text:
    Ireneo RACOMA, Jr., M.D., and Franklin, Favata & Hulls, M.D.’s, P.A., Appellants, v. Steffan L. HANNANS, Appellee.
    No. 2D06-792.
    District Court of Appeal of Florida, Second District.
    April 16, 2008.
    Shelley H. Leinicke of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Fort Laud-erdale, for Appellants.
    Stuart C. Markman and Robert W. Ritsch of Kynes, Markman & Felman, P.A., Tampa; and Joshua E. Burnett of Burnett & Thomas, P.A., Tampa; and Richard Benjamin Wilkes of Richard Benjamin Wilkes, P.A., Tampa, for Appellee.
    Jason M. Azzarone and Michael Minkin of Stephens, Lynn, Klein, LaCava, Hoffman & Puya, P.A., Tampa, for Amicus Curiae Peter Alagona, Jr., M.D., Benedict Maniscalco, M.D., and Health Centers of Excellence, Inc.
   PER CURIAM.

Ireneo Racoma, Jr., M.D., and Franklin, Favata & Hulls, M.D.’s, P.A., appeal from the order granting Steffan L. Hannans a new trial after a jury rendered a verdict in favor of Dr. Racoma in an action for medical malpractice. We conclude that the trial court abused its discretion in ordering a new trial, and accordingly, we reverse and remand with directions to the trial court to reinstate the jury’s verdict. See § 59.041, Fla. Stat. (2005) (stating that “[n]o judgment shall be set aside or reversed, or new trial granted by any court of the state in any cause ... unless in the opinion of the court ... after an examination of the entire case it shall appear that the error complained of has resulted in a miscarriage of justice.”).

Reversed and remanded.

FULMER, SILBERMAN, and KELLY, JJ., Concur.


source: Caselaw Access Project

author: TRAWICK, DARYL E., Associate Judge.

license: Public Domain

text:
    EMERALD POINTE PROPERTY OWNERS’ ASSOCIATION, INC., Appellant, v. COMMERCIAL CONSTRUCTION INDUSTRIES, INC., Appellee.
    No. 4D06-3767.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2008.

      Tracy T. Segal of Akerman Senterfitt, West Palm Beach, and Katherine E. Gid-dings of Akerman Senterfitt, Tallahassee, for appellant.
    Lynn G. Waxman of Lynn G. Waxman, P.A., West Palm Beach, for appellee.
   On Motion fob Rehearing

TRAWICK, DARYL E., Associate Judge.

We grant appellant’s Motion for Rehearing, withdraw our previous opinion, and issue the following in its place.

Statement of Facts

Emerald Pointe is a senior citizens community consisting of both villas and condominium buildings. Appellant Emerald Pointe Property Owners’ Association, Inc. (hereinafter referred to as Emerald Pointe POA) is responsible for maintaining all of the roofs in the Emerald Pointe community. On September 25, 1998, Emerald Pointe and Appellee Commercial Construction Industries, Inc. (hereinafter referred to as CCI) entered into a five-year contract in which CCI agreed to perform roof maintenance, cleaning and repairs in Emerald Pointe. During the negotiation of the contract, the issue of whether hurricane damage would be covered was discussed; yet, the final version of the contract contained no such provision. Subsequently, CCI sent Emerald Pointe POA a document entitled “Roof Warranty,” dated September 27, 1998 (two days after the contract was executed). This warranty was signed by a representative of CCI, but contained no signature or acknowledgement of any kind by Emerald Pointe POA. The warranty contained the following exclusion:

CCI will not warrant leaks or damages caused by: a) Natural Disasters including but not limited to floods, lightning, verifiable hurricanes, hail, earthquakes, verifiable tornados, dry rotted facia [sic — fascia], eet. [sic] b) Structural failures such as cracks in walls, partitions, foundations, windows, stoppage of roof drains or gutters, ect. [sic]
CCI shall not be liable for any interior or consequetial [sic] damages resulting from roof leaks (except when in the process of making a roof leak repair and it rains), termites, or other insects.

In September 1999, Emerald Pointe sustained roof damage as a result of Hurricane Irene. CCI notified Emerald Pointe POA that the contract did not cover roof damage caused by hurricanes. Emerald Pointe POA agreed to pay CCI a total of $6,250 to repair damaged roofs.

Upon the expiration of the original contract, a new contract between the parties was executed on January 5, 2004. The terms of the new contract were nearly identical to the 1998 contract, except for a few minor modifications. In the new contract, as in the first, CCI agreed to chemically pressure clean each unit’s tile roof, clean gutters of debris, and keep the roofs free from fungus, mold and mildew during the five-year term. In consideration for CCI’s repair and cleaning services, the Contract called for Emerald Pointe to make annual payments to CCI of $325 for each Villa-style building, $325 for each Town home-style building, and $265 for each Villa without a garage, totaling $48,655 for each year of the contract. As in the 1998 contract, there is no force majeur provision, nor did the contract specify what would happen if the leaks referenced in the contract resulted from a hurricane. However, as was the case after the 1998 contract was executed, a warranty which again excluded hurricane coverage was sent by CCI to Emerald Pointe POA after the contract was signed by both parties. The warranty was signed by CCI, but was not signed or in any way acknowledged by Emerald Pointe POA.

The provision of the contract at issue here, which deals with .CCI’s duty to repair roof leaks, states:

6) Each tile roof leak discovered will be repaired within 72 hours of notification, weather permitting or other acts beyond the control of CCI. Leak repairs include all water damaged sheathing, rafters, flashing and membrane materials. Leak repairs do not include repairs to drywall, paint, carpet or any other interior damages.

No issues arose under the contract until September 4, 2004. Up to that point, CCI had pressure cleaned the roofs and made five or six roof repairs each month. All payments by Emerald Pointe POA had been made on schedule. This all changed when Hurricane Frances carved its destructive path through South Florida. Emerald Pointe suffered extensive roof damage, resulting in multiple leaks that needed repair. Several days after the hurricane, CCI sent a fax to Emerald Pointe POA, indicating that any repairs completed due to damage from the hurricane were not covered under the contract and would require additional compensation. Without any response to this- fax by Emerald Pointe POA, CCI began repairs of the hurricane damaged roofs in . Emerald Pointe. Emerald Pointe POA subsequently notified CCI that it would not pay CCI additional compensation for hurricane-related repairs, at which point CCI stopped work. Emerald Pointe withheld its quarterly payment to CCI due on October 1, 2004, believing that CCI was in breach of the contract by stopping the repair work. As a result, CCI filed the subject .action for breach of contract against Emerald Pointe POA. A counter-claim was filed by Emerald Pointe POA against CCI, also for breach of contract.

At trial, CCI maintained that the term “leak repairs” in the roof maintenance contract was ambiguous. Emerald Pointe POA argued that the term was clear on its face, and that it should be given its plain meaning without any consideration of extrinsic evidence. The trial court agreed with CCI, finding that “leak” was undefined in the contract and was ambiguous, and admitted parol evidence to determine the intent of the parties in their use of the term. This evidence included:

1) the testimony of Mark Terlap, CCI’s expert in roofing contracts, who testified that typical roofing industry maintenance contracts do not warranty damages resulting from hurricanes. Terlap also testified that, in his opinion, the contract did not cover hurricane damage.
2) the prior course of dealing of the parties under the 1998 contract, where hurricane damage had not been covered after Hurricane Irene.

CCI also presented the testimony of Anthony Amrhein, President of CCI, on the issue of damages. Amrhein testified that 35 units within Emerald Pointe were damaged by hurricanes, and that 51 leaks needed to be fixed. He indicated that, up to the point work by CCI was stopped, repairs totaled approximately $2000. No other evidence was introduced to support this conclusion. Amrhein also testified that CCI had cleaned 151 roofs for which it had not been compensated, and that CCI typically charged $495 per roof cleaning to parties not under a maintenance contract.

The trial court found that the parties had not intended that the term “leak” encompass damage caused by a hurricane, and that Emerald Pointe POA was in breach of the roof maintenance contract. The court awarded CCI $62,725 in damages.

Is the Term “Leak” as Used in the Subject Contract Ambiguous Requiring the Consideration of Parol Evidence?

Review of a trial court’s finding that a term in a contract is ambiguous is de novo. Sugar Cane Growers Coop. of Fla., Inc. v. Pinnock, 735 So.2d 530, 534-35 (Fla. 4th DCA 1999). “[A]n appellate court is free to reassess the contract and arrive at a conclusion different from the trial court.” Id. at 534.

Where contractual terms are clear and unambiguous, the court is bound by the plain meaning of those terms. The intent of the parties by their use of such terms must be discerned from within the “four corners of the document.” Dows v. Nike, Inc., 846 So.2d 595, 601 (Fla. 4th DCA 2003). However, when contractual language is found to be ambiguous, extrinsic evidence may be considered by the court to ascertain the intent of the parties. Okeechobee Landfill, Inc. v. Republic Servs. of Fla., Ltd. P’ship, 931 So.2d 942, 945 (Fla. 4th DCA 2006). A contractual term may be found to be ambiguous if “it is susceptible to more than one reasonable interpretation.” Id. A trial court’s finding that a term is ambiguous “should be sustained if supported by competent substantial evidence.” Dinallo v. Gunster, Yoakley, Valdes-Fauli & Stewart, P.A., 768 So.2d 468, 471 (Fla. 4th DCA 2000).

