 6, 2011.

      Hala Sandridge of Fowler White Boggs P.A., Tampa, and Edward K. Cottrell and John P. Marino of Fowler White Boggs P.A., Jacksonville, for Appellants.
    David M. Caldevilla and Michael Bray of de la Parte & Gilbert, P.A., Tampa; J. Daniel Clark of Clark & Martino, P.A., Tampa; Christopher P. Calkin and Michael Reiss of Law Offices of Christopher P. Calkin, P.A., Tampa; Craig E. Roth-burd of Craig E. Rothburd, P.A., Tampa; and Scott R. Jeeves of Jeeves Law Group, P.A., St. Petersburg, for Appellee.
    Cullin A. O’Brien and Stuart A. Davidson of Robbins Geller Rudman & Down LLP, Boca Raton, and Eric Lee of Lee & Amtzis, P.L., Boca Raton, for Amicus Curiae All Family Clinic of Daytona Beach, Inc.
   KHOUZAM, Judge.

The Appellants, the Insurance Companies, challenge a final judgment entered against them in a consolidated class action brought by AFO Imaging, Inc., as assignee and on behalf of other similarly situated health care providers that performed magnetic resonance imaging (“MRI”) services (the “MRI providers”) for personal injury protection (“PIP”) benefits to their insureds in the State of Florida. The final judgment awarded money damages for amounts found to have been underpaid to the MRI Providers by the Insurance Companies for PIP benefits for MRI services. We affirm.

The final judgment, which was entered on competing motions for summary judgment, rests upon a declaration of the parties’ respective rights and obligations under section 627.736, Florida Statutes (2008), in regard to PIP benefits. The Insurance Companies had argued that they were entitled to pay for nonemergen-cy, nonhospital MRI services provided to PIP insureds based on Medicare’s Hospital Outpatient Prospective Payment System (“OPPS”) (sometimes referred to as the OPD fee schedule amount). They contended that the OPPS amount was part of the participating physicians schedule of Medicare Part B and served as a limitation on the amounts recoverable for MRI services under Florida law. The trial court rejected their argument and properly determined that subsections 627.736(5)(a)(2)(f), (5)(a)(3), and (5)(a)(4) did not authorize a PIP insurer to utilize any restrictions or limitations applicable to the Medicare program when determining the amounts due for MRI services provided in a nonemergency, nonhospital setting for PIP insureds in the State of Florida.

The versions of the Florida Motor Vehicle No-Fault Law applicable to these consolidated class actions set forth the methodology by which a PIP insurer was allowed to limit reimbursement for certain covered medical services, supplies, and care provided to a PIP insured. See § 627.736(5)(a), Fla. Stat. (2008). It is undisputed that the MRIs here were provided in a nonemergency, nonhospital setting and that subsection (5)(a)(2)(f) thus applied to the determination of the amounts due for these MRI services. See § 627.736(5)(a)(2)(f). Subsections (5)(a)(3) and (5)(a)(4) were also implicated in making the determination of the amounts due for these MRI services. See § 627.736(5)(a)(3)-(4). Of these, subsections (5)(a)(2)(f) and (5)(a)(3) are critical to our decision in this appeal.

The version of subsections (5)(a)(2)(f) and (5)(a)(3) in effect from January 1, 2008, through June 30, 2008, provided as follows:

2. The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges:
f. For all other medical services, supplies, and care, 200 percent of the applicable Medicare Part B fee schedule. However, if such services, supplies, or care are not reimbursable under Medicare Part B, the insurer may limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under s. 440.13 and rules adopted thereunder which are in effect at the time such services, supplies, or care are provided. Services, supplies, or care that are not reimbursable under Medicare or workers’ compensation are not required to be reimbursed by the insurer.
3. For purposes of subparagraph 2., the applicable fee schedule or payment limitation under Medicare is the fee schedule or payment limitation in effect at the time the services, supplies, or care were rendered and for the area in which such services were rendered, except that it may not be less than the applicable 2007 Medicare Part B fee schedule for medical services, supplies, and care subject to Medicare Part B.

§ 627.736(5)(a)(2)(f), (5)(a)(3) (emphasis supplied). These subsections were amended effective July 1, 2008, to read:

2. The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges:
f. For all other medical services, supplies, and care, 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B. However, if such services, supplies, or care is not reimbursable under Medicare Part B, the insurer may limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under s. 440.13 and rales adopted thereunder which are in effect at the time such services, supplies, or care is provided. Services, supplies, or care that is not reimbursable under Medicare or workers’ compensation is not required to be reimbursed by the insurer.
3. For purposes of subparagraph 2., the applicable fee schedule or payment limitation under Medicare is the fee schedule or payment limitation in effect at the time the services, supplies, or care was rendered and for the area in which such services were rendered, except that it may not be less than the allowable amount under the participating physicians schedule of Medicare Part B for 2007 for medical services, supplies, and care subject to Medicare Part B.

§ 627.736(5)(a)(2)(f), (5)(a)(3) (emphasis supplied).

As reflected above, subsections (5)(a)(2)(f) and (5)(a)(3), as amended by the Florida Legislature in 2008, expressly designated “the participating physicians schedule of Medicare Part B” as the operative fee schedule to be utilized in computing the minimum amount the Insurance Companies were statutorily allowed to remit for the type of medical services, supplies, and care provided to the PIP insureds by the MRI Providers.

The computations relied upon by the Insurance Companies, however, had capped the payments due for the MRI services based on OPPS, which required the use of an additional, limiting schedule in determining allowable Medicare payments under Medicare Part B. This additional schedule, under federal law, was to be utilized in calculating authorized Medicare payments for the technical component of certain imaging services- — -it acted as a limitation on the amounts that federal law would allow for certain services provided to Medicare recipients. See All Family Clinic of Daytona Beach, Inc. v. State Farm Mut. Auto. Ins. Co., 685 F.Supp.2d 1297, 1299 (S.D.Fla.2010).

The Insurance Companies asserted, and continue to argue, that this additional fee schedule was part of “the participating physicians schedule of Medicare Part B” referred to by the Florida Legislature in subsections (5)(a)(2)(f) and (5)(a)(3). They argue that the statutory phrase “the allowable amount,” which immediately preceded the phrase “participating physicians schedule of Medicare Part B,” should be interpreted to mean the amount that actually would have been allowed under the Medicare program.

We reject their argument. Subsections (5)(a)(2)(f) and (5)(a)(3) unambiguously refer to the participating physicians schedule of Medicare Part B as the schedule upon which to rely. The OPD fee schedule amount payable by Medicare under OPPS is a distinct and separate component of Medicare Part B. As recently stated by the federal district court in All Family Clinic, “[t]he OPPS schedule is an entirely separate component of the Medicare B program from the participating physicians schedule.” 685 F.Supp.2d at 1301 (citing Amgen, Inc. v. Smith, 357 F.3d 103, 106 (D.C.Cir.2004), as a general reference to explain the interplay between OPPS and Medicare Part B). The inclusion of the phrase “the allowable amount” in subsections (5)(a)(2)(f) and (5)(a)(3) does not alter the plain meaning of these subsections when that phrase is read in context with the remainder of these PIP provisions. This court would have to ignore the phrase “under the participating physicians schedule,” in order to read these subsections in the manner suggested by the Insurance Companies.

Inasmuch as subsections (5)(a)(2)(f) and (5)(a)(3) unambiguously referred to, and only to, Medicare Part B’s participating physicians schedule, the minimum amount due for the MRI services provided in a nonemergency, nonhospital setting to the Insurance Companies’ PIP insureds covered under Florida law could not have been capped by the OPD fee schedule amount payable by Medicare under OPPS. Accordingly, we affirm.

Affirmed.

WHATLEY and DAVIS, JJ„ Concur.

      . The declaration pertained to PIP benefits allowable under the statutory provisions in effect beginning January 1, 2008. This opinion is limited to the statutory provisions in effect for 2008.

      . "Sections 627.730-627.7405 may be cited and known as the 'Florida Motor Vehicle No-Fault Law.' ” § 627.730, Fla. Stat. (2008).

      . As further explained in this opinion, the version of section 627.736(5)(a), Florida Statutes (2008), in effect from January 1, 2008, through June 30, 2008, was amended in 2008 effective July 1, 2008.

      .Numerous arguments have been presented with respect to subsection (5)(a)(4), but they are not critical to the disposition of this appeal.

       Note. — The word "of” was inserted by the editors.

      . The parties' disputes center upon the latter version of the 2008 statute, which referred to "the participating physicians schedule of Medicare Part B” and "the participating physicians schedule of Medicare Part B for 2007,” rather than the earlier version of the 2008 statute, which referred to "the applicable Medicare Part B fee schedule” and "the applicable 2007 Medicare Part B fee schedule.”


source: Caselaw Access Project

author: STEVENSON, J.

license: Public Domain

text:
    Makendy ALFRED, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3176.
    District Court of Appeal of Florida, Fourth District.
    July 27, 2011.
    Rehearing Denied Oct. 25, 2011.

      Makendy Alfred, Malone, pro se.
    No appearance required for appellee.
   STEVENSON, J.

We affirm the trial court’s order summarily denying appellant’s Rule 3.850 motion and amended motion for postconviction relief.

Appellant’s motion and amended motion raised procedurally-barred claims that his plea was involuntary due to ineffective assistance of counsel and appellant’s alleged misunderstanding as to the possible sentence. This court rejected these claims on direct appeal. Alfred v. State, 998 So.2d 1197 (Fla. 4th DCA 2009) (holding that plea colloquy conclusively showed that appellant was not entitled to relief on his claim that counsel misadvised him as to the potential sentence and holding that any deficiency of trial counsel did not prejudice appellant). A Rule 8.850 motion cannot be used to litigate issues that could have been or were raised and rejected on direct appeal. Teffeteller v. Dugger, 734 So.2d 1009, 1016 (Fla.1999); see also Brown v. State, 596 So.2d 1026, 1028 (Fla.1992) (“Raising a different argument in a rule 3.850 motion to relitigate an issue raised and rejected on direct appeal is inappropriate.”).

