author: BARFIELD, J.

text:
    Mary Rose SMITH, Linda Anne York, Robert Moore, Bays County Audubon Society, and St. Andrews Bay Resource Management Association, Appellants, v. CITY OF PANAMA CITY, Appellee.
    No. 1D06-1411.
    District Court of Appeal of Florida, First District.
    March 13, 2007.
    David Jon Russ, Gainesville, for Appellants.
    Rowlett W. Bryant and Tiffany A. Brown, of Bryant & Higby, Chartered, for Appellee.
   BARFIELD, J.

The appellants challenge an order dismissing their complaint for declaratory relief and petitions for writ of certiorari challenging the legality of an annexation and rezoning by the City. The pleadings were dismissed in August 2005, with leave to amend within thirty days. However, the amended pleadings were not filed until nearly three months later. The order dismissing the action with prejudice for failure to timely file the amended pleadings contained no findings of fact and no conclusions of law. We therefore reverse the order and remand the case to the trial court.

In Mercer v. Raine, 443 So.2d 944, 946 (Fla.1983), the supreme court found that the trial court had not abused its discretion in striking the defendant’s answer as a sanction for failure to comply with a discovery order, noting that “the striking of pleadings or entering a default for noncompliance with an order compelling discovery is the most severe of all sanctions which should be employed only in extreme circumstances,” but that the trial court in that case had expressly found that the defendant “knew what was going on” and had “total disregard for the consequences” of the pending action, and that “[s]uch facts would support an interpretation that his noncompliance was willful.”

In Sekot Laboratories, Inc. v. Gleason, 585 So.2d 286 (Fla. 3d DCA 1990), the court reversed the trial court’s dismissal of a third amended complaint “with prejudice,” citing Edward L. Nezelek, Inc. v. Sunbeam Television Corp., 413 So.2d 51 (Fla. 3d DCA), rev. denied, 424 So.2d 763 (Fla.1982), and Neu v. Turgel, 480 So.2d 216 (Fla. 3d DCA 1985), cause dismissed, 486 So.2d 598 (Fla.1986). Nezelek had found that an order of dismissal “with leave to amend” is not an order to amend, but rather “permission to do that which without the court’s permission would not be allowable,” and that failure to amend in such a circumstance is not disobedience of a court order, and does not justify dismissal “with prejudice.” 413 So.2d at 54. Neu had ruled: “Once a court has dismissed a complaint with leave to amend, it cannot subsequently dismiss with prejudice for failure to timely amend unless (1) separate notice is given to plaintiff of the hearing on the motion to dismiss with prejudice, or (2) the order dismissing the complaint with leave to amend specifically provides that on failure to amend within the stated time, the cause will be dismissed without further notice.” 480 So.2d at 217. The court in Sekot stated that dismissal with prejudice “is an extreme sanction” which should not be imposed absent a showing that the opposing side was “prejudiced in a meaningful way by plaintiffs’ tardiness,” and noted that the defendants in that ease had conceded that “they have suffered no prejudice by reason of delay in amending.” 585 So.2d at 289.

In Commonwealth Federal Sav. and Loan Ass’n v. Tubero, 569 So.2d 1271 (Fla. 1990), the supreme court held that an express written finding of willful or deliberate refusal to obey a discovery order is necessary to sustain the severe sanctions of dismissal or default against a noncomplying litigant. It reaffirmed its position in Mercer regarding the abuse of discretion standard for such orders, but stated that “it is for the very reason that the trial judge is granted so much discretion to impose this severe sanction that we have determined that the subject order should contain an explicit finding of willful noncompliance.” Id. at 1273.

In Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993), the supreme court addressed the dismissal of a complaint for failure to timely amend, and found that “the trial courts need a meaningful set of guidelines to assist them in their task of sanctioning parties and attorneys for acts of malfeasance and disobedience.” The court set out six factors which must be considered by the trial court in deciding whether dismissal of a complaint with prejudice is warranted. The six factors included whether the action was willful rather than negligent, and whether the client was personally involved. The court stated: “Upon consideration of these factors, if a sanction less severe than dismissal with prejudice appears to be a viable alternative, the trial court should employ such an alternative.” Id. The court observed that where the attorney alone is responsible for the noncompliance with a court order, “a fine, public reprimand, or contempt order may often be the appropriate sanction” to impose on the attorney, and remanded the case to the district court of appeal “with directions that the trial court be ordered to reconsider in light of the new factors established in this opinion.” Id.

In Town of Manalapan v. Florida Power & Light Co., 815 So.2d 670, 671 (Fla. 4th DCA 2002), the court reversed the dismissal of a complaint with prejudice for failure to timely file an amended complaint, finding that “consideration of the Kozel factors required a sanction less severe than dismissal.” In Florida Nat. Organization for Women, Inc. v. State, 832 So.2d 911, 914 (Fla. 1st DCA 2002), this court cited Man-alapan and Kozel in reversing the dismissal of parts of a complaint for failure to comply with a court order, finding that “[tjhere is no indication that the trial court in this case considered these factors, as it failed to make the required findings in its order.” In Rohlwing v. Myakka River Real Properties, Inc., 884 So.2d 402, 406 (Fla. 2d DCA 2004), the court reversed an order dismissing an amended complaint with prejudice and remanded “for the trial court to reconsider the motion to dismiss and, should the court conclude that dismissal with prejudice is again warranted, to make the explicit determinations mandated by Kozel.” The court observed:

Each appealed order dismissing with prejudice the fifth amended complaint’s various counts contains only the generic language “dismissed with prejudice.” The written orders do not reveal the trial court’s rationale for dismissal, and the transcripts of the two hearings reflect only the trial court’s brief comment about the excessive length of the fifth amended complaint and the long period during which the parties attempted to file a satisfactory complaint. This is insufficient for purposes of our review, as well as for the litigants, especially the Rohlwings.

Id. at 405. The court noted that there were “other remedies, such as a fine, public reprimand, or even a contempt order, to punish counsel’s conduct if merited, without punishing the innocent client,” but warned that clients “cannot escape total responsibility for their counsel’s actions, whether intentional or negligent.” Id. at 407. In Montage Group, Ltd. v. Athle-Tech Computer Systems, Inc., 889 So.2d 180, 189-90 (Fla. 2d DCA 2004), the court affirmed an order striking the defendants’ pleadings as a sanction for discovery violations, noting that the trial court had entered “a lengthy order with detailed findings of fact and conclusions of law, including a review of the six factors outlined in [Kozel]” and conclusions that the defendants’ conduct “warranted the most severe sanction available and that no less severe penalty would be a viable alternative under the circumstances.”

In Ham v. Dunmire, 891 So.2d 492 (Fla. 2004), the supreme court held that the plaintiffs failure to comply with a discovery order, which did not result in prejudice to the opposing party, did not warrant dismissal with prejudice where more appropriate sanctions were available. The court discussed the review standard set out in Mercer, the “express written findings” requirement of Tubero, and the six Kozel factors, and disapproved the decisions of several district courts to the extent they had interpreted Kozel as requiring a litigant’s personal involvement to justify dismissal. It found that neither the trial court, nor the district court which had affirmed the dismissal with prejudice, had reviewed the motion for sanctions “in accordance with the factors outlined in Ko-zel,” and that it also did not appear that either court had “considered whether the purposes of the rules of civil procedure would have been vindicated through imposition of a lesser sanction.” Id. at 500. It found that “[t]he trial court’s failure to consider the Kozel factors in determining whether dismissal was appropriate is, by itself, a basis for remand for application of the correct standard.” Id.

In Tianvan v. AVCO Corp., 898 So.2d 1208, 1209 (Fla. 4th DCA 2005), the court reversed the dismissal of a complaint with prejudice as a sanction for discovery violations, finding that “the trial court failed to make express written findings of fact supporting the conclusion that the failure to obey the court orders demonstrated willful or deliberate disregard,” citing Ham and Tubero. It remanded for the trial court to consider the factors articulated in Kozel “in determining whether dismissal is appropriate for the discovery violations at issue and to make written factual findings regarding willful or deliberate disregard if the court again concludes that dismissal is the appropriate sanction.” Id.

The order is REVERSED and the case is REMANDED to the trial court for reconsideration in light of the case law discussed herein. While complicity of the appellants in the conduct of their counsel is only one of the several factors to be considered on remand, the relative weight to be accorded this factor is within the sound discretion of the trial court. If, after considering the six factors outlined in Kozel and whether a sanction less severe than dismissal with prejudice is a viable alternative in light of those factors, the trial court concludes that the conduct of the appellants and/or their counsel warrants dismissal of the action with prejudice, it shall enter an order containing findings of fact and conclusions of law with respect to each of the six Kozel factors and with respect to the determination that no less severe sanction would be a viable alternative under the circumstances.

PADOVANO and POLSTON, JJ., concur.


source: Caselaw Access Project

author: PADOVANO, J.

license: Public Domain

text:
    Danny GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-5552.
    District Court of Appeal of Florida, First District.
    March 13, 2007.
    George F. Schaefer, San Diego, CA; Robert Rush, Gainesville, for Appellant.

      Bill McCollum, Attorney General and Alan R. Dakan, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PADOVANO, J.

Among other arguments presented in this criminal appeal, the defendant contends that the trial court erred in denying his request to adjourn the trial until the next day. We have no reason to find fault with this decision. The jurors expressed a preference to continue with their deliberations late into the evening, and the record shows that the trial judge was careful to ensure that they were able to give the case their full attention. Because we find no merit in the defendant’s argument on this point or in any of the other arguments made in the appeal, we affirm.

