author: COLBATH, JEFFREY, Associate Judge.

text:
    Philip Jerome ALEONG, D.Y.M., Appellant, v. STATE of Florida, DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, Appellee.
    No. 4D06-1298.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2007.
    Rehearing Denied Sept. 28, 2007.

      Bradford J. Beilly of Bradford J. Beilly, P.A., Fort Lauderdale, and Robert I. Bar-rar of the Law Offices of Ellis Rubin and Robert I. Barrar, Miami, for appellant.
    Charles F. Tunnicliff and Jessica Leigh, Tallahassee, for appellee.
   COLBATH, JEFFREY, Associate Judge.

Dr. Philip Jerome Aleong, D.V.M., timely appeals an order of the Board of Veterinary Medicine (“Board”), which granted the Department of Business and Professional Regulation’s (“Department”) Motion for Waiver of Rights, filed after Dr. Aleong failed to timely request a hearing to dispute the Department’s allegations of inadequate recordkeeping, and imposed a sanction. The subject order is affirmed in part and reversed in part.

Florida Administrative Code Rule 28-106.111 (2007), provides in relevant part:

28-106.111. Point of Entry into Proceedings and Mediation.
(2) Unless otherwise provided by law, persons seeking a hearing on an agency decision which does or may determine their substantial interests shall file a 'petition for hearing with the agency within 21 days of receipt of written notice of the decision.
(3) An agency may, for good cause shown, grant a request for an extension of time for filing an initial pleading. Requests for extension of time must be filed with the agency prior to the applicable deadline. Such requests for extensions of time shall contain a certificate that the moving party has consulted with all other parties, if any, concerning the extension and that the agency and any other parties agree to or oppose the extension. A timely request for extension of time shall toll the running of the time period for filing a petition until the request is acted upon.
(4) Any person who receives written notice of an agency decision and who fails to file a written request for a hearing within 21 days waives the right to request a hearing on such matters. This provision does not eliminate the availability of equitable tolling as a defense, (emphasis added).[]

It is undisputed that Dr. Aleong failed to file a petition for hearing within twenty-one days of receipt of the Department’s complaint. It is also undisputed that Dr. Aleong’s failure to timely request a hearing was a result of his attorney’s mistake in not properly calendaring the date by which Dr. Aleong’s petition should have been filed. Dr. Aleong argues in his appeal that the doctrines of equitable tolling and excusable neglect apply and operate to relieve him of the consequences of his failure to timely file his petition.

The doctrine of equitable tolling is generally applied when a plaintiff has been “misled or lulled into inaction, has in some extraordinary way been prevented from asserting his rights, or has timely asserted his rights mistakenly in the wrong forum.” Machules v. Dep’t of Admin., 523 So.2d 1132, 1134 (Fla.1988). Three of Florida’s district courts have held that the untimely filing of a request for hearing by counsel is not an “extraordinary” circumstance which warrants the application of the doctrine of equitable tolling. See Envtl. Res. Assocs. of Fla., Inc. v. State, Dep’t of Gen. Sens., 624 So.2d 330 (Fla. 1st DCA 1993); Cann v. Dep’t of Children & Family Servs., 813 So.2d 237 (Fla. 2d DCA 2002); Williams v. Albertson’s, Inc., 879 So.2d 657 (Fla. 5th DCA 2004). This court agrees, and holds that, in the instant case, the failure of Dr. Aleong’s counsel to timely file a petition for hearing did not amount to an extraordinary circumstance; accordingly, the doctrine of equitable tolling does not apply and does not serve to relieve Dr. Aleong of the consequences of the untimeliness of his petition.

Moving on to Dr. Aleong’s assertion that the doctrine of excusable neglect relieves him of the waiver of his right to a hearing, we agree with the Second and Third Districts that excusable neglect is not available in proceedings held under chapter 120, Florida Statutes. See Cann, 813 So.2d at 239; Patz v. Dep’t of Health, 864 So.2d 79 (Fla. 3d DCA 2003). The 1998 amendment to Florida Statutes section 120.569(2) added language requiring the dismissal of an untimely-filed petition. However, the amended statute does not eliminate the availability of the defense of equitable tolling. As explained, Dr. Aleong has not shown that the doctrine of equitable tolling applies. Accordingly, we are left with the mandatory language of section 120.569(2), which requires the dismissal of Dr. Aleong’s untimely petition.

Dr. Aleong further argues that the Board erred when it imposed upon him a sanction greater than that provided for in the disciplinary guidelines set forth in Florida Administrative Code Rule 61G18-30.001, without including written findings of aggravating circumstances in its order to justify the increased penalty. Pursuant to Florida Statutes section 455.2273, the Board was required to include in its order imposing sanctions written findings as to the aggravating circumstances which were the basis for its deviation from the recommended guidelines penalty. See Marrero v. Dep’t of Prof'l Regulation, Bd. of Psychological Exam’rs, 622 So.2d 1109 (Fla. 1st DCA 1993). As the penalties set forth in the subject order are greater than what is provided for in the disciplinary guidelines, and because the Board did not include in its order written findings of aggravating circumstances to justify such a deviation from the guidelines, the Board erred in imposing upon Dr. Aleong the increased penalties.

We have considered the additional claims raised by Aleong, but find no error beyond that addressed in this opinion. Based upon the above, the order of the Board is affirmed to the extent that it determined that Dr. Aleong’s failure to timely file his request for an administrative hearing operated as a waiver of his right to such a hearing, and to the extent that it rejected Dr. Aleong’s claim that the doctrines of equitable tolling and excusable neglect relieved him of the consequences of his untimely request for a hearing. The Board’s order is reversed to the extent that it imposed a penalty greater than that provided for in the disciplinary guidelines, and the matter is remanded for the Board to either impose a penalty within the guidelines or to make written findings which support the imposition of a harsher penalty.

Affirmed in part, Reversed in part, and Remanded.

STONE and TAYLOR, JJ., concur.

      . Rule 28-106.111 was amended during the pendency of this appeal.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Lazavius Donnell WEBB, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-851.
    District Court of Appeal of Florida, Third District.
    July 25, 2007.
    Rehearing Denied Sept. 11, 2007.
    Lazavius Donnell Webb, in proper person.
    Bill McCollum, Attorney General, and Juliet S. Fattel, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and RAMIREZ and SHEPHERD, JJ.
   PER CURIAM.

Defendant appeals from a summary denial of his Rule 3.800(a) motion to correct illegal sentence. Defendant alleges that his prior juvenile adjudications cannot be used as predicate offenses. The State correctly points out that defendant’s motion is facially insufficient and was therefore properly denied. Weford v. State, 784 So.2d 1222, 1223 (Fla. 3d DCA 2001). The State’s response nevertheless requests that we reverse and remand for further proceedings. As we can find no error in the trial court’s ruling, we decline the State’s entreaty. We treat the State’s response as a confession of error, deny the confession of error and affirm.

Affirmed.


author: RAMIREZ, J.

text:
    David E. BORACK, Appellant, v. Robert J. OROVITZ, and Robert J. Orovitz, P.A., d/b/a Hayt, Hayt & Landau, P.A., Appellees.
    No. 3D06-1841.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 2007.
    Rehearing Denied Sept. 26, 2007.

      Vincent F. Vaccarella, and Jordan M. Keusch,' Aventura, and David E. Borack, for appellant.
    Silver, Garvett & Henkel, Miami; Hersch & Talisman, and Patrice A. Talisman, Coconut Grove, for appellees.
    Before RAMIREZ, CORTIÑAS, and ROTHENBERG, JJ.
   RAMIREZ, J.

David E. Borack appeals a judgment that awarded appellees Robert J. Orovitz, and Robert J. Orovitz, P.A., d/b/a Hayt, Hayt & Landau, P.A., attorney’s fees and costs. We affirm because the law of the case doctrine bars this Court’s reconsideration of Borack’s entitlement to attorney’s fees.

Borack is a former law partner of Hayt, Hayt & Landau, P.A., who sued the firm for a determination of monies the firm owed him based upon Borack’s termination of involvement with that firm and the parties’ Shareholder Agreement. The trial court entered judgment in Borack’s favor in the sum of $128,402.54. The firm appealed in the first of three appeals.

In the first appeal, this Court reversed the judgment and remanded the cause with directions that the trial court enter judgment in a reduced amount. This Court also granted Orovitz’s motion for appellate attorney’s fees and remanded the cause to the trial court to fix the amount. Borack moved for rehearing of this Court’s order awarding fees, or clarification of this Court’s opinion, which this Court denied. Upon remand on May 30, 2006, the trial court granted Orovitz’s motion for trial level and appellate attorney’s fees.

Borack then sought review of the award of appellate attorney’s fees in this Court on June 29, 2006, under rule 9.400(c), Florida Rules of Appellate Procedure. This was over one year after our opinion had issued. We denied the motion. On July 13, 2006, the trial court entered its final judgment, and it awarded trial level and appellate attorney’s fees and costs, with prejudgment interest, in the firm’s favor. Borack now appeals this final judgment to this Court. Borack raises numerous arguments in this appeal, at the center of which he argues that the award of attorney’s fees is an invalid one because the award of fees is based upon an unenforceable settlement agreement, the same issue raised in his rule 9.400(c) motion.