Further, as we already held in the direct appeal, appellant’s allegation that he believed his sentence would be capped at fifteen years is thoroughly refuted by the record. Appellant’s new allegation, which he raised for the first time in his amended posteonviction motion — that counsel coached him to lie during the plea colloquy — does not require an evidentiary hearing. A defendant is bound by his sworn answers during a plea colloquy and cannot later disavow those answers by asserting that he lied during the colloquy at counsel’s direction. Iacono v. State, 930 So.2d 829, 831 (Fla. 4th DCA 2006); see also Polk v. State, 56 So.3d 804, 808 (Fla. 2d DCA 2011) (agreeing that “a defendant should be estopped to receive an evidentia-ry hearing on a postconviction claim when the basis of the claim is that he lied under oath at the relevant hearing”).

Affirmed.

TAYLOR and CONNER, JJ., concur.


author: GRIFFIN, J.

text:
    Stuart WRAIGHT, Appellant, v. Kerry WRAIGHT, Appellee.
    No. 5D10-3083.
    District Court of Appeal of Florida, Fifth District.
    Aug. 26, 2011.
    Rehearing Denied Sept. 30, 2011.

      Stuart Wraight, Grande Prairie, Alberta, Canada, pro se.
    No Appearance for Appellee.
   GRIFFIN, J.

Stuart Wraight [“Husband”], pro se, appeals a final judgment of dissolution of marriage that, among other things, granted Kerry Wraight’s [“Wife”] petition to relocate to the United Kingdom with the minor child. We do not find that the trial court misapplied the law and, accordingly, we affirm the relocation decision. We agree that the court erred in equitably dividing Husband’s non-marital pension.

The parties were married in the United Kingdom (“U.K.”) in February 1999. In April 2000, the parties emigrated from the U.K. to Canada, where they resided for seven years. Both parties worked in Canada earning roughly the same amount of money. Their only child, a daughter, was born in 2003, making her around six years old at the time the parties filed for divorce.

In 2007, Husband was offered a job with the City of Orlando through a special visa, and the parties moved to Florida. Wife, however, was unable to work in the United States because of the type of visa she had. In July 2008, Wife scheduled a trip to the U.K. with the minor child to visit Wife’s family. A week after Wife returned, Husband arrived at work to find an e-mail from Wife announcing that she had taken the minor child and gone back to the U.K.

Husband sought assistance from local law enforcement agencies and the Florida courts. He filed divorce proceedings with an emergency motion to return the minor child and to award temporary custody of the minor child to Husband. Wife filed divorce and custody proceedings in the U.K. Husband’s motion was granted in part in that the immediate return of the minor child was ordered, but the other requested relief was denied until a status hearing could be conducted. Wife was served with the order but refused to return with the minor child and did not attend the status hearing. The trial court advised Husband that the U.K. proceedings had to be withdrawn before the Florida court could proceed.

Because Wife refused to withdraw the divorce and custody proceedings in the U.K., Husband had to file proceedings through the Hague Convention. It took Husband four months to obtain an order requiring Wife to return the child to Florida.

Promptly upon her return to Florida, Wife sought permission from the trial court for temporary relocation back to the U.K. with the minor child, pending the final hearing. The trial court granted Wife’s request.

The final hearing was held on April 30, 2010, and the final judgment was rendered in August 2010. The final judgment awarded Wife primary residential custody of the minor child and allowed permanent relocation to the U.K. Husband was awarded visitation. The final judgment also awarded child support to Wife and equitably distributed the parties’ remaining marital assets and debts.

In the final judgment, the trial court made detailed findings based on the statutory factors relevant to the dissolution under section 61.13, Florida Statutes, and the factors relevant to relocation under section 61.13001, Florida Statutes. Husband complains that these findings were erroneous and that the custody and relocation decisions were also erroneous. So long as these findings are supported by evidence, however, we may not disturb the trial court’s decision, even if we might disagree with it. In opposing Wife’s custody of the child and relocation, for example, Husband asserts that the record shows an act of a calculated pre-planned child abduction by Wife further aggravated by her refusal to return until finally forced to do so by the High Court, at great difficulty and expense to himself as father of the abducted child. The trial court, however, decided to excuse Wife’s conduct, finding that she had merely relied on bad legal advice.

Husband also argues that the trial court failed to apply the correct standards in evaluating the issue of relocation. Section 61.13001, Florida Statutes (2006), titled “Parental relocation with a child,” establishes the procedures involved in the relocation of a child, whether relocation is sought after agreement between the parties or alternatively contested by one party. In the case of a contested relocation, the Legislature has declared that “[n]o presumption shall arise in favor of or against a request to relocate with the child when a primary residential parent seeks to move the child and the move will materially affect the current schedule of contact, access, and time-sharing with the nonrelo-cating parent or other person.” § 61.13001(7), Fla. Stat. (2006). Instead, section 61.13001(8), states:

The parent or other person wishing to relocate has the burden of proof if an objection is filed and must then initiate a proceeding seeking court permission for relocation. The initial burden is on the parent or person wishing to relocate to prove by a preponderance of the evidence that relocation is in the best interest of the child. If that burden of proof is met, the burden shifts to the nonrelo-cating parent or other person to show by a preponderance of the evidence that the proposed relocation is not in the best interest of the child.

In addition to the burden that the parties must meet, the statute outlines multiple factors a trial court must consider before reaching a decision on a parent’s request for permanent relocation. § 61.13001(7), Fla. Stat. (2006). Here, the trial court considered the factors under sections 61.13(8) and 61.13001(7) and made written findings concerning those factors. Husband takes issue with the trial court’s findings, but this Court cannot reweigh the evidence considered by the trial court. We can only decide whether substantial competent evidence exists to support the trial court’s decision. See Berrebbi v. Clarke, 870 So.2d 172, 173 (Fla. 2d DCA 2004); Kuntz v. Kuntz, 780 So.2d 1022 (Fla. 4th DCA 2001). Here, there is some evidence to support the trial court’s findings.

Husband additionally argues that under section 61.13001(6)(c), it was error for the trial court to give weight to the child’s temporary relocation as a factor in reaching its final decision. Section 61.13001(6)(c), Florida Statutes (2007), provides:

If the court has issued a temporary order authorizing a party seeking to relocate or move a child before a final judgment is rendered, the court may not give any weight to the temporary relocation as a factor in reaching its final decision.

Husband asserts that the following findings from the final judgment suggest that the trial court wrongly weighed the temporary relocation in reaching its final relocation decision:

The Wife testified that the child had been performing well and has adjusted and appears to be happy in the Worth Primary school in the United Kingdom. The minor child has been relocated to the United Kingdom and according to the testimony of the parties, has adjusted well. The Court finds another relocation of the minor child not to be in her best interests.
The Wife testified that she is settled and has adapted well to relocation in the United Kingdom, as has the child. She further testified she has become involved in a serious relationship and while not expediting a new marriage, feels committed to same. The Wife testified a healthy and positive relationship exists between her significant other (David P.) and the minor child.
The child now resides in the United Kingdom where she is close to immediate and/or extended family members. The Wife testified she has adapted well in her present school, and has become involved in horseback riding as well as other activities, involving both families (of the Husband and Wife).
To once again relocate the minor child and require her to acclimate to another new school and friends is not in her best interests.
The Wife testified to a new and promising relationship with David P. and a positive relationship between him and the minor child. The parties are also able to connect with close family members on a regular basis.

There is no case law that interprets section 61.13001(6)(c), nor is there any legislative history that would explain the inclusion of subsection (6)(c). Oddly, section 61.13001(6)(c) expressly requires the court, in making a temporary relocation decision, to examine evidence and weigh the same factors that are pertinent to a final relocation decision. Perhaps this provision is designed to assure that the facts and issues pertinent to a final relocation decision will be fully examined de novo at the final hearing. This statute may also be designed to temper the unfairness often perceived by the objecting parent where the custodial parent is allowed to temporarily relocate with the child, and then use evidence of the success with the temporary relocation to gain an unfair advantage over the objecting parent. It seems inevitable, even necessary, for the court to take into account the events of a temporary relocation (good and bad) in evaluating and applying the statutory factors. After examining the record and the appealed order, we conclude that the limitations in section 61.13001(6)(c) were not violated.

We reverse on the issue of the equitable distribution of Husband’s non-marital pension. Prior to the parties’ marriage, Husband worked for the U.K. government where he earned a pension. After the parties moved to Canada, Husband transferred the money to an annuity retirement account and made Wife the beneficiary. At the final hearing below, Wife’s counsel argued that, in doing so, Husband created an interspousal gift of his non-marital U.K. pension.

Wife relied on Mercurio v. Urban, 552 So.2d 236 (Fla. 4th DCA 1989). In Mercu-rio, the parties owned a stock certificate as tenants in common. Both parties’ names appeared on the stock certificate. The Fourth District concluded that there was a presumption of a gift since the parties each owned one-half of the stock as tenants in common. The court then concluded that Mercurio did not meet his burden of rebutting the presumption of a gift.

Here, Husband argues that the court’s reliance on Mercurio was mistaken because making his Wife the beneficiary did not rise to the level of a gift of a share of the annuity contract. A somewhat similar case is Rasmussen v. Rasmussen, 909 So.2d 969 (Fla. 2d DCA 2005). There, the husband signed a note that was notarized which gave to his wife all of his property “in the event of death or separation.” Id. at 970. The trial court found that the note had the effect of making a gift to the wife of all of the husband’s nonmarital assets. The Second District discussed the principles used for determining whether there has been a valid gift, and concluded that the note did not make a valid gift of the husband’s property to the wife because the wife’s rights did not accrue until the husband’s death or separation. Id. at 970-71. Likewise, in this case, Wife has no right to the annuity unless or until Husband passes away. Moreover, Husband has the right to change the beneficiary. The trial court erred in treating the U.K. pension as a marital asset subject to equitable distribution. Luszcz v. Lavoie, 787 So.2d 245, 248 (Fla. 2d DCA 2001).

