author: JAY, J.

text:
    Billy Joe FOWLER, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-3223
    District Court of Appeal of Florida, First District.
    Opinion filed September 13, 2017.
    Andy Thomas, Public Defender, Lori A. Willner, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General; Daniel R. Krumbholz and Thomas H. Duffy, Assistant Attorneys General, Tallahassee, for Appellee.
   JAY, J.

The issue presented is whether the trial court erred when, during a violation of probation hearing, it held as a matter of law that by its imposing a suspended sentence in conjunction with modifying Appellant’s probationary period, it lacked the discretion to also withhold adjudication of guilt. For the following reasons, we disagree and reverse.

On August 14, 2015, Billy .Joe Fowler, Jr. (“Appellant”), entered a plea to child neglect without causing great bodily harm and was placed on probation for three years. By corrected order entered on September 18, 2015, the trial court directed that adjudication be withheld..

In January 2016, Appellant was charged with violating his probation. The trial court again ordered that adjudication be withheld when, it modified Appellant’s ■ probation as.a:consequence of the violation.

In March 2016, Appellant violated his probation yet again. At the violation of probation hearing, he entered into a negotiated plea agreement whereby his probation was extended an additional thirty months and included the following conditions: electronic monitoring, for six months, mandatory attendance at weekly Alcoholics Anonymous meetings, anger management classes, and “24 months DOC suspended].” At the hearing, Appellant asked the trial court for a third time to withhold adjudication of guilt. The judge ruled it could not impose a suspended sentence without adjudicating Appellant guilty, explaining:. “I’ve sentenced him to prison and just suspended] it. So I can’t do that. It’s not lawful.” .

Appellant pressed his case for a withhold of adjudication at the subsequent plea colloquy hearing, where his counsel pointed out that the court was not imposing a sentence, but rather, was placing Appellant on probation and suspending the sentence. Counsel asserted, “That is completely different than imposing a sentence.” The trial court announced it had made its ruling, and had “made it clear” that it “ipust adjudicate [Appellant] if the Court is to impose a suspended sentence.” It determined that it “lack[ed] discretion to continue to withhold” while imposing a suspended sentence.

On appeal, Appellant challenges the notion that a suspended sentence is the equivalent of an actual prison sentence for purposes of adjudication of guilt. As Appellant rightly acknowledges, there are no cases directly on point, but analogous case law and relevant statutory directives guide us to conclude that the trial court did have the discretion to withhold adjudication even while imposing a suspended sentence under the present circumstances.

We begin our analysis with the general proposition that a probationary period “is not a ‘sentence.’ ” State v. Summers, 642 So.2d 742, 744 (Fla. 1994) (citing Villery v. Fla. Parole & Prob. Comm’n, 396 So.2d 1107 (Fla. 1980))); see also Landeverde v. State, 769 So.2d 457, 462 (Fla. 4th DCA 2000), Furthermore, under the terms of section 948.01(2), Florida Statutes (2014), the trial court, “in its discretion, may either adjudge the defendant to be guilty or stay and withhold the adjudication of guilt. In either case, the court shall stay and withhold the imposition of sentence upon the defendant and shall place a felony defendant upon probation.” The trial court also has the option provided in Section 948.012, Florida Statutes (2014), to impose a split sentence of probation or community control and imprisonment. As authorized by the legislature in section 948.012:

(2) The court may also impose a split sentence whereby the defendant is sentenced to a term of probation which may be followed by a period of incarceration ... as follows:
(a) If the offender meets the terms and conditions of probation or community control, any term of incarceration may be modified by court order to eliminate the term of incarceration.

See also State v. Powell, 703 So.2d 444 (Fla. 1997) (holding that “a trial court may impose a true split sentence in which the entire period of incarceration is suspended”).

We read the language of the foregoing statutes as granting the trial court broad discretion in fashioning a term of probation when “the ends of justice and the welfare of society do not require that the defendant presently suffer the penalty ‘imposed by law.” § 948.01(2), Fla. Stat. (2014). Section 948.012(2)(a) authorizes the trial court to modify any term of incarceration “to eliminate” it altogether should “the offender meet[ ] the terms and conditions of probation ..., ” Logically, if the serving of a suspended sentence hinges on whether or not the defendant first successfully serves his or her term of probation, it is merely inchoate. That is to say, under those circumstances, no sentence has yet to be imposed. Of course, under section 948.012(2)(a), the trial court still retains the discretion to impose sentence. But the statutory authority makes clear that only upon imposition of sentence or upon the revocation of the defendant’s probation does the trial court lose its discretion to withhold adjudication of . guilt. See § 948.06(2)(b) & (e), Fla. Stat. (2014); State v. Countryman, 132 So.3d 922 (Fla. 1st DCA 2014); State v. Curilly, 126 So.3d 1244 (Fla. 1st DCA 2013); Tucker v, State, 78 So.3d 36 (Fla. 3d DCA 2012). In Appellant’s case, the trial court did not revoke his probation.

We hold, therefore, that the trial court erred in believing it had no choice but to adjudicate Appellant;guilty because it had imposed a conditional suspended sentence. Certainly, the trial court had the discretion to adjudicate Appellant guilty, .as section 948.01(2) permits, but it was not required to do so under the particular circumstances of this - case. Accordingly, we reverse and remand for further proceedings consistent with this opinion. On remand, the trial court may reconsider the issue of adjudication of guilt, but its choice to do- so is governed by its discretion and is not mandated. ’ ■

REVERSED and REMANDED.

WETHERELL and BILBREY, JJ„ CONCUR.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Keith D. BURKS, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D16-2901
    District Court of Appeal of Florida, First District.
    Opinion filed September 13, 2017.
    Keith D. Burks, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

. DENIED. See Bell v. State, 787 So.2d 120 (Fla. 2d DCA 2001) (denying petition alleging ineffective assistance of appellate counsel without prejudice to appellant’s right to file a- rule 3.800(a) motion challenging his sentence in the trial court).

RAY, MAKAR, and WINSOR, JJ., CONCUR.


author: PER CURIAM

text:
    Nicole Cheri PARKER, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-1855
    District Court of Appeal of Florida, First District.
    Opinion filed September 13, 2017

      Bert Moore, The Moore Law Office, Crestview, for Appellant.
    Pamela Jo Bondi, Attorney General, and Tayo Popoola, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM

Nicole Cheri Parker appeals, on multiple grounds, her conviction for aggravated battery with great bodily harm and with a weapon. Of her claims, we write to address only the assertion that the trial court committed reversible error in failing to conduct an adequate Richardson hearing. See Richardson v. State, 246 So.2d 771 (Fla. 1971). On this point, we agree with Nicole Parker, and reverse and remand for a new trial.

Nicole Parker’s conviction is related to an incident that took place at the residence of Candice Day. Nicole Parker was convicted of cutting the throat of Wade Parker (her estranged husband) during an altercation between Wade Parkér and another acquaintance, Donald Jesperson. Testimony from eyewitnesses established that while Wade Parker was in a fighting hold with Jesperson, Nicole Parker jumped on Wade Parker’s back. Subsequently, Wade Parker’s throat was cut with a knife. Conflicting testimony was presented at trial as to who committed the offense.

Candice Day testified at trial, that during the fight, Nicole Parker came running into her bedroom, grabbed a knife, and ran out. She also testified that Nicole Parker came back, in the room shortly after and said, “Candice, I swear to God I didn’t cut [Wade].” Day’s trial testimony was significantly different from the statement she gave to police immediately following the incident. During cross-examination, defense counsel established that Day’s sworn statement to the police did not include any mention of Nicole Parker grabbing a knife from the bedroom, nor did it include the statement upon re-entering the bedroom. Day confirmed that her prior sworn statement did .not allege these facts. She emphasized- the State became aware of the additional facts during a pre-trial meeting, She testified:

I know what it says. And I talked to Ms. Torres (prosecutor) about it. I was under the impression that I was going to be questioned by investigators, like they did everybody else. And at that point I was scared because she had not been found. And it’s better for me to tell my statement than write it.

The State did not notify defense counsel prior to trial of the expected changes to Day’s testimony.

Following cross-examination of Day, defense counsel timely objected and argued the State committed a discovery violation by not advising of the change in Day’s testimony'prior to trial. In response, the trial court focused on whether Day had recanted anything in her original statement or had merely added to it at trial. Finding Day merely supplemented her earlier testimony, the trial court denied defense counsel’s objection without further explanation or inquiry.

Richardson ■ Hearing

Once on notice of a potential discovery violation, the trial court initiates the Richardson inquiry as follows: 1) the court must determine whether a discovery rule has been violated; and 2) if the court finds a violation, it must assess whether the violation was inadvertent' or willful, trivial or substantial, and whether it has prejudiced the opposing party’s ability to prepare for trial. Johnson v. State, 25 So.3d 662, 665 (Fla. 1st DCA 2010); Richardson, 246 So.2d at 775.

