author: WELLS, Judge.

text:
    BDO SEIDMAN, LLP, Appellant, v. BANCO ESPIRITO SANTO INTERNATIONAL, LTD., ESB Finance, Ltd., and Banco Espirito Santo, S.A. (Nassau Branch), Appellees.
    Nos. 3D07-2472, 3D07-2746, 3D09-197, 3D09-324.
    District Court of Appeal of Florida, Third District.
    Aug. 12, 2009.

      Greenberg Traurig, Karen Y. Bitar and Adam D. Cole, New York, NY; Alvarez Armas & Borron and Arturo Alvarez, Coral Gables; Greenberg Traurig, Elliot H. Scherker, Elliott B. Kula, Julissa Rodriguez and Brigid F. Cech Samóle, Miami, for appellant.
    Holland & Knight, Rodolfo Sorondo, Jr., and Christopher N. Bellows, Miami; Thomas Alexander & Forrester and Steven W. Thomas; Billbrough & Marks and Geoffrey B. Marks, Coral Gables; Gonzalo Dorta, Miami; Gamba <& Lombana and Hector J. Lombana, Coral Gables, for ap-pellees.
    Before COPE, WELLS, and SUAREZ, JJ.
   WELLS, Judge.

On Motion and Cross Motion for Review

Banco Espirito Santo International, Ltd., ESB Finance, Ltd., and Banco Espir-ito Santo S.A. (Nassau Branch) (herein, Banco Espirito), the judgment creditors below, seek review of an order denying their request to compel judgment debtor BDO Seidman, LLP (herein, BDO) to comply with post-judgment discovery under section 45.045(3) of the Florida Statutes. On cross motion, BDO maintains that the trial court correctly denied the discovery sought, arguing that BDO Seidman, LLP v. Banco Espirito Santo International Ltd., 998 So.2d 1 (Fla. 3d DCA 2008) (“BDO I”), controls, mandating enforcement of the order under review. We agree with Banco Espirito that the court below misinterpreted both BDO I and section 45.045(3) in issuing a blanket denial of Banco Espirito’s request. Accordingly, we grant Banco Espirito’s motion, quash the order under review, and remand for consideration of the discovery request at issue in light of this opinion.

Like BDO I, the instant dispute stems from a $511,089,343 judgment in Banco Espirito’s favor and deals specifically with interpretation and application of section 45.045, the statute pursuant to which BDO posted a $50 million supersedeas bond to stay execution.

In that opinion, we addressed the constitutionality of section 45.045 and concluded that the legislature acted within its authority in imposing a cap on supersedeas bonds. We also concluded that the posting of a $50 million bond — the maximum bond permitted by section 45.045 — by BDO, stayed execution of Banco Espirito’s judgment, even though the amount posted did not equal the principal amount of Banco Espirito’s judgment ($511,089,343) plus twice the statutory rate of interest on judgments as provided by Florida Rule of Appellate Procedure 9.310.

Finally, because we determined that the judgment was stayed by virtue of posting of the bond, we concluded that discovery in aid of execution was precluded:

We agree with BDO that section 45.045 should have been applied in this case to preclude the discovery in aid of execution at issue. Rule 9.310(a) expressly authorizes modifications to its terms as “provided by general law.” Here, that modification came by way of section 45.045. It is true that if the procedural elements of a statute “are found to intrude impermissibly upon the procedural practice of the courts, the legislative provisions would have to give way to the court rules and procedures.” Kalway v. State, 730 So.2d 861, 862 (Fla. 1st DCA 1999). However we do not view section 45.045 as an intrusion into the practice and procedure of the judiciary. See State v. Raymond, 906 So.2d 1045, 1048 (Fla.2005) (stating that “[i]t is a well-established principle that a statute which purports to create or modify a procedural rule of court is constitutionally infirm” but at the same time observing that “matters of substantive law are within the Legislature’s domain”).

BDO I, 998 So.2d at 2 (emphasis added).

BDO I did not, however, address discovery authorized by section 45.045(3) for the purpose of determining whether assets have been or are being dissipated during a stay authorized by section 45.045(1). In pertinent part, these provisions, read together, clearly do two things: first, they stay execution on any judgment where a $50 million supersedeas bond has been posted; and second, they authorize discovery to determine whether assets have been or are being dissipated or diverted while such a stay is in place:

(1) ... [I]n any civil action brought under any legal theory, the amount of a supersedeas bond necessary to obtain an automatic stay of execution of a judgment granting any type of relief during the entire course of all appeals or discretionary reviews, may not exceed $50 million for each appellant, regardless of the amount of the judgment appealed....
(3) If an appellant has posted a superse-deas bond for an amount less than that which would be required for an automatic stay pursuant to Rule 9.310(b)(1), Florida Rules of Appellate Procedure, the appellee may engage in discovery for the limited purpose of determining whether the appellant has dissipated or diverted assets outside the course of its ordinary business or is in the process of doing so.

§ 45.045(1), (3), Fla. Stat. (2009).

Where, as here, a statute is free from ambiguity, its plain meaning must be followed:

“Where the legislature has used particular words to define a term, the courts do not have the authority to redefine it.” Baker [v. State ], 636 So.2d [1342] at 1343-44 [ (Fla.1994) ]. Likewise, where the language of a statute is unambiguous and clear, there is no room for interpretation. See State v. Dugan, 685 So.2d 1210, 1212 (Fla.1996) (“When interpreting a statute, courts must determine legislative intent from the plain meaning of the statute.”); St. Petersburg Bank & Trust Co. v. Hamm, 414 So.2d 1071, 1073 (Fla.1982) (“The plain meaning of the statutory language is the first consideration.”); State v. Egan, 287 So.2d 1, 4 (Fla.1973) (“Where the legislative intent as evidenced by a statute is plain and unambiguous, then there is no necessity for any construction or interpretation of the statute, and the courts need only give effect to the plain meaning of its terms.”).

DM v. Dobuler, 947 So.2d 504, 509 (Fla. 3d DCA 2006); see Koile v. State, 934 So.2d 1226, 1230-31 (Fla.2006) (stating that where a statute is clear on its face, courts are not to look behind the statutes plain meaning for legislative intent or resort to rules of statutory construction to ascertain intent (quoting Daniels v. Fla. Dept. of Health, 898 So.2d 61, 64-65 (Fla. 2005))).

BDO posted a $50 million superse-deas bond, a bond that was less than that which would be required for an automatic stay under Rule 9.310(b)(1). Banco Espir-ito was therefore entitled to “engage in discovery for the limited purpose of determining whether the appellant has dissipated or diverted assets outside the course of its ordinary business or is in the process of doing so.” § 45.045(3), Fla. Stat. (2009).

Of course, section 45.045(3) should not be read as authorization for an unfettered fishing expedition through an appellant’s records, which would amount to no more than discovery in aid of execution. Section 45.045(3) neither nullifies the protection provided by compliance with section 45.045(1) nor conflicts with our statements in BDO I. Rather, section 45.045(3) provides a narrow avenue for discovery for a limited stated purpose.

Accordingly, Banco Espirito’s motion for review is granted. On remand, and after a careful review of the materials sought, section 45.045(3) discovery may be permitted, but only to the extent that the trial court determines that the discovery sought is “for the limited purpose of determining whether the appellant has dissipated or diverted assets outside the course of its ordinary business or is in the process of doing so.” § 45.045(3), Fla. Stat. (2009). The cross motion to enforce mandate is denied.

      . Rule 9.310(b)(1) provides:
      (1) Money Judgments. If the order is a judgment solely for the payment of money, a party may obtain an automatic stay of execution pending review, without the necessity of a motion or order, by posting a good and sufficient bond equal to the principal amount of the judgment plus twice the statutory rate of interest on judgments on the total amount on which the party has an obligation to pay interest. Multiple parties having common liability may file a single bond satisfying the above criteria.

      . We note, however, that the legislative history of this provision supports our analysis. Both House Bill 841 and Senate Bill 2250 were titled as acts limiting supersedeas bonds and providing for an exception to the limits imposed if an appellant engaged in conduct for the purpose of avoiding payment of a judgment. Fla. H.B. 841 (2006); Fla. S.B. 2250 (2006). Although these bills, which ultimately became section 45.045, changed as they passed through various House and Senate committees, the analysis of these provisions remained the same. The analysis in the House consistently was that the caps imposed by this provision "[would] not apply if the appellee can show that the appellant is moving assets in an attempt to avoid paying the judgment,” and if a defendant was acting in such manner "a court [could] require the defendant [to] post a supersedeas bond in the total amount of the judgment.” See Fla. H.R. Comm. On Civ. Just., HB 841 (2006) Staff Analysis h0841 (Mar. 6, 2006); Fla. H.R. Comm. On Civ. Just., HB 841 (2006) Staff Analysis h0841a (Mar. 9, 2006); Fla. H.R. Comm. On Bus. Reg., HB 841 (2006) Staff Analysis h0841b (March 14, 2006); Fla. H.R. Comm, on Bus. Reg., HB 841 (2006) Staff Analysis h0841c (rev. Mar. 17, 2006); Fla. H.R. Comm. On Just., HB 841 (2006) Staff Analysis h0841d (Apr. 21, 2006). The Senate's analysis also consistently stated that:
      [i]f bond is posted for less than the amount for an automatic stay under the Florida Rules of Appellate Procedure, the appellee may engage in limited discovery for the purpose of determining whether the appellant has dissipated or diverted assets outside the course of its ordinary business or is in the process of doing so. If the court determines that an appellant has dissipated or diverted assets or is in the process of doing so, the court may enter orders necessary to protect the appellee, require the appellant to post a supersedeas bond in an amount up to the amount that would be required for an automatic stay pursuant to Rule 9.310(b)(1), Florida Rules of Appellate Procedure, and impose other remedies and sanctions as the court deems appropriate.
      Fla. S. Comm. On Judiciary, SB 2250 (2006) Staff Analysis s2250 (Apr. 27, 2006).
      Thus, from the outset, the intent behind section 45.045 was plain: to cap supersedeas bonds at a set amount and permit an increase to that authorized by Rule 9.310(b)(1) where assets are being diverted or dissipated. As finally enacted, an appellant may take discovery for the limited purpose of demonstrating a diversion or dissipation that could support an increase in a bond beyond the statutory cap.