Finally, Husband asserts that the trial court erred in failing to award him $4,000 previously awarded by the High Court. Specifically, the order awarded:

B. (8) She will irrevocably agree that, if the Plaintiff pays to her the sum of U.S. $4,000 in accordance with his undertakings at A(3), she will forthwith upon sale of the jointly owned property in Canada as set out at B(ll) repay to him from her share of proceeds of sale the sum of U.S. $4,000; this undertaking shall endure without limit of time.

Husband asserts in his initial brief that he paid the sum of $4,000 to Wife, in accordance with the High Court’s Order, and that the final judgment equitably divides the proceeds from the sale of the condominium in Canada, but does not deduct the $4,000 from Wife’s share of the proceeds. On remand, this credit needs to be determined by the trial court.

AFFIRMED in part; REVERSED in part.

ORFINGER, C.J. and COHEN, J., concur.

      . Husband has also raised on appeal the trial court’s findings concerning the parties’ respective incomes and the failure to impute income to Wife, but Husband has not demonstrated reversible error on these issues.

      . Husband’s brief asserts that, under U.K. law, Wife had to reside in the U.K. for at least six months before filing divorce and custody proceedings.


author: EVANDER, J.

text:
    MELBOURNE OCEAN CLUB CONDOMINIUM, etc., et al., Appellants, v. Linda Baumgarner ELLEDGE, et al., Appellees.
    No. 5D10-142.
    District Court of Appeal of Florida, Fifth District.
    Aug. 26, 2011.
    Rehearing Denied Oct. 4, 2011.
    David A. Gunter of Dean Mead, Viera, and Philip F. Nohrr, of GrayRobinson, P.A., Melbourne, for Appellants.
    J. Timothy Schulte and Sarah A. Lind-quist, of Zimmerman Kiser Sutcliffe, Orlando, for Appellees.
   EVANDER, J.

Melbourne Ocean Club Condominium Association, Inc., (MOCCA) and Tinimar, Inc., appeal a non-final order requiring each to obtain independently audited financial statements and to provide same to Appellees. We have jurisdiction pursuant to Rule 9.130(a)(3)(B), Florida Rules of Appellate Procedure. We affirm, without discussion, as to the issues raised by MOC-CA. However, we conclude that the trial court erred when it determined that the one year statute of limitations for an action for specific performance did not apply to the claim brought against Tinimar.

MOCCA is the governing entity for Melbourne Ocean Club Condominium — a condominium that operates as a hotel under a franchise agreement with Radisson Hotels. Appellees are unit owners and members of MOCCA. Tinimar was employed by MOCCA as its exclusive managing agent. Additionally, pursuant to written contracts entered into with each unit- owner, Tinimar served as each unit owner’s exclusive rental agent.

In Count VIII of their Fourth Amended Complaint, the plaintiffs below alleged that Tinimar had breached its contracts with the unit owners by failing to provide annual audited financial statements as required by the terms of the rental agreements. Each of the rental agreements included the following provision:

BUDGETS; BOOKS OF ACCOUNT; ANNUAL FINANCIAL STATEMENTS:
Annually, on or before March 15 of each year as to the preceding calendar year, Agent [Tinimar] shall cause to be prepared and delivered to owner:
A.A complete income statement audited by an independent certified public accountant selected by Agent that includes the Gross Rental Income, itemized operating expenses and Agent’s Basic and Incentive Fees and Payments to the FF & E Reserve as to Owner’s Unit and as to all other Units.
B. An audited statement of funds and other assets held by Agent including, separately, all reserve funds and liabilities incurred but not paid.
C. A statement of changes in financial position.
Such annual financial statements shall be prepared on an accrual basis in accordance with generally accepted accounting principles and shall disclose in detail all transactions with Agent and any affiliates showing the amounts paid or accrued to each recipient and the services performed and goods or materials provided. The cost of preparing such statements and of conducting such audit shall be a Hotel Operating Expense.

Plaintiffs sought injunctive relief requiring Tinimar to obtain audited financial statements for the years 2002-2007, and to provide same to Plaintiffs.

The trial court bifurcated Count VIII and Count I (in which Appellees similarly sought to obtain audited financial statements from MOCCA) and proceeded to trial on those two counts. As to the claims brought against Tinimar, the trial court found that numerous unit owners were barred by the doctrines of waiver, estop-pel, and/or laches to seek audited financial statements for the years prior to 2007. However, the trial court went on to hold that Appellees Joseph Valdastri, Eugene McCarthy, Judith McCarthy, and Howard Heidel were entitled to receive audited financial statements from Tinimar for the years 2004, 2005, and 2006, and all Appel-lees were entitled to audited statements for 2007.

On appeal, Tinimar raises several issues, only one of which has merit. Tini-mar argues that Appellees’ action to require Tinimar to obtain and produce audited financial statements was in the nature of an action for specific performance and thus governed by the one year statute of limitations set forth in section 95.11(5)(a), Florida Statutes (2007):

Actions other than for recovery of real property shall be commenced as follows:
(5) WITHIN ONE YEAR.—
(a) An action for specific performance of a contract.

Appellees argue that they were seeking enforcement of the rental agreements through an injunction and, therefore, their claim was an equitable action on a written contract subject to the five year statute of limitations set forth in section 95.11(2)(b):

(2) WITHIN FIVE YEARS.—
(b) A legal or equitable action on a contract, obligation, or liability founded on a written instrument....

We agree with Tinimar.

Because the issue raised by Tinimar is a question of law dependent upon the construction of section 95.11, our standard of review is de novo. Fox v. Madsen, 12 So.3d 1261, 1262 (Fla. 4th DCA 2009).

As a general rule, contractual obligations may be classified as affirmative, where one agrees that something has been or will be done, or negative, where one agrees that something has not been or will not be done. Seaboard Oil Co. v. Donovan, 99 Fla. 1296, 128 So. 821, 824 (1930). The equitable remedy for breach of the former is an order requiring specific performance, while the equitable remedy for the latter is an injunction. Id.; see also Pond Apple Place III Condo. Ass’n, Inc. v. Russo, 841 So.2d 526, 527 (Fla. 4th DCA 2003). Here, Appellees were requesting the court to enter an order requiring Tini-mar to perform an affirmative obligation under the rental agreements, to wit, to furnish Appellees with financial statements audited by an independent certified public accountant. Thus, Appellees’ claim against Tinimar constituted an action for specific performance, subject to a one year statute of limitations. See Ferola v. Blue Reef Holding Corp., Inc., 719 So.2d 389 (Fla. 4th DCA 1998).

Appellees seek support from our decision in Sheoah Highlands, Inc. v. Daugherty, 837 So.2d 579 (Fla. 5th DCA 2003), where we determined that the five year statute of limitations applied in an action by a unit owner to enjoin his condominium association from continuing to permit other unit owners from having screened enclosures on the condominium’s common property in contravention of the declaration of condominium. Sheoah is distinguishable. In Sheoah, the plaintiff-unit owner’s action sought to enforce both “affirmative” and “negative” contractual obligations. That is, the plaintiff-unit owner sought to require the condominium association to enforce the declaration of condominium against non-compliant unit owners, but also sought to have the condominium association be prohibited from continuing to allow the improper use of the condominium’s common property. We concluded that because reasonable arguments could be made supporting the application of either statute of limitations, it was appropriate to resolve the issue in favor of the claimant. Sheoah Highlands, 837 So.2d at 582 (citing 51 Am.Jur.2d Limitation of Actions § 92 (2000) (“As a matter of policy, if there is a substantial question or reasonable dispute as to which of two or more statutes of limitation ... should be applied, the doubt should be resolved in favor of the application of the statute containing the longest limitation period.”)).

In contrast to Sheoah, we believe that Appellees’ claim against Tinimar can be reasonably construed only as an action for specific performance. Because Appellees’ initial action was not filed until August 2007 (approximately five months after Ti-nimar was required to provide the audited financial statements for 2006), it was error for the trial court to order Tinimar to provide Appellees with audited financial statements for the years 2004 and 2005.

AFFIRMED, in part; REVERSED, in part; REMANDED.

ORFINGER, C.J. and PALMER, J., concur.

      . Florida Rule of Appellate Procedure 9.130(a)(3) provides that:
      Appeals to the district courts of appeal of non-final orders are limited to those that (B) grant, continue, modify, deny, or dissolve injunctions, or refuse to modify or dissolve injunctions;


author: VAN NORTWICK, J.

text:
    Joe A. BUSH and Mary A. Bush, Petitioners, v. CITY OF MEXICO BEACH, Florida, Respondent.
    No. 1D10-5843.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2011.
    Rehearing Denied Oct. 10, 2011.

      J. Patrick Floyd, Port St. Joe, for Petitioners.
    David A. Theriaque and S. Brent Spain of Theriaque & Spain, Tallahassee, for Respondent.
   VAN NORTWICK, J.

Petitioners, Joe A. and Mary A. Bush, seek certiorari review of an order of the circuit court dismissing their amended petition for writ of certiorari by which they challenged the denial by the City of Mexico Beach, respondent, of their application to divide a residential lot (“lot split application”). We grant certiorari relief because the circuit court did not address the substantial due process issues raised in the amended petition. Thus, the circuit court did not engage in the three-prong review required by City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (Fla.1982), and “[t]his constituted ‘a violation of a clearly established principle of law resulting in a miscarriage of justice’ and, therefore, a departure from the essential requirements of law.” Clay County v. Kendale Land Dev., Inc., 969 So.2d 1177, 1181 (Fla. 1st DCA 2007) (quoting Broward County v. G.B.V. Int’l Ltd., 787 So.2d 838, 845 (Fla.2001)).

The Bushes filed a lot split application with the City on September 8, 2009, alleging that, when they divided their lot into two lots in 2005, they met all the requirements of the City’s land development regulations. They assert before this court that they also met the dual requirement that their application comply with the City’s comprehensive plan because section 7.01.01(B), City of Mexico Beach Land Development Regulations, provides that “[a] development shall be considered consistent with the adopted Comprehensive Plan if the development conforms to the provisions set forth in the City of Mexico Beach Land Development Code.” See Bd. of County Comm’rs of Brevard County v. Snyder, 627 So.2d 469, 476 (Fla.1993) (“[A] landowner seeking to rezone property has the burden of proving that the proposal is consistent with the comprehensive plan and complies with all procedural requirements of the zoning ordinance.”).