In the present case, defense counsel placed the trial court on notice that a possible discovery violation had occurred, which triggered a Richardson inquiry. Following a brief discussion, the trial court denied defense counsel’s objection to Day’s testimony. The trial court did not address step two of the Richardson analysis; thus, presumptively finding that the State did not commit a discovery violation. “Where a trial court rules that no discovery violation occurred, the reviewing court must first determine whether the trial court abused its discretion.” Pender v. State, 700 So.2d 664, 667 (Fla. 1997).

In State v. Evans, the Florida Supreme Court held that, the State’s failure to inform the defendant of an anticipated change in a witness’s testimony from initial statement to testimony at trial was tantamount to failing to disclose a witness, and thus, the State committed a discovery violation. 770 So.2d at 1179. In Evans, a witness told police she essentially knew nothing about an alleged shooting. Id. at 1176. However, at trial, the witness testified she had a discussion with the defendant the' night before the shooting, in which the defendant laid out his plan to shoot the victim. Id. The witness also testified that she told police about the conversation approximately one month before trial. Id. The State had. knowledge of the changed testimony, but did not disclose the change to the defense. Id. The court determined this failure to disclose resulted in a discovery violation. Id.

’ The fáctuál scenario in the present case is nearly identical to that of Evans. The State concedes that it was aware Day’s testimony at trial’ was going to be different from her previous statement to police and that the defense was not informed of the change. Accordingly, we find the State committed a discovery violation by failing to provide Nicole Parker with the substance of the changed testimony prior to trial; and the trial court abused its discretion in finding otherwise. Because we determine that a discovery violation occurred, we also must conclude that the scope of the Richardson inquiry was inadequate, as the trial court did not" inquire into the factors of' whether the violation was inadvertent or willful, trivial or substantial, and if prejudicial to the opposing party’s trial preparation.

Hamless Error

A Richardson violation is subject to harmless error analysis, C.D.B. v. State, 662 So.2d 738, 741 (Fla. 1st DCA 1995) (quoting. State, v. Schopp, 653 So.2d 1016, 1020 (Fla.1995)); Pender v. State, 700 So.2d 664, 666 (Fla. 1997).

In determining whether a Richardson violation is harmless, the appellate court must consider whether there is a reasonable possibility that the discovery violation procedurally prejudiced the defense. As used in this context, the defense is procedurally prejudiced if there is a reasonable possibility that the defendant’s trial preparation or strategy would have been materially different had the violation not occurred... In other words, only if the appellate court can say beyond a reasonable doubt that the defense was not procedurally prejudiced by the' discovery violation can the error be considered harmless.

Schopp, 653 So.2d at 1021. In Scipio v. State, 928 So.2d 1138, 1148 (Fla. 2006), the Florida Supreme Court also said of its decision in Schopp, “[t]he decision further noted that ‘the vast majority of cases’ will not have a record sufficient to support a finding of harmless error and that there is a ‘high probability5 that any given error will be found harmful.”

Applying the Schopp standard to the present case, we cannot conclude beyond a reasonable doubt that, “neither the discovery violation nor the trial court’s failure to inquire into whether corrective sanctions were warranted materially hindered the defendant’s trial preparation or strategy.” Schopp, 653 So.2d at 1020; Kiser v. State, 921 So.2d 28, 30 (Fla. 1st DCA 2006). In this case, there was no testimony, other •than Day’s, that specifically addressed the origin of the knife used- to cut Wade Parker. Though two witnesses linked Nicole Parker with the knife after she jumped on Wade Parker’s back, no witness other than Candice Day placed the knife in her hand before the incident. Jesperson testified he saw. a knife in Nicole Parker’s hand after she jumped on Wade Parker’s back and cut his throat. Similarly, Troy Day testified that the knife was dropped after Nicole Parker made contact with Wade Parker. However, with the exception of Candice Day, no witness testified that Nicole Parker had a knife in her hand before she made contact with Wade Parker. And until Candice Day testified at trial, defense counsel was not aware that a witness could place Nicole Parker with a knife immediately before the incident. Additionally, in contrast to her sworn statement to the policy, Candice Day testified at trial that Nicole Parker said “Candice, I swear to God I didn’t cut [Wade].”, According to Candice Day, that statement was made, after. Wade Parker was cut, but. before anyone had accused Nicole Parker of committing the. act. It cannot be said that there .was «.no reasonable possibility that Nicole- Parker’s, trial preparation would have been different if the discovery violation had not: occurred. The failure to hold an adequate Richardson hearing, under these facts, does not,,constitute harmless error. : ,, ■■

Accordingly, based on the above, we reverse and remand for a new trial. We affirm the two remaining issues raised without further comment, as we find that the trial court did not commit fundamental error in admitting the video of Nicole Parker’s custodial interrogation, nor did it err in denying her motion for judgment of acquittal.-

REVERSED and .REMANDED for la new trial consistent with this opinion.

ROWE, RAY, and M.K. THOMAS, JJ., CONCUR.


author: BILBREY, J.

text:
    Karma THORNTON and Connie Thornton, Appellants, v. AMERICAN FAMILY LIFE ASSURANCE COMPANY OF COLUMBUS, Appellee.
    CASE NO. 1D16-1472
    District Court of Appeal of Florida, First District.
    Opinion filed September 13, 2017.
    Charles F. Beall, Jr. of Moore, Hill & Westmoreland, P.A., Pensacola, and Wood-burn S. Wesley, Jr. of Woodburn S. Wesley, Jr., & Associates, Fort Walton Beach, for Appellants.
    Hinda Klein and Brian Lee Ellison of Conroy Simberg, Hollywood, for. Appellee.
   BILBREY, J.

Karma Thornton and her mother, Connie Thornton, appeal the final judgment in favor of American Family Life Assurance Company of Columbus (AFLAC). The Thorntons assert error in the trial court’s finding that Karma was not a covered dependent under the Specified Health Event Insurance Policy purchased by Connie. We reverse the trial court’s judgment based on the plain language of the policy and, alternatively, on the requirement that any ambiguity in the policy definition of “dependent children” must be resolved against AFLAC, the drafter, and in favor of coverage.

Connie Thornton purchased the AFLAC policy for “Two-parent Family” coverage, effective January 1, 2008. According to the policy, “Two-parent Family” coverage provided coverage to the insured (Connie), her spouse, and Connie’s dependent children. The policy defined “dependent children” in pertinent part:

E. DEPENDENT CHILDREN: your natural children, ... who are unmarried, who are under age 25, and who qualify as legal dependents for tax exemption purposes under the United States Internal Revenue Service Tax Code.

When her mother purchased the policy, Karma Thornton was aged 22, unmarried, and financially dependent upon and living with her parents. The covered “primary specified health events” were also defined in the policy.

On September 11, 2008, at age 23, Karma Thornton suffered severe injuries when she fell from a motorcycle travelling at a high rate of speed. Based on conflicting evidence presented at trial, including witness testimony, medical records, and depositions, the trial court determined that her injuries constituted covered specified health events—specifically “coma” and “major third-degree burns”—as defined in the policy. However, the trial court ruled that Karma did not qualify as a “dependent child” under the policy, concluded that she was not covered, and ruled that no benefits were payable by AFLAC. The Thorntons appeal, and our standard of review of the trial court’s interpretation of the AFLAC policy is de novo. Allstate Fire & Cas. Ins. v. Stand-Up MRI of Tallahassee, P.A., 188 So.3d 1 (Fla. 1st DCA 2015).

As explained by the Florida Supreme Court in Fayad v. Clarendon National Insurance Co., 899 So.2d 1082, 1086 (Fla. 2005), “[w]e begin with the guiding principle that insurance contracts are construed in accordance with ‘the plain language of the policfy] as bargained for by the parties.’”.(Citations omitted). The policy here plainly and expressly requires that the covered dependent be unmarried and “under age 25.” These specific qualifications are followed by the general reference to “legal dependents for' tax exemption purposes under the’United States Internal Revenue Service Tax Code,” without. a quotation of particular language or citation to a particular section of federal statutes. At trial, counsel for the parties agreed that the phrase “qualify as legal dependents for tax exemption purposes under the United States Internal Revenue Service Tax Code” was a reference to Internal Revenue Code (I.R.C.) section 152.

AFLAC’s position at trial and on appeal is that the policy’s definition, including the phrase “under age 25,” is further limited by the policy’s general reference to the “Tax Code,” which cuts off eligibility fpr “dependents for.tax exemption purposes” at age 19, unless the person is a student under age 24 or is disabled. At the. time she fell off the motorcycle, Karma Thornton was not a student, was not disabled, and was over age 19. However, it is well-settled that “[s]pecific provisions of a contract control over general conditions” and “[t]his is equally true with regard to insurance contracts.” State Farm Fla. Ins. Co. v. Phillips, 134 So.3d 505, 508 (Fla. 5th DCA 2014). In addition, “courts should read each policy as a whole, endeavoring to give every provision its full meaning and operative effect.” Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla. 2000). An insurance contract “will not be interpreted in such a way as -to render a provision meaningless when there is a reasonable interpretation that does not do so.” Universal Prop. & Cas. Ins. Co. v. Johnson, 114 So.3d 1031, 1036 (Fla. 1st DCA 2013).