      . This may well be a fair characterization of Banco Espirito’s first request for production of documents.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Elijah Hasan JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-3099.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 2009.
    Rehearing Denied Jan. 27, 2010.
    Elijah Hasan Jones, in proper person.
    Bill McCollum, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before GERSTEN and CORTINAS, JJ„ and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Jones v. State, 972 So.2d 191 (Fla. 3d DCA 2007) (table); Shenfeld v. State, 14 So.3d 1021 (Fla. 4th DCA 2009); Strickland, v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


author: COPE, J.

text:
    Ricardo Jose DAVILA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2103.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 2009.
    Rehearing and Rehearing En Banc Denied Feb. 10, 2010.

      Ricardo Jose Davila, in proper person.
    Bill McCollum, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.
    Before COPE and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   COPE, J.

This is an appeal of an order denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part.

Defendant-appellant Davila was convicted of thirty counts of aggravated child abuse, one count of child neglect, one count of child abuse, and three counts of kidnapping. His direct appeal was affirmed in Davila v. State, 829 So.2d 995 (Fla. 3d DCA 2002).

The defendant filed a timely motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. The trial court entered an interlocutory order denying some of the claims and ordering the State to file a supplemental response on other claims. The State filed its supplemental response. A successor judge entered an omnibus order denying all of the claims. By motion for rehearing, the defendant raised additional claims, which were also denied. The defendant has appealed.

The defendant argues that the three counts of kidnapping must be vacated. He maintains that as a matter of law, a parent cannot be convicted of kidnapping his own child. That is the general rule. Johnson v. State, 637 So.2d 3, 4 (Fla. 3d DCA 1994). In this case the defendant is the father of the child at issue, and there was no order which had deprived the defendant of his custody rights.

We have recognized an exception, however, to the general rule where the parent “does not simply exercise his rights to the child, but takes her for an ulterior and unlawful purpose which is specifically forbidden by the kidnapping statute itself.” Lafleur v. State, 661 So.2d 346, 349 (Fla. 3d DCA 1995). The Second District disagrees with this court on this issue. Muniz v. State, 764 So.2d 729, 731 (Fla. 2d DCA 2000); cf. Andre v. State, 13 So.3d 103, 105 (Fla. 4th DCA 2009) (fundamental error to convict child’s father of aggravated false imprisonment where there was no testimony that the child’s custodian, her godmother, had legal custody or guardianship). Stated differently, if this case were pending in the Second District, then the defendant would be entitled to relief on the kidnapping issue. Accordingly we follow Lafleur and certify direct conflict with Muniz.

The defendant argues alternatively that there is a double jeopardy violation. At the time of the charged crimes, the child who was the victim of the child abuse was under age thirteen. Under the kidnapping statute, the kidnapping offense is enhanced from a first-degree felony punishable by life imprisonment, to a life felony, where the kidnapping victim is a child under the age of thirteen and the defendant commits aggravated child abuse on that child. § 787.01(2), (3), Fla. Stat. (2000). The defendant argues that it is prohibited to convict him of aggravated child abuse and then use the same acts of aggravated child abuse to enhance the kidnapping charge from a first-degree felony punishable by life imprisonment, to a life felony. The postconviction record now before us does not conclusively refute this claim. See Fla. RApp. P. 9.141(b)(2)(D). We therefore reverse this part of the trial court’s order and remand for further proceedings. If, in fact, the same acts that were the basis of the aggravated child abuse convictions also form the basis for enhancement of the kidnapping convictions, then the defendant is entitled to relief. See Ramirez v. State, 928 So.2d 420, 421 (Fla. 3d DCA 2006); Bradham v. State, 657 So.2d 40, 41 (Fla. 1st DCA 1995); see also Cleveland v. State, 587 So.2d 1145, 1146 (Fla.1991); Finkley v. State, 16 So.3d 329 (Fla. 4th DCA 2009). In that event, the State will have the option to delete the enhancement on the kidnapping convictions, thus reducing the convictions to a first-degree felony punishable by life imprisonment, or alternatively, strike the aggravated child abuse convictions that form the basis for the enhancement.

The defendant claims a double jeopardy violation involving kidnapping in counts forty-three through forty-five, and counts thirty-seven through thirty-nine. It does not appear that this claim was addressed. Accordingly we remand for further proceedings on that issue.

The defendant alleges that his trial counsel specifically conceded the defendant’s guilt on multiple counts at trial, without his consent. In its response in the trial court, and in this court, the State concedes that the defendant is entitled to an evidentiary hearing on this issue. We remand for that purpose.

The defendant maintains that it was a double jeopardy violation to charge him with multiple acts of aggravated child abuse occurring over a six-month period. We reject the defendant’s argument. See Overway v. State, 783 So.2d 373, 373-74 (Fla. 5th DCA 2001); see also State v. Meshell, 2 So.3d 132, 135 (Fla.2009); McKnight v. State, 906 So.2d 368, 370-72 (Fla. 5th DCA 2005); Marion v. State, 674 So.2d 878, 879 (Fla. 3d DCA 1996).

We affirm regarding the remaining issues on appeal.

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

      . The omnibus order was dated February 22, 2007. In addition to denying the defendant’s rule 3.850 claims, the order also denied the defendant's motion to correct illegal sentence filed on September 23, 2005 under Florida Rule of Criminal Procedure 3.800(a). The rule 3.800(a) motion is not at issue in this appeal, as it had previously been denied and that denial was affirmed by this court. Davila v. State, 948 So.2d 931 (Fla. 3d DCA 2007).

      .The defendant also argues that his trial counsel was ineffective for failing to raise this issue in the trial court, and argues that the special jury instruction obtained by the State regarding this issue constitutes fundamental error. We affirm the denial of those claims on authority of Lafleur.

      . The crime dates were February-July 2000.

      . As already stated, there are three counts of kidnapping but thirty counts of aggravated child abuse.


text:
    Susan COHN, Appellant, v. The GRAND CONDOMINIUM ASSOCIATION, INC.; PH Hotel, Inc.; and PH Retail, Inc., Appellees.
    No. 3D08-3051.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 2009.

      Eric M. Glazer, Hollywood; Bruce S. Rogow and Cynthia E. Gunther, Fort Lauderdale, for appellant.
    Katzman Garfinkel Rosenbaum, Daniel S. Rosenbaum, Joseph W. Janssen, III, and Richard Valuntas; Siegfried, Rivera, Lerner, De La Torre & Sobel and H. Hugh McConnell, for appellees.
    Before COPE, GERSTEN and SUAREZ, JJ.
   COPE, J.

This is an appeal of a summary judgment which found subsection 718.404(2), Florida Statutes (2007), unconstitutional as applied to The Grand Condominium. We affirm.

The Grand Condominium was created in 1986. It is a mixed-use condominium consisting of 810 residential units (owned individually), 141 retail units (owned by the appellee PH Retail, Inc.), and 259 commercial units (owned by PH Hotel, Inc.). The commercial units are a DoubleTree Hotel. The retail units are shops on the first two floors of the condominium. Appellant Susan Cohn is a residential unit owner.

In 1986 when the condominium was created, there was no specific statute regulating mixed-use condominiums. The articles of incorporation for The Grand Condominium Association, Inc., (and the Association’s by-laws,) provide for a board of directors consisting of seven members. Two members are elected by the residential unit owners, two are elected by the commercial unit owners, and two are elected by the retail unit owners. A seventh director is elected by vote of all of the unit owners. The Grand was turned over by the developer to the Association in 1993.

In 1995, the legislature enacted section 718.404, Florida Statutes (1995), entitled Mixed-Use Condominiums. Ch. 95-274, § 38, Laws of Fla. Subsection (2) of section 718.404 addressed voting and stated: “Subject to s. 718.301, where the number of residential units in the condominium equals or exceeds 50 percent of the total units operated by the association, owners of the residential units shall be entitled to vote for a majority of the seats on the board of administration.” § 718.404(2), Fla. Stat. (1995). The statute was silent on the issue of retroactivity.