A hearing on the lot split application was held before the Planning and Zoning Board on October 6, 2009, after which the Planning and Zoning Board voted unanimously to recommend denial of the application. The lot split application was scheduled for public hearing before the Mexico Beach City Council on October 13, 2009. The City Council, however, voted to table the Bushes’ application for future consideration.

For the next six months, despite numerous requests, the Bushes were unable to obtain a hearing before the City Council on their application. The Bushes allege that, although they could not obtain a hearing on their lot split application, other property owners in Mexico Beach presented and obtained approval and acceptance of the division of parcels for purposes of sale or development. This delay prompted the Bushes to file a mandamus action against the City to compel the City Council to hold a final hearing. After an order to show cause was issued by the circuit court on March 23, 2010, the Bushes were notified that a final hearing before the City Council was to be held on April 13, 2010. At the outset of the April 13, 2010 hearing, the City Council again tabled the discussion of the Bushes’ lot split application to provide time for the City to retain a land use attorney. The City Council, however, did allow counsel for the Bushes to speak.

While the Bushes’ application was pending, the City Council was also considering the adoption of a new land development regulation that, among other things, addressed the subdivision of property and required neighborhood consistency when lots are subdivided. The City Council adopted this new ordinance on April 13, 2010, and incorporated the requirements of the new ordinance as section 3.07.00 of the City’s Land Development Code.

At its regular meeting on May 11, 2010, the City Council voted unanimously, without discussion, to deny the Bushes’ lot split application. In its final order, the City Council found that the application failed to comply with the newly-enacted land development ordinance and two policies in the Future Land Use Element of the City’s Comprehensive Plan. Below and here, the Bushes assert that the newly-passed ordinance cannot be applied to the application and that they neither had been advised that the City was relying on these future land use policies nor given an opportunity to argue in support of their application.

The Bushes timely sought certio-rari review in the circuit court, complaining of these numerous alleged due process violations and asserting that they never received a quasi-judicial hearing before the City Council. As the Third District explained in Jennings v. Dade County, 589 So.2d 1337, 1340-41 (Fla. 3d DCA 1991):

At the outset of our review of the trial court’s dismissal, we note that the quality of due process required in a quasi-judicial hearing is not the same as that to which a party to full judicial hearing is entitled. Quasi-judicial proceedings are not controlled by strict rules of evidence and procedure. Nonetheless, certain standards of basic fairness must be adhered to in order to afford due process. Consequently, a quasi-judicial decision based upon the record is not conclusive if minimal standards of due process are denied. A quasi-judicial hearing generally meets basic due process requirements if the parties are provided notice of the hearing and an opportunity to be heard. In quasi-judicial zoning proceedings, the parties must be able to present evidence, cross-examine witnesses, and be informed of all the facts upon which the commission acts.

(Citations omitted). Upon motion of the City, the circuit court dismissed the amended petition based upon the City’s argument that the Bushes had failed to timely file a separate action pursuant to section 163.8215, Florida Statutes (2009), to challenge the City’s determination that their lot split application was inconsistent with the City’s Comprehensive Plan. The circuit court ruled that, even though there may be due process issues which could be decided in the Bushes’ favor, “any relief this Court could afford the [Bushes] would be of no practical purpose and would not affect the underlying validity of the City Council’s Final Order denying the Lot Split Application.” We cannot agree.

While it is correct, as the City argues, that consistency issues must be raised in an action filed pursuant to section 163.3215 and cannot be brought in a petition for writ of certiorari, see Stranahan House, Inc. v. City of Ft. Lauderdale, 967 So.2d 1121, 1125-26 (Fla. 4th DCA 2007), the Bushes have raised more than consistency issues. Below and here, the Bushes also contend that the numerous due process violations preceding the entry of the final order by the City Council require that the order be quashed as invalid by the circuit court and that they be granted a quasi-judicial hearing, with all its attendant due process protections, before the City Council on their lot split application. To the extent that petitioners’ certiorari petition in the circuit court raised issues other than the consistency of the development order, the Bushes were entitled to certiorari review. Thomas v. Suwannee County, 734 So.2d 492, 496 (Fla. 1st DCA 1999) (“Because the proceeding before the Zoning Board was quasi-judicial, ‘to the extent [the objecting neighbors’] challenge raised issues other than the consistency of the development order with the local comprehensive plan, [they] are entitled to cer-tiorari review.’ ” (quoting Education Dev. Ctr., Inc. v. Palm Beach County, 721 So.2d 1240, 1241 (Fla. 4th DCA 1998))); Cook v. City of Lynn Haven, 729 So.2d 545, 546 (Fla. 1st DCA 1999) (granting petition for writ of certiorari and quashing the circuit court’s order, ruling that Cook was entitled to seek certiorari review in circuit court rather than an injunction under section 163.3215 because Cook was challenging the City’s development order on the basis that it violated a zoning provision and not because it was in conflict with the comprehensive plan). On remand, if the Bushes prevail on their contentions before the circuit court, the final order of the City Council would be quashed and would have no force and effect.

Petition Granted.

PADOVANO and HAWKES, JJ., concur.

      . As stated in City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (Fla.1982):
      Where a party is entitled as a matter of right to seek review in the circuit court from administrative action, the circuit court must determine [1] whether procedural due process is accorded, [2] whether the essential requirements of the law have been observed, and [3] whether the administrative findings and judgment are supported by competent substantial evidence. The district court, upon review of the circuit court’s judgment, then determines [1] whether the circuit court afforded procedural due process and [2] applied the correct law.

      . Whether the so-called "pending ordinance doctrine”, see Smith v. City of Clearwater, 383 So.2d 681 (Fla. 2d DCA 1980), applies has not been litigated.


author: PER CURIAM.

text:
    GRUPO RADIO CENTRO S.A.B. DE C.V., etc., Appellant, v. AMERICAN MERCHANT BANKING GROUP, INC. and Spanish Radio Productions, Inc., Appellees.
    No. 3D10-3237.
    District Court of Appeal of Florida, Third District.
    Aug. 31, 2011.
    Rehearing Denied Oct. 4, 2011.
    Legón Ponce & Fodiman, and Todd Le-gón and William F. Rhodes, Miami, for appellant.
    Richard J. Burton and Peter J. Solnick, Miami, for appellees.
    Before RAMIREZ, CORTIÑAS, and SALTER, JJ.
   PER CURIAM.

Grupo Radio S.A.B. de C.V. appeals the denial of its motion to quash service of process and dismissal of the amended complaint. We reverse and remand because service of process was improper.

American Merchant Banking Group Inc. filed suit in February, 2010, against Grupo Radio and its subsidiary, Grupo Radio L.A., seeking compensation for consulting services American allegedly performed pursuant to an oral contract. American originally served only Grupo Radio L.A., believing that Grupo Radio L.A. served as an agent for Grupo Radio. Since American lacked evidence that Grupo Radio exercised exclusive control over Grupo Radio L.A., American lacked evidence of agency. American therefore attempted service on Grupo Radio in Mexico under the Hague Convention, using a foreign process to issue an alias summons.

However, the summons was deficient under the requirements of the Hague Convention, to which Mexico is a signatory, because it did not state whether Grupo Radio’s required response time was calculated in business days or calendar days. This specification is required for proper service under the Hague Convention in Mexico. “The Hague Convention is a multilateral treaty that was formulated in 1964 ... to provide a simpler way to serve process abroad, to assure that the defendants sued in foreign jurisdictions would receive actual and timely notice of suit, and to facilitate proof of service abroad.” Volkswagenwerk AG v. Schlunk, 486 U.S. 694, 698, 108 S.Ct. 2104, 100 L.Ed.2d 722 (1988). The Hague Convention “preempts inconsistent methods of service prescribed by state law.” Id. at 699, 108 S.Ct. 2104. Moreover, the United States Supreme Court has held that the Hague Convention “is mandatory in all cases to which it applies.” Id. at 705, 108 S.Ct. 2104.

In Florida, the Hague Convention applies in all cases “where there is occasion to transmit a judicial or extrajudicial document for service abroad.” Chabert v. Bacquie, 694 So.2d 805, 812 (Fla. 4th DCA 1997). American thus is subject to the requirements of the Hague Convention, and it may easily amend its alias summons to add the single word which would make the summons proper.

Accordingly, we reverse the trial court’s denial of the motion to quash and dismissal of the complaint, and remand the cause for proper service.

Reversed and remanded.

      . See Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, 20 U.S.T. 361, T.I.A.S. No. 6638 (Feb. 10, 1969) (the "Hague Convention”).


author: TUTER, JACK B., JR., Associate Judge.

text:
    Barbara SHULGASSER-PARKER, as Personal Representative of the Estate of Luba Shulgasser, and Airport Motel Associates, Ltd., a Florida limited partnership, Appellants, v. KENNEDY TRINLEY & SANTINO, P.L., a Florida limited liability company, and Earl Mayer, Jr., Appellees.
    No. 4B10-2310.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 2011.
    Rehearing Denied Oct. 27, 2011.
    Jan Douglas Atlas, John J. Shahady, and Kristen Lake Cardoso of Kopelowitz, Os-trow, Ferguson, Weiselberg, Keechl, P.A., Fort Lauderdale, for appellants.
    Gerry S. Gibson, L. Martin Reeder, Jr., and C. Bryce Albu of Reeder & Reeder, P.A., Jupiter, for appellees.
   TUTER, JACK B., JR., Associate Judge.

Appellants/plaintiffs Barbara Shulgas-ser-Parker, as personal representative of the Estate of Luba Shulgasser, and Airport Motel Associates, Ltd. timely appeal an order of final summary judgment and a denial of their motion for rehearing in favor of appellees/defendants, Kennedy Trinley & Santino, P.L. and Earl Mayer, Jr.

On September 15, 2009, the plaintiffs filed an amended complaint alleging legal malpractice, negligence, breach of fiduciary duty, and exploitation of a vulnerable adult. On December 10, 2009, the court set the matter for trial on an eight-week calendar beginning May 17, 2010, with calendar call on April 30, 2010. Discovery was to be completed twenty days before the calendar call.