We read the specific policy provision “under age 25” to expand the class of persons who would otherwise qualify as legal dependents under the LR.C, Under the plain language of the policy, and giving full meaning and operative effect to both the age limit in .the policy and the policy’s reference to the Tax Code addressing “legal dependents for. tax exemption purposes,” the specific age limit stated in the policy prevails over any contrary, more restrictive age limit in the generally referenced Tax Code. The policy’s reference to the Tax Code retains the I.R.C.’s meaning and operative effect for the relationship, residency, and economic details which do not conflict with the policy’s age provision.

To curtail AFLAC’s specific age provision' in its definition of “dependent children” by applying a more restrictive and complex age provision within the I.R.C., which is only generally referenced in the policy, “amounts to a sleight-of-hand withdrawal of. coverage following explicit provisions allowing coverage.” Mathews v. Ranger Ins. Co., 281 So.2d 345, 349 (Fla. 1973). A plain reading of the policy leads the average purchaser to believe, that unmarried, financially dependent offspring under the age of 25 are covered. We find that AFLAC is bound by its own specific statement of the policy age limit, “under age 25,” and that the general reference to the Tax Code for other factors of dependence does not replace the policy’s specific age requirement. See Washington Nat’l Ins. Corp. v. Ruderman, 117 So.3d 943, 951 (Fla. 2013) (explaining insurance company has duty to limit liability under policy “clearly and unambiguously”). “To hold otherwise would encourage the proliferation of insurance policies containing gossamer clauses that generate revenue by implying coverage while, simultaneously, avoiding the underlying liability.” State Farm Mut. Auto. Ins. Co. v. Mallard, 548 So.2d 733, 735-36 (Fla. 3d DCA 1989).

Alternatively, to the extent the age requirement in the policy definition for “dependent children” was not sufficiently clear, due to the general reference to the Tax Code, Florida law requires resolution of any ambiguity in favor of the insured. “[I]f the salient policy language is susceptible to two reasonable interpretations, one providing coverage and the other excluding coverage, the policy is considered ambiguous.” Fayad, 899 So.2d at 1086. Ambiguities in insurance contracts “are construed against the insurer and in favor of coverage.” Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So.2d 528, 532 (Fla. 2005); see also Ruderman, 117 So.3d at 950 (“[A]ny ambiguity which remains after reading each policy as a whole and endeavoring to give every provision its full meaning and operative effect'must be liberally construed in favor of coverage and strictly against the insurer.”). Accordingly, any conflict between the age limit specified in the policy and the age limit for a “qualifying child” in the “United States Internal Revenue Service Tax Code” is to be resolved against AFLAC as the drafter of its policy language and in favor of the Thorntons. It is long-established Florida law that “so long as these contracts are drawn in such a manner that it requires the proverbial Philadelphia lawyer to comprehend the terms embodied in it, the courts should and will construe them liberally in favor of the insured and strictly against the insurer to protect the buying public who rely upon the companies and the agencies in such transactions.” Hartnett v. So. Ins. Co., 181 So.2d 524, 528 (Fla. 1965).

The trial court’s determination that Karma Thornton did not qualify for coverage as a “dependent child” under the Specified Health Event policy due to the age requirement therein is REVERSED, and this cause is REMANDED for entry of judgment in favor of the Appellants.

WOLF and RAY, JJ., CONCUR.

      . AFLAC claims error in the trial court’s findings that Karma Thornton’s injuries fell within the primary specified health events provision of the policy and urges a "tipsy coachman” affirmance. Although AFLAC may be correct regarding whether Karma was in a coma long enough to qualify for coverage, and although the evidence was in conflict, our review of the record shows that competent substantial evidence supported the trial court’s finding that Karma suffered major third-degree bums as defined by the policy. See Jeffries v. Jeffries, 133 So.3d 1243 (Fla. 1st DCA 2014); Florida Mining & Materials v. Mobley, 649 So.2d 934, 934 (Fla. 1st DCA 1995) (”[T]he case may not be retried on appeal, and a ruling which is supported by competent substantial evidence will be upheld even though there may be some persuasive evidence to the contrary.”). Whether Karma suffered two primary specified health events or only one has no impact on coverage.

      . 26 U.S.C. § 152 (2007). At the time the policy was issued, I.R.C. § 152(a)(1) defined "dependent” to be a "qualifying child.” "Qualifying child” was in turn defined in section 152(c)(1) as:
      (c) Qualifying child.—For purposes of this section —

        (1) In general.—The term "qualifying child” means, with respect to any taxpayer for any taxable year, an individual —:
      (A) who bears a relationship to the taxpayer described in paragraph (2),
      (B) who has the same principal place of abode as the taxpayer for more than one-half of such taxable year,
      (C) who meets the age requirements of paragraph (3), and
      (D) who has not provided over one-half of such individual’s own support for the calendar year in which the taxable year of the taxpayer begins.
      26 U.S.C. § 152(c)(4) (2007) (emphasis in original). Finally, the "age requirements of paragraph (3),” referred to in § 152(c)(1)(C), provide:
      (3) Age requirements.—
      (A) In general.—For purposes of paragraph (1)(C), an individual meets the requirements of this paragraph if such individual is younger than the taxpayer claiming such individual. as. a qualifying child and— .
      (i) has not attained the age of 19 as of the close of the calendar year in which the taxable year of the taxpayer, begins, or
      (ii) is a student who has not attained the age of 24 as of the close of such calendar year.’,’
      I.R.C. § 152(c)(3)(A) (2007) (emphasis in original).


text:
    Christopher MCINTOSH, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-1133
    District Court of Appeal of Florida, First District.
    Opinion filed September 15, 2017
    Stephen N. Bernstein, Gainesville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Thompson v. State, 995 So.2d 532 (Fla. 2d DCA 2008).

BILBREY, WINSOR, and M.K. THOMAS, JJ., CONCUR.


text:
    Leroy A. PENNINGTON Jr., Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-2571
    District Court of Appeal of Florida, First District.
    Opinion filed September 20, 2017
    Kevin M. Cobbin, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the March 9, 2017, judgment and sentence in Duval County Circuit Court case number 16-2016-CF-008214-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

MAKAR, OSTERHAUS, and WINOKUR, JJ., CONCUR.


text:
    Bevan J. WADE, Appellant, v. Jonathan Paul WADE, Appellee.
    CASE NO. 1D17-0341
    District Court of Appeal of Florida, First District.
    Opinion filed September 20, 2017
    Bevan J. Wade, pro se, Appellant.
    Jonathan Paul Wade, pro se, Appellee.
   PER CURIAM.

In this appeal from a final judgment of dissolution, we affirm without comment as to all issues except the requirement that the former husband maintain life insurance to secure his support obligations. The trial court orally pronounced this requirement, but it was not included in the written judgment as the law requires. See Schmidt v. Schmidt, 151 So.3d 27, 28 (Fla. 1st DCA 2014) (holding written judgment must conform to oral pronouncement). Therefore, we reverse and remand for the trial court to modify the final judgment to include the orally-pronounced life insurance requirement.

AFFIRMED in part, REVERSED in part, and REMANDED with instructions.

RAY, BILBREY, and KELSEY, JJ., CONCUR.


author: PER CURIAM. WINSOR, J.,

text:
    Michael and Sara WILLENS, Appellants, v. Joel WILLENS and Linda Willens, Appellees.
    CASE NO. 1D16-4704
    District Court of Appeal of Florida, First District.
    Opinion filed September 20, 2017.
    Kansas R. Gooden of Boyd & Jenerette, PA, Jacksonville, for Appellants.
    Harold S. Lippes of Lippes & Bryan, P.A., Ponte Vedra Beach, for Appellees.
   PER CURIAM.

We find no merit in the substantive issues raised by Appellants and affirm the final judgment without further discussion. However, because the trial court inadvertently entered duplicate judgments, we remand for the court to strike the later-entered judgment. See Diecidue v. Lewis, 42 Fla. L. Weekly D376, 223 So.3d 1015, 2017 WL 535447 (Fla. 2d DCA Feb. 10, 2017); Sound Builders of St. Petersburg, Inc. v. Hanlon, 439 So.2d 276 (Fla. 2d DCA 1983).

AFFIRMED and REMANDED with directions.

LEWIS and WETHERELL, JJ., CONCUR; WINSOR, J„ CONCURRING WITH OPINION.

WINSOR, J.,

concurring.

