author: PER CURIAM. MAKAR, J.,

text:
    C. M., Natural Mother of T. M., Minor Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    CASE NO. 1D16-4711
    District Court of Appeal of Florida, First District.
    Opinion filed February 16, 2017.
    Valarie Linnen, Atlantic Beach, for Appellant.
    Ward L. Metzger Appellate Counsel, Jacksonville, for Appellee Department of Children and Families.
   ON MOTION TO STRIKE ANSWER BRIEF

PER CURIAM.

Appellant’s Motion to Strike Answer Brief of Guardian Ad Litem as Untimely Filed is granted.

RAY and WINSOR, JJ., concur; MAKAR, J., concurring with opinion.

MAKAR, J.,

concurring.

Billable hours, client pressures, and law school debt escalate attorney stress; so too with figuring out filing deadlines. What seems simple often isn’t, and what seems complex typically is. Take this court’s order of December 27, 2016, which said that the “answer brief shall be filed within 16 days of the date of this order.” Fifteen calendar days from the order was January 11, 2017, but the Guardian Ad Litem (GAL) waited until January 17, 2017, to file its answer brief based on its view that it had 16 days plus extra time under a “standard” “three-day ‘mailbox rule.’ ”

No such rule exists, but there is a five-day “service by mail or email” rule within rule 2.514, Florida Rules of Judicial Administration (entitled “Computing and Extending Time”), which was adopted on October 1, 2012, taking the place of former rules 1.090(e), Florida Rule of Civil Procedure and 9.420 (e) & (f), Florida Rules of Appellate Procedure. See In re Amendments to Fla. Rules of Judicial Admin., Fla. Rules of Civil Procedure, Fla. Rules of Criminal Procedure, Fla. Rules of Civil Procedure for Involuntary Commitment of Sexually Violent Predators, Fla. Prob. Rules, Fla. Rules of Traffic Court, Fla. Rules of Juvenile Procedure, Fla. Rules of Appellate Procedure, & Fla. Family Law Rules of Procedure-Computation of Time, 95 So.3d 96, 99 (Fla. 2012).

Does rule 2.514 apply to the court order in this case setting a briefs filing deadline, such that the GAL’s brief was timely? Caselaw under the former rules said no: judicial orders are outside the scope of those rules unless the orders so specified. See e.g., Jewish Fed’n of Palm Beach Cty., Inc. v. Rapaport, 682 So.2d 1149, 1151 (Fla. 4th DCA 1996) (Rule 1.090(e) “does not apply when a judge has directed that something be filed with the court at a specified time, unless the judge’s directive makes clear that additional time for performance after the mailing of the qualifying paper is permitted.”); see also Smith v. Sylvester, 82 So.3d 1159, 1161-62 (Fla. 1st DCA 2012) (Rule 9.420(e) does not provide a five-day extension “when an order sets a date certain, even by reference to a specified number of days from a date noted in the order .... ”); Gillespie v. City of Destin, 946 So.2d 1195, 1198 (Fla. 1st DCA 2006) (no five-day extension because time for filing of brief depended on a court order rather than the “service of a preceding document”); Hightower v. Berry, 490 So.2d 1029, 1029-30 (Fla. 1st DCA 1986) (no five-day extension where “order extending the time for serving the initial brief’ specified a deadline of “to and including April 9, 1986”).

Given this caselaw, it is sensible to interpret rule 2.514 as not applying to judicial orders as well, even though its text does not clearly say so. Subsection (a) of the new rule, which relates to the computation of time, says that it applies “in computing time periods specified in any rule of procedure, local rule, court order, or statute that does not specify a method of computing time.” Rule 2.514(a), Fla. R. Jud. Admin, (emphasis added). It may be that “court order” was meant to include only generally-applicable administrative ones versus a single order in a discrete case, but it doesn’t explicitly say so. For this reason, it makes sense to compute time in a judicial order according to subsection (a), which this Court has said is the first of two steps in McCray v. State, 151 So.3d 449, 450-51 (Fla. 1st DCA 2014):

Thus, it appears that computing the additional time allowed after service by mail is now a two-step process. The first step involves determining when the original period would have expired under subdivision (a) of the rule.... In the second step, five days are added to the result of the computation under subdivision (a) .... [Assuming we have correctly construed the rule, the computation methodology described above will apply in a host of different situations, and as this case exemplifies, may yield different results than would have obtained under the former rules.

McCray, however, did not involve a court order specifying a briefs filing deadline. Instead, it involved the calculation of the last day for a trial judge to rule on a motion for disqualification, which was to be within 30 days after service.

Since its adoption in 2012, there have been a handful of cases interpreting it, almost all of which involved the untimely filing of a notice of appeal or petition for certiorari, both of which have 30-day jurisdictional deadlines that run from the rendition of the order to be reviewed. See Johnston v. State, 202 So.3d 976, 977 (Fla. 1st DCA 2016) (notice of appeal); Medley Plaza, Inc. v. Rama Fund, LLC, 196 So.3d 512 (Fla. 3d DCA 2016) (notice of appeal); Donaldson v. State, 136 So.3d 1281, 1282 (Fla. 2d DCA 2014) (notice of appeal); Matheny v. Indian River Fire Rescue, 174 So.3d 1129, 1130 (Fla. 1st DCA 2015) (petition for certiorari); Miccosukee Tribe of Indians of Fla. v. Lewis, 122 So.3d 504, 506 (Fla. 3d DCA 2013) (petition for certiora-ri).

Although no case has addressed the new rule’s application to a court’s briefing order, no reason exists to upset the apple cart by interpreting the new rule differently than its predecessors.

An argument exists that it could apply to judicial orders mailed or emailed to litigants. First, as mentioned, subsection (a) explicitly includes “court order” within its application. Second, the focus of subsection (b) is to provide additional time when service of a document is via mail or e-mail, stating:

(b) Additional Time after Service by Mail or E-mail. When a party may or must act within a specified time after service and service is made by mail or email, 5 days are added after the period that would otherwise expire under subdivision (a).