The state accused the defendant, Danny Green, of committing sex crimes against two young women, one of them a minor. As to the adult victim, the defendant was charged with a single count of sexual battery; as to the minor, he was charged in three counts with the crimes of sexual battery, unlawful sexual activity with a minor and promoting an unlawful sexual performance by a child. The events began in the same way as to each victim. The defendant was a photographer, and the victims were models who agreed to pose for him in the nude in what the defendant has referred to as photo shoots or casting sessions.

Although the offenses were alleged to have been committed against the two victims on different dates, the charges were consolidated for a single trial, at the defendant’s request. Counsel for the state informed the trial judge that the case could be completed in one day and counsel for the defense agreed. When the jurors came into the courtroom, the judge who presided over jury selection told the jurors that the case would last one day. A different judge presided over the trial itself.

The trial progressed slowly, and, at approximately 4:00 p.m., the trial judge asked the lawyers if they had previously informed the jurors that they might be required to serve more than one day. They both said they had not. At that point, the judge and the lawyers attempted to determine the amount of time that would be needed to complete the trial. The state had nearly finished its case by then, but the defendant was planning to testify and additional time would also be needed for a jury instruction conference, the closing arguments, the delivery of the jury charge, and the jury deliberations.

Defense counsel expressed her concern that the jury would not have enough time to review all of the evidence if they were required to work late into the evening, which she argued would be a disadvantage to the defendant. To address this concern, the trial court asked the jurors if any of them would have a conflict if the trial were to resume the next day. Two jurors stated that they would have some difficulty returning the next day because they had work obligations. The trial court then gave the jurors an opportunity to go back to the jury room to contact their employers. Following a brief recess, the jurors informed the trial judge that they wished to stay and complete the trial that evening.

Defense counsel then asked the judge to go against the wishes of the jury and continue the trial until the next day. The trial judge indicated that if the jurors were able to give the case their full attention, he was not going to make them come back the next day against their will. The jury then returned to the courtroom and the trial resumed.

The closing arguments were concluded at 9:20 p.m. At that time, the trial judge asked the jurors if they would like to come back the next day at 6:00 p.m. for deliberations. This accommodation would avoid the employment conflicts the two jurors had spoken of earlier. The jurors informed the court that they wished to proceed that evening and the trial judge allowed them to begin their deliberations. Several hours later, at approximately 11:40 p.m., the trial judge called the jurors back into the courtroom and again asked them if they were still in the mental state to continue with deliberations. The jurors responded that they were.

Shortly after midnight, the jury returned its verdicts. On the primary charge of sexual battery in each case, the defendant was found guilty of the lesser included crime of attempted sexual battery. On the additional charges relating to the younger victim, the defendant was found guilty as charged of promoting an unlawful sexual performance by a child and not guilty of unlawful sexual activity with a child. The defendant was sentenced to a term of imprisonment to be followed by a term of sexual offender probation and he now appeals to this Court.

We begin with the standard of review. Trial courts have discretion to resolve issues relating to the course and conduct of a criminal trial. See Owen v. State, 773 So.2d 510 (Fla.2000). Whether a trial should be adjourned for the day or continued into the evening is a decision that falls within this general class of discretionary decisions. See Woodel v. State, 804 So.2d 316 (Fla.2001). A scheduling issue such as this is resolved not by the application of a rule of law, but rather by the exercise of good judgment.

In the present case the trial judge carefully weighed all of the options and made a decision to proceed with the trial late into the evening. Under the circumstances, we have no reason to disagree with the trial judge, much less conclude that he abused his discretion. The trial judge determined that the jurors were able to give the case their full attention before he granted their request to stay and complete the trial.

The defendant relies heavily on the decision of the Fourth District Court of Appeal in Ferrer v. State, 718 So.2d 822 (Fla. 4th DCA 1998), but that case does not support a reversal here. The decision in Ferrer is distinguishable, and much of the opinion is dicta that was intended as guidance for lawyers and judges in the Fourth District. The Ferrer case is similar in some respects but it is more about a defense lawyer’s ability to provide adequate legal representation. The jury selection in that case did not begin until 7:30 p.m. Defense counsel had been ordered to remain in court to observe the jury selection proceedings in all of the other cases, and by then he was not physically able to proceed. He objected on the ground that he was too fatigued to serve as competent counsel and, as the appellate court noted, there was nothing in the record to contradict that representation. In contrast, the jury selection in this case began at 8:00 a.m., and the opening statements followed a short time later. Defense counsel did not argue that she was unable to provide adequate legal representation, and it does not appear that her performance was affected in any way by the court’s decision to proceed with the trial.

The defendant argues that he was prejudiced because the jurors were forced to rush to a conclusion, but there is nothing in the record to support that assertion. The trial judge asked the jurors if they were still capable of giving the case their full attention, and they said that they were. He was able to observe the jurors and was therefore in the best position to determine whether they were able to continue. Moreover, the jury verdicts finding the defendant guilty of lesser included offenses on both of the primary charges and not guilty on one of the remaining charges suggests that the jurors did, in fact, give careful attention to the evidence and the arguments.

We would affirm for these reasons alone, but one other point worth mentioning here is that the defendant bears some responsibility for the fact that the trial was not concluded until late in the evening. The trial judge set aside one day based on the lawyers’ representations that the case would take one day. Prospective jurors were asked if they could serve that day, but they were not asked, until it was much too late, whether they would be able to return for a second day. In these circumstances, it should come as no surprise that the jurors wished to stay and complete the trial that evening.

Surely the lawyers must have known that this case was not the only one the trial judge would be required to try that week. They should have been more realistic about them estimate of the time required. When lawyers grossly underestimate the time that will be needed to compete a jury trial, as they did here, that leaves the trial judge with few good options. The trial judge must either decide to work into the evening or adjourn the case until the next day, which might intrude on the jurors’ schedules and the schedules of other lawyers, witnesses and jurors who were scheduled to appear in court for another trial.

Some courts have discouraged the practice of continuing a trial late into the evening. See Ferrer, 718 So.2d at 826; Shultheis v. Gotlin, 919 So.2d 546 (Fla. 5th DCA 2005). We join in this sentiment. However, it is important to recognize that sometimes it will be necessary to keep a jury beyond the normal hours. Those who work in the criminal court system know that it is not a nine-to-five job. The course of a criminal trial is not always easy to predict and sometimes, even with the best planning, it will be necessary to keep a jury late. This is certainly acceptable so long as the trial judge determines that the defendant will receive a fair trial.

For these reasons, we conclude that the trial court did not err in denying the defendant’s request to adjourn the case until the next day. Although we have not addressed all of the defendant’s arguments here, we have considered them all and we have concluded that they are without merit.

Affirmed.

ALLEN and LEWIS, JJ., concur.


author: PER CURIAM.

text:
    Johnnie Sylvester SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-6613.
    District Court of Appeal of Florida, First District.
    March 13, 2007.
    Johnnie Sylvester Smith, pro se, Appellant.
    Bill McCollum, Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order of January 25, 2007, we dismiss this appeal for lack of jurisdiction. The notice of appeal filed on December 20, 2006, appealing the Order on the appellant’s postconviction motion, rendered on November 7, 2006, is untimely. Because the notice of appeal was filed more than 30 days after rendition of the order, this Court is without appellate jurisdiction. See Fla. R.App. P. 9.110(b). This appeal is hereby dismissed, but in light of appellant’s claims that he did not timely receive a copy of the order denying his motion, we do so without prejudice to appellant’s right to file a petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c). DISMISSED.

HAWKES, THOMAS, and ROBERTS, JJ., concur.


text:
    Dan A. SWINSON, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D07-0239.
    District Court of Appeal of Florida, First District.
    March 13, 2007.
    Dan A. Swinson, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DISMISSED. See Banks v. State, 916 So.2d 35 (Fla. 1st DCA 2005) (dismissing appeal of interlocutory order imposing lien on prisoner’s inmate account); Brown v. Campion, 757 So.2d 535 (Fla. 1st DCA 2000) (holding order denying indigency status is not immediately reviewable). See also, Cason v. Crosby, 892 So.2d 536 (Fla. 1st DCA 2005) (providing relief from indi-gency order where review was properly initiated following final order dismissing mandamus petition).

HAWKES, THOMAS, and ROBERTS, JJ., concur.


author: GROSS, J.

text:
    The HUMANE SOCIETY OF BROWARD COUNTY, INC., Appellant, v. The FLORIDA HUMANE SOCIETY, Appellee.
    No. 4D06-1239.
    District Court of Appeal of Florida, Fourth District.
    March 14, 2007.

      Barry L. Haley and Clark A.D. Wilson of Malin, Haley & DiMaggio, P.A., Fort Lauderdale, for appellant.
    George H. Aslanian, Jr. of Aslanian & Aslanian, Fort Lauderdale, for appellee.
   GROSS, J.

The Humane Society of Broward County, Inc. (“Broward Humane”) appeals the circuit court’s award of prevailing party attorney’s fees to The Florida Humane Society (“Florida Humane”), under section 501.2105(1), Florida Statutes (2006), Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA). Florida Humane cross-appeals the amount of prevailing party attorney’s fees awarded by the trial court. We affirm on all issues.

Broward Humane filed a five-count complaint against Florida Humane alleging common law servicemark infringement, common law trademark infringement, unfair competition, violation of Florida’s Deceptive and Unfair Trade Practices Act, and dilution. Broward Humane alleged that Florida Humane deliberately and willfully deceived the public to blur the identity of the parties. Broward Humane sought to enjoin Florida Humane from using the term “humane society” in Bro-ward County.