Michael Willens and his wife Sara own a home on Canopy Oaks Drive in Jacksonville, and they invited Michael’s parents to live there rent free. The parents moved in, the relationship deteriorated, and everyone ended up in litigation. After a two-day bench trial, the trial court entered a final judgment declaring that the parents “are entitled to live in the home for as long as they like.” This is the Willenses’ appeal.

The facts that led to the final judgment, many of which were disputed, are complicated and peculiar. The short version is that the Willenses recognized the parents’ financial needs and sent a letter saying “[y]ou may move into our home on Canopy Oaks Drive and live as long as you like rent free.” (emphasis in original). The letter expressed hope that the move would improve the parties’ relationship and noted that “the whole purpose is to make life easier so that [the parents] can enjoy and build a life here with [the Willenses].”

There were other emails and letters, and the parties considered other arrangements, but the parents ultimately moved from Maine and into the Canopy Oaks Drive home. Once there, they undertook some $160,000 worth of improvements, to which the Willenses objected at some point. This and other factors contributed to the relationship’s continued deterioration, until finally the Willenses asked the parents to move out. The parents refused and changed the locks, and the Willneses sued to evict. The parents counterclaimed, claiming breach-of-contract and promissory estoppel, among other things. .

After trial, the court entered its final judgment. The court found the parents’ testimony credible, found portions of the Willenses’ testimony “entirely unreasonable, inconsistent -with the documents, and not credible,” and found the parents had “proved their case ... by substantially more' than a preponderance of the evidence.” It concluded the parties had a written agreement with “clear and unequivocal” terms and that the parents were éntitled to specific performance. It therefore directed the parties “to perform the agreement,”. meaning the Willenses were to let the parents live in the house indefinitely.

Separate from its ruling on-the existencé of an agreement, the court concluded the parents had also proven their ■ claim for promissory estoppel, finding the parents had “significantly relied on [the Willenses’] promises to their detriment.” The court awarded no separate relief on this point, explaining that the parents “are entitled to the same relief awarded under their claim for specific performance.”

On appeal, the Willenses challenge the court’s conclusions as to the agreement. They argue that there was no agreement and that if there were, the parents violated it. But they presented no argument challenging the trial court’s promissory estop-pel claims, at least not in their initial brief. When a decision is based on more than one •independent ground and the initial brief challenges only one, we must affirm. See State v. J.V., 184 So.3d 662, 662 (Fla. 1st DCA 2016) (“As the order, on appeal had two grounds ..., and as the State’s initial brief only challenges the first ground -..., we are compelled to affirm since reversal can only be premised on arguments made in the initial brief.”); see also Land v. Fla. Dep’t of Corr., 181 So.3d 1252, 1253 (Fla. 1st DCA 2015) (‘We affirm because appellants failed to raise their arguments in their initial brief .... ”). Even if the trial court was incorrect in finding an agreement, the court’s, independent conclusion on promissory estoppel afforded the same relief, and that conclusion stands unchallenged. We therefore must affirm the judgment.

       The original judgment was filed with the clerk on September 8, 2016, at 11:03 a.m. and it was recorded in the official records (book 17701, pages 2137-47) on the same date. The duplicate judgment was filed with the clerk on September 8 at 2:23 p.m., but it was not recorded in the official records (book 17705, pages 535-45) until September 12.

       The parents’ last name is also Willens, so to avoid confusion, this opinion will refer to Michael and Sara Willens as the "Willenses” and the parents as the "parents.”


text:
    DIRECTV, INC., n/k/a DirecTV, LLC, and EchoStar Satellite, L.L.C., n/k/a Dish Network, L.L.C., Appellants, v. STATE of Florida, Department of Revenue, Marcus and Patricia Ogborn, on Behalf of themselves and others Similarly Situated, Jim Zingale, Acting in his official Capacity as the Director of the Florida, Department of Revenue, and Florida Cable Telecommunications Association, Appellees.
    CASE NOS. 1D13-5444 & 1D14-0292
    District Court of Appeal of Florida, First District.
    Opinion filed September 20, 2017
    Katherine E. Giddings and Kristen M. Fiore of Akerman LLP, Tallahassee; Peter O. Larsen, Timothy J. McDermott, and Aleksas A. Barauskas of Akerman LLP, Jacksonville; E. Joshua,Rosenkranz and Jeremy N. Kudon of Orrick, Herrington & Sutcliffe LLC, New York, N.Y., pro hac vice; and Eric A. Shumsky of Orrick, Her-rington & Sutcliffe LLC, Washington, D.C., pro hac vice, for Appellants.
    Christine Davis Graves of Carlton Fields Jorden Burt, P.A., Tallahassee; John A. Hinman of Hinman & Carmichael, .San Francisco, CA, pro hac vice, for Amicus Curiae National Association of Wine Retailers.
    Joseph C. Mellichamp, III, and J. Clifton Cox, Assistant Attorneys General, Tallahassee, for Appellee State of Florida.
    Amelia T. Rudolph, Eric S. Tresh, and Zachary T. Atkins of Sutherland Asbill & Brennan LLP, Atlanta, GA, pro hac vice; David Eonuch, Tallahassee, for Appellee Florida Cable Telecommunications Association. '
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

We originally reversed the trial court’s order granting summary judgment in favor of the appellee, finding that the sales tax portion of the Communications Services Tax Simplification Law violated the Commerce Clause in Directv, Inc. v. Florida Department of Revenue, 218 So. 3d 895 (Fla. 1st DCA 2015) (Directv I). Thereafter, the Florida Supreme Court reversed our opinion and found that section 202.12(1), Florida Statutes, did not violate the Commerce Clause in Florida Department of Revenue v. DIRECTV, Inc., 215 So.3d 46 (Fla. 2017) (Directv II).

Applying Directv II, we find that the trial court did not err in granting summary judgment in favor of appellees and ordering the appellants to pay costs.

AFFIRMED;

ROBERTS, JAY, and M.K. THOMAS, JJ., CONCUR.


author: JOHNSON, Chief Justice JOHNSON, Chief Justice, GENOVESE, Justice,

text:
    Darvel BURGESS v. SEWERAGE & WATER BOARD OF NEW ORLEANS
    No. 2016-C-2267
    Supreme Court of Louisiana.
    06/29/2017

      ROEDEL, PARSONS, KOCH, BLACHE, BALHOFF & MCCOLLIS-TER, Wayne J. Fontana, Shannon Michele Frese, for Applicant-Defendant.
    Michael Benny Miller, LAW OFFICE OF CHRISTOPHER SCHWARTZ, John Jacob Goehring, for Respondent-Plaintiff.
   JOHNSON, Chief Justice

| fin this workers’ compensation case, the claimant, Darvel Burgess, filed a Disputed Claim for Compensation after his employer, Sewerage & Water Board of New Orleans (“S & WB”), refused to pay a $13,110.02 outstanding bill for prescription medications from Injured Workers Pharmacy (“IWP”). The underlying legal issue is whether the injured employee is entitled to his choice of pharmacy, or whether that right belongs to the employer under the Louisiana Workers Compensation Act (“LWCA”). We granted this writ application to resolve a split in our circuit courts of appeal on this issue. After review, we hold the choice of pharmacy in a workers’ compensation case belongs to the employer.

FACTS AND PROCEDURAL HISTORY

Darvel Burgess sustained a work-related injury on October 13, 2008. On September 18, 2012, Mr. Burgess filed a Disputed Claim for Compensation against his employer, S & WB, asserting in part a dispute over unpaid medical bills and entitlement to penalties and attorney fees. The matter was submitted to the Louisiana Office of Workers’ Compensation (“OWC”) solely on briefs and exhibits. The only disputed issues presented to the OWC judge were unpaid bills from IWP and Advanced Neurodiagnostic Center, as well as Mr. Burgess’ entitlement to penalties |2and attorney fees as a result of S & WB’s failure to timely pay these bills.

In his brief submitted to the OWC, Mr. Burgess asserted he is entitled to have all necessary .and related medical treatment and prescriptions paid by his employer pursuant to La. R.S. 23:1203(A). He argued the unpaid bills were related to treatment for his work-related injury, including medications prescribed by his treating physician, and as such were reasonable and necessary. Mr. Burgess further requested an award for penalties and attorney fees. S <& WB argued it is not responsible for the outstanding IWP bill pursuant to La. R.S. 23:1142(B) because it notified all injured workers on October 10, 2011, that' henceforth Corvel Caremark Pharmacy program was the approved provider for prescription services and failure of the injured worker to use the pharmacy card provided’ may result in non-payment of medications. Additionally, S & WB noted IWP was notified on April 12, 2012, that it was-not'an approved pharmacy provider for S & WB’s workers’ compensation claims and bills submitted by IWP would be denied.

