author: SAWAYA, J.

text:
    OAKCREST EARLY EDUCATION CENTER, INC., et al., Appellants v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D05-2202.
    District Court of Appeal of Florida, Fifth District.
    Aug. 25, 2006.

      Edward L. Scott, of Edward L. Scott, P.A., Ocala, for Appellant.
    Ralph J. McMurphy, Department of Children and Families, Wildwood, for Ap-pellee.
   SAWAYA, J.

Although much has been said about the broad and abstract provisions of the Due Process Clauses of our state and federal constitutions, we are certain that, at a minimum, they require that deprivation of life, liberty, or property must be preceded by adequate notice and an opportunity for a full and fair hearing appropriate to the cause of action being adjudicated. Due process principles are an essential and fundamental ingredient of our constitutional jurisprudence and they form the basis from which many laws derive their authority. One of these is section 120.60(6)(c), Florida Statutes (2005), which allows summary suspension of a license, such as the child day care facility license held by Oak-crest Early Education Center, Inc. This statute requires that in cases of summary suspension, the Department of Children and Families must promptly institute formal suspension or revocation proceedings pursuant to sections 120.569 and 120.57, Florida Statutes. We are called upon to determine whether Oakcrest’s due process rights under this statute were violated when the Department summarily suspended its license. If so, the Emergency Final Order of Suspension we now review must be reversed, just as Oakcrest contends.

When the Department conducted an inspection on April 27, 2005, to determine whether Oakcrest’s one-year license to operate a child day care facility would be renewed, Oakcrest was orally advised by the inspectors that it was in compliance and that its license, which was set to expire by operation of law on June 13, 2005, would be reissued for another year. Unfortunately, during a torrid afternoon on June 7, a child in the care of Oakcrest was inadvertently left inside a van for approximately two-and-a-half hours. When the child was subsequently discovered, he was dehydrated and in distress. The child was delivered to a hospital in serious condition where he received care for a period of time. Oakcrest notes that the child recovered and was subsequently released.

The Department notified Oakcrest on June 8, through a document entitled Notice of Denial of an Application to Operate a Child Care Facility, that its application to renew its license was denied based upon the incident that had occurred the preceding day, the failure to properly document the arrival and departure of children, inadequate record keeping, and the history of the facility’s failure to abide by statutory and code requirements. On June 9, the Department served a copy of the Emergency Order on Oakcrest, notifying it that its license was suspended effective 5:00 p.m. on June 8. This is the order we now review. But for the incident on June 7, it appears that Oakcrest’s license would have been renewed. Because of the timing of the suspension vis-a-vis the license expiration date, the suspension affected three business days before the license expired by operation of law.

Oakcrest filed an appeal of the Emergency Order and, in addition, mounted a challenge to the Department’s refusal to reissue its license. On June 16, 2005, Oak-crest filed its Petition for Administrative Hearing addressing the Notice of Denial of Application to Operate a Child Care Facility. In it, Oakcrest denied that it had committed any child abuse, neglect, or abandonment. Oakcrest challenged the Department’s decision to summarily suspend its license, which it labeled as “harsh and unwarranted.” In its brief, Oakcrest states that a hearing was held on its petition on October 12, 2005, and this court has been informed by notice of supplemental authority filed by the Department that Oakcrest’s request for license renewal was denied.

Oakcrest argues that the emergency suspension of its license violated its due process rights under section 120.60(6), Florida Statutes, because the Department failed to promptly institute and act upon a suspension or revocation proceeding pursuant to that statute. Oakcrest further argues that the Emergency Order failed to properly notify it of its right to a prompt hearing. Because reversal is required based on the Department’s failure to promptly institute formal proceedings, the notice issue is rendered moot and we will not address it.

Section 120.06(6) gained ascendancy to become the controlling legislative authority regarding the basic procedural requirements to summarily suspend or revoke a license to operate a child day care when the Legislature enacted the provisions of section 402.310, Florida Statutes. The latter statute is part of the chapter governing day care facilities and the licensing thereof, and it allows the Department to suspend a day care’s license for the violation of any of chapter 402’s provisions, including the section governing a day care’s accountability for children being transported by it. § 402.310(1), Fla. Stat. (2005). Section 402.310(2) requires the Department to “determine the matter in accordance with procedures prescribed in chapter 120.” § 402.310(2), Fla. Stat. (2005). Thus we advert to the provisions of section 120.60(6) of the Administrative Procedures Act, which governs emergency license suspension procedures. It states:

(6) If the agency finds that immediate serious danger to the public health, safety, or welfare requires emergency suspension, restriction, or limitation of a license, the agency may take such action by any procedure that is fair under the circumstances if:
(a) The procedure provides at least the same procedural protection as is given by other statutes, the State Constitution, or the United States Constitution;
(b) The agency takes only that action necessary to protect the public interest under the emergency procedure; and
(c) The agency states in writing at the time of, or prior to, its action the specific facts and reasons for finding an immediate danger to the public health, safety, or welfare and its reasons for concluding that the procedure used is fair under the circumstances. The agency’s findings of immediate danger, necessity, and procedural fairness are judicially reviewable. Summary suspension, restriction, or limitation may be ordered, but a suspension or revocation proceeding pursuant to ss. 120.569 and 120.57 shall also be promptly instituted and acted upon.

Pursuant to section 120.60(6)(b), an agency is restricted to taking only such action as is necessary to protect the public interest. Where that action is taken prior to a hearing and an emergency order is entered suspending or revoking a license, section 120.60(6)(e) requires that “a suspension or revocation proceeding pursuant to ss. 120.569 and 120.57 shall also be promptly instituted and acted upon.” Although the Legislature did not provide a test to determine promptness, the obvious purpose of the statute is to require that suspension or revocation proceedings be promptly instituted lest a constitutionally-protected right to procedural due process be unduly restricted or abrogated by a slow administrative process. Because a formal proceeding under section 120.60(6) was never instituted, it is not necessary that we resolve the issue of what “prompt” means or formulate a test to make that determination — suffice it to say that what was never done is never prompt.

It is the Department’s responsibility to promptly institute the formal suspension or revocation proceeding, which allows the licensee the opportunity to contest the allegations and factual matters relied upon by the Department to take away the license. Field v. State, Dep’t of Health, 902 So.2d 893, 895 (Fla. 1st DCA 2005) (“Section 120.60(6)(c) requires, in cases of summary suspension, that the Department promptly institute a formal suspension or revocation proceeding pursuant to sections 120.569 and 120.57, Florida Statutes (1999). In these formal proceedings, licensees may dispute the factual matters relied upon by the Department.”); see also Bio-Med Plus, Inc., v. State, Dep’t of Health, 915 So.2d 669 (Fla. 1st DCA 2005); Broyles v. State, Dep’t of Health, 776 So.2d 340, 341 (Fla. 1st DCA 2001). Because the Department never instituted formal proceedings, Oakcrest’s procedural due process rights were violated.

The Department argues that because the suspension affected only three business days and there would have been no possible way to hold the hearing prior to the date the license expired on its own, it was relieved of any responsibility to institute formal proceedings. We reject this argument. The Department admits that the suspension was introduced into evidence at the license renewal hearing held pursuant to Oakcrest’s urging. The fact of the suspension affected Oakcrest for three business days and may have adversely affected the outcome of its request to renew its license. We believe that Oakcrest had the right to a hearing, regardless of the number of days affected by the suspension. Acceptance of the Department’s argument would not accord procedural due process to the licensee within contemplation of section 120.60(6) or the constitutions, both Florida and federal, and would so diminish this valuable constitutional right that it would virtually become of little worth to anyone whose license is placed in jeopardy by the emergency provisions of the statute. We conclude that failure on the part of the Department to abide by the requirements of the statute is an error of constitutional dimensions that fatally infected the Emergency Order of Suspension and requires reversal.

REVERSED.

PLEUS, C.J. and LAWSON, J., concur.

      . U.S. Const. Amend. XIV, U.S. Const.; Art. I, § 9, Fla. Const.

      . Appellant Joann Jones is referred to in the briefs as being the owner of Oakcrest Early Education Center, Inc. The appellants will be collectively referred to as "Oakcrest.”

      . This court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.100(c)(3) (providing appellate jurisdiction to review "[a] petition to review non-final agency action under the Administrative Procedure Act”). See also § 120.68(1), Fla. Stat. (2005) ("A party who is adversely affected by final agency action is entitled to judicial review. A preliminary, procedural, or intermediate order of the agency or of an administrative law judge of the Division of Administrative Hearings is immediately reviewable if review of the final agency decision would not provide an adequate remedy.”); § 120.60(6)(c), Fla. Stat. (2005) ("If the agency finds that immediate serious danger to the public health, safety, or welfare requires emergency suspension, restriction, or limitation of a license, the agency may take such action by any procedure that is fair under the circumstances.... The agency’s findings of immediate danger, necessity, and procedural fairness are judicially reviewable.”).

      . Oakcrest also argues that the Emergency Order is deficient because it fails to give details sufficient to demonstrate immediate danger, necessity, and procedural fairness and was too harsh where there were other, less intrusive, means available to address the incident. We disagree and conclude, without further discussion, that the order was not deficient in this regard.