After a bench trial, the circuit court entered a final judgment in favor of Florida Humane on all claims. Florida Humane timely filed a motion to tax costs and attorney’s fees under section 501.2105, Florida Statutes (2003). At the hearing on the motion for fees and costs, Florida Humane presented testimony that it was only able to pay $7,000 during the course of the litigation; $5,700 was paid for costs and $1,300 was paid to counsel. Recognizing Florida Humane’s lack of funds to finance litigation and the existence of a fee-authorizing statute, Florida Humane and its attorney entered into a fee agreement where the attorney would bill the society at a reduced rate of $200; if successful, Florida Humane would seek to recover a fee award from Broward Humane at counsel’s normal hourly rate of between $250 and $300. The trial judge acknowledged that “both groups are doing good work and ultimately donations are going to be used to pay attorney’s fees, whichever way it goes.”

The trial court found that Florida Humane’s attorney expended 453.80 hours at a reasonable rate of $200.00, for a total attorney fee award of $90,760; the court also awarded $5,846 for costs and $3,750 for expert witness fees, resulting in a total judgment for $100,356. Broward Humane appealed the award and Florida Humane cross-appealed the amount of the award.

An award of attorney’s fees to the prevailing party under sections 501.2105(l)-(4) of FDUTPA is discretionary with the trial court. See Gen. Motors Acceptance Corp. v. Laesser, 791 So.2d 517, 520 n. 3 (Fla. 4th DCA 2001). Absent an abuse of that discretion, the court’s award of fees must be upheld. See First Fed. Sav. & Loan Ass’n of Palm Beaches v. Bezotte, 740 So.2d 589, 590 (Fla. 4th DCA 1999); Discovery Experimental & Dev. Inc. v. Dep’t of Health, 824 So.2d 195 (Fla. 2d DCA 2002).

Broward Humane contends that under the FDUTPA a losing plaintiff should be shielded from liability for fees and costs unless the plaintiffs lawsuit is “frivolous, unreasonable, or without foundation.” See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). Broward Humane argues that requiring the unsuccessful plaintiff to pay the prevailing defendant’s fees constitutes a penalty against the plaintiff and does not foster the goals of FDUTPA.

Broward Humane points to Florida’s Anti-Trust Act section 542.22(1), Florida Statutes (2003), to support its argument that a prevailing FDUTPA defendant should only be awarded attorney’s fees when a “court finds there was a complete absence of justiciable issue of either law or fact raised by the Plaintiff.” Broward Humane looks to the court’s recognition in Mack v. Bristol-Myers Squibb Co., 673 So.2d 100 (Fla. 1st DCA 1996), that the Anti-Trust Act and FDUTPA, have “essentially the same purpose” to contend that the award of prevailing party fees under both actions should be comparable. See Wakulla County v. Davis, 395 So.2d 540, 542 (Fla.1981) (explaining that established principles of statutory interpretation require that two statutes having the same purpose be construed harmoniously to the extent possible).

We reject this argument because the Anti-Trust Act contains a specific standard for the award of fees to a prevailing defendant, while FDUTPA does not.

Section 542.22(1), of the F.A.A. reads

Any person who shall be injured in her or his business or property by reason of any violation of s. 542.18 or s. 542.19 may sue therefor in the circuit courts of this state and shall recover threefold the damages by her or him sustained, and the cost of suit, including a reasonable attorney’s fee. The court shall award a reasonable attorney’s fee to a defendant prevailing in any action under this chapter for damages or equitable relief in which the court finds there was a complete absence of a justiciable issue of either law or fact raised by the plaintiff.

(Emphasis added). Section 542.22(1) contains explicit legislative direction as to when a prevailing defendant is to be awarded attorney’s fees — “when the court finds there was a complete absence of a justiciable issue of either law or fact raised by the plaintiff.” Id. Section 501.2105(1) contains no comparable language limiting a fee award to a prevailing defendant.

We note that another portion of FDUTPA, section 501.2105(5), limits an award of attorney’s fees against the enforcing authority to situations where the court finds that there “was a complete absence of a justiciable issue of law or fact raised by the losing party or if the court finds bad faith on the part of the losing party.” Where the legislature intended to impose a stricter standard on the award of attorney’s fees under FDUTPA, it did so. The plain meaning of section 501.2105(1) admits of only one interpretation, that the legislature gave trial courts the discretion to award prevailing party attorney fees to both plaintiffs and defendants under the same standards. See Gen. Motors Acceptance Corp., 791 So.2d at 520 n. 3 (recognizing that section 501.2105 placed an award of fees and costs, for both prevailing plaintiffs and prevailing defendants, within the discretion of the trial court).

No Florida court has directly addressed the question of whether different standards should apply to a prevailing plaintiff as opposed to a prevailing defendant under section 501.2105(1) of FDUTPA. In General Motors Acceptance Corp., we rejected the argument that the predecessor to the present section was intended to apply “only to the prevailing party plaintiff.” Id. at 520. Hal Laesser did not address whether a court should apply different standards in evaluating an award of attorney’s fees to a prevailing plaintiff as opposed to a prevailing defendant.

Section 501.2105(1), Florida Statutes (2003), reads:

(1) In any civil litigation resulting from an act or practice involving a violation of this part, except as provided in subsection (5), the prevailing party, after judgment in the trial court and exhaustion of all appeals, if any, may receive his or her reasonable attorney’s fees and costs from the nonprevailing party.

Although the statute does not distinguish between prevailing plaintiffs and defendants, Broward Humane urges a reading that would generally award fees to a prevailing plaintiff, but would entitle a prevailing defendant to fees only if the plaintiffs “statutory claim is frivolous or groundless.”

Broward Humane relies on Christians-burg to support its argument that Florida courts should curtail awards of fees and costs under section 501.2105(1) to prevailing defendants similar to the federal rule for Title VII cases. In Christiansburg the Supreme Court addressed the question of “under what circumstances an attorney’s fee should be allowed when the defendant is the prevailing party in a Title VII action.” 434 U.S. at 414, 98 S.Ct. 694. In addressing this issue, the Court looked at section 706(k) of Title VII of the Civil Rights Act of 1964 which provides in full:

In any action or proceeding under this title the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney’s fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person.

78 Stat. 261, 42 U.S.C. § 2000e-5(k). After analyzing the policy issues pertaining to the determination of a fee award under the civil rights statute, the Supreme Court held that district courts may only “award attorney’s fees to a prevailing defendant in a Title VII case upon a finding that the plaintiffs action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.” See Christiansburg Garment Co., 434 U.S. at 415, 98 S.Ct. 694.

In so holding, the Court concluded that there were “two strong equitable considerations counseling an attorney’s fee award to a prevailing Title VII plaintiff that are wholly absent in the case of a prevailing Title VII defendant.” First, “the plaintiff is the chosen instrument of Congress to vindicate ‘a policy that Congress considered of the highest priority.’ ” Id. at 418, 98 S.Ct. 694 (quoting Newman v. Piggie Park Enter., 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968)). Second, when a district court awards counsel fees to a prevailing plaintiff, it is awarding them “against a violator of federal law.” Christiansburg Garment Co., 434 U.S. at 412, 98 S.Ct. 694. The Court went on to say “assessing attorney’s fees against plaintiffs simply because they do not finally prevail would substantially add to the risk inhering in most litigation and would undercut the efforts of Congress to promote the vigorous enforcement of the provisions of Title VII.” Id. at 422, 98 S.Ct. 694.

The Court ruled that a prevailing defendant should not be awarded prevailing party attorney’s fees “routinely, ... simply because he succeeds.” The Court held that a successful defendant’s award of fees need not be limited to situations where plaintiffs acted in bad faith, but instead applied in cases where the “claim was frivolous, unreasonable, [ ] groundless, or that the plaintiff continued to litigate after it clearly became so.” Id. The Court indicated that

no statutory provision would have been necessary had an award of fees to a prevailing defendant been based only on the plaintiffs bad faith in bringing the action, for even under the American common-law rule (which ordinarily does not allow attorney’s fees to the prevailing party) such fees can be awarded against a party who has proceeded in bad faith_Needless to say, if a plaintiff is found to have brought or continued such a claim in bad faith, there will be an even stronger basis for charging him with the attorney’s fees incurred by the defense.

Id.

The Court found support for its conclusion in the “sparse legislative history” of section 706(k). Looking to the legislative history of section 706 the court determined that “while Congress wanted to clear the way for suits to be brought under the Act, it also wanted to protect defendants from burdensome litigation having no legal or factual basis.” Id. at 420, 98 S.Ct. 694. The Court then determined that awarding fees to a defendant only upon a finding that the plaintiffs actions were “frivolous, unreasonable, or without foundation” would accomplish both of these goals. Id. at 421, 98 S.Ct. 694.

We reject the invitation to read Chris-tiansburg into the statute. Florida law requires us to apply the plain meaning of section 501.2105(1). When construing statutes, a court ascertains and gives effect to the intent of the legislature. See Payne v. Payne, 82 Fla. 219, 89 So. 538, 539 (1921). In determining that legislature’s intent, the supreme court has explained that “ ‘we look first to the statute’s plain meaning.’ ” Knowles v. Beverly Enters.— Fla., Inc., 898 So.2d 1, 6 (Fla.2004) (citing Moonlit Waters Apart., Inc. v. Cauley, 666 So.2d 898, 900 (Fla.1996)). “Normally, ‘[w]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.’ ” Id. (citing Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931))). Thus,

[i]n making a judicial effort to ascertain the legislative intent implicit in the statute, courts are bound by the plain and definite language of the statute and are not authorized to engage in semantic niceties or speculations. If the language of the statute is clear and unequivocal, then the legislative intent must be derived from the words used without involving incidental rules of construction or engaging in speculation as to what the judges might think that the legislators intended or should have intended.