On June 18, 2015, the OWC judge issued a judgment ordering S & WB to pay the outstanding $13,110.82 bill from IWP and all outstanding medical expenses owed to Advanced Neurodiagnostic Center “via the fee schedule.” The OWC judge awarded Mr. Burgess a $2,000 penalty and $2,000 in attorney fees due to S & WB’s failure to timely pay these bills. S & WB suspensively appealed the judgment, but only as to the IWP bill.

The court of appeal affirmed in a 2-1 decision. Burgess v. Sewerage & Water Board of New Orleans, 15-0918 (La. App. 4 Cir. 2/3/16), 187 So.3d 49 (“Burgess /.”). In so doing, the Fourth Circuit concluded the choice of pharmacy belongs to the employee, not the employer. 187 So.3d at 57. The court noted La. R.S. 23:1203(A) |srequires the employer to provide the employee with all necessary prescription medication. Id. at 51. The court of appeal referenced an Alabama case, Davis Plumbing, Inc. v. Burns, 967 So.2d 94 (Ala. Civ. App. 2007), which held the choice of pharmacy under a similar Alabama statute belonged to the employee. Id. at 52. In addition, the court analyzed each Louisiana appellate court case on the subject and the differing outcomes. The court of appeal concluded that Louisiana is overwhelmingly a patient’s choice state, observing that twenty-three other states expressly provide for employ-ér choice of treating physician and three limit the employee’s choice to a list provided by the state agency. Id. at 57. In addition, thé court noted the LWCA contains no provision "granting the employer the right to select the pharmacy that the employee must use. To the contrary, the LWCA obligates the employer to pay for the employee’s reasonably necessary prescription medication and contains no exception for situations in which the employer objects to the pharmacy the employee selects. Id. The court also rejected S & WB’s reliance on La. R.S. 23:1142(B) in an attempt to obtain the benefit of the choice of pharmacy, finding prescription medication is not part of “nonemergency diagnostic testing or treatment” under the statute, and further noting the purpose of the statute is to allow the employer to contest unnecessary or unreasonable medical care, not to allow employers to bargain shop. Id. at 57-58. -

Judge Lobrano dissented, finding a determination of whether the employee is entitled to his choice of pharmacy did not end the inquiry of whether payment of the disputed pharmacy expenses is due or in what amount. Id. at 58. (Lobrano, J., dissenting).. She noted IWP is an out-of-state provider, and La. R.S. 23:1203(A) provides in pertinent part, “[mjedical care, services, and treatment may be provided by out-of-state providers or at out-of-state facilities when such care, services, and | ¿treatment are not reasonably available within the state or when it can be provided for comparable costs.” Further, La. R.S. 23:1203(B) limits the employer’s obligation to “reimbursement,. .as determined under the reimbursement schedule.. .pursuant to R.S. 23:1034.2, or the actual charge made for the service, whichever is less.” Id, at 58-59. Judge Lobrano found the record lacked any evidence of whether IWP fit the criteria for a permissible out-of-state provider under La. R.S. 23:1203(A) or any evidence of the reimbursement schedule set forth in La. R.S. 23:1034.2, and the OWC judge erred by failing to consider these issues. Id. at 59. Judge Lobrano opined the case should be remanded to the OWC to determine whether pharmacy expenses are due to IWP as an out-of-state provider, and if so, the amount of expenses due pursuant to the reimbursement schedule. Id.

S & WB sought supervisory review in this court. While the application was pending, this court rendered its opinion in Lafayette Bone & Joint Clinic v. Louisiana United Business SIF, 15-2137 (La. 6/29/16), 194 So.3d 1112, which addressed, but did not decide, the choice of pharmacy issue. In that case, the claimants, who were injured in the course of their émplóyment, were treated by physicians at the Lafayette Bone & Joint Clinic (“LB & J”). During the course of treatment, the physicians prescribed medications which were dispensed directly to claimants by LB & J employees. 194 So.3d at 1115. On June 5, 2008, the workers’ compensation payor, Louisiana United Business SIF (“LUBA”), sent letters to LB & J and its physicians, stating that LUBA would no longer pay for prescription medications directly dispensed by LB & J and directing LB & J physicians to issue future prescriptions to be filled by local retail pharmacies. Despite these notices, LB & J continued to dispense prescription medications directly to claimants throughout 2008 and to submit requests for reimbursement to LUBA. LUBA declined payment, citing its June 5, 2008 notice. | fiLB & J filed a disputed claim with the OWC, seeking to recover the costs of the medications dispensed, along with penalties and attorney fees. Id. After a trial on the merits, the OWC issued judgment in favor of LB & J, but ordered that recovery for medications dispensed after June 5, 2008, was limited by La. R.S. 23:Í142(B) to $750 for each,claimant. The OWC refused to award ■ attorney fees and penalties in light of LUBA’s notice to LB & J. The court of. appeal reversed, awarded attorney fees, and penalties, .and removed the $750 cap. Id. at 1116.

The majority of this court reversed the court of appeal’s modification , of the $750 cap and otherwise affirmed. As a threshold matter, this court noted the split in the circuits on the choice-of-pharmacy issue,including Burgess I, but found, the evidence presented did not raise a tenable employee choice issue because the evidence and testimony did not establish that the injured employees in these cases made an affirmative choice of LB & J as their prescription medication provider. Id. at 1117-18. However, this court further found the choice-of-pharmacy issue was not dis-positive of the $750 cap issue:

Nor would resolution of the choice-of-pharmacy issue be dispositive of the matters before the court. As we have stated, these cases hinge on LSA-R.S. 23:1142(B)’s admonition that a “health care provider may not incur more than a total of seven hundred fifty dollars in nonemergency diagnostic testing or treatment without the mutual consent of the payor and the employee.” In these cases, we conclude hereinafter that the plaintiff/health care providers did not have the consent of the payor, LUBA, even if they had obtained the consent of the injured employees, to dispense prescription medications after June 5, 2008.

Id. at 1118.

This court found LUBA’s authorization for the employees to obtain medical treatment from LB & J physicians did not encompass the dispensing of prescription medications by LB & J. Specifically, this court reasoned:

Even though, prior to June 5, 2008, LUBA may have obligated itself to reimburse the plaintiff/health care providers for prescription medications | ^dispensed to injured employee patients during in-office medical treatment by LB & J physicians, LUBA’s June 5, 2008 letter notified LB & J and its physicians that it would no longer pay for LB & J dispensed prescription medications; therefore, any ongoing consent to, or authorization of, in-office dispensing of prescription medications by LB & J physicians was terminated.

Id. at 1119. This court limited LB & J’s recovery to $750 of medication costs after it was notified that it would not be reimbursed for medications it dispensed. Id.

In light of our decision in Lafayette Bone & Joint, this court granted S & WB’s writ application and remanded the case to the court of appeal for reconsideration:

Writ granted. The case is remanded to the Court of Appeal for re-briefing and reconsideration in accord with this Court’s decision in Lafayette Bone & Joint Clinic v. Louisiana United Business SIF, et al c/w Lafayette Bone and Joint Clinic v. Guy Hopkins Construction Co., Inc., et al., 15-2137 c/w 15-2138 (La. 6/29/16), [194] So.3d [1112].

Burgess v. Sewerage & Water Board of New Orleans, 16-0416 (La. 9/16/16), 206 So.3d 199.

On remand from this court, the court of appeal reaffirmed its original decision. Burgess v. Sewerage & Water Board of New Orleans, 15-0918 (La. App. 4 Cir. 11/23/16), 204 So.3d 1014 (“Burgess II”). In particular, the court of appeal found Lafayette Bone & Joint was factually distinguishable from the instant case and thus inapposite. 204 So.3d at 1016. As it did in Burgess I, the court found in favor of the employee on the choice-of-pharmacy issue. The court noted Lafayette Bone & Joint involved physician-dispensed medication, a factual situation within the scope of La. R.S. 23:1142(B), whereas this case involved an outside pharmacy dispensing medication. As such, the Burgess II court held that the dispensing of prescription medication does not constitute “nonemergency diagnostic testing or treatment” and thus does not trigger the application of La. R.S. 23:1142(B). Id. at 1016-18.

Judge Lobrano again dissented based on reasons similar to those in her original dissent regarding out-of-state providers. Id. at 1018. (Lobrano, J., dissenting). Further, because IWP is an out-of-state provider, she also found the instant case distinguishable from Lafayette Bone & Joint, which addressed the applicability of La. R.S. 23:1142(B) to instances in which an in-state provider of pharmaceuticals incurred expenses without the consent of the employer. Id. at 1019.

S & WB filed a second writ application with this court, which we granted. Burgess v. Sewerage & Water Bd. of New Orleans, 16-2267 (La. 2/24/17), 216 So.3d 55.