      . See Allied Educ. Corp. v. State, Dep’t of Educ., Bd. of Indep. Postsecondary Vocational, Technical, Trade & Bus. Sch., 573 So.2d 959, 961 (Fla. 1st DCA 1991) ("Absent these procedures, emergency action taken by an agency prior to providing an opportunity for the affected person(s) to be heard would run afoul of well-established constitutional guarantees of procedural due process.”) (citing Aurora Enters. v. State, Dep’t of Bus. Regulation, Div. of Alcoholic Beverages & Tobacco, 395 So.2d 604, 605-07 (Fla. 3d DCA 1981); Commercial Consultants Corp. v. Dep’t of Bus. Regulation, Div. of Fla. Land Sales & Condos., 363 So.2d 1162 (Fla. 1st DCA 1978)); see also Barry v. Barchi, 443 U.S. 55, 66, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979) (addressing due process procedural safeguards required following emergency suspension of a horse trainer's license by racing authorities and recognizing the trainer's paramount interest in a speedy resolution of the controversy; holding that it was necessary that the trainer "be assured a prompt postsuspension hearing, one that would proceed and be concluded without appreciable delay,” and that "[b]ecause the statute as applied in this case was deficient in this respect, [the trainer’s] suspension was constitutionally infirm under the Due Process Clause of the Fourteenth Amendment”).


source: Caselaw Access Project

author: ORFINGER, J.

license: Public Domain

text:
    Grant MITCHELL and Mitchell Realty, Inc., Appellant, v. W. Frank DIMARE and K.S. Toney, etc., Appellee.
    No. 5D05-1691.
    District Court of Appeal of Florida, Fifth District.
    Aug. 25, 2006.

      Sean P. Sheppard, of Sheppard & Sheppard, P.A., St. Augustine, for Appellant.
    Robert L. McLeod, II, of the McLeod Firm, St. Augustine, for Appellee.
   ORFINGER, J.

Grant Mitchell, a licensed real estate broker, joined by his firm, Mitchell Realty, Inc. (collectively “Mitchell”), procured a contract from AY Ventures, Inc. for the purchase of a parcel of real property owned by K.S. Toney, Trustee of the K.S. Toney Living Trust. The property, however, was subject to a right of first refusal in favor of W. Frank DiMare, who, upon being advised of the offer from AY Ventures, chose to exercise that right and closed on the property. Mitchell then filed suit seeking a commission. On summary judgment, the trial court concluded that Mitchell was not entitled to a commission. Mitchell appeals that ruling. We affirm.

In 2002, DiMare and Toney entered into a written agreement, that gave DiMare “a right of first refusal to purchase the [property] ... [o]n the same terms and conditions as that contained in any Bona Fide Offer to purchase, received by and acceptable to Toney.” Sometime thereafter, To-ney entered into a brokerage agreement with Mitchell regarding the same property. The brokerage agreement provided “it is understood that a right of 1st refusal may be existing on the property.”

Mitchell proceeded to market the property, resulting in a contract for the purchase of the property between Toney and AY Ventures. Relevant to this dispute, the Toney/AY Ventures contract provided:

18. ADDITIONAL TERMS
B. Parties acknowledge that there is a “1st right of refusal” currently on the property by another purchaser.
E. Effective date will be when right of 1st refusal is rejected.

The contract also provided for a commission to be paid to Mitchell.

As he was required to do, Toney presented the AY Ventures contract to Di-Mare within the time provided for exercising the right of first refusal. DiMare elected to purchase the property on terms identical to the AY Ventures contract, except that no provision was made for any commission to Mitchell. After the Di-Mare/Toney transaction closed, Mitchell sued for a commission.

The brokerage agreement between Toney and Mitchell required Toney to pay a commission “[i]n the event the Property is sold, optioned, [or] contracted to be sold to [a] Prospect procured by [Mitchell] .... ” Mitchell claims that because he procured the AY Ventures contract that was accepted by Toney, he is entitled to a commission. We disagree because based on its plain language, no enforceable contract was formed between Toney and AY Ventures.

Mitchell’s argument overlooks the fact that the AY Ventures/Toney agreement provided that it would become effective only when, and if, DiMare’s right of first refusal was rejected. That never occurred, and, as a result, no binding contract was formed between Toney and AY Ventures. The condition was one precedent to the formation of the contract. A condition precedent is an act or event, other than a lapse of time, that must occur before a binding contract will arise. J. Calamari & J. Perrilo, Contracts, § 11-5 (3d ed. 1987); Restatement (Second) of Contracts § 250 (1981). A condition may be either a condition precedent to the formation of a contract or a condition precedent to performance under an existing contract. Calamari & Perrilo, supra. In the case of a condition precedent to formation, as here, the contract does not exist unless and until the condition occurs. In the case of a condition precedent to performance, a contract exists that may be enforced pursuant to its terms.

To avoid summary judgment, Mitchell points to the preprinted portion of the AY Ventures/Toney contract that provided “[t]he ‘Effective Date’ of this Contract is the date on which the last of the parties initials or signs the latest offer.” That provision, he argues, is inconsistent with the typed provision added by the parties, which statés that the contract’s effective date was the date on which the right of first refusal was rejected. That argument ignores the established rule that when written or typed provisions of a contract conflict with printed provisions, the written or typed terms ordinarily prevail if they cannot be reconciled. See Hurt v. Leatherby Ins. Co., 380 So.2d 432, 434 (Fla.1980); Allegheny Mut. Cas. Co. v. State, 176 So.2d 362, 365 (Fla. 2d DCA 1965). “The reason for the according of greater effect to the written or typed part as against the printed portion if they are inconsistent is that the written or typed words are the immediate language and terms selected by the parties themselves to express their meaning, while the printed form is intended for general use without reference to particular objects and aims.” Allegheny Mut. Cas. Co., 176 So.2d at 365.

Here, no binding contract existed between Toney and AY Ventures because it plainly provided that the contract would not become effective unless the right of first refusal was rejected. Since that did not occur, Mitchell was not entitled to a commission under the brokerage agreement. Accordingly, we affirm the summary judgment. As a result, we need not address the remaining issues raised by the parties.

AFFIRMED.

PALMER and MONACO, JJ., concur.


text:
    ARCHITECTURAL SHEET METAL, INC., Petitioner, v. RLI INSURANCE COMPANY and HM2 Corporation, Respondent.
    No. 5D06-1413.
    District Court of Appeal of Florida, Fifth District.
    Aug. 25, 2006.

      Rosemary Hanna Hayes and Tina L. Caraballo, Hayes and Caraballo, PL, Orlando, for Petitioner.
    Edward J. Kinberg, Kinberg & Associates, LLC, for Respondents.
   ORFINGER, J.

Architectural Sheet Metal, Inc. (“Subcontractor”) obtained a damage award in an arbitration proceeding against HM2 Corporation (“Contractor”) and RLI Insurance Company (“Surety”). The trial court confirmed the award and entered judgment against Contractor and Surety. However, over Subcontractor’s objection, the court permitted Contractor and Surety to deposit the award amount plus interest into the registry of the court, pending the assessment of attorney’s fees. In so doing, the court indicated its intention to conduct an evidentiary hearing to determine which party had prevailed on the significant issues in the arbitration proceedings for the purpose of determining which party was entitled to its fees.

Subcontractor now seeks mandamus relief to compel the trial court to immediately authorize the disbursement of the funds held in the court registry, and certiorari relief to quash the trial court’s order indicating its intention to conduct an evidentiary hearing regarding the issue of attorney’s fees. We deny the petition for certiorari without further comment as we see no departure from the essential requirements of law and no irreparable damage. We also deny Subcontractor’s petition for writ of mandamus as mandamus can only be used to enforce, not establish, a legal right. See Walker v. Walker, 654 So.2d 1049 (Fla. 5th DCA 1995); Phillip J. Padovano, Florida Appellate Practice, § 28.2 (2005 ed.). The official duty in question must be ministerial and not discretionary. Soto v. Bd. of County Comm'rs of Hernando County, 716 So.2d 863, 864 (Fla. 5th DCA 1998). A duty or act is defined as “ministerial” when there is no room for the exercise of discretion, and the performance being required is directed by law. Town of Manalapan v. Rechler, 674 So.2d 789, 790 (Fla. 4th DCA 1996) (citing Solomon v. Sanitarians' Registration Bd., 155 So.2d 353 (Fla.1963)).

Since a judgment entered following an arbitration award is “enforced as any other judgment or decree,” see section 682.15, Florida Statutes (2005), the trial court has the authority to stay execution on the judgment during the pendency of the further proceedings based on a finding of “good cause.” See Fla. R. Civ. P. 1.550(b); Carpet Concepts of St. Petersburg v. Architectural Concepts, Inc., 559 So.2d 303 (Fla. 2d DCA 1990). Because the trial court had this discretion, mandamus is not available.

PETITION FOR WRIT OF MANDAMUS AND WRIT OF CERTIORARI DENIED.

PLEUS, C.J. and SAWAYA, J., concur.

      . Florida Rule of Civil Procedure 1.550(b), entitled “Executions and Final Process,” provides that “[t]he court before which an execution or other process based on a final judgment is returnable may stay such execution or other process and suspend proceedings thereon for good cause on motion and notice to all adverse parties.”


author: MONACO, J.

text:
    GUARDIAN AD LITEM PROGRAM, Petitioner, v. DEPARTMENT OF CHILDREN AND FAMILIES, Respondent.
    No. 5D06-1764.
    District Court of Appeal of Florida, Fifth District.
    Aug. 25, 2006.
    Thomas Wade Young, Orlando, for Petitioner, Guardian Ad Litem Program.
    Jerri A. Blair, Tavares, for Petitioners, M.U. and O.U.
    Ralph J. McMurphy, Wildwood, for Respondent.
   MONACO, J.

This is yet another difficult case growing out of the desire of foster parents to adopt a child formerly under their care in the face of a recommendation by the Department of Children and Families for a different placement. The trial court agreed with DCF, and placed the child, M.Z., along with her two half-siblings with the paternal grandparent of the half-siblings.