In 2007, the legislature amended subsection (2) by adding: “This subsection shall apply retroactively as a remedial measure.” Ch. 2007-173, § 5, Laws of Fla. After the 2007 amendment, Ms. Cohn requested that the voting arrangements be changed at The Grand to give a majority of the board membership to the residential unit owners in accordance with subsection 718.404(2).

The Association filed a declaratory judgment action. The Association sought a declaration that, among other things, subsection 718.404(2) constituted an impairment of the obligation of contract under Article I, Section 10 of the Florida Constitution. The Grand and Cohn filed motions for summary judgment.

The trial court held the 2007 amendment to subsection 718.404(2) unconstitutional as applied to The Grand. The Grand had been organized in 1986, prior to the enactment of section 718.404 in 1995, and the voting arrangements were legal when the condominium was organized. The court held the 2007 retroactivity provision constituted an impairment of contract. Ms. Cohn has appealed.

The Florida Constitution provides, “No ... law impairing the obligation of contracts shall be passed.” Art. I, § 10, Fla. Const. The Florida Supreme Court’s leading case in the context of condominium regulation is Pomponio v. Claridge of Pompano Condo., Inc., 378 So.2d 774 (Fla.1979). Where a state statute is enacted under the state’s police power, “we must weigh the degree to which a party’s contract rights are statutorily impaired against both the source of authority under which the state purports to alter the contractual relationship and the evil which it seeks to remedy.” Id. at 780.

Quoting Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 244-45, 98 S.Ct. 2716, 57 L.Ed.2d 727 (1978), the Court said:

In applying these principles to the present case, the first inquiry must be whether the state law has, in fact, operated as a substantial impairment of a contractual relationship. The severity of the impairment measures the height of the hurdle the state legislation must clear. Minimal alteration of contractual obligations may end the inquiry at its first stage. Severe impairment, on the other hand, will push the inquiry to a careful examination of the nature and purpose of the state legislation.
Several factors to be considered in this balancing test were identified in Spannaus:
(a) Was the law enacted to deal with a broad, generalized economic or social problem?
(b) Does the law operate in an area which was already subject to state regulation at the time the parties’ contractual obligations were originally undertaken, or does it invade an area never before subject to regulation by the state?
(c) Does the law effect a temporary alteration of the contractual relationships of those within its coverage, or does it work a severe, permanent, and immediate change in those relationships irrevocably and retroactively?

Pomponio, 378 So.2d at 779 (footnotes omitted).

It is our view that the voting arrangements in a condominium are of great importance, and the change imposed by subsection 718.404(2) operates as a substantial impairment of the existing contractual relationship. We therefore proceed to consider the three parts of the Pomponio test.

The first question is, “Was the law enacted to deal with a broad, generalized economic or social problem?” The record now before us is devoid of any explanation of the problem which led to the enactment of the retroactivity provision. The 2007 legislative staff report has been made part of the record. The staff report lists the retroactivity provision as one of a number of amendments contained in chapter 2007-173, Laws of Florida, but there is no explanation of the problem which led to its adoption. The staff report did, however, note that the amendment might be vulnerable under the Pomponio decision as being an unconstitutional impairment of obligation of contract. Fla. S. Jud. Comm. CS for SB902 (2002) Staff Analysis, (April 18, 2007) at 17-18.

The second question is, “Does the law operate in an area which was already subject to state regulation at the time the parties’ contractual obligations were originally undertaken, or does it invade an area never before subject to regulation by the state?” Pomponio, 378 So.2d at 779. At the time The Grand was organized in 1986, condominiums were subject to significant regulation under chapter 718, Florida Statutes, but special regulations for mixed-use condominiums did not come into existence until 1995. The Grand conformed to chapter 718 when it was organized.

The third question is, “Does the law effect a temporary alteration of the contractual relationships of those within its coverage, or does it work a severe, permanent, and immediate change in those relationships irrevocably and retroactively?” Pomponio, 378 So.2d at 779. In this case the change would be severe, permanent, and immediate.

We conclude that the Pomponio test is not satisfied. The 2007 retroactivity amendment must be invalidated as an impairment of the obligation of contract.

For the stated reasons, we affirm the trial court’s judgment. See also Wellington Prop. Mgmt. v. Parc Corniche Condo. Ass’n, Inc., 755 So.2d 824 (Fla. 5th DCA 2000); Tradewinds of Pompano Ass’n v. Rosenthal, 407 So.2d 976 (Fla. 4th DCA 1981); Commodore Plaza at Century 21 Condo. Ass’n, Inc. v. Cohen, 378 So.2d 307 (Fla. 3d DCA 1979).

Affirmed.

      . The Association gave notice of the action to the Attorney General, who declined to participate in the litigation. See § 86.091, Fla. Stat. (2007).

      . While the trial court's order refers to section 718.404, it is clear that subsection (2) was the specific provision challenged by the declaratory judgment action.


author: CASANUEVA, Chief Judge.

text:
    Pothen JACOB, Appellant, v. Lalitha JACOB, Appellee.
    No. 2D08-2977.
    District Court of Appeal of Florida, Second District.
    Nov. 13, 2009.

      Kathy C. George of Law Offices of Boake & George, St. Petersburg, for Appellant.
    Lalitha Jacob, pro se.
   CASANUEVA, Chief Judge.

Pothen Jacob (the Husband) appeals a nonfinal order awarding temporary child support to Lalitha Jacob (the Wife). We affirm in part, reverse in part, and remand for further proceedings.

At a hearing, the trial court first heard the Husband’s motion to compel the Wife’s compliance with discovery required by Florida Family Law Rule of Procedure 12.285(b). The trial court granted the motion and ordered the Wife to produce the required documentation within two weeks. The trial court then heard argument on the Wife’s emergency motion for temporary support. The Wife claimed that the Husband had not been paying any support for the care of their two children. The Husband primarily argued that (1) rule 12.285(b) required the trial court to obtain all discovery before it could grant temporary support and that (2) should the trial court entertain the Wife’s request for temporary support without the Wife’s required documentation, it should consider the Husband’s payments for the marital home mortgage, utilities, and upkeep to determine the amount of any awarded support. The trial court determined that an immediate “band-aid” was necessary and awarded temporary support to the Wife but invited the parties to return at any time if the ordered discovery supported subsequent modification. Utilizing the parties’ financial affidavits, child support guidelines worksheets, and testimony to determine an amount, the trial court awarded the Wife $3200 per month in temporary support. The trial court specifically found that the Husband had been paying for the mortgage and utilities for the marital home.

Our standard of review is abuse of discretion. See Chhouri v. Chhouri, 2 So.3d 987, 987 (Fla. 2d DCA 2008). Applying that standard, we find no error with the trial court’s decision to award support prior to the Wife’s full compliance with discovery. While rule 12.285(b) lists a number of disclosures required for temporary financial relief, rule 12.285(a) allows the trial court discretion to modify any part of rule 12.285 “[e]xcept for the provisions as to financial affidavits and child support guidelines worksheets.” The record suggests that the Wife did comply with these two requirements. While it is the better practice to have full disclosure before awarding support, the trial court did not abuse its discretion in determining the Wife’s need for immediate relief temporarily outweighed some of the rule’s discovery requirements.

However, we hold that the trial court erred in determining the amount of temporary child support. Although the tidal court found that the Husband was paying for the marital home mortgage, utilities, and upkeep, the child support guidelines worksheet demonstrates that the trial court failed to factor in those contributions in determining the award. Such is an abuse of discretion. See Reilly V. Reilly, 16 So.3d 1041, 1042 (Fla. 2d DCA 2009).

Accordingly, we affirm the portion of the order determining the Wife’s entitlement to temporary support. We reverse and remand for the trial court to reconsider the amount, factoring the Husband’s payments for the marital home into the equation.

Affirmed in part, reversed in part, and remanded.

WHATLEY and LaROSE, JJ., Concur.

      . When determining an award in the final judgment of dissolution of marriage, the trial court should take into account all prior child support payments and any recalculated amounts.


text:
    Jimmy HALL, Appellant, v. PRO ACCESS, INC., Appellee.
    No. 3D09-1525.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 2009.
    Allan M. Glaser, North Miami Beach, for appellant.
    Hall, Lamb and Hall, Andrew C. Hall, Adam S. Hall, and Roarke Maxwell, Miami, for appellee.
    Before GERSTEN, SUAREZ and LAGOA, JJ.
   PER CURIAM.

Jimmy Hall (“Hall”) appeals from an order denying his motion to dismiss for lack of personal jurisdiction. The plaintiff, Pro Access, Inc., did not establish sufficient facts to bring this action within Florida’s long arm statute. See § 48.193, Fla. Stat. (2007). The plaintiff also did not show that exercising personal jurisdiction over Hall comports with due process. See Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989). Thus, the trial court should have granted Hall’s motion to dismiss.

Accordingly, we reverse the order denying Hall’s motion to dismiss, and remand for further proceedings.

Reversed and remanded.


author: BENTON, J.

text:
    MIAMI-DADE COUNTY, Appellant, v. William A. DAVIS, Appellee.
    No. 1D07-1073.
    District Court of Appeal of Florida, First District.
    Nov. 24, 2009.
    Rehearing Denied Jan. 22, 2010.

