author: MORRIS, Judge.

text:
    Gerald M. WHITE and Melanie White, individually and as the parents and natural guardians of their minor son, James R. White, Appellants, v. ADVANCED NEUROMODULATION SYSTEMS, INC., a foreign corporation; Wendy Bolin, R.N.; and Pain Management Systems, Inc., Appellees.
    No. 2D09-1568.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 2011.

      Dennis L. Webb of Webb & Scarmozzi-no, P.A., Fort Myers, for Appellants.
    Stuart C. Markman, Robert W. Ritsch, and Kristin A. Norse of Kynes, Markman & Felman, P.A., Tampa, and Charles D. Bavol, Nancy J. Stewig, and Melissa D. Krepps of Bavol Judge, P.A., Tampa, for Appellees Advanced Neuromodulation Systems, Inc., and Wendy Bolin, R.N.
    James C. Sawran, Robert C. Weill, and Thomas M. Hartwig of McIntosh, Sawran, Peltz & Cartaya, P.A., Fort Lauderdale, for Appellee Pain Management Systems, Inc.
   MORRIS, Judge.

Gerald M. White and Melanie White, husband and wife, appeal a final summary judgment entered in favor of Advanced Neuromodulation Systems, Inc. (ANS), Wendy Bolin, R.N., and Pain Management Systems, Inc. (PMS). In 2005, Mr. White became paralyzed after an infection developed around a surgical device which had been implanted into his back to treat chronic back pain. In the Whites’ complaint, they asserted that Bolin, acting as an agent of ANS and PMS, negligently rendered nursing care while reprogramming the device. The trial court granted summary judgment on the basis that Bolin did not have a duty to treat Mr. White’s infection but even if she did, that she adequately discharged that duty. For the reasons set forth herein, we affirm.

I. Background

ANS is the manufacturer and distributor of the spinal cord stimulator implanted into Mr. White’s back. PMS is an independent company which contracted with ANS to provide sales and servicing of the stimulators. Because the stimulators are used to treat chronic back pain, they have a variety of programs and modes which can be modified according to a patient’s pain level. The modification of the programming and modes must be performed by a technician who either is employed by or contracts with ANS. Notably, a person is not required to have medical training in order to be a programming technician. In fact, although a majority of the programming technicians have nursing backgrounds, there are some who do not. Programming technicians have no access to patients’ medical records or histories and have no authority to provide any type of medical diagnosis or treatment. ANS guidelines require that if a patient asks questions related to his medical care, the programming technician is required to direct the patient to make an appointment with them treating doctor.

ANS hired Bolin as a programming technician in June 2005. Prior to that time, Bolin worked for PMS, which provided programming services for ANS as an independent contractor. Although Bolin is a registered nurse, her position as a programming technician with ANS did not involve the provision of nursing care.

In early 2004, Mr. White consulted with a neurosurgeon, Dr. Moyer, about his chronic back pain, and Dr. Moyer recommended the spinal stimulator. It is undisputed that Dr. Moyer explained to Mr. White that the surgical procedure to implant the device carried a risk of infection. Despite the warning, Mr. White proceeded with the implantation of a trial stimulator in April 2004 and, ultimately, with the implantation of the permanent stimulator.

Bolin first met Mr. White on the day his trial stimulator was implanted. She explained that she was an ANS employee and that it was her job to program the stimulator. Mr. White knew Bolin had a nursing background, but it is undisputed that he knew she would not be providing any nursing care. The day after the trial stimulator was implanted, Mr. White complained to Bolin regarding seepage from the surgical site. Bolin instructed Mr. White to contact Dr. Moyer. Mr. White did so, and Dr. Moyer’s physician’s assistant told him that seepage was not unusual given the circumstances.

Mr. White had no contact with Bolin between June 2004 and the beginning of January '2005. On January 10, 2005, Mr. White contacted Bolin to tell her that the permanent stimulator had not been working and that he had an oozing cyst near the surgical site. Bolin met Mr. White at Dr. Moyer’s office within an hour of the phone call. Bohn programmed the stimulator and saw what appeared to be “purulent discharge” from the surgical site. Bolin instructed Mr. White to make an appointment to see Dr. Moyer immediately. Mr. White explained that Dr. Moyer would not see him because of an unpaid bill and that he would go to see his primary care physician instead. Bolin emphasized to Mr. White that he needed to see Dr. Moyer. In an effort to assist Mr. White in obtaining an appointment, Bolin discussed Mr. White’s condition with Dr. Moyer’s scheduling secretary and left the programming notes for Dr. Moyer to review. Her notes indicated the “purulent discharge” at the surgical site and that Mr. White needed an appointment.

Mr. White was still unable to obtain an appointment with Dr. Moyer so Mr. White went to see his primary care physician, Dr. Waks, three days after the meeting with Bolin. Dr. Waks examined the surgical site, noted yellow drainage, and told Mr. White that it was essential that he [Mr. White] see Dr. Moyer. Dr. Waks also prescribed some antibiotics.

Bolin followed up with Mr. White on January 17, 2005, to inquire whether he had seen Dr. Moyer. Mr. White then told her he had not seen Dr. Moyer but that he had seen Dr. Waks and had received a prescription for antibiotics. Bolin again urged Mr. White to see Dr. Moyer since he was the physician who implanted the stimulator.

Two weeks later, Mr. White saw Dr. Waks again, and at that time, Mr. White told Dr. Waks that Dr. Moyer was still refusing to see him. Dr. Waks noted multiple cysts had formed on Mr. White’s back which was typical for Mr. White. Dr. Waks surmised that the earlier drainage was likely from one of these cysts; Dr. Waks also concluded that none of the cysts appeared to be infected. Dr. Waks did not see Mr. White again until April 2005 at which time Dr. Waks told Mr. White that the surgical site was infected and that Mr. White should see Dr. Moyer to have the stimulator removed.

Mr. White contacted Bolin on May 24, 2005 — over four months since their last conversation on January 17, 2005. Bolin asked Mr. White about the surgical site, and Mr. White reported that it was still oozing sometimes but that it was “okay.” As before, Bolin instructed Mr. White to see Dr. Moyer for an evaluation.

Mr. White scheduled his next programming session for June 1, 2005. Bolin was not available for that appointment so another ANS programming technician, Dawn Dunham, met Mr. White at Dr. Moyer’s office. At that appointment, Dunham prevailed on Dr. Moyer’s physician’s assistant to examine Mr. White’s surgical site. The physician’s assistant concluded the drainage was from one of Mr. White’s chronic cysts and told Mr. White that it was “nothing to worry about.” However, the physician’s assistant scheduled an appointment for Mr. White to see Dr. Moyer about two weeks later. Dunham reported all of this information to Bolin. Ultimately, the appointment with Dr. Moyer was cancelled due to Mr. White’s unpaid bill.

Bolin learned about the cancelled appointment and went to Dr. Moyer’s office on June 9, 2005. After being told by the receptionist that the bill would have to be paid before Dr. Moyer would see Mr. White, Bolin spoke directly with Dr. Moyer, informing him that Mr. White had been refused appointments because of the unpaid bill. Dr. Moyer assured Bolin that he would never refuse to see anyone. As a result of that conversation, Bolin believed a new appointment would be scheduled.

A few weeks later, Mr. White started seeing a new pain management physician. Bolin accompanied Mr. White to his appointment so that she could program the stimulator. The pain management physician recommended that Mr. White return to Dr. Moyer to have the stimulator removed. However, Mr. White did not go to see Dr. Moyer. Instead, he returned to Dr. Waks and to the pain management physician complaining of numbness in his legs. After being referred to another neurosurgeon, Mr. White was diagnosed with diabetic neuropathy. Bolin was informed of this diagnosis on August 12, 2005. Unfortunately, that diagnosis was incorrect, and two days after Bolin learned of the diagnosis, Mr. White became partially paralyzed as a result of the infection at the surgical site which caused compression on his thoracic spinal cord. Dr. Moyer removed the stimulator immediately thereafter. Dr. Moyer stated that he would have removed the stimulator earlier if he had been made aware of the specific nature of Mr. White’s symptoms and complaints.

The Whites ultimately filed their complaint predicated on medical malpractice as against the various physicians involved in Mr. White’s care and against Bolin on the theory that her nursing license subjected her to liability for medical malpractice. The Whites sued ANS and PMS based on a theory of vicarious liability. The Whites settled or voluntarily dismissed them claims against all of the physicians. This appeal is the result of the trial court’s order granting final summary judgment for Bolin, ANS, and PMS.

II. Analysis

A. Our standard of review

This court conducts a de novo review of an order granting summary judgment based on a pure question of law. See Clay Elec. Coop., Inc. v. Johnson, 873 So.2d 1182, 1185 (Fla.2003); Estate of Johnson v. Badger Acquisition of Tampa, LLC, 983 So.2d 1175, 1180 (Fla. 2d DCA 2008). “While breach, causation, and damages are typically questions for the finder of fact, the determination of duty is a matter of law.” Estate of Johnson, 983 So.2d at 1180.

B. The undertaker’s doctrine

The Whites assert that Bolin, ANS, and PMS are all liable based on the undertaker’s doctrine. The undertaker’s doctrine provides that “[w]henever one undertakes to provide a service to others, whether one does so gratuitously or by contract, the individual who undertakes to provide the service — i.e., the ‘undertaker’ — thereby assumes a duty to act carefully and to not put others at an undue risk of harm.” Clay Elec. Coop., Inc., 873 So.2d at 1186. The doctrine comes into play where a plaintiff alleges a defendant voluntarily undertook an action which, although statutorily authorized, is not required. See Padgett v. Sch. Bd. of Escambia Cnty., 395 So.2d 584, 585 (Fla. 1st DCA 1981).