We affirm for several reasons, perhaps most importantly because the trial judge under the circumstances of this case is in a better position than we are to evaluate how best to provide for the care of M.Z. See § 39.522, Fla. Stat. (2005). We affirm, as well, because the appellant attempts by this appeal to challenge the sufficiency of a motion presented by DCF to change the placement of the child. That motion led to the order that initially placed M.Z. with the paternal grandparent of the half-siblings. The order, however, was rendered seven months prior to the commencement of this appeal. Accordingly, we have no jurisdiction to review the order that gives rise to the primary complaints of the appellant. See Florida Rules of Appellate Procedure 9.130(b), requiring the notice of commencement to be filed within 30 days of the rendition of the order to be reviewed.

Thus, in this proceeding we are only able to review the denial by the trial court of the appellant’s motion for postdisposition change of placement and motion for visitation. We review this determination of the trial court using an abuse of discretion standard. Cf., Dep’t of Children & Families v. T.L., 854 So.2d 819 (Fla. 4th DCA 2003). We find no abuse of discretion in the trial court’s denial of this order, particularly in view of section 39.001(1)(k), Florida Statutes (2005), instructing the courts to make “every possible effort” to place siblings in the same home.

AFFIRM.

PALMER and LAWSON, JJ., concur.

      . While this case reached us as a petition for writ of certiorari, we consider it an appeal from a non-final order entered after a final order, and review it pursuant to rule 9.130(a)(4), Florida Rules of Appellate Procedure. See Dep't of Children & Families v. T.L., 854 So.2d 819, 820 (Fla. 4th DCA 2003).


author: ALTENBERND, Judge.

text:
    Valerie BOGOS, Appellant, v. James E. BOGOS, Appellee.
    No. 2D05-2371.
    District Court of Appeal of Florida, Second District.
    Aug. 25, 2006.
    Allison M. Perry of Allison M. Perry, P.A., Tampa; and James P. Knox of Knox & Givens, P.A., Tampa, for Appellant.
    James E. Bogos, pro se.
   ALTENBERND, Judge.

Valerie Bogos appeals an order granting in part and denying in part her claim for attorneys’ fees that she incurred in post-judgment dissolution of marriage proceedings against James E. Bogos. This order was entered on remand, after this court reversed a portion of an earlier order on the same claim. Bogos v. Bogos, 821 So.2d 383 (Fla. 2d DCA 2002). Because the order now on appeal suffers from some of the same infirmities as the order we previously reversed, we must reverse again.

The parties’ marriage was dissolved by a final judgment entered in July 1997. The postjudgment proceedings that are now at issue began in March 1998 and addressed numerous issues. Initially, the former wife was represented by Nancy Harris. At some point, the law firm of Knox & Givens took over representation of the former wife. In February 2001, Judge Gregory P. Holder entered a final order in the postjudgment proceedings, seeking to resolve the remaining issues between the parties, including the former wife’s request for attorneys’ fees pursuant to section 61.16, Florida Statutes (1997).

Both parties appealed Judge Holder’s order. We affirmed the order in all respects but one. We reversed that portion of the order that denied the former wife all but $7500 of the attorneys’ fees she incurred in the postjudgment proceedings. We reversed on this issue because Judge Holder had not made findings that would permit meaningful appellate review. Bogos, 821 So.2d at 385. Specifically, Judge Holder had not explained whether he had denied the former wife’s remaining fees because he concluded that they were unreasonable or unnecessarily incurred, or whether he had based the decision on the comparative financial circumstances of the parties. We noted, however, that the former husband had consistently earned more than four times the income of the former wife.

Our opinion did not provide detailed instructions to the parties or to the circuit court to follow on remand. This flexibility was intentional. If the parties had appeared before Judge Holder and indicated that their respective financial positions remained the same and that the existing record was sufficient to resolve the matter, it was foreseeable that Judge Holder might choose to make the necessary factual findings by a simple review of the court records. On the other hand, if the parties indicated that one or both of them had experienced a significant change in their financial circumstances or that the record was otherwise insufficient, Judge Holder may have appropriately decided to conduct an evidentiary hearing.

By the time the case was remanded to the circuit court, Judge Holder had been assigned to a new division. The case was thus assigned to a successor judge, who was unfamiliar with the parties and the litigation between them. The former wife proposed that the successor judge review the court records to formulate an appropriate order. The former husband initially objected to this procedure but thereafter indicated that the successor judge should rely on portions of the existing record.

These procedural disputes were never fully resolved between the parties or by the court. The parties did agree that the former wife had incurred reasonable attorneys’ fees of $7500 for the services of Knox & Givens before the circuit court. The former wife presented evidence that she had also incurred fees for the services of Nancy Harris. Nancy Harris had billed the former wife in excess of $32,000, but had accepted payment in full of $16,000. The former wife asked the circuit court to award her $23,500 in attorneys’ fees, representing the fees paid to Ms. Harris and the fees reasonably incurred to Knox & Givens. The former husband objected on numerous substantive and procedural grounds. He even argued that he should not be required to pay any fees based upon the factors listed in Rosen v. Rosen, 696 So.2d 697, 700 (Fla.1997), despite the fact that he had agreed the fees of Knox & Givens were reasonable.

The circuit court took" the matter under advisement. On April 6, 2005, the circuit court issued an order that granted the same relief provided in the prior order issued by Judge Holder. That is, the circuit court again awarded the former wife only the $7500 in fees she incurred with Knox & Givens. In denying the former wife the fees she incurred with Ms. Harris, the circuit court made only one finding: “The former wife’s counsel Nancy Harris testified that the former husband did not owe her any money. She has been paid in full.”

Ms. Harris did testify that she had been paid in full. Although no evidence was presented as to how this payment was made, there were at least representations of counsel that the payment was made by the former wife’s brother. These circumstances, however, are not an appropriate basis for denying the former wife an award of reasonable attorneys’ fees. See Cullen v. Cullen, 884 So.2d 304, 306 (Fla. 2d DCA 2004) (explaining that “[t]he purpose of an attorneys’ fee award under section 61.16, Florida Statutes (2002), is to ensure that both parties will have a similar ability to obtain competent legal counsel,” and “the mere fact that a party has paid fees, or has some ability to pay fees, does not control”); Mott v. Mott, 800 So.2d 331, 334 (Fla. 2d DCA 2001) (stating that in determining a claim for fees pursuant to section 61.16, “the trial court must base its determination upon the individual financial resources of the parties, not the financial assistance provided by family or friends”); Diaco v. Diaco, 363 So.2d 183, 186-87 (Fla. 2d DCA 1978) (stating that “we see no reason why the willingness of [the wife’s] father to provide the necessary fee money to her should relieve the husband from a duty to provide such reasonable sums as will enable her to obtain representation equal to his own in these proceedings”). Thus, the circuit court erred in denying the former wife’s request for the attorneys’ fees incurred for Ms. Harris on this basis.

We reluctantly reverse once again. In our prior opinion, we warned that this case displayed the symptoms of the onset of Wrona’s disease and we urged the parties to find a swift cure for the financial and emotional sake of their young children. The parties have been unable to do so. In an effort to assist in the resolution of this matter, on remand the circuit court may (1) accept the stipulation of the parties that the $7500 in fees the former wife incurred for the services of Knox & Givens in the circuit court litigation were reasonable; (2) review the transcript of the testimony of Ms. Harris at the December 12, 2003, hearing and the documentary evidence she submitted regarding the hourly rates she charged and the hours she expended in representing the former wife; (3) review the court records; (4) determine the reasonable hourly rate and reasonable amount of hours expended by Ms. Harris on the former wife’s behalf; (5) solicit and receive evidence on the relative financial circumstances of the parties; and (6) enter an appropriate order, with specific findings, on the former wife’s request for attorneys’ fees. We note that two trial judges have now reviewed this case and have both seemingly rejected the former husband’s argument that the Rosen factors merit a reduction in the amount of fees awarded to the former wife. In the prior appeal, this court concluded that the Rosen factors should play no role in setting the appellate attorneys’ fees when we conditionally granted the former wife’s request for appellate attorneys’ fees. On remand, the circuit court is not required to revisit this issue.

We have specifically used the word “may” in the preceding paragraph. Nothing in that paragraph should be read to prevent the parties from stipulating to some or all the procedures to be followed and the underlying facts that should guide the circuit court’s decision. Further, if the circuit judge assigned to the case on remand decides that a more extensive evi-dentiary hearing is required, our opinion does not foreclose this. We urge the court and both parties, however, to work together to expeditiously and conclusively resolve this litigation without any further undue expense.

Reversed and remanded.

SALCINES and SILBERMAN, JJ., Concur.

      . We note that section 61.16 requires a review of the parties' respective financial positions but does not dictate that the analysis must be based on the financial positions at any specific point in time. Case law does not mandate an analysis at any set point. It would appear that the respective finances of the parties may be relevant from the date of filing the action and continuing until the time the fees are awarded or denied because changes in the parties’ financial circumstances may affect their need for fees, ability to pay fees, and the ability of each party to secure competent counsel.

      . See Wrona v. Wrona, 592 So.2d 694 (Fla. 2d DCA 1991).

      . Although the former husband made blanket arguments that the former wife incurred fees that were unreasonable, he did not point to specific charges that were unreasonable. There appears to be no need, therefore, to give the former husband a “second bite at the apple” in this regard.

      . As Judge Schwartz has previously explained, doing so would be “an appropriate concession to the shortness of life.” See Manas v. Manas, 732 So.2d 1155, 1156 n. 1 (Fla. 3d DCA 1999) (citing Am. Civil Liberties Union v. Barnes, 168 F.3d 423, 439 (11th Cir. 1999)).


author: WOLF, J.

text:
    RESTORATION TECHNOLOGY and NELCO Companies/CNA Claims Plus, Appellants, v. Andres Felipe REYES, Appellee.
    No. 1D05-3074.
    District Court of Appeal of Florida, First District.
    Aug. 30, 2006.