Fla. R. Jud. Admin. 2.514(b). Clerks of court are required to serve orders and decisions on the parties.

(b) Service.

(2) By the Clerk of Court. A copy of all orders and decisions shall be transmitted, in the manner set forth for service in rule 9.420(c), by the clerk of the court to all parties at the time of entry of the order or decision, without first requiring payment of any costs for the copies of those orders and decisions....

Fla. R. App. P. 9.420. Thus, at least on its face, the confluence of rules 2.514(b) and 9.420(b)(2) plausibly supports the proposition that an additional five days may apply when a “court order” is “served” on the parties by the clerk, as in this case.

But caselaw under the former rules made the critical distinction that when a court order requires the filing of a document, versus the service of one, that ends the inquiry, and no additional time is allowed absent the court order saying so.

Rule 9.420(d) does not permit a party to add five days to the due date when, as here, a document is due to be either served or filed by a specified date. If a document is to be served by a specified date, the certificate of service must bear a date no later than that specified.3 However, if a document is to be filed by a date certain, that document must be physically lodged in the clerk’s office no later than that specified date.

Hightower v. Berry, 490 So.2d 1029, 1030 (Fla. 1st DCA 1986) (footnotes omitted) (emphasis added). Today, filing generally means electronic filing. See Fla. R. Jud. Admin. 2.516 & 2.525 (2017). Thus, where a litigant receives a court order setting a filing deadline, the judicial requirement of filing trumps the fact that the order was received “after service and service is made by mail or e-mail” via the clerk’s office. See Donaldson, 136 So.3d at 1282 (Rule 2.514(b) “provides that the automatic five-day extension applies only when some act is required to be done after service of a document by mail, not when the act is required to be done after rendition or filing of an order, even if the rendered order is mailed to the parties.”).

All this said, the takeaway is that nothing has changed: when a court orders that a document be filed by a “date certain” or “even by reference to a specified number of days from a date noted in the order,” the additional time afforded by rule 2.514(b) is unavailable. Smith, 82 So.3d at 1161-62. For clarity’s sake, consideration should be given to adding this language (or the like) at the end of subsection (b): The additional time available under this subsection does not apply when a court order requires filing on or by a specific date or time, unless the order specifically provides that this subsection shall apply. Because this Court’s order specified that filing was to occur by a date certain, the GAL’s brief was untimely and subject to being stricken. See Fla. R. App. P. 9.410(a) (2017) (providing that violation of rules may result in “reprimand, contempt, striking of briefs or pleadings, dismissal of proceedings, costs, attorneys’ fees, or other sanctions”). Striking an appellate brief is harsh, particularly where it might lead to a dismissal on the merits. That’s because “[pjublic policy in Florida favors deciding controversies on their merits, even when an initial brief is untimely filed.” Lindsey v. King, 894 So.2d 1058, 1060 (Fla. 1st DCA 2005). Pragmatically, striking the GAL’s brief in this case doesn’t affect its outcome because the Department of Children and Families timely filed its answer brief, which fully addressed the merits. But the GAL’s lack of any citation of authority whatsoever or claim of good faith mistake in its response makes doing so appropriate here.


source: Caselaw Access Project

author: Ciklin, C.J.

license: Public Domain

text:
    CITY OF HOLLYWOOD, Florida, Appellant, v. Lyle BIEN, Norris Redding, Derrick Austin, and Mark Ruggles, Appellees.
    No. 4D15-2632
    District Court of Appeal of Florida, Fourth District.
    [December 14, 2016]
    David C. Miller and Michael L. Elkins of Bryant Miller Olive P.A., Miami, for appellant.
    William R. Scherer, III, of the Scherer Law Firm, Fort Lauderdale, and Albert L. Frevola, Jr. and Russell R. O’Brien of Conrad & Scherer, LLP, Fort Lauderdale, for appellees.
   Ciklin, C.J.

The plaintiffs in the lawsuit below are four police officers who were employed by the City of Hollywood (“the City”). By virtue of their age, each officer became eligible to enter the Deferred Retirement Option Plan (“DROP”), a feature of the City’s retirement system, but they wished to defer their entry in order to increase their monthly retirement payment. Before they were ready to enter DROP, the City passed an ordinance which imposed a deadline on entry into this aspect of the City’s retirement program. The officers brought suit, seeking a declaration that the ordinance constituted an unconstitutional impairment of their right to contract and an unlawful taking of private property without compensation. Because the change to the retirement plan was a prospective one, we reverse the trial court’s judgment which found in favor of the officers, and remand for further proceedings.

The City’s retirement plan for its police officers included the option of DROP, which allowed eligible officers to commence their monthly retirement payments and have them placed into an interest-bearing account while the officers continued to work and receive wages. Under the City’s retirement scheme, an officer became eligible to enter DROP either by reaching the age of fifty or completing twenty-two years of creditable service. However, upon applying for entry into DROP, an officer was required to retire within the lesser of eight years or when the officer had accrued a total of thirty years of employment with the City. Before the enactment of the ordinance at issue, officers who became eligible to enter DROP were not required to do so immediately upon qualifying — and could defer their entry.

In an attempt to resolve its financial problems, the City adopted an ordinance in September 2011 which “froze” the accrual of benefits under the retirement system that had been in place, but provided an exception for officers who were eligible to retire with normal retirement benefits on September 30, 2011:

[F]or any member who is eligible to retire with normal retirement benefits on September 30, 2011, the benefit structure in effect on September 30, 2011 shall remain in effect beyond September 30, 2011 and shall not be frozen, except that any such member who does not enter the DROP on or before September 30, 2011 shall not be eligible to enter the [DROP] after September 30, 2011 ....

On September 30, 2011, the four officers involved in this appeal met the age requirement to enter DROP, but based on the calculation method for monthly retirement payments, entry on that date would have resulted in a smaller monthly retirement payment than if they had been able to defer entry, as permitted prior to the passage of the ordinance.