The trial court below found that the term “leak” was ambiguous in its usage within the contract, reasoning that:

The contract does not make it clear whether “Each Leak” means including breaches or flaws outside those which roofing contractors normally repair as part of a general maintenance contract such as with hurricane damage which may result in breaches that can also be construed or defined as leaks. Additionally, the clause provides that the leak discovered “will be repaired within 72 hours weather permitting.” Thus, a “leak” as used in this sentence may be construed differently from repairs which are the result of a hurricane in that after a hurricane there is usually apparent damage or [there is an] inspection specifically for hurricane damage[;] it [is] less usual that hurricane repairs [are] randomly “discovered.”

The trial court thus focused on the phrase “each leak discovered” in the disputed provision, reasoning that while leaks caused by normal wear and tear are often “randomly discovered,” leaks resulting from hurricane damage are “apparent” after the storm.

While there is logic in the trial court’s reasoning, this Court instead looks to other language within the disputed provision to determine whether an ambiguity exists.

Paragraph 6 of the contract requires that each tile roof leak be repaired within seventy-two hours of notification (absent weather issues or acts beyond the control of CCI). While it is reasonable to conclude that leaks caused by normal wear and tear could be repaired within 72 hours of notification, it is likewise unreasonable to believe that multiple leaking roofs damaged as a result of a hurricane could be repaired within the same three days. After the 2004 hurricanes pummeled South Florida, the community’s housing landscape was a patchwork design of blue tarps covering roofs waiting for repairs. Roofing contractors had huge backlogs as they worked to repair the heavy damage that had been inflicted throughout the area. Indeed, within Emerald Pointe itself, as noted earlier, there was extensive roof damage. Considering the seventy-two hour repair provision in this context, serious questions are raised as to whether the parties intended that leaks resulting from such cataclysmic events would be included within the scope of paragraph 6. Additionally, the use of the term “repaired” is subject to question. Did the parties intend that temporary or complete repairs were to be accomplished within the required seventy-two hours? As there is more than one reasonable interpretation of the terms “leak” and “repaired” under these circumstances, the intent of the parties cannot be clearly ascertained. Given the ambiguous nature of these terms, the trial court appropriately admitted extrinsic evidence of the common practice in local roof maintenance and repair contracts, as well as the parties’ previous dealings, to determine the intent of the parties.

Was the Evidence Presented Legally Sufficient to Support the Award of Damages?

A trial court’s award of damages must be affirmed if it is supported by competent substantial evidence. Alterra Healthcare Corp. v. Bryant, 937 So.2d 263, 266 (Fla. 4th DCA 2006), review denied, 956 So.2d 455 (Fla.2007). “ ‘[T]he measure of damages for breach of a partially performed construction contract is, ‘either quantum meruit or the contractor’s lost profit together with the reasonable costs of labor and materials incurred in good faith in the course of partial performance of the contract.’ ’ ” Puya v. Superior Pools, Spas & Waterfalls, Inc., 902 So.2d 973, 975-76 (Fla. 4th DCA 2005) (quoting Nico Indus., Inc. v. Steel Form Contractors, Inc., 625 So.2d 1252, 1252 (Fla. 4th DCA 1993) (citation omitted)).

There is no evidence of lost profits in the record before this Court. Thus, any award of damages can be sustained only under a quantum, meruit theory. Quantum meruit damages are designed to restore the contractor to the same position in which he would have been prior to making the agreement. Such damages are calculated by adding the reasonable value of the labor and services rendered, as well as materials furnished, id., and “must be proved with reasonable certainty and cannot be left to speculation or conjecture.” Ballard v. Krause, 248 So.2d 233, 235 (Fla. 4th DCA 1971). “The contract price generally is the upper limit where the contractor sues in quantum me-ruit, but in the event the owner’s breach is willful, the contractor may recover his outlay even if it exceeds the contract price.” Id. at 234-35.

The trial court apparently awarded CCI $2000 for uncompensated hurricane damage repair. However, there was no other evidence of repair costs admitted into evidence. It appears that the court instead adopted CCI’s calculations to determine damages, using the 151 roofs that were cleaned and not paid for, and assessed the $495 per roof CCI normally charged for parties not under a maintenance contract. It also appears that the trial court included a credit of $16,020 that was due to Emerald Pointe (this credit was never admitted into evidence), arriving at a final total of $62,725.

CCI failed to prove the value of its labor, services and materials actually furnished to Emerald Pointe POA. Instead, CCI introduced evidence as to what it normally charged parties with whom it had no pre-existing maintenance contract — $495. This figure likely included a substantial amount of profit since, under the terms of its maintenance contract with Emerald Pointe POA, CCI charged only $325 or $265 (depending on the unit configuration) for cleaning and repair. Damages under a quantum meruit theory do not include profits. Given the lack of any other evidence, there was insufficient evidence to support a damage award. The judgment as to damages must therefore be reversed. Furthermore, CCI is not enti-tied to a new trial on damages, as this would constitute a “ ‘second bite at the apple at proving damages.’ ” T.A. Enters., Inc. v. Olarte, Inc., 951 So.2d 978, 979 (Fla. 4th DCA 2007) (quoting St. Petersburg Hous. Auth. v. J.R. Dev., 706 So.2d 1377, 1377 (Fla. 2d DCA 1998)); see also Teca, Inc. v. WM-TAB, Inc., 726 So.2d 828, 830 (Fla. 4th DCA 1999).

Conclusion

Accordingly, we affirm the trial court’s determination that the contract provision at issue was ambiguous, as well as the court’s admission of parol evidence to determine the parties’ intent. However, the trial court’s damage award is reversed. This cause is hereby remanded with directions to enter judgment for CCI in the amount of $2000.

Affirmed in part; Reversed in part; and Remanded with Instructions.

STONE and STEVENSON, JJ., concur.

      . Emerald Pointe POA argues that, to the extent that there is any ambiguity in the contract, the ambiguity should be construed against the drafter, CCI. However, the rule of adverse construction is a "secondary rule of interpretation” or a "rule of last resort,” which should not be utilized if the parties' intent can otherwise be conclusively determined. Sch. Bd. of Broward County v. Great Am. Ins. Co., 807 So.2d 750, 752 (Fla. 4th DCA 2002); DSL Internet Corp. v. TigerDirect, Inc., 907 So.2d 1203, 1205 (Fla. 3d DCA 2005); Child v. Child, 474 So.2d 299 (Fla. 3d DCA 1985).

      .The Final Judgment does not indicate how the trial court determined its final damage award.

      . Plaintiffs Exhibit 7 does list repair costs. However, this exhibit was used only as a demonstrative aid and was never admitted as substantive evidence.

      . $2000 + (151 ' x $495) — $16,020 = $60,725. It is unclear from the record before us where the additional $2,000 in the trial court's award came from.

      . The amount of uncompensated hurricane damage repair for which there was evidentia-iy support at trial.


author: PER CURIAM.

text:
    MILESTONE CUSTOM HOMES, INC., a Florida corporation, Appellant, v. Edmund R. CLEMENT, Jr., an individual, and Sabre Construction, LLC, a Florida limited liability company, Appellees.
    No. 4D07-3700.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2008.
    Daniel R. Levine of Shapiro, Blasi, Was-serman & Gora, P.A., Boca Raton, for appellant.
    Donald M. Allison of Gillespie & Allison, P.A., Boca Raton, for appellees.
   PER CURIAM.

Milestone Custom Homes, Inc. appeals from a non-final order denying its motion for temporary injunctive relief to enjoin Edmund R. Clement, Jr. and Sabre Construction, LLC from competing with it in violation of the terms of their employment agreement. We affirm the denial of the injunction upon the trial court’s finding that appellant failed to show it had a substantial likelihood of success on the merits, given the evidence of its breach of the employment agreement following termination of appellee Clement. See N. Trust Invs., N.A. v. Domino, 896 So.2d 880 (Fla. 4th DCA 2005); Benemerito & Flores, M.D.’s, P.A. v. Roche, 751 So.2d 91 (Fla. 4th DCA 1999).

Affirmed.

KLEIN, STEVENSON and TAYLOR, JJ., concur.


text:
    Larry BENJAMIN, Petitioner, v. STATE of Florida, Respondent.
    No. 4D07-3249.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2008.
    Larry Benjamin, Jasper, pro se.
    Bill McCollum, Attorney General, Tallahassee, Myra J. Fried and Joseph A. Trin-gali, Assistant Attorneys General, West Palm Beach, for respondent.
   PER CURIAM.