      Henry J. Roman, of Vernis & Bowling of Broward, P.A., Ft. Lauderdale, for Appellants.
    Toni L. Villaverde, of Villaverde & Martinez, PLLC, South Miami, for Appellee.
   WOLF, J.

This appeal arises from an order of the Judge of Compensation Claims (JCC) finding the claimant’s two separate work related accidents to be compensable under Florida’s Workers’ Compensation law. We affirm the JCC’s order as to the first accident; however, we reverse as to the second accident because we find that the JCC applied the incorrect legal standard in determining that the claimant’s injury arose out of the scope of his employment.

On June 28, 2002, the claimant was injured following a physical altercation with a co-worker over the use of an extension cord. During the incident, the co-worker attacked the claimant with a hammer which caused the claimant to fall backwards and hit his right hand against a steel tool trailer causing injury. In addition, the claimant testified that following the altercation he discussed the incident with a supervisor in a trailer (the fight happened outside the trailer) and was told to leave the job site. At this point, out of anger over being sent away when he was not the aggressor, the claimant stated he struck a table in the trailer. However, conflicting testimony offered by the employer, Restoration Technology, and its carrier, CNA Insurance (E/C), through a safety consultant indicated that the claimant struck the steel trailer with his fist immediately following the altercation, out of anger. The claimant sought emergency medical care and was treated for a “boxers’ fracture” of his pinky. The treatment consisted of placing the claimant’s finger in a cast for 8 weeks.

Following his recovery, the claimant filed a claim for temporary partial disability benefits; payment of all medical bills; and payment of in-home care during the recovery period. The E/C controverted the claims asserting that the claimant’s injuries were due to his own misconduct and not related to any work-related activity or accident. Following a hearing on the matter, the JCC found that the claimant’s injuries were not wilfully inflicted, even if he punched an object in anger, because he was not the aggressor in the argument. This appeal followed.

An employee is entitled to workers’ compensation benefits for an injury arising out of an altercation with a coworker where (1) the claimant’s injury results from the co-worker’s unprovoked aggression; (2) the claimant’s work brings him or her into close proximity with the aggressive co-worker; and (3) the object causing injury was an “implement of the employment.” See Spleen v. Rogers Group, Inc., 548 So.2d 740 (Fla. 1st DCA 1989). However, sections 440.09(1) and (3), Florida Statutes (2002), do not authorize workers’ compensation benefits where an employee suffers an accidental injury arising out of his or her employment which was caused through the employee’s willful intent to injure himself or another. A willful act is one that involves (1) the existence of some premeditation or malice and (2) a reasonable expectation of bringing about real injury to ones’ self or another. See 391st Bomb Group v. Robbins, 654 So.2d 1200, 1202 (Fla. 1st DCA 1995) (holding that a claimant was not entitled to workers’ compensation benefits for injuries sustained when he punched a window after being terminated from his employment with the employer, where the act was so wanton as to amount to a willful intent to injure ones’ self). Further, some acts, including the act of punching an object out of anger, even though impulsive, must be construed as willful where the act is likely to cause injury. Id.

Like the claimant in 391st Bomb Group, this claimant caused injury to himself by actively punching a table out of anger immediately after being told to leave a job site. The claimant’s act occurred after a temporal break and a change in location, not during the fight. In its order awarding the claimant benefits for the June 28, 2002, incident, the JCC discusses the holding in 391st Bomb Group and states in pertinent part:

25. I have reviewed the case of Bomb Group and CNA v. Robbins, it is distinguishable from the case at hand. The injury in this case is due to the aggression of a coworker. In Bomb Group, the claimant was fired for unsatisfactory work and he as the aggressor punched a window causing his injuries. He was labeled as the aggressor. In addition based on the evidence provided I do not find any willful intent to injure based on the claimant’s testimony and/or actions.

The JCC’s attempt to distinguish the holding in 391st Bomb Group from the case at hand -is unpersuasive. In 391st Bomb Group, we stated:

[Tjhese findings are tantamount to willful intention to injure so as to be outside the course and scope of his employment. We find little difference between an employee who is injured while attempting to injure a superior in a fight in which he was the aggressor and an employee who is injured by willfully striking an inanimate object of the employer in anger, an object which obviously presented a danger of injury.

Id. at 1202. However, we also provided:

Even were we to find that claimant’s injuries resulted from an impulsive act, we would reject benefits under section 440.09, Florida Statutes.... [W]e adopt the holding of Relish v. Hobbs in which the Louisiana Court of Appeal stated: “The test (of wilful intent to injure) should involve an inquiry into (1) the existence of some premeditation and malice ..., coupled -with (2) a reasonable expectation of bringing about real injury to himself or another.” This clearly means that wilfulness, as distinguished from impulsiveness, is not the sole test. Every impulsive act is not condoned by the statute. Some acts, even though impulsive, are so serious and so likely to result in real injury, that they must be construed to show a wilful intent to injure. Relish v. Hobbs, 188 So.2d 479, 482 [ (La.App. 3 Cir.1966) ] (quoting Velotta v. Liberty Mutual Ins. Co., 241 La. 814, 132 So.2d 51 (1961)). Here, we find that claimant’s act, even if impulsive, was so serious and so likely to result in real injury that it must be construed to show willful intent.

Id.

When applied to the facts of the instant case, the holding in 391st Bomb Group mandates reversal for two reasons. First, evidence presented in the instant case suggests that if the injury was caused by the claimant’s subsequent independent act of punching a table out of frustration over being told to leave the job site, the claimant was responding in an aggressive manner to his supervisor’s command and the claimant, as the aggressor, would not be entitled to benefits where the act of aggression amounted to a willful intent to injure ones’ self. See id. Second, even if the JCC was correct in its finding that the claimant’s injuries were the result of an altercation with a co-worker in which the claimant was not an aggressor, the injury would still remain uncompensable. Specifically, the act of punching a hard object, even though impulsive, “was so serious and so likely to result in real injury that it must be construed to show willful intent.” Id. at 1202-03.

Although not discussed in the JCC’s Merits Order, unrefuted record evidence, including depositions offered by two medical experts, supports a finding that the claimant’s fractured finger and subsequent need for in-home care were a direct result of his actively punching a hard object. As such, we reverse the JCC’s order as to the June 28, 2002, incident where no competent substantial evidence exists to support an award of workers’ compensation benefits for the claimant’s boxers’ fracture of his pinky.

AFFIRMED in part, REVERSED in part, and REMANDED.

KAHN, C.J., and BENTON, J., concur.


author: VAN NORTWICK, J. THOMAS, J.

text:
    Jermaine L. MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-1598.
    District Court of Appeal of Florida, First District.
    Aug. 30, 2006.

      Nancy A. Daniels, Public Defender, and Carl S. McGinnes, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   VAN NORTWICK, J.

Jermaine Lamar Martin appeals his convictions for possession of cocaine and possession of cannabis arguing, in part, that the trial court erred in admitting, over objection, a report of the Florida Department of Law Enforcement (FDLE), which indicated that the substances seized from Martin were contraband. The prosecution offered this report under the business records exception to the hearsay rule in lieu of presenting at trial the live testimony of the person who performed the tests. The defense objected to the admission of the lab report, arguing that admission of such without the testimony of the author of the report denied Martin his right under federal and state Confrontation Clauses. We hold that the admission of the FDLE report as a business record without giving appellant the right to examine the author of the report was reversible error.

In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court established a test for determining when the admission of hearsay evidence violates the Confrontation Clause of the United States Constitution. The Crawford court held that the admission of hearsay evidence which was “testimonial” in nature violates the Confrontation Clause unless the declarant is unavailable to testify and unless the defendant had a prior meaningful opportunity to cross-examine the declarant. Id. 124 S.Ct. at 1369. While Crawford did not provide a comprehensive definition of “testimonial,” it did explain that business records “by their nature” are not testimonial, id. 124 S.Ct. at 1367, but that statements “reasonably expect[ed] to be used prosecutorially” or which “would be available for use at a later trial” were. 124 S.Ct. at 1364. More particularly, the Court explained in Crawford that testimonial statements include:

ex-parte in-court testimony, or its functional equivalent — that is, material such as affidavits, custodial examinations, pri- or testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially [....] extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, [... and] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.

Id. (emphasis added).

While the FDLE report at issue in the instant case may meet the definition of a business record under the Florida statute permitting admission of such records, see section 90.803(6), Florida Statutes (2003), an issue we do not address, the report obviously was prepared for litigation purposes. The testing memorialized in the report was occasioned solely by the arrest of appellant and was performed by a state law enforcement agency, and the report was offered by the State in furtherance of a criminal prosecution.

Applying Crawford, Florida courts have consistently held that records such as the FDLE report before us are testimonial in nature. In Shiver v. State, 900 So.2d 615 (Fla. 1st DCA 2005), we held that a “breath test affidavit” prepared by a law enforcement officer following the arrest of the subject tested was testimonial hearsay evidence in that the affidavit “contained statements one would reasonably expect to be used prosecutorially and was made under circumstances which would lead an objective witness to reasonably believe the statements would be available for trial.” Id. at 618; see also Belvin v. State, 922 So.2d 1046 (Fla. 4th DCA 2005) (holding that a breath-test affidavit was testimonial hearsay and not admissible as a business record because the affidavit was prepared in anticipation of trial); Johnson v. State, 929 So.2d 4 (Fla. 2d DCA 2005) (“an FDLE lab report prepared pursuant to a police investigation and admitted to establish an element of a crime is testimonial hearsay even if it is admitted as a business record”), rev. granted, 924 So.2d 810 (Fla. 2006); Rivera v. State, 917 So.2d 210 (Fla. 5th DCA 2005) (explaining that while drug or alcohol tests performed by a hospital in the usual course of business are admissible as business records, similar tests performed by an FDLE lab are not pursuant to the Confrontation Clause); Sobota v. State, 933 So.2d 1277 (Fla. 2d DCA 2006).