The Whites contend that Bolin gratuitously undertook a duty to provide Mr. White with nursing care when she voluntarily exceeded her role as a programming technician and actually practiced professional nursing as defined by the Florida Nurse Practice Act set forth in chapter 464, Florida Statutes (2003-2005). The Whites argue that because the Nurse Practice Act defines the practice of professional nursing as including “observation[s]” and “assessment[s]” that require “specialized knowledge, judgment, and nursing skill,” see § 464.003(3)(a)(1), Bo-lin’s conduct in observing and assessing Mr. White’s condition on January 10, 2005 — when she observed the “purulent discharge” — constitutes the practice of professional nursing. The Whites also allege that Bolin’s observations of Mr. White on January 17, 2005, constitute the practice of professional nursing.

Notably, the Whites do not argue that Bolin acted negligently in observing and assessing Mr. White on these dates; rather, they base their malpractice claim on the idea that Bolin’s actions obligated her to do more. The Whites contend that Bolin was obligated to personally confront Dr. Moyer about Mr. White’s symptoms and to ensure that Dr. Moyer treated Mr. White and that Bolin was obligated to inform ANS’s medical director of Mr. White’s symptoms. They also contend that Bolin should have warned Mr. White that an infection at the incision site could result in paralysis.

In Estate of Johnson, this court rejected the very arguments that the Whites advance here. There, the estate sued a pharmacist who provided consulting services to the nursing home where Ms. Johnson resided. 983 So.2d at 1178-79. The estate alleged that the pharmacist should have been persistent in recommending the modification of Ms. Johnson’s treatment plan to Ms. Johnson’s treating physician. Id. at 1183. The estate asserted that if the pharmacist had done so, Ms. Johnson would not have died as a result of an adverse drug reaction. Id. at 1179. The trial court granted summary judgment for the pharmacist, and on appeal, we affirmed. In doing so, we held that “[ajlle-gations of a negligent omission to act do not create a duty for a party where the risk was put in place by another.” Id. at 1183-84.

Just as the pharmacist in Estate of Johnson did not create the risk posed to Ms. Johnson by the flawed drug regimen, here Bolin did not create the risk posed to Mr. White by the implantation of the stimulator. And just as the pharmacist in Estate of Johnson had no duty to convince a physician to modify Ms. Johnson’s drug regimen, Bolin had no duty to ensure that Dr. Moyer provided proper care to Mr. White — although the record evidence reflects that Bolin certainly tried to do so.

Another case dealing with the undertaker’s doctrine is L.A. Fitness International, LLC v. Mayer, 980 So.2d 550 (Fla. 4th DCA 2008). There, a health club employee who was certified in CPR voluntarily undertook to assist a customer by checking his pulse and assessing the need for CPR; ultimately the employee decided not to perform CPR based on his belief that the customer was having a seizure or stroke. Id. at 552. At trial, expert witnesses opined that the employee should have performed CPR and that it would have likely saved the customer’s life. Id. at 554. The customer’s estate won a judgment against the health club on the theory that once the employee began to assess the customer’s need for CPR, the employee also assumed the duty to perform CPR with reasonable care. Id. at 552.

On appeal, the court reversed and held the health club was entitled to judgment as a matter of law. Id. at 562. The court recognized that a person who performs a voluntary act has no duty to do more than the duty undertaken. Id. at 561. The court held that the employee’s actions in assessing the customer for CPR did not commit him to perform CPR even if it was indicated, reasoning that the employee’s actions neither “worsened [the customer’s] condition” nor caused others to “refrain from rendering aid in reliance on [the employee’s] undertaking.” Id.

In contrast to Estate of Johnson and L.A. Fitness International, LLC, the Florida Supreme Court in Wallace v. Dean, 3 So.3d 1035 (Fla.2009), held that the plaintiff stated a claim for negligence based on the undertaker’s doctrine. There, sheriffs deputies voluntarily performed a safety check on a woman after neighbors were unable to contact her. Wallace, 3 So.3d at 1041. The deputies found the woman lying on a bed, unresponsive. Id. at 1043. The neighbors told the deputies that the woman might be in a diabetic coma, and they asked the deputies to call for an ambulance. Id. The deputies rejected that request and assured the neighbors that the woman was “merely sleeping.” Id. Based on those assurances, the neighbors did nothing more until the next day when, upon finding the woman still unresponsive, they called for an ambulance. Id. The woman ultimately died. Id.

The court held that the undertaker’s doctrine applied there because the deputies’ voluntary actions increased the risk of harm to the woman by assuring the woman’s neighbors that the woman did not need medical attention and by rejecting the neighbor’s requests for a call for an ambulance. Id. at 1052.

The facts in Wallace are distinguishable from the facts here. Bolin’s actions in observing and assessing Mr. White’s incision site did nothing to increase the risk of harm to Mr. White. Nor did Bolin’s actions cause other people to refrain from rendering aid. In fact, the record reflects that Bolin sought out aid for Mr. White, even speaking personally to Dr. Moyer in an effort to schedule an appointment for Mr. White.

We therefore hold that similar to the pharmacist in Estate of Johnson and the health club employee in L.A. Fitness International, LLC, Bolin’s voluntary actions did not impose an affirmative duty on her to do any more than she had already done.

Affirmed.

VILLANTI and CRENSHAW, JJ., Concur.

      . Mr. White lost his job and health insurance the day after Dr. Moyer implanted the permanent stimulator. Because of his lack of insur-anee, Mr. White accrued an unpaid balance with Dr. Moyer.


source: Caselaw Access Project

license: Public Domain

text:
    Dalton SANTIAGO, Appellant/Cross-Appellee, v. Tabatha SANTIAGO, Appellee/Cross-Appellant.
    No. 2D09-5099.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 2011.
    Steven E. Martin and Michael Braden-ham of Martin Law Firm, P.L., Cape Coral, for Appellant/Cross-Appellee.
    Michelle Erin Berthiaume of Berthi-aume Law Firm, P.L., Fort Myers, for Appellee/Cross-Appellant.
   MORRIS, Judge.

Dalton Santiago, the husband, and Tabatha Santiago, the wife, both appeal a final judgment of dissolution of marriage. We find merit only in the husband’s argument that the trial court abused its discretion in its equitable distribution scheme. Accordingly, we reverse the final judgment of dissolution and remand for further proceedings.

In the final judgment of dissolution, the trial court awarded the following marital assets to the wife: the marital home, which is valued at $85,000 and is free and clear of any debt; the timeshare, valued at $17,000; the wife’s 401K, valued at $15,000; a car, valued at $8000; and jewelry, valued at $2000. These assets total approximately $127,000. The husband was awarded a car, valued at $2S,500. The trial court also imposed the couple’s federal income tax liability solely on the husband. The trial court made no finding on the value of this tax liability, but there was evidence presented that the couple owes the IRS $101,000, although the husband argued that the amount owed was much less. The trial court found that the husband depleted money from the proceeds of the sale of his business, which occurred during the marriage. However, the trial court did not make a finding as to the specific amount the husband depleted, which was a disputed issue at the final hearing.

On appeal, the husband argues that the trial court’s disproportionate distribution of marital assets, combined with its decision to impose the tax liability solely on the husband, was an abuse of discretion. He further asserts that the trial court erred in failing to make findings on the value of the funds dissipated by the husband as well as the couple’s tax liability.

“This court reviews the trial court’s distribution of marital assets and liabilities for abuse of discretion. While the initial premise behind an equitable distribution of marital assets and liabilities is equal distribution, when proper justification is shown, a trial court may make an unequal distribution.” Rogers v. Rogers, 12 So.3d 288, 291 (Fla. 2d DCA 2009) (citations omitted). The trial court was permitted to consider the husband’s intentional waste or depletion of marital assets and other factors to do equity and justice between the parties. See § 61.075(1)(i), (j), Fla. Stat. (2009); Jonsson v. Jonsson, 715 So.2d 1064, 1064 (Fla. 5th DCA 1998) (“[I]n determining equitable distribution, alimony, and attorney’s fees, the trial court may consider whether one party intentionally dissipated the marital assets or adversely affected the financial status of the other party.”). When a trial court makes an unequal distribution of assets, it must supply “a specific finding of fact to justify its unequal distribution.” Guida v. Guida, 870 So.2d 222, 224 (Fla. 2d DCA 2004).

The unequal distribution of assets may have been justified by a finding that the husband intentionally depleted $100,000 in marital assets. But the trial court also imposed the tax liability on the husband, which according to the record was in the amount of $101,000, making the distribution even more disproportionate. This further unequal distribution was an abuse of discretion because it penalized the husband twice for depleting the marital funds. See Boutwell v. Adams, 920 So.2d 151, 154 (Fla. 1st DCA 2006) (holding that unequal distribution was abuse of discretion where trial court found husband liable for postseparation debt and also factored that debt into distribution scheme; it penalized the husband twice for his debts). Not only was the husband awarded only $23,500 in marital assets compared to the wife’s $127,000, he was assessed the tax liability, likely valued at $101,000.