On January 19, 2010, the defendants filed their motion for summary judgment alleging, “[specifically, the record contains the sworn admission of BSP that plaintiffs can prove no damages against defendants, thus entitling them [to] summary judgment....” The defendants rely on the following interrogatory and answer in support of their motion for summary judgment:

1. State the amount of each item of damages you seek to recover in this action, and for each such item list the documents used or referred to in making the damage calculation, and state the name and address of the person who made the calculation.
Because Defendants have failed, to produce itemized invoices representing legal services performed by Defendants EARL E. MAYER, JR. (“MAYER”) and KTS during Defendants’ representation of AIRPORT MOTEL ASSOCIATES, LTD. (“AIRPORT”) and/or Luba Shulgasser (“Shulgasser”), BSP is unable to respond to Interrogatory No. “1” at this time and will not be able to do so until such information is provided.

A hearing was set on the motion for summary judgment on March 31, 2010, ten days before the discovery cutoff. The day before the hearing on the summary judgment motion, the plaintiffs moved for a continuance of the trial based upon ongoing discovery, contending depositions of the expert and fact witnesses could not be completed due to the unavailability of plaintiffs’ counsel because of other trials. On the same day, defendants’ counsel filed a notice of conflict listing conflicts with the eight-week trial period set to begin May 17. The trial court granted the motion for continuance and placed the case on a July docket.

The plaintiffs filed several affidavits in opposition to the motion for summary judgment. None of the affidavits detailed the specific amount of damages sought; instead, the affidavits referred to ongoing expert calculations of the amount of damages. The trial court entered summary judgment in favor of the defendants based on plaintiffs’ inability to prove their damages by sworn testimony.

In Asgrow-Kilgore Co. v. Mulford Hickerson Corp., 301 So.2d 441 (Fla.1974), the supreme court held:

In Twyman v. Roell, 123 Fla. 2, 166 So. 215 (1936), it was ruled that, “The uncertainty which defeats recovery in such cases has reference to the cause of the damages rather than to the amount of it.” (emphasis ours) (at p. 218). If damages have been suffered, lack of precise proof as to the exact amount will not be fatal so long as the proof supports the monetary loss determined by the finder of fact and is not merely speculative.

Id. at 445.

In Sheridan Healthcorp, Inc. v. Amko, 993 So.2d 167 (Fla. 4th DCA 2008), the trial court entered summary judgment on a variety of grounds including lack of proof of damages. Reversing summary judgment on the damages issue, we held:

Finally, through a quite complex set of calculations advanced by FLSA, the trial court determined that neither Sheridan nor Dr. Triana [plaintiffs] was damaged as a result of any alleged breaches of fiduciary duty or breach of contract. It appears to us that those calculations are based on assumptions as to payment rates and numbers for which there is no authenticated proof. The records relied on to construct the amount of payments do not appear to be supported by any affidavit of authenticity. Furthermore, the trial court’s conclusions were based in part upon the failure of Dr. Triana and Sheridan to present evidence to support their claim. In summary judgment proceedings, the burden is not on the opponent to submit evidence until the movant tenders competent evidence in support of the motion. Finding that the trial court’s conclusions on damages are not based upon a proper application of the burden of proof, we reverse on this issue also.

Id. at 172 (citation omitted).

We find granting summary judgment with ten days remaining before the discovery cutoff and after having rolled the case to a July docket due to ongoing discovery was premature and as such reverse the trial court’s order granting summary judgment.

We agree with the defendants that the adequacy of the answer to the interrogatory as well as affidavits submitted by the plaintiffs in opposition to the motion for summary judgment provided minimal proof of their damages. However, the discovery deadline had not expired and the case had been rolled to a future trial period due to ongoing discovery. Granting summary judgment under these circumstances was error.

Reversed and Remanded.

MAY, C.J., and CONNER, J., concur.


text:
    Phyllis BROWNIE, Appellant, v. FLORIDA INSURANCE GUARANTY ASSOCIATION, INC., Appellee.
    No. 4D10-1844.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 2011.
    Rehearing Denied Oct. 27, 2011.
    Mark D. Press of Stabinski & Funt, P.A., Miami, for appellant.
    Helen Ann Hauser of Restani, Dittmar & Hauser, P.A., Coral Gables, for appellee.
   PER CURIAM.

Affirmed. See Florida Ins. Guar. Ass’n v. Smothers, 65 So.3d 541 (Fla. 4th DCA 2011).

DAMOORGIAN, CIKLIN and LEVINE, JJ., concur.


author: ROTHENBERG, J.

text:
    The STATE of Florida, Appellant/Cross-Appellee, v. Abel RODRIGUEZ, Appellee/Cross-Appellant.
    Nos. 3D10-946, 3D10-535.
    District Court of Appeal of Florida, Third District.
    Sept. 14, 2011.

      Pamela Jo Bondi, Attorney General, and Rolando A. Soler and Timothy R.M. Thomas, Assistant Attorneys General, for appellant/cross-appellee.
    Paul J. Morris, for appellee/eross-appel-lant.
    Before ROTHENBERG and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

The defendant, Abel Rodriguez, was tried and convicted for committing the following offenses: two counts of dispensing drugs without a pharmacist’s license charged in counts six and fourteen of the information, and two counts of adulteration or misbranding of drugs charged in counts nine and seventeen. Following the jury’s verdict, the trial court granted the defendant’s motion for judgment of acquittal notwithstanding the verdict as to counts nine and seventeen, adulteration or mis-branding of drugs. The State appeals the order granting judgment of acquittal as to adulteration or misbranding of drugs (counts nine and seventeen), and the defendant cross appeals the judgment of guilt as to the two remaining counts, dispensing drugs without a pharmacist’s license (counts six and fourteen). The appeals were consolidated and both appeals are based on the sufficiency of the evidence presented. Because the record reflects that there was more than ample evidence to support the jury’s verdict as to all four counts, we reverse the trial court’s order granting a judgment of acquittal as to counts nine and seventeen, and we affirm the judgment of guilt as to counts six and fourteen.

STANDARDS OF REVIEW

In moving for a judgment of acquittal, the defendant admits all facts and evidence adduced at trial, and all reasonable inferences that may be drawn from the evidence must be viewed in the light most favorable to the State. Beasley v. State, 774 So.2d 649, 657 (Fla.2000), When a defendant moves for a judgment of acquittal on the basis of the sufficiency of the evidence, as the defendant did here, he admits not only the facts established by the evidence, but also every conclusion favorable to the State that a jury might fairly and reasonably infer from the evidence. Boyce v. State, 638 So.2d 98, 99 (Fla. 4th DCA 1994).

We review the trial court’s order granting the defendant’s motion for judgment of acquittal as to counts nine and seventeen de novo, see Troy v. State, 948 So.2d 635, 645-46 (Fla.2006); Pagan v. State, 830 So.2d 792, 803 (Fla.2002), and our review is based on the sufficiency of the evidence. Because the defendant’s appeal as to the judgments of guilt entered as to counts six and fourteen are also based on the sufficiency of the evidence, our review in these consolidated appeals is whether there was sufficient evidence to sustain the jury’s verdicts. Unless there is no view of the evidence upon which the jury could find the defendant guilty that can be sustained under the law, the convictions should stand. Williams v. State, 967 So.2d 735, 755 (Fla.2007).

THE CHARGES

A. Counts Nine and Seventeen — Adulteration or Misbranding of Drugs

Counts nine and seventeen charged that the defendant, along with several co-defendants; “did unlawfully and knowingly adulterate a drug intended for distribution and/or did unlawfully and knowingly repackage, sell, deliver, or hold or offer for sale any drug that was misbranded or adulterated, in violation of Florida Statutes 499.0691(3)(b), 499.0691(3)(a), and 777.011.” Count nine pertains to the “Nuria’s operation,” and count seventeen pertains to the “Santa Clara operation.”

Section 499.0691(3), Florida Statutes (2003), provides in pertinent part, as follows:

(3) Any person who violates any of the following provisions commits a felony of the second degree....
(a) Knowingly manufacturing, repackaging, selling, delivering, or holding or offering for sale any drug that is adulterated or mis-branded or has otherwise been rendered unfit for human or animal use.
(b) Knowingly adulterating a drug that is intended for further distribution.

Section 499.003(37), Florida Statutes (2003), defines “repackage” as including “repacking or otherwise changing the container, wrapper, or labeling to further the distribution of the drug....”

(emphasis added).

Section 499.006, Florida Statutes (2003), provides, in relevant part, as follows:

A drug or device is adulterated:
(2) If it has been produced, prepared, packed, or held under conditions whereby it could have been contaminated with filth or rendered injurious to health;
(3) If it is a drug and the methods used in, or the facilities or controls used for, its manufacture, processing, packing, or holding do not conform to, or are not operated or administered in conformity with, current good manufacturing practices to assure that the drug meets the requirements of ss. 499.001-499.081....
(10) If it is a legend [i.e., prescription] drug ... that has been purchased, held, sold, or distributed at any time by a person not authorized under federal or state law to do so.

(Emphasis added). Further, a drug is “misbranded” “[i]f its labeling is in any way false or misleading.” § 499.007(1), Fla. Stat. (2003).

B. Counts Six and Fourteen — Dispensing Drugs Without a Pharmacist’s License

Counts six and fourteen charged that the defendant, along with several co-defendants:

did unlawfully fill, compound, or dispense prescriptions or dispense medicinal drugs and at such time did not hold an active license as a pharmacist, was not registered as an intern, or was not an intern acting under the direct and immediate personal supervision of a licensed pharmacist in the State of Florida, in violation of Florida Statutes 465.015(2)(b), 465.015(4) and 777.011.

The language used to charge the defendant in these two counts tracks the language of section 465.015(2)(b), Florida Statutes (2003), and therefore will not be repeated here. Section 465.015(4), Florida Statutes (2003), provides that a violation of the above constitutes a third degree felony.