We do not agree that Borack is now entitled to relief. As the second district stated in Specialty Restaurants Corp. v. Elliott, 924 So.2d 834 (Fla. 2d DCA 2005), the law of the case doctrine stands for the proposition that “questions of law that have actually been decided on appeal must govern the case in the same court and in the trial court through all subsequent stages of the proceedings.” Id. at 837. This doctrine includes issues “explicitly ruled on by the court” and issues “which were implicitly addressed or necessarily considered by the appellate court’s decision.” Id. The trial court here awarded appellate attorney’s fees, and this Court denied Borack’s rule 9.400(c) request to review the award and thereby affirmed the award. The trial court’s award of trial level attorney’s fees also requires the same result.

The law of the case doctrine likewise rejects Borack’s argument that this case is an exception to the law of the case doctrine. He argues that an exception lies here where the Florida Supreme Court’s decision in Lamb v. Matetzschk, 906 So.2d 1037 (Fla.2005), invalidated this Court’s decision to grant Orovitz’s motion for fees. This Court, however, already rejected this argument when it denied Borack’s rule 9.400(c) motion in which he raised the same argument.

We therefore affirm the award entered in Orovitz’s favor.

      . Orovitz v. Borack, 904 So.2d 519 (Fla. 3d DCA 2005).


author: LAGOA, J.

text:
    Henry G. THORNTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1892.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 2007.
    Rehearing Denied Sept. 11, 2007.

      David S. Molansky, for appellant.
    Bill McCollum, Attorney General, and Maria T. Armas, Assistant Attorney General, for appellee.
    Before RAMIREZ and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   LAGOA, J.

After this court reversed and remanded for a new trial in Thornton v. State, 852 So.2d 911 (Fla. 3d DCA 2003)(“Thomton I”), the State tried and convicted the defendant for a second time on the charges of first-degree murder and armed robbery. For the reasons set forth below, we are obliged to reverse the defendant’s conviction.

I. FACTUAL HISTORY

In 1998, the defendant, Thornton, along with a co-defendant, was charged with the first-degree murder and armed robbery of Garyn Perriman. Thornton was also charged with unlawful possession of a firearm while engaged in a criminal offense and grand theft of a motor vehicle. After a jury trial, Thornton was convicted of first-degree murder and armed robbery. In Thornton I, we reversed that conviction for two reasons, one of which related to the following question asked by the prosecutor to a state witness, Luis Varnado:

Q. Did Defendant Thornton talk to you about an incident, where something he did by club V.I.P. or near club V.I.P.?
A. No.
Q. Did Mr. Thornton tell you that he had to quote unquote, “Burn a n — -r near the V.I.P.?”

Id. at 911. This Court held that, among the several errors which resulted from this statement, was a violation of the rule established in Williams v. State, 110 So.2d 654 (Fla.1959). As we stated:

It is difficult to imagine a more serious violation of the rules of evidence and due process, indeed of the rule of law itself, than this statement.... [Because] it was not shown to be related to the crime with which Thornton was charged, the question was in simultaneous violation of several important principles of law. These include: 1. the principle of Williams v. State, 110 So.2d 654 (Fla.1959), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959), which forbids references to alleged prior unrelated offenses purportedly committed by the defendant. ...

Thornton, 852 So.2d at 911 (footnote omitted). Thus, in Thornton I, we held that any reference to a statement made by Thornton as to any incident near or by the “V.I.P.” was improper, as the statement referred to prior unrelated offenses committed by Thornton. See id.

Despite our ruling on this issue in Thornton I, the State successfully introduced testimony regarding the statement in Thornton’s retrial. Over defense counsel’s objection, the State relied upon the statement in its opening argument. Dur-the trial, defense counsel again objected to Varnado’s testimony regarding the statement. The State then proffered Var-nado’s testimony, and argued that the statement regarding the “V.I.P.” was in fact a confession to the charged crime rather than a collateral crime. The trial court ultimately found that the statement “related to” Perriman’s murder. As a result, the trial court permitted Varnado to testify regarding the statement. Detective Ford, the lead investigator of the crime, also testified about Thornton’s statement to Varnado. The State relied upon the statement in its closing argument, in which it characterized the statement as a “confession,” and again in its rebuttal.

II. ANALYSIS

The doctrine of the law of the case requires that “questions of law actually decided on appeal govern the case in the same court and the trial court, through all subsequent stages of the proceeding.” See State v. McBride, 848 So.2d 287, 289 (Fla.2003); Florida Dep’t of Transp. v. Juliano, 801 So.2d 101, 105 (Fla.2001); U.S. Concrete Pipe Co. v. Bould, 437 So.2d 1061 (Fla.1983); State, Dep’t of Revenue v. Bridget, 935 So.2d 536, 538 (Fla. 3d DCA 2006). This doctrine “is limited to rulings on questions of law actually presented and considered on a former appeal.” U.S. Concrete, 437 So.2d at 1063; see also Juliano, 801 So.2d at 106 (“Additionally, the law of the case doctrine may foreclose subsequent consideration of issues implicitly addressed or necessarily considered by the appellate court’s decision.”). These rulings are then, necessarily, “except in exceptional circumstances, no longer open for discussion or consideration in subsequent proceedings in the case.” Greene v. Massey, 384 So.2d 24, 28 (Fla.1980). A trial court, therefore, generally lacks discretion to change the law of the case. Bridget, 935 So.2d at 539. There are two exceptions to the confines of the doctrine: first, a trial court is not bound to follow the prior ruling if the facts upon which the prior ruling was made are no longer the facts of the case; and, second, an appellate court may reconsider and correct an erroneous ruling that has become the law of the case where a manifest injustice would result. See Juliano, 801 So.2d at 106.

In the present case, the doctrine of the law of the case precluded the trial court from finding that Thornton’s alleged statement of his actions at the “V.I.P.” was a reference to the charged crime. In Thornton I, the State introduced the statement during the attempted impeachment of Varnado and we held that the statement was improper testimony of a collateral bad act as “it was not shown to be related to the crime with which Thornton was charged.” Thornton I, 852 So.2d at 911. In the retrial, the State made the same argument that it did in Thornton I, and the trial court concluded that the testimony was admissible because it “related to this incident.” Because this issue was actually presented, considered, and ruled upon by this Court in Thornton I, the trial court’s ruling on this issue was error. Additionally, given the State’s argument in closing that the “confession” meant that “this is not a close case,” the error cannot be considered harmless. See Valley v. State, 860 So.2d 464, 469 (Fla. 4th DCA 2003).

At oral argument, in an attempt to invoke one of the exceptions to the law of the case doctrine, the State argued that the facts in the retrial were different from those in Thornton I, and the trial court therefore could consider the issue of the admissibility of the statement. Specifically, the State asserted that, unlike Thornton I, in the retrial Detective Ford testified that his investigation revealed there had been no incidents involving a shooting at or near the “V.I.P.”. Initially, we note that this argument was not made to the trial court and therefore not preserved. Indeed, the State did not make this argument in its answer brief, but instead first raised it at oral argument.

Even assuming that this issue was preserved, which it was not, we find unconvincing the State’s argument that sufficient new facts were presented to the trial court in order to allow admission of this statement. First, Varnado — the only person with actual knowledge of Thornton’s statement regarding the incident at the V.I.P. — testified that he did not understand Thornton to be referring to the crime charged in this case. Moreover, Detective Ford’s search in the city database covering only a three-month period is, by itself, insufficient to qualify as new facts sufficient to avoid our prior ruling. As this Court pointed out during oral argument, not every shooting is reported to the police. Consequently, Detective Ford’s testimony — without more — is insufficient to link Thornton’s statement regarding the V.I.P. to the Perriman murder and the prior law of case remains. We therefore find that the facts established in Thornton I remained unchanged in the retrial and admission of the statement constitutes error requiring reversal.

Finally, we also write to address another issue raised by the defendant. Thornton’s defense below was that of alibi and misidentification. Three eyewitnesses, Chavarri, Pender, and Davis, testified about the shooter’s description. Cha-varri testified that the shooter was a light-skinned, short-haired, and relatively short (approximately 5'7") black male, weighing approximately 165 pounds. During cross-examination, Detective Ford confirmed that two of the witnesses’ descriptions matched that of a man whom Thornton had independently identified as the actual perpetrator of the crime. When the State recalled Detective Ford to explain the process by which he ordered fingerprint cards, he also testified that he ordered fingerprints of the man whom Thornton had identified. During cross-examination, defense counsel sought to admit a photograph of the man, and the State objected contending that the photograph was irrelevant and constituted collateral evidence. Defense counsel argued that the photograph was relevant to Thornton’s alibi and misidentification defense. The trial court sustained the objection, concluding that the photograph was “rooted in self-serving hearsay.”

The trial court erred in sustaining the State’s objection to the introduction of the photograph. Absent a valid evidentia-ry objection, it is error for a trial court to deny the admission of evidence that tends to support the defendant’s theory of the case. See Moreno v. State, 418 So.2d 1228, 1225 (Fla. 3d DCA 1982)(“Where evidence tends, in any way, even indirectly, to prove a defendant’s innocence, it is error to deny its admission.”); see also Rivera v. State, 561 So.2d 536, 539 (Fla.1990)(“[W]here evidence tends in any way, even indirectly, to establish a reasonable doubt of defendant’s guilt, it is error to deny its admission.... [T]he admissibility of this evidence must be gauged by the same principle of relevancy as any other evidence offered by the defendant.”); Dean v. State, 916 So.2d 962 (Fla. 4th DCA 2005)(error for trial court to exclude pawn slip signed by a person using a different name than defendant and to exclude fingerprint on pawn slip not matching defendant when defendant’s theory of defense was that someone else had committed the robbery); Vannier v. State, 714 So.2d 470 (Fla. 4th DCA 1998)(error for trial court to exclude letters written by the victim when defendant’s theory of defense was that victim had committed suicide). In this case, the photograph was relevant to Thornton’s theory of defense of alibi and misidentification and the trial court should have allowed the jury to consider it as part of the full defense.