The trial court may have believed the wife’s argument that the husband depleted closer to $188,000 and that the husband had other property in Puerto Rico. These factors may have justified the further unequal distribution of assets. But the trial court did not make any specific findings to this effect. See § 61.075(3) (“The distribution of all marital assets and marital liabilities, whether equal or unequal, shall include specific written findings of fact as to ... [a]ny other findings necessary to advise the parties or the reviewing court of the trial court’s rationale for the distribution of marital assets and allocation of liabilities.”). The trial court may have also believed that the marital tax liability was less than $101,000 (as argued by the husband). But again, the trial court failed to make a finding to this effect. See Lorman v. Lorman, 633 So.2d 106, 108 (Fla. 2d DCA 1994) (holding that before trial court may impose tax liability solely on one party, “it must first determine the amount of the tax liability and then give appropriate consideration to the financial consequences this liability will have on an overall scheme of equitable distribution”). And we note that there appears to be no competent evidence supporting the husband’s contention that the tax liability was less than $101,000.

It is extremely difficult, if not impossible, to analyze the equitable distribution scheme in this case due to the lack of findings on the critical elements at issue here. The lack of findings thus precludes meaningful appellate review. See Guida, 870 So.2d at 224 (“Failure to include the statutorily required findings of fact makes appellate review of the distribution scheme difficult, if not impossible, and requires reversal.”). We therefore reverse the equitable distribution scheme in the final judgment of dissolution. On remand, consistent with this opinion, the trial court shall either make specific findings that support the distribution of assets and liabilities already made in the final judgment of dissolution or reconsider the equitable distribution scheme and make specific findings that support a new scheme. The trial court may revisit other interrelated financial issues, such as alimony and attorneys’ fees, to the extent they are affected by any changes in the equitable distribution scheme. See Noah v. Noah, 491 So.2d 1124, 1128 (Fla.1986).

Reversed and remanded.

VILLANTI and KHOUZAM, JJ., Concur.

      . These figures do not take into account personal property valued at $10,000 by the trial court because it is not clear which party received the value of this property. In the equitable distribution division, the trial court awarded the wife the personal property in the marital home and the husband his tools but the trial court did not identify the value of these specific properties.


author: PER CURIAM.

text:
    Virginia GRAVES, Appellant, v. MOREQUITY, INC., Appellee.
    No. 1D10-4756.
    District Court of Appeal of Florida, First District.
    Jan. 19, 2011.
    H. Richard Bisbee, Tallahassee, for Appellant.

      Klarika Caplano, Clearwater, for Appel-lee.
   PER CURIAM.

Having considered the appellant’s response to the Court’s order of September 20, 2010, the appeal is hereby DISMISSED for lack of jurisdiction. See generally Cunningham v. MBNA America Bank, N.A., 8 So.3d 438 (Fla. 2d DCA 2009) (dismissing appeal from order on a claim for abuse of process and on claims raised under consumer protection statutes where related claim seeking collection of debt remained pending). The order on appeal is not reviewable as a partial final judgment under Florida Rule of Appellate Procedure 9.110(k). See Jensen v. Whetstine, 985 So.2d 1218, 1220 (Fla. 1st DCA 2008).

DAVIS, HAWKES, and WETHERELL, JJ., concur.


text:
    EIGHT PEAKS CAPITAL, LLC, Petitioner, v. Humberto E. SANTOS, et al., Respondents.
    No. 3D10-2899.
    District Court of Appeal of Florida, Third District.
    Jan. 19, 2011.
    Zachary Zurich, Key Largo, for petitioner.
    Yvette Gonzalez Costa, Miami Lakes, for respondents.
    Before GERSTEN, WELLS, and SHEPHERD, JJ.
   PER CURIAM.

We grant Eight Peaks Capital, LLC’s petition for writ of mandamus to compel the trial court to rule on its July 20, 2010, and September 23, 2010, motions for deficiency judgment.

Because we are confident the trial court will comply forthwith, we withhold issuance of the formal writ for thirty (30) days.


text:
    HORACE MANN INSURANCE COMPANY, Appellant, v. Allison N. CHASE, Individually, and as Co-Personal Representative of the Estate of Richard Chase, Deceased., Appellee.
    No. 1D09-5572.
    District Court of Appeal of Florida, First District.
    Jan. 19, 2011.

      Tammy De Soto Cicchetti and Audra M. Bryant of The Cicchetti Law Firm, Tallahassee, for Appellant.
    Benjamin E. Richard, Stephen J. Pajcic, III, and William A. Bald of Pajcic & Pajcic, P.A., Jacksonville, for Appellee.
   PER CURIAM.

We grant the Appellee’s Motion for Clarification, withdraw our previous opinion, and substitute the following opinion in its place.

This appeal concerns a circuit court’s decision to impose sanctions for a party’s bad-faith failure to participate in pre-trial discovery. Because the order imposing sanctions does not meet the requirements of either rule or common law, we reverse the order as it applies to Appellant, Horace Mann Insurance Co.

Prior to trial, the circuit court concluded Appellant committed “gross discovery misconduct” and acted with “bad faith, willfulness or deliberate disregard.” The court imposed sanctions against Appellant pursuant to (1) Florida Rule of Civil Procedure 1.380 (2008); and (2) its inherent power to sanction.

Sanctions were inappropriate under Rule 1.380 because the Appellees did not prevail on a motion to compel and Appellant’s counsel did not fail to appear at a duly noticed deposition. See Fla. R. Civ. P. Rule 1.380 (2008). Sanctions were also inappropriate under the court’s inherent power to sanction because, although the record amply supported the trial judge’s conclusion, the court’s written order failed to satisfy requirements set forth in Moakley v. Smallwood, 826 So.2d 221, 223-27 (Fla.2002). We note that sanctions may have been available under section 57.105(3), Florida Statutes (2008), but the Appellees did not timely request such relief.

Accordingly, because the circuit court’s order failed to cite sufficient grounds on which to base its imposition of sanctions against Appellant, we reverse.

REVERSED.

WEBSTER, LEWIS and HAWKES, JJ., concur.


text:
    K.L.F., a child, Petitioner, v. Stepheny DURHAM, Superintendent of the Duval Regional Juvenile Detention Center and State of Florida, Respondents.
    No. 1D10-6618.
    District Court of Appeal of Florida, First District.
    Jan. 19, 2011.
    Matt Shirk, Public Defender, and Elizabeth H. Webb, Assistant Public Defender, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

DISMISSED as moot.

DAVIS, HAWKES, and WETHERELL, JJ., concur.


text:
    The STATE of Florida, Appellant, v. Travis SCOTT, Appellee.
    No. 3D09-1395.
    District Court of Appeal of Florida, Third District.
    Jan. 19, 2011.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellee.
    Before CORTIÑAS, ROTHENBERG, and SALTER, JJ.
   PER CURIAM.

The State of Florida (the “State”) appeals the imposition of a downward departure following a guilty plea entered by Travis Scott (the “Defendant”). Although we agree with the State that the trial court failed to articulate a sufficient basis and requisite factual findings for the downward departure, because of the subsequent proceedings involved, this issue has been rendered moot.

The Defendant was charged by information with, inter alia, two counts of third degree felony violations. The State then filed notice of its intent to seek an enhanced penalty under Florida’s habitual offender statute. § 775.084, Fla. Stat. (2009). Pursuant to the sentencing guidelines scoresheet, the underlying case mandated that the trial court impose a minimum sentence of 36.9 months. At the plea hearing, the trial court qualified the Defendant as a habitual offender, but imposed a downward departure of two years in community control followed by three years of supervised probation, with the special conditions of successfully completing the community control program and paying restitution to the victim. In so doing, the trial court was without the benefit of our recent decision of State v. Ford, 48 So.3d 948 (Fla. 3d DCA 2010).

However, during the pendency of this appeal, the Defendant violated the terms of the community control program, and was subsequently sentenced to 36.9 months in the Department of Corrections as a habitual offender. Because “the trial court does have jurisdiction to conduct a revocation hearing on an order of [community control] which has been appealed but not stayed pending review[,]” the trial court was not prohibited “from entertaining an affidavit of [community control] violation and accepting the defendant’s [admission to] violation of the terms and conditions ... and subsequently sentencing him.” Loeb v. State, 387 So.2d 433, 436 (Fla. 3d DCA 1980). Accordingly, the trial court lawfully accepted the Defendant’s admission as to the community control violation, and thereafter imposed the 36.9 month sentence as mandated by the sentencing guidelines scoresheet.

Because the Defendant has now been sentenced to the minimum sentencing guideline of 36.9 months, the issue on appeal has been rendered moot.

Affirmed.

      . The amended information included the following counts: (1) burglary of an unoccupied structure, a third degree felony, (2) grant theft, a third degree felony, (3) criminal mischief, a first degree misdemeanor, (4) reckless driving, a second degree misdemeanor, and (5) no valid driver’s license, a traffic citation.

      . Specifically, the State sought to designate the Defendant as a habitual felony offender, habitual violent felony offender, and violent career criminal. §§ 775.084(l)(a), 775.084(l)(b), & 775.084(l)(d), Fla. Stat. (2009).


text:
    Shannon LACROIX-HILL, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Southwest Airlines Company, Appellees.
    No. 1D10-5092.
    District Court of Appeal of Florida, First District.
    Jan. 20, 2011.