Here, the State has not claimed that the person who tested the substances seized from appellant and who authored the report at issue was unavailable to testify. Also, the State has not claimed that the defense had been previously given an opportunity to examine the author of the FDLE report in a meaningful manner. Accordingly, the trial court erred in admitting the FDLE report, and the error cannot be deemed harmless as it was the only proof of the contraband nature of the items seized from appellant. See Crawford v. Washington.

Because a new trial is required, it is not necessary to address the other issue raised on appeal. The cause is REVERSED and REMANDED for a new trial.

POLSTON, J., concurs, and THOMAS, J., dissents with written opinion.

THOMAS, J.

dissenting.

I respectfully dissent. I would align this court with those jurisdictions which have determined that laboratory reports are not “testimonial” and thus may be admitted into evidence without violating the Confrontation Clause and the Supreme Court’s holding in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

The holding in Crawford is clearly limited to “testimonial” evidence, which generally involves statements by witnesses, and not routine records produced in the ordinary course of business by persons not directly involved with the prosecution or investigation of a case. As the majority stated in Crawford:

Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law — as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of “testimonial.” Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.

541 U.S. at 68, 124 S.Ct. 1354 (footnote omitted) (emphasis added).

Although the Supreme Court did not conclusively define “testimonial,” nothing in Crawford suggests that the definition would be stretched to include laboratory reports. In fact, the Court surmised in dicta that business records likely would not be included. Id. at 56, 124 S.Ct. 1354.

Section 90.803(6), Florida Statutes (2003), defines a business record as

(a) A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness. The term “business” as used in this paragraph includes a business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

Thus, section 90.803(6) clearly includes the FDLE laboratory report.

In Johnson v. State, 929 So.2d 4 (Fla. 2d DCA 2005), the Second District acknowledged that business records were not barred by Crawford because they could be considered nontestimonial:

[The Supreme Court] provide[d]a non-comprehensive list of testimony that would be considered testimonial: testimony at a preliminary hearing, testimony in front of a grand jury or at a trial, and testimony that results from police interrogation.It also noted, in dicta, that certain hearsay statements are by their nature nontestimonial — such as business records[.]

Id. at 7 (emphasis added). However, the Second District held that FDLE reports could not be admitted into evidence because they were “intended to bear witness against the accused.” Id. I respectfully disagree with this holding. I believe that an FDLE report is not always intended to bear witness against the accused, because it could also be used to exonerate the accused. Thus, I would find the FDLE laboratory report is admissible as a business record.

The majority opinion notes that “[w]hile the FDLE report at issue ... may meet the definition of a business record under the Florida statute permitting admission of such records, see section 90.803(6), Florida Statutes (2003), an issue we do not address, the report obviously was prepared for litigation purposes.” Because I agree that the FDLE report meets the statutory definition of a business record, I would follow this court’s holding in Davis v. State, 562 So.2d 431 (Fla. 1st DCA 1990). I do not find the report here distinguishable from the National Health Laboratory report in Davis; both reports are equally trustworthy.

In Davis, this court rejected the appellant’s argument that he was not afforded a fair hearing because he could not inquire into the accuracy of the lab report when only the records custodian, who was not present for the testing, testified at trial. 562 So.2d at 432. This court analogized the appellant’s claim to a similar claim made and rejected in United States v. Baker, 855 F.2d 1353 (8th Cir.1988). Id. In Baker, the court held that laboratory analyses made by a police laboratory, when made on a routine basis, were admissible as business records if the defendants did not challenge the reliability of these reports. Id. at 1359-60.

The Fourth District agreed with the reasoning of Davis in Russell v. State, 801 So.2d 999, 1000 (Fla. 4th DCA 2001). While the Fourth District recently held that an affidavit attesting to an alcohol breath test was not admissible under Crawford, it did not mention Russell. Belvin v. State, 922 So.2d 1046, 1054 (Fla. 4th DCA 2006). I recognize conflict with Bel-vin, but I believe the better rule would hold that business records are not testimonial. Further, I believe that the Davis and Russell decisions remain valid unless or until the United States Supreme Court announces a broader rule than it did in Craivford.

The majority holds that the FDLE report does not qualify as a business record simply because its production is triggered by an arrest. However, section 90.803(6) does not exclude reports produced by FDLE or other law enforcement authorities. FDLE laboratory reports are not rendered suspect by the “[ijnvolvement of government officers in the production of testimony with an eye toward trial” which, the Supreme Court recognized in Crawford, “presents unique potential for prosecutorial abuse[.]” 541 U.S. at 56, n. 7, 124 S.Ct. 1354. See, e.g., Rackoff v. State, 621 S.E.2d 841, 845 (Ga.Ct.App.2005) (holding that alcohol breath test machine certifications are business records because they merely state facts and are not opinions prepared for use against an individual). Here, there is little danger of prosecutorial abuse because FDLE’s scientists are state employees who perform a duty that can, but does not always, assist law enforcement officers and prosecutors.

In Stambor v. One Hundred Seventy-Second Collins Corp., 465 So.2d 1296 (Fla. 3d DCA 1985), the Third District discussed the reason that an accident report, prepared by a premises owner after a slip and fall, does not qualify as a business record:

Not all records regularly made by a business are admissible; a requirement of minimum reliability of a record is contained in Section 90.803(6) [Florida Statutes] which states that when the ‘sources of information or other circumstances show lack of trustworthiness’ business records are not admissible. Sometimes records that are infrequently made would not meet this test. Whenever a record is made for the purpose of preparing for litigation, its trustworthiness is suspect and should be closely scrutinized.

Id. at 1297-98 (emphasis added) (citations omitted). FDLE’s routinely produced laboratory reports are clearly distinguishable from the accident report in Stambor. FDLE has no motive to fabricate its reports and has no financial interest at stake. Further, FDLE will not suffer adverse consequences if its scientists report that a tested substance is not contraband.

Instead, FDLE laboratory reports reflect neutral scientific tests performed by state employees in a non-adversarial environment. See generally State v. Dedman, 136 N.M. 561, 102 P.3d 628, 636 (2004) (concluding that blood alcohol tests and reports produced by non-law enforcement personnel in a state laboratory were not suspect because they were prepared in a non-adversarial setting); cf. McElroy v. Perry, 753 So.2d 121, 126 (Fla. 2d DCA 2000) (holding that independent medical examination prepared by expert for purpose of litigation lacked trustworthiness and was not admissible as business record). FDLE’s tests are not affected or compromised by “prosecutorial” or “investigative” procedures. The reports memorializing these tests are prepared in the ordinary course of business, not solely in anticipation of litigation. Additionally, FDLE scientists are not hired experts who might produce a report geared toward a specific result.

In Commonwealth v. Verde, 444 Mass. 279, 827 N.E.2d 701 (2005), the court held that certificates of chemical analysis were similar to the business or official records held to be non-testimonial under Crawford because production of these certificates was not discretionary or based on opinion, but merely stated the facts of an accepted scientific test. The court explained, “Furthermore, we do not believe that the admission of these certificates of analysis implicate ‘the principal evil at which the Confrontation Clause was directed — particularly its use of ex parte examinations as evidence against the accused.’ ” Id. at 706 (citations omitted).

This is not a case where an arresting officer performed a test and produced testimonial evidence. See Shiver v. State, 900 So.2d 615 (Fla. 1st DCA 2005) (holding that Crawford prohibited the admission of a state trooper’s affidavit describing an alcohol breath test he performed). In contrast, FDLE’s laboratory reports are not produced by law enforcement officers and are exactly the type of business records the legislature intended to authorize as exceptions to the hearsay rule. Such reports are not comparable to an arresting officer’s affidavit.

As in this case, FDLE is usually not the arresting agency. Therefore, I do not believe that the admission of FDLE reports violates Crawford because the reports qualify as non-testimonial business records. Accordingly, I would affirm Appellant’s conviction and certify conflict with Johnson.

      . Appellant also argues on appeal that the lab report in question was not a "business record,” and accordingly was not properly admitted under the business record exception to the hearsay rule, relying on amendments to section 90.803 and section 90.902, Florida Statutes, enacted by chapter 2003-259, Laws of Florida, as well as Baber v. State, 775 So.2d 258 (Fla.2001), United States v. Oates, 560 F.2d 45 (2d Cir.1977), and the concurring opinion in Kettle v. State, 641 So.2d 746, 750-51 (Miss. 1994) (Banks, J., concurring). This precise argument was not made to the trial court, however, and, thus, has not been preserved for review by this court. See F.B. v. State, 852 So.2d 226 (Fla.2003) (holding that, except in cases of fundamental error, for an argument asserting error to be cognizable on appeal, the specific contention raised by the argument on appeal must have been asserted as the legal ground for the objection below).

      . The Sixth Amendment to the United States Constitution provides in part that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him....” Article I, section 16 of the Florida Constitution similarly provides that ”[i]n all criminal prosecutions, the accused shall ... have the right to ... confront at trial adverse witnesses....”