Section 777.011, Florida Statutes (2003), which is charged in all four counts, is the “principal” statute, which provides:

Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed, and such offense is committed or is attempted to be committed, is a principal in the first degree and may be charged, convicted, and punished as such, whether he or she is or is not actually or constructively present at the commission of such offense.

THE EVIDENCE

The evidence presented is as follows. The defendant, who had been in the pharmaceutical business for thirty-five years, first in New Jersey and then in Miami beginning in the late 1990’s, decided to expand his operation by getting involved in the internet pharmacy business. At the beginning, he began “capturing” applications for pharmaceuticals; a doctor would sign off on the applications; the prescriptions would be filled at one of the defendant’s pharmacies, usually at Nuria’s La Familia Pharmacy (“Nuria’s”), located on 22nd Avenue and N.W. 11th Street in Miami; the prescriptions would be shipped to the customers; and the defendant would get a “service fee” for filling the prescriptions.

Eventually, the defendant hired Freddy and Danny Davila to set up an internet company, RX Hot Deals, where the defendant advertised for and created his own internet pharmaceutical business. The orders generated by RX Hot Deals were processed at either A.R. & Associates, the defendant’s company, where the operation was managed, located at the Ocean Bank Building on LeJeune, or at Nurias’s, where the defendant spent most of his time and on a daily basis.

To run the internet operation, the defendant obtained several pharmacy licenses. These licenses enabled him to order pharmaceuticals from wholesalers and to dispense them from those locations. Nuria’s was an active operating pharmacy. However, the internet operation at that location was totally separate from the legitimate pharmacy being operated there, which will be discussed in detail in this opinion. The defendant also acquired pharmacy licenses for Universal Pharmacy (“Universal”), located at 1740 S.W. 57th Avenue, and International Latin Medical Corp. (“International”), located on 184th Street. However, Universal and International were not active pharmacies. The defendant simply purchased the licenses and rented the space to allow him to purchase and dispense the drugs.

Although the law requires that prescription drugs be stored in a locked area, filled by a licensed pharmacist or under the direct supervision of a licensed pharmacist, processed at a licensed pharmacy, and dispensed from the pharmacy to which they were delivered, none of the drugs were filled or dispensed from either Universal or International. Instead, they were stored, filled, and dispensed at either 2290 S.W. 8th Street (“the Santa Clara location”), which was a closed nightclub/bar, or at the back room operation at Nuria’s. No pharmacist was present or oversaw the filling or dispensing of the prescriptions processed at Nuria’s or the Santa Clara location. The drugs stored and processed at Nuria’s were not kept in a locked area, and the Santa Clara location was dirty and the pill counters were not properly cleaned.

Law enforcement began investigating the defendant’s operation, and on October 25, 2004, while they were surveying the Santa Clara location (the closed nightclub located next to, but not a part of, an actual pharmacy), they observed Gus Rodriguez, one of the defendant’s employees, removing large garbage bags from the Santa Clara location and loading them into his vehicle. With his permission, they searched the garbage bags, which revealed numerous packages with UPS shipping labels. The packages contained various prescription drugs, which were identified as being shipped from other locations rather than where they had been filled and were being shipped from. For example, one package labeled as containing Hydro-codone, specified that it was being shipped from 6955 N.W. 52nd Street in Medley although it had been filled at and was being shipped from the Santa Clara location, which was not a pharmacy, but rather a closed nightclub, and had no pharmacist on site monitoring the process.

Agent Venema testified that they took samples of some of the medications seized from Gus Rodriguez’s vehicle that Rodriguez had just picked up from the Santa Clara location, and had them tested. The samples tested were proven to be Al-prazolam, a Schedule 4 controlled drug used as a tranquilizer; Carisoprodol, a muscle relaxant; Phentermine; and Am-bien. Neither the defendant nor anyone else possessed a license to store, package, or distribute these drugs or any other prescription medication at that location.

Based on this evidence, a search warrant was obtained and executed that same day at the Santa Clara location. At the Santa Clara location law enforcement observed racks of large containers of pharmaceuticals still in the manufacturer’s containers with labels on them reflecting that they had been shipped to Nuria’s and that they contained Hydrocodone. Agent Venema testified that law enforcement seized 6,000 Hydrocodone pills contained in twelve of these large manufacturer’s bottles. They also found labels for International Pharmacy, bottled drugs ready for dispensing with no labels on them, dirty pill counters, other pharmaceuticals including Diazepam (a generic drug for Valium), Alprazolam (a tranquilizer and generic for Xanax), Vico-din, Codeine, and Hydrochloride, and various invoices reflecting shipments purchased from wholesalers which were sold and shipped to International and Universal (non-functioning pharmacies) for Ambien, Zoloft, Viagra, Hydrocodone, Diazepam, and Alprazolam.

Several of the defendant’s employees testified and explained the defendant’s illegal internet pharmacy operation. Michael Hernandez, who was not a pharmacist, testified that he began working for the defendant at Nuria’s in 2003, filling prescriptions and printing computer labels. He explained that the internet pharmaceuticals were kept in a totally different area than the pharmaceuticals dispensed from Nuria’s pharmacy. Also whereas a pharmacist supervised Nuria’s pharmacy dispensary, “the pharmacists never ventured over to the internet side of the location,” and he never saw a pharmacist overseeing the dispensing of drugs from the defendant’s internet operation.

Hernandez testified that he filled prescriptions for Hydrocodone at Nuria’s, but outside of its dispensary, by removing sixty or ninety of the pills from the manufacturer’s bottles, placing them in smaller bottles, labeling them, boxing them, and shipping them via FedEx or UPS. The labels, however, did not state that they were being dispensed from Nuria’s. In August, Hernandez was moved to the Santa Clara location where none of the drugs were locked up, no pharmacist was ever present, and there was no license to operate as a pharmacy. Hernandez testified that he personally picked up the drugs that were delivered to Nuria’s and Universal (a non-functioning pharmacy) and took them to the Santa Clara location several times a week where he filled the prescriptions, labeled the bottles, and dispensed the drugs without supervision and without doctor approval.

Arturo Aleman, who worked for the defendant for approximately one year and is not a pharmacist, testified that he downloaded 300 to 800 prescriptions a day, and he and others dispensed drugs from the Santa Clara location, although there was no pharmacist at that location. He explained that although a doctor signed the prescriptions at the beginning, after a while, they stopped calling him. Some of the drugs were delivered to Universal and then transported to the Santa Clara location, where they would be transferred into smaller bottles and subsequently (sometimes days later) labeled and shipped. Aleman testified that he reported directly to the defendant, met with him daily at Nuria’s, provided him with a daily report with the production numbers, and took his orders directly from the defendant.

Emilio Urrutia, who knew the defendant from New Jersey, was recruited by the defendant to help him run his pharmaceutical business. He explained that at the beginning, after orders were taken, a doctor would come to the defendant’s company, A.R. & Associates, to write out the prescriptions, and the prescriptions were then filled by pharmacists at Nuria’s. When the internet operation began running, however, the defendant set up a separate operation at Nuria’s. The internet operation was conducted outside of the locked pharmacy dispensing area and orders were filled without the supervision of a pharmacist. He further testified that the defendant “ran the show,” was “the decision maker,” set the prices, determined which drugs would be dispensed, and was the one who decided to begin filling orders for Hydrocodone, which they filled at the Nuria’s internet dispensing area. In 2004, the defendant decided to move the operation to the Santa Clara location where it could not be seen. “[I]t was very dark and dirty ... a hidden place.” Emilio’s job was to order the drugs. He ordered Hydrocodone, Phen-termine, Viagra, and other drugs from Top RX and Sunrise Wholesale (“Sunrise”), two wholesalers. The drugs were delivered to Nuria’s, Universal, International, and the Santa Clara location. These various locations were used because the defendant told him to spread the orders out so as not to “raise a flag.” Consequently, although drugs were ordered from and shipped to a licensed pharmacy, such as Universal, the drugs were then picked up and delivered to the Santa Clara location where they were dispensed in violation of the law because there was no license to dispense from the Santa Clara location and the law requires that the drugs be dispensed from the pharmacy they were ordered from and delivered to.

Emilio was with the defendant when he worked out a deal with the owners of International and Universal to use their pharmacy licenses and to rent their locations. International and Universal were not operating as pharmacies. The defendant did not want to call attention to the Santa Clara operation, so he instructed them to deliver the prescriptions filled at the Santa Clara location to FedEx and UPS, rather than allowing these companies to pick up the orders. He also explained that, although at the beginning they had Dr. Castillo (who never saw any of the patients) sign the prescriptions, it was costing them a lot of money, so the defendant instructed him to fire Dr. Castillo. The defendant told Emilio that he had Dr. Castillo’s signature on file and they could use the internet signature. When Emilio became uncomfortable with the operation, he talked to the defendant about shutting it down, and the defendant told him they would just do it for a few more months.

Emilio explained that the defendant was “the boss of these operations,” nothing was done without his approval, and that he and Arturo “were simply employees, following [the defendant’s] orders.” The defendant instructed Arturo Aleman and Michael Hernandez not to put the name of any of the pharmacies on the labels so the drugs could not be traced to his pharmacies in case something happened. Emilio testified that the defendant put the plan together, financed it, owned and ran all of the companies, ran the operation through A.R. & Associates, put key people in each of the locations, set the prices, found the wholesalers.

ADULTERATION OR MISBRANDING OF DRUGS

Although the defendant was convicted in counts nine and seventeen of adulteration or misbranding of drugs in violation of sections 499.0691(3)(a) and/or (b), the trial court granted the defendant’s motion for judgment of acquittal as to these counts based on a finding that the State failed to prove that any of the items seized/dispensed were, in fact, drugs. This was error.

First, we note that some of the prescriptions filled and seized at the Santa Clara location were tested. Agent Venema testified without objection that samples of the drugs, which had been bottled and packaged for shipping and were being loaded into Gus Rodriguez’s vehicle to be dropped off at UPS, were tested. It was undisputed that the tested samples were proven to be Alprazolam, a Schedule 4 controlled drug used as a tranquilizer; Carisoprodol, a muscle relaxant; Phentermine; and Am-bien.