      Shannon Lacroix-Hill, pro se, Appellant.
    A. Robert Whaley, General Counsel, Tallahassee, for Appellee Florida Unemployment Appeals Commission.
   PER CURIAM.

DISMISSED. See generally Durando v. Palm Beach County, 719 So.2d 1258 (Fla. 1st DCA1998).

WEBSTER, ROWE and MARSTILLER, JJ., concur.


text:
    Alvin CLAVELLE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-6658.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2011.
    Matt Shirk, Public Defender, Fourth Judicial Circuit, and Richard B. Gordon, Assistant Public Defender, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on July 22, 2010, in Duval County Circuit Court case number 16-2008-CF-018170-BXXX-MA, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal in accordance with Florida Rule of Appellate procedure 9.141(c)(5)(D). The court notes that the Office of the Public Defender has been appointed to represent petitioner in the appeal authorized by this opinion.

VAN NORTWICK, LEWIS, and ROBERTS, JJ., concur.


text:
    TALLAHASSEE MEMORIAL HEALTHCARE, INC., Petitioner, v. Martha ALEXANDER, R.N., Respondent.
    No. 1D10-6377.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2011.
    Cynthia S. Tunnicliff, Brandice D. Dickson, and Gerald Bryant of Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tallahassee, for Petitioner.
    Steven R. Andrews and Stephen G. Webster of the Law Offices of Steven R. Andrews, P.A., Tallahassee; Stephen S. Dobson, III, of Dobson, Davis & Smith, Tallahassee; W. Scott Newbern of W. Scott Newbern, P.L., Tallahassee, for Respondent.
   PER CURIAM.

This court concludes that the defendant’s motion for disqualification, which was based upon comments by the trial judge at a hearing on plaintiff’s motion for sanctions that she had faith “as long as my fingernail” that the defendant had produced documents sought by the plaintiff, was both timely and legally sufficient. See Brown v. St. George Island Ltd., 561 So.2d 253 (Fla.1990); Campbell Soup Co. v. Roberts, 676 So.2d 435 (Fla. 2d DCA 1995); Owens-Corning Fiberglas Corp. v. Parsons, 644 So.2d 340 (Fla. 1st DCA 1994). We grant the petition for writ of prohibition and remand the cause to the circuit court with directions that the motion for disqualification be granted and a new judge assigned to preside over the cause.

PETITION GRANTED.

VAN NORTWICK, LEWIS, and ROBERTS, JJ., concur.


text:
    George W. CLARK, Appellant, v. William R. WARD and Southern Land Concepts, Inc., Appellees.
    No. 1D10-5946.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2011.
    George W. Clark, pro se, Appellant.
    Ryan M. Barnett of Whibbs & Stone, Pensacola, for Appellees.
   PER CURIAM.

The appellant has sought review of an order that is neither a final order, nor an interlocutory order subject to appellate review pursuant to Florida Rule of Appellate Procedure 9.130. Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

BENTON, C.J., VAN NORTWICK and ROBERTS, JJ., concur.


author: WETHERELL, J.

text:
    Santeris T. McKINNEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-6322.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2011.

      Nancy A. Daniels, Public Defender and A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   WETHERELL, J.

Appellant contends that his convictions and sentences for third-degree murder and fleeing or attempting to elude a law enforcement officer causing death (hereafter “fleeing or eluding”) violate the constitutional protection against double jeopardy because, even though the offenses contain different elements, he is being punished twice for the death of a single victim. We affirm because we conclude that fleeing or eluding is not a homicide offense and, thus, double jeopardy does not bar Appellant’s convictions and sentences for both felony murder and the underlying felony of fleeing or eluding.

The evidence presented at trial established that, on January 12, 2009, Appellant approached a woman at a gas station with what appeared to be a gun and stole her van. Law enforcement officers pursued Appellant for a time with their lights and sirens activated and attempted to initiate a traffic stop. While being pursued, Appellant drove erratically in excess of the speed limit, eventually causing an accident with another vehicle. The driver of the other vehicle died as a result of the collision.

The state filed an information charging Appellant with vehicular homicide, third-degree murder, fleeing or eluding, and carjacking. The fleeing or eluding charge served as the underlying felony for Appellant’s third-degree murder charge.

The jury returned a verdict of guilty as charged on all counts. The trial court vacated Appellant’s vehicular homicide conviction on double jeopardy grounds and sentenced Appellant for the other offenses. Appellant was sentenced as an habitual felony offender to 30 years in prison on the third-degree murder charge, with a concurrent 30-year term on the fleeing or eluding charge and a consecutive 20-year term on the carjacking charge.

“The Double Jeopardy Clause in both the state and federal constitutions protects criminal defendants from multiple convictions and punishments for the same offense.” Gordon v. State, 780 So.2d 17, 19 (Fla.2001). However, multiple convictions for an act or acts committed during the same criminal episode do not constitute double jeopardy if each offense contains an element that the other does not. See Valdes v. State, 3 So.3d 1067, 1070-71 (Fla.2009) (citing Blockburger v. U.S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)); see also § 775.021(4)(a), Fla. Stat. (2008) (codifying Blockburger). Additionally, the Florida Supreme Court has held that double jeopardy does not bar convictions for both felony murder and the underlying felony. See Lukehart v. State, 776 So.2d 906, 922-23 (Fla.2000); Boler v. State, 678 So.2d 319 (Fla.1996); State v. Enmund, 476 So.2d 165 (Fla.1985).

The Legislature has made clear its intent to punish all offenses that occur within a single criminal episode with three exceptions: offenses which require identical elements of proof; offenses which are degrees of the same offense; and offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense. § 775.021(4)(b)1.-3., Fla. Stat. (2008). None of these exceptions apply to Appellant’s convictions.

The first exception is not applicable because, as Appellant concedes, third-degree murder and fleeing or eluding require different elements of proof. The second exception is not applicable because third-degree murder and fleeing or eluding are found in different statutes, neither offense is an aggravated form of the other, and the two are not degree variants of the same offense. See Valdes, 3 So.3d at 1076-77 (abandoning the “core offense” and “primary evil” tests from earlier cases in favor of an approach that focuses on the plain language of section 775.021(4)(b)2.). The third exception is not applicable because fleeing or eluding is not a lesser included offense of third-degree murder. See State v. Florida, 894 So.2d 941, 947-48 (Fla.2005) (explaining that section 775.021(4)(b)3. only applies to listed Category 1 lesser included offenses), disapproved on other grounds by Valdes, 3 So.3d at 1074-75.

Appellant nevertheless argues that he cannot be convicted and sentenced for both third-degree murder and fleeing or eluding because the offenses are based upon a single death. In support of this claim, Appellant relies on McKay v. State, 925 So.2d 1133 (Fla. 2d DCA 2006), Rodriguez v. State, 875 So.2d 642 (Fla. 2d DCA 2004), and Houser v. State, 474 So.2d 1193 (Fla.1985).

In Houser, the Florida Supreme Court stated that “the legislature did not intend to punish a single homicide under two different statutes.” 474 So.2d at 1197; see also id. at 1196 (“only one homicide conviction and sentence may be imposed for a single death”). The court determined that DWI manslaughter was not merely an enhancement of the penalty for driving while intoxicated, but that the addition of the death of a victim as an element of the offense “places [DWI manslaughter] squarely within the scope of this statute’s regulation of homicide.” Id. Thus, the court held that a defendant could not be convicted and sentenced for both DWI manslaughter and vehicular homicide based on the same death. Id. at 1197; see also Ivey v. State, 47 So.3d 908, 911 (Fla. 3d DCA 2010) (concluding that “Valdes did not overrule the well-settled principle that a single death cannot give rise to dual homicide convictions” and holding, based on Houser, that defendant’s convictions for both DUI manslaughter and vehicular homicide violate double jeopardy).

In Rodriguez, the Second District, citing Houser, determined that the defendant’s dual homicide convictions for third-degree murder and DUI manslaughter violated the protection against double jeopardy. See Rodriguez, 875 So.2d at 642. The court reasoned that a violation occurred because “more than one homicide punishment was imposed for a single death.” Id. at 645. Likewise, the Second District in McKay, relying on Rodriguez, held that separate convictions for third-degree murder and vehicular homicide arising from a single death violated the protection against double jeopardy. See McKay, 925 So.2d at 1134.

The state argues that Rodriguez and McKay are distinguishable because the underlying felonies for the third-degree murder convictions in those cases (DUI manslaughter and vehicular homicide, respectively) were homicide offenses whereas the underlying felony in this case (fleeing or eluding) is not a homicide offense. We agree.

Section 316.1935, Florida Statutes, proscribes the offense of fleeing or attempting to elude a law enforcement officer, and identifies various degrees of the crime. Pertinent to the analysis in this case, subsection (2) of the statute provides that it is a third-degree felony to willfully flee or attempt to elude an officer in a marked law enforcement vehicle with lights and sirens activated. Subsection (3)(a) enhances the penalty for the offense to a second-degree felony when, in the course of fleeing or eluding, the defendant drives at a high rate of speed or in a manner demonstrating wanton disregard for safety of persons or property. Subsection (3)(b) further enhances the penalty to a first-degree felony when, in the course of fleeing or eluding at a high rate of speed or with wanton disregard for safety of person or property, the defendant “causes serious bodily injury or death” (emphasis supplied).