Tropical Coach Line, Inc. v. Carter, 121 So.2d 779, 782 (Fla.1960).

Prior to a 1994 amendment, FDUTPA provided for the mandatory award of reasonable attorney’s fees to any prevailing party. See Target Trailer, Inc. v. Feingold, 632 So.2d 198 (Fla. 3d DCA 1994); Smith v. Bilgin, 534 So.2d 852, 852 (Fla. 1st DCA 1988); Rustic Village, Inc. v. Friedman, 417 So.2d 305, 306 (Fla. 3d DCA 1982); see also Gen. Motors Acceptance Corp., 791 So.2d at 517. The 1994 amendment to section 501.2105 placed an award of prevailing party attorney’s fees within the discretion of the trial court. See Hubbel v. Aetna Cas. & Sur. Co., 758 So.2d 94, 101 (Fla.2000) (Lewis, J., concurring in part and dissenting in part) (citing Ch. 94-298, § 501.2105, Fla. Stat. (Supp. 1994)).

We interpret this amendment as a legislative recognition that mandatory fee awards had a chilling effect on consumer plaintiffs bringing suit under FDUTPA. Consistent with the primary policy of the statute “[t]o protect the consuming public ... from those who engage in unfair methods of competition, deceptive, or unfair acts or practices in the conduct of any trade or commerce,” the legislature removed the mandatory award of fees to the prevailing party from the statute and placed the award of fees in the trial court’s discretion. The plain language of the statute does not suggest that the Legislature intended to treat prevailing defendants differently than prevailing plaintiffs.

To apply Christiansburg to section 501.2105(1), as Broward Humane urges, would be to rewrite the statute. For this court to so change legislation would be an extra-judicial act which usurps legislative authority. Adoption of the Christiansburg standard in this case would steal from the trial court the very discretion that the legislature has allowed in determining FDUTPA fee awards. In exercising its discretion, factors that a trial court might consider include, but are not limited to:

(1) the scope and history of the litigation;
(2) the ability of the opposing party to satisfy an award of fees;
(3) whether an award of fees against the opposing party would deter others from acting in similar circumstances;
(4) the merits of the respective positions' — including the degree of the opposing party’s culpability or bad faith;
(5) whether the claim brought was not in subjective bad faith but frivolous, unreasonable, groundless;
(6) whether the defense raised a defense mainly to frustrate or stall;
(7) whether the claim brought was to resolve a significant legal question under FDUTPA law.

See Rosen v. Rosen, 696 So.2d 697, 700-01 (Fla.1997); Carpenters S. Cal. Admin. Corp. v. Russell, 726 F.2d 1410, 1415 (9th Cir.1983) (citing Hummell v. S.E. Rykoff & Co., 634 F.2d 446, 453 (9th Cir.1980) (involving award of attorney’s fees under 29 U.S.C. § 1132(g)(1) in a lawsuit involving a prevailing defendant employers in a suit brought to enforce section 515 of ERISA, 29 U.S.C. § 1145)).

The trial court’s award of fees was within its discretion. As the trial court observed, Broward Humane was a larger organization than Florida Humane, with deeper pockets. Without funds to secure a defense attorney, Florida Humane was able to hire an attorney on the hope that a successful defense would allow it to recover fees from the plaintiff. This was not a test case with broad application; it was a business dispute involving two litigants under narrow circumstances.

Rejecting Florida Humane’s arguments on the cross appeal, we also hold that the trial court’s determination of the amount of the fees was not an abuse of its discretion.

WARNER and POLEN, JJ., concur.

      . Florida has already adopted the Christians-burg standard in cases brought under Florida's Civil Rights Act. See McCoy v. Pinellas County, 920 So.2d 1260 (Fla. 2d DCA 2006); see generally Estate of Smith v. Hollywood, 644 So.2d 158 (Fla. 4th DCA 1994); Oldring v. School Bd. of Duval County, 567 So.2d 519 (Fla. 1st DCA 1990); Steinberg v. City of Sunrise, 545 So.2d 424 (Fla. 4th DCA 1989).

      . "The [FDUTPA] is a potentially powerful tool to redress unfair and deceptive trade practices as well as unfair methods of competition. However, ... permitting [the mandatory] recovery of attorney’s fees by the prevailing [defendants] presented a problem for potential plaintiffs and their attorneys in evaluating whether to assert an FDUTPA claim." David J. Federbush, Entitlement to Attorney’s Fees Under FDUTPA, 78-JAN Fla. BJ. 26 (2004).


author: TAYLOR, J.

text:
    Raul ZEBALLOS, Appellant, v. Alba P. ZEBALLOS, Appellee.
    No. 4D06-1552.
    District Court of Appeal of Florida, Fourth District.
    March 14, 2007.

      Diane H. Tutt of Diane H. Tutt, P.A., Davie, for appellant.
    No appearance for appellee.
   TAYLOR, J.

Raul Zeballos appeals an order which reduced but did not terminate his alimony obligation. He alleges that his impending retirement and his former wife’s long-term support by another man together eliminate both his ability to pay and the former wife’s need, making just the partial reduction of his alimony obligation an abuse of discretion. We agree.

The parties were divorced on May 14, 1999. The former husband was awarded custody of the children. The dissolution decree ordered the former husband to pay the former wife $500 a month in alimony until their youngest child reached 18, then $1,000 a month in alimony thereafter. The children have since reached 18.

On April 4, 2005, the former husband petitioned for modification, requesting termination or reduction of his alimony obligation. He alleged that the former wife was being supported by another man, with whom she was residing, and that the former husband had reached an age at which he would like to retire.

The former husband is now 65. His ability to work as a translator has declined with age. In addition, his ability to breed Dogo Argentinos, dogs weighing one hundred pounds, has declined. If he retires, he will receive $1,149 a month from Social Security.

The trial court entered an order modifying alimony. The factual findings in that order are undisputed. The trial court found, as follows:

1. There has been a substantial, material, permanent, sufficient, involuntary change of circumstances since the dissolution of marriage, which entitles the Former Husband to a reduction in the amount of permanent periodic alimony payable to the Former Wife. The change of circumstances is the Former Husband’s retirement from his work as a Court interpreter and dog breeder, brought about by his achieving the normal retirement age of 65 years. The Former Husband has not yet officially retired, but intends to do so in the immediate future. Retirement will reduce his income to the point where payment of $1,000 per month permanent periodic alimony will not be possible. His financial affidavit (Husband’s exhibit 3) shows a present net monthly income of $1,149 gross per month. His dog breeding business, formerly a source of income, now appears to be a money-losing proposition, with little prospect of returning to profitability. The Former Husband has no other sources of income.
2. The Former Wife is 45 years of age. For the last three to four years, the Former Wife has been engaged to marry Mr. Camp. Since approximately the date of dissolution of marriage, Mr. Camp has rented a house for the Former Wife and her children, paying all expenses for same. For the past five years, the Former Wife and Mr. Camp have lived together. Mr. Camp pays all of the bills for the Former Wife, and paid all expenses for the Former Wife’s children while they were minors. The Former wife has no income, and does not work outside the home for pay. She is a volunteer worker at her church, and travels with Mr. Camp on occasion to various destinations connected with his business. Upon considering the evidence presented at hearing, and the factors set forth in Florida Statute 61.14, it is clear that a long-term supportive relationship between Mr. Camp and the Former Wife has existed since shortly after the dissolution of marriage, which would entitle the Former Husband to a reduction of permanent periodic alimony payable to the Former Wife.

Based on these findings, the trial court reduced the former husband’s alimony obligation to $350 per month, effective on his official retirement.

The abuse of discretion standard of review applies to an order on a motion to modify alimony. Woolf v. Woolf, 901 So.2d 905, 911 (Fla. 4th DCA 2005). Permanent periodic alimony is designed to provide the necessities of life to the former spouse as they have been established by the marriage of the parties. Id. The primary criteria for establishing the amount of alimony is the husband’s ability to pay and the wife’s needs, with regard to the standard of living during the marriage. McBride, v. McBride, 352 So.2d 1254, 1256 (Fla. 1st DCA 1977).

By statute, where there is a change of circumstances, either party may apply for an increase or decrease in alimony “with due regard to the changed circumstances or the financial ability of the parties.” § 61.14, Fla. Stat. (2006); see also Woolf, 901 So.2d at 912. In petitioning to modify alimony, the moving party must show three fundamental prerequisites:

First, there must be a substantial change in circumstances. Second, the change was not contemplated at the time of final judgment of dissolution. Third, the change is sufficient, material, involuntary, and permanent in nature.

Pimm v. Pimm, 601 So.2d 534, 536 (Fla. 1992) (citations omitted).

Sixty-five is the presumptive age of retirement which can support a modification of alimony. Id. at 537. However, even at the age of sixty-five, a payor spouse cannot unilaterally choose voluntary retirement “if this choice places the receiving spouse in peril of poverty.” Id. The court must consider the impact the termination or reduction in alimony will have on the receiving spouse. Id.

In Reno v. Reno, 884 So.2d 462, 464 (Fla. 4th DCA 2004), we determined that the former husband demonstrated a substantial change of circumstances warranting a reduction in alimony where the former wife’s fiancé was paying for almost all of her living expenses. Citing Dibartolomeo v. Dibartolomeo, 679 So.2d 72, 72-73 (Fla. 4th DCA 1996), we stated that cohabitation may justify the elimination of alimony, “depending on how the new living situation has impacted the alimony recipient’s financial condition and continued need for alimony.” Reno, 884 So.2d at 465.