We find no merit to the remaining issues raised by Thornton. Accordingly, Thornton’s conviction for first-degree murder and armed robbery is reversed, and the cause is remanded.

Reversed and remanded.

      . Specifically, the following exchange occurred during the State’s opening:
      MR. RANCK: Luis Varnado asked him, what you did? What you did? The only thing at the time that Thornton would say was the tag was messed up, there was something wrong with the tag. Well, during that same conversation on the freeway, Mr. Varnado asked Thornton, if he wanted to go to the VIP club, which is a strip joint up on 79th street and 7th Avenue and Thornton said, no I can’t go — I can't go over there. I can’t go over. Why? What did you do?
      MR. BLOOM: Objection.
      THE COURT: Sustained.
      MR. BLOOM: Can we have a sidebar?
      THE COURT: Yes.
      (Thereupon, a sidebar discussion was had as follows:)
      MR. BLOOM: I don't want to anticipate what Mr. Ranck is going to say or do, but anything with regard to the VIP is 404 evidence. It’s not part of this case. That's what caused the last trial to be reversed was the conversation about the VIP. I don’t know where you’re going, but ...
      MR. RANCK: Maybe I missed the eviden-tiary ruling but the “burn a n — a” statement is not coming out.
      MR. BLOOM: It's anything about the VIP that’s what ...
      MR. RANCK: That’s what the argument was that you argued in the motion. I didn’t say someone was shot at the VIP, it’s our contention that this is the murder.
      MR. BLOOM: Our position is that that’s referencing another bad act, and it’s 404 B(2). It’s also highly prejudicial to let the jury hear that Thornton may have committed another act and it clearly hasn’t been noticed.
      THE COURT: But we’re on two different pages here. The State is not saying this is another act. The State is saying that this is the act here and the charge for that, was my understanding that I had when we had the motion. That was the impression I had from the State.
      They were trying to get it out last time, as inartfully as they did, but they were talking about one and the same event. Left up to argument is to determine whether or not he was talking about the VIP or whether or not 69th Street is close enough to 79th Street and 2nd Avenue, close to 7th Avenue but ...
      MR. BLOOM: But the VIP or any reference to the involvement at the VIP is irrelevant to this crime and it violates 403, whatever probative value is greatly outweighed—
      THE COURT: That’s not what the State is doing. The State is trying to pin that location to this event.
      MR. RANCK: I’m saying Thornton was telling him about this murder, not another murder.
      MR. BLOOM: Telling him about this murder?
      MR. RANK: About this murder. About this murder. He refers to the location generally as over there by the VIP which is twenty-three minutes away and which they both knew that was a strip club and was a landmark. He could have said over by the Baptist church but he didn’t frequent there.
      MR. BLOOM: I still maintain my objection. It’s 404 and it’s highly prejudicial. Anything that happened at the VIP by innuendo is a suggestion that he admitted to the Perriman murder and in Varnado’s statement there’s no reference made to the Per-riman murder. That’s what the evidence has got to be.
      MR. RANCK: I disagree. You can certainly argue that, and I put this in writing, in addition to the rules of argument, it’s absolutely clear that what he’s talking about is the Perriman murder. He’s referring to what happened over by the VIP. It's clear to me that's what this is, not another bad act; it’s this act.
      MR. BLOOM: I made [m]y objection.
      (Thereupon, the sidebar discussion was concluded, and the following proceedings were had:)
      THE COURT: The objection is overruled.
      (The State continues with its Opening)
      MR. RANCK: In this car ride, when Thornton says, if they’re going to stop me, I’m going to flee, he makes the statement also later, I shot somebody over by the VIP. I shot somebody over by the VIP. The VIP is a strip joint located at 79th and 7th. This murder happened at 67th and 2nd. A couple of minutes away by car. They were familiar with the VIP. That was their landmark for that area. Thornton didn't say I shot somebody inside the VIP or I shot a dancer. I shot somebody by the VIP. I can't go in that area.
      Once Luis Varnado realizes that it’s not the tag that’s messed up, but it's a life that’s messed up and that he's in the car with the guy who just confessed to him about this, he tells him, takes me home. Get me out of this car. And that’s what Thornton does.

      . Specifically, defense counsel argued as follows:
      MR. BLOOM: If we’re going to do Var-nado, I’m going to ask the Court for an oral motion in limine to conduct a hearing as to what Mr. Varnado is going to testify to.
      MR. RANCK: I don't have a problem with that.
      MR. BLOOM: This is what got us — well, not us, we had different players. It’s my clear understanding, based upon reading Varnado’s statement in April of 1998, his testimony before Judge Platzer in 2000 and his deposition that he gave Mr. Ranclc and me, that there’s no connection between the VIP incident and the Perriman murder. Whatever Mr. Thornton may have told him is totally unrelated and that’s what I think he testifies to.
      If we get into a situation where Mr. Ranck is going to put on him on [sic] and he’s going to talk abut the VIP, and the VIP is not related, it’s a violation of 404 and totally irrelevant and highly prejudicial and at least grounds for a mistrial.

      . During the proffer, Varnado testified on the stand during cross-examination as follows:
      Q. Do you know anything about the incident that occurred at the VIP that you and Mr. Thornton were talking about in the car?
      A. Do I know what occurred out there?
      Q. Yes.
      A. No, I don't. All I remember him saying he had got into something with somebody over there.
      Q. At the VIP?
      A. Yeah.
      Q. Now was he talking at the VIP or was he talking about in the general area over by the VIP, or the just the general neighborhood?
      A. From my understand, at the VIP.
      Q. The incident that you and he were talking about in the car ride occurred at the specific location of the VIP?
      A. Yeah.
      Q. Now in the car ride, did Mr. Thornton ever say anything to you that would lead you to believe that he was in involved in the Perriman murder that took place at 67th Street and N.W. 2nd Avenue?
      A. No.
      Q. In your mind is the VIP a distinct location and a distinct incident from the Perri-man murder?
      A. Say that again.
      Q. In your mind is the VIP a distinct location and a distinct incident — separate location and separate incident from the Perri-man murder?
      A. Yeah.
      Q. The two are not the same, are they?
      A. No.

      . Specifically, the trial court stated:
      THE COURT: Okay. All right. The Court finds it isn’t evidence [of] other uncharged crimes or other like crimes like William’s Rule evidence. That it is related to this incident. The State will be able to get into that.

      . Specifically, Varnado testified as follows:
      Q. In the car ride did Mr. Thornton tell you why he did not want to go to the strip club that day?
      MR. BLOOM: Objection. Preserve the arguments that have previously been made.
      THE COURT: Overruled.
      BY MR. RANCK:
      Q. You can answer.
      A. Yes.
      Q. What did he say?
      A. That he had gotten into something with somebody, that he had shot somebody or something.

      Q. Did you ask him or did he say anything about why he wasn’t going to stop if the police tried to stop him?
      A. He said the tag wasn’t any good.
      Q. Later on in the conversation, you mentioned earlier about this comment that he made about over at the VIP. Later on in the conversation did he tell you about something more serious that he had done besides having the tag messed up?
      A. He said he shot somebody and that's why he can’t go by the VIP.

      .Specifically, Detective Ford testified as follows:
      Q. And without getting into hearsay, he told you about a car ride he had with Mr. Thornton, correct?
      A. Yes, he did.
      Q. And statements that were made, right?
      A. That's correct.
      Q. I’d like to ask you if in that statement, do you recall and this is just for state of mind, not for the truth of the matter, do you recall Mr. Varnado telling you about Thornton telling him that he had to shoot somebody over by the VIP?
      MR. BLOOM: Objection, this is hearsay contained in the question which is leading.
      THE COURT: Overruled.
      A. Yes, sir, he did.

      Q. Were you asking him about any other crime regardless of if it was a shooting or not that Henry Thornton had committed besides the Perriman homicide, in that statement?
      A. No, sir.

      . Specifically, the State argued:
      When you have a statement, a confession, a confession to the crime, not made to a police officer, which you will can imagine or from your experiences or from living in Miami, you know did something wrong, but a confession to a friend of his, I shot somebody. I can’t go over to the VIP to Luis Varnado. When you have something like, this is not a close case.

      . Specifically, the State argued:
      Finally, the VIP is this case. It is not— there’s is [sic] no other shooting that happened at the VIP. There's no other shooting that I have charged or the State Attorney’s Office has charged. It’s that case. He didn’t say it’s one if [sic] the dancers inside by the pole over there. He said, over by the VIP. I don't want to go over by the VIP. This is five minutes away by car. That was Ford’s testimony; five minutes away by car. That was this or [sic] case; I had to shoot somebody over by the VIP.