Unlike DUI manslaughter and vehicular homicide, fleeing or eluding can be committed without causing a death. Thus, fleeing or eluding is not a homicide offense. The alternative element of “serious bodily injury” contained in section 316.1935(3)(b) distinguishes fleeing or eluding from the underlying felony offenses in Rodriguez and McKay, and it also distinguishes fleeing or eluding from DWI manslaughter, which the supreme court held in Houser to be a homicide offense rather than an enhancement to the penalty for DWI because death was an element of the offense. The fact that Appellant’s conviction for fleeing or eluding was based upon a death, rather than serious bodily injury, is irrelevant to the double jeopardy analysis. See § 775.021(4)(a), Fla. Stat. (2008) (explaining that the comparison of the elements of the offenses is to be made “without regard to the accusatory pleading or the proof adduced at trial”).

In sum, because fleeing or eluding is not a homicide offense, double jeopardy does not bar Appellant’s convictions and sentences for both third-degree murder and the underlying felony of fleeing or eluding. For the same reason, Appellant’s dual convictions and sentences are not precluded by the “notions of fundamental fairness” underlying the principle that multiple homicide punishments cannot be based upon a single death. Accordingly, we affirm Appellant’s convictions and sentences.

AFFIRMED.

WOLF and HAWKES, JJ., concur.

      . Third-degree murder is defined as ''[t]he unlawful killing of a human being, when perpetrated without any design to effect death, by a person engaged in the perpetration of, or in the attempt to perpetrate, any felony" other than the offenses specifically listed in the statute. § 782.04(4), Fla. Stat. (2008). The offense is a second-degree felony. Id.

      . Fleeing or eluding is defined as follows:
      (3) Any person who willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with siren and lights activated, and during the course of the fleeing or attempted eluding:

      (b) Drives at high speed, or in any manner which demonstrates a wanton disregard for the safety of persons or property, and causes serious bodily injury or death to another person, including any law enforcement officer involved in pursuing or otherwise attempting to effect a stop of the person’s vehicle, commits a felony of the first degree....
      § 316.1935(3)(b), Fla. Stat. (2008).

      . The Florida Supreme Court recently observed that this principle is based on "notions of fundamental fairness which recognize the inequity that inheres in multiple punishments for a single killing." Gordon, 780 So.2d at 25 (citing Houser and several other cases). But none of the supreme court cases applying this principle involved felony murder and, as noted above, the court has held that it is permissible to convict a defendant of both felony murder and the underlying felony.


author: VAN NORTWICK, J.

text:
    Bryan Travon HILL, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-2100.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2011.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.

      Pamela Jo Bondi, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   VAN NORTWICK, J.

Bryan Hill appeals the trial court’s denial of a motion to suppress evidence seized from his vehicle after he was stopped by a police officer. Because the evidence adduced below was insufficient to establish a lawful basis for the stop, we reverse.

Based on evidence introduced at the suppression hearing, on September 17, 2009, Sergeant Bringmans was traveling through Midway, Florida, an area which had recently been the site of several burglaries and reports of suspicious activities. According to Bringmans’ testimony at the hearing, however, no burglaries or suspicious activities were reported on the night in question. Bringmans testified that, while driving, he observed appellant standing in front of a parked car in the vacant parking lot of a closed Pure Gas Station at 1:15 a.m. Bringmans stated that the appellant “looked right at me went to his driver’s door, got in and took off....” Bringmans made a U-turn to investigate when the appellant entered his car and departed from the lot.

Bringmans followed the appellant’s car for “about a mile and a half’ while running a tag check. Bringmans testified that while following the appellant’s car he did not notice anything unusual about the vehicle or about the way in which the appellant was driving it. Bringmans further testified that he decided to stop appellant because the Pure Gas Station had been closed over two hours before he observed the appellant’s car parked in the lot, because the Pure Station was located in a high crime area, and because appellant entered his car and departed from the Pure Station upon making eye contact with Bringmans. After stopping the appellant’s car, Bringmans requested backup from a nearby canine unit and sent another officer to check the Pure Station and determine whether any “damage or criminal mischief’ had taken place. The canine unit obtained a positive alert. The subsequent search of the car disclosed marijuana and a loaded firearm. Appellant was arrested and later charged by information with carrying a concealed firearm and possession of cannabis (less than 20 grams). Appellant moved to suppress the fruits of the search.

Following a suppression hearing, the trial court held that, given the totality of the matters testified to by Sergeant Bring-mans, a reasonable suspicion existed to stop the appellant’s vehicle. The trial court therefore denied the appellant’s motion to suppress. Thereafter, appellant entered a plea of nolo contendere reserving the right to appeal the denial of suppression.

“The trial court’s ruling on a motion to suppress is a mixed question of law and fact.” Brye v. State, 927 So.2d 78, 80 (Fla. 1st DCA 2006). An appellate court must “review the trial court’s ruling denying a motion to suppress to determine whether competent, substantial evidence supports the factual findings.” Panter v. State, 8 So.3d 1262, 1265 (Fla. 1st DCA 2009) (citing Huffman v. State, 937 So.2d 202, 205 (Fla. 1st DCA 2006)). However, “whether a reasonable suspicion exists under a given set of facts is a question of law reviewable by the de novo standard.” Beahan v. State, 41 So.3d 1000, 1002 (Fla. 1st DCA 2010) (citing Ikner v. State, 756 So.2d 1116 (Fla. 1st DCA 2000)).

Here, Sergeant Bringmans did not observe any criminal activity. Following the stop, the officer asked one officer to look for evidence of mischief at the gas station, while at the same time seeking the assistance of a canine unit for drug detection. While the officer testified at the suppression hearing that he suspected that “[m]aybe the back of the store had been burglarized” or “[m]aybe vandalism in the parking lot or to the building” had occurred, it is apparent that the officer did not have knowledge of any facts relating to a specific criminal offense, a fact which is underscored by the use of the canine unit. Even when construed in a light most favorable to the State, the circumstance identified by the officer as prompting the stop was insufficient to establish a reasonable suspicion. See L.N.D. v. State, 884 So.2d 515 (Fla. 2d DCA 2004); Errickson v. State, 855 So.2d 700 (Fla. 4th DCA 2003). Accordingly, we reverse.

The State argues on appeal that police obtained reasonable suspicion to stop appellant’s vehicle after appellant engaged in “headlong flight.” Headlong flight is “the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” Illinois v. Wardlow, 528 U.S. 119, 124-25, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). Headlong flight in a high crime area may provide an officer with a reasonable suspicion to investigate further. F.E.A. v. State, 804 So.2d 528, 529 (Fla. 1st DCA 2002). However, reasonable suspicion of criminal activity is not established simply because a defendant leaves the scene when an officer nears. See F.E.A. Further, when a party leaves the scene in a car, a party’s intent is not always clear. See Cunningham, v. State, 884 So.2d 1121, 1123-24 (Fla. 2d DCA 2004). As explained in Faff v. State, 884 So.2d 271, 273 (Fla. 2d DCA 2004), a “car that obeys all traffic regulations when leaving a location when a police car arrives would seem to be the motor vehicle equivalent of a person who simply walks away from an officer on foot. Such a person does not invoke the rule of Wardlow.” Here, Appellant did not flee at a high rate of speed or in a reckless manner so as to suggest flight. Further, unlike the defendant in F.E.A., appellant was not seen to run to his car upon sight of police. Instead, according to the officer’s testimony, appellant entered his vehicle and drove away from the scene in an unremarkable fashion. Under these facts, the stop cannot be deemed lawful under Ward-low and its progeny. See Hewlett v. State, 599 So.2d 757 (Fla. 2d DCA 1992)(holding stop of vehicle was unlawful where three men, who were aside a vehicle parked next to property of a known drug dealer but who were personally unknown to police, jumped into the vehicle and drove away at a lawful rate of speed as an officer approached); Paff; Cunningham.

We therefore reverse the trial court’s denial of the Appellant’s motion to suppress, and accordingly REVERSE the Appellant’s judgment of conviction and vacate his sentence.

LEWIS and CLARK, JJ., concur.


text:
    Carlos E. SUAREZ, Appellant, v. STATE of Florida, UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 4D10-06.
    District Court of Appeal of Florida, Fourth District.
    Jan. 26, 2011.

      Carlos E. Suarez, Miami, pro se.
    M. Elaine Howard, Deputy General Counsel, Tallahassee, for appellee.
   PER CURIAM.

Affirmed. See Suarez v. Unemployment Appeals Commission, 871 So.2d 1039 (Fla. 5th DCA 2004).

GROSS, C.J., TAYLOR and MAY, JJ., concur.


text:
    J. Stuart BAKER, an individual, Appellant, v. Howard I. STORFER, Appellee.
    No. 4D10-2151.
    District Court of Appeal of Florida, Fourth District.
    Jan. 26, 2011.
    Geoffrey D. Ittleman of the Law Offices of Geoffrey D. Ittleman, P.A., Fort Laud-erdale, for appellant.
    Scott M. Behren of the Behren Law Firm, Weston, for appellee.
   PER CURIAM.

This appeal stems from an unpaid personal judgment obtained by J. Stuart Baker (“Creditor”) against Howard I. Storfer (“Debtor”). Creditor sought to collect the judgment by garnishing Debtor’s wages. Creditor filed a motion for a continuing writ of garnishment, pursuant to section 77.0305, Florida Statutes (2009). Garnishee, Debtor’s employer, objected to the writ, contending that Debtor was paid by commissions and that commissions were not “salary or wages” as envisioned by section 77.0305. The trial court agreed, reasoning that Debtor, as a commissioned employee, did not have income that was subject to garnishment. We disagree and reverse.