DISCUSSION

In this case we are initially called upon to determine whether, under the LWCA, it is the injured employee or the employer who is entitled to choose the pharmacy to furnish prescription medications to the claimant. Our decision is premised on the proper interpretation of parts of the LWCA. Such considerations are questions of law and reviewed by this court under a de novo standard of review. Catahoula Par. Sch. Bd. v. Louisiana Mach. Rentals, LLC, 12-2504 (La. 10/15/13), 124 So.3d 1065, 1071. After our review, we “render judgment on the record, without deference to the legal conclusions of the tribunals below. This court is the ultimate arbiter of the meaning of the laws of this state.” Id.

The employer’s duty under the LWCA to furnish prescription medication is set forth in La. R.S. 23:1203 which provides, in pertinent part:

A. In every case coming under this Chapter, the employer shall furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedical treatment recognized by the laws of this state as legal, and shall utilize such state, federal, public, or private facilities as will provide the injured employee with such necessary services. Medical care, services, and treatment may be provided by out-of-state providers or at out-of-state facilities when such care, services, and treatment are not reasonably available within the state or when it can be provided for comparable costs. (Emphasis added)
B. The obligation of the employer to furnish such care, services, ■ treatment, drugs, and supplies, whether in state or out of state, is limited |sto the reimbursement determined to be the mean of the usual and customary charges for such care, services, treatment, drugs, and supplies, as determined under the reimbursement schedule annually published pursuant to R.S. 23:1034.2 or the actual charge made for the service, whichever is less. Any out-of-state provider is also to be subject to the procedures established under the office of workers’ compensation administration utilization review rules.

While this statute obligates an employer “to furnish all necessary drugs” to the injured employee, it does not directly address who has the right to choose the pharmacy to dispense these drugs. Although this court did not reach the choice-of-pharmacy issue in Lafayette Bone & Joint, we did recognize “there is no explicit workers’ compensation law directing that one party has the exclusive right to choose a prescription medication provider.” 194 So.3d at 1117.

Our courts of appeal have reached differing opinions on the choice-of-pharmacy issue. In addition to the Fourth Circuit’s ruling in this case, the Second Circuit has also held the choice of pharmacy belongs to the employee. See Naron v. LIGA, 49,996 (La. App. 2 Cir. 9/9/15), 175 So.3d 475. The Naron court reasoned that because La. R.S. 23:1203 does not address which party can choose a vendor, but does set forth the employer’s obligation to reimburse a claimant for the lesser amount in the fee schedule or the actual cost for medication, the employee was free to choose the pharmacy from which he obtained his medication. Id. at 477-78. By contrast, the Third and Fifth' Circuits have held the choice of pharmacy belongs to the employer. See Downs v. Chateau Living Center, 14-0672 (La. App. 5 Cir. 1/28/15), 167 So.3d 875; Bordelon v. Lafayette Consolidated Government, 14-0304 (La. App. 3 Cir. 10/1/14), 149 So.3d 421, writ denied, 14-2296 (La. 2/6/15), 158 So.3d 816; Sigler v. Rand, 04-1138 (La. App. 3 Cir. 12/29/04), 896 So.2d 189. In Sigler, the Third Circuit found that the employer did not violate its obligation to the injured employee under La. R.S. 23:1203(A) to furnish necessary drugs simply because it chose to have the employee’s prescriptions filled by a different pharmaceutical company. 896 So.2d at 198. Relying on Sigler, the Bordelon court held that the employer met his obligation under the LWCA to'pay for medication by specifying the pharmacy the employee could use. 149 So.3d at 423. The Fifth Circuit in Downs relied upon the Third Circuit’s opinion in Bordelon to hold that an employer does not violate its duty under La. R.S. 23:1203(A) by choosing the pharmacy to be used by an injured employee. 167 So.3d at 881.

After review of the law and the above jurisprudence, and considering the arguments of the parties, we hold the Third and Fifth Circuits have correctly determined the employer has -the right to choose the pharmacy to furnish necessary prescription drugs to an injured employee in a workers’ compensation case. Our analysis begins with the applicable statutory law.

The function of statutory interpretation and the construction given to legislátive acts rests with the judicial branch of the government. The rules of statutory construction are designed to ascertain and enforce the intent of the Legislature. Legislation is the solemn expression of legislative will, and, thus, the interpretation of legislation is primarily the search for the legislative intent. We have often noted the paramount consideration in statutory interpretation is ascertainment of the legislative intent and the reason or reasons which prompted the Legislature to. enact, the law. The starting point in-the interpretation of-any statute is the language'of'the statute itself. When a law is clear and unambiguous and its application does not lead to absurd consequences,-the law shall.be applied as written and no further- interpretation may be I 1(1made in search of the intent of the Legislature. However, when the language of the law-is susceptible of different meanings, it-must, be interpreted as having the meaning that best conforms to the purpose of the law. Moreover, when the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur, and the text of the law as a whole. Further, the-Legislature is presumed to act with full knowledge of well-settled principles of statutory construction.

Catahoula Par. Sch. Bd., 124 So.3d at 1073. With these principles in mind, we examine the relevant statutes.

As stated earlier, La. R.S. 23:1203(A) provides that “the employer shall furnish all necessary drugs.” Nowhere in the statute does the legislature provide the employee with the right to choose a pharmaceutical provider from which to obtain the necessary prescription drugs. By contrast, the legislature has specifically delegated to the employee the choice of physician in La. R.S. 23:1121(B)(1), which provides “the employee shall have the right to select one treating physician in any field or specialty.” (Emphasis added). Had the legislature intended the employee to have the choice of pharmaceutical provider in La. R.S. 23:1203(A), the legislature could have easily provided for that choice as it provided for the choice of physician in La. R.S. 23:1121. Moreover, the statutory entitlement in La. R.S. 23:1121(B)(1) to choose a physician cannot be read broadly to include an entitlement to choose a pharmacy. Notably, the legislature utilized the very specific term “physician,” rather than the more expansive term “health care provider” which is defined in the LWCA to include pharmacies.

In Burgess I, the court of appeal found it instructive “to consider the | ¶ jurisprudence addressing the related issue, of choice of physician before the Louisiana Legislature enacted La. R.S. 23:1121” in reaching its decision that the choice of pharmacy belongs to the employee. 187 So.3d at 54. The court referenced a First Circuit case wherein the court “concluded that the choice of physician belonged to the employee because ‘[t]he trust and confidence needed in a patient-doctor relationship is important' to successful treatment which can be best obtained if the injured employee has the choice of physician for treatment purposes.’” Id. (citing Kinsey v. Travelers Ins. Co., Inc., 402 So.2d 226, 228 (La. App. 1st Cir.1981)). The Burgess I court noted this same rationale-the patient’s trust and confidence-has been applied in the context of determining whether the choice of pharmacy belongs to the employee, although the court did recognize appellate jurisprudence, such as Si-gler, which found such rationale did not apply to a pharmacist. Id. The court of appeal affirmed its position in Burgess II.

Reliance on jurisprudence concerning choice of physician is misguided. Unlike La. R.S. 23:1121(B) governing choice of physician, the legislature has not afforded the employee an absolute right to select a pharmacy under La. R.S. 23:1203(A). This distinction is logical considering thé importance of the doctor-patient relationship. Unlike a patient’s personal relationship with his doctor, there is no meaningful difference relative to which pharmacy is used to dispense a prescription drug that would mandate employee choice under the LWCA. This distinction was recognized by the Third Circuit in Sigler, supra. The Sigler court distinguished its prior decision in Louisiana Clinic v. Patin’s Tire Service, 98-1973 (La. App. 3 Cir. 5/5/99), 731 So.2d 525, which concerned whether the employer had the right to choose the diagnostic facility to conduct the injured employee’s MRI scan. In Batin’s, the OWC judge found that an employee has no cause of action under the LWCA to choose the diagnostic facility, rélying on La. R.S. 23:1121(B) which only allows the employee the right to choose a treating physician. The Third Circuit reversed, finding the judge’s reliance on La. R.S. 23:1121(B) to be misplaced. 731 So.2d at 528. The court noted it was the treating physician, not the employee, who ordered the MRI and the employee was “not attempting to change treating physicians but to obtain a diagnostic. test at his physician’s instruction.” Id. The court found no authority that allows the employer or insurer to dictate the place and physician to perform diagnostic testing ordered by a treating physician. Rather, the court found the check on the employee’s testing is through La. R.S. 23:1034.2 and 23:1142(B), which place a monetary limit on the diagnostic testing. Id.

The Sigler court declined to apply the same reasoning to the choice of pharmacy. 896 So.2d at 198. “Because the administration of medical diagnostic testing, the type of equipment used, and the interpretation of the results obtained from the testing involve individual skill levels and perhaps comfort levels for patients, we find that Patin’s does not apply to the circumstances of this case. Unlike in the Patin’s case, the medication Sigler obtained was the same regardless of which pharmaceutical company provided it.” Id. We agree with the analysis of the Sigler court and reach the same conclusion in this case.