      . See People v. Hinojos-Mendoza, 140 P.3d 30, 36 (Colo.Ct.App. 2005):
      A majority of jurisdictions hold that laboratory reports and similar documents are nontestimonial business or public records. See, e.g., People v. Johnson, 121 Cal.App.4th 1409, 18 Cal.Rptr.3d 230 (2004) (laboratory reports routine and nontestimonial documents); Commonwealth v. Verde, 444 Mass. 279, 827 N.E.2d 701 (2005) (laboratory report on weight of cocaine a business record); State v. Dedman, 136 N.M. 561, 102 P.3d 628 (2004) (blood alcohol content reports nontestimonial); People v. Brown, 9 Misc.3d 420, 801 N.Y.S.2d 709 (2005) (DNA testing records nontestimonial); People v. Kanhai, 8 Misc.3d 447, 797 N.Y.S.2d 870 (Crim.Ct.2005) (breathalyzer test results regular business records); People v. Durio, 7 Misc.3d 729, 794 N.Y.S.2d 863 (2005) (autopsy reports business records); Moreno Denoso v. State, 156 S.W.3d 166 (Tex.App. 2005) (autopsy reports nontestimonial); Luginbyhl v. Commonwealth, 46 Va.App. 460, 618 S.E.2d 347 (2005) (petition for rehearing en banc granted Sept. 27, 2005) (report from breathalyzer machine and technician's certificate of calibration business records); cf. Frazier v. State, 907 So.2d 985 (Miss.Ct. App.2005) (pen-packs nontestimonial); People v. Brown, 5 Misc.3d 440, 785 N.Y.S.2d 277 (2004) (statements in presentencing report nontestimonial).


author: PER CURIAM.

text:
    Arthur Lee JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-0092.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2006.

      Judy L. Groover, Cindy Lasky, and William Mallory Kent, Jacksonville, for Appellant.
    Charlie Crist, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the trial court’s summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the trial court erred by denying appellant’s claim that he should be allowed to withdraw his plea due to a manifest injustice, we reverse. We affirm the trial court’s summary denial of appellant’s remaining claims as time barred without further discussion.

On April 27, 2000, appellant entered a plea of convenience to a charge of showing obscene material to a minor and was sentenced to three years of sex offender probation. On April 1, 2004, appellant filed a rule 3.850 motion raising several claims of ineffective assistance of counsel. On May 27, 2004, defense counsel conducted a deposition of the victim in which the victim denied that any sexual abuse had occurred or that appellant had shown her obscene material. On June 1, 2004, appellant filed an amended rule 3.850 motion in which he raised a claim of newly discovered evidence alleging that the victim had recanted her allegations of sexual abuse, and he attached a copy of her deposition to the motion.

On August 10, 2005, the trial court denied both of appellant’s motions as untimely. The court found that appellant’s claim of newly discovered evidence was facially insufficient because he failed to allege that the withdrawal of his plea was necessary to correct a manifest injustice. The trial court also found that the victim’s recantation was suspect because the victim was not represented by an attorney and her parent or guardian was not present during the deposition. Appellant filed a motion for reconsideration with the trial court arguing that he could not have known that his daughter had recanted her testimony because he was not allowed to contact her and that he should be allowed to withdraw his plea in order to correct a manifest injustice. Appellant alleged that both of the victim’s guardians were present during the depositions, and they both had their depositions taken that day. On December 2, 2005, the trial court denied appellant’s motion and this timely appeal follows.

Since appellant is seeking to withdraw his plea of guilty on the basis of newly discovered evidence, it is proper to apply the standard of review for the withdrawal of a plea after sentencing. Scott v. State, 629 So.2d 888, 890 (Fla. 4th DCA 1993). Under this standard, appellant will only be allowed to withdraw his plea upon a showing of manifest injustice. Id.; see also Williams v. State, 316 So.2d 267, 274 (Fla.1975). While it is true that appellant failed to specifically state the magic words “manifest injustice” in his amended motion, appellant does state in his motion that he was “wrongfully convicted,” he has maintained his innocence throughout the proceedings, and he requested a new trial. The record also shows that appellant entered a plea of convenience. Thus, the substance of appellant’s claim is one of manifest injustice and he should not be penalized for failing to use those exact words. Morman v. State, 458 So.2d 88, 90 (Fla. 5th DCA 1984) (determining that the substance of the appellant’s claim was ineffective assistance of counsel even though the appellant did not use the “magic words” and the appellant was entitled to an evidentiary hearing).

The standard of review of a summary denial of a newly discovered evidence claim is that the claims must be either facially insufficient or conclusively refuted by the record in order to uphold the summary denial of the motion. McLin v. State, 827 So.2d 948, 954 (Fla.2002). In this case, appellant attached to his motion a sworn deposition where the victim recanted her allegations of sexual abuse that were the basis of appellant’s conviction. The trial court found that the deposition was not credible because the victim was not represented by counsel and her guardians were not present. Normally, summary denial of a newly discovered evidence claim is inappropriate if the court needs to assess the credibility of the new evidence. Murrah v. State, 773 So.2d 622, 623 (Fla. 1st DCA 2000). The exception to this rule is when the affidavit is inherently incredible or obviously immaterial to the verdict. Stephens v. State, 829 So.2d 945 (Fla. 1st DCA 2002). The deposition in this case does not fall in either category. Therefore, it was error for the trial court to deny appellant’s claim without an eviden-tiary hearing. Accordingly, we reverse the denial of appellant’s claim of newly discovered evidence and remand for an evidentiary hearing.

AFFIRMED in part, REVERSED in part, and REMANDED.

WOLF, LEWIS, and THOMAS, JJ., concur.


text:
    STATE of Florida, Appellant, v. Kaion ROBINSON, Appellee.
    No. 1D06-0034.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2006.
    Charlie Crist, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellant.

      Robert A. Morris of Banks & Morris, P.A., Tallahassee, for Appellee.
   PER CURIAM.

The State of Florida appeals an order wherein the lower court granted Kaion Robinson’s motion filed pursuant to Florida Rule of Criminal Procedure 3.850, concluding that his trial counsel provided ineffective assistance by failing to object to the jury instruction and the prosecutor’s argument regarding burglary of a dwelling that were contrary to the interpretation placed on the statutory definition of burglary by the supreme court in Delgado v. State, 776 So.2d 233 (Fla.2000), which held that a defendant does not “remain in” a structure under the provisions of section 810.02(1), Florida Statutes (1989), unless he or she does so surreptitiously. The state contends that the lower court erred in ordering a new trial, because the legislature nullified the holding of Delgado in chapter 2004-93, Laws of Florida, codified at section 810.015, Florida Statutes (2004). We disagree and affirm.

Robinson was charged with committing, on January 5, 2000, (I) burglary of a dwelling with intent to commit battery, with an assault therein, and (II) battery. Through cross-examination, Robinson’s trial counsel attempted to show that he had permission to enter the dwelling of his former girlfriend and that he did not assault or batter her. Although counsel mentioned the recently issued Delgado opinion while arguing for a judgment of acquittal, counsel did not object to the jury instruction or prose-cutorial argument that described burglary as entering or remaining in a structure with intent to commit an offense therein. Contrary to Delgado, the instruction and argument did not distinguish between entering the dwelling without permission with the intent to commit a crime therein, and entering by invitation but surreptitiously remaining therein with intent to commit a crime. The jury found Robinson guilty of the lesser-included offense of burglary of an occupied dwelling, and not guilty of battery.

During the pendency of Robinson’s direct appeal, in which he did not raise an issue under Delgado, the legislature enacted chapter 2001-58, Laws of Florida, codified at paragraphs (1) through (3) of section 810.05, Florida Statutes (2002), nullifying Delgado, reinstating prior case law wherein “remaining in” was not required to be surreptitious, and providing that the law was retroactive to February 1, 2000, which was two days before the supreme court issued the initial Delgado opinion. This court per curiam affirmed Robinson’s conviction. Robinson v. State, 816 So.2d 613 (Fla. 1st DCA 2002).

Robinson filed a timely post-conviction motion seeking a new trial consistent with the holding in Delgado, and while the motion was pending, the supreme court issued State v. Ruiz, 863 So.2d 1205 (Fla. 2003), which considered the effect of chapter 2001-58. The court did not decide whether chapter 2001-58 had legislatively overruled Delgado, but interpreted the amendment to mean that the statute did not apply to conduct that had occurred before February 1, 2000. Accord Fitzpatrick v. State, 859 So.2d 486 (Fla.2003); Floyd v. State, 850 So.2d 383 (Fla.2002).

In the next session, however, the legislature enacted chapter 2004-93, Laws of Florida, effective May 21, 2004, codified at paragraphs (4) through (6) of section 810.015. The later amended statute stated that Ruiz was contrary to legislative intent and was nullified, and that the date of February 1, 2000, provided in the previous chapter 2001-58 for its retroactive effect, was intended to restore the law as it stood before the initial Delgado opinion was issued on February 3, 2000. The statute provided in pertinent part:

(4) The Legislature finds that the cases of Floyd v. State, 850 So.2d 383 (Fla.2002); Fitzpatrick v. State, 859 So.2d 486 (Fla.2003); and State v. Ruiz/State v. Braggs [863 So.2d 1205], Slip Opinion Nos. SC02-389/SC02-524 were decided contrary to the Legislative intent expressed in this section. The Legislature finds that these cases were decided in such a manner as to give subsection (1) no effect. The February 1, 2000, date reflected in subsection (2) does not refer to an arbitrary date relating to the date offenses were committed, but to a date before which the law relating to burglary was untainted by Delgado v. State, 776 So.2d 233 (Fla.2000).
(5) The Legislature provides the following special rules of construction to apply to this section: •
(a) All subsections in this section shall be construed to give effect to subsection (i);
(b) Notwithstanding s. 775.021(1), this section shall be construed to give the interpretation of the burglary statute announced in Delgado v. State, 776 So.2d 233 (Fla.2000), and its progeny, no effect; and
(c) If language in this section is susceptible to differing constructions, it shall be construed in such manner as to approximate the law relating to burglary as if Delgado v. State, 776 So.2d 233 (Fla.2000) was never issued.
(6)This section shall apply retroactively.