In response to the ordinance, three of the officers submitted their DROP applications, but they provided that their entry into DROP was not effective until dates occurring after September 30, 2011. The City did not recognize their purported prospective entries into DROP.

The four officers brought suit for declaratory relief, and requested the trial court find that the ordinance constituted a substantial impairment of their contract rights and a taking of private property without full compensation. After a bench trial, the trial court ruled in favor of the officers.

On appeal, the parties dispute whether the officers had a vested interest in delayed entry into DROP and, if so, whether the City proved it had a compelling interest in amending the retirement plan. Because we find that the ordinance was a permissible prospective amendment which did not impair vested contract rights, we need not consider the second issue. Additionally, on the facts of this case, we find no merit in the jurisdictional issue the City raises.

Article I, section 10 of the Florida Constitution provides that no “law impairing the obligation of contracts shall be passed.” Article X, section 6(a) of the Florida Constitution provides in pertinent part that “[n]o private property shall be taken except for a public purpose and with full compensation therefor paid to each owner or secured by deposit in the registry of the court and available to the owner.”

“[W]hether in a voluntary or mandatory plan, once a participating member reaches retirement status, the benefits under the terms of the act in effect at the time of the employee’s retirement vest. The contractual relationship may not thereafter be affected or adversely altered by subsequent statutory enactments.” Fla. Sheriffs Ass’n v. Dep’t of Admin., Div. of Ret., 408 So.2d 1033, 1036 (Fla. 1981).

A recent Florida Supreme Court opinion illustrates why we must find that a prospective change to retirement benefits does not operate as an impairment of a contract or an unconstitutional taking. In Scott v. Williams, 107 So.3d 379, 381 (Fla. 2013), state employees challenged provisions of a statute which converted the state retirement system from noncontributory to contributory, required current members to contribute three percent of their salaries to the system, and eliminated the retirement cost-of-living adjustment for creditable service after the effective date of the act. In determining that the statute did not impair a contractual right, the court looked to its decision in Florida Sheriffs, and observed that it had “recognized the authority of the Legislature to amend a retirement plan prospectively, so long as any benefits tied to service performed prior to the amendment date are not lost or impaired.” Id. at 388-89. The court found that the changes to the retirement system were prospective in nature and thus “within the authority of the Legislature to make.” Id. at 389. Further, the court found that the statute did not impair any statutorily created contract rights, and thus did not result in an unconstitutional taking. Id.

Likewise, the ordinance at issue here did not impair any contract rights or operate as an unconstitutional taking of private property. Instead, it permitted officers already eligible to enter DROP to do so and to enjoy the full benefits of DROP, albeit with an imposed deadline for entry. We find that this was a permissible prospective change to the retirement plan. Accordingly, we reverse the order on appeal and remand for the trial court to determine whether, under the terms of the DROP plan, the appellees’ DROP application permits them to enter DROP as of the deadline date, withdraw their DROP application, or whether their attempt to enter DROP beyond the deadline date renders their application a nullity.

Reversed and remanded for further proceedings.

May and Damoorgian, JJ., concur.

      . A fourth officer did not apply for or enter DROP.


author: Per Curiam.

text:
    A.L., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-188
    District Court of Appeal of Florida, Fourth District.
    [December 14, 2016]
    Carey Haughwout, Public Defender, and Virginia Murphy, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   Per Curiam.

In this Anders appeal, we affirm the finding of guilt, the withholding of adjudication of delinquency, and the placement of the child on probation, but remand for the trial court to correct the delinquency disposition order to reflect all of the required information. See Fla. R. Juv. P. 8.115(d); T.H.C. v. State, 186 So.3d 597 (Fla. 4th DCA 2016); T.J. v. State, 174 So.3d 1070 (Fla. 4th DCA 2015); A.M.R. v. State, 134 So.3d 502, 503 (Fla. 4th DCA 2014); D.B. v. State, 114 So.3d 1121 (Fla. 2d DCA 2013).

Affirmed, but remanded.

Ciklin, C.J., Gross and Klingensmith, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: PER CURIAM.

text:
    Sheriff Morris YOUNG, Petitioner, v. STATE of Florida, Respondent.
    No. 1D15-0333.
    District Court of Appeal of Florida, First District.
    April 22, 2015.
    Luke Newman, Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Matthew Pavese, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Sheriff Morris Young of Gadsden County, Florida, who oversees the operation of the jail in that county, seeks a writ of prohibition to preclude the trial court from continuing indirect criminal contempt proceedings brought against him by the state attorney, who asserts that the Sheriffs furlough program violates various bond orders entered by the circuit court. The State’s position is that the Sheriff is without legislative or inherent authority to grant furloughs, but may allow them if approved by a court pursuant to its inherent powers to do so. After the state attorney filed a petition seeking to hold the sheriff in indirect criminal contempt, the trial court issued an order to show cause. As permitted under Florida Rule of Criminal Procedure 3.840(b), the Sheriff moved to dismiss the order to show cause, and the trial court denied that motion.

The gist of the Sheriffs position is that the bond orders at issue are not sufficiently “clear and definite” to place the Sheriff on notice of what conduct is prohibited. As this Court has stated:

Indirect criminal contempt may be found for violation of a court order but the order must clearly and definitely advise the person of its command and direction. If no order has been violated, contempt can only be found if the conduct is calculated to embarrass, hinder, or obstruct the court in the administration of justice or calculated to lessen the court’s authority and dignity.

Eubanks v. Agner, 636 So.2d 596, 598 (Fla. 1st DCA 1994) (citing Justice v. State, 400 So.2d 1037, 1038 (Fla. 1st DCA 1981)). The Sheriff asserts that dismissal is required because he cannot be held in indirect criminal contempt of court because the bond orders do not specifically state that furloughs are not allowed.