Larry Benjamin filed a petition alleging ineffective assistance of appellate counsel. Benjamin claims that counsel failed to raise, on appeal, that his convictions for lewd or lascivious molestation and lewd or lascivious conduct violated double jeopardy. State v. Paul, 934 So.2d 1167 (Fla.2006); see also Capron v. State, 948 So.2d 954 (Fla. 5th DCA 2007). We grant relief as the responses filed in this court do not refute his claim that the outcome of the appeal would have been different.

Accordingly, this opinion shall be filed with the lower tribunal and treated as the notice of appeal of the judgment and sentence entered in this case. Upon receipt, the clerk of the lower court shall certify a copy of this opinion to this court in accordance with Florida Rule of Appellate Procedure 9.040(g). The appeal shall proceed under a new case number, which shall be assigned upon receipt in this court of the certified opinion. All time requirements of the Florida Rules of Appellate Procedure shall run from the date of this opinion. If Benjamin qualifies for appointed counsel, the trial court shall appoint counsel to represent him on appeal.

SHAHOOD, C.J., TAYLOR and HAZOURI, JJ., concur.


author: CANADY, Judge.

text:
    FIRST PROTECTIVE INSURANCE COMPANY, Appellant, v. Hisako FEATHERSTON and Catherine Thornhill, individually and as parent and natural guardian of Hannah Elizabeth Thornhill, a minor, Appellees.
    No. 2D06-5445.
    District Court of Appeal of Florida, Second District.
    April 18, 2008.

      Caryn L. Bellus and Kubieki Draper, Miami, for Appellant.
    Raymond T. Elligett, Jr., of Buell & Elligett, P.A., Tampa, for Appellee Hisako Featherston.
    Lee D. Gunn, IV, and Scott A. Arthur of Gunn Law Group, P.A., Tampa, for Appel-lee Catherine Thornhill.

      . Judge Wallace is recused from this case.

   CANADY, Judge.

In this case we consider whether a litigant’s failure to plead entitlement to costs constitutes a waiver of the litigant’s right to file a motion seeking costs at the conclusion of the litigation. Pursuant to Florida Rule of Appellate Procedure 9.331(a) and (c), the court on its own motion has ordered en banc consideration of this case. For the reasons we explain, we hold that litigants are not required to claim entitlement to costs in their pleadings.

At issue here is the circuit court’s order denying appellant First Protective Insurance Company’s motion to tax costs, which was filed after entry of judgment in a declaratory judgment action instituted by First Protective against the appellees. In the declaratory judgment action, First Protective prevailed in obtaining a declaration that the homeowner’s liability insurance policy it issued did not provide the coverage claimed by the appellees. See First Protective Ins. Co. v. Featherston, 906 So.2d 1242 (Fla. 2d DCA 2005). In its motion to tax costs, First Protective asserted an entitlement to costs pursuant to section 57.041, Florida Statutes (2005), and Florida Rule of Civil Procedure 1.525.

The appellees argued to the trial court that First Protective’s failure to plead entitlement to costs foreclosed an award of costs. It was undisputed that First Protective had not asserted a claim for costs in its complaint. First Protective argued that there is no requirement that entitlement to costs be asserted as a claim in the pleadings. The trial court accepted the appellees’ argument on this point and entered the order denying the motion to tax costs. In support of the denial of costs, the trial court’s order cited two cases: Stockman v. Downs, 573 So.2d 835 (Fla.1991), and Mook v. Mook, 873 So.2d 363 (Fla. 2d DCA 2004).

. Stockman, 573 So.2d at 837-38, held “that a claim for attorneys fees, whether based on statute or contract, must be pled” and that the “[f]ailure to do so constitutes a waiver of the claim” for fees. In reaching this decision, the court rejected the numerous “decisions of the district courts of appeal [which] held that it is unnecessary to plead for attorney’s fees authorized by statute,” id. at 836, as well as those cases which had allowed “recovery of attorney’s fees pursuant to a contract even though the claimant did not plead entitlement to such fees,” id. at 837. The Stock-man court based its decision on the need for appropriate notice:

The fundamental concern is one of notice. Modern pleading requirements serve to notify the opposing party of the claims alleged and prevent unfair surprise. Raising entitlement to attorney’s fees only after judgment fails to serve either of those objectives. The existence or nonexistence of a motion for attorney’s fees may play an important role in decisions affecting a case.... A party should not have to speculate throughout the entire course of an action about what claims ultimately may be alleged against him.

Id. (citation omitted).

In Mook, 873 So.2d at 365, we reversed the award of attorney’s fees and costs to the husband in a dissolution action “because the Husband never pleaded entitlement to attorney’s fees or costs.” The analysis in Mook is based entirely on the reasoning of Stockman with respect to claims for attorney’s fees. There is no indication in Mook that the husband suggested that costs should be treated differently than attorneys’ fees.

Contrary to the appellees’ argument, we conclude that the rationale articulated in Stockman for requiring that litigants plead entitlement to attorney’s fees should not be applied to impose a similar requirement with respect to costs. Accordingly, we recede from Mook to the extent it is inconsistent with our holding here.

In Globe Auto Imports, Inc. v. Golden, 567 So.2d 899, 900 (Fla. 2d DCA 1990), we held that the failure of a party to assert a claim for costs in the pleadings did not preclude an award of costs to that party. In support of our holding on this point, we cited Oriental Imports, Inc. v. Alilin, 559 So.2d 442, 442 (Fla. 5th DCA 1990), which held that under section 57.041, a trial judge does not have “discretion to deny recovery of costs to the prevailing party.” Oriental Imports recognized that under section 57.041, “ ‘every party who recovers a judgment in a legal proceeding is entitled as a matter of right to recover lawful court costs.’” 559 So.2d at 443 (quoting Governing Bd. of St. Johns River Water Mgmt. Dist. v. Lake Pickett Ltd., 543 So.2d 883, 884 (Fla. 5th DCA 1989)).

The holding of Globe Auto Imports is consistent with the principle recognized by the supreme court in State ex rel. Royal Insurance Co. v. Barrs, 87 Fla. 168, 99 So. 668, 669 (1924), that costs which are recoverable “as an incident to the main adjudication are ordinarily not required to be specifically claimed in the pleadings.” See also Dep’t of Health & Rehabilitative Servs. v. Crossdale, 585 So.2d 481, 483 (Fla. 4th DCA 1991) (“Costs are quite simply part of general relief. All pleadings are understood to pray for general relief and are construed to do substantial justice.”); Arellano v. Bisson, 761 So.2d 365, 366 (Fla. 3d DCA 2000) (quoting Crossdale); Philip J. Padovano, Florida Civil Practice § 13.3, at 469 (2007) (“Because the costs are an incident of the proceeding itself, there is no need to plead a claim for costs to preserve the right to recover at the time of the judgment”).

In Estate of Brock, 695 So.2d 714, 716 (Fla. 1st DCA 1996), a case involving probate proceedings, the First District considered whether the “rule on attorney’s fees pronounced in Stockman ... should be construed as applying equally to cost awards.” The appellant argued that the award of costs to the appellee was precluded because the appellee did not request costs from the appellant in the petition originally filed by the appellee. The court stated that the appellant had “failed to provide either statutory or case law holding that costs may not be awarded in probate litigation unless pled” and that the court’s “independent research [had] not disclosed authority for this proposition.” Id. The court stated that “[generally, costs are considered an incident to the action and need not be claimed in the pleadings.” Id. The Brock court thus rejected the application of Stockman to claims for costs.

In considering the appropriate pleading requirements, there is a material difference between attorney’s fees and costs. Unlike costs, ordinarily attorney’s fees are not recoverable and thus are not at issue. There is no generally applicable statute which entitles a prevailing party to a recovery of attorney’s fees. Accordingly, where there is a statutory or contractual basis for an award of attorney’s fees, proper pleading requires that a party seeking attorney’s fees put the other party or parties on notice that attorney’s fees are at issue in the litigation.

Under section 57.041, the recovery of costs is generally available to any “party recovering judgment.” This general provision may be displaced by context-specific statutory costs provisions. For example, in declaratory judgment proceedings, section 86.081, Florida Statutes (2005), provides that “[t]he court may award costs as are equitable.” And in dissolution cases, section 61.16, Florida Statutes (2005), provides that “a reasonable amount” may be awarded for the costs of a party “after considering the financial resources of both parties.” Although the standard for the award of costs may — based on specific statutory provisions — vary from the general standard set forth in section 57.041, it is universally true that costs are at issue when a lawsuit is brought. The availability of a recovery of costs is part of the warp and woof of litigation. Every party to litigation enters the litigation on notice that costs are at issue. Given this reality, it is unnecessary to require that litigants assert a claim for costs in the pleadings.

We therefore conclude that the trial court erred in its denial of the motion to tax costs. On remand, the trial court shall determine the issue of costs under section 86.081, which governs the award of costs in declaratory judgment actions. The circumstance that First Protective’s motion to tax costs made reference to section 57.041 — which is not applicable in the context of a declaratory judgment action— rather than to section 86.081, does not preclude an award of costs under the governing statutory provision. See Wilson Ins. Servs. v. W. Am. Ins. Co., 608 So.2d 857, 858 (Fla. 4th DCA 1992); Hemmerle v. Bramalea, 547 So.2d 203, 204 (Fla. 4th DCA 1989).