      . During re-direct examination, Detective Ford testified as follows:
      Q. Have you done investigation since the year 2000 to determine if it there was any other shooting that was at the VIP or near the VIP in that general area?
      A. Yes, sir.
      Q. Was there any?
      A. No, sir.
      During re-cross examination, Detective Ford testified as follows:
      Q. When you say you investigated to determine if there were any shootings there, did you write. a report of your investigation?
      A. No, I researched whether or not there had been any shootings during that time period.
      Q. What time period were you researching?
      A. The early part of '98 between April and May.
      Q. So you researched the period of two months between—
      A. March, April and May. That would be three months.
      Q. Three months. Did you write a report reflecting that research?
      A. You can just get the computer printout. We have a data base that will tell us if there was a shooting at the club or near there.
      Q. And that’s both the city and the county?
      A. Just the city.
      Q. So you didn’t research the county printout?
      A. No, sir.
      Q. And you only did it for a period of three months?
      A. Correct.

      . See supra note 3.

      . During Detective Ford’s direct and redirect examination, he testified that Thornton told him he had lent his car to his cousin and that his cousin in turn had lent the car to the actual perpetrator of the shooting. Ford testified regarding his investigation of this alibi and the alleged perpetrator. The State offered to produce taped phone calls between Thornton and his cousin, in which Thornton asked his cousin to admit that the other man shot the victim. Ultimately, the tape was not introduced, but Detective Ford recounted the conversations.

      . The trial court’s exclusion of the photograph was apparently based upon the fact that Thornton himself was the person who gave the name of the person in the photograph to Detective Ford. We need not determine whether or not the trial court's conclusion was correct because the State did not object to the evidence upon which the photograph was allegedly "rooted.” In fact, much of the testimony concerning the investigation of the man in the photograph was presented by the State through Detective Ford.


author: SUAREZ, J.

text:
    Susan Parker FEIN, Appellant, v. JOHNSON WALES UNIVERSITY, Appellee.
    No. 3D06-1175.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 2007.
    Rehearing Denied Sept. 26, 2007.
    Susan Parker Fein, in proper person.
    Gaebe, Mullen, Antonelli, Esco DiMat-teo, and Anne C. Sullivan, and Mark R. Antonelli, Coral Gables, for appellee.
    Before COPE, SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

The appellant (“Fein”) appeals the granting of a final summary judgment in favor of Johnson & Wales University.

As no reversible legal error has been demonstrated and there were no genuine issues of material fact remaining to be resolved by the trial court, we affirm the granting of the summary judgment below. See Holl v. Talcott, 191 So.2d 40 (Fla.1966); Connolly v. Sebeco, Inc., 89 So.2d 482 (Fla.1956); Reflex, N.V. v. UMET Trust, 336 So.2d 473 (Fla. 3d DCA 1976); David Props., Inc. v. Selk, 151 So.2d 334 (Fla. 1st DCA 1963); Fla. R. Civ. P. 1.510(c). The orders below denying Fein’s motion for leave to amend to assert a punitive damages claim and motion for sanctions and the entry of a final cost judgment are likewise affirmed.

Affirmed.


text:
    Saul CIMBLER, Appellant, v. Wes BRENT, etc., et al., Appellee.
    No. 3D07-858.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 2007.
    Rehearing Denied Sept. 18, 2007.
    Saul Cimbler, in proper person.

      Heller and Chames and Jonathan Heller, Miami, for appellee.
    Before RAMIREZ, WELLS, and SHEPHERD, JJ.
   PER CURIAM.

Appellant, Saul Cimbler, seeks review of a non-final order granting a motion to discharge a lis pendens. The primary purpose of appellant’s lawsuit is to recover money damages and the action does not directly affect the title to or the right of possession of real property. We have held that in the absence of a duly recorded instrument where there is no “direct claim cognizable under the law against or upon the ... property burdened by the lis pen-dens ..., no lis pendens may be asserted under any conditions against the realty....” Sunrise Point v. Foss, 373 So.2d 438, 439 (Fla. 3d DCA 1979). See also Ness Racquet Club, LLC v. Renzi Holdings, Inc., 959 So.2d 758 (Fla. 3d DCA 2007). Because of our decision, we do not reach the other grounds raised on appeal.

Affirmed.


text:
    Givanni PARKS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1385.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 2007.
    Rehearing and Rehearing En Banc Denied Sept. 12, 2007.
    Givanni Parks, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


author: POLEN, J.

text:
    Christopher M. LARMOYEUX, Jr., individually and as partner of Montgomery & Larmoyeux, n/k/a Montgomery & Larson, a Florida general partnership, Appellant, v. Robert M. MONTGOMERY, Jr., individually and as a general partner of Montgomery & Larmoyeux, n/k/a Montgomery & Larson, a Florida general partnership, and Montgomery & Larmoyeux, n/k/a Montgomery & Larson, a Florida general partnership, Appellees.
    No. 4D06-1400.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2007.
    Rehearing Denied Oct. 2, 2007.

      Jane Kreusler-Walsh, Barbara J. Com-piani, and Rebecca Mercier-Vargas of Kreusler-Walsh, Compiani & Vargas, P.A., and Patrick J. Casey of Boose Casey Cik-lin Lubitz Martens McBane & O’Connell, West Palm Beach, for appellant.
    James W. Beasley, Jr., and Robert J. Hauser of Beasley Hauser Kramer Leonard & Galardi, P.A., West Palm Beach, for appellees.
   POLEN, J.

Christopher M. Larmoyeux timely appeals a final judgment taxing attorney’s fees. We affirm the final judgment.

In 1989, Robert M. Montgomery, Jr. (“Montgomery”) and Christopher M. Lar-moyeux, Jr. (“Larmoyeux”) formed a general partnership for the practice of law, Montgomery & Larmoyeux (“the Firm”). They signed a written partnership agreement (“the Agreement”) to formalize this relationship. Under the Agreement, Montgomery had a 99% interest and Lar-moyeux a 1% interest. Montgomery was managing partner with full managerial and administrative authority. Partners shared in the net profits of the Firm in proportion to their partnership percentage, subject to Montgomery’s discretion to pay additional bonuses to Larmoyeux. However, Montgomery could terminate Larmoyeux with or without cause upon thirty days notice. Upon termination, Larmoyeux would have no right or interest in the Firm or any of its assets, clients, files, records or affairs. All of his interest in the partnership would expire automatically. Finally, Larmoyeux agreed to pay the Firm 80% of any fees and costs received in any case in which he continued his representation of a firm client after his departure from the Firm, notwithstanding the termination provisions of the Agreement.

In 1994, the Firm and nine other law firms agreed to represent the State of Florida on a contingent-fee basis in the State’s case against the nation’s largest tobacco companies. The case settled three years later while Montgomery was choosing a jury. The financial settlement was complex and payable over time, but was announced to be worth over $11 billion to the state.

Towards the end of 1998, a panel of arbitrators awarded the state’s consortium of attorneys, including the Firm, over three billion dollars in attorneys’ fees. The Firm’s share of the fees was approximately 6%, or about $206 million to be paid in installments over an indefinite amount of time (the “Tobacco Fees”).

Montgomery and Larmoyeux subsequently signed the first and only amendment to the Agreement (“the Amendment”). They agreed therein that future Tobacco Fees would not be considered assets of the partnership but would be paid out as follows: 75% to Montgomery and 25% to Larmoyeux and their heirs and assigns. From December 1998 through October 2000, the Firm received $40.05 million in Tobacco Fees. Of this amount, the Firm paid $17.35 million to Montgomery and $5.04 million to Larmoyeux as partnership distributions. Thereafter, the Firm expected to receive several million dollars annually in installments of Tobacco Fees for an indefinite period.

In December 2000, Montgomery gave notice to Larmoyeux that the latter would be terminated and disassociated from the Firm effective thirty days later. Although section 4.3.B of the Agreement stated that Larmoyeux would have no further interest in the Firm after his termination, Larmoy-eux took the position that the Amendment was a conveyance to him of a perpetual 25% interest in the Tobacco Fees to be received by the Firm in the future, even if he were no longer a partner in the Firm. To this effect, Larmoyeux contacted the paying agent responsible for distributing the Tobacco Fees and instructed the agent to send “all future payments of [his] 25%” to him directly.

In response, Montgomery commenced arbitration before the American Arbitration Association (“AAA”). In the brief statement of claim form, Montgomery alleged that Larmoyeux was wrongfully trying to divert the Tobacco Fees to himself and that he was demanding other payments from the Firm to which he was not entitled. Larmoyeux opposed arbitration, claiming that the Tobacco Fees in dispute were not partnership assets, but his own personal assets, and were therefore outside the scope of the arbitration clause. He also filed a complaint in circuit court, seeking a court order compelling Montgomery to grant him access to the Firm’s financial and accounting records pursuant to section 620.8403(2), Florida Statutes (2001).

In the circuit court action commenced by Larmoyeux, Montgomery sought an order compelling arbitration of all of Lar-moyeux’s claims relating to the former partnership. The circuit court granted Montgomery’s motion and the arbitration panel (“the Panel”) bifurcated the proceedings. In Phase I, the Panel was to construe the Amendment and address the parties’ dispute over whether Montgomery owed Larmoyeux 25% of the fees awarded to the Firm for its work representing the state in its suit against the tobacco companies.