At this early stage of the trial court proceedings, however, we find no basis to intervene. As was said in Eubanks, the remedy of “prohibition will lie ‘when a party is about to be cited for contempt on the basis of acts which could not constitute contempt of court.’ ” Id. at 597 (citations omitted). The allegations of the state attorney’s petition, if accepted as true, are sufficient to establish a basis for indirect contempt, proof of which is the State’s burden under the beyond a reasonable doubt standard. Tide v. State, 804 So.2d 412, 413 (Fla. 4th DCA 2001) (“to prove indirect criminal contempt, ‘there must be proof beyond a reasonable doubt that the individual intended to disobey the court.’ ”) (citing Levine v. State, 650 So.2d 666, 668 (Fla. 4th DCA 1995)). Whether the court orders at issue are sufficiently clear and that the Sheriff intentionally violated them are issues of proof for another day after the trial court has held a full evidentiary hearing and otherwise complied with due process under Rule 3.840. As such, we affirm the trial court’s order only to the extent it finds a basis for the State to pursue its case, and remand to that court for further proceedings.

PETITION DENIED.

ROWE, MARSTILLER, and MAKAR, JJ., concur.


text:
    Kimberly L. GARNO and Ronald R. Wolfe And Associates, P.L., Appellant, v. BANK OF AMERICA, N.A., Successor by Merger to BAC Home Loans Servicing, L.P., and Sunder J. Aswani, etc., Poonam S. Aswani, etc., et al., Appellees.
    No. 1D14-1994.
    District Court of Appeal of Florida, First District.
    April 22, 2015.
    Rehearing Denied June 12, 2015.

      Suzanne Barto Hill and Candy L. Mes-sersmith of Rumberger, Kirk & Caldwell, P.A., Orlando, for Appellant.
    Marc James Ayers of Bradley Arant Boult Cummings LLP, Birmingham, AL, for Appellee Bank of America, N.A.
   PER CURIAM.

Appellants appeal the trial court’s order dismissing without prejudice the foreclosure action filed on behalf of their former client Bank of America against Appellees Sunder J. Aswani and Poonam S. Aswsani. The trial court’s ground for dismissal was Appellant Garno’s purported fraud on the court.

We agree with Appellant that she was denied her right to due process, because she was not provided with notice of the hearing leading to the dismissal and the trial court’s findings of fraud on the court. See Dep’t of Children & Families v. W.H., 109 So.3d 1269, 1270 (Fla. 1st DCA 2013) (holding that the lack of notice and lack of an evidentiary healing violated the Department’s right to due process).

We also agree that the record does not support the trial court’s finding that Gamo perpetrated a fraud on the court. “[Fjraud on the court occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense.” Wells Fargo Bank, N.A. v. Reeves, 92 So.3d 249, 252 (Fla. 1st DCA 2012). Here, nothing in the record supports a finding that Garno engaged in any act of deception, deliberate or otherwise.

Therefore, we reverse the order of dismissal and remand for the trial court to reinstate Bank of America’s foreclosure action.

REVERSED and REMANDED with instructions.

THOMAS, CLARK, and WETHERELL, JJ., concur.


author: BLACK, Judge.

text:
    STATE of Florida, Petitioner, v. Carlos Benito JONES, Respondent. State of Florida, Petitioner, v. Steven Cecil Dykes, Respondent. State of Florida, Petitioner, v. Charles Anthony Foster, Respondent. State of Florida, Petitioner, v. Carlos Ruben Rivas, Respondent.
    Nos. 2D16-446, 2D16-647, 2D16-747, 2D16-865.
    District Court of Appeal of Florida, Second District.
    Aug. 10, 2016.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Timothy A. Freeland and Stephen D. Ake, Assistant Attorneys General, and Carol M. Dittmar, Senior Assistant Attorney General, Tampa, for Petitioner.
    Bob Dillinger, Public Defender, and Sara B. Mollo and Edward J. Abare, III, Assistant Public Defenders, Clearwater, for Respondents Carlos Benito Jones and Steven Cecil Dykes.
    Julianne M. Holt, Public Defender, and Theda R. James, Assistant Public Defender, Tampa, for Respondents Charles Anthony Foster and Carlos Ruben Rivas.
   BLACK, Judge.

The State of Florida seeks four writs of prohibition, arguing that four trial judges in two circuit courts lacked authority to determine that, after the United States Supreme Court’s holding in Hurst v. Florida, — U.S. —, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), the State could not proceed with these capital cases as death penalty cases. We grant the petitions.

I. Background

The four defendants, respondents here, allegedly committed homicides between 2011 and 2015. The State indicted each of them for first-degree murder and filed notices of intent to seek the death penalty. After the respondents were indicted, the Supreme Court issued Hurst, in which the Court held Florida’s capital sentencing scheme unconstitutional. 136 S.Ct. at 619. The four respondents then sought rulings from the respective trial courts that, in light of Hurst, the courts could not sentence them to death.

In two cases, those underlying the petitions in 2D16-647 and 2D16-865, the respondents asked the courts to preclude their trials from proceeding as death cases. The State objected, but the courts scheduled the trials and prevented the parties from death-qualifying juries. In the other two cases, underlying the petitions in 2D16-446 and 2D16-747, the respondents sought to enter guilty pleas in exchange for the courts’ guarantees of life sentences. Over the State’s objections, the trial courts found that, as a result of Hurst, the only available sentence was life in prison. The courts then scheduled the plea hearings for future dates; none of the respondents had been convicted at that time. This court stayed the proceedings below after the State filed its petitions here.

II. Issue

The State seeks writs of prohibition challenging the trial courts’ determinations that at the time the respondents were before the courts-pretrial-there did not exist statutory authority for the State to proceed with these cases as death penalty cases and that life imprisonment was the only available sentence. We consider two intertwined issues: whether the trial courts were within their authority to prevent the State from prosecuting these cases as capital cases through the guilt phase and whether the courts were within their authority to make the pretrial determination that death was not an available sentence.