The trial court’s order is reversed, and the case is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

NORTHCUTT, C.J., and ALTENBERND, FULMER, WHATLEY, CASANUEVA, SALCINES, STRINGER, DAVIS, SILBERMAN, KELLY, VILLANTI, and LaROSE, JJ., Concur.

      . Our conclusion on this point is supported by the omission of a prayer for recovery of costs from all the form complaints in the Florida Rules of Civil Procedure. Rule 1.900(b) provides that these form complaints “are sufficient for the matters that are covered by them.’’ None of the form complaints contains any reference to costs. See Fla. R. Civ. P. 1.932-1.951.


author: YILLANTI, Judge. CANADY, Judge,

text:
    In re GUARDIANSHIP OF Bertha SHELL, an incapacitated person. Lutheran Services Florida, Inc., Appellant, v. Gregory M. McCoskey as court-appointed Guardian Ad Litem for Bertha Shell, an incapacitated person, Appellee.
    No. 2D06-4211.
    District Court of Appeal of Florida, Second District.
    April 18, 2008.

      Susan W. Fox of Fox & Loquasto, P.A., Tampa; Wendy S.: Loquasto of Fox & Loquasto, P.A., Tallahassee; and Louis D. Putney, Tampa, for Appellant.
    Gregory M. McCoskéy of Glenn, Rasmussen, Fogarty & Hooker, PA.., Tampa, for Appellee.
   YILLANTI, Judge.

Lutheran Services Florida, Inc., the guardian of Bertha Shell, appeals from the probate court’s order denying its objections to an earlier order that awarded Lutheran Services guardian’s fees in an amount less than it requested. The same order also denied Lutheran Services’ request for an injunction against' the Elder justice Center (EJC). We affirm on both issues.

In November 2002, Lutheran Services was appointed as Shell’s emergency temporary guardian after it was discovered that various individuals had been using Shell’s name to obtain credit and to plunder her bank accounts. Shell was subsequently adjudicated incapacitated, and Lutheran Services was appointed as plenary guardian in February 2003. Due to Shell’s continued incapacity, Lutheran Services has remained her guardian since its appointment.

Starting in September 2003, Lutheran Services began regularly submitting petitions for awards of guardian’s fees and costs to the probate court. Since that time, the EJC has reviewed each petition submitted by Lutheran Services before referring it to the probate court. The EJC is a court program created by the Thirteenth Judicial Circuit Court at the recommendation of the Joint Circuit Workgroup on Guardian Fees. It acts; much like an auditor, and its staff reviews guardians’ fee petitions at the direction and under the supervision of the probate court. The probate court has developed and published specific guidelines for the content and format of fee petitions from * guardians, and it has published detailed guidelines concerning how guardians’ fee petitions- will be reviewed by the EJC and what fees are subject to review and possible reduction. These guidelines include specific limits on the time that will be allowed for certain common or routine tasks, with the guardian being able to obtain a higher fee for those tasks only if the guardian provides a detailed explanation of why the higher fee is warranted.

In October 2003, the EJC recommended certain reductions in the guardian’s fees requested by Lutheran Services for services rendered to Shell. ' The probate court approved the petition after applying those recommended reductions. Lutheran Services sought rehearing, and the probate court granted rehearing and ultimately awarded the total amount of the fees requested.

In December 2003, May 2004, November 2004, and May 2005, Lutheran Services submitted additional petitions for guardian’s fees and costs. The EJC reviewed each petition and recommended certain reductions in the fees claimed. The probate court approved each of these petitions after applying the reductions recommended by the EJC. Lutheran Services did hot seek rehearing of the orders awarding reduced fees for the services claimed in these petitions.

In December 2005, Lutheran Services submitted its next semiannual petition for guardian’s fees and costs. The EJC again recommended certain reductions, and the probate court again approved the petition after applying those recommended reductions. However, after receiving this order, Lutheran Services filed an objection to the order, challenging the reduction in its fees and also seeking a global injunction against the EJC to prohibit it from making “arbitrary and unfounded reductions in its recommendations as to awards of guardian’s fees and costs, and from deviating from Court-established fee guidelines” in every guardianship case. Lutheran Services contended that its fee petition was prepared in compliance with the probate court’s guidelines for fee petitions and that the probate court’s order was devoid of any facts supporting the reductions in the fees. Lutheran Services also argued that it was denied due process when its fees were reduced without a hearing.

The probate court subsequently held an evidentiary hearing on Lutheran Services’ objections, thus rendering Lutheran Services’ due process argument moot. At the evidentiary hearing, the guardian’s representative, Sharon Van Wart, testified that she had performed the various tasks listed in the fee petition. She also testified that she believed that the fee petition complied with the probate court’s guidelines.

Because no one, other than presumably Van Wart herself, was representing Shell’s interests at the hearing, the probate court then proceeded to question Van Wart concerning the reasonableness of the time spent to perform some of the tasks itemized in the petition. For example, the probate court pointed out that the petition sought $168 for the guardian’s time to purchase a birthday present and cake for Shell’s birthday. This figure did not include the cost of the present and the cake. The court asked Van Wart why a $15-per-hour staff member could not have picked up the cake rather than Van Wart doing so at $70 per hour. Van Wart did not directly respond to the probate court’s question or provide an explanation for the amount of time spent buying these items. The probate court also questioned Van Wart as to why there were three telephone calls to a single doctor’s office on the same day— one call to set the appointment, a second to leave a message to provide the doctor with a mailing address, and a third to actually give the doctor the mailing address. The probate court asked Van Wart why these activities could not all have been accomplished in one telephone call, or at least billed at a reduced rate per call, particularly since this was one of Shell’s regular doctors. Van Wart did not provide any justification for these repeated calls, each of which was billed at $7, thus resulting in Shell being charged $21 to set a doctor’s appointment. Instead, Lutheran Services’ counsel responded that Lutheran Services was feeling “micromanaged” and that this type of micromanagement would force it out of business. Over the course of the hearing, Van Wart provided an explanation for the amount of time spent on only one task. As to the other disputed tasks, she simply testified that she believed that her billing was in accordance with the court’s guidelines.

On the issue of the injunction, Van Wart testified that she believed that the reductions in the claimed fees recommended by the EJC were arbitrary. She also testified to certain delays in being paid after the fee petitions were filed, which delays she attributed to the EJC. She asked the probate court to enter an injunction requiring the EJC to comply with the published guidelines and to process fee petitions within thirty days of filing.

The probate court then heard testimony from the program manager for the EJC. The program manager testified that the EJC reviews each petition for guardian’s fees in light of the guidelines set forth by the probate court, and it makes recommendations for reductions based on those guidelines. The program manager also testified that the recommendations made by the EJC are just that — recommendations — and that the probate court has the authority to agree or disagree with those recommendations. She noted that the EJC does not make arbitrary reductions and it will allow additional time for specific tasks if thp guardian provides an explanation for the extra time in the petition. However, in the absence of such an explanation, the EJC will recommend a reduction for what appears to be excessive time claimed for performing common or routine tasks. The program director also explained why certain delays were inherent in the fee petition review process and explained what steps had already been taken to attempt to reduce those delays.

At the conclusion of the hearing, the probate court took the matter under advisement. The probate court subsequently entered an order denying Lutheran Services’ objections to the reductions in the claimed fees and denying its request for an injunction. Lutheran Services now appeals as to both issues.

Addressing first the issue of the guardian’s fees, we note that section 744.108(1), Florida Statutes (2005), provides that a guardian is entitled to a reasonable fee for services rendered to the ward. In seeking such fees, the guardian has the burden to establish through appropriate proof that the services claimed were actually performed and that the fees claimed for those services are reasonable. In re Estate of Hollenbeck, 137 So.2d 854, 856 (Fla. 3d DCA 1962) (citing Lewis v. Gramil Corp., 94 So.2d 174, 176 (Fla.1957)). Based on that proof, the probate court has the discretion to determine the amount of the fees to which the gdardian is reasonably entitled. See, e.g., In re Guardianship of Sitter, 779 So.2d 346, 348 (Fla. 2d DCA 2000); Butler v. Guardianship of Peacock, 898 So.2d 1139, 1141 (Fla. 5th DCA 2005); In re Estate of Hollenbeck, 137 So.2d at 856. This discretion includes the ability to rely on common sense and experience to adjust the time claimed for common or routine tasks. It also includes the discretion to deduct time claimed by a guardian for noncore, delega-ble tasks that are better performed by others and to deduct excess time claimed due to the guardian’s own inefficiency because such time is not expended for the benefit of the ward.