Whether commissions are considered “salary or wages” under section 77.0305 is a question of statutory interpretation that is reviewed de novo. See Arnold, Matheny & Eagan, P.A. v. First Am. Holdings, Inc., 982 So.2d 628, 632 (Fla.2008). Section 77.0305 provides that:

Notwithstanding any other provision of this chapter, if salary or wages are to be garnished to satisfy a judgment, the court shall issue a continuing writ of garnishment to the judgment debtor’s employer which provides for the periodic payment of a portion of the salary or wages of the judgment debtor as the salary or wages become due until the judgment is satisfied or until otherwise provided by court order.

The terms “salary” and “wage” have not been specifically defined within the garnishment statutes. However, “ ‘[w]ords of common usage, when employed in a statute, should be construed in their plain and ordinary sense.’ ” Brock v. Westport Recovery Corp., 832 So.2d 209, 213 (Fla. 4th DCA 2002) (quoting Zuckerman v. Alter, 615 So.2d 661, 663 (Fla.1993)).

“Wages” is a broad term that encompasses all types of payments made for labor or services. In Black’s Law Dictionary, “wage” is defined as “[p]ayment for labor or services, usu. based on time worked or quantity produced; specif., compensation of an employee based on time worked or output of production. Wages include every form of remuneration ... including ... commissions.” BlacK’s Law Dictionary 1610 (8th ed. 2004). Debtor cites Brock and Cadle Co. v. G & G Associates, 737 So.2d 1136 (Fla. 4th DCA 1999), for the proposition that commissions are not “salary or wages.” A review of those cases shows that “commissions” were simply not at issue. Brock dealt with “discretionary distributions from a family-owned business” while Cadle Co. addressed “draws, expense reimbursement, and capital account disbursements.” Brock, 832 So.2d at 212; Cadle Co., 737 So.2d at 1140.

Courts have held, in other contexts, that the term “wages” includes commissions. For example, in the unemployment compensation context, “wages” include “all remuneration for employment, including commissions, bonuses, back pay awards, and the cash value of all remuneration paid in any medium other than cash.” § 443.1217(1), Fla. Stat. (2009). Similarly, in awarding attorney’s fees in actions for “unpaid wages,” the term “unpaid wages” includes unpaid commissions. § 448.08, Fla. Stat. (2009); Gulf Solar, Inc. v. Westfall, 447 So.2d 363, 367 (Fla. 2d DCA 1984) (holding that commissions are wages within the meaning of section 448.08); Langford v. Paravant, Inc., 48 So.3d 75, 76 (Fla. 5th DCA 2010) (same). We find the above holdings persuasive in this case. As such, we hold that commissions are “wages,” for purposes of section 77.0305 of the garnishment statutes, and reverse the trial court’s order.

Reversed and remanded.

GROSS, C.J., STEVENSON and TAYLOR, JJ., concur.


author: WARNER, J.

text:
    Olin CARILUS, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 4D10-126.
    District Court of Appeal of Florida, Fourth District.
    Jan. 26, 2011.

      Olin Carilus, Fort Pierce, pro se.
    Louis A. Gutierrez, Tallahassee, for ap-pellee.
   WARNER, J.

Olin Carilus appeals from the Corrected Order of the Unemployment Appeals Commission affirming the appeals referee’s decision which denied him benefits and held that Carilus was not “able and available for work,” because he had not conducted an adequate job search. Because the referee based her decision on his failure to keep a job search log, which is not a requirement by statute or rule, we reverse.

At a hearing on Carilus’s claim for benefits after having been terminated from his employment with a convenience store, the referee quizzed Carilus about whether he had searched for another job. Carilus recounted several contacts he had made. The referee then asked him the following:

REFEREE: Mr. Carilus, do you understand that as part of your job search requirement you need to keep a record of where you search for work so that in times of hearing like this you can produce it quickly and efficiently? Have you been keeping a record of your job searches?
CARILUS: I was — I was unaware of that, and I did not do that.

Based upon the testimony the referee made a finding of fact that Carilus “did not keep a job search record as instructed by the Agency for the weeks of March 15, 2009, through May 28, 2009.” To be considered “available for work” within the meaning of section 443.036(6), Florida Statutes, the claimant was required to show that he was “actively seeking and being ready and willing to accept suitable employment.” The referee concluded that:

The claimant did not provide an adequate search for employment and was aware of the job search requirement. The burden of proof to establish eligibility for benefits rests with the person claiming benefits. Florida Ind. Com. v. Ciarlante, 84 So.2d 1 (Fla.1955).

As a result, Carilus was found to be ineligible for benefits for the weeks March 15, 2009 through the date of the hearing of May 28, 2009. He was required to refund overpayments made to him. Carilus appealed the referee’s decision to the Unemployment Appeals Commission which affirmed the referee’s order. Carilus appeals to this court.

The issue of the requirement of a job search log was addressed recently in Grell v. Florida Unemployment Appeals Commission, 44 So.3d 201, 205 (Fla. 1st DCA 2010). The court said:

We have located no statute or rule imposing a strict requirement that a claimant file a written job log specifying the jobs to which he or she has applied, and the UAC has not cited one. The rule most on point is Florida Administrative Code Rule 60BB-3.015(2)(e), which provides as follows:
At any time during the pendency of any claim for benefits, the Agency may make a written request for information or documentation from the claimant regarding any question whose resolution is necessary to ascertain the claimant’s entitlement to benefits or the amount of any such benefits. The failure of the claimant to respond will result in a determination made from the available evidence. Even this rule, however, does not specifically provide for disqualification based solely on the absence of a job log. See Fla. Admin. Code R. 60BB-3.015(2)(e). Generally, a referee may accept a claimant’s testimony alone as competent, substantial evidence to support a finding. See Anderson v. Unemployment Appeals Comm’n, 822 So.2d 563, 567 n. 4 (Fla. 5th DCA 2002). Therefore, the “available evidence” may include a claimant’s oral testimony regarding his job search. Whether such evidence is credible is, of course, within the province of the appeals referee to decide. See Howell & O’Neal, 934 So.2d at 575 (observing that this Court cannot make credibility determinations or substitute its judgment for that of the referee); cf. Chapman, 15 So.3d at 721 (reversing and remanding for findings where it was unclear whether the referee would have denied benefits “based solely on [the claimant’s] failure to provide the state with documentation of her job contacts and the dates of those contacts”).

We agree with the First District’s conclusion that a job search log is not required and that the referee must determine the case on available evidence, including the claimant’s oral testimony regarding his job search. In this case, Carilus testified as to his job search, but the referee made no credibility decision, concluding that because there was no written job search record, Carilus had not carried his burden of proof. Because the referee based her determination on a legally incorrect basis, we reverse and remand for further proceedings.

POLEN and STEVENSON, JJ., concur.


author: HAZOURI, J.

text:
    Shannon WINTERS, Appellant, v. Matthew BROWN, Appellee.
    No. 4D10-1811.
    District Court of Appeal of Florida, Fourth District.
    Jan. 26, 2011.
    Siobhan Helene Shea of Siobhan Helene Shea Appellate Practice, Palm Beach, for appellant.
    Lori I. Steger and Karen O’Brien Steger of Steger & Steger, P.A., Stuart, for appel-lee.
   HAZOURI, J.

Shannon Winters (“Mother”) appeals the court’s award of ultimate responsibility to Matthew Brown (“Father”) for their minor child’s health care, and specifically, their minor child’s vaccinations. Father cross appeals the court’s award of substantial timesharing to Mother. We affirm both provisions of the trial court’s order.

While the parties were never married, Mother and Father have a minor child together. When differing religious beliefs resulted in disagreement over the minor child’s health care, Father petitioned the court to establish paternity and each party requested ultimate responsibility over health care, religious, and educational issues.

Mother is a chiropractor and a proponent of holistic medicine. A tenet of her religious beliefs is that God has provided the human body with an innate immune system that enables the body to heal itself. Mother believes that anything introduced into the body to prevent disease or treat illness is against the will of God. Specifically, Mother opposes vaccinations. Accordingly, pursuant to section 1003.22(5)(a), Florida Statutes (2007), Mother obtained an exemption for the minor child from the immunization requirement to attend public school.

Conversely, Father desires that the minor child receive traditional medical care, including well baby exams, blood draws, urinalysis, and vaccinations. The court held three hearings to determine responsibility for the minor child’s health care where multiple experts testified concerning the effectiveness of vaccinations. Mother also testified regarding her religious beliefs, medical care of the minor child, and their parent-child relationship.

A trial court’s determination as to which parent is to have the ultimate authority over a minor child’s immunizations will be upheld if it is supported by competent, substantial evidence. See McGrath v. Mountain, 784 So.2d 607, 608 (Fla. 5th DCA 2001). An appellate court will not substitute its judgment for that of the trial court. See id. (citing Lonergan v. Estate of Budahazi 669 So.2d 1062 (Fla. 5th DCA 1996)).

While courts have consistently overturned restrictions on exposing a child to a parent’s religious beliefs and practices, they make an exception where there is “a clear, affirmative showing that these religious activities will be harmful to the child.” Mesa v. Mesa, 652 So.2d 456, 457 (Fla. 4th DCA 1995) (citation omitted). In the instant case, the court determined that

The issue ... is not one of simply exposing the minor child to the mother’s religious beliefs and practices, it involves an issue that could cause physical and serious harm to the minor child. When parents cannot agree, the court is called upon to break the impasse, and that decision must be made in the best interests of the minor child.