Since Reno, the legislature has adopted section 61.14(l)(b)l., Florida Statutes (2006). That section permits the courts to reduce or terminate an award of alimony upon specific written findings by the court that since the granting of the divorce and the award of alimony a “supportive relationship” has existed between the receiving spouse and a person with whom that spouse resides. The statute requires the trial court to look at various factors in deciding whether a supportive relationship exists. The legislature summarizes the purpose of this statute, as follows:

This paragraph recognizes only that relationships do exist that provide economic support equivalent to a marriage and that alimony terminable on remarriage may be reduced or terminated upon the establishment of equivalent equitable circumstances as described in this paragraph.

§ 61.14(l)(b)3., Fla. Stat. (2006). In this case, the trial court found that such a supportive relationship exists. That ruling has not been cross-appealed.

The issue here is very straightforward. The former husband argues that when he soon retires he will receive only $1,149 a month in income and will be unable to pay alimony. Moreover, the former wife’s expenses are all paid by her fiancé and she no longer has a need for alimony. Under these circumstances, the former husband argues that the trial court abused its discretion in failing to completely terminate his alimony obligation, instead of merely reducing it to $350 per month. This amount is still roughly one-third of his bare subsistence income. We agree and reverse and remand this matter to the trial court to reduce the former husband’s alimony obligation to $1 per year. The $1 award will allow the trial court to retain jurisdiction to consider modification should the parties’ circumstances substantially change in the future. See Munger v. Munger, 249 So.2d 772 (Fla. 4th DCA 1971).

Reversed and Remanded.

WARNER, and GROSS, JJ., concur.


text:
    Damion J. GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3855.
    District Court of Appeal of Florida, Fourth District.
    March 14, 2007.
    Damion J. Green, Arcadia, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Damion J. Green appeals the summary denial of his rule 3.850 motion for post-conviction relief. Appellant alleges that trial counsel was ineffective at the sentencing hearing in lower court case 05-304 for failing to present evidence of substantial assistance and the State’s offer to mitigate his sentence. The trial court denied appellant’s rule 3.850 motion as legally insufficient, and attached the plea form from lower court cases 01-13439, 01-4570 and 04-8826 to refute the claim. The trial court stated that appellant entered into guilty pleas in these cases and received an agreed upon sentence for each case. We affirm.

Appellant’s motion for post-conviction relief does not detail with sufficient particularity the ineffectiveness claim. Appellant should have explained the nature of the assistance he provided to the State and that the State agreed that his assistance was sufficient to warrant a recommendation for mitigation. Otherwise, the court would have no ground to mitigate his sentence for assistance to the State. Further, the fact that he alleges that the State offered mitigation suggests that the offer was in connection with the drug offenses, not the fleeing and eluding charges. See, e.g., § 893.135(4), Fla. Stat.

Affirmed.

STONE, WARNER and SHAHOOD, JJ., concur.


text:
    Robert Lloyd NETHERY, Appellant, v. Josephine NETHERY, Appellee.
    No. 4D06-10.
    District Court of Appeal of Florida, Fourth District.
    March 14, 2007.
    David H. Freedman, North Miami, for appellant.
    Daniel Kaplan of Daniel Kaplan, P.A., Aventura, for appellee.
   PER CURIAM.

The husband, Robert Lloyd Nethery, appeals the trial court’s final judgment of dissolution of marriage. We reverse the trial court’s award of “non-modifiable” permanent periodic alimony, and, on this issue, we remand to the trial court only for the purpose of having “non-modifiable” stricken from the award. We also remand to the trial court to correct the final judgment with respect to the COBRA health insurance payments. We affirm in all other respects.

First, in its final judgment, the trial court awarded the wife the sum of $1,600 per month as “non-modifiable permanent periodic alimony.” The husband correctly argues on appeal that without an agreement by the parties, permanent periodic alimony cannot be non-modifiable. We agree with the husband that the provision declaring the alimony to be “non-modifiable” should be stricken on remand.

The trial court has broad discretionary authority to do equity between the parties. Rosario v. Rosario, 945 So.2d 629, 631 (Fla. 4th DCA 2006). However, in Smith v. Smith, 689 So.2d 1312, 1312 (Fla. 5th DCA 1997), the court noted that “there is no provision in the law for ‘non-modifiable permanent alimony’ ” and ordered the provision stricken upon remand. Addressing the concept of non-modifiable alimony, this Court recently explained the predicates required for lump sum alimony as support and stated that “if support is needed, there must exist unusual circumstances which would require a non-modifiable award of support.” Rosario, 945 So.2d at 632. “These findings of special circumstances must be something above and beyond the justifications for an award of permanent periodic alimony.” Id. In Borchard v. Borchard, 730 So.2d 748, 752 (Fla. 2d DCA 1999), the court stated, “Because lump sum alimony establishes a fixed, specific monetary obligation, this tool causes lump sum alimony to have at least two major substantive differences from periodic alimony; the amount awarded is immediately vested and non-modifiable, and this form of alimony does not terminate upon the death of the payor or the remarriage of the payee.” Therefore, while it is true that under special circumstances lump sum alimony as support can be awarded, there is no corresponding provision in the law for an award of non-modifiable permanent periodic alimony.

Although the trial court indicated that it contemplated the husband’s anticipated retirement in making the alimony award, there may be other substantial changes besides the husband’s retirement that were not contemplated at the time of the final judgment, that are sufficient, material, involuntary, and permanent in nature and would justify a modification of alimony in this case. Damiano v. Damiano, 855 So.2d 708, 710 (Fla. 4th DCA 2003) (“There are three prerequisites required for a modification of alimony: (1) a substantial change in circumstances; (2) that was not contemplated at the time of the final judgment of dissolution; and (3) is sufficient, material, involuntary, and permanent in nature.”). We therefore remand on this issue to the trial court only to have the “non-modifiable” provision stricken.

Second, the trial court in its written final judgment stated, “For 36 months after entry of this Final Judgment, the Husband shall pay the Wife $500.00 per month for her health insurance.” The wife agrees that this portion of the judgment is in error and is inconsistent with the trial court’s oral pronouncement that the husband pay the COBRA amount up to $500 per month and that the payment shall not exceed 36 months, so that the judgment should be remanded for correction.

Thus, we remand this case to the trial court to both strike the provision requiring the permanent periodic alimony award to be non-modifiable and to correct the final judgment with respect to the husband’s obligation to pay the wife’s COBRA health insurance payments. In all other respects, the final judgment of dissolution of marriage is affirmed.

Affirmed in Part, Reversed in Part and Remanded.

GUNTHER, POLEN and HAZOURI, JJ., concur.


text:
    Shon EVANS, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4369.
    District Court of Appeal of Florida, Fourth District.
    March 14, 2007.
    Shon Evans, Mayo, pro se.
    Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Ladson v. State, 829 So.2d 305 (Fla. 5th DCA 2002).

WARNER, POLEN and KLEIN, JJ„ concur.


text:
    T.A. ENTERPRISES, INC., a foreign corporation authorized to do business in the State of Florida, Appellant, v. OLARTE, INC., a Florida corporation, Appellee.
    Nos. 4D05-829, 4D05-3052.
    District Court of Appeal of Florida, Fourth District.
    March 14, 2007.

      Ronald P. Gossett of Gossett & Gossett, P.A., Hollywood, for appellant.
    No brief filed for appellee.
   TAYLOR, J.

This is the third in a series of appeals from a Florida Lemon Law claim. Because appellee, Olarte, Inc., did not prove its damages, we reverse the trial court’s award of damages. Because appellee did not plead entitlement to attorney’s fees, we reverse the trial court’s award of fees as well.

In 2001, Olarte, Inc., filed a Lemon Law claim against the manufacturer, T.A. Enterprises, Inc., regarding a custom van. The Florida New Motor Vehicle Arbitration Board defaulted T.A. for failure to timely file a response and rendered a decision in favor of Olarte. T.A. filed a petition for trial de novo. Olarte filed a motion to dismiss the petition, which the trial court granted. T.A. then appealed the dismissal to our court. We held that the Arbitration Board erred by defaulting T.A. and that the trial court erred by granting the motion to dismiss. See T.A. Enterprises, Inc. v. Olarte, Inc., 835 So.2d 1235 (Fla. 4th DCA 2003).

On remand, the trial court referred the matter to non-binding arbitration. There, the arbitrator upheld the decision of the Arbitration Board. T.A. thereafter filed a second request for trial de novo. In February 2004, the circuit court held a trial at which evidence of the alleged defects was presented. No testimony regarding damages, however, was introduced. At the conclusion of the trial, the court stated that it was satisfied that the vehicle was a lemon. The court then entered a final judgment expressly adopting and incorporating the Arbitration Board’s award.

T.A. filed a motion to reconsider on the ground that the trial court erred in entering a damages award when no evidence of “dollars and cents” had been presented at the trial de novo. With only minor modifications, the trial court affirmed its previous judgment. In the amended final judgment, the court reserved jurisdiction to determine whether and in what amount the manufacturer should pay the consumer’s attorney’s fees as a condition of appellate review. T.A. appealed the fees portion of the judgment to this court and we determined that conditioning appellate review on payment of fees was unconstitutional. See T.A. Enterprises, Inc. v. Olarte, Inc., 931 So.2d 1016 (Fla. 4th DCA 2006).

The trial court held a hearing on the amount of attorney’s fees in July 2005. Following the hearing, the court entered a final judgment awarding Olarte’s attorneys fees and costs. We now consider T.A.’s consolidated appeal of damages and the attorney’s fee award.