      R.A. Cuevas, Jr., County Attorney, Douglas W. Rice, Monica Rizo, and Díame-la del Castillo, Assistant County Attorneys, for Appellant.
    Richard A. Sicking, Coral Gables, for Appellee.
   BENTON, J.

Miami-Dade County appeals an order of the judge of compensation claims finding the County responsible for workers’ compensation benefits on account of William A. Davis’s heart disease, on the purported authority of section 112.18(1), Florida Statutes (2001). On the facts of the present case, which include the undisputed diagnosis of heart disease at the time of a preem-ployment physical, the judge of compensation claims erred in ruling Mr. Davis’s preexisting heart disease compensable. The statute gave rise to no presumption of compensability and, without the presumption, the facts rule out industrial causation. Accordingly, we reverse the summary final order.

When a firefighter suffers a “condition or impairment of health ... caused by ... heart disease ... resulting in total or partial disability,” the firefighter’s heart disease is deemed a compensable occupational disease, unless the employer is able to rebut the statutory presumption of com-pensability. But the presumption only arises if the firefighter has “successfully passed a physical examination upon entering into any such service as a firefighter ... which examination failed to reveal any evidence of any such condition.” § 112.18(1), Fla. Stat. (2001). See City of Mary Esther v. McArtor, 902 So.2d 942, 943 (Fla. 1st DCA 2005) (“Coronary artery disease is an occupational illness when suffered by a firefighter meeting the requirements of section 112.18(1).”); Sledge v. City of Fort Lauderdale, 497 So.2d 1231, 1233 (Fla. 1st DCA 1986) (“Although heart disease is not ordinarily compensable as an occupational disease, the Florida Legislature has enacted section 112.18(1) ..., which establishes a statutory presumption that heart disease suffered by a fireman is connected with the exertions of his work so long as the fireman passes a preemployment physical examination without evidence of such disease.” (emphasis supplied, citation omitted)). The presumption did not arise here.

Facts Not In Dispute

Mr. Davis first worked as a firefighter with the City of Gainesville on November 6, 1972. Although the factual record concerning the scope of a certification examination earlier the same year is unclear to non-existent, the judge of compensation claims found that Mr. Davis passed such a physical, which failed to reveal any evidence of heart disease, before he began work with the City of Gainesville. For purposes of decision, we accept this finding of fact. We also assume for purposes of decision that, during the course of his service with the City of Gainesville, he developed heart disease. Eventually, he required bypass surgery.

He left firefighting, and did not work again as a firefighter until he began working for the Village of Tequesta on August 2, 1993. He did not have a preemployment physical before he started working for the Village of Tequesta. But, before he began working as a firefighter for Miami-Dade County in 1995, he did undergo a medical examination. The examiner, one Dr. Harold Rosen, testified that Mr. Davis “[d]efinitely had heart disease” at the time of the preemployment physical and that “open heart surgery [of the kind Mr. Davis had undergone some years earlier at the City of Gainesville’s expense] does not give a person a new heart and it’s still less than what we would term a normal heart.”

Dr. Rosen stated unequivocally that there was “no question” that Mr. Davis had heart disease at the time of the preemployment examination; but explained that he found him qualified for employment with Miami-Dade County, using as his only criterion whether heart disease “would prohibit [Mr. Davis] from doing his job properly.” Dr. Rosen testified that he was not aware of the National Fire Protection Association’s medical standards at the time he examined the claimant but that, if those standards applied to Mr. Davis at the time of the examination, he should have been disqualified from performing work as a firefighter for Miami-Dade County, based on his history of coronary artery bypass surgery.

On February 26, 2002, the claimant was off-duty, although still on Miami-Dade County’s payroll as a firefighter, when his heart disease manifested itself in a cardiac incident while he was surfing. Dr. Htwe Sein, a board certified cardiologist who treated claimant in the wake of the surfing incident, testified that claimant visited her with a preexisting diagnosis of coronary artery disease and a history of myocardial infarction. She testified that Mr. Davis experienced “acute coronary syndrome with a minimum cardiac enzymes leak” on February 26, 2002, sometimes referred to as a “non-T wave myocardial infarction.” She also testified she had no doubt that the claimant had chronic underlying coronary artery disease when Miami-Dade County hired him in 1995.

Proceedings Below

Following the surfing incident, Mr. Davis filed petitions for benefits against Miami-Dade County seeking a determination that the cardiac incident while he was surfing on February 26, 2002, was compensable by virtue of the presumption that arises under section 112.18(1), Florida Statutes, whenever a “firefighter or state law enforcement officer shall have successfully passed a physical examination upon entering into any such service as a firefighter ... which examination failed to reveal any evidence of any such condition.”

The County argued that mere certification as a firefighter (including passing the physical then required) did not entitle Mr. Davis to the benefit of the presumption set forth in section 112.18(1), because his subsequent, preemployment physical examination for Miami-Dade County revealed that he suffered from heart disease. Both Dr. Leonard Pianko, the County’s independent medical examiner, and Dr. Jaimy Bensimon, claimant’s independent medical examiner, agreed that claimant had preexisting heart disease when Miami-Dade County hired him. The County denied compensability on the ground that the claimant’s heart disease antedated his employment with Miami-Dade County.

Claimant argued that sections 112.18, 633.34, and 633.35, Florida Statutes, should be read in pari materia so that the only physical examination a firefighter needs to take and pass, for purposes of determining whether the presumption set forth in section 112.18 applies, is the initial medical examination described in section 633.34 that a firefighter once had to undergo in order to become certified pursuant to section 633.35.

The judge of compensation claims accepted this argument. In ruling that the 1972 certification examination was the only relevant examination for purposes of section 112.18(1), the judge of compensation claims stated:

The claimant ... successfully passed a physical examination upon entering into any such service as a firefighter which examination failed to reveal any evidence of heart disease. The claimant did this when he was first employed as a firefighter by the City of Gainesville. That is when he entered into service as a firefighter.

The judge of compensation claims acknowledged that the claimant had a history of heart disease at the time of his preemployment physical examination for Miami-Dade County, but ruled this was irrelevant, on grounds that the preemployment physical is “not the one referred to in § 112.18(1),” stating:

The only medical examination required by law for firefighters is the pre-certifi-cation medical examination. Section 638.34, Fla. Stat., and Section 633.35, Fla. Stat., should be read in pari mate-ria with Section 112.18, Fla. Stat., because the medical examination required by law referred to in Chapter 633 is the one required for certification, which is upon entering into service as a firefighter.

On this basis, the judge of compensation claims found claimant’s heart disease com-pensable and Miami-Dade County responsible for medical benefits.

Preemployment Physical Precluded Presumption

We cannot agree with the judge of compensation claims that “Section 633.34, Fla. Stat., and Section 633.35, Fla. Stat., should be read in pari materia with Section 112.18, Fla. Stat., because the medical examination required by law referred to in Chapter 633 is the one required for certification, which is upon entering into service as a firefighter.” The judge of compensation claims erred in relying on sections 633.34 and 633.35 for the proposition that the physical examination referred to in section 112.18(1) was the 1972 certification exam.

Unlike the statute applicable when claimant began working as a firefighter for the City of Gainesville in 1972, which required “any person initially employed as a fire fighter” to “[b]e in good physical condition as determined by a medical examination as prescribed by the council,” § 163.490(6), Fla. Stat. (1971) (emphasis supplied), the statute applicable when claimant began employment with Miami-Dade County in 1995 required “[a]ny person applying for employment as a firefighter ” to “[b]e in good physical condition as determined by a medical examination....” § 633.34(5), Fla. Stat. (1995) (emphasis supplied).

Although in 1972 certification as a firefighter depended, in part, upon the results of the medical examination, see § 163.495(2), Fla. Stat. (1971) (providing that “[t]he council shall issue a certificate of compliance to any person” who, among other things, satisfies the “qualifications for employment in § 163.490”), subsequently enacted amendments to section 633.35, Florida Statutes, explicitly excepted the results of a medical examination performed pursuant to section 633.34(5) from consideration in the certification process. See § 633.35(2), Fla. Stat. (1995) (“The division shall issue a certificate of compliance to any person satisfactorily complying with the training program established in subsection (1), who has successfully passed an examination as prescribed by the division, and who possesses the qualifications for employment in s. 633.34, except s. 633.34,(5).” (emphasis supplied)).

In conformity with section 633.34, Florida Statutes (1995), Miami-Dade County required Mr. Davis to submit to a preem-ployment physical examination, even though he was already a certified firefighter when he applied for employment with the County. The preemployment examination revealed that he had heart disease before he began work for Miami-Dade County. Section 112.18(1) did not, therefore, give rise to a presumption of occupational causation when, after he took the job, heart disease manifested itself while he was surfing.

Section 633.34, Florida Statutes (1995), unlike section 163.490, Florida Statutes (1971), provides that any person “applying for employment as a firefighter,” § 633.34, Fla. Stat. (1995) — not just a person “initially employed as a fire fighter,” § 163.490, Fla. Stat. (1971) — must “[b]e in good physical condition as determined by a medical examination.” Reading sections 633.34 and 633.35 in pari materia with section 112.18 lends no support to, and, indeed, rules out, the inference the judge of compensation claims erroneously drew, namely, that the only medical examination required by law for firefighters is the pre-certification medical examination.