However, the probate court’s discretion to award guardian’s fees is not unbridled. While the probate court has both the duty and the right to protect the interests of the ward, see Nelson & La Femina, P.A. v. Guardianship of Platsky, 745 So.2d 1057, 1057 (Fla. 3d DCA 1999); McGinnis v. Kanevsky, 564 So.2d 1141, 1143 (Fla. 3d DCA 1990), overruled on other grounds by Hayes v. Guardianship of Thompson, 952 So.2d 498 (Fla.2006), the probate court is not “at liberty to award anything more or less than fair and reasonable compensation for the services rendered or monies expended in each individual case,” Lewis, 94 So.2d at 176. Moreover, the legislature has prescribed certain factors that the probate court must consider when determining whether the fee requested by the guardian is reasonable, including the time and labor involved, the skill required to perform the services, and the experience and abilities of the person performing the services, among other factors. § 744.108(2). That said, however, when it is clear that the probate court has considered the statutory factors and has based its ruling on competent, substantial evidence in the record, this court cannot say that the probate court’s ruling is arbitrary, fanciful, or unreasonable and thus an abuse of discretion. See Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980) (holding that judicial discretion is abused only when the judicial action is arbitrary, fanciful or unreasonable) (quoting Delno v. Market St. Ry. Co., 124 F.2d 965, 967 (9th Cir.1942)).

In this case, it is clear from the probate court’s questioning of Van Wart that it considered the statutory factors in determining whether the fees requested by Lutheran Services were reasonable. The probate court’s questions to Van Wart directly addressed the issues of whether her skills were necessary to perform certain tasks, whether certain tasks would have been better performed by nursing home personnel at no cost to the ward, and whether the time claimed by the guardian was an accurate reflection of the time actually spent on the claimed tasks. While Van Wart testified that each of the specific tasks listed in the fee petition were performed, she did not testify as to the amount of time actually spent to perform each of these tasks. She also provided no explanation as to why she performed certain noncore, delegable tasks, such as filing, rather than having clerical personnel perform these tasks. When Lutheran Services failed to meet its burden of proof to establish that the amounts claimed were reasonable, the probate court properly exercised its discretion to reduce the claimed amounts in light of the court’s experience and common sense. Based on our review of the probate court’s questions and Van Wart’s responses, or lack thereof, we cannot say that the probate court failed to consider the factors listed in section 744.108(2) or that it abused its discretion in reducing Lutheran Service’s fees for disputed tasks not substantiated by Van Wart’s testimony at the hearing.

In this appeal, Lutheran Services relies on Sitter for the proposition that a probate court’s decision to reduce a guardian’s fee must be based on competent, substantial evidence. 779 So.2d at 348. We do not disagree with this general statement. However, we note that no presumption of reasonableness attaches to a guardian’s petition for fees, and no statute or case law requires the probate court to simply accept the guardian’s fee petition at face value and rubberstamp it. Nor is the probate court required to accept a guardian’s personal assertion of the time he or she spent performing a common task as dispositive of the issue of reasonableness. Indeed, such would be an abdication of the probate court’s responsibilities to the ward. Instead, the probate court may question the guardian concerning the tasks performed and the time spent performing those tasks, and the guardian’s responses to those questions constitute competent evidence upon which the probate court may rely when determining whether the fee requested is reasonable. Moreover, when the probate court accepts such testimony from the guardian, it may assess the credibility of that testimony in light of the court’s experience and common sense, and this court must defer to the probate court’s credibility assessment.

In addition, unlike in Sitter, the probate court in this case had not approved a previous fee petition that was substantially similar to the one at issue here. Id. at 347-48. Instead, the record shows that the probate court in this case had reduced the time claimed by Lutheran Services in each of its prior fee petitions in some respects. Thus, unlike in Sitter, we cannot say in this case that the probate court “abuse[d][its] discretion ... because the award falls outside the parameters of reasonableness established by the previous [petition].” Id. at 348. Moreover, with the advent of the EJC, an audit function exists now that was not present when Sitter was decided.

Here, the probate court elicited, or attempted to elicit, evidence from Van Wart to support the disputed fee entries. Had Van Wart provided a reasonable explanation for why the claimed time was necessary to accomplish the disputed tasks in this case, we might have had some basis to find that the probate court abused its discretion in rejecting that testimony and reducing the fee. However, when Van Wart failed to provide any testimony, reasonable or not, to support the time claimed for the specific tasks at issue, the probate court was within its authority to reduce the fees accordingly. Therefore, we hold that the probate court did not abuse its discretion in reducing the fees claimed by Lutheran Services in this case and in denying the objections raised by Lutheran Services to the reduced fee.

Turning to the issue of Lutheran Services’ request for an injunction against the EJC, we affirm the probate court’s ruling for two reasons. First, the EJC was not a party to the proceeding below. As a general rule, a trial court may not enter an injunction against an entity that is not a party to the action at issue. See, e.g., Leighton v. First Universal Lending, LLC, 925 So.2d 462, 464 (Fla. 4th DCA 2006) (“ ‘A court is without jurisdiction tu issue an injunction which would interfere with the rights of those who are not parties to the action. An injunction can lie only when its scope is limited in effect to the rights of parties before the court.’ ”) (quoting Sheoah Highlands, Inc. v. Daugherty, 837 So.2d 579, 583 (Fla. 5th DCA 2003) (citation omitted)); Fontainebleau Hotel Corp. v. City of Miami Beach, 172 So.2d 255, 256 (Fla. 3d DCA 1965) (“[A] court of chancery does not have the power to enjoin persons not parties to the cause.”). Here, Lutheran Services did not serve or join the EJC, nor did Lutheran Services serve or join the Thirteenth Judicial Circuit Court, the entity that created, authorized, and funded the EJC. In addition, Lutheran Services did not choose to raise its concerns by seeking declaratory relief against these entities. Rather, Lutheran Services challenged the EJC’s authority to perform its functions during a rather contentious fee dispute hearing in a single ward’s case. Because the EJC was not properly before the probate court at the hearing on Lutheran Services’ objections, the probate court was correct in denying injunctive relief on procedural grounds.

Second, even if this procedural problem had not existed, the probate court properly denied the injunctive relief Lutheran Services was seeking on substantive grounds. Although a large part of the EJC’s function is to review guardian fee petitions and recommend reductions if the fees appear excessive, the EJC does not perform any quasi-judicial functions, such as taking evidence or resolving disputes. Instead, if a guardian disputes a recommended fee reduction, the guardian is entitled to a hearing before the probate court upon timely request. This system of review and recommendation is a vastly improved version of the prior system under which employees of the clerk’s office audited petitions for guardian’s fees without the benefit of published procedures and guidelines to assist in their review. The decision to transfer this review process to a separate entity that operates under greater court supervision with specific published guidelines was a reasonable approach to improve the prior system- — which all the parties below agreed was “broken.”

Inarguably the EJC’s goals are laudable: to establish safeguards and guidelines in guardianship cases to ensure that the wards’ assets are protected while guardians are fairly compensated. Lutheran Services contends that the guardians’ fee petitions are being nitpicked and that guardians should not be told how much time a specific task “should” take. However, we fail to see how establishing nonbinding guidelines for determining reasonable fees based on the average time that a recurring common or routine task should take is anything but a reasonable manner in which to expedite review of fee petitions while also protecting a ward’s estate from unreasonable charges. Notably, Lutheran Services does not quibble with the need to provide greater protection of a ward’s assets.

Lutheran Services also argues that the EJC has, ironically, created more expense to the ward in the form of additional hearings on objections to fee reductions. To the extent that Lutheran Services’ assertion is accurate, it appears to be primarily due to the learning curve associated with instituting any new system. At the hearing, the EJC program manager noted that there had been a backlog of fee petitions but that procedures were now in place which should speed up the review of fee petitions. Lutheran Services admitted that just six weeks before the hearing in this case, new procedures had been put in place after consultation between the court, the EJC staff, professional guardians, and the guardians’ counsel to specifically address most of the perceived problems raised by Lutheran Services in its petition for the injunction. However, before these new procedures had had a chance to work, Lutheran Services sought to throw out the entire EJC program. Lutheran Services is a renowned nonprofit organization with impeccable credentials for providing guardianship services. Certainly it would be in Lutheran Services’ best interest to work with the court system to improve this system rather than seeking to end it.

Affirmed.

CANADY, J., Concurs specially.

LEVY, DAVID L., Associate Senior Judge, Concurs.

CANADY, Judge,

Concurring specially.

I concur in the decision to affirm the order on appeal. I also concur in the majority’s reasoning in support of that decision with one exception. I would affirm on the claim for injunctive relief simply on the procedural grounds articulated in the majority opinion. In my view, it is not necessary to reach the merits of the claim for injunctive relief.

      . At the start of the hearing, the probate court expressed its concerns that no one at the hearing was representing the ward, whose interests on the fee reduction issue might well conflict with the guardian's interests since the guardian’s fees were being paid from the ward's assets. We share the probate court’s concern that no one is truly representing the ward’s interests when objections to fee reductions are filed and brought to hearing by the guardian. We also note that section 744.391, Florida Statutes (2005), requires the probate court to appoint a guardian ad litem to represent the interests of the ward “if the interest of the guardian is adverse to that of his or her ward.” However, we recognize that appointing a guardian ad litem for the ward each time the guardian petitions for an award of fees is impractical. Therefore, we must rely on the probate court to exercise its authority responsibly to protect the interests of the ward in these situations.


author: WALLACE, Judge.

text:
    Steven Albert BERUBE, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-4151.
    District Court of Appeal of Florida, Second District.
    April 18, 2008.
    James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   WALLACE, Judge.