Despite three respondents’ challenges to the contrary, we can consider these petitions for writs of prohibition because the trial courts acted in excess of their jurisdiction. See English v. McCrary, 348 So.2d 293, 296 (Fla.1977) (“Prohibition may only be granted when it is shown that a lower court is without jurisdiction or attempting to act in excess of jurisdiction.”). Where the trial court refuses to allow a first-degree murder trial to proceed as a capital case “[a] writ of prohibition is the appropriate remedy” because the court has “interfere[d] with the prosecutorial discretion of a state attorney.” State v. Bloom, 497 So.2d 2, 3 (Fla. 1986).

III. Discussion

A. Bifurcated Procedure

In Florida, murder in the first degree is a capital felony, subject to a bifurcated procedure. See §§ 782.04(1)(a) (establishing first-degree murder as a capital offense), 775.082(1), 921.141(1), Fla. Stat. (2011) (setting forth the bifurcated nature of the procedure); see also Coday v. State, 946 So.2d 988, 1011-12 (Fla.2006) (“The Florida Legislature ... instituted a bifurcated procedure .... providing] for a separate proceeding to determine the appropriate sentence once the defendant ha[s] been found guilty of a capital offense.”).

A person who has been convicted, of a capital felony shall be punished by .death if the proceeding held to determine.sentence according to the procedure set forth in s. 921.141 results in findings by the court that such person shall be punished by death, otherwise such person shall be punished by life imprisonment and shall be ineligible for parole.

§ 775.082(1) (emphasis added); see also § 782.04(1)(b) (“In all cases under this section, the procedure set forth in s. 921.141 shall be followed in order to determine sentence of death or life imprisonment.”). Thus, the guilt phase of a capital case encompasses the finding of guilt or innocence and the conviction. It- also includes the procedural requirements of a twelve-member, “death-qualified” jury. Fla. R. Crim. P. 3.270; see generally Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986). A separate penalty phase is conducted to determine the appropriate sentence — life imprisonment or death — only after a defendant has been convicted of a capital crime. § 921.141(1); Coday, 946 So.2d at 1011-12 (“Our new statutory scheme provided for a separate proceeding to determine the appropriate sentence once the defendant had been found guilty of a capital offense.”); Buford v. State, 492 So.2d 355, 358 (Fla.1986) (“[U]nder Florida’s bifurcated capital sentencing scheme, the sentencing judge and the reviewing court determine whether the defendant was convicted under circumstances which would prohibit imposition of the death sentence”).

B. Hurst

In Hurst, the United States Supreme Court found section 775.082(1) unconstitutional to the extent that the imposition of the death penalty — the sentence itself— was dependent on “findings by the court.” 136 S.Ct. at 622. Because “[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death” — “[a] jury’s mere recommendation is not enough” — the Court also struck down subparts (2) and (3) of section 921.141. Id. at 619, 620-22; see also § 775.082(1) (“A person who has been convicted of a capital felony shall be punished by death if the proceeding held to determine sentence according to the procedure set forth in s. 921.141 results in findings by the court that such person shall be punished by death.” (emphasis added)); § 921.141(2), (3) (providing that after the jury renders its “advisory sentence” as to life imprisonment or death, the court makes the final sentencing decision— whether life imprisonment or death— “[njotwithstanding the recommendation of a majority of the jury”). The Court did not strike down the death penalty itself. Cf. Hurst, 136 S.Ct. at 624 (leaving it to Florida’s state courts to perform a harmless error analysis). It likewise did not strike down section 782.04 or otherwise reduce first-degree murder to a noncapital offense. Nor did the Hurst ruling render the guilt phase requirements of capital cases unconstitutional. The Court found unconstitutional only the penalty phase procedures applicable to capital cases. Hurst simply has no impact on the State’s executive decision to prosecute capital offenses.

C. Application

The Florida Supreme Court has held that “the decision to charge and prosecute is an executive responsibility, and the state attorney has complete discretion in deciding whether and how to prosecute.” Bloom, 497 So.2d at 3. “[T]he Florida Constitution prohibits the judiciary from interfering with the prosecutor’s decision to seek the death penalty in a first-degree murder case.” State v. Donner, 500 So.2d 532, 533 (Fla.1987). That prosecutorial discretion and executive responsibility necessarily encompasses both phases of Florida’s bifurcated capital proceedings: the guilt phase and the penalty phase. See Bloom, 497 So.2d at 3 (recognizing the bifurcated nature of Florida’s statutory scheme and declining to create “a statutorily unauthorized trifurcated” procedure).

As to the first issue presented in these petitions, the respondents contend that the unconstitutional and remaining portions of the statutes are so intertwined that the whole death penalty scheme must fall, leaving the courts and parties unable to proceed with the cases as capital cases. Cf., e.g., Allen v. Butterworth, 756 So.2d 52, 64-65 (Fla.2000) (discussing whether the constitutional portions of a statute could be separated from the portions declared unconstitutional). This argument ignores both the bifurcated nature of Florida’s capital proceedings and the narrowness of the Hurst holding. The decision to charge first-degree murder and prosecute the case as a capital offense through adjudication remains within the discretion of the state attorney. Thus, the trial courts acted in excess of them jurisdiction by preventing the State from prosecuting these respondents as capital offenders.

As to the second issue presented, our supreme court has held that a “pre-trial determination ] of the death penalty’s applicability” creates a “statutorily unauthorized trifurcated death sentence procedure” which the trial judge had no authority to create. Bloom, 497 So.2d at 3. Although Bloom is factually distinguishable, the holding that a court is without jurisdiction to determine a capital defendant’s sentence prior to conviction is wholly applicable. See id.

Because none of the respondents have been convicted of capital offenses, the courts’ rulings here are all pretrial. The lack of a penalty phase procedure before the penalty is at issue — during the guilt phase and pretrial when the respondents are before the courts awaiting trial or conviction based on acceptance of a plea— does not preclude the State from charging the respondents with capital offenses and prosecuting the cases as capital cases. The trial courts simply have no authority to determine the applicability of the death penalty to defendants who have not been convicted of capital felonies.

Petitions granted.

SLEET and SALARIO, JJ., Concur.

      . We have consolidated the four cases solely for purposes of this opinion.