Montgomery then brought claims for a declaratory judgment that Larmoyeux had no interest in the Tobacco Fees and for wrongful interference with the payments. Larmoyeux counterclaimed for damages for breach of the Agreement for failure to pay amounts due under it and for failure “to account to Larmoyeux for partnership funds, assets and property.” Larmoyeux also sought damages for Montgomery’s alleged breach of fiduciary duty, conversion, breach of duty of good faith and fair dealing and interference with client relationships, as well as for punitive damages and injunctive relief. Essentially, Larmoyeux alleged that Montgomery had overcompensated himself, misappropriated and misspent millions in partnership funds, and had failed to account for virtually every firm expense since 1989, including millions of dollars in alleged personal expenditures. In his amended counterclaim, Larmoyeux also sought damages for Montgomery’s alleged failure to allow Larmoyeux access to the Firm’s books and records.

A few months before the Phase I trial began, the Panel considered Larmoyeux’s claims that his partnership interest had been diminished by Montgomery’s alleged mismanagement and personal spending. Montgomery moved for summary judgment on these claims. Larmoyeux subsequently filed a motion for partial summary judgment, seeking access to the Firm’s books and records as allowed by section 620.8403(2), Florida Statutes (2001), and a determination that Montgomery had breached the Agreement and the statute by denying him access to them. In his fourth motion for partial summary judgment, Larmoyeux asked the Panel to require Montgomery “to account to Larmoy-eux for all partnership business matters.”

The Panel ruled that Montgomery’s alleged spending of partnership funds, even if it took place, could not have adversely affected Larmoyeux’s 1% interest. It deferred ruling on Larmoyeux’s fourth motion for partial summary judgment, but stated that, “To the extent [Larmoyeux] requires access to certain partnership documents for purposes of discovery at trial, he may request same.” The Panel also summarily denied all of Larmoyeux’s damages claims except for the alleged breaches of the Agreement to be heard in Phase I.

During Phase I discovery, Larmoyeux successfully obtained production of all the Firm’s tax returns and financial statements, Montgomery’s personal tax returns and financial statements, and the Firm’s general ledger. Because of the nature and complexity of Larmoyeux’s claims, the Firm’s regular accountant performed pre-hearing analysis, submitted several affidavits and gave depositions. All together, nearly 1,500 pages of financial records, tax returns and accounting schedules were admitted into evidence for the Phase I trial. Four different CPAs were deposed and testified live, and the Firm’s bookkeeper was also deposed and testified as to Firm financial and accounting matters.

The Phase I trial took place in December 2001 after approximately eight months of pleadings, motions and discovery, thirteen depositions, five pretrial hearings, five cross-motions for summary judgment and legal briefing. For six days, the parties tried the issue of Larmoyeux’s alleged ownership of 25% of the future Tobacco Fees. About a month later, the Panel entered an interim award which held that Larmoyeux was not entitled to any future Tobacco Fees payments received by the Firm after his effective date of departure. The Panel concluded that Larmoyeux was entitled to receive only 25% of the Tobacco Fees received while he was a partner, and awarded him $257,486 plus interest. It also found in favor of Montgomery on Lar-moyeux’s counterclaims against him, including the claims regarding personal expenses, disassociation and accounting. Larmoyeux’s statutory claims for access to the Firm’s financial records were declared moot.

In 2002, the parties conducted an additional nine months of discovery, motions and pretrial briefing in anticipation of the Phase II hearing. Phase II of the arbitration proceeding involved Montgomery’s claim that Larmoyeux had breached section 4.3.C of the Agreement. This provision required Larmoyeux to pay Montgomery liquidated damages of 80% of the fees and costs Larmoyeux received in cases that originated while he was a partner with the Firm. Montgomery brought claims for a temporary injunction requiring Larmoyeux to deposit all claimed fees into an escrow account, an order enforcing the Firm’s charging liens and compelling Larmoyeux to pay liquidated damages.

In December 2002, the Panel entered a final award in which it concluded that Lar-moyeux breached the Agreement by failing to pay Montgomery 80% of the fees and costs. Thus, Larmoyeux was required to pay Montgomery $1,986 million for the nine cases in which the former had recovered fees, less the $257,486 plus interest awarded to Larmoyeux in Phase I.

Montgomery subsequently filed a motion in the circuit court to confirm the award. In response, Larmoyeux moved to vacate the award, reasserting many of the contentions that he had made and lost in Phase I and Phase II of the arbitration, i.e., the Panel had no jurisdiction over the tobacco fee claims, the Panel prejudged the case, the decision was tainted by the “corruption and misconduct” of the Chairman of the Panel, and the Panel improperly denied Larmoyeux’s statutory right to access all of the partnership books and records. Following a half-day hearing on these issues, the circuit court denied Larmoyeux’s motion to vacate and confirmed the arbitration award.

A final judgment was thereafter entered against Larmoyeux for $1,784,354. In the final judgment, the court found that Lar-moyeux’s termination led to “a partnership accounting dispute” and that the Panel had considered the various claims between Montgomery and Larmoyeux as part of a “partnership accounting” in which Montgomery was the prevailing party — “Lar-moyeux was sued as a partner, in a partnership accounting and the Telcon case [from which Larmoyeux owed costs to the Firm] was one aspect of that accounting.”

Larmoyeux appealed and, in Larmoyeux v. Montgomery, 892 So.2d 1047 (Fla. 4th DCA 2005), this court per curiam affirmed the final judgment. A month later, this court granted Montgomery’s motion for appellate attorney’s fees subject to Montgomery ultimately recovering attorney’s fees in the circuit court case. The circuit court then bifurcated the issues of entitlement to fees and amount of fees.

In his opposition to Montgomery’s claim to trial attorney’s fees, Larmoyeux argued that there was neither statutory basis nor equitable basis for such an award. He maintained that any equitable claim for fees under A.J. Richey Corp. v. Garvey, 132 Fla. 602, 182 So. 216 (1938), was unwarranted because neither party had brought an action for dissolution of the Firm or for an accounting. Nevertheless, the circuit court determined that Montgomery was entitled to fees under A.J. Richey. See id. The court recognized that Montgomery “never specifically filed a suit against Larmoyeux for dissolution or an accounting,” but found “that the proceedings between Montgomery and Larmoyeux were essentially that of an accounting and dissolution so inextricably intertwined as to completely settle the partnership affairs between them.”

Following a hearing which took place a year and a half later, the court entered a final judgment taxing attorney’s fees of $644,871 plus costs and prejudgment interest. Larmoyeux filed a motion for rehearing which the court denied. This appeal follows.

Whether RUPA negates A.J. Richey

Larmoyeux first contends that the trial court erred in awarding Montgomery fees under A.J. Richey because that case was overruled by RUPA. We disagree.

Attorney’s fees generally cannot be awarded absent a statutory or contractual basis. Cheek v. Bugg, 639 So.2d 144, 146 (Fla. 5th DCA 1994). In A.J. Richey, however, the Florida Supreme Court carved out a limited exception allowing an equitable award of fees where one partner is “forced to bring suit for dissolution and accounting” against another partner. A.J. Richey, 182 So. at 219 (citing Wade v. Clower, 94 Fla. 817, 114 So. 548 (1927)). When the court decided A.J. Richey and first addressed this equitable concept of fees, the terms “dissolution and accounting” had a distinct meaning. At common law and later, under the Uniform Partnership Act (the “UPA”), a partnership was viewed as an aggregate of partners. John W. Larson, Florida’s New Partnership Law: The Revised Uniform Partnership Act and Limited Liability Partnerships, 23 Fla. St. U.L.Rev. 201, 206-07 (1995). The partnership dissolved if a partner left the partnership for any reason. See § 620.70, Fla. Stat. (1993) (defining “dissolution” as “the change in the relation of the partners caused by a partner ceasing to be associated in the carrying on, as distinguished from the winding up, of the business”).

When a dispute arose among partners, a partner had to bring an equitable action for an accounting before bringing an action at law for damages. See, e.g., Fellman v. Southfield Farms Corp., 747 So.2d 1035, 1037 (Fla. 4th DCA 1999) (“Generally, an accounting between partners or joint ven-turers is a condition precedent to an action at law between them.”) (citing Koros v. Doctor’s Special Surgery Ctr. of Jacksonville, Ltd., 717 So.2d 137, 138 (Fla. 1st DCA 1998) (“[A] partner may not sue other partners or the partnership in an action at law regarding a matter within the scope of the partnership until there has been an accounting of the affairs of the partnership .... ”)); see also Laurence v. Soler, 706 So.2d 896, 897 (Fla. 3d DCA 1998) (“[A]n action at law may not be maintained between partners with respect to partnership transactions until there has been an accounting or settlement of partnership affairs.”).

Effective January 1, 1996, the legislature amended Florida’s partnership law to adopt in substantial part the Revised Uniform Partnership Act (“RUPA”) (1994). Ch. 95-242, § 13, Laws of Fla.; see also Larson, supra, at 247. RUPA adopted the “entity theory” of partnership, viewing the partnership as a separate entity rather than an aggregate of individual partners. See § 620.8201(1), Fla. Stat. (2001) (“A partnership is an entity distinct from its partners”). As a result, partnerships no longer automatically dissolve when one partner leaves. See id. Instead, the partners who leave the partnership are “disassociated.” §§ 620.8601, 620.8602, Fla. Stat. (2001). As the comments to RUPA explain, “disassociation” is an “entirely new concept” used “to denote the change in relationship caused by a partner’s ceasing to be associated in the carrying.on of the business.” Unif. P’Ship Act § 601, cmt. 1 (1997).