Steven Albert Berube appeals an order denying his motion for postconviction relief. Because the postconviction court entered its order after Mr. Berube’s motion seeking the disqualification of the judge assigned to the case was deemed granted, the postconviction court had no authority to rule on the motion. Accordingly, we reverse the order denying the postconviction motion and remand for further proceedings before a different judge.

The Facts and Procedural History

On April 14, 2005, Mr. Berube filed his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. After considering the State’s response to the motion, the postconviction court granted Mr. Berube an evidentiary hearing on his two claims of ineffective assistance of counsel. On August 26, 2005, Mr. Berube filed a motion to disqualify Judge Richard A. Luce from presiding over the matter. The certificate of service attached to the disqualification motion indicated that a copy of the motion had been served by mail on both the State Attorney and on Judge Luce. The date on the certificate of service was August 23, 2005.

On September 26, 2005, Mr. Berube filed a motion requesting the reassignment of the case to another judge. In this motion, Mr. Berube asserted that the case should be reassigned to another judge because Judge Luce had not ruled on the disqualification motion within thirty days as required by Florida Rule of Judicial Administration 2.160(j). On November 3, 2005, Judge Luce entered an order “dismissing” the disqualification motion on the ground that it was untimely filed.

On the same day that it dismissed his disqualification motion, the postconviction court appointed the public defender to represent Mr. Berube on his postconviction motion. Approximately six months later, the postconviction court held an evidentia-ry hearing on the postconviction motion. After the hearing, the postconviction court entered an order denying the postconviction motion, and Mr. Berube timely filed his notice of appeal.

Discussion

Rule 2.330(j) of the Florida Rules of Judicial Administration controls the result in this case. The rule provides:

The judge shall rule on a motion to disqualify immediately, but no later than 30 days after the service of the motion as set forth in subdivision (c). If not ruled on within 30 days of service, the motion shall be deemed granted and the moving party may seek an order from the court directing the clerk to reassign the case.

Fla. R. Jud. Admin. 2.330(j). Thus, once Mr. Berube properly filed and served his motion to disqualify as provided in the rule, the postconviction court was required to rule on the motion within thirty days of its service. Under the rule, the motion is deemed granted because the postconviction court did not rule on it within thirty days. See Schisler v. State, 958 So.2d 503, 505 (Fla. 3d DCA 2007). The postconviction court’s omission to rule on the motion within thirty days of its service entitled Mr. Berube to an order directing the clerk of the court to reassign the case. Johnson v. State, 968 So.2d 61, 63 (Fla. 4th DCA 2007); Schisler, 958 So.2d at 504.

Because the motion to disqualify was deemed granted under the rule, the post-conviction court had no authority to hear and determine Mr. Berube’s motion for postconviction relief. See Goolsby v. State, 914 So.2d 494, 496 (Fla. 5th DCA 2005); Jenkins v. Motorola, Inc., 911 So.2d 196, 197 (Fla. 3d DCA 2005). Accordingly, we reverse the order denying Mr. Berube’s postconviction motion, and we remand for further proceedings on the motion. On remand, the case shall be reassigned to a different judge.

Reversed and remanded with instructions.

SILBERMAN and CANADY, JJ., Concur.

      . In 2006, rule 2.160 was renumbered as rule 2.330. See In re Amendments to the Florida Rules of Judicial Administration—Reorganization of the Rules, 939 So.2d 966, 1003-04 (Fla.2006).


text:
    STATE of Louisiana v. Dejoshua WILLIAMS.
    No. 2007-K-0931.
    Supreme Court of Louisiana.
    Feb. 26, 2008.
    James D. Caldwell, Attorney General, Paul D. Connick, Jr., District Attorney, Terry Michael Boudreaux, Megan Lynn Gorman, Martin Alphonse Belanger, Assistant District Attorneys, for Applicant.
    Marino Criminal Law, Joseph A. Mari-no, III, Gretna, for Respondent.
   PER CURIAM.

| ¡.Defendant was charged by bill of information filed in the 24th Judicial District Court, Parish of Jefferson, with aggravated flight from an officer in violation of La. R.S. 14:108.1(C). He was also charged in the Second Parish Court, Jefferson Parish, with a variety of traffic offenses arising out of the same incident. In August 2006, defendant entered guilty pleas to the traffic offenses in the Second Parish Court. Thereafter, he filed a motion to quash the pending prosecution for aggravated flight from an officer in the 24th Judicial District Court on grounds that it would subject him to trial for the same conduct for which he had previously been convicted and punished in the Second Parish Court and thereby subject him to double jeopardy. On September 1, 2006, after the trial court denied the motion to quash, defendant entered a plea of guilty as charged, reserving his right to appeal from the court’s adverse ruling on his motion to quash. State v. Crosby, 338 So.2d 584 (La.1976). The trial court sentenced defendant to two years imprisonment at hard labor, suspended, and placed him on two years active probation. The court of appeal subsequently reversed defendant’s conviction and sentence on the basis of his Crosby reservation, agreeing with him that his protection against double jeopardy precluded the second prosecution for aggravated flight from an officer following his guilty pleas to the traffic violations. State v. Williams, 06-1898 (La.App. 5th Cir.2/27/07)(unpub’d). We granted the state’s application to consider that ruling and now reverse.

At the hearing conducted on his motion to quash, defense counsel entered as an exhibit the report of Jefferson Parish Sheriffs Office documenting defendant’s arrest. According to the report, on March 22, 2006, Jefferson Parish Officer Susan McCartney observed the vehicle occupied by defendant stopped at the corner of Harold and Brown Avenues in Harvey, Louisiana. Defendant appeared to engage in a hand-to-hand narcotics transaction with an unidentified individual. Defendant’s two-year-old son was also in the front seat of the vehicle. He was not wearing any type of seat belt or restraint. Suspicious of drug activity, the officer approached on foot and asked defendant to step out of his vehicle. Defendant responded by putting the car into reverse and backing away. Officer McCartney drew her gun and again ordered defendant to stop. He continued to back up and nearly struck the patrol unit of Officers Hill and Matthews who had just arrived on the scene. Officer Hill turned on the vehicle’s lights and siren to keep defendant from backing into her cruiser. However, defendant continued to back away from Officer McCartney and Officer Hill put her own vehicle into reverse to avoid a collision. Defendant then shifted out of reverse and sped from the scene. Officers Hill and Matthews pursued, and during the chase defendant reached speeds in excess of 65 miles per hour, ignored several stop signs, and forced other vehicles 13to leave the roadway. After finally stopping defendant’s vehicle, the officers placed him under arrest and issued him citations for reckless operation, speeding, failure to wear a seat belt, failure to use a child restraint, and for five counts of running a stop sign, all violations of state law. Thereafter, on August 28, 2006, defendant entered guilty pleas to all of the violations and paid fines in excess of $600. His motion to quash the pending prosecution for aggravated flight from an officer on the basis of those guilty pleas followed.

In denying defendant’s motion to quash, the trial court observed that “aggravated flight is a separate and distinct [offense] even though those other ones ... are part of the proof of it.” Disagreeing with that analysis, the court of appeal sought to account for the particular way in which La. R.S. 14:108.1 defines the offense. The statute in fact proscribes two crimes. The basic offense of flight from an officer, a six-month misdemeanor, is committed when the offender intentionally refuses to bring his vehicle to a stop “knowing that he has been given a visual and audible signal to stop by a police officer when the officer has reasonable grounds to believe that the driver has committed an offense.” R.S. 14:108.1(A). The crime of aggravated flight from an officer, a two-year felony offense, occurs when the offender flees from an officer (as defined in subsection A) under circumstances “wherein human life is endangered.” R.S. 14:108.1(C). The statute provides a specific and seemingly exclusive definition of the aggravating factors which elevate the crime from a misdemeanor to a felony. An offender creates circumstances in which human life is endangered when he commits at least two of the following acts: (1) leaves the roadway or forces another vehicle to leave the roadway; (2) collides with another vehicle; (3) Lexceeds the posted speed limit by at least 25 miles per hour; (4) travels against the flow of traffic. R.S. 14:108.1(D).

Although conceding that the police report supported a finding that defendant had forced several other vehicles off the road during the chase with Officers Hill and Matthews, the court of appeal found that the state could not satisfy the statute’s requirement of “at least” two aggravating acts without violating defendant’s protection from double jeopardy because he had already been prosecuted and convicted for speeding. Williams, 06-1898 at 9 (“We liken the instant case to cases in which Louisiana courts have found it is a double jeopardy violation to charge a defendant with first-degree felony murder as well as the underlying felony used to support the murder charge.”)(citing State ex rel. Williams v. State, 05-0427 (La.1/27/06), 922 So.2d 526; State ex rel. Adams v. Butler, 558 So.2d 552 (La.1990)). In addition, the court of appeal found no suggestion in the police report that defendant “either collided with another vehicle during the police chase, or that he traveled against the flow of traffic.” Williams, 06-1898 at 6. Thus, even conceding that defendant’s prior guilty plea to reckless operation of a motor vehicle was not “subsumed in the elements of aggravated flight from an officer,” Williams, 06-1898 at 7, the court of appeal concluded that the state had based its prosecution of defendant on conduct for which he had already been convicted and punished and that his protection from double jeopardy therefore barred the second prosecution, for aggravated flight from an officer.