Additionally, the legislature has specifically directed that the laws contained in the LWCA be construed as follows:

(1) The provisions of this Chapter are based on the mutual renunciation of legal rights and defenses by employers and employees alike; therefore, it is the specific intent of the legislature that workers’ compensation cases shall be decided on their merits.
(2) Disputes concerning the facts in workers’ compensation cases shall not be given a broad, liberal construction in favor of either employees or employers; the laws pertaining to workers’ compensation shall be construed in accordance with the basic principles of statutory construction and not in favor of either employer or employee.
11S(3) According to Article III, Section 1 of the Constitution of Louisiana, the legislative powers of the state are vested solely in the legislature; therefore, when the workers’ compensation statutes of this state are to be amended, the legislature acknowledges its responsibility to do so. If the workers’ compensation statutes are to be liberalized, broadened, or narrowed, such actions shall be the exclusive purview of the legislature.

La. R.S. 23:1020.1(D) (Emphasis added). To extend the legislatively-granted employee choice of treating physician to include the choice of pharmacy can only be accomplished by giving an impermissibly expansive reading to the provisions of La. R.S. 23:1203(A) and La. R.S. 23:1121, thus broadening the employee’s rights in contravention of La. R.S. 23:1020.1(D).

Thus, while the injured employee is entitled to choose his treating physician under the LWCA, we hold the law does not provide the employee a right to choose a specific pharmaceutical provider. We therefore reverse the ruling of the court of appeal on this issue.

It is important to recognize that the LWCA gives the employee protections to ensure the employer satisfies its obligations under La. R.S. 23:1023. If an injured employee experiences any delays or other discernable deficiencies in filling his prescriptions through the employer-chosen pharmacy, constituting a violation of the employer’s duty under La. R.S. 23:1203(A), the employee has a remedy for penalties pursuant to La. R.S. 23:1201(E). See Si gler, 896 So.2d at 198-99. In this case, there is no evidence S & WB violated its duty under La. R.S. 23:1203(A) by requiring Mr. Burgess to use a pharmacy included in the Corvel Caremark Pharmacy program.

We now turn to the $13,110.82 IWP bill for prescription medications itj_ydispensed to Mr. Burgess from September 1, 2010, to December 7, 2012. Our resolution of the choice-of-pharmacy issue does not fully resolve the issue of whether S & WB is responsible for payment of the outstanding IWP bill. Based on the particular facts of this case, that determination also requires consideration of La. R.S. 23:1203(A) and (B), as well as La. R.S. 23:1142.

Notwithstanding who chooses the health care provider, La. R.S. 23:1203(A) allows for “medical care, services, and treatment” to be provided by out-of-state providers only “when such care, services, and treatment are not reasonably available within the state or when it can be provided for comparable costs.” It appears undisputed by the parties that IWP is an out-of-state pharmacy. Additionally, the IWP bill in the record provides a Massachusetts address. Thus, to be a permissible provider under the LWCA, there must be a showing that the services IWP provides are not reasonably available in Louisiana or that IWP’s services are provided for comparable costs to Louisiana providers. According to the record before us, this issue was not raised before nor considered by the OWC judge. The record contains no evidence whether IWP fits the statutory criteria in La. R.S. 23:1203(A). Because IWP, as an out-of-state provider, is bound by the constraints of La. R.S. 23:1203(A), we must remand this matter to the OWC for a determination of this issue.

Additionally, if IWP is found to be a permissible out-of-state pharmacy, the charges for medications it dispensed to Mr. Burgess would still be subject to the provisions of La. R.S. 23:1203(B), which limits reimbursement to “the mean of the usual and customary charges for such care, services as determined • under the reimbursement- schedule annually published pursuant to R.S. 23:1034.2 or the actual charge made for the service, whichever is less.” Fees in excess of the reimbursement schedule are not recoverable against the employee, employer, or workers’ [ ^compensation insurer. La. R.S. 23:1034.2(D). Moreover, this court recognized in Lafayette Bone & Joint that La. R.S. 23:1034.2(D) leaves open “the possibility that medical fees,"even though falling within the amounts set forth in the reimbursement schedule, may be deemed tin-reasonable, unnecessary, or not ‘usual and customary,’ and therefore not subject to compensation under certain circumstances.” 194 So.3d at 1121-22. This court further noted “the expression of legislative intent set forth in LSA-R.S. 23:1020.1 makes it clear that the reasonableness of medical costs is an. important consideration.” Id. at 1122. Thus, on remand, the OWC judge must consider whether IWP is a permissible oüt-of-state provider and, if so, whether the charges incurred were reasonable and within the guidelines referenced in La. R.S. 23:1203(B).

In the interest of judicial economy, and to fully instruct the OWC on remand should IWP be determined to be a permissible out-of-state provider, we also address the applicability of La. R.S. 23:1142(B), which provides:

Except as provided herein, each health care provider may not incur more than a total of seven hundred fifty dollars in .nonemergency diagnostic testing or treatment without the mutual consent of the payor and the employee as provided by regulation. Except as provided herein, that portion of the fees for nonemergency services of each health care provider in excess of seven hundred fifty dollars shall not be an enforceable obligation against the employee or the employer or - the employer’s workers’ compensation insurer unless the employee and the payor have agreed upon the diagnostic testing or treatment by the health care provider. (Emphasis added).

In Lafayette Bone & Joint, this court applied the provisions of La. R.S. 23:1142(B) to limit reimbursement to $750 for prescription medications dispensed directly by the treating physician’s office without the employer/payor’s consent. 194 So.3d at 1118. In Burgess II, the court of appeal distinguished that factual situation and held the dispensing of prescription medications by a pharmacist, as opposed to, a claimant’s treating physician, did not, constitute “nonemergency diagnostic testing and | ^treatment” under the statute. 204 So.3d at 1017. We recognize dispensing medication is distinguishable from prescribing or administering medication. However, we find no logical reason to factually differentiate this case from Lafayette Bone & Joint. In both cases the healthcare provider sought reimbursement for the cost of prescription medications issued to the injured employee; The act of dispensing prescription medications is the same, regardless of whether the medications were provided by a pharmacy or a physician’s office. '

Although we did not fully analyze application of La. R.S. 23:1142(B) in Lafayette Bone & Joint, implicit in our ruling was an acknowledgment that the dispensing of prescription medications is encompassed in “nonemergency diagnostic testing or treatment” under the statute. While the statutory language does not expressly include a reference to prescription medication, we find the word “treatment” in the statute is broad enough to encompass a pharmacy dispensing prescription medication-ordered by the claimant’s treating physician as part of the claimant’s treatment. Thus, we now explicitly hold La. ■R.S. 23:1142(B) is properly.implicated in considering an employer/payor’s obligation to pay prescription medication expenses in workers’ compensations cases. .

La. R.S. 23:1142(B) requires a health care provider to have the consent of the employee and the payor in order to receive payment in excess of $750 for non-emergency care. The statutory requirement of “mutual consent” necessarily imputes some obligation on the part of the provider to obtain the consent of the employer/payor'. La. R.S. 23:1142(B) does not supply a specific formula by which the payor is to signify his consent, and the issue of consent is necessarily determined based on the facts of each case. On remand, should IWP be determined to be a | ^permissible out-of-state provider, the OWC judge must address the issue of consent considering the evidence in the record and applying the rationale of Lafayette Bone & Joint, to determine whether IWP is entitled to recover expenses in excess of $750.

. Finally, we find the issue of penalties and attorney fees is not properly before this court. In its appeal to the Fourth Circuit, S & WB failed to assign as error or brief this issue. Although the -court of appeal affirmed’the judgment of the OWC, the court did not directly address the penalties and attorney fees award. Therefore, we pretermit discussion of this issue. See Rule 2-12.4 of the Uniform Rules-Courts of Appeal; State in Interest of J.M., 13-2573 (La. 12/9/14), 156 So.3d 1161, 1164. See also Boudreaux v. State, 01-1329 (La. 2/26/02), 815 So.2d 7.

CONCLUSION

For the above reasons, we resolve the split in our circuit courts of appeal on the choice-of-pharmacy issue in favor of the employer. Relative to whether S & WB is responsible for payment of the outstanding IWP bill in this case, we remand this matter to the OWC for a determination of whether IWP is a permissible out-of-state provider under La. R.S. 23:1203(A), If so, the OWC judge must then determine the amount of reimbursement due after application of La. R.S. 23:1203(B), Lafayette Bone & Joint, and La. R.S. 23:1142.

DECREE

REVERSED AND REMANDED TO THE OFFICE OF WORKERS’ COMPENSATION FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

JOHNSON, Chief Justice, additionally concurs and assigns reasons.

HUGHES, Justice, dissents and will assign reasons.

GENOVESE, Justice, dissents and assigns reasons.