Under RUPA, the term “ ‘[dissolution’ is retained but with a different meaning.” Id. Disassociation of a partner no longer necessarily causes a dissolution and end of the partnership as an ongoing business or professional entity. See §§ 620.8601, 620.8801, Fla. Stat. (2001). Instead, the partnership continues and only “dissolves” in certain circumstances. See § 620.8801, Fla. Stat. (2001); see also Unif. P’Ship Act § 601, cmt. 1 (1997) (“Under RUPA, unlike the UPA, the disassociation of a partner does not necessarily cause a dissolution and winding up of the business of the partnership.”).

This state’s adoption of RUPA also significantly changed the law by eliminating the requirement that partners first sue for an accounting before bringing other claims. The 1996 amendment authorizes a partner to' maintain an action against the partnership or another partner for legal and equitable relief, “with or without an accounting as to partnership business,” to enforce a partner’s rights under the partnership agreement or chapter 620, and to “otherwise protect the interests of such partner, including rights and interests arising independently of the partnership relationship.” § 620.8405(2), Fla. Stat. (2001); see also Unif. P’Ship Act § 405, cmt. 2 (1997) (“[A] partner may bring a direct suit against the partnership or another partner for almost any cause of action arising out of the conduct of the partnership business. That eliminates the procedural barriers to suits between partners filed independently of an accounting action.”).

In this case, Montgomery disassociated Larmoyeux under RUPA. Therefore, neither party was required to go through the procedural formality of suing for an accounting nor dissolving the partnership, as was necessary under pre-RUPA Florida partnership law. See Fellman, 747 So.2d at 1037. Larmoyeux now contends that, since he was not “forced” to bring an action for accounting, the policy rationale underlying A.J. Richey no longer exists. See Balzam v. Cohen, 427 So.2d 329 (Fla. 3d DCA 1983) (recognizing exception where “one of several co-partners is forced to bring suit for dissolution and accounting”) (emphasis added), disapproved on other grounds by Johnson v. Bednar, 573 So.2d 822 (Fla.1991); see also Cooper v. Fulton, 158 So.2d 759, 762 (Fla. 3d DCA 1963) (stating that an exception to the general rule “exists where the plaintiff, as one of several co-partners, is forced to bring suit for dissolution and accounting”) (emphasis added), cert. denied, 165 So.2d 161 (Fla.1964). Instead, according to Lar-moyeux, the specific fee provisions of RUPA control and authorize fees only as provided by statute. See § 620.8701(9), Fla. Stat. (2001) (stating that court may assess reasonable attorney’s fees against a party in an action to determine the buyout price of a disassociated partner in an amount the court finds equitable, where the court finds the party “acted arbitrarily, vexatiously, or not in good faith”). We hold otherwise.

In Carlile v. Game & Fresh Water Commission, 354 So.2d 362 (Fla.1977), the court stated that any legislative intent either to abolish or to limit the common law must indicate such change clearly, or else the rule of common law stands. Id. at 364. Likewise, “A court will not infer that a statute was intended to enact any change in the common law other than what is specified and plainly pronounced.” Wal-Mart Stores, Inc. v. McDonald, 676 So.2d 12, 17 (Fla. 1st DCA 1996). When this state adopted RUPA, it did not specifically overrule A.J. Richey. Therefore, we hold that the equitable fees exception established in A.J. Richey survived the enactment of the Act.

Furthermore, we acknowledge that at least two RUPA states have continued to apply common law cost-shifting principles after adopting the revised uniform act. See Horne v. Aune, 130 Wash.App. 183, 121 P.3d 1227, 1236 (2005) (noting that “when a partner breaches his fiduciary duties, a fee award is within the trial court’s discretion”); see also Pankratz Farms, Inc. v. Pankratz, 322 Mont. 133, 155-56, 95 P.3d 671 (Mont.) (recognizing trial court’s discretion to award attorney’s fees under its equity powers in a partnership action despite that state’s adoption of RUPA), reh’g denied, 322 Mont. 133, 95 P.3d 671 (2004).

Whether dissolution is required under A.J. Richey

Larmoyeux also argues that the fee award was improper because the equitable fees exception established in A.J. Richey applies only where there has been a dissolution, and none occurred in this case. However, Florida law does not require both a dissolution and an accounting as a prerequisite to award fees under A.J. Richey. See Hiestand v. Geier, 396 So.2d 744, 749 (Fla. 3d DCA 1981) (recognizing that trial court may award attorney’s fees, absent contractual or statutory basis, where partner brings an action for accounting or business dissolution) (internal citations omitted); Tobin v. Lefkowitz, 367 So.2d 682, 683 (Fla. 3d DCA 1979) (stating that attorney’s fees awardable where “one partner secures an accounting from another”) (internal citation omitted); Donald S. Zuckerman, P.A. v. Alex Hofrichter, P.A., 632 So.2d 730, 731 (Fla. 3d DCA 1994) (affirming fees award made under A.J. Richey and Wade, supra, in a suit for partnership accounting).

Dissolution under UPA was not a condition for an accounting; but if an accounting occurred, fees could be awarded. See § 620.665, Fla. Stat. (1993). As explained in Lipsig v. Ramlawi, 760 So.2d 170 (Fla. 3d DCA 2000), a partnership “accounting” triggers the right to attorney’s fees under A.J. Richey:

The general rule is that costs including attorney’s fee will be allowed ... in cases of partnership accounting, but even in these cases, the matter is one vested largely in the discretion of the [trial court].
As a rule the costs of a suit for a partnership accounting, including the fees of experts and of attorneys, are to be paid out of the partnership estate, or if this is insufficient they are to be borne by the partners in proportion to their respective partnership shares. But, as in other equity suits, the court may exercise discretion in the award of costs, and it not infrequently charges the entire costs to one or some of the partners....

Id. at 190-91 (quoting A.J. Richey and Wade, supra). It is not surprising that some pre-RUPA cases use the terminology “dissolution and accounting,” because under UPA, “dissolution” was automatic when a partner left.

Whether there was a partnership accounting

Lastly, Larmoyeux contends that the trial court lacked equitable discretion to award fees under A.J. Richey because the dispute below was not in the nature of an accounting. We disagree. Although neither party made a formal demand for accounting, this case involved its functional equivalent.

In Cheek v. Bugg, 639 So.2d 144 (Fla. 5th DCA 1994), the court held that Bugg, the prevailing partner in a breach of partnership action, was not entitled to attorney’s fees under A.J. Richey in part because he did not bring an action for accounting. Id. at 146-47. Instead, Bugg demanded his right to an “appraisal” under the partnership agreement, a term the court found had a distinct meaning which had to be given effect. Id. Thus, Cheek stands for the proposition that absent an “accounting,” attorney’s fees may not be awarded under A.J. Richey. See id.

In this case, no formal demand for accounting was made. Neither did the parties implicitly agree during the course of the litigation to conduct a formal accounting. See Lipsig v. Ramlawi, 760 So.2d 170, 175 (Fla. 3d DCA 2000) (distinguishing Cheek in finding that fees may be awarded under A.J. Richey if an accounting is held by the implied consent of the parties). Yet Larmoyeux obtained, and the Panel considered, all of the Firm’s tax returns and financial statements, Montgomery’s personal tax returns and financial statements, and the Firm’s general ledger. In addition, four different CPAs were deposed and testified live, and the Firm’s bookkeeper was deposed at length, regarding Firm financial and accounting matters. Therefore, the Panel not only had all relevant documents relating to the Montgomery-Larmoyeux partnership, but had, and deliberated on, documentation of the firm’s affairs as a whole. This brings the proceedings below in line with a formal accounting, which the Fifth District in Cheek defined as “an ‘equitable proceeding for a complete settlement of all partnership affairs.’ ” Cheek, 639 So.2d at 146 n. 3 (quoting Black’s Law Dictionary 19 (6th ed.1990)). As such, we find it was within the trial court’s equitable discretion to award Montgomery attorney’s fees under A.J. Richey.

Based on the foregoing, we affirm the final judgment taxing attorney’s fees. We also find that the trial court did not abuse its discretion in determining the amount of fees awarded Montgomery. Accordingly, we affirm on that issue as well. See Centex-Rooney Constr. Co. v. Martin County, 725 So.2d 1255, 1258 (Fla. 4th DCA 1999); see also Brewer v. Solovsky, 945 So.2d 610, 611 (Fla. 4th DCA 2006).

Affirmed.

STEVENSON and TAYLOR, JJ, concur.

      . Section 620.8403(2), Florida Statutes (2001), states:
      A partnership shall provide partners and their agents and attorneys access to the books and records of the partnership. The partnership shall provide former partners and their agents and attorneys access to books and records pertaining to the period during which they were partners. The right of access provides the opportunity to inspect and copy books and records during ordinary business hours. A partnership may impose a reasonable charge, covering the costs of labor and material, for copies of documents furnished.

      . RUPA: Revised Uniform Partnership Act, see § 620.81001-620.9902, Fla. Stat. (2006).


text:
    Renelle LUBIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2034.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2007.
    Rehearing Denied Oct. 4, 2007.

      Bernard F. Daley, Jr., Tallahassee, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Daniel F. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant Renelle Lubin (“Lubin”) appeals convictions of first degree murder with a firearm and shooting into an occupied vehicle. We affirm on all points raised on appeal.