At the hearing below, the court directed the parties to consider the effect of chapter 2004-93 on Robinson’s case, but the court did not refer to the amended statute in its final order vacating Robinson’s conviction and ordering a new trial. The court observed that Robinson was charged with committing burglary and battery on January 5, 2000, and thus he fell within the Ruiz window and Delgado applied to his case. It concluded as follows:

The Court finds that counsel’s failure to object to the jury instructions and the prosecutor’s argument amounted to ineffective assistance of counsel. Counsel was aware of Delgado v. State, since she cited it to the court in support of her request for a judgment of acquittal. Therefore, her failure to argue that Delgado also required a change to the jury instructions is difficult to explain and amounted to a deficient performance. There is a reasonable likelihood that absent this error, the jury’s decision would have been different. In order to convict under Delgado, the jury would have had to determine that at the time of defendant’s entry into the home, he had already formed the intent to batter Jedohne Davis. There is a reasonable likelihood that the jury would not have so found. Therefore, the judgment cannot stand.

The lower court’s ruling ordering a new trial pursuant to Delgado was correct. See Wiggins v. State, 933 So.2d 1224 (Fla. 1st DCA 2006) (reversing trial court’s summary denial of 3.850 motion raising ineffective assistance for failing to object to the omission of “surreptitiously” to modify the “remaining in” language in burglary jury instruction, pursuant to Delgado). If the state proved that Robinson was not invited in, it was required to prove he entered through the window with the intent to batter the victim, and not that his intent arose after his entry was accomplished. If the jury had believed the defense' — -that Robinson’s entry was consensual — it could not have convicted him of burglary under Delgado, because the record shows there was nothing surreptitious about his remaining inside the dwelling.

We must, however, determine the effect of chapter 2004-93 on Robinson’s case, which is an issue of first impression, requiring de novo review. Pursuant to two decisions from this court rejecting the legislature’s first attempt to nullify Delgado in chapter 2001-58, the attempt to nullify Ruiz and Delgado in chapter 2004-93 is also ineffective.

Just after the supreme court issued Ruiz, this court decided Foster v. State, 861 So.2d 434 (Fla. 1st DCA 2003) (on mot for reh’g), review denied, 880 So.2d 1212 (Fla.2004), which was a direct appeal of a burglary conviction wherein Foster claimed that Delgado required reversal, because it was a disputed fact whether he had formed an intent to commit theft before he entered the store, or whether he had devised such intent while inside the store, although he did not remain inside it surreptitiously. This court reversed, concluding that Delgado remained valid even after the legislature’s enactment of chapter 2001-58. Although we acknowledged that chapter 2001-58 could be viewed as clarifying the legislative intent that pre-Delgado case law should control, we concluded that the legislature could not nullify a decision of the supreme court, and observed that the supreme court had not overruled Delgado. In so doing, we made the following pertinent observations:

Special care must be exercised in interpreting criminal statutes where subsequently enacted legislation is considered, because the Florida Constitution restricts legislative power by forbidding statutes that authorize sanctions, and proscribing the application of later enacted statutes that “affect prosecution,” for conduct that has already occurred. See Art. X, § 9, Fla. Const. (“Repeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed.”)[.] These constitutional restrictions on retrospective criminal statutes apply with full force to legislation explicitly purporting to nullify a judicial decision that has given a criminal statute a definitive gloss.

Id. at 439-40 (footnotes and citations omitted). The court also quoted from State v. Smith, 547 So.2d 613, 616 (Fla.1989): “Although legislative amendment of a statute may change the law so that prior judicial decisions are no longer controlling, it does not follow that court decisions interpreting a statute are rendered inapplicable by a subsequent amendment to the statute.” Foster, 861 So.2d at 441. Finally, the court decided:

By the time appellant stood trial, the Delgado court’s new, definitive construction of section 810.02(1) was binding. The offense allegedly occurred before chapter 2001-58, section 1, Laws of Florida, took effect. By the time chapter 2001-58 was enacted, the Delgado court had already announced the controlling construction of section 810.02(1), Florida Statutes (1989), as to all cases not yet final as of August 24, 2000. The Legislature was powerless to alter the chronology of these historical facts or to blink their constitutional significance.

Id.

This court reiterated its holding in Foster in Davis v. State, 892 So.2d 518 (Fla. 1st DCA 2004), review dismissed, 895 So.2d 404 (Fla.2005), and 902 So.2d 792 (Fla.2005), wherein, on direct appeal, it reversed Davis’s conviction for burglary, because the trial court had instructed the jury on “remaining in” a structure when the evidence could not support a surreptitious remaining. In both Foster and Davis, the offenses were committed after February 1, 2000, and thus the Ruiz construction of the statute would not have applied to those cases, as it does apply to the offense in the present case, committed on January 5, 2000.

The language in Foster, quoted in Davis, concluding that the legislature did not have the constitutional authority to nullify Delgado, applies equally to the legislature’s attempt to nullify Delgado and Ruiz by its enactment of chapter 2004-93.

AFFIRMED.

ERVIN, WEBSTER, and BENTON, JJ., concur.

      . The supreme court issued Delgado v. State, 25 Fla. L. Weekly S79 (Fla.2000), on February 3, 2000. Robinson's trial was held August 16, 2000. On August 24, 2000, the court issued a revised opinion in Delgado v. State, 776 So.2d 233, 241 (Fla.2000), wherein it stated that its decision would not apply retroactively to convictions that had then become final.


text:
    James SANDERS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-1246.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2006.
    James Sanders, pro se, Petitioner.
    Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the September 30, 2005, order denying a motion for postconviction relief in Liberty County Circuit Court case number 01^45-CFA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

BARFIELD, PADOVANO, and HAWKES, JJ., concur.


text:
    Rollie L. BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1979.
    District Court of Appeal of Florida, Second District.
    Sept. 1, 2006.
   PER CURIAM.

Rollie L. Baker appeals the denial of his “petition to reverse declaratory judgment” concerning his designation as a sexual predator. The postconviction court treated the petition as a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a) and summarily denied the petition on the merits. Because Baker’s direct appeal, which raises the same issues raised in Baker’s petition, is currently pending in this court, the postconviction court did not have jurisdiction to rule on his petition. Rule 3.800(a) specifically provides that a 3.800(a) motion may not be filed “during the pendency of a direct appeal.” See Matthews v. State, 889 So.2d 893 (Fla. 2d DCA 2004); Schrader v. State, 890 So.2d 312 (Fla. 2d DCA 2004). We therefore reverse the postconviction court’s order and remand for entry of an order of dismissal.

Reversed and remand.

WHATLEY, CANADY, and VILLANTI, JJ., Concur.


author: MAY J.

text:
    Donald H. HAMILTON and Cheri B. Hamilton, Appellants, v. FORD MOTOR COMPANY, a foreign corporation, Appellee.
    No. 4D04-4955.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 2006.

      Rebecca J. Covey of Rebecca J. Covey, L.L.C., Fort Lauderdale, for appellants.
    Wendy F. Lumish and Alina Alonso of Carlton Fields, P.A., Miami, for appellee.
   ON MOTION S FOR CLARIFICATION

MAY J.

We grant the parties’ motions for clarification, withdraw our prior opinion, and substitute this opinion in its place. The plaintiffs appeal an attorney’s fees judgment raising multiple issues. We reverse in part, and remand for further proceedings consistent with this opinion.

The plaintiffs initiated an arbitration proceeding against Ford Motor Company alleging their new truck was defective. The Arbitration Board denied relief. The plaintiffs then filed a complaint alleging claims under the Motor Vehicle Warranty Enforcement Act, section 681.112, Florida Statutes (2002) [Florida Lemon Law Act] and the Magnuson-Moss Warranty Act, 15 U.S.C. § 2310.

On June 12, 2003, the defendant served an offer of judgment on the plaintiffs in the amount of $100,000. The plaintiffs rejected the offer. The jury subsequently rendered a verdict for the plaintiffs of $76,240 on the Magnuson-Moss Warranty Act claim. Following the verdict, the defendant filed the offer of judgment with the trial court.

The plaintiffs then moved to compel the defendant to repurchase the vehicle and brand the title as a “lemon.” They also moved for attorney’s fees, seeking a lodestar amount of $152,227 and a 2.5 multiplier. On March 29, 2004, the trial court “denied” the plaintiffs’ motion to compel in part, awarding them equitable relief in the form of access to the motor vehicle at the dealership for the purpose of removing it.

At the hearing on the plaintiffs’ motion for attorney’s fees and costs, each side presented expert testimony. The plaintiffs’ expert testified that a reasonable hourly rate was $300-$400 per hour, the total number of hours expended (408) was reasonable, and a multiplier of 1.5 to 2.5 was appropriate. The defendant’s expert testified to a reasonable hourly rate of $200-$250 per hour. He further opined that if the fees stopped accruing on the date the offer of judgment was served, then 111 hours was reasonable, of which “probably 70 to 80 percent might have been recoverable.” Analyzing the number of hours through the date of the hearing, however, he opined that 250 hours would have been reasonably expended.

The trial court denied the plaintiffs’ request for a multiplier finding “that Plaintiffs were not substantially prevailing parties under the ... [Florida] Lemon Law.” It found time spent by plaintiffs’ counsel traveling and performing “ministerial and clerical” tasks should be deducted from the documented hours. When the court signed the order, however, it left the space provided for the number of reasonable hours blank. The trial court then found $250 per hour to be a reasonable hourly rate.

The order also contained the following paragraph:

F. The Court finds persuasive the testimony of Defendant’s expert witness, Glen Goldsmith, Esquire, that the offer of judgment has the effect of cutting off attorney fees from the date of said offer, when Plaintiffs would have been better off accepting the offer of judgement than going through with the litigation of their claim. Thereby, the Court finds that Plaintiffs’ counsel costs and expenses from the date of the offer of judgment forward should be borne by Plaintiffs’ counsel. Ford’s written offer of judgment/proposal for settlement of June 12, 2003, would have made the plaintiffs whole thereby, attorney fees incurred after said offer of judgment do not accrue, since a party cannot continue to incur attorney fees after a legitimate offer of settlement. Scottsdale Ins. Co. v. DeSalvo, 748 So.2d 941, 943 (Fla. 1999).