      . In case 2D16-446, the State seeks a writ of prohibition to disqualify the trial judge and, in the alternative, a writ of certiorari. The disqualification of the judge is not warranted because the State is challenging a mere adverse ruling by the court. See Areizaga v. Spicer, 841 So.2d 494, 496 (Fla. 2d DCA 2003) ("A trial court’s prior adverse rulings are not legally sufficient grounds upon which to base a motion to disqualify.”). And despite our directive to the State to obtain a written order from the trial court, the trial court apparently "declined” to render an order recording its rulings. Thus, we cannot provide relief pursuant to our certiorari jurisdiction. See Fla. R. App. P. 9.100(c)(1); City of Key West Tree Comm’n v. Havlicek, 20 So.3d 904 (Fla. 3d DCA 2009). Nevertheless, as the argument for a writ of certiorari parallels those for a writ of prohibition in the other three petitions, we treat the petition as such. See Fla. R. App. P. 9.040(c) ("If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought; provided that it shall not be the responsibility of the court to seek the proper remedy.”); Pridgen v. Bd. of Cty. Comm’rs of Orange Cty., 389 So.2d 259, 260 (Fla. 5th DCA 1980) (holding rule 9.040(c) to be "mandatory”).

      . Although the courts' rulings differed slightly based on the arguments presented by the respondents, the rulings effectively reached the same pretrial conclusion; the State could not prosecute these cases pursuant to the capital crime procedures and the only available sentence for a capital conviction was life imprisonment.

      . When faced with two petitions raising the same issues as those before us, the Fifth District granted the petitions based in part on the court's analysis of the amended statutes subsequently enacted. State v. Perry, 192 So.3d 70, 74-75 (Fla. 5th DCA 2016), review granted, No. SC16-547, 2016 WL 1399241 (Fla. Apr. 6, 2016). Here, the primary argument of the State and of those respondents who addressed the issue was that the petitions should be resolved on the basis of the law in effect at the time the respondents appeared before the trial courts. While we resolve the cases based upon that approach, we expect that the amendments to the statutes found unconstitutional by Hurst passed by the Florida Legislature and, on March 7, 2016, signed into law by the governor will apply to these cases on remand. See ch. 2016-13, §§ 1-3, 7, at 155—60, 170, Laws of Fla.

      . We recognize that the dates of the offenses at issue include the statutory years 2011, 2012, and 2014. Our citations reference only the 2011 version for the purposes of this opinion. We note that section 775.082(1) was modified in 2014 to address the exceptional situation of offenses committed by juveniles, which is irrelevant here; the provision quoted is the same but is numbered section 775.082(1)(a). See ch. 2014-220, § 1, at 2869, Laws of Fla. Section 921.141(2), (3) did not change between 2010 and 2014.

      . Given the narrowness of the Hurst holding, the expediency with which the legislature would amend the statutes should have been apparent to all involved in these cases. Nonetheless, we need not address the possibility of an ex post facto violation. See art. I, § 10, cl. 1, U.S. Const.; art. I, § 10, Fla. Const. There was no way for the trial courts to predict whether any statute drafted by the legislature in. response to Hurst would represent an ex post facto violation. However, we agree with the analysis in Perry to the extent that the court held that the amended statutes, see ch. 2016-13, §§ 1-3, at 155-60, Laws of Fla., do not represent an ex post facto violation with respect to the respondents there, who were similarly situated to the respondents here. See Perry, 192 So.3d at 74-75.


author: SILBERMAN, Judge.

text:
    Wayne ALLEN and Susan Allen, Petitioners, v. STATE FARM FLORIDA INSURANCE COMPANY, Respondent.
    No. 2D15-3114.
    District Court of Appeal of Florida, Second District.
    Aug. 17, 2016.

      George A, Vaka and Richard N. Asfar of Vaka Law Group, P.L., Tampa, and Kenneth C. Thomas and Barbara M. Hernando of Marshall Thomas P.L., Tampa, for Petitioners.
    Scot E. Samis of Traub Lieberman Straus & Shrewsberry LLP, St. Peters-burg, for Respondent.
   ORDER ON PETITIONERS’ MOTION FOR REHEARING OR, ALTERNATIVELY, CLARIFICATION OF ORDER DENYING PETITIONERS’ AMENDED MOTION FOR ATTORNEY’S FEES

SILBERMAN, Judge.

Upon consideration of Petitioners’ Motion for Rehearing or, Alternatively, Clarification of Order Denying Petitioners’ Amended Motion for Attorney’s Fees filed by Wayne and Susan Allen and the response filed by State Farm Florida Insurance Company to that motion for rehearing, we grant the Allens’ motion to the following extent. We vacate our previous order of June 10, 2016, that denies the Allens’ amended motion for appellate attorney’s fees and enter this order that conditionally grants appellate attorney’s fees to the Allens as explained below.

This court granted certiorari relief to the Allens in Allen v. State Farm Florida Insurance Co., 41 Fla. L. Weekly D1389 (Fla. 2d DCA June 10, 2016). The Allens sought appellate attorney’s fees conditioned upon their prevailing in the trial court on remand on the basis of section 627.428(1), Florida Statutes (2010). Section 627.428(1) provides as follows:

(1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.

(Emphasis added.) State Farm contended that the Allens were not entitled to a provisional grant of fees because the proceeding was not an appeal but a petition for writ of certiorari, relying upon Grider-Garcia v. State Farm Mutual Automobile, 14 So.3d 1120 (Fla. 5th DCA 2009). In Grider-Garcia, the Fifth District determined that an appellate court was unauthorized to grant fees under section 627.428(1) when the insured was not the prevailing party before the appellate court. Id. at 1122. In doing so, the Fifth District stated as follows:

Given the courts’ narrow interpretation of the language of section 627.428, it appears that this Court is not authorized to grant fees to an insured who does not succeed in his or her application for certiorari. Indeed, it is doubtful that an insured would even be entitled to fees for a certiorari proceeding in which it prevails based on the interpretation of the statute that appellate courts are authorized to award fees only for an appeal that the insured wins.