This case arose from a drug deal gone bad. John Diaczok (“Diaczok”) picked up his friend, Cheryl Kajak (“Kajak”), and the two drove to West Palm Beach to purchase drugs. When they arrived, Kajak exited the van and an argument ensued between her and the man from whom she went to procure drugs (later identified as Lubin). The argument became physical and Lubin had to fend Kajak off. Diaczok then grabbed Kajak and brought- her back to the van, but by the time he sat back into the driver’s seat, Lubin had begun pulling Kajak back out. Diaczok proceeded to hit Lubin, who then backed away. But before Diaczok could start the van and leave, he heard several gun shots. He did not see who shot the gun, but presumed it was either Lubin or a woman Lubin was with (later identified as Tiffany Murray (“Murray”)). Diaczok then drove away and, noticing that Kajak had been shot, immediately drove to a nearby hospital. Kajak died of her injuries.

The State subsequently arrested Lubin and charged him with first degree murder and shooting into an occupied vehicle. At trial, it produced evidence, among other things, that Lubin’s fingerprints were found on the outside of the passenger-side door of Diaczok’s van. After hearing this and other evidence, the jury found Lubin guilty of the crimes charged. The trial court sentenced him to concurrent terms of life and fifteen years in Florida State Prison.

On appeal, Lubin contends that the prosecutor shifted the burden of proof during closing argument. The control of prosecutorial arguments to the jury is within the trial court’s discretion. See Conde v. State, 860 So.2d 930, 950 (Fla.2003). Although Lubin’s contention presents us with a close question, we find that the trial court did not abuse its discretion in allowing the prosecutor to make the following comments:

There is no way in the world his print got on that quality — and then try to tell you, “Well, maybe it got on some other time.” .... Did you have one bit of evidence, did one person or one piece of evidence come in and tell you that he left his palm print on that van another day?.... Did you hear one bit of evidence? Not one. What you heard from Diaczok....

A prosecutor’s argument should be examined in the context in which it is made. Stancle v. State, 854 So.2d 228, 229 (Fla. 4th DCA 2003) (citations omitted). Likewise, a prosecutor may comment upon the uncontradieted or uncontroverted nature of the evidence during argument to the jury. State v. Sheperd, 479 So.2d 106, 107 (Fla.1985) (citing White v. State, 377 So.2d 1149 (Fla.1979)). Here, the prosecutor’s remarks were not “invited,” as Lu-bin’s counsel did not address fingerprint evidence in his closing argument. See Richards v. State, 635 So.2d 983, 984 (Fla. 4th DCA 1994) (stating that a prosecutor may not give a response that goes beyond the scope of an invitation). Yet they were a fair comment on uncontroverted evidence that Lubin’s fingerprints were impressed on Diaczok’s van during the incident at issue. No one testified that Kajak had met Lubin before or that Lubin’s fingerprints could otherwise have been impressed on Diaczok’s van prior to the day of the incident. The State, however, presented evidence that Kajak and Lubin had an altercation, Lubin tried to pull her out from the passenger side of the van, was unsuccessful and then shot at the passenger-side door.

Even were we to find error, the prosecutor’s comments were not so prejudicial as to have inappropriately affected the jury’s decision. See Rodriguez v. State, 753 So.2d 29 (Fla.2000), cert. denied, 531 U.S. 859, 121 S.Ct. 145, 148 L.Ed.2d 96 (2000); see also Goodwin v. State, 751 So.2d 537 (Fla.1999); State v. DiGuilio, 491 So.2d 1129 (Fla.1986). Therefore, based on the foregoing, we affirm; nevertheless, we strongly caution prosecutors against making comments that may be interpreted as improperly shifting the burden to the defense. As to all other issues, we affirm.

Affirmed.

STEVENSON and TAYLOR, JJ., concur.


text:
    Glenn SMITH, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D06-0745.
    District Court of Appeal of Florida, First District.
    Aug. 3, 2007.
    Rehearing Denied Sept. 11, 2007.
    Glenn Smith, pro se, Appellant.
    Bill McCollum, Attorney General, and Carrie R. McNair, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We AFFIRM the dismissal of appellant’s petition for writ of mandamus. Of the ancillary issues raised by appellant, only one merits discussion. As appellant contends and appellee concedes, the trial court erred in imposing a lien on appellant’s inmate trust account to recoup court costs and fees incurred with respect to the mandamus proceedings. See Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003); Wagner v. McDonough, 927 So.2d 216 (Fla. 1st DCA 2006); Cason v. Crosby, 892 So.2d 536 (Fla. 1st DCA 2005). Accordingly, the order imposing the hen is REVERSED.

We likewise grant appellant’s motion for review of the trial court’s order of insolvency for purposes of appeal to the extent that we vacate the portion of that order imposing a lien for appellate costs and fees. On remand, the trial court shall direct the reimbursement of any funds collected pursuant to the improper liens.

AFFIRMED in part, REVERSED in part, and REMANDED.

BARFIELD, and ROBERTS, JJ., and LAWRENCE, JR., L. ARTHUR, Senior Judge, concur.


author: ROTHENBERG, Judge.

text:
    MIAMI-DADE COUNTY, Appellant, v. Denis CARDOSO, Appellee.
    No. 3D06-2118.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 2007.

      R.A. Cuevas, Jr., Acting Miami-Dade County Attorney, and Eric K. Gressman, Assistant County Attorney, for appellant.
    Michael Garcia Petit, for appellee.
    Before WELLS, CORTIÑAS, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The defendant, Miami-Dade County (“County”), appeals a final judgment entered in favor of the plaintiff, Denis Cardo-so (“Cardoso”), pursuant to a jury verdict awarding Cardoso a total of $73,000.00 in damages for eight false arrest and/or imprisonment claims. We affirm the damages awarded to Cardoso for past economic and non-economic damages but reverse the award for future economic damages.

Cardoso was a licensed flower peddler who sold flowers from a trailer, which he pulled behind his van. Between December 25, 1996 and June 27, 1999, Cardoso was arrested numerous times by various County police officers. In some cases, Cardoso was taken to jail and held briefly. However, most arrests did not result in incarcerations, as Cardoso was simply given “promises to appear” and released on the scene. Cardoso initially filed a complaint against the County alleging eighteen counts of false arrest and/or false imprisonment, one count of negligent training and supervision, and one count based upon 42 U.S.C. § 1983 liability. After the County removed the case to federal court, where summary judgment was awarded to the County on the section 1983 count, the case was remanded to state court for a trial on the remaining claims.

The jury found that Cardoso was legally arrested in ten of the eighteen claims of false arrest he brought against the County, returned verdicts in favor of Cardoso on the remaining claims of false arrest, and awarded Cardoso a total of $77,599.84, which included $55,599.84 for the negligent supervision and training claim and $22,000.00 for the eight claims for false arrest and/or imprisonment. The County appealed, asserting, in pertinent part, that the impact rule precluded a jury award for the claim of negligent training and supervision because Cardoso had no physical injuries. This court agreed and vacated the damages awarded on the negligence claim. Because this court was concerned that the award on the negligence claim may have affected the awards on the remaining eight counts of false arrest and/or imprisonment, we remanded for a new trial on damages relating to the remaining eight tort claims. Miami-Dade County v. Cardoso, 922 So.2d 301, 302 (Fla. 3d DCA 2006).

The trial on damages resulted in a jury award of damages in the amount of $78,000.00. Specifically, the jury awarded Cardoso non-economic damages of $50,000.00 for pain and suffering for the two nights he spent in the County jail; $3,000.00 for pain and suffering for the six arrests where Cardoso was given promises to appear and which did not result in any incarceration; $10,000.00 for past economic damages; and $10,000.00 for future economic damages. The County’s Motion for Judgment Notwithstanding the Verdict, Motion for New Trial, and Amended Motion for New Trial, were subsequently denied by the trial court.

In this appeal, the County argues that: (1) the non-economic damages are excessive, speculative, and barred by the impact rule; (2) the $10,000.00 award for past economic damages is unreasonable because it is unsupported by competent, substantial evidence; and (3) the $10,000.00 award for future economic damages was unsupported by competent, substantial evidence. As we are unpersuaded by the County’s arguments regarding the past economic and non-economic damages, we affirm those awards and only address the future economic damages awarded by the jury.

The Florida Supreme Court articulated the standard by which future economic damages are measured in Auto-Owners Insurance Co. v. Tompkins, 651 So.2d 89 (Fla.1995), stating that “the appropriate test is to permit the recovery of future economic damages when such damages are established with reasonable certainty. Although a permanent injury is not a prerequisite to recovering future economic damages, it is a significant factor in establishing the reasonable certainty of the future damages.” Id. at 91 (emphasis added). The purpose of a jury’s award of future economic damages is to compensate a plaintiff for the loss of capacity to earn income as opposed to actual loss of future earnings. W.R. Grace & Co. v. Fyke, 661 So.2d 1301, 1302 (Fla. 3d DCA 1995)(citing Renuart Lumber Yards, Inc. v. Levine, 49 So.2d 97 (Fla.1950)); see also Truelove v. Blount, 954 So.2d 1284, 1288 (Fla. 2d DCA 2007)(quoting Pyke, 661 So.2d at 1303-04)(“ ‘Florida law does not recognize a claim for future loss of earnings,’ but does recognize a claim for ‘damages for loss of earning capacity.’ ”); Allstate Ins. Co. v. Shilling, 374 So.2d 611, 612-13 (Fla. 4th DCA 1979)(holding than an award for loss of earning capacity is measured by the plaintiffs diminished ability to earn money in the future); Atl. Coast Line R.R. v. Ganey, 125 So.2d 576, 579 (Fla. 3d DCA 1960); Fla. Greyhound Lines, Inc. v. Jones, 60 So.2d 396, 398 (Fla.1952) (holding that the jury is not to be concerned with the actual future loss of earnings, but with the loss of the power to earn).