Following conflicting expert testimony the court determined that it was in the best interests of the minor child to award Father ultimate responsibility to make decisions regarding the minor child’s health care and vaccinations. We affirm the trial court’s decision because it was supported by competent, substantial evidence. See McGrath, 784 So.2d at 608.

Next, we turn to Father’s cross-appeal where he contends that the trial court erred in awarding substantial time-sharing to Mother. An appellate court reviews a trial court’s child custody determination for an abuse of discretion. See Buccini v. Sonara, 989 So.2d 1288, 1290 (Fla. 4th DCA 2008) (citing Castillo v. Castillo, 950 So.2d 527, 528 (Fla. 4th DCA 2007)). “Decisions affecting child custody require a careful consideration of the best interests of the child.” Id. (citation omitted). An appellate court will not disturb the trial court’s custody decision unless there is no substantial, competent evidence to support the decision. Id. (citations omitted). A trial court has wide discretion, and that “discretion is abused only where no reasonable man would take the view adopted by the trial court.” Artuso v. Dick, 843 So.2d 942, 944 (Fla. 4th DCA 2003) (citations omitted).

The determination of the best interests of the child is made by evaluating over twenty factors affecting the welfare and interests of the child. § 61.13(3), Fla. Stat. (2008). “While a trial court need not address each of these factors independently, a trial court must make a finding that the time-sharing schedule is in the child’s best interests.” Kelly v. Colston, 32 So.3d 186, 187 (Fla. 1st DCA 2010) (citations omitted). The requisite findings must either be stated on the record or set out in the order. Clark v. Clark, 825 So.2d 1016, 1017 (Fla. 1st DCA 2002). A trial court’s ultimate finding that an award of primary residential custody to one parent is in the best interests of a child is sufficient to sustain the award so long as there is substantial, competent evidence in the record that permits the court to properly evaluate the relevant factors. Id. (citations omitted).

In the instant case, the trial court considered several factors in section 61.13(3), Florida Statutes. Ultimately, the court determined that “[a]fter consideration of all these factors and the findings by the court, the court hereby determines and orders that the mother shall have the substantial timesharing with the minor child.” As the court’s determination was supported by substantial, competent evidence in the record, we affirm the trial court’s award of substantial timesharing to Mother.

Affirmed.

POLEN and CIKLIN, JJ., concur.

      . Dr. Mobeen Rathore testified:
      Vaccinations are very safe, very effective. Children who are not vaccinated are at increased risk for problems with infections. Some of these diseases that can be sort of postponed, if you will, can have a much worse outcome.... [C]hildren who do not get vaccinated not only are at increased risk themselves, studies have indicated that they put other children at risk in the schools and where they play.
      Dr. Kristen Walker testified that “generally it is better to do [vaccines] on schedule because the antibody titers and the strength of the immunity to that disease would be better." Conversely, Dr. Lawrence Palevsky testified that "one in five children in this country ... are suffering from some form of neurodevel-opmental disorder, so we have to question whether the vaccines play a role in bringing toxic materials into the brain or even impairing the protection that children have with the blood-brain barrier.” He also concluded that "it’s less harmful for a child not to be vaccinated than it is for a child to be vaccinated.” (emphasis added.)


text:
    James LASTRAPES, et ux. v. PROGRESSIVE SECURITY INSURANCE COMPANY.
    No. 2010-C-0051.
    Supreme Court of Louisiana.
    Nov. 30, 2010.

      Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Ian Alexander MacDonald, Lafayette, for Applicant.
    Morrow, Morrow, Ryan & Bassett, Patrick Craig Morrow, Sr., Candyce Catherine Gagnard, Opelousas, for Respondent.
   PER CURIAM.

| ]We granted certiorari in this case to determine (1) whether the court of appeal erred in affirming the judgment of the district court granting plaintiffs’ motion for judgment notwithstanding the verdict and awarding statutory penalties and attorney fees; and (2) whether the court of appeal erred in reversing the judgment of the district court denying plaintiffs’ motion for judgment notwithstanding the verdict, and increasing the jury’s damage award. For the reasons that follow, we now reverse the court of appeal’s judgment in part.

UNDERLYING FACTS

On November 13, 2004, James Las-trapes was involved in an automobile accident (hereinafter referred to as the “2004 accident”), in which the rear door of his 1999 Chevy van was struck by a vehicle driven by Lessie Vizinat as she attempted a left-hand turn. Mr. Lastrapes declined emergency medical care at the scene, but two days later he visited his family physician, Dr. Kirk Elliot, and complained of neck pain. Dr. Elliot initially diagnosed cervical acute myofascial strain, and recommended physical therapy three times per week.

|2Mr. Lastrapes regularly attended physical therapy until January of 2005. On February 18, 2005, Mr. Lastrapes underwent an MRI of the cervical spine. According to the report of radiologist, Dr. Robert L. Lapidus, Mr. Lastrapes’ MRI indicated multi-level spondylosis, C3-C4 spurring with posterior subligamentous disc bulge partially effacing ventral sub-arachnoid space, C5-C6 mild AP diameter stenosis of the central spinal canal, but no focal disc herniation. Mr. Lastrapes was referred to Dr. Steve Rees, a pain management specialist, who diagnosed him with chronic low back pain status post MVA, and quadratus lumborum myofascial pain syndrome. From August 2005 to January 4, 2006, Mr. Lastrapes received at least five treatments for his neck and back pain, including trigger point injections and nerve blocks.

On January 24, 2006, fourteen months after the 2004 accident, Mr. Lastrapes was involved in a second accident (hereinafter referred to as the “2006 accident”), in which he rear-ended another vehicle. Mr. Lastrapes did not inform his doctors of the 2006 accident, but he did notify his uninsured motorist carrier, Progressive Security Insurance Company (“Progressive”). He continued to receive treatment from Dr. Rees, including a steroid injection, trigger point injections, and nerve blocks. He was then referred to an anesthesiologist and pain management specialist, Dr. Sanjiv Jindia, who administered four cervical epidural steroid injections to Mr. Las-trapes from December 2006 through October 2007.

On June 7, 2007, Mr. Lastrapes underwent another MRI of the cervical spine. According to the radiology report of Dr. Lapidus, there was “no significant change compared with February 18, 2005 examination.”

Meanwhile, on July 10, 2007, Mr. Las-trapes consulted an orthopedic surgeon, Dr. George Williams, who diagnosed him with cervical herniated nucleus pulposus. Based on the medical history provided by Mr. Lastrapes, which notably omitted any |,(¡mention of the 2006 accident, together with the MRI results from 2005 and 2007, Dr. Williams recommended that plaintiff undergo neck surgery. Dr. Williams estimated the cost of surgery to be $94,300 to $114,300, exclusive of follow-up care beyond three months. Like Dr. Lapidus, Dr. Williams concluded there was no evident change in Mr. Lastrapes’ cervical spine between the 2005 and 2007 MRIs. Unlike Dr. Lapidus, Dr. Williams concluded the MRI films revealed disc herniations.

PROCEDURAL HISTORY

In November 2006, Mr. Lastrapes and his wife filed the instant suit against his uninsured motorist carrier, Progressive Security Insurance Company (“Progressive”), seeking damages for mental and physical pain and suffering, past and future medical expenses, loss of enjoyment of life, and loss of consortium arising from the 2004 accident.

In January 2008, Progressive’s claims adjuster, Sheryl Tardo, received Dr. Williams’ July 10, 2007 report in which he recommended surgery. Ms. Tardo declined to make an unconditional UM tender to plaintiffs, and did not schedule Dr. Williams’ deposition or otherwise follow up with him.

Thereafter, plaintiffs filed their first supplemental and amending petition for damages, alleging Progressive was “arbitrary and capricious for failing to timely pay benefits to plaintiffs under the uninsured/underinsured portion of its policy.” Plaintiffs sought penalties and attorney fees.

The case proceeded to a three-day jury trial. At the conclusion of trial, the jury returned a verdict awarding plaintiff $88,000 in past medical expenses, and $125,00014in past pain and suffering. The jury declined to award plaintiffs any damages for future medical expenses, future pain and suffering, past mental anguish, loss of enjoyment of life, loss of consortium, and statutory penalties and attorney fees.

Plaintiffs moved for a judgment notwithstanding the verdict (“JNOV”), and alternatively for additur and/or new trial. The district court denied plaintiffs’ motion for additur, but granted a JNOV in part, finding Progressive was arbitrary and capricious in its handling of the UM claim. In particular, the district court found Progressive acted contrary to its duty of good faith and fair dealing by failing to tender payment for the surgery recommended by Dr. Williams within thirty days of receiving his report. Accordingly, the district court awarded plaintiffs $72,575 in penalties, and $24,192 in attorney fees.

Progressive appealed. Plaintiffs answered the appeal, seeking an increase in the amount of damages, and seeking damages for the items the jury declined to award. The court of appeal affirmed the district court in part, and reversed in part. Lastrapes v. Progressive Security Insurance Company, 2009-367 (La.App. 3 Cir. 12/9/09), 24 So.3d 993.