Section 112.18(1) draws no distinction between firefighters and law enforcement officers with regard to the presumption the statute authorizes. Section 112.18(1), the statute that controls here, speaks equally of a “firefighter or state law enforcement officer” and confers precisely the same rights and obligations on firefighters as it confers on state law enforcement officers, no more and no less. § 112.18(1), Fla. Stat. (2001).

The 2007 amendment to section 943.13(6) lends no support to appellee’s position. That section 943.13(6) — enacted as part of the Department of Law Enforcement Act — limits its reach to “a law enforcement officer, correctional officer, or correctional probation officer” is perfectly natural, and does not reasonably suggest that firefighters, who are outside the purview of the Department of Law Enforcement Act altogether, should be treated differently. As amended, the Act provides, in pertinent part:

In order to be eligible for the presumption set forth in s. 112.18 while employed with an employing agency, a law enforcement officer, correctional officer, or correctional probation officer must have successfully passed the physical examination required by this subsection upon entering into service as a law enforcement officer, correctional officer, or correctional probation officer with the employing agency, which examination must have failed to reveal any evidence of tuberculosis, heart disease, or hypertension. A law enforcement officer, correctional officer, or correctional probation officer may not use a physical examination from a former employing agency for purposes of claiming the presumption set forth in s. 112.18 against the current employing agency.

§ 943.13(6), Fla. Stat. (2008). Section 943.13 makes unmistakably clear that the Legislature reads section 112.18, exactly the same way Miami-Dade County does, as forbidding the use of “a physical examination from a former employing agency for purposes of claiming the presumption set forth in s. 112.18 against the current employing agency.” § 943.13(6), Fla. Stat. (2008).

No examination in 1972 gave rise to the presumption set forth in section 112.18 so as to make Miami-Dade County responsible for workers’ compensation benefits on account of the off-duty cardiac event Mr. Davis experienced in 2002 while employed with Miami-Dade County, employment that only began in 1995, after a preemployment physical revealed that he suffered from heart disease before he ever began working for Miami-Dade County.

Reversed.

LEWIS and ROBERTS, JJ, concur.

      . Claimant filed petitions against both Miami-Dade County and the City of Gainesville seeking, among other things, permanent total disability benefits. Pursuant to the parties' agreement, the JCC bifurcated the issue of compensability from the claims against Miami-Dade County for permanent total disability and other benefits.
      The City of Gainesville and Miami-Dade County filed petitions seeking contribution from one another. The parlies later stipulated to a stay of claimant's claims against the City pending the outcome of his claims against the County.

      . Section 633.34 was initially numbered as section 163.490, Fla. Stat. (1971) and states:
      After July 5, 1969, any person initially employed as a fire fighter must:
      (1) Be a citizen of the United States or have applied for citizenship.
      (2) Be a high school graduate or the equivalent, as the term may be determined by the council.
      (3) Not have been convicted of a felony or of a misdemeanor involving moral turpitude, as the term is defined by law.
      (4) Have his fingerprints on file with the council or an agency designated by the council.
      (5) Have a good moral character as determined by investigation under procedure established by the council.
      (6) Be in good physical condition as determined by a medical examination as prescribed by the council.

      . Section 633.35 was renumbered from section 163.495, Fla. Stat. (1971):
      (1)The council shall establish a fire fighter training program administered by such agencies and institutions as it approves and shall issue, or authorize the issuance of, a certificate of completion to any person satisfactorily completing the training program.
      (2) The council shall issue a certificate of compliance to any person satisfactorily complying with the training program established in subsection (1) of this section and the qualifications for employment in § 163.490. No person shall be employed as a regular or permanent fire fighter as defined by the employing agency until he has obtained such certificate of compliance.
      (3) The council may issue a certificate to any person who has received training in another state when the council has determined that such training was at least equivalent to that required by the council for approved fire fighter education and training programs in this state and when such person has satisfactorily complied with all other requirements of this part.


author: SUAREZ, J.

text:
    CRC 1803, LLC, etc., Appellant, v. NORTH CARILLON, LLC, etc., Appellee.
    No. 3D08-3137.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 2009.
    Rehearing and Rehearing En Banc Denied Feb. 5, 2010.

      Lawrence R. Metsch, Miami, for appellant.
    Berman Rennert Vogel & Mandler and Jason R. Block and Joshua Feinberg and Thomas S. Ward, Miami, for appellee.
    Before GERSTEN, SUAREZ, and LAGOA, JJ.
   SUAREZ, J.

CRC 1803, LLC (“CRC”) appeals from the trial court’s order dismissing with prejudice its complaint against North Carillon, LLC (“North Carillon”) for revocation of contract based on 15 U.S.C. section 1703(a)(1)(B). We affirm as the Complaint was not filed within the two year statutory requirement for revocation.

North Carillon is a developer of the North Carillon Beach Condos. On May 1, 2006, CRC, a Nevada corporation, placed a deposit and signed a pre-construction contract to purchase a condominium unit from North Carillon. North Carillon signed the contract on May 22, 2006. On May 2, 2008, two years and two days after CRC signed the preconstruction contract, CRC filed suit against North Carillon pursuant to 15 U.S.C. § 1703, the Interstate Land Sales Full Disclosure Act (ILSA), seeking to revoke the contract. The complaint alleges that North Carillon failed to provide a property report prior to CRC signing the contract as required by 15 U.S.C. section 1703(a)(1)(B). North Carillon responded with a motion to dismiss, arguing that as section 1703 of the ILSA contains a two-year limitations period, and as CRC signed the contract on May 1, 2006, and filed suit on May 2, 2008, its revocation claim is barred. CRC argued that the claim was not barred because the contract was actually fully executed on May 22, 2006, when North Carillon signed. The trial court heard arguments and concluded that, based on these facts, 15 U.S.C. § 1703 required CRC to have filed its complaint within two years after CRC signed the purchase contract and, as it did not, it was time-barred from filing for revocation. The court granted North Carillon’s motion to dismiss, with prejudice, and based on these facts, we affirm.

North Carillon does not dispute the allegation that it failed to supply CRC with the statutorily required property report prior to CRC signing the preconstruction contract. In interpreting the statute, Federal case law clearly provides that if the buyer fails to exercise the buyer’s statutory right of revocation within the two-year window provided in 15 U.S.C. § 1703, the buyer is barred from filing a suit to enforce that right. See Bush v. Bahia Sun Associates, 2009 WL 963133 (M.D.Fla. April 8, 2009) (harmonizing the two limitations periods found in § 1703 and § 1711); Von Elgg v. Carlyle Developers, Inc., 2009 WL 961144 (M.D.Fla. April 2009); Tail v. 430 Hibiscus, L.P., 2009 WL 455439 (S.D.Fla. Feb.2009); Taylor v. Holiday Isle, LLC, 561 F.Supp.2d 1269 (S.D.Ala.2008); Meitis v. Park Square Enterprises, 2008 WL 5351619 (M.D.Fla. Dec. 2008); Orsi v. Kirkwood, 1992 WL 511406 (E.D.Va. April 1992). Section 1703 creates the statutory rights that may be invoked by the purchaser and places a time limit on those rights. The statute allows the purchaser to revoke the contract within two years of the purchaser’s signing of the purchase contract for the seller’s failure to timely provide the property report. If the purchaser fails to revoke within two years from the date of signing, then the purchaser’s right to revoke is extinguished by operation of section 1703’s express provisions. Any attempt to revoke or file suit to revoke beyond those two years is barred. If the purchaser invoked the purchaser’s statutory right to revoke the contract within two years of the purchaser’s signing of the contract to purchase and the developer failed or refused to revoke, then, under § 1711, the purchaser has the right to file an action to enforce the purchaser’s right to revoke and has three years from the date of the purchaser’s signing of the contract to file such an action to enforce. CRC failed to revoke within two years of CRC’s signing of the purchase contract. As the court and parties noted, the suit to revoke the purchase contract was CRC’s first and sole attempt at revocation and it was filed more than two years after CRC had signed the purchase contract. As such, the two year period to revoke set forth in section 1703 had run prior to CRC filing the complaint and was time-barred. If CRC had moved to revoke prior to the two years, it would have had three years to file and its complaint would have been timely. Based on these facts, we affirm the trial court’s order granting North Carillon’s motion to dismiss with prejudice.

Affirmed.

      . Contrary to CRC's assertion, the trial court's grant of North Carillon’s motion to dismiss was not based on failure to state a cause of action; it was based on the failure to assert rights within a statutorily prescribed period, thus extinguishing those rights. This is a dispositive issue of law, and the trial court correctly dismissed the complaint on that basis.

      . 15 U.S.C. § 1703(a) describes prohibited activities under ILSA; subsection (1)(B) is the prohibited activity of failing to provide a property report. Section 1703(c) describes the purchaser’s option to revoke the contract if a property report was not furnished prior to the purchaser signing the contract. This sec-lion also provides that the purchaser has the option to seek revocation of the contract or agreement within two years from the date of such signing. 15 U.S.C. § 1709 is entitled Civil Liabilities. That section gives a purchaser the right to pursue an action at law or in equity against a developer or seller if it violated § 1703(a), the prohibited activities section. Section 1709 merely describes what remedy can be sought. Finally, 15 U.S.C. § 1711 is entitled Limitation of Actions. This section provides that, for violations of § 1703(b) to (e), a purchaser cannot bring an action to enforce a right created under § 1703 unless brought within three years after signing the contract.