Id. (emphasis added). State Farm readily concedes that the emphasized language above is dicta, but asserts that we should rely upon it, along with the general proposition that section 627.428(1) is to be strictly construed. See Brass & Singer, P.A. v. United Auto. Ins. Co., 944 So.2d 252, 254 (Fla.2006) (determining that “under the plain language of section 627.428(1), an appellate court may not award attorney’s fees to an insured unless the insured prevails on appeal”).

Rather than rely on the dicta in Grider-Garcia, we follow the explicit holding of the Florida Supreme Court in Home Insurance Co. v. Drescher, 220 So.2d 902, 903 (Fla.1969). There, the court considered the predecessor of section 627.428, section 627.0127, which had been amended in 1967 to add the language at issue here providing for fees to an insured who prevails on appeal. See id. (citing ch. 67-400, Laws of Fla.). Our supreme court clearly stated, “[W]e hold that attorneys’ fees may be awarded under the amended statute for services in the appellate court, whether on direct appeal or in certiorari proceedings, in all cases where the notice of appeal is filed subsequent to July 27, 1967.” Id. The Florida Supreme Court has continued to approve fee awards under section 627.428(1) in certiorari proceedings. See Advanced Chiropractic & Rehab. Ctr., Corp. v. United Auto. Ins. Co., 140 So.3d 529, 536-37 (Fla.2014) (holding that a motion for attorney’s fees pursuant to section 627.428(1) that was filed six days after the appellate court granted certiorari relief was timely and remanding for a determination of the amount of attorney’s fees to which the insured was entitled).

To allow fees in the appellate court whether the proceeding is a direct appeal or a petition for writ of certiorari also comports with the purpose of the statute. “[Tjhe purpose of section 627.428 is to discourage insurers from contesting valid claims and to reimburse successful insureds for their attorney’s fees when they are compelled to defend or sue to enforce their policy rights.” Liberty Nat’l Life Ins. Co. v. Bailey ex rel. Bailey, 944 So.2d 1028, 1030 (Fla. 2d DCA 2006); see also Pawtucket Mut. Ins. Co. v. Manganelli, 3 So.3d 421, 423 (Fla. 4th DCA 2009) (recognizing that the purpose of section 627.428 is to penalize an insurer for wrongfully requiring its insured to litigate to resolve a conflict). If the purpose of the statute is to be achieved, it is illogical to grant fees to a successful insured who files a direct appeal but to deny fees to a successful insured who files a certiorari petition.

Therefore, we vacate our prior order of June 10, 2016, that denies attorney’s fees. We grant the Allens’ amended motion for attorney’s fees in an amount to be set by the trial court, conditioned upon the Allens ultimately prevailing in the trial court.

LaROSE and LUCAS, JJ., Concur.

      . And, of course, it has long been recognized that a district court’s decision cannot overrule a decision by the Florida Supreme Court. See Hoffman v. Jones, 280 So.2d 431, 440 (Fla.1973).


text:
    John ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-2572.
    District Court of Appeal of Florida, First District.
    Oct. 10, 2016.
    Rehearing Denied Feb. 15, 2017.
    John Anderson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. This Court retains jurisdiction to address the imposition of sanctions.

B.L. THOMAS, RAY, and OSTERHAUS, JJ., concur.


author: LEVINE, J.

text:
    PREPARED INSURANCE COMPANY, Appellant, v. David GAL, Appellee.
    No. 4D15-1909.
    District Court of Appeal of Florida, Fourth District.
    Oct. 13, 2016.

      Elizabeth K. Russo and Kevin D. Franz of Russo Appellate Firm, P.A., Miami, and Diaz Briscoe Medina, P.A., Miami, for appellant.
    Arnold R. Ginsberg of Arnold R. Ginsberg, P.A., Miami, and Justin P. Cernitz and Candise Shanbron of Cernitz & Shan-bron, P.A., Miami, for appellee.
   LEVINE, J.

The appellant, an insurance company, raises four issues for our review: (1) whether a replacement cost homeowners’ policy requires an insurer to replace damaged property, as a matter of law, or whether the insurer may limit its liability and repair the property; (2) whether the trial court correctly determined the insured was entitled to judgment as a matter of law on the issue of liability because the insurer failed to pay a general contractor’s overhead and profit; (3) whether the trial court abused its discretion in striking all of the insurer’s witnesses because they were not general contractors; and finally, (4) whether the trial court abused its discretion when the court prohibited the insurer from cross-examining the insured’s expert as to matters that may have affected the witness’s opinion.

We agree with the insurer on all four issues. The insurer should have had an opportunity to argue that it could repair the damaged property and that hiring a general contractor was unnecessary. Furthermore, the insurer’s witnesses should not have been stricken, nor should the insurer have been prohibited from cross-examining the insured’s expert as to facts weighing on the credibility of his opinion. Any one of the above errors would have required reversal for a new trial though we write to address all four.

The insured, David Gal, discovered water had leaked from his kitchen sink into his custom-made kitchen cabinets. The insurer, Prepared Insurance Company, had its adjuster inspect the damage. The adjuster estimated the loss to be $8,653.47. The adjuster’s estimate did not include a general contractor’s “overhead and profit.”

The insurer also had a cabinetry expert inspect the cabinets. The insurer’s expert claimed he could restore the cabinets for $2,585. Alternatively, he could replace the cabinets for $19,065. However, the expert’s calculation did not include the cost to hire a plumber or electrician who would be necessary to complete the project. The insurer’s expert also did not include a general contractor’s overhead and profit in his estimate as he admitted he did not know if hiring a general contractor would be necessary. Nevertheless, the insurer’s expert also commented that he had worked on similar projects with plumbers and electricians, but had never been hired as a subcontractor by a general contractor.

The insurer issued a payment to the insured for $6,153.47 (the adjuster’s original $8,653.47 estimate less the policy’s $2,500 deductible). The insured then sued the insurer, claiming that the insurer had undervalued his loss because the insurer failed to pay the full replacement cost of the cabinets and failed to issue payment for a general contractor’s overhead and pi'ofit.