Before a plaintiff may be entitled to an award for loss of earning capacity, he or she must present sufficient evidence “which will allow a jury to reasonably calculate lost earning capacity.” Pyke, 661 So.2d at 1302. As this court explained in Pyke:

Once sufficient evidence is presented, the measure of damages is the loss of capacity to earn by virtue of any impairment found by the jury and the jury must base its decision on all relevant factors including the plaintiffs age, health, habits, occupation, surroundings, and earnings before and after the injury.

Id. at 1302.

Where a plaintiff is earning as much or more than he or she earned prior to the injury, as was Cardoso, it is more difficult for the plaintiff to prove that he or she has suffered a future economic loss. Truelove, 954 So.2d at 1288; Pyke, 661 So.2d at 1302. A plaintiff, however, is not precluded from recovering damages for loss of future earning capacity, even if he or she is earning more at the time of trial than when the injury occurred. Truelove, 954 So.2d at 1288; see also Long v. Publix Super Mkts., Inc., 458 So.2d 393, 394 (Fla. 1st DCA 1984)(“The fact that plaintiff at the time of trial is earning as much or more than she did prior to the injury does not preclude her from asking the jury to consider loss of future earning capacity.”). Such a fact is merely one of the factors for the jury to consider in determining whether the plaintiffs earning capacity has been impaired. Truelove, 954 So.2d at 1288.

A review of the record in this case establishes that there is no basis upon which the jury could have reasonably found an impairment of Cardoso’s future earning capacity. Cardoso’s testimony regarding his earnings as a flower vendor (1) were contradictory and unsubstantiated; (2) there was no evidence that his capacity to earn was diminished; and (3) at the time of trial, he was earning substantially more as a truck driver than he earned as a flower vendor.

Cardoso’s past earnings as a flower vendor were contradictory and unsubstantiated. He testified under oath in his deposition that he earned $10,000.00 a year as a flower vendor. While he claimed that he had filed tax returns reflective of this amount, Cardoso did not produce them. When pressed on the subject during his deposition, Cardoso invoked his Fifth Amendment right against self-incrimination and refused to answer questions regarding his earnings. At trial, Cardoso completely changed his testimony and testified that he earned greater than the $10,000.00 that he had testified to under oath in his deposition. He was, however, unable to provide any documentation or otherwise substantiate his testimony regarding his past earnings as a flower vendor. As Cardoso’s credibility was severely compromised and he could not substantiate his earnings, there was insufficient competent evidence to determine his actual past earnings. Based upon Cardoso’s contradictory statements under oath; the invocation of his right not to incriminate himself under the Fifth Amendment during his deposition when asked about his earnings; and the lack of any evidence other than his contradictory statements, we conclude that there is insufficient competent evidence to determine with any degree of certainty what Cardoso’s earnings were. Under these circumstances, at best, Cardoso’s past earnings should have been limited to the $10,000.00 he swore to under oath and he allegedly declared were his earnings in his tax returns.

Cardoso testified that his arrests and the humiliation he suffered rendered him unable to sell flowers in the future. Car-doso, however, did not present any evidence of his post-arrest earning capacity or any evidence that after his arrests, his earnings diminished. In fact, the evidence presented established that his earnings increased. At the time of trial, Cardoso was earning a salary of approximately $40,000.00 per year as a truck driver. Loss of capacity to work as a flower vendor is far different than the loss of the desire to work as a flower vendor. Cardoso clearly had the capacity to sell flowers but simply chose not to. Perhaps that decision was based, in part, on the fifty-two valid arrests. As we conclude that there was no substantial evidence from which a jury could calculate with reasonable certainty Cardoso’s diminished ability to earn money in the future, we reverse the jury’s award of future economic damages.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.


author: WELLS, Judge.

text:
    Anthony I. RILEY, Appellant, v. Una May EDWARDS-RILEY, Appellee.
    No. 3D06-1968.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 2007.
    Zumpano Patricios & Winkler and Hore-cia I. Walker and Leon N. Patricios, Miami, for appellant.
    David H. Freedman, for appellee.
    Before WELLS, CORTINAS and ROTHENBERG, JJ.
   WELLS, Judge.

Anthony J. Riley appeals from a final judgment of dissolution of marriage claiming that the trial court erred in ordering the sale of the marital home and distributing the proceeds of that sale and by requiring him to pay his former wife’s attorney’s fees. Because the final judgment fails to comply with the requirements of Chapter 61, which governs these awards, we reverse the order under review.

Riley and Una May Edwards were married on November 26, 2003 and separated a little more than a year later in December of 2004. Each owned a residence at the time of the marriage, Edwards a condominium in Miami, Riley a home in Tama-rac. Although the couple initially planned to sell both properties and buy a marital home, they were unable to do so because a second mortgage on Riley’s Tamarac home was in default. As a consequence, the couple decided to make the Tamarac property their marital home with Riley deeding the home to himself and Edwards, and Edwards securing a loan and mortgage in her name alone to satisfy the delinquent second mortgage. Edwards also used $17,000 of her separate funds to make repairs and improvements to the home.

After the parties separated, Riley continued to reside in the Tamarac home; Edwards returned to her condominium. In March of 2005, Edwards petitioned to dissolve the marriage and sought to have the condominium set aside as a non-marital asset. As to the Tamarac home, Edwards sought partition. Riley responded, admitting that Edwards’ condominium was her separate property, but denying that the Tamarac home was a marital asset. Riley sought imposition of a constructive trust on the Tamarac home.

On July 10, 2006, the marriage was dissolved in a final judgment of dissolution of marriage which neither segregated the non-marital and marital assets nor distributed them pursuant to Chapter 61 of the Florida Statutes, but which ordered the Tamarac home sold and the proceeds equally divided instead. The judgment also summarily ordered Riley to pay Edwards’ attorneys’ fees.

Riley claims here that the trial court erred in partitioning the Tamarac home and in ordering him to pay Edwards’ attorney’s fees without consideration of the parties’ respective financial resources as mandated by Chapter 61 of the Florida Statutes. We agree.

Chapter 61 of the Florida Statutes governing disposition of the assets and liabilities of a divorcing couple expressly states that in “a proceeding for dissolution of marriage,” the trial court must set apart to each spouse that spouse’s nonmarital assets and liabilities and then distribute the marital assets and liabilities between the parties. § 61.075(1), Fla. Stat. (2005). As explained in Robertson v. Robertson, 593 So.2d 491 (Fla.1991):

Section 61.075, Florida Statutes (1989), created a statutory form of equitable distribution.... Under the statute, the parties’ assets are to be divided into two categories: (1) marital assets and liabilities and (2) nonmarital assets and liabilities. The statute defines assets and liabilities falling within each of these categories and establishes certain presumptions to assist in categorizing each asset and liability. The court then divides the marital assets and liabilities between the spouses. Because equitable distribution is premised on the theory of an equal partnership in marriage, the court should begin this task on the premise that each spouse is entitled to receive an equal division. However, the court is directed to distribute the marital assets and liabilities “in such proportions as are equitable” after considering various enumerated factors as well as any other factors “necessary to do equity and justice between the parties.” § 61.075(1), Fla.Stat. (1989).

Robertson, 593 So.2d at 493-94.

This means that it is no longer necessary to seek partition as part of a dissolution action to divide or distribute a parcel of property owned by a husband and a wife. In fact, section 61.075(4), expressly provides that a final judgment of dissolution of marriage which distributes assets “shall have the effect of a duly executed instrument of conveyance, transfer, release, or acquisition.” § 61.075(4), Fla. Stat. (2005).

Riley is, therefore, correct. The final judgment entered below, which appears to partition the Tamarac home and to award Edwards’ attorney’s fees under Chapter 64 governing partitions, must be reversed. On remand, the court below shall determine whether the Tamarac home and the debts incurred relating to that home are marital or non-marital and shall distribute same as required by section 61.075. The court below shall also determine whether an attorney’s fee award is appropriate “after consideration of the financial resources of both parties,” and detail same in a final judgment which complies with the dictates of section 61.075(3). See § 61.16(1), Fla. Stat. (2005) (governing fee awards in Chapter 61 proceedings); § 61.075(3)(a)-(d), Fla. Stat (2005) (providing that in any contested action in which agreement has not been reached, specific written findings must be made identifying, valuing, and distributing the marital and non-marital assets and liabilities and specifying the rationale for these determinations).

Accordingly, the order under review is reversed and the case remanded for compliance with Chapter 61 of the Florida Statutes and this opinion.

      . As part of this determination, the court below should treat Riley's claim for imposition of a constructive trust as a special equity claim to have the property declared non-marital. See Robertson, 593 So.2d at 493-94 (confirming that what is now section 61.075(5)(a) creates a presumption that real estate owned by a husband and wife is marital property regardless of who paid for it and that a party claiming a special equity and seeking to have such property declared non-marital has the burden of overcoming the presumption by proving no gift was intended).