      . CRC argues that, even if its equitable remedy fails, its claim for legal relief (damages) should survive. The "damages" it seeks, however, is the deposit CRC placed when it signed the contract. In other words, what CRC seeks is merely that which would put the parties in the same position they had been in prior to signing the contract. This does not constitute legal "damages” and is not contemplated separate from a viable suit under section 1709(a). See Von Elgg v. Carlyle Developers, 2009 WL 961144 (M.D.Fla. April 2009) (the 'damages' asserted — deposits, interest, court costs and attorneys’ fees, were not a result of failure to provide the property report and are not ‘damages’ under § 1709); see also § 1709(a).


author: LAGOA, Judge.

text:
    UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. PROFESSIONAL MEDICAL GROUP, INC., a/a/o Gaston M. Botta, Respondent.
    No. 3D09-828.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 2009.
    Rehearing and Rehearing En Banc Denied Feb. 10, 2010.

      Thomas L. Hunker, for petitioner.
    Lopez & Best and Virginia M. Best, for respondent.
    Before COPE, LAGOA, and SALTER, JJ.
   LAGOA, Judge.

United Automobile Insurance Co. (“United”) petitions for second-tier certio-rari review of the circuit court appellate division’s per curiam affirmance of a final summary judgment entered in favor of the respondent, Professional Medical Group, Inc. (“PMG”). Because we find no departure from the essential requirements of the law, we deny the petition.

I. FACTUAL AND PROCEDURAL HISTORY

On August 15, 2004, Gaston Botta, a United insured, sustained injuries in an automobile accident. As a result of those injuries, Botta received medical treatment from PMG beginning on August 19, 2004 and concluding on November 17, 2004. Botta assigned his personal injury protection benefits to PMG, and PMG then sought payment for the treatment from United. United received three sets of bills from PMG: the first on October 18, 2004; the second on November 9, 2004; and the third on December 1, 2004. On December 14, 2004, PMG sent a demand letter to United along with a resubmission of the bills, which included the physician’s license number in Box 31 of the CMS-1500 forms. United, however, denied PMG’s claim for benefits.

On November 6, 2006, PMG filed its complaint seeking unpaid benefits. As affirmative defenses, United claimed that payment was not required because PMG did not provide United with proper written notice of a covered loss where: (1) the initial set of bills did not include a disclosure and acknowledgment form (“D and A form”), as described in section 627.736(5)(e), Florida Statutes (2004); and (2) Box 31 of the CMS-1500 claim form did not contain the physician’s license number, as required by section 627.736(5)(d), Florida Statutes (2004).

Subsequently, PMG filed a motion for summary judgment on both of United’s affirmative defenses — failure to include the physician’s license number and failure to provide the D and A form with the initial set of bills. The trial court granted summary judgment in favor of PMG, finding that PMG had substantially complied with the statute. While a discrepancy existed below regarding this issue, United concedes that on October 10, 2006 it did in fact receive the D and A form, along with a second demand letter.

Regarding the physician’s missing license number, PMG explained to the trial court that the demand letter received by United on December 14, 2004, also included a CMS-1500 form which contained the physician’s license number. In granting summary judgment in favor of PMG, the trial court found that PMG had adequately corrected the initial error of failure to provide the license number, and that United knew who the physician was.

The trial court subsequently entered final judgment in PMG’s favor, and the circuit court appellate division entered a per curiam affirmance. This appeal ensued.

II. STANDARD OF REVIEW

The issuance of a writ of certio-rari “is limited to those instances where the lower court did not afford procedural due process or departed from the essential requirements of the law.” Allstale Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003). A departure from the essential requirements of the law that is sufficient to justify the issuance of a writ requires a violation of a clearly established principle of law resulting in a miscarriage of justice. Id. Accordingly, “review on second-level certiorari is extremely limited.” Williams v. Miami-Dade County, 969 So.2d 389, 392 (Fla. 3d DCA 2007).

III. ANALYSIS

On appeal, United first claims that the physician’s failure to provide his or her license number on a claim form fails to provide United with “written notice of the fact of a covered loss” as required by section 627.736(4)(b), Fla. Stat. (2004), and that this omission cannot be cured prior to litigation.

Second, United argues that in order for it to have received notice of a covered loss, the initial and timely set of bills must include the D and A form as described in section 627.736(5)(e), and that this omission cannot be cured prior to litigation. We find both arguments to be without merit.

Pursuant to section 627.736(4)(b), personal injury protection benefits are overdue “if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss.” As such, the triggering event for determining when a payment is overdue is the insurer’s receipt of written notice of a covered loss. Section 627.736(5) (d) sets forth the requirements for providing notice of a loss:

All statements and bills for medical services rendered by any physician, hospital, clinic, or other person or institution shall be submitted to the insurer on a properly completed Centers for Medicare and Medicaid Services (CMS) 1500 form, UB 92 forms, or any other standard form approved by the office or adopted by the commission for purposes of this paragraph.... All providers other than hospitals shall include on the applicable claim form the professional license number of the provider in the line or space provided for “Signature of Physician or Supplier, Including Degrees or Credentials.” ... For purposes of paragraph (4)(b), an insurer shall not be considered to have been furnished with notice of the amount of covered loss or medical bills due unless the statements or bills comply with this paragraph, and unless the statements or bills are properly completed in their entirety as to all material provisions, with all relevant information being provided therein.

(emphasis added). “Properly completed,” in turn, is defined in section 627.732(13), Florida Statutes (2004):

“Properly completed” means providing truthful, substantially complete, and substantially accurate responses as to all material elements to each applicable request for information or statement by a means that may lawfully be provided and that complies with this section, or as agreed by the parties.

(emphasis added). Additionally, section 627.736(5)(b)l.d., Florida Statutes (2004), states that an insurer is not required to pay a claim or charges “[w]ith respect to a bill or statement that does not substantially meet the applicable requirements of paragraph (d).” Accordingly, based upon the statute’s plain language, a bill or statement need only be “substantially complete” and “substantially accurate” as to relevant information and material provisions in order to provide notice to an insurer.

In this case, the initial set of bills that PMG furnished to United contained the name of the physician in the appropriate box on the form. Moreover, numerous other forms and medical records provided to United contained the physician’s name as well. United did not claim below that it did not know who the physician was, or that the person named on the form was not in fact a licensed physician. Indeed, after receiving the bills, United proceeded to process the matter by sending the insured, Botta, to examinations and a peer review. At no time did United object to the missing physician license number. Given these facts, United cannot claim it was harmed or prejudiced by the missing number. As such, we find that the initial set of bills PMG provided to United were “substantially complete” as to all relevant and material information as required by section 627.736(5)(d).

Additionally, even if the physician’s license number were deemed a material provision of the statements or bills, nothing in the statute’s plain language indicates that the absence of the license number cannot be cured by later submission of the number to the insurer on a claim form as described in section 627.736(5)(d). It is undisputed that PMG provided United the license number on another claim form that was mailed to United with a demand letter prior to litigation. Accordingly, any error or omission, if it existed, was sufficiently cured by PMG prior to the initiation of litigation.

With respect to the issue of the D and A form, the same reasoning also applies. Sections 627.736(5)(e)l, and (5)(e)5 state:

1. At the initial treatment or service provided, each physician ... providing medical services upon which a claim for personal injury protection benefits is based shall require an insured person, or his or her guardian, to execute a disclosure and acknowledgment form....
5. The original completed disclosure and acknowledgment form shall be furnished to the insurer pursuant to paragraph (4)(b) and may not be electronically furnished.

United claims that the section 627.736(5)(e)5’s reference to paragraph (4)(b) means that a failure to provide a D and A form with the initial, timely set of bills results in a failure to place the insurer on notice of a covered loss. Even assuming United’s interpretation of the statute’s reference to paragraph (4)(b) were correct, we find that PMG cured any defect in submitting the D and A form prior to litigation. As previously noted, United now concedes, contrary to what it claimed below, that it received the form on October 10, 2006. There is nothing in the language of this statute that supports United’s conclusion that a failure to provide a D and A form with the initial, timely set of bills cannot be cured.

Accordingly, we conclude that the circuit court appellate division applied the correct law, and did not depart from the essential requirements of the law. We, therefore, deny the petition for writ of certiorari.

Petition denied.

      . The claim was reported to United on August 25, 2004, and United sent Botta for an examination under oath on September 21, 2004. Additionally, United sent Botta for an independent medical examination on October 19, 2004, and also conducted a peer review on June 8, 2005.