Subsequently, the insured suffered a second loss. This time, an upstairs air conditioner started leaking, causing additional water damage to the kitchen area. The insurer paid the insured $95,000 pursuant to the policy.

After the second leak, the insured had his own expert, a general contractor, inspect the kitchen. The insured’s expert claimed that the moisture in the kitchen had warped the kitchen cabinets. However, he admitted that in doing his evaluation he had not distinguished between the damage resulting from the initial sink leak and the subsequent second floor leak. Regardless, he asserted that even if the second leak had not occurred, his opinion would be the same.

The insured’s expert claimed repairing the cabinets would be impossible due to their unique nature and that they had to be replaced entirely. Additionally, because the cabinets had been integrated into the kitchen, he needed to replace much of the kitchen as well. In all, the insured’s expert opined that replacing the cabinets would cost $107,902.50.

The trial court made several pre-trial rulings that impacted the outcome of this case. The trial court granted partial summary judgment in the insured’s favor on the issue of liability, finding that the insurer violated the insurance policy by failing to pay a general contractor’s overhead and profit. The trial court also found that, because the insurance policy was a “replacement cost policy,” the insurer was required to replace the cabinets, not repair them. Next, on the day of trial, the trial court determined that because a general contractor was necessary, the only witnesses qualified to testify were general contractors. Because neither of the insurer’s witnesses — its adjuster and the insurer’s cabinetry expert — were licensed general contractors, they were stricken. Finally, the trial court determined that the insurer could not cross-examine the insured’s expert about the second water damage incident, finding it to be irrelevant.

Following a jury trial, the jury awarded the insured $44,304.85 in damages. This appeal followed.

We review the trial court ruling on a motion for summary judgment de novo. Eco-Tradition, LLC v. Pennzoil-Quaker State Co., 137 So.3d 495, 496 (Fla. 4th DCA 2014). “The law is well settled in Florida that a party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the party against whom a summary judgment is sought.” Moore v. Morris, 475 So.2d 666, 668 (Fla.1985).

We write first to address the trial court’s interpretation of “replacement cost policy.” The trial court concluded that “replacement cost” meant that the insurer had to replace, rather than repair, the cabinets. We reverse as the trial court incorrectly interpreted what a “replacement cost policy” is.

“Replacement cost insurance is designed to cover the difference between what property is actually worth and what it would cost to rebuild or repair that property.” Trinidad v. Fla. Peninsula Ins. Co., 121 So.3d 433, 438 (Fla.2013) (emphasis added) (citation omitted). A “replacement cost policy” is a policy where the insurer agrees to compensate for a loss without taking into account depreciation. See id. Such a policy does not prohibit repairing the damaged property. See id. In fact, both the governing statute as well as the parties’ insurance policy expressly provide that an insurer may limit its liability to the “reasonable and necessary cost to repair the damaged, destroyed, or stolen covered property.” See § 627.7011(6)(b), Fla. Stat. (2010) (amended 2011) (emphasis added). Thus, we conclude that a replacement cost policy does not mandate that the insurer replace the damaged property.

We further write to address the trial court’s ruling that payment for a general contractor’s overhead and profit was required as a matter of law.

In Trinidad, the Florida Supreme Court stated that overhead and profit must be paid under a replacement cost policy when overhead and profit “are going to be ‘reasonable and necessary’ to the repair.” 121 So.3d at 441. However, if overhead and profit are not “reasonable and necessary” to the repair, then the insurer may withhold payment. See id. (citing § 627.7011(6), Fla. Stat. (2008)). Thus, an insurer is required to pay overhead and profit only if the insured is “reasonably likely to need a general contractor.” Id. at 440. The issue of whether overhead and profit are “reasonably necessary” is really “no different than any other costs of a repair,” see id. at 441, and the amount the insured is owed under an insurance policy will generally be a question of fact for the jury, see Citizens Prop. Ins. Corp. v. Mallett, 7 So.3d 552, 556 (Fla. 1st DCA 2009); see also Mee v. Safeco Ins. Co. of Am., 908 A.2d 344, 348 (Penn.Super.Ct.2006) (“Whether use of a general contractor was reasonably likely is a question of fact for the jury.”).

In the present case, there remained disputed issues of fact as to whether a general contractor would be necessary. Indeed, neither the insurer’s expert nor the insured’s expert could say whether a general contractor would be necessary to repair the cabinets. Moreover, the insurer’s expert commented that he had had similar projects in the past but had never been hired by a general contractor to work as a subcontractor, indicating a general contractor may not have been necessary. On appeal, the insured makes several arguments for why a general contractor was necessary,' but the insured ought to have made these arguments to the jury because “[w]hen material facts are in dispute, then it is the function of the jury to resolve them.” Decarlo v. Griffin, 827 So.2d 348, 350 (Fla. 4th DCA 2002).

Next, the trial court abused its discretion when it struck all of the insurer’s witnesses because they were not general contractors. As discussed, there remained disputed issues of fact as to whether cabinets could be repaired and whether a general contractor was reasonably necessary. The insurer should have been permitted to present relevant testimony directed at these issues and others. See § 90.401, Fla. Stat.; Watkins v. State, 121 Fla. 58, 163 So. 292, 293 (Fla.1935) (“In civil as well as in criminal cases, facts which on principles of sound logic tend to sustain or impeach a pertinent hypothesis of an issue are to be deemed relevant and admitted in evidence, unless proscribed by some positive prohibition of law.”). Striking these witnesses effectively prevented the insurer from litigating relevant issues in this case.

Finally, prohibiting inquiry into the second leak was also an abuse of discretion. Although the insured’s expert claimed the second leak did not impact his opinion, the jury, not the trial court, should have had the opportunity to decide whether the insured’s expert was to be believed. See Berry v. CSX Transp., Inc., 709 So.2d 552, 571 (Fla. 1st DCA 1998) (“Trial courts should not arrogate the jury’s role in ‘evaluating the evidence and the