The trial court awarded the plaintiffs $75,000 in attorney’s fees and costs “accrued up to the time [the defendant] served the Offer of Judgment.” The trial court disallowed any costs and expenses covered in the overhead of the law office, and denied attorney’s fees for time expended in litigating the fee issue.

Each party filed a motion for clarification. The trial court then rendered a new order. In the new order, the trial court found 300 hours to have been reasonably expended on the case.

The plaintiffs first suggest the trial court erred in not awarding attorney’s fees for the full 408 hours requested because they prevailed on both their Magnuson-Moss Warranty Act and Florida Lemon Law Act claims. We disagree. The Mag-nuson-Moss Warranty Act provides:

If a consumer finally prevails in any action brought under paragraph (1) of this subsection, he may be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of cost and expenses (including attorneys’ fees based on actual time expended) determined by the court to have been reasonably incurred by the plaintiff for or in connection with the commencement and prosecution of such action, unless the court in its discretion shall determine that such an award of attorneys’ fees would be inappropriate.

15 U.S.C. § 2310(d)(2) (2002) (emphasis added).

“As suggested by the statutes, an award of attorneys’ fees is not automatic; rather, the party seeking fees bears the burden of proving that the fee request is reasonable by submitting evidence to support the hours worked and the rates charged.” Hines v. Chrysler Corp., 971 F.Supp. 212, 214 (E.D.Pa.1997) (citation omitted); Gill v. Bluebird Body Co., 353 F.Supp.2d 1265, 1268-69 (M.D.Ga.2005). Similarly, under the Florida Lemon Law Act, “[t]he court shall award a consumer who prevails in such action the amount of any pecuniary loss, litigation costs, reasonable attorney’s fees, and appropriate equitable relief.” § 681.112(1), Fla. Stat. (2002) (emphasis added). In other words, these statutes allow for an award of reasonable attorney’s fees, they do not mandate an award equal to that requested by the consumer.

The plaintiffs next argue the trial court erred in relying on an improperly filed offer of judgment and improperly admitted expert testimony in deciding the amount of attorney’s fees. We agree that the defendant should not have filed the rejected offer of judgment because the plaintiffs’ recovery was not 25% less than the offer. See § 768.79(1), Fla. Stat. (2002). We also agree that the court should not have admitted the defense expert’s testimony concerning the rejected offer of judgment. Aid, it is clear from paragraph F. of the order that the court referenced not only the wrongly filed offer, but the defense expert’s testimony. For these reasons, the order must be reversed.

The plaintiffs’ third argument concerns whether fees can be awarded for time spent litigating the issue of attorney’s fees. They argue that the Magnuson-Moss Warranty Act controls state law in this area and entitles them to attorney’s fees incurred in litigating the fee issue. We agree.

Federal courts “have consistently held that attorneys may be awarded, under statutory fee authorizations, compensation for the expenses of and time spent litigating the issue of a reasonable fee [i]. e. for time spent on the fee application and successful fee appeals.” Prandini v. Nat'l Tea Co., 585 F.2d 47, 53 (3d Cir.1978) (emphasis added). The Magnuson-Moss Warranty Act is a fee authorization statute. The plaintiffs may therefore recover attorney’s fees for time spent on litigating this issue.

The use of the word “may” indicates the trial court has discretion in awarding such fees. Here, the order simply stated the court “denie(d) Plaintiffs’ request for attorney fees expended litigating the issue of attorneys’ fees.” It is unclear if the trial court denied the plaintiffs’ request because it believed it did not have the discretion to award attorney’s fees for time spent litigating the issue of a reasonable fee or because it simply denied the plaintiffs’ request for attorney’s fees for litigating this issue. Upon remand, the trial court may revisit this issue should it choose to do so.

The plaintiffs next claim the trial court erred in adopting the defendant’s proposed order for attorney’s fees and that the order was inconsistent with the court’s prior rulings. See Perlow v. Berg-Perlow, 875 So.2d 383, 384 (Fla.2004). As we are reversing and remanding the case, this issue is now moot.

The plaintiffs next argue the trial court incorrectly found they were not the substantially prevailing party in their Florida Lemon Law Act claim and that they are entitled to a multiplier. The defendant argues the plaintiffs were not the substantially prevailing party under the Florida Lemon Law Act because the trial court specifically denied their requested equitable relief.

The test for determining the substantially prevailing party is “whether the party succeeded on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Padow v. Knollwood Club Ass’n, 839 So.2d 744, 745 (Fla. 4th DCA 2003) (internal quotations and citations omitted). In this case, the plaintiffs sought to have the defendant repurchase the motor vehicle and notify the Department of Motor Vehicles of the repurchase. See §§ 681.104(2)(a), 681.114(1), Fla. Stat. (2002). The trial court denied this relief, but allowed the plaintiffs access to the defendant’s dealership to retrieve the vehicle. Because the plaintiffs did not prevail in their requested relief, they were not the substantially prevailing parties on their Florida Lemon Law Act claim.

And last, the plaintiffs argue, and the defendant agrees, the trial court erred in failing to award costs under the Magnu-son-Moss Warranty and Florida Lemon Law Acts, and interest on the attorney’s fees judgment. Upon remand, the trial court should address these issues.

Reversed and Remanded.

STONE and GROSS, JJ., concur.

      . The defendant offered the plaintiffs $100,000. The jury awarded them $76,240. This rendered the offer of judgment inadmissible. § 768.79(8), Fla. Stat. (2002).

      . In Florida, generally, "statutory fees may be awarded for litigating the issue of entitlement to attorney's fees but not the amount of attorney’s fees.” State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830, 833 (Fla.1993). As the total number of hours expended is not broken down between the Florida Lemon Law and the Magnuson Moss Warranty Act, the plaintiffs may be entitled to the hours spent in litigating the fee issue as they relate to the Magnuson Moss Warranty Act claim.


author: TAYLOR, J.

text:
    William S. ABRAMSON, Appellant, v. Jerald S. BEER, Appellee.
    No. 4D06-3319.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 2006.
    William S. Abramson, West Palm Beach, pro se.
    Gerald F. Richman, John G. White, III and Leora B. Freire of Richman Greer Weil Brumbaugh Mirabito & Christensen, P.A., West Palm Beach, for appellee.
   TAYLOR, J.

William S. Abramson, a registered voter in Palm Beach County, appeals the denial of his petition for a mandatory injunction requiring the Secretary of State to order the Supervisor of Elections to remove from the September 5, 2006 election ballot the name of Jerald S. Beer, a candidate for circuit court judge, Group 13. Abramson asserted that Beer was required to resign from his position as a traffic court hearing officer in order to seek election to judicial office, under Florida’s “resign-to-run” law, section 99.012, Florida Statutes (2005). Because Abramson failed to name either the Secretary of State or the Supervisor of Elections as a defendant in this suit, we affirm without ruling on the merits. An election official is an indispensable party to proceedings for the injunctive ballot relief sought in this case. See McAdoo v. Moses, 101 Fla. 936, 132 So. 638, 639 (1931) (holding that “all persons materially interested, either legally or beneficially, in the subject matter of a suit, must be made parties, either as complainants or defendants, so that a complete decree may be made binding on all parties”) (quoting Robinson v. Howe, 35 Fla. 73, 17 So. 368 (1895)); see also Fla. R. Civ. P.1.610(c).

Affirmed.

SHAHOOD and GROSS, JJ., concur.


text:
    Judy Ann KEETER, Appellant, v. Cebron L. KEETER, Becky E. Keeter and Robert L. Keefer, Appellees.
    No. 1D05-2908.
    District Court of Appeal of Florida, First District.
    Sept. 5, 2006.
    Herbert T. Sussman of Boyer, Tanzler & Sussman, P.A., Jacksonville, for Appellant.
    Kevin S. Sanders, Jacksonville, for Ap-pellees.
   PER CURIAM.

Appellant argues that the final summary judgment entered by the trial court in favor of appellees should be reversed because of disputed issues of fact. We agree that there is a disputed issue of fact whether appellant fulfilled the obligations required by the Agreement for Deed at issue in the case. Therefore, we REVERSE and REMAND for a trial.

ALLEN, DAVIS, and POLSTON, JJ., concur.


text:
    Leon BRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-5611.
    District Court of Appeal of Florida, First District.
    Sept. 5, 2006.
    Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We reverse appellant’s sentence, because it exceeds the five-year statutory maximum for a third-degree felony, and remand for resentencing. See Ashley v. State, 850 So.2d 1265 (Fla.2003); White v. State, 892 So.2d 541 (Fla. 1st DCA 2005).

REVERSE and REMAND for further consistent proceedings.

ERVIN, WEBSTER, and HAWKES, JJ., concur.


text:
    J.F., Mother of T.J.C. and A.C., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D06-777.
    District Court of Appeal of Florida, Fifth District.
    Sept. 6, 2006.
    David T. Young of David T. Young, P.A., Rockledge, for Appellant.
    Charles D. Peters, Orlando, for Appel-lee.
    Thomas Wade Young, Orlando, for Guardian ad Litem.
   PER CURIAM.

We affirm the termination of the parental rights of the mother, J.F., with respect to her children, A.C. and T.J.C. After careful review we conclude that J.F. was properly served with notice of the termination hearing; that there was clear and convincing evidence that termination of J.F.’s rights was in the best interest of the children; and that the trial judge properly denied J.F.’s motion to set aside default judgment because J.F. failed to satisfy the three-part test set forth in E.S. v. Dep’t of Children & Family Servs., 878 So.2d 493, 496 (Fla. 3d DCA2004).

AFFIRMED.

PLEUS, C.J., ORFINGER, and MONACO, JJ., concur.