In reaching that conclusion, the court of appeal properly considered the factual submissions made at the hearing on the motion to quash. State v. Solomon, 379 So.2d 1078, 1079 (La.1980) (on a Crosby appeal from a conditional guilty plea following denial of a motion to quash, the Court did not have a trial transcript |5to review “in order to determine whether evidence in the theft trial would be the ‘same evidence’ to prove the burglary charge,” but did have “the testimony from the motion to quash which may be utilized for this purpose.”); compare United States v. Broce, 488 U.S. 563, 575-76, 109 S.Ct. 757, 765, 102 L.Ed.2d 927 (1989)(a defendant who has entered an unconditional guilty plea may only attack the convictions on double jeopardy grounds if he shows a double jeopardy violation on the face of the pleadings or record); State ex rel. Boyd v. State, 98-0378 (La.10/9/98), 720 So.2d 667 (same); State ex rel. Adams v. Butler, 558 So.2d 552, 553 n. 1 (La.1990)(same).

In addition, the court of appeal properly considered the double jeopardy aspects of the present case not only under the additional fact (element) test of Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), see United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993); State v. Knowles, 392 So.2d 651, 654 (La.1980), but also under Louisiana’s somewhat broader same evidence test, which considers the actual physical and testimonial evidence necessary to secure a conviction, and concerns itself with the “evidential focus” of the facts adduced at trial in light of the verdict rendered, i.e., how the evidence satisfies the prosecution’s burden of proof. State v. Coody, 448 So.2d 100, 102-03 (La.1984). The test is similar to the same conduct test adopted briefly by the Supreme Court in Grady v. Corbin, 495 U.S. 508, 510, 110 S.Ct. 2084, 2087, 109 L.Ed.2d 548 (1990)(“[T]he Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.”) | fi(footnote omitted). Thus, while aggravated flight from an officer and speeding in violation of La. R.S. 32:64(A), or reckless operation of a motor vehicle in violation of La. R.S. 14:99, might have different statutory elements for purposes of the Blockburger test, the state does not contest here the court of appeal’s conclusion that as a matter of Louisiana law its prosecution for aggravated flight from an officer could not rely on the prior speeding offense in support of the element of risk to human life because it would require proof of conduct for which the defendant had already been prosecuted.

However, the court of appeal ultimately erred in two respects. First, even assuming that the state could not prosecute defendant for the offense of aggravated flight from an officer without violating his protection against double jeopardy, defendant’s guilty plea to the offense necessarily encompassed all of the elements of the lesser included misdemeanor offense of flight from an officer, clearly a separate and distinct offense from any of the traffic violations arising out of the same incident. As opposed to quashing the prosecution altogether and setting aside defendant’s guilty plea and sentence, the court of appeal should have, assuming the correctness of its premise, reduced defendant’s conviction to the misdemeanor offense of flight from an officer under R.S. 14:108.1(A) and remanded the case to the trial court for resentencing. See Morris v. Mathews, 475 U.S. 237, 106 S.Ct. 1032, 89 L.Ed.2d 187 (1986)(even in the case of successive trials, a reviewing court may cure a double jeopardy violation by reducing a jeopardy-barred offense to a lesser and included non-jeopardy-barred offense |7necessarily found by the jury in its verdict for the greater offense unless the defendant can show that, but for trial on the jeopardy-barred offense, a reasonable probability exists that he would not have been convicted of the non-barred offense).

Second, and more fundamentally, the court of appeal erred in analogizing the present case to one in which the state prosecutes a defendant for both felony murder and the underlying felony offense. Speeding is not a lesser and included offense of aggravated flight from an officer; nor is it an element of that offense, as opposed to a statutorily prescribed circumstance from which a trier of fact may find the aggravating element of risk to human life enhancing the offense from a misdemeanor to a felony. Thus, the state was not required to prove that offense as one of the circumstances giving rise to a risk to human life for purposes of aggravated flight from an officer if it could establish that element of the offense by other evidence. The police report introduced at the hearing on the motion to quash established that defendant forced other vehicles off the roadway during the chase, a point conceded by the court of appeal, Williams, 06-1898 at 6, and that he may have traveled against the flow of traffic by backing away from Officer McCartney as she approached and nearly collided with the patrol unit occupied by Officers Hill and Matthews. The court of appeal did not concede the latter point, id., but the state correctly notes that by pleading guilty defendant avoided a trial at which it would have the burden of proving beyond a reasonable doubt the required combination of acts in support of the aggravated circumstances of danger to human life to the satisfaction of a trier of fact. In the present case, the information contained in the police report held open the possibility that a rational trier of fact, considering all of the evidence presented at trial, could have found that defendant |sengaged in conduct giving rise to a risk to human life by first traveling against the flow of traffic however briefly when he backed away from Officer McCartney and nearly collided with the patrol unit occupied by Officers Hill and Matthews and then forced other vehicles from the road in the ensuing high-speed chase with the officers. Thus, from a functional perspective offered by the information contained in the police report, defendant’s guilty plea to aggravated flight from an officer did not necessarily subject him to a second prosecution for conduct as to which he had already been prosecuted.

Accordingly, the decision of the court of appeal is reversed, defendant’s conviction and sentence are reinstated, and this case is remanded to the district court for execution of sentence.

      . However, the decision in Grady proved short-lived, as the Supreme Court overruled it in Dixon and revived the Blockburger additional element standard as the exclusive test under the Double Jeopardy Clause of the Fifth Amendment. Dixon, 509 U.S. at 704, 113 S.Ct. at 2856 (the same-elements test, "sometimes referred to as the 'Blockburger’ test, inquires whether each offense contains an element not contained in the other; if not, they are the ‘same offence’ and double jeopardy bars additional punishment and successive prosecution.”).


text:
    STATE of Louisiana v. Rance DUNBAR.
    No. 2007-K-0219.
    Supreme Court of Louisiana.
    Feb. 26, 2008.

      James D. Caldwell, Attorney General, Keva Landrum-Johnson, Acting District Attorney, Graham L. Bosworth, Assistant District Attorney, for Applicant.
    Sherry Watters, Louisiana Appellant Project, New Orleans, for Respondent.
   PER CURIAM.

hThe state charged defendant by bill of information with unauthorized use of a motor vehicle in violation of La. R.S. 14:68.4. A six-person jury found him guilty as charged. The trial court subsequently adjudicated defendant a third felony offender for purposes of La. R.S. 15:529.1 and sentenced him to 12 years imprisonment at hard labor. On appeal, the Fourth Circuit reversed defendant’s conviction and sentence, finding that the state failed to prove beyond a reasonable doubt that the vehicle subject to the unauthorized use belonged to the person specifically named in the bill of information charging the offense. State v. Dunbar, 06-0130 (La.App. 4th Cir.1/10/07), 950 So.2d 872. We granted the state’s application to consider the correctness of that decision and now reverse.

The evidence at trial revealed that at approximately 4:25 a.m. on February 16, 2005, New Orleans Police Officers Hurst and Singleton, conducting a routine patrol, sat in their unit parked in the median on Claiborne Avenue at State Street. The officers noticed a white Acura traveling on Claiborne with its headlights off. RThe vehicle was occupied by two men, and its windows were down despite the cold. Officer Hurst waved to the driver as a signal to pull over. Hurst intended only to caution the driver that his lights were off and not to cite him with any traffic violation. However, when the Acura pulled abreast of the officers, the occupants gave the officers a startled look and the driver gunned the car, turning from Claiborne onto Octavia Street. The officers gave chase as Singleton ran the Acura’s plate number through his computer and determined that the vehicle had been reported stolen on the preceding day. The Acura turned from Octavia onto McKenna Street with the officers in close pursuit. The vehicle then stopped in the middle of McKenna, and the driver and his passenger bolted from the car, its engine still running, crossing in front of it as they fled in different directions into the neighborhood. With the assistance of a canine unit, back-up officers called to the scene found defendant in the area and placed him under arrest.

Both Hurst and Singleton positively identified defendant as the driver of the car. According to both officers, they too had their windows rolled down despite the cold weather, and they had an unobstructed view of the Acura’s driver from only a few feet away when the vehicle pulled abreast of their patrol unit. Although the car had been reported stolen, the officers acknowledged that keys were in the ignition, the steering column did not appear to have been defeated, and the vehicle otherwise showed no signs of forced entry. Officer Singleton testified at trial that he had learned the name of the owner, whom he did not identify, when he ran the Acura’s plate number through his computer. Following defendant’s arrest, he contacted the owner who confirmed that her car had been stolen the day before. Officer- Singleton testified that police routinely ask the owners of recovered stolen vehicles whether they wish to have the car towed to a secure | ¡¡location or leave it secured at the location where it was recovered. In the present case, Officer Singleton stated that he left the Acura at the location where the police had recovered it.

Patricia Abrams testified that at approximately 9:00 p.m. on the evening of February 15, 2005, while working at the V.A. Medical Center in New Orleans, she realized that she had left her keys in her car which she had parked outside of the hospital. She went outside to recover her keys and discovered that her vehicle had been stolen. She immediately went back inside and called the police. At approximately 5:30 a.m., police contacted her at work about her vehicle. Abrams testified that she told the officers to leave the car at the scene because she could not retrieve it until her shift ended. She did not identify the officer who called her by name and did not identify or otherwise describe her vehicle,

Defendant took the stand and testified that on the night of February 15, 2005, he was at home when his friend, Marvin Robertson, arrived and told him that he had some women that they could visit. Defendant walked outside and climbed into the passenger seat of a white Acura, which Robertson explained belonged to his sister. After visiting the women, Robertson was driving defendant home when he saw Officer Hurst’s signal for him to pull over. Instead, Robertson, who did not have a driver’s license, panicked and sped away as defendant urged him to stop. Robertson eventually abandoned the vehicle in the middle of McKenna Street and defendant, panicked by his friend’s response, joined in the flight from the scene on foot. Defendant eventually surrendered to the canine unit. Defendant flatly denied that he had been driving the car and testified that he did not see anything such as a broken steering column or broken window that would have indicated to him that the car was stolen. According to defendant, the keys |4were in the ignition and a purse was on the back seat. Defendant stated that he did not give Robertson’s name to the police because he would not inform on a friend. He further claimed that the police told him that if he refused to name the driver, they would identify him as the individual driving the vehicle. Defendant admitted that he had two prior felony convictions for accessory after the fact to carjacking and for unauthorized entry of a business.

In reversing defendant’s conviction and sentence, the court of appeal acknowledged that defendant’s flight from the officers and apparent false testimony in direct contradiction of Hurst and Singleton that he was not the driver of the car provided jurors with two factors to consider in assessing whether defendant had guilty knowledge that the Acura was stolen. Dunbar, 06-1030 at p. 10-11, 950 So.2d at 877-78. With respect to defendant’s flight from the scene, the court of appeal thought it unlikely that an open beer can found by Officer Hurst in the Acura prompted defendant to run “from police because he knew this was illegal and did not want to receive a municipal summons for that infraction.” Id., 06-1030 at p. 10, 950 So.2d at 877.

However, the court of appeal stopped short of stating explicitly that a rational trier of fact could have found guilty knowledge beyond a reasonable doubt because it viewed as a fatal flaw in the state’s case its failure to present any “direct or compelling circumstantial evidence that the vehicle Dunbar was driving belonged to Patricia Abrams, the owner of the vehicle — as charged in the bill of information.” Dunbar, 06-1030 at p. 11, 950 So.2d at 878. Given the state’s apparent failure to tie its case together by eliciting any direct evidence that the Acura belonged to Abrams, the court of appeal concluded that the evidence presented at trial would not have satisfied a rational trier of fact “beyond a treasonable doubt that Dunbar took or used a motor vehicle belonging to Patricia Abrams, thus rendering moot the issue of guilty knowledge and/or intent.” Dunbar, 06-1030 at p. 12, 950 So.2d at 878.

In reaching that conclusion, the court of appeal addressed a question not raised by the defense at trial. From the brief portions of closing argument included in the record on appeal, it appears that defense counsel principally attacked the credibility of Officers Hurst and Singleton on the basis of discrepancies in their testimony describing the chase of the Acura, suggesting that the inconsistencies discredited their testimony altogether, including their claim that defendant was driving the car. Counsel also touted the credibility of defendant’s testimony, despite his prior felony record which placed his general credibility at issue as a matter of La.C.E. art. 609.1, that he was a passenger in the car driven by Robertson and therefore did not take or “use” the vehicle for purposes of La.R.S. 14:68.4, which defines the offense of unauthorized use of a motor vehicle as “the intentional taking or use of a motor vehicle which belongs to another ... without the other’s consent....” In his brief to the court of appeal, defendant argued that the jury acted unreasonably in rejecting the defense actually offered at trial but made no claim with respect to the question of whether the state proved the Acura belonged to Abrams.

An appellate court may reverse a defendant’s conviction and sentence on grounds of insufficient evidence “regardless of how the error is brought to the attention of the reviewing court.” State v. Raymo, 419 So.2d 858, 861 (La.1982). However, in the present case, the court of appeal answered only part of the relevant question when it addressed what it saw as the state’s critical and inexplicable failure to prove the identity of the particular person who owned the | fiAcura. Even assuming that the state failed to prove that the Acura belonged to Abrams, the question remained whether the state had thereby also failed to prove that the vehicle “belonged to another” for purposes of La. R.S. 14:68.4.

Although the bill of information charged defendant with the unauthorized use of a motor vehicle, “to wit: Acura Integra belonging to Patricia Abrams,” the specific allegation with respect to the identity of the owner was unnecessary to charge the offense. The state had no need to allege or prove that the vehicle recovered by the police belonged to any particular person, as opposed to “another,” ie., “any other person or legal entity.” La. R.S. 14:2(1). Louisiana has long subscribed to the rule that identification of the victim is an essential averment of an indictment, and an essential element of proof at trial, only for crimes committed against the person, as opposed to crimes against property. La.C.Cr.P. art. 473 thus provides that “[w]hen the name of the person injured is substantial and not merely descriptive, such as when the injury is to the person, as in murder, rape, or battery, the indictment shall state the true name of the victim or the name, appellation, or nickname by which he is known.” This article carries forward the provisions of La. C.Cr.P. art. 230 (1928) with respect to charging crimes against the person, and “[tjhis situation should be distinguished from crimes against the property where the important fact is the nature and description of property damaged.” La. C.Cr.P. art. 473, Official Revision Comment (a). Thus, the short form indictments for charging the analogous crimes of theft and unauthorized use of a movable do not require identification of the person to whom the property belonged before the taking, as opposed to description of the property taken. See La.C.Cr.P. art. 465(A)(44)(theft: “A.B. committed theft of _(state property stolen) of a value of _ dollars.”); La.C.Cr.P. art. 465(A)(46)(unauthorized use |7of movables: “A.B. committed unauthorized use of_ (describe the movable).”); see also former La.C.Cr.P. art. 235 (1928)(short form for Larceny-Embezzlement and False Pretenses: “A.B. stole or embezzled or obtained by false pretenses (as the case may be.(describe property stolen, embezzled or obtained by false pretenses, and state value of property.”).

These charging forms reflect a longstanding rule, now over a century old in Louisiana, that “[t]he ownership of a particular person is not an essential ingredient of the crime of larceny, which is simply the felonious[ ] taking and carrying away the personal goods of another; and, even if the owner be unknown, the offense may be properly charged and sustained .... The identity of [the property] charged to have been stolen is the important thing in determining whether the offense proved is the offense charged.” State v. Hanks, 39 La. Ann. 234, 1 So. 458, 459 (1887). Thus, in crimes against property, it is essential only “that it should be alleged and proven to have been the property of another than the accused.” State v. Harris, 42 La.Ann. 980, 8 So. 530 (1890); see also State v. Miller, 170 La. 51, 127 So. 361, 362 (1930)(same); State v. Babineaux, 146 La. 290, 83 So. 558, 559 (1919)(same).

The crime of unauthorized use of a motor vehicle as defined in La. R.S. 14:68.4 is similarly an offense against property, and it therefore appears that the description of the vehicle taken or used, and not the identification of a particular person to whom the vehicle belonged, is essential to charging and proving the crime. Thus, even assuming that in the present case the state failed to introduce sufficient evidence that the vehicle recovered by Officers Hurst and Singleton in fact belonged to Patricia Abrams, testimony that the officers determined that the vehicle had been reported stolen on the night of February 15, 2005, that they [^identified the owner through vehicle registration records, and that Officer Singleton subsequently spoke to the owner on the following morning, who confirmed the theft and directed them as to the disposition of her property, provided jurors with a rational basis for concluding that the Acura belonged to another person and not to defendant or his companion. Although Officer Singleton’s testimony had hearsay aspects, review of the sufficiency of the evidence takes into account the entirety of the evidence introduced at trial, including evidence that may have been erroneously admitted. State v. Hearold, 603 So.2d 731, 734 (La.1992); see Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988).

In addition, as the court of appeal indicated, the evidence also provided jurors a rational basis for finding that by driving the vehicle and then abandoning it with the engine still running in the middle of the street as Officers Hurst and Singleton closed in pursuit, defendant used the Acu-ra with guilty knowledge that it belonged to another person who had not authorized him to take possession of her vehicle.

Accordingly, the decision of the court of appeal is reversed and this case is remanded for consideration of the defendant’s remaining assignments of error pretermitted on original appeal.

DECISION OF COURT OF APPEAL REVERSED; CASE REMANDED.