JOHNSON, Chief Justice,

additionally concurs and assigns reasons.

hi write separately to express my opinion on this issue of consent pursuant to La. R.S. 23:1142(B). As pointed out in the majority opinion, La. R.S. 23:1142(B) does not supply a spéeific formula by which the payor is to signify his consent, and the issue of consent is necessarily determined based on the facts of each case. The record in this case is extremely limited, and the evidence relating to this issue consists of four items:

1) the outstanding bill from IWP in the amount of $13,110.82 for prescription medications dispensed to Mr. Burgess from September 1, 2010, to December 7, 2012;

2) a letter from S & WB dated October 10, 2011, sent to “All Injured Workers” stating:

Sewerage and Water' Board has partnered with Corvel Caremark Pharmacy Program for all Injured Employees. This Pharmacy card will replace any pharmacy program that you may be currently using. It is your responsibility to purchase all medications related to your injury'with the attached pharmacy card. Failure to adhere to this practice may result in non-payment of your Worker’s Compensation medications.
By your signature below you acknowledge that you will adhere.to the Sewerage and Water Board’s Workers’ Compensation Pharmacy Program.

Mr. Burgess signed the letter- on October 18, 2011.

I ?,3) a letter from S & WB to IWP dated April 12, 2012, stating:

Please be advised that your company is not an approved pharmacy provider for the Sewerage and Water Board of New Orleans (“Board”) prescription claims. In October 2011, the Board provided each claimant with a prescription card and the employee is required to use the card for any and all prescription drugs. Therefore, your pharmacy should not accept prescriptions from the Board’s injured workers. If any prescription bills are submitted by your company pay’ment will be denied.

4) a letter from S & WB to IWP dated August 22, 2012, referencing two dates of service for Mr. Burgess, July 10, 2012, and August 2, 2012:

On October 10, 2011 all injured employees were notified and signed [an] agreement to adhere to [the] pharmacy program. On February 13, 2012 a letter was sent to Attorneys and your company was copied on this memo. Also, on April 12, 2012 a letter was issue[d] directly to your company informing you not to accept prescriptions from Sewerage and Water Board of New Orleans.
Sewerage and Water Board is no longer paying bills submitted from Injured Workers Pharmacy because we have a pharmacy program provide[d] for our injured workers, and your company is not an approved pharmacy provider. Therefore, your request for payment for Darvel Burgess is denied.

It is also relevant that, by S <& WB’s own admission, it paid approximately $12,000 to IWP for prescription expenses incurred by Mr. Burgess over a period of time prior to selecting the Corvel Care-mark Pharmacy program.

Considering the record, and applying the same rationale this court applied in Lafayette Bone & Joint, I would find IWP’s recovery of expenses for medications dispensed to Mr. Burgess after April 12, 2012, is limited by La. R.S. 23:1142(B) to $750 because the medications were clearly dispensed by IWP without the consent of the payor, S & WB. Based on the particular facts of this case, I do not find the October 10, 2011, letter to Mr. Burgess relevant to the consent issue. It is undisputed that S & WB initially paid IWP’s bill, thereby providing tacit consent to Mr. Burgess’ use|sof IWP as a pharmacy provider. Based on the record, there is no evidence IWP was notified or otherwise aware of the withdrawal of that consent prior to the April 12, 2012 letter from S & WB. Thus, I find that until it received this notice, IWP had the consent of S & WB to dispense prescription medications to Mr. Burgess for purposes of La. R.S. 23:1142(B).

Furthermore, although IWP is entitled to reimbursement for prescriptions dispensed to Mr. Burgess prior to April 12, 2012, I note the charges for these medications are still subject to the reasonableness and cost limitations in La. R.S. 23:1203(B). Because there is no evidence in the record on this issue, the OWC must determine the amount of reimbursement due to IWP for charges incurred prior to April 12, 2012.

GENOVESE, Justice,

dissenting.

|J respectfully dissent from the majority decision. Of particular concern is the judicial edict, without specific legislative authority, that the choice of pharmacy in a workers’ compensation case belongs to the employer, disregarding the legislature’s directive in La.R.S. 23:1020.1(D)(2) that the Louisiana Workers’ Compensation Law shall not be construed “in favor of either employer or employee.”

Louisiana Revised Statutes 23:1203(A) delineates the obligation of an employer to “furnish” an injured worker “all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedical treatment recognized by the laws of this state as legal ....” It does not necessarily give the employer the right to choose the pharmacy. The key word in La.R.S. 23:1203 is “furnish.” The dictionary definition of furnish is “to provide” or “to supply.” It could be literally interpreted to mean the employer itself would have to provide/supply the necessary drugs, et-cetera, to the employee. I seriously doubt that was the intent of the legislature. Employers cannot be deemed pharmacies. I view and interpret the word “furnish” to mean “to be responsible for,” not be able to control, dictate, or choose the employee’s drug provider.

Lafayette Bone & Joint Clinic v. Louisiana United Business SIF, 15-2137 (La. 6/29/16), 194 So.3d 1112, dealt with whether reimbursement was warranted for medications prescribed by physicians and dispensed by employees of the ^Lafayette Bone & Joint Clinic, an issue which tested the applicability of La.R.S. 23:1142(B). Finding that the evidence did “not raise a tenable employee choice issue,” this Court declined to address the choice-of-pharmacy question. Id. at 1117. There is no dispute in the instant matter that Injured Workers’ Pharmacy is an out-of-state provider. Louisiana Revised Statutes La.R.S. 23:1203(B) specifies the employer’s obligation under the reimbursement schedule.

Ready and quick access to medication is essential, and the employee should be able to choose his/her pharmacy. It is not inconceivable that the employer’s pharmacist or the employer may insist upon the use of generic drugs or insist upon one form of medication over another. The majority decision in this case will subject the employee to the whim of the employer’s pharmacy, and the law does not state such. Further, the law as written contemplates disputes over reasonableness and cost when the choice is made by the employee, it does not contemplate a scenario such as when the obligations of the employer imposed under La.R.S. 23:1203 are tested by a reasonableness and cost dispute with a pharmacy chosen by the employer. This is a matter for the legislature, whose duty it is to make the law—not the courts. It is injudicious to read the law in order to achieve a desired result. The law, as it stands today does not give the employer any preference over the employee to choose a pharmacy.

      . The Advanced Neurodiagnostic Center bill is not at issue in this court.

      . For the full text of the statutes referred to in this section, see DISCUSSION, infra..

      . However, the Naron court also recognized the employee’s choice of pharmacy is not boundless, noting that La. R.S. 23:1203(A) provides that services can be provided by out-of-state providers when the services are not reasonably available within the state or when it can be provided for comparable costs. The court held that regardless of whether an employer is found to have violated its duty under La. R.S. 23:1203(A), the employee is still bound by the constraints of that statute in regard to out-of-state providers. 175 So.3d at 478.

      . Although the court in Sigler found the employer had the right to choose the pharmacy, the court also found the employer violated its duties to the employee because the employer’s choice of pharmacy was unable to provide the medication to the employee in a timely fashion. The court explained: "Implicit within the requirement of La. R.S. 23:1203(A) that the employer ‘furnish all necessary drugs’ is that those necessary drugs be provided timely.... [The employer] effectively denied [the employee] the drugs needed for his compensable injury by denying the timely availability of those prescription drugs. In doing so, [the employer] violated its duty under La. R.S. 23:1203(A).” 896 So.2d at 198-99.

      . La. R.S. 23:1021(6) provides: '"Healthcare provider’ means a hospital, a person, corporation, facility, or institution licensed by the state to provide health care or professional services as a physician, hospital, dentist, registered or licensed practical nurse, pharmacist, optometrist, podiatrist, chiropractor, physical therapist, occupational therapist, psychologist, graduate social worker or licensed clinical social worker, psychiatrist, or licensed professional counselor, and any officer, employee, or agent thereby acting in the course and scope of his employment.” (Emphasis added).

      . La. R.S. 23:1201(E) provides: “(1) Medical benefits payable under this Chapter shall be paid within sixty days after the employer or insurer receives written notice thereof, if the provider of medical services is not utilizing the electronic billing rules and regulations provided for in R.S. 23:1203.2; (2) For those providers of medical services who utilize the electronic billing rules and regulations provided for in R.S. 23:1203.2, medical benefits payable under this Chapter shall be paid within thirty days after the employer or insurer receives a complete electronic medical bill, as defined by rules promulgated by the Louisiana Workforce Commission."

      . "Payor” is defined in R.S. 23:1142 as the entity responsible for the payment of an injured employee’s medical treatment.

      . S & WB did raise the issue in its second brief to the court of appeal following remand from this court, However, this was not an appeal from the OWC judgment. The parties were merely ordered by the court of appeal to submit briefs -addressing this court’s order relative to Lafayette Búne '& Joint,

      . At oral argument before this court, counsel for S & WB affirmatively stated S & WB paid over $12,000 to IWP relative to Mr. Burgess’ prescription expenses.