      . United also argues that the circuit court departed from the essential requirements of the law in affirming the trial court’s granting of summary judgment in favor of PMG on United's affirmative defense that the bills were not reasonable, related, or necessary. Because we find that the issue was not preserved for appellate review, we do not address this claim. See Roth v. Cohen, 941 So.2d 496, 500 (Fla. 3d DCA 2006).


text:
    PMI MORTGAGE INSURANCE CO., etc., Appellant, v. Martin D. KAHN, Appellee.
    No. 3D09-65.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 2009.
    Rehearing Denied Feb. 2, 2010.
    Jacobson, Sobo & Moselle, and Mark W. Rickard, Plantation, for appellant.
    Martin D. Kahn, in proper person.
    Before RAMIREZ, C.J., and COPE and SALTER, JJ.
   PER CURIAM.

PMI Mortgage Insurance Co. appeals a final circuit court judgment requiring PMI, as judgment creditor, to pay special magistrate fees incurred in connection with proceedings supplementary to PMI’s execution against a judgment debtor. The order did not in any way preclude PMI from seeking thereafter to tax those fees against the judgment debtor in the underlying case. We affirm.

In March 2005, PMI Mortgage Insurance Co. obtained a judgment against Jose A. Baide. As the judgment creditor, PMI began proceedings supplementary against Baide. In June 2006, upon motion by PMI, the court appointed the appellee as special magistrate for the debtor’s examination. PMI’s proposed order granting proceedings supplementary provided that the costs of the proceedings should be assessed against Baide. The trial court struck out this provision.

In July 2007, the appellee was replaced as special magistrate by a circuit court general magistrate. The general magistrate filed her report in September 5, 2007. A year later, the appellee filed a motion to have his fees paid by PMI. The trial court granted the motion, and PMI appealed.

Subsection 56.29(11), Florida Statutes (2006), provides that costs in proceedings supplementary are taxable against the judgment debtor. The appellee argues that the costs of a special magistrate should be borne in the first instance by the moving judgment creditor, PMI, and that those expenses may thereafter be taxed against the judgment debtor. We agree.

PMI’s position that it is not responsible for the fees seems to be supported by several cases holding that “fees may only be assessed against the judgment debtor.” Bloco, Inc. v. Porterfield Oil Co., 990 So.2d 578, 580 (Fla. 2d DCA 2008) (finding that fees may only be assessed against judgment debtor); Gaedeke Holdings, Ltd. v. Mortgage Consultants, Inc., 877 So.2d 824, 826 (Fla. 4th DCA 2004) (same); Rosenfeld v. TPI Int’l Airways, 630 So.2d 1167 (Fla. 4th DCA 1993) (same). These cases, however, are distinguishable. In each, a judgment creditor used statutory proceedings supplementary to implead third parties alleged to have received fraudulent transfers from the judgment debtor. Those cases correctly applied the statute to prohibit the taxation of the costs of the proceedings against the impleaded third parties. Those cases did not determine the question presented here: is the moving judgment creditor responsible for the payment of the special magistrate in the first instance and in the absence of an order of appointment specifying a different procedure for compensation of the special magistrate?

We answer that question in the affirmative, concurring with a manual for practitioners on the topic: “[o]f course, the judgment creditor must pay for the magistrate, but the costs may be taxed against the defendant.”

The trial court correctly ordered PMI to pay the fee. PMI may recover the fee from the judgment debtor as costs at the conclusion of the proceedings supplementary. Id,.; Calderon v. Kalb, 963 So.2d 857 (Fla. 3d DCA 2007).

Affirmed.

      . PMI's motion for proceedings supplementary specifically referred to examination before the court or a "special magistrate.” Subsection 56.29(2), Florida Statutes (2006), allows the examination to be conducted by the court, a general magistrate, or a special magistrate. Under subsection 56.29(7), a special magistrate "shall be paid the fees provided by law.” Section 69.051, Florida Statutes (2006), provides that a special magistrate "appointed by the court shall be allowed such compensation for any services as the court deems reasonable. ...”

      . Section 56.29(11) provides: "Costs for proceedings supplementary shall be taxed against the defendant as well as all other incidental costs determined to be reasonable and just by the court including, but not limited to, docketing the execution, sheriff's service fees, and court reporter's fees. Reasonable attorney’s fees may be taxed against the defendant.” (Emphasis added).

      . The Florida Bar, Creditors' and Debtors' Practice in Florida § 11.12, at 11-15 (3d. ed. 2007) (citing § 56.29(7), (11), Fla. Stat.).


text:
    FERNWOODS CONDOMINIUM ASSOCIATION # 2, INC., Appellant, v. Angel Alfredo ALONSO and T & G Management Services, Inc, Appellees.
    No. 3D09-1489.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 2009.
    Rehearing Denied Feb. 1, 2010.
    Nicolas A. Manzini, Miami, for appellant.
    Vernis & Bowling, Patrick H. Gonyea and Gerardo A. Levy, Miami, for appellees.
    Before COPE, WELLS, and CORTIÑAS, JJ.
   WELLS, Judge.

Fernwoods Condominium Association #2, Inc. (“Fernwoods”), a condominium association, appeals the order denying its motion for new trial and the amended final judgment which followed. We find no merit to Fernwoods’ argument that the orders must be reversed because when they were issued, Fernwoods’ post-trial motion to disqualify was pending. Here, the trial judge ruled orally before any motion to disqualify was filed, and the orders under review were no more than ministerial actions reducing those oral rulings to writing. Accordingly, we affirm.

Fernwoods brought suit for breach of fiduciary duty and breach of contract against its director, Angel Alfredo Alonso and its property manager, T & G Management Services, Inc. Following a jury trial, Judge William Thomas entered final judgment in Alonso and T & G’s favor, and awarded them their fees and costs. Fern-woods filed a motion for a new trial and a motion to vacate the final judgment. Before the hearings on those motions, Judge Thomas, being relatively new to the civil bench, contacted Fernwood’s counsel, asking if after the case was over, counsel would give him some “constructive criticism” on how he had conducted the trial. At the time of the hearing on Fernwoods’ motions for new trial and motion to vacate, Fernwood’s counsel had yet to give any “feedback” and likewise had not filed any motion to disqualify.

On April 17, 2009, the lower court held a hearing on Fernwoods’ two motions; the trial judge orally denied the motion for new trial, but granted the motion to vacate, agreeing that he had mistakenly awarded fees and costs, when he should have reserved jurisdiction on that issue. The judge concluded: “I’ll enter a new Final Judgment that simply says everything except — I’ll take out the entitlement to attorney’s fees and say the Court reserves jurisdiction to determine whether or not the attorneys are entitled to fees and costs.” In response to which Fern-woods’ counsel said: “That would be fine.”

Judge Thomas, also took that opportunity to disclose his earlier conversation with Fernwoods’ counsel:

I called Mr. Manzini and I said to Mr. Manzini, after the trial is over — Well actually, I said to Mr. Manzini you’ve been doing this a long time. After, I’d love to sit down with you and get some feedback in terms of how the Court, you know, any suggestions because I’m ... ten weeks forward in civil and you know I’ve never really done a civil case or docket and that type of thing and, you know, just want feedback from people just to kind of put you in the right direction on those things where they think you may be going down the wrong road and I don’t want compliments. I told Mr. Manzini I don’t want your compliments. I want your constructive criticism and so, yeah, I told him that.

Having made his oral rulings on the motion for new trial and to amend final judgment, the hearing concluded. The judge issued a written order denying the motion for new trial that same day, April 17, 2009. On April 20, 2009, Fernwoods filed its motion to disqualify Judge Thomas on the basis of the communication described above and other perceived irregularities. On April 28, 2009, Judge Thomas entered an amended final judgment consistent with his April 17th oral ruling — reserving jurisdiction on fees and costs.

On April 30, 2009, Judge Thomas entered an order acknowledging that he had asked Fernwoods’ counsel if, when the case concluded, counsel would provide some constructive criticism, disputing all other perceived irregularities, and disqualifying himself from the case. On May 6, 2009, citing the disqualification, Fernwoods filed a motion with the lower court under Florida Rule of Judicial Administration 2.330(h), seeking to have the successor judge assigned to the case reconsider both the amended final judgment and the order denying new trial. Before the Rule 2.330(h) motion was heard, however, on May 27, 2009, Fernwoods filed its notice of appeal.

We affirm both the denial of new trial and the amended final judgment. No miscarriage of justice occurred. It is well settled in Florida that a disqualified judge may enter orders that are part of his/her ministerial duties, including reducing to writing oral rulings made prior to a motion to disqualify:

A motion for recusal is considered untimely when delayed until after the moving party has suffered an adverse ruling unless good cause for delay is shown. Data Lease Financial Corp. v. Blackhawk Heating & Plumbing Co., 325 So.2d 475 (Fla. 4th DCA 1975). When a judge has heard the testimony and arguments and rendered an oral ruling in a proceeding, the judge retains the authority to perform the ministerial act of reducing that ruling to writing. Atrio [Consol. Indus., Inc. v. Southeast Bank, 434 So.2d 349 (Fla. 3d DCA 1983)]; Schwartz [v. Schwartz, 431 So.2d 716 (Fla. 3d DCA 1983)]; Coastal Petroleum Co. v. Mobil Oil Corp., 378 So.2d 336 (Fla. 1st DCA), cert. denied, 386 So.2d 635 (1980).