Second, various witnesses testified without objection that prescriptions for various pharmaceutical drugs were filled and dispensed from Nuria’s and the Santa Clara location, and other witnesses identified some of the drugs found when the search warrants were executed at both locations. For example, Michael Hernandez testified that when he worked for the defendant at the Santa Clara location, he personally filled prescriptions for Hydroco-done (dispensing 500 to 1000 pills a day); he was charged with and pled guilty to trafficking in Hydrocodone, dispensing drugs without a license, and adulteration or misbranding of drugs in connection with his involvement in the defendant’s internet pharmacy operation; and he has or had his own pharmacy where he sells or sold Hy-drocodone (thus demonstrating his ability to identify Hydrocodone).

Emelio Urrutia testified without objection that he was responsible for ordering the drugs for the defendant’s internet pharmacy operation. He ordered Hydro-codone, Phentermine, Viagra, and other drugs from Top RX and Sunrise; the drugs were delivered to Universal, International, Nuria’s, and the Santa Clara location; and the drugs then were transported to Nuria’s or the Santa Clara location, where they were divided into smaller prescription bottles and dispensed. Michael Schwerdt, who also worked for the defendant, testified, without objection, that he distributed Hydrocodone, Alprazolam, Xa-nax, and Zoloft for the defendant. Carlos Varón, who was a one-half owner of Sunrise, one of the pharmaceutical wholesale companies used by the defendant, confirmed that he sold and delivered Hydro-codone to the Nuria’s and Universal locations. Additionally, the State introduced several invoices documenting these transactions.

Third, there were additional law enforcement witnesses who identified some of the prescription drugs found at the Santa Clara and Nuria’s locations which, as already addressed, were dispensing prescription drugs without a license. Agent Venema, who was present when the search warrants were executed at these two locations, testified, without challenge, that they found racks stacked with twelve large bottles containing 6,000 Hydrocodone pills at the Santa Clara location still packaged in the manufacturer’s bottles with labels, reflecting that they were ordered from and shipped to Nuria’s, and numerous prescription-sized bottles filled with Hydroco-done pills. He additionally identified a bottle of Alprazolam and a package labeled as Hydrocodone ready for shipment to a person in Vermont. Photographs documenting his testimony were also introduced.

Cesar Arias, a registered pharmacist since 1977, who worked for the Florida Department of Health as an investigator and supervisor for the Bureau of Pharmacy Services for eighteen years, testified that he was working with the Florida Department of Law Enforcement (“FDLE”) when the search warrants were executed to assist FDLE agents in identifying the pharmaceuticals. Mr. Arias identified, without challenge, some of the seized items, including Acetaminophen with Codeine # 4, a Schedule 8 controlled substance; Diazepam found in unlabeled bottles (and introduced as State’s exhibits 14, 20, and 24); and Alprazolam, a Schedule 4 controlled substance. Special Agent Larry Andres also testified that he was present when the search warrants were executed. He identified, without objection, State’s exhibit 36 as Vicodin, Hydrocodone, Codeine, and Hydrochloride, seized at the Santa Clara location.

Thus, contrary to the trial court’s ruling, there was competent, and we conclude, substantial evidence upon which the jury could and did find that the items seized and being dispensed were drugs. Although this was the sole ground upon which the trial court based its judgment of acquittal not withstanding the jury’s finding of guilt as to counts nine and seventeen, misbranding and/or adulteration of drugs, we briefly address the proof regarding misbranding and/or adulteration.

Specific to this defendant’s prosecution, it is illegal to hold, repackage, offer for sale, or deliver any drug that has been adulterated or misbranded. § 499.0691(3). A drug is adulterated if it has been held or packaged under conditions where it could have been contaminated or rendered injurious to health; if the facility or the methods used at the facility to hold, process or package the drugs do not conform with the requirements of section 499.001-.081; or held or distributed by a person not authorized under federal or state law. § 499.006. A drug is misbranded if its labeling is in any way false or misleading. § 499.007(1). There was ample evidence of both adulteration and misbranding.

The conditions at the Santa Clara location were unsanitary, and the fact that the prescriptions were being filled and dispensed at both the Santa Clara and Nuria’s locations without review by a physician, without the supervision of a pharmacist, unsecured and left in containers for distribution without any labels, clearly constitutes conditions where the drugs could have been contaminated or rendered injurious to health, § 499.006(2). These facts demonstrate that the facilities and methods used did not conform to the requirements of section 499.001-.081, § 499.006(3), and the facts detailed earlier show the drugs were being held and distributed by individuals not authorized to do so under federal or state law, § 499.006(10). The drugs were additionally labeled in a false or misleading way. See § 499.007(1) (providing that a drug is misbranded “[i]f its labeling is in any way false or misleading”).

Cesar Arias, the investigator and supervisor for the Florida Department of Health, Bureau of Pharmacy Services, testified that only a licensed pharmacist can dispense a valid prescription from a licensed pharmacy authorized to dispense pharmaceuticals; pharmacy technicians must work under the direct supervision of a licensed pharmacist; all drugs must be stored in a dispensary and all dispensaries must be locked; a drug is misbranded if not fully labeled; the label must reflect the name, address, and telephone number of the pharmacy that repackaged it; and the drugs must be dispensed from the pharmacy that ordered and received the drugs from the wholesaler.

As has already been addressed in this opinion, each and every one of these regulations was violated and each constitutes adulteration and/or misbranding. The drugs were ordered by Universal and International, which were licensed but not operating pharmacies, and Santa Clara, which was not a pharmacy at all. The drugs were then transferred to Nuria’s and the Santa Clara location for repackaging and distribution. Therefore, as soon as the drugs were transferred, they were misbranded. They were not stored in a locked dispensary; the prescriptions were filled without supervision of a licensed pharmacist; repackaged drugs were lying around without any labels; and the labels that were ultimately applied did not, pursuant to the defendant’s explicit orders, identify the pharmacy that they were being dispensed from. Each of these practices is adulteration or misbranding of the drugs.

Because the evidence overwhelmingly establishes the defendant’s guilt and clearly supports the jury’s verdicts in counts nine and seventeen, we reverse the trial court’s order granting judgment of acquittal with instructions to reinstate the verdicts of guilt and to sentence the defendant on those two counts.

DISPENSING DRUGS WITHOUT A PHARMACIST’S LICENSE

The defendant appeals his conviction in counts six and fourteen for dispensing drugs without a pharmacist’s license. Because the record contains overwhelming competent evidence to support the jury’s findings, we affirm. The drugs being dispensed from Nuria’s and the Santa Clara location were dispensed by individuals who were not licensed pharmacists and who were not under the direct supervision of a licensed pharmacist. There was also substantial competent evidence to support the jury’s finding that the drugs being dispensed at these two locations were under the control of and were being dispensed at the direction of the defendant, who owned both locations, provided the financial resources to fund the operation, received substantial monetary benefit from the operation, and otherwise managed it. We therefore affirm the defendant’s convictions as to counts six and fourteen.

Judgment of conviction for counts six and fourteen affirmed; judgment of acquittal for counts nine and seventeen reversed, with instructions to reinstate verdicts of guilt and to sentence the defendant accordingly.

      . Section 499.0691(3) was amended and renumbered in 2008 and is now section 499.0051(14).

      . The current definition of "repackage” is found in section 499.003(49), Florida Statutes (2011), which defines "repackage” as including "repacking or otherwise changing the container, wrapper, or labeling to further the distribution of the drug....”

      . Michael Hernandez, who worked for the defendant and filled prescriptions at the Santa Clara location, testified that each garbage bag contained from fifty to sixty packages; usually ten bags were picked up for each run; and they would make several runs a day.


author: WARNER, J.

text:
    Sheri L. BATES, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1658.
    District Court of Appeal of Florida, Fourth District.
    Sept. 14, 2011.
    Rehearing Denied Oct. 27, 2011.

      Sheri L. Bates, Florida City, pro se.
    No appearance required for appellee.
   WARNER, J.

We affirm the denial of appellant’s motion for postconvietion relief.

Appellant was charged with a first degree felony of organized scheme to defraud, for stealing in excess of $200,000 from her employer, and five counts of grand theft for separate criminal conduct. She pled guilty to the charges and was sentenced to twenty-seven years in prison. In her postconviction relief motion, she claims that she was misadvised by defense counsel and the trial court of the maximum possible sentence, and thus should have been allowed to withdraw her plea.

The record, however, conclusively refutes her allegations. Although the original plea colloquy could not be transcribed due to equipment failure, as part of the appellant’s direct appeal, the trial court reconstructed the colloquy at a hearing in the presence of both the defense attorney and the appellant. The judge stated that he would have informed her of the maximum sentence for each crime, which was thirty years for a first degree felony and five years for the third degree felonies. Neither the defense attorney nor the appellant objected to the judge’s reconstruction of the plea colloquy. And although the judge invited appellant to add anything to the record which she felt that the judge had not recollected accurately, she did bring up one addition but never objected to the judge’s recitation regarding the maximum sentence.

Because the record as reconstructed shows that the court did advise the appellant of the maximum sentence of thirty years for the first degree felony and five years for the third degree felonies, the record conclusively refutes her claim of misadvice. See Fla. R. Crim. P. 3.850(d) (2011) (“If the motion, files, and records in the case conclusively show that the movant is entitled to no relief, the motion shall be denied without a hearing”); Jones v. State, 680 So.2d 585 (Fla. 4th DCA 1996).

Affirmed, as to all issues raised.

HAZOURI and LEVINE, JJ., concur.


text:
    G.C., Appellant, v. R.S. (parent) and K.C. (minor), Appellees.
    No. 1D11-2710.
    District Court of Appeal of Florida, First District.
    Sept. 16, 2011.

      Susan L. Kelsey, Kelsey Appellate Law Firm, P.A., Tallahassee, for Appellant.
    Wendy S. Loquasto of Fox & Loquasto, P.A., and Chris Delmarco of Legal Services of North Florida, Inc., Tallahassee, for Appellees.
   PER CURIAM.