First, we hold that the trial court erred in awarding Olarte damages because evidence of damages was never presented at the trial de novo. See Chrysler v. Pitsirelos, 721 So.2d 710, 715 (Fla.1998) (holding that, on appeal from Arbitration Board decision, consumer must present evidence of damages at trial de novo). We further hold that Olarte is not entitled to a new trial on damages. See Teca, Inc. v. WM-TAB, Inc., 726 So.2d 828 (Fla. 4th DCA 1999); see also St. Petersburg Housing Authority v. J.R. Development, 706 So.2d 1377, 1377 (Fla. 2d DCA 1998) (reversing an order granting a rehearing on damages because such a hearing “improperly allows appellee a ‘second bite at the apple’ at proving damages”).

We also reverse the trial court’s award of attorney’s fees to Olarte because Olarte failed to plead entitlement to such fees. In Stockman v. Downs, 573 So.2d 835, 837-38 (Fla.1991), our supreme court held: “[A] claim for attorney’s fees, whether based on statute or contract, must be pled. Failure to do so constitutes a waiver of the claim.” Although the supreme court provided two exceptions to this rule, neither applies here. Id. at 838.

Reversed and Remanded.

WARNER and GROSS, JJ., concur.


text:
    Allangson BRUNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-324.
    District Court of Appeal of Florida, Fourth District.
    March 14, 2007.
    Allangson Brunson, Indiantown, pro se.
    No appearance required for appellee.
   PER CURIAM.

The defendant appeals the denial of his motion to correct an illegal sentence. See Fla. R.Crim. P. 3.800(a). We affirm without prejudice to defendant filing a rule 1.540(a) motion to correct a scrivener’s error. See Wells v. State, 796 So.2d 1276 (Fla. 4th DCA 2001).

POLEN, FARMER and MAY, JJ., concur.


author: SHEPHERD, J.

text:
    Carlos CUARTAS, Appellant, v. Norevely CUARTAS, Appellee.
    No. 3D06-389.
    District Court of Appeal of Florida, Third District.
    March 14, 2007.

      Perez-Abreu & Martin-Lavielle and Andy W. Acosta, Coral Gables, for appellant.
    Norevely Cuartas, in proper person.
    Before FLETCHER, SHEPHERD, and SUAREZ, JJ.
   SHEPHERD, J.

The former husband, Carlos Cuartas, appeals from an order denying his Motion for Contempt and for Immediate Change of Primary Residence on the sole ground that the motion failed to comply with Florida Family Law Rule of Procedure 12.110. Because the former wife agreed to try the matter before a general magistrate and only raised the procedural deficiency in exceptions filed after suffering an adverse magistrate’s decision on the merits, we conclude that she waived her right to insist upon compliance with Rule 12.110 by the former husband. Accordingly, we reverse the order on appeal and remand with directions to the trial court to adopt and ratify the general magistrate’s report recommending that the former husband be designated the primary residential parent of the couple’s now fourteen-year-old minor child.

FACTS

The couple’s marriage was dissolved on July 15, 1998. Pursuant to the Marital Settlement Agreement, the former wife, Norevely Cuartas, was designated the primary residential parent of the couple’s child with shared parental responsibility and extensive contact between the child and the former husband. Since then, the former wife willfully has refused to cooperate with the former husband, necessitating frequent, continuing judicial intervention.

After years of conflict, on May 15, 2004, the former husband filed a petition for modification of the final judgment to have himself designated primary residential parent for the minor child. An evidentiary hearing followed in which the former wife elected to participate pro se. On February 28, 2005, the trial court denied the petition, finding that “while the court concludes that it does have the authority under the statute and cases relied on by the Petitioner to modify custody, it is not found that a modification of custody would be in the best interest of the child at this time.” (emphasis added). The court went on to identify numerous areas in which the former mother “need[ed] improvement in permitting the father to participate in shared parental responsibility,” specifically cautioning as to one of them, that “if she does not comply with this court’s orders ... the court may find it necessary in the future to modify residential custody.” The court made it clear that its denial was “without prejudice” to the former husband to “renew[] the petition in the future should that become necessary.”

Just a few months later, on June 2, 2005, the former husband filed his “Motion for Contempt and for Immediate Change of Primary Residence,” alleging non-compliance with the February 28 order, and seeking immediate relief. This time, the former wife consented to have the matter considered by a general magistrate pursuant to Florida Family Law Rule of Procedure 12.490. The magistrate held an evi-dentiary hearing on the motion on June 7 and July 26, 2005. The former wife again proceeded pro se and with full knowledge of the potential consequences. At no time did she object to the motion on the ground that it failed to comply with Florida Rule of Family Procedure 12.110.

At the conclusion of the July 26 hearing, the magistrate orally announced her intention to recommend a change of primary residence. Her oral pronouncement was followed on October 19, 2005, by a detailed written report and recommendation, which fully chronicled the former wife’s transgressions and confirmed the recommended change. Anticipating the written report, the former wife immediately retained counsel. The exceptions subsequently filed only perfunctorily challenged the report on the merits, but for the first time challenged the title of the former husband’s motion on the ground that it failed to comply with Florida Family Law Rule of Procedure 12.110. At a subsequent hearing on the exceptions, the trial court, in its review capacity, found that ample evidence existed to sustain the general magistrate’s recommendation, but nevertheless declined to adopt the report on the sole ground that the former husband’s “initial pleading was a motion for change of custody rather than a supplemental petition for modification of custody [in violation of] Fla. R. Fam. P. 12.110[ ].” The trial court considered itself bound to this result by the language of the rule and our recent explication of it in Braswell v. Braswell, 935 So.2d 604 (Fla. 3d DCA 2006).

ANALYSIS

Florida Family Law Rule of Procedure 12.110 states, “The general rules of pleading in Florida Rule of Civil Procedure 1.110 shall apply to these proceedings except that proceedings to modify a final judgment in a family law matter shall be initiated only pursuant to rule 1.110(h) and not by motion.” (emphasis added).

Florida Rule of Civil Procedure 1.110(h), titled “Subsequent Pleadings”, states, in relevant part:

When the nature of an action permits pleadings subsequent to final judgment and the jurisdiction of the court over the parties has not terminated, the initial pleading subsequent to final judgment shall be designated a supplemental complaint or petition. The action shall then proceed in the same manner and time as though the supplemental complaint or petition were the initial pleading in the action, including the issuance of any needed process.

This rule was added to the Florida Rules of Civil Procedure in 1971 to cover situations, like the one before us, arising in divorce judgment modifications and other similar circumstances where a party seeks not to enforce the terms of a pending judgment but rather a change in the status quo. In re Florida Rules of Civil Procedure, 253 So.2d 404, 408 (Fla.1971); Hagins v. McNeal, 647 So.2d 1052, 1053 (Fla. 5th DCA 1994). Because relief different from that provided in the final judgment is the usual purpose of the proceeding, a pleading filed under Rule 1.110(h) is treated as an “initial pleading” in the case with the concomitant requirement of the filing by the opposing party of an answer and defenses under Rule 1.140. In re Florida Rules of Civil Procedure, 253 So.2d at 408. Discovery, witness lists and the other ordinary accoutrements of the civil litigation process attach. Braswell, 935 So.2d at 606. Implicit in the proscriptions of the rule, especially in the family law context, is purposeful assurance that all interested parties are aware that a new proceeding with potentially serious consequences is afoot. Id. (reversing order granting Emergency Motion to Allow Minor Child to Reside with the father because no real emergency existed and the mother was deprived “of a proper proceeding by petition, with its concomitant rights to a witness list and discovery”).

For these reasons, the courts of this state have been particularly diligent in enforcing the initial pleading requirement of Florida Rule of Civil Procedure 1.110(h) in dissolution judgment modification cases. In one of the more complete explications of the application of the rule in such a case, the Fifth District Court of Appeal in Hag-ins explained its denial of a former wife’s petition for a writ of mandamus seeking to require a clerk of the circuit court to accept for filing her motion for an order approving her removal of the couple’s children from the state as follows:

Rule 1.110(h) requires that the initial pleading subsequent to the final judgment “be designated a supplemental complaint or petition.” This requirement stems from the fact that the post-judgment petitioner is seeking to reactivate the original case, as opposed to merely moving the court to take some action in a pending case.
Here, petitioner is seeking a change in the status quo. Should she be successful in her quest, petitioner will remove the children from this state. This is not an enforcement of the terms of the dissolution judgment, but rather is a modification of it. Admittedly the judgment contemplated that the day might come that petitioner would desire to move out of Florida and take the children with her; however, that move cannot occur without petitioner first showing a change of circumstances justifying the relocation.

Hagins, 647 So.2d at 1053. Our sister district courts of appeal similarly have recognized that the proper procedure for bringing an asserted change of circumstances to a trial court’s attention in a post-dissolution controversy is by supplemental complaint or petition. See, e.g., Dep’t of Revenue v. Fleet, 679 So.2d 326, 327 (Fla. 1st DCA 1996)(child support); Ventriglia v. Vaughan, 623 So.2d 836, 838 (Fla. 2d DCA 1993)(visitation). In our recent reversal in Braswell — drawing upon this line of authority — we affirmed that we are in accord with the rationale of these decisions, remarking that in change of custody litigation, “Florida law unequivocally requires that dissolution judgment modifications assert any change of circumstances in the form of a petition.” Braswell, 935 So.2d at 606; Hagins, 647 So.2d at 1053. As we read the record, it appears that the trial court construed this remark to mean that a party’s non-compliance with Florida Family Law Rule of Procedure 12.110 creates per se reversible error on appeal in this court. This is an over reading of Braswell.