Fischer v. Knuck, 497 So.2d 240, 243 (Fla.1986); see Sibley v. Sibley, 885 So.2d 980, 984 n. 3 (Fla. 3d DCA 2004) (“When a judge has heard the testimony and arguments and rendered an oral ruling in a proceeding, the judge retains the authority to perform the ministerial act of reducing that ruling to writing.” (quoting Fischer, 497 So.2d at 243)).

Thus, while Judge Thomas may not have been authorized to enter any order on matters arising after the motion to disqualify was filed, April 20, 2009, he certainly was authorized to reduce to writing his rulings issued prior to April 20, 2009. This is especially true considering the relief sought and granted, and counsel’s agreement to same at the hearing below.

Accordingly, the orders under review are affirmed without prejudice for the successor judge to consider Fernwoods’ Rule 2.330 motion that remains pending in the lower court.

Affirmed.

      . Florida Rule of Judicial Administration 2.330(h) provides:
      Prior Rulings. Prior factual or legal rulings by a disqualified judge may be reconsidered and vacated or amended by a successor judge based upon a motion for reconsideration, which must be filed within 20 days of the order of disqualification, unless good cause is shown for a delay in moving for reconsideration or other grounds for reconsideration exist.


text:
    Michael BARLATIER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-1189.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 2009.
    Rehearing Denied Jan. 27, 2010.

      Carlos J. Martinez, Public Defender, and Leslie Scalley, Special Assistant Public Defender, Tampa, for appellant.
    Bill McCollum, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and SUAREZ, JJ.
   SUAREZ, J.

The defendant appeals his conviction and sentence for unlawful possession of a firearm by a convicted felon. We affirm.

The defendant was charged by an amended three-count information with resisting an officer with violence, battery on a law enforcement officer and unlawful possession of a firearm by a convicted felon. Prior to trial, the State and the defense agreed to sever Counts I and II and proceed to trial on Count III, the unlawful possession of a firearm charge. Miami Police Detective Thomas was the first witness for the State. He testified that, on November 15, 2003, while on duty, he received information regarding an arrest warrant for the defendant along with an address and description of the vehicle he was driving. The first time the detective arrived at the address, the defendant was not present. Later that evening, the detective observed the described vehicle at the given address and set up a surveillance perimeter. He observed two suspects walking to the vehicle, one going to the driver’s side and the other to the passenger’s side. When the vehicle drove off, he called for Robbery Intervention Detail to block the car so that the occupants could not escape. Once the vehicle was blocked, Detective Thomas walked up to the passenger’s side and asked the passenger to step outside. He then handcuffed the passenger. Weapons were neither observed on the passenger’s side of the vehicle nor seen being placed on the driver’s side. Another officer, Detective Burke, identified the driver as the defendant, Michael Barlatier, and ordered him to step out of the vehicle. When the defendant stuck his foot outside the car as if he were getting out of the vehicle, Detective Burke saw the gun on the floor. Burke yelled “fifty-five” to signal the presence of a gun. The defendant made a swiping motion, as if he was going to knock the gun back under the seat to hide the weapon. Detective Burke did not see anyone else touch the gun. Detective Thomas testified that he also saw the gun protruding from under the seat of the driver’s side of the vehicle. He further testified that the defendant did not have the opportunity to stop the car and switch positions with the passenger. The defendant’s girlfriend testified that she lent the car to the defendant two or three days prior to the incident, but that she never brought firearms into the vehicle. At the close of the State’s case, the defendant moved for a judgment of acquittal arguing that the State did not meet its burden of proving constructive possession of the gun. The trial court denied the motion. During closing argument, there were un-ruled-upon objections to the prosecutor’s summary of the law on constructive possession and the prosecutor’s speculation that there was no evidence presented that the defendant’s girlfriend could have placed the gun in the vehicle. The trial court instructed the jury on the law of constructive possession and on the general rule that what attorneys say is not evidence. The case then went to the jury. The jury returned a verdict finding the defendant guilty of possession of a firearm by a convicted felon. He was sentenced to thirty years in prison as a habitual offender. The defendant appeals his conviction and sentence.

The defendant raises two points on appeal. The first alleges error in the denial of the motion for judgment of acquittal on grounds that the evidence was insufficient to support the conviction for possession of a firearm by a convicted felon. The defendant bases his argument on the proposition that constructive possession was not established as there was no evidence that the defendant knew the firearm was in the car or that he exercised control over it.

A trial court’s ruling on a motion for judgment of acquittal is reviewed de novo. Boyd v. State, 910 So.2d 167 (Fla.2005). Constructive possession exists where a person without physically possessing a firearm knows of its presence and has the ability to maintain control over it. See Hunter v. State, 914 So.2d 985 (Fla. 4th DCA 2005). The facts, as established through the detectives’ observations and testimony, excluded the possibility that someone other than the defendant could have placed the gun under the driver’s seat between the time the vehicle was approached and pulled over until it was searched, or that someone other than the defendant could have placed the gun under the driver’s seat while the search was ongoing. In accordance with the detectives’ observations and conclusions, the only one that could have had possession and control over the gun was the defendant. Cf. Petion v. State, 4 So.3d 83 (Fla. 4th DCA 2009), review granted, 15 So.3d 581 (Fla.2009). That the defendant was trying to knock the gun back under the seat to hide it is in accord with the detective’s testimony that established that the defendant “[put] his hand down not as if he is going to grab the gun, but as if he’s going to swipe the gun, knock it back under the seat with his arm and he has his arm extending and his leg out.” The circumstantial evidence in this case surrounding the discovery of the gun in plain view under the driver’s seat where the defendant was sitting was sufficient to establish constructive possession on the motion for judgment of acquittal. The facts are sufficient for the jury to infer that the defendant knew of the presence of the gun and had the ability to control it. The issue of constructive possession was rightfully submitted to the jury for deliberation. See Muwwakil v. State, 435 So.2d 304, 305 (Fla. 3d DCA 1983) (“The test to be applied on review of a denial of a motion for judgment of acquittal is not whether, in the opinion of the trial court or appellate court, the evidence fails to exclude every reasonable hypothesis but that of guilt but, rather, whether the jury might reasonably so conclude.”). The trial court was correct in denying the defendant’s motion for judgment of acquittal.

The second point on appeal alleges error in the prosecutorial comment that the defendant was guilty because of the fact that he was a convicted felon with a gun in the car and the State’s comment in closing argument that no evidence was presented that the defendant’s girlfriend could have left the gun in the car. The defendant alleges that the second remark was a comment on his Fifth Amendment right to remain silent. Defendant’s arguments that the prosecutor misstated the law and that the State implied that the defendant failed to present evidence that someone, like the defendant’s girlfriend, could have placed the gun under the seat, fall under the harmless error test. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986). Because the correct law was later clarified in closing argument by defense counsel, the State and also by the trial judge who instructed that arguments of counsel do not constitute evidence and gave the correct instructions for the jury to follow, there was no reasonable probability that the misstatements contributed to the verdict and no fundamental error occurred. See Cox v. State, 966 So.2d 337, 346 (Fla.2007) (concluding that prosecuto-rial misrepresentation of the responsibility of the jury with regard to weighing the evidence was not so fundamental error as to reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error). The State’s comment on the lack of evidence to show that the girlfriend might have placed the gun under the seat was an invited response and a fair comment on the evidence, not violative of the rule prohibiting comment on the defendant’s failure to testify. See, e.g., State v. Mathis, 278 So.2d 280 (Fla.1973).

The defendant’s conviction for possession of a firearm by a convicted felon is therefore affirmed.

Affirmed.

      . The prosecutor stated:
      If Michael Barlatier gets in there, just starting off with the presumption that he didn’t take it with him, but if he gets in there and that gun is in there he’s in possession of it.

      You certainly knew it’s there, but I’m sorry folks, I’m here to tell you, if you're a convicted felon and you go to get into a car and there’s a gun sitting on the floor, you’re not allowed to get in the car.

      We can speculate that yes, Kelly Palmer three days before could have left it there but what evidence do you have of that? None.

      . Defense counsel stated:
      There are some points which Mr. Vander-geisen has brought out which are just not correct, which is flat out wrong. It is not a crime for Mr. Barlatier to have been in that car in the presence of that firearm. That’s not the charge. The charge is that Mr. Barlatier has possession of the firearm. There are two ways that the law says a person can be in possession of a firearm and the Court is going to instruct you on them....

      . The prosecutor stated:
      What’s going to happen is the Judge is going to read to you guys these instructions abut what the law is. And the then you’re going to be given a packet of them to take back. What this is, is a blow up so I can explain to you how the facts fit.
      The first one is that the defendant was a convicted felon at the time. The reason why I say possession is an issue and how the gun got there may not necessarily be an issue is because of this. After the defendant was a convicted felon, he knowingly, we know that's true, he’s a convicted felon and couldn't have knowingly owned a gun. It's part of the instruction and this an option, not telling you I’m not trying to prove that he didn’t knowingly own that gun.


text:
    Samuel GARDNER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-5876.
    District Court of Appeal of Florida, First District.
    Dec. 21, 2009.
    Rehearing Denied Feb. 3, 2010.
    Samuel Gardner, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

WEBSTER, DAVIS, and PADOVANO, JJ., concur.