In its opinion, the court of appeal affirmed the jury’s award of $88,000 for past medical expenses, and $125,000 for past pain and suffering. It also affirmed the district court’s judgment granting JNOV and awarding plaintiffs $72,575 in penalties, and $24,192 in attorney fees.

However, the court of appeal went on to find the jury’s failure to award future medical expenses, future pain and suffering, loss of enjoyment of life, and loss of consortium was “not supported by the record and is an abuse of the jury’s vast discretion.” Accordingly, the court of appeal reversed “the trial court’s refusal to award additional sums for loss of consortium and future damages.” It then proceeded |fito render judgment in favor of plaintiffs in the amount of $100,000 for future medical expenses, $50,000 for future pain and suffering, and $20,000 for loss of enjoyment of life. Additionally, the court of appeal rendered judgment in favor of Mrs. Lastrapes in the amount of $10,000 for loss of consortium.

Upon Progressive’s application, we granted certiorari to consider the correctness of these rulings. Lastrapes v. Progressive Security Insurance Company, 10-0051 (La.4/9/10), 31 So.3d 375.

DISCUSSION

Although Progressive presents separate assignments of error concerning the district court’s award of penalties and attorney fees and the court of appeal’s award of additional damages, both issues have their genesis in JNOV rulings. In Joseph v. Broussard Rice Mill, Inc., 00-0628, pp. 4-5 (La.10/30/00), 772 So.2d 94, 99, we explained the principles to be applied in determining whether JNOV was appropriate:

JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. The motion should be denied if there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions. In making this determination, the trial court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. This rigorous standard is based upon the principle that when there is a jury, the jury is the trier of fact.

| fiWith these precepts in mind, we now turn to an examination of the record to determine whether the district court’s rulings granting the JNOV as to penalties and attorney fees and denying it as to additional damages were correct.

Statutory Penalties and Attorney Fees

It is well-settled that a plaintiff seeking penalties and attorney fees must prove the insurer knowingly committed actions which were completely unjustified, without reasonable or probable cause or excuse. Lewis v. State Farm Insurance Company, 41,527 (La.App. 2 Cir. 12/27/06), 946 So.2d 708; Holt v. Aetna Cas. & Sur. Co., 28,450 (La.App.2d Cir.9/3/96), 680 So.2d 117, writs denied, 96-2515, 96-2523 (La.12/6/96), 684 So.2d 937, 938.

The jury, having heard the evidence at trial, declined to make any award to plaintiffs for penalties and attorney fees. Applying the JNOV standard, we find the record supports the conclusion that a reasonable juror could have concluded Progressive’s actions were not completely unjustified or unreasonable.

The crux of plaintiffs’ argument is that Progressive’s actions were unreasonable because it took no action after receiving Dr. Williams’ report recommending surgery. However, Progressive’s adjuster, Ms. Tardo, testified she did not make an unconditional tender to plaintiffs because she questioned whether the surgical recommendation was related to the 2004 accident. She believed reasonable minds could differ on whether the 2004 accident caused Mr. Lastrapes’ neck injury. Ms. Tardo based this conclusion on multiple factors, including Mr. Lastrapes’ failure to notify Dr. Williams of his 2006 accident, and the fact Dr. Williams’ report showed Mr. Lastrapes’ physical examination was normal, with no complaints of neck or back 17pain. In addition, Dr. Williams did not expressly relate the need for surgery to the 2004 accident. Furthermore, Ms. Tar-do believed Mr. Lastrapes’ 2005 MRI did not reveal the injuries diagnosed by Dr. Williams.

In addition, Ms. Tardo testified Mr. Las-trapes’ frequency of treatment increased after the 2006 accident, tending to support her suspicions that his neck injuries may have worsened after the 2006 accident. Notably, because Mr. Lastrapes did not inform his doctors of the second accident, the medical records do not attribute any worsening of his condition to the 2006 accident.

We have held bad faith should not be inferred from an insurer’s failure to make a timely tender when there is a reasonable and legitimate question as to the extent and causation of a claim. Guillory v. Lee, 09-0075 at p. 32 (La.6/26/09), 16 So.3d 1104, 1127. Applying this reasoning, we believe the jury could reasonably conclude Progressive was in good faith when it questioned the extent and causation of Mr. Lastrapes’ ongoing complaints, and questioned whether the need for surgery was causally related to the 2004 accident. In addition, the jury could reasonably conclude that Progressive was justified in relying on this good-faith belief to defend the claim and refuse to make a tender within the statutory time limits.

In sum, having reviewed the record as a whole, we are unable to say the facts and inferences point so strongly and overwhelmingly in favor of plaintiffs that reasonable persons could not arrive at a contrary verdict. Accordingly, the district court erred in granting JNOV in favor of the plaintiffs on the issue of penalties and attorney fees, and the court of appeal erred in affirming that judgment.

\ ¡Additional Damages

The jury declined to make any award for future medical expenses, future pain and suffering, loss of enjoyment of life, and loss of consortium. Plaintiffs moved for JNOV on this issue. The district court denied the motion, but the court of appeal reversed and awarded damages for future medical expenses, future pain and suffering, loss of enjoyment of life, and loss of consortium.

In making this determination, the court of appeal implied it was inconsistent for the jury to determine Mr. Lastrapes suffered injuries as a result of the 2004 accident, but not accept his claims that his neck problems were caused by the accident and that he would undergo the cervical decompression and fusion in the future. However, in Wainwright v. Fontenot, 00-0492 (La.10/17/00), 774 So.2d 70, we held an award in one category of damages does not automatically require an award in others.

Plaintiffs’ argument with regard to future damages hinges on the assertion that Mr. Lastrapes’ 2004 accident resulted in a cervical disc herniation. They claimed this injury would result in Mr. Lastrapes’ future pain and suffering as well as necessitate future surgery.

However, Progressive countered plaintiffs’ assertions with evidence suggesting Mr. Lastrapes’ 2004 accident did not result in a cervical disc herniation. In particular, Progressive relied on the February 18, 2005 MRI report of Dr. Lapidus which did not show any disc injury. Progressive also produced evidence revealing Mr. Las-trapes was not candid with his doctors in disclosing his 2006 accident.

Considering the conflicting evidence in the record, we cannot say the facts and inferences point so strongly and overwhelmingly in favor of plaintiffs that reasonable jurors could not arrive at a contrary verdict. The district court properly denied ] plaintiffs’ motion for JNOV with regard to future pain and suffering and future medical expenses, and the court of appeal erred in reversing this ruling.

Similarly, we believe the jury was reasonable in rejecting plaintiffs’ claims for loss of enjoyment of life. In finding the jury abused its discretion in denying damages on this claim, the court of appeal cited Mr. Lastrapes’ testimony that he has suffered a loss of his ability to travel, to maintain his yard, and to do many of the other activities he enjoyed most. However, the record contains evidence that many of Mr. Lastrapes’ activities were limited by his medical problems and disabilities which pre-dated the 2004 accident. In addition, during the time between the 2004 accident and the 2006 accident, Mr. Lastrapes and his wife took several vacations (including vacations to Las Vegas, San Francisco, Canada, New York and New England) and he testified to doing work around his camp and home. In light of this evidence, we cannot say the facts and inferences point so strongly and overwhelmingly in favor of plaintiffs that reasonable jurors could not arrive at a contrary verdict. The district court properly denied plaintiffs’ motion for JNOV with regard to plaintiffs’ claims for loss of enjoyment of life, and the court of appeal erred in reversing this ruling.

Finally, the court of appeal found the jury erred in failing to award Mr. Las-trapes’ wife damages for loss of consortium. The court of appeal relied on testimony from Mr. Lastrapes’ wife indicating the couple was “no longer intimate and that most of their activities had been curtailed by his chronic pain.”

As discussed above, there was evidence in the record supporting the conclusion that to the extent Mr. Lastrapes’ activities were limited, it was due to his pre-accident disabilities. Moreover, Mr. Lastrapes and his wife continued to travel after the 2004 accident. To the extent Mr. Lastrapes’ wife testified the couple’s relationship and sex life was affected, the jury could have concluded any changes in their relationship Imwere not a result of the accident. See VaSalle v. Wal-Mart Stores, Inc., 01-0462 (La.11/28/01), 801 So.2d 331 (holding jury properly declined to award damages for loss of consortium despite testimony from a husband that his wife “was hard to live with” and that the couple was “grouchier with each other” and “their sex life was not as active as it once was”). In light of this evidence, we cannot say the facts and inferences point so strongly and overwhelmingly in favor of plaintiffs that reasonable jurors could not arrive at a contrary verdict. The district court properly denied plaintiffs’ motion for JNOV with regard to plaintiffs’ claims for loss of consortium, and the court of appeal erred in reversing this ruling.

DECREE

For the reasons assigned, the judgment of the court of appeal affirming the district court’s judgment ‘granting judgment notwithstanding the verdict and awarding penalties and attorney fees is reversed. In addition, the judgment of the court of appeal reversing the district court’s denial of judgment notwithstanding the verdict and awarding additional damages for future medical expenses, future pain and suffering, loss of enjoyment of life, and loss of consortium is reversed. In all other respects, the judgment of the court of appeal is affirmed.

REVERSED IN PART, AFFIRMED IN PART.

       Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.

      . Dr. Williams recommended plaintiff undergo a three level cervical decompression and fusion and discography of the lower lumbar spine.

      . Previously, plaintiffs settled with Ms. Vizi-nat’s insurer for the policy limits.