G.C., the father of K.C. (minor), appeals a final judgment of injunction for protection against domestic violence. The petition for injunction was filed by R.S., his former wife, on behalf of K.C., after G.C. administered a single spank on K.C.’s buttocks in response to K.C.’s disrespectful behavior. We hold that under established Florida law this single spank constituted reasonable and non-excessive parental corporal discipline and, as a matter of law, was not domestic violence. Accordingly, we reverse the final judgment.

On the evening of February 10, 2011, K.C., age fourteen, was being disagreeable both before dinner and at the dinner table. G.C. described K.C.’s behavior as disrespectful and defiant, while K.C. described her attitude as sarcastic. G.C. usually takes away privileges when disciplining his daughters but, on this evening, when K.C. continued to talk back, he told her to stand up, whereupon he took her arm (K.C. said he yanked her out of the chair) and spanked her once on the buttocks with his hand. K.C. did not notice any marks on her buttocks, although she did have a red mark on her arm. K.C. called her older sister, who then called R.S., and R.S. called the police. The next day, R.S. filed a petition for injunction for protection against domestic violence on behalf of K.C. After a hearing, the trial court entered a final judgment of injunction against domestic violence ruling that the statutory scheme established by the legislature set up a special protection against domestic violence which did not recognize any exception, including parental discipline.

Section 741.30(l)(a), Florida Statutes (2010) permits family or household members to seek an injunction for protection against domestic violence if that person “is either the victim of domestic violence as defined in s. 741.28 or has reasonable cause to believe he or she is in imminent danger of becoming the victim of any act of domestic violence ...” Section 741.28(2) defines “Domestic violence” as meaning “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.” A spouse has standing to seek an injunction against domestic violence against a former spouse on behalf of the parties’ children. Parrish v. Price, 71 So.3d 132 (Fla. 2d DCA 2011).

“[T]he common law recognize[s] a parent’s right to discipline his or her child in a ‘reasonable manner.’ ” Raford v. State, 828 So.2d 1012, 1015, n. 5 (Fla.2002). In both civil and criminal child abuse proceedings, a parent’s right to administer reasonable and non-excessive corporal punishment to discipline their children is legislatively recognized. § 39.01(2), Fla. Stat. (2010) (“Corporal discipline of a child by a parent or legal custodian for disciplinary purposes does not in itself constitute abuse when it does not result in harm to the child.”); § 984.03(2), Fla. Stat. (2011) (containing a virtually identical exception to the definition of “abuse”). In Raford, the Florida Supreme Court held that the parental privilege to use corporal discipline does not provide absolute immunity to charges of child abuse under section 827.03, however, it may be asserted as an affirmative defense to criminal child abuse charges. 828 So.2d at 1020. The Raford court expressly recognized “a typical spanking” as “reasonable” or “non-excessive corporal punishment.” Id.; see also Czapla v. State, 957 So.2d 676, 679-80 (Fla. 1st DCA 2007) (distinguishing permissible form of parental corporal punishment, (i.e. “spanking”), from abuse by a father toward his son when the father punched the child on the head for failing to do yard work, pushed him into an adjoining room and onto the floor and then kicked him in the side while he was on the floor).

Although chapter 741 governing domestic violence injunctions does not expressly incorporate the common law principle “that parents may administer corporal discipline to their children; provided, however, that the discipline is reasonable,” A.A. v. Dep’t of Children & Families, 908 So.2d 585, 587 (Fla. 5th DCA 2005), neither does it exclude the common law defense. See § 2.01, Fla. Stat. (2010) (common law remains in effect unless expressly abolished by the legislature). In Moore v. Pattin, 983 So.2d 663 (Fla. 4th DCA 2008), the Fourth District Court of Appeal recognized that reasonable parental discipline was available as a defense against a petition for injunction against domestic violence. In Moore, the father disciplined his daughter by hitting her with a belt and shoe after he ordered her to take off her clothes. The Fourth District affirmed the trial court’s ruling that the father’s actions constituted domestic violence. We agree with the Fourth District that reasonable parental discipline is available as a defense against a petition for injunction against domestic violence. In the case under review, however, looking at the facts most favorable to K.C., we conclude that, as a matter of law, the father’s conduct constituted reasonable parental discipline and not domestic violence. We therefore reverse the injunction.

REVERSED.

DAVIS, VAN NORTWICK, and CLARK, JJ., concur.


text:
    Ronald MANS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-355.
    District Court of Appeal of Florida, Third District.
    Sept. 21, 2011.
    Scott W. Sakin, for appellant.
    Pamela Jo Bondi, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before ROTHENBERG, LAGOA, and EMAS, JJ.
   ROTHENBERG, J.

The defendant, Ronald Mans, appeals from his conviction and sentence for the sale of cocaine, claiming that the trial court reversibly erred by denying his challenges for cause of two prospective jurors, Mr. Chinchilla and Ms. Rodriguez. Following our review of the record, we affirm.

“It is within the trial court’s' province to determine whether a challenge for cause should be granted based on a juror’s competency, and such a determination will not be disturbed on appeal absent manifest error.” Guzman v. State, 934 So.2d 11, 14 (Fla. 3d DCA 2006) (citing Busby v. State, 894 So.2d 88, 95 (Fla.2004)); see also Matarranz v. State, — So.3d -, -, 2011 WL 3300367 (Fla. 3d DCA 2011). “The test for determining juror competency is whether the juror can lay aside any bias or prejudice and render his verdict solely upon the evidence presented and the instructions on the law given to him by the court.” Lusk v. State, 446 So.2d 1038, 1041 (Fla.1984); see also Guzman, 934 So.2d at 14-15. Further, if the record before this Court supports the trial court’s decision to deny a challenge for cause, we will uphold the decision on appeal. Guzman, 934 So.2d at 15. This is so “because trial courts have a unique vantage point in their observation of jurors’ voir dire responses.” Conde v. State, 860 So.2d 930, 939 (Fla.2003); see also Matarranz, — So.3d at -; Guzman, 934 So.2d at 15 (“A trial judge has a unique vantage point from which to evaluate potential juror bias and make observations of the juror’s voir dire responses, which cannot be discerned by [an appellate] court’s review of a cold appellate record.”).

Here, prospective jurors Chinchilla and Rodriguez initially made statements calling into question their competency to serve as jurors. However, a complete review of the voir dire clearly indicates that the trial court and the prosecutor successfully rehabilitated both Chinchilla and Rodriguez. See Gore v. State, 706 So.2d 1328, 1332 (Fla.1997) (holding that trial judge, who was in better position to assess the credibility of venire membei’s, did not abuse his discretion in declining to excuse the challenged venire members whei'e the record showed that “[although they expressed certain biases and prejudices, each of them also stated that they could set aside their personal views and follow the law in light of the evidence pi’esented”); Bryant v. State, 601 So.2d 529, 532 (Fla.1992) (“The appropi’iate procedure, when the record preliminai'ily establishes that a juror’s views could pi'event or substantially impair his or her duties, is for either the prosecutor or the judge to make sure the prospective juror can be an impartial member of the jury.”); Taylor v. State, 796 So.2d 570, 572 (Fla. 2d DCA 2001). We therefore conclude that the trial court did not abuse its discretion by denying the defendant’s motion to challenge prospective juroi’S Chinchilla and Rodriguez for cause, and because the remaining issue raised by the defendant lacks merit, we affirm.

Affirmed.

      . The State acknowledges that defense counsel properly preserved this issue for appellate review. See Carratelli v. State, 961 So.2d 312, 318-19 (Fla.2007).


text:
    Harold L. SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4643.
    District Court of Appeal of Florida, First District.
    Sept. 21, 2011.
    Harold L. Smith, pi'o se, Petitioner.

      Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

DAVIS, VAN NORTWICK, and CLARK, JJ., concur.


text:
    Juan R. ACHURRA, Appellant, v. Esperanza (Loretta) ACHURRA, Appellee.
    No. 1D10-6770.
    District Court of Appeal of Florida, First District.
    Sept. 22, 2011.
    Juan R. Achurra, pro se, Appellant.
    Linda A. Bailey, Tallahassee, for Appel-lee.
   PER CURIAM.

Juan R. Achurra, Appellant, seeks review of three non-final orders entered in a pending dissolution of marriage action. As Esperanza Achurra, Appellee, concedes, Appellant has identified one reversible error: the trial court improperly ordered deductions from Appellant’s income for a portion of an arrearage that does not represent family support or related attorney’s fees. For this reason only, we reverse and remand. Appellant has otherwise shown no reversible error.

During the pendency of this dissolution of marriage action, Appellant liquidated his children’s pre-paid college accounts. Because the parties disagreed over the marital status of the funds contained within those accounts, the trial court ordered Appellant not to liquidate them or, if he had already done so, to place the funds in trust pending a final determination of their marital status. Appellant refused to comply and was found in contempt for this refusal, among other reasons. In an income deduction order, the trial court directed that $300 per month be deducted from Appellant’s income until an arrearage of $24,308.59 is satisfied. A portion of this arrearage represents funds Appellant obtained from the pre-paid college accounts.

Section 61.1301(l)(b)l establishes the purposes for which an income deduction order may be used. This statute is in derogation of common law and, thus, must be strictly construed. Spalding v. Spalding, 813 So.2d 1078, 1079 (Fla. 4th DCA 2002). It authorizes the use of an income deduction order to “[djirect a payor to deduct from all income due and payable to an obligor the amount required by the court to meet the obligor’s support obligation including any attorney’s fees or costs owed and forward the deducted amount pursuant to the order.” § 61.1301(l)(b)l. The pre-paid college accounts are not part of Appellant’s support obligation. Thus, even though Appellant is obligated to comply with the court’s order to place the funds from those accounts in trust pending the final determination of their marital status, this obligation may not be enforced through an income deduction order. Accordingly, we reverse and remand to the trial court for correction of the income deduction order to reflect that the funds from the pre-paid college accounts are not included in the amount of his total arrearage for the purposes of the income deduction order. In all other respects, the orders appealed from are affirmed.

AFFIRMED in part; REVERSED in part; and REMANDED with directions.

BENTON, C.J., LEWIS and SWANSON, JJ., concur.