Despite the mandatory connotation of the language of the rule and the compulsory tenor of the decisions which have treated it in contexts similar to ours — including especially our recent Braswell decision — we conclude that Rule 1.110(h) should not be slavishly applied. As with most rules, a litigant can waive the benefit of the rule. See De Guido v. De Guido, 308 So.2d 609 (Fla. 3d DCA 1975)(failure to include defense in avoidance of liability in answer constitutes waiver). In this case, we conclude the former wife waived whatever benefit she may have obtained from the former husband’s failure to strictly comply with Florida Rule of Family Law Procedure 12.110 by consenting to resolution of the motion by a general magistrate. This is so for two reasons. First, the former wife did not seek to raise or include the procedural deficiency in the referral. See Florida Family Law Rule of Procedure 12.490(b)(3)(requiring the order of referral to “state with specificity the matter or matters being referred”). See also Hand v. Kushmer, 695 So.2d 858 (Fla. 2d DCA 1997)(reiterating Florida Family Law Rule of Procedure 12.490(l)(b) that general master shall not hear any matter without an appropriate order of reference).

Second, it is well settled in this District that upon the issuance of a recommendation and the filing of exceptions thereto, the trial court’s review of the record of the proceeding before a magistrate is limited to determining “whether the magistrate’s factual findings and conclusions are supported by competent substantial evidence, and whether the magistrate’s legal conclusions are clearly erroneous or whether the magistrate misconceived the legal effect of the evidence.” Cerase v. Dewhurst, 935 So.2d 575, 578 (Fla. 3d DCA 2006). Because the procedural deficiency in question was not included in the order of referral and the record before the trial court below is bereft of any indication that the former wife challenged the form of the motion before the magistrate, there was nothing for the trial court to adjudicate in this regard under any review standard. See Anderson v. Anderson, 736 So.2d 49, 50-51 (Fla. 5th DCA 1999)(stating that in reviewing a magistrate’s findings and conclusions, a trial court does not make independent findings of fact or reach independent conclusions as to the legal effect of the facts); Waszkowski v. Waszkowski, 367 So.2d 1113, 1113 (Fla. 3d DCA 1979)(“[a] general master may not go beyond the matters referred to him for determination by the trial court, and ... if a general master reports as to a matter which was not referred to him by the trial court, his report so far as it relates to that matter is a nullity”).

Moreover, it is clear here that the former wife at all times has been fully aware of the nature of the proceeding and what was at stake. Although she would have us believe that the proceeding under review began when the former husband filed his Motion for Contempt and for Immediate Change of Primary Residence on June 2, 2005, it is more accurate to view the proceeding before the magistrate as a continuation of the petition initiated by the former husband more than a year earlier. Compliance of that petition with Florida Family Law Rule of Procedure 12.110 is not contested. The trial court, in its February 28 order entered on the petition, found that the former husband proved one of the two elements of the “substantial change” test recently reiterated by the Florida Supreme Court as required to change custody post-dissolution. See Wade v. Hirschman, 903 So.2d 928, 931 n. 2 (Fla. 2005)(“[T]he movant [seeking modification of custody] must show both that the circumstances have substantially, materially changed since the original custody determination and that the child’s best interests justify changing custody.”); Bazan v. Gambone, 924 So.2d 952, 955 (Fla. 3d DCA 2006)(applying Wade). The court simply felt at the time that “a modification of custody would [not] be in the best interest of the child at this time.” (emphasis added). The trial court further warned the former wife, “That may change in the future” (emphasis added). In the former husband’s motion, the future simply had arrived.

Finally, we are aware of no case that countenances such an eleventh-hour objection to a procedural requirement of this type, especially in a family context. Unlike this case, in Hagins, Fleet and Braswell, the objections were made at the outset of the proceeding. Hagins, 647 So.2d at 1053; Fleet, 679 So.2d at 327; Braswell, 935 So.2d at 605. In Hagins and Fleet, the objector was granted relief and the petitioner properly refiled. Hagins, 647 So.2d at 1053; Fleet, 679 So.2d at 327. In Braswell, we reversed on other grounds. Braswell, 935 So.2d at 606 (holding that the trial court abused its discretion when it treated the father’s motion as an emergency). In Ventriglia, the former husband contested the nature of the proceeding throughout, and the court of appeal ultimately reversed on both procedural and substantive grounds. Ventriglia, 623 So.2d at 838.

The reasoning of these cases is consistent with the well-settled law in this District that custody cases are not to be decided “on a default basis or by ‘gotcha’ practices.” Busman v. Dep’t of Revenue, 905 So.2d 956, 958 (Fla. 3d DCA 2005)(expressing this court’s ‘aversion’ to having issues of parental rights decided on a default basis); see also B.H., Sr. v. Dep’t of Children Families, 882 So.2d 1099, 1100 (Fla. 4th DCA 2004)(“Custody and termination of parental rights should never be determined on a default basis or by ‘gotcha’ practices when a parent makes a reasonable effort to be present at a hearing and is delayed by circumstances beyond his control.”); S.C. v. Dep’t of Children Families, 877 So.2d 831, 833 (Fla. 4th DCA 2004)(“Custody and dependency should not be decided by “gotcha” practices when a parent makes a reasonable effort to be present at a hearing and is delayed by circumstances beyond his or her control”). A careful review of the record in this case strongly suggests that the exception asserted in this case falls into the “gotcha” tactic category. We again express our disdain for such litigation tactics.

For these reasons, we reverse the order affirming exceptions to the report of the general magistrate and remand for approval of the general magistrate’s report, which determined the former husband should be the primary custodian of the child.

Reversed and remanded with directions.

      . We have jurisdiction pursuant to Fla. R.App. P. 9.130(a)(3)(C)(iii); Cerase v. Dewhurst, 935 So.2d 575 (Fla. 3d DCA 2006); Christ v. Christ, 939 So.2d 256 (Fla. 1st DCA 2006).

      . For example, at the beginning of the June 7 hearing, the magistrate made clear to the former husband in the presence of the former wife: ”[T]he most serious step that I would ever have to take, [Mr. Cuartas], or that I have to take, and that is to change custody. And that's what you're asking me to do; is that correct?” The former husband replied, “Yes, ma'am.”

      . In fact, the former wife in her exceptions admitted, "It is important to note that the Petitioner/Former-Husband previously attempted to modify custody via petition and now has attempted a change of custody via motion.”


author: LAGOA, Judge.

text:
    Louis G. HAMMOND, Appellant, v. DSY DEVELOPERS, LLC., Appellee.
    No. 06-572.
    District Court of Appeal of Florida, Third District.
    March 14, 2007.

      Welbaum, Guernsey, Hingston, Green-leaf, Gregory, Black, Rune & Thomas and Robert J. Black, Coral Gables, for appellant.
    Hinshaw & Culbertson and James H. Wyman, Ft. Lauderdale, for appellee.
    Before RAMIREZ, SUAREZ, and LAGOA, JJ.
   LAGOA, Judge.

Louis Hammond (“Hammond”) appeals from an adverse summary judgment order granting DSY Developers, LLC (“DSY”) specific performance on a contract for the sale of land. We affirm in part and reverse in part.

I. FACTUAL HISTORY

Hammond is the owner of a ten-acre tract of land in Indian River County, Florida. In July, 2004, DSY commenced negotiations for the purchase of the land. After exchanging offers and counteroffers for several months, on November 11, 2004, DSY made a counteroffer and tendered a $25,000 deposit check, with an acceptance date of November 25, 2004.

After receiving the offer, Hammond made slight changes to the contract including changing the acceptance date to December 10, 2004. After making these changes, Hammond mailed the counteroffer, but not until December 15, 2004. DSY received the revised contract on December 20, 2004. On January 12, 2005, counsel for DSY faxed the executed contract to counsel for Hammond. Hammond, however, refused to honor the contract, contending that DSY’s failure to accept by December 10 had voided the offer.

DSY filed this action for specific performance and moved for summary judgment, contending that an acceptance term is waived when a counteroffer is tendered after the date specified in it for acceptance and that, as a matter of law, DSY accepted Hammond’s counteroffer within a reasonable time period. The trial court entered summary judgment in DSY’s favor. The order, as written, grants judgment in favor of DSY for specific performance on the contract for the sale of land. The order also provides that should Hammond fail to comply with his contractual obligations by a date certain, the judgment shall act as a conveyance of title to the property. This appeal ensued.

II. STANDARD OF REVIEW

Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). “Where the determination of the issues of a lawsuit depends upon the construction of a written instrument and the legal effect to be drawn therefrom, the question at issue is essentially one of law only and determinable by entry of summary judgment.” Id. at 131 (citations omitted). We review a trial court’s ruling on a motion for summary judgment de novo. Id. at 130. Additionally, a trial court’s decision construing a contract presents an issue of law that is subject to the de novo standard of review. Florida Power Corp. v. City of Casselberry, 793 So.2d 1174, 1178 (Fla. 5th DCA 2001).

III. ANALYSIS

This case presents a question of first impression: whether a deadline for accepting an offer may be waived by delivering the offer after the deadline has passed. We answer the question in the affirmative and further hold that once an acceptance term is deemed waived, the offeree has a reasonable period of time within which to accept the offer.

It is axiomatic that contractual terms may be waived, both expressly and implicitly, by the party to whom the term benefits. Gilman v. Butzloff, 155 Fla. 888, 22 So.2d 263, 265 (1945). Indeed “[a] party may waive any rights to which he or she is legally entitled, by actions or conduct warranting an inference that a known right has been relinquished.” Torres v. K-Site 500 Assocs., 632 So.2d 110, 112 (Fla. 3d DCA 1994). In this case, by mailing the counteroffer after its December 10th acceptance date, we hold that, as a matter of law, Hammond’s actions constituted an implied waiver of the acceptance date. See De Cespedes v. Bolanos, 711 So.2d 216, 218 (Fla. 3d DCA 1998); Doolittle v. Fruehauf Corp., 332 So.2d 107, 109-10 (Fla. 1st DCA 1976).

“The general Florida rule is that when a contract does not expressly fix the time for performance of its terms, the law will imply a reasonable time.” See De Cespedes, 711 So.2d at 218 (citation omitted). Simply put, because Hammond’s conduct constituted an implied waiver of the December 10th acceptance date, the counteroffer contained no restriction on time other than reasonableness. Moreover, because the parties do not dispute the material facts regarding the parties’ course of dealings, the determination of whether an offer was accepted in a reasonable time is therefore a question of law. See McDonald v. Sanders, 103 Fla. 93, 137 So. 122, 125 (1931); Henson v. James M. Barker Co., 636 So.2d 887, 889 (Fla. 1st DCA 1994). Here, the parties had a course of dealings, which are undisputed, where offers and counteroffers remained open for a period of weeks. As such, under the circumstances present in this case, i.e., the parties’ course of dealings and an offer tendered just before the December holidays, we conclude as a matter of law that DSY accepted Hammond’s offer within a reasonable time.

IV. TRIAL COURT’S JURISDICTION

Although the trial court’s jurisdiction to enter the order in question was not raised below or on appeal, it is the duty of this Court to remain vigilant to the issue of subject-matter jurisdiction. See WEG Industrias, S.A. v. Compania De Seguros Generales Granai, 937 So.2d 248, 249-50 (Fla. 3d DCA 2006). Florida adheres to the local action rule which dictates that when real property is in controversy, “jurisdictional authority exists over the property only in the circuit where the land is situated.” Ruth v. Dep’t of Legal Affairs, 684 So.2d 181, 185 (Fla.1996). Thus, an in rem suit, in which the real property is the primary dispute and the parties are seeking to act directly on the property or the title, may only be entertained in the circuit where the property is located. Id. In contrast, an action for specific performance on a contract for the sale of land is an in personam suit and may be maintained outside of the county where the property at stake lies. Jutagir v. Marlin, 453 So.2d 503 (Fla. 3d DCA 1984). We find, therefore, that the trial court had jurisdiction to render an order on the specific performance claim.

To the extent the trial court’s order operates as a mandate to transfer title, however, that portion of the order must be reversed. Despite having authority to render a decision on the merits of a specific performance claim due to its in personam jurisdiction, a trial court may not order the transfer of real property unless it also has in rem jurisdiction. Greene v. A.G.B.B. Hotels, Inc., 505 So.2d 666, 667 n. 1 (Fla. 5th DCA 1987). Indeed, “the local action rule precludes a court that lacks in rem jurisdiction from transferring title.” Ruth, 684 So.2d at 186. Because the property at issue is located in Indian River County, the trial court located in Miami-Dade county is without jurisdiction to order the transfer of title, and we reverse that portion of the trial court’s order. If transfer of title is required in order to give effect to the trial court’s order granting summary judgment in favor of DSY’s claim for specific performance, the proper remedy in that circumstance is to transfer the case to a court able to exercise in rem jurisdiction. Id.

V. CONCLUSION

Accordingly, we affirm the trial court’s order to the extent it grants summary judgment in favor of DSY for specific performance on the contract for sale of land, but reverse that portion of the order directing title to pass from Hammond to DSY in the event Hammond fails to comply with his obligations under the contract. We further remand this matter for proceedings not inconsistent with this opinion.

Affirmed in part; reversed in part.

      . Nothing in this opinion should be construed as divesting the trial court of jurisdiction to determine entitlement to attorney’s fees and costs incurred in the underlying lawsuit for specific performance.


text:
    A.K., a juvenile, Petitioner, v. Dale DOBULER, Superintendent Miami-Dade Regional Juvenile Detention Center, and The State of Florida, Respondent.
    No. 3D07-394.
    District Court of Appeal of Florida, Third District.
    March 14, 2007.

      Bennett H. Brummer, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for petitioner.
    Bill McCollum, Attorney General, and William J. Selinger, Assistant Attorney General, for respondent.
    Before RAMIREZ and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

A.K., a juvenile and dependent child, petitioned for a writ of habeas corpus seeking his release from secure detention. Due to time sensitivities and because we agreed that habeas corpus relief was appropriate, we earlier issued the writ. We now issue this opinion to explain our earlier decision and give some guidance to the juvenile bench and bar regarding the secure detention of a juvenile after the trial court quashes a pick-up order for failure to appear.

In December 2005, A.K. was arrested and charged with grand theft, a third degree felony, based on a shoplifting incident that occurred shortly after his eleventh birthday. Grand theft is one of the nonviolent third degree felonies that is not scorable on the Detention Risk Assessment Instrument, unless one or more of the five enumerated factors is present. At the time of A.K.’s arrest, none of the enumerated factors was present, thus he was not detained. A.K.’s first court appearance was on March 2, 2006.

A.K. was sent to JASS/JASP (Juvenile Alternative Sanctions System/Juvenile Alternative Services Program). He failed to complete the program, so the matter was set for trial on September 1, 2006. On September 1st, A.K. appeared in court, but the trial court continued the trial to September 27, 2006. A.K. appeared in court on September 27th. He rejected the State’s plea offer, and the trial was reset for November 29, 2006.

On November 29th, A.K.’s case worker informed the court that A.K. “took off’ around November 1st. A pick-up order was issued, with the notation, “Do Not Release.” A.K. was taken into custody on the pick-up order on February 6, 2007. On February 7, 2007, the pick-up order was quashed. Detention was extended. The trial was set for February 27, 2007, at 9:30 a.m. On February 14, 2007, defense counsel moved for custody release, contending that there was no statutory authority to continue to detain A.K. This motion was denied. The trial judge in this case stated that he would not release A.K. because A.K. had been on pick-up order status from November 29, 2006 until February 7, 2007; that it was unlikely that A.K. would appear for trial if he was released; and that there was no Department of Children and Families (DCF) case manager in the courtroom. A.K. then petitioned this Court for a writ of habeas corpus to release him from secure detention, and we issued the writ. A.K.’s trial is set for February 27, 2007. Had we not issued the writ, A.K. would have been in secure detention for twenty-one days after he was taken into custody on the pick-up order.

In Florida, the detention of juveniles is governed completely by statute. R.G. v. State, 817 So.2d 1019, 1020 (Fla. 3d DCA 2002). Section 985.101, Florida Statutes (2007) provides that if a child fails to appear1 at a court hearing, the trial court is authorized to issue an order, known as a “pick-up” order, to take the child into custody. As permitted by section 985.115(2)(f), children in Miami-Dade County are customarily brought to the Juvenile Assessment Center (JAC).

In the case before us, a pick-up order was issued after A.K.’s DCF case manager reported that A.K. had “taken off.” A.K. was then arrested based upon this order on February 6, 2007. A.K. was taken to the Miami-Dade Detention Center, instead of the JAC, most likely due to the “Do Not Release” notation on the order.

Florida Statutes, section 985.255(1) provides, in pertinent part, that:

(1) Subject to s. 985.25(1), a child taken into custody and placed into nonsecure or home detention care or detained in secure detention care prior to a detention hearing may continue to be detained by the court if:
i) The child is detained on a judicial order for failure to appear and has previously willfully failed to appear, after proper notice, for an adjudicatory hearing on the same case regardless of the results of the risk assessment instrument. A child may be held in secure detention for up to 72 hours in advance of the next scheduled court hearing pursuant to this paragraph....

(emphasis supplied). Thus, when he quashed the pick-up order, the trial court had the discretion to release A.K. immediately or to order A.K. held for up to 72 hours in advance of the next scheduled court hearing, which was scheduled for February 27, 2007. According to the comments made by the trial court judge, A.K. was held in secure detention because: 1) he ran away for two months; 2) the trial judge believed that it was unlikely that A.K. would appear for trial if he was released; and 3) A.K.’s DCF case manager did not appear at the hearing on the motion for custody release. There is no support under Florida law for continuing to detain a child in secure detention for the reasons the trial judge gave.

Section 985.24(1)(a), Florida Statutes, does provide that a finding that a child presents “a substantial risk of not appearing at a subsequent hearing” is a legitimate basis for determining that secure detention should be ordered. However, in order for the judge to rely on this factor, it must be a situation when secure detention is authorized by law. Under current Florida law, the only time a child with failures to appear can be ordered to secure detention for longer than 72 hours is when a contempt proceeding is held according to section 985.037, Florida Statutes (2007). Section 985.037 requires the necessary due process protections before the child can be found in contempt of court, such as the issuance of an order to show cause and a hearing at which the child is before the trial court and can confront and present witnesses. See § 985.037(4)(b), Fla.Stat. (2007). Here, none of these requirements were followed.

Accordingly, there was no basis under Florida law for holding A.K. in secure detention for twenty-one days under the facts of this case. Accordingly, we hold that a failure to appear, standing alone, does not support placement in secure detention for twenty-one days. See R.B. v. Dobuler, 3D07-211 (Jan. 26, 2007) (the trial court ordered the child held in secure detention for twenty-one days after the pick-up order was quashed, the State conceded error, and the petition for writ of habeas corpus was granted); S.J. v. State, 596 So.2d 1181 (Fla. 5th DCA 1992); W.N. v. Fryer, 572 So.2d 24 (Fla. 4th DCA 1990). See also § 985.255(1)(j), Fla. Stat. (2007).

For the foregoing reasons, we granted A.K.’s petition for writ of habeas corpus and ordered his immediate release. We are hopeful that with this opinion, the juvenile bench and bar will have the appropriate guidance it needs to handle the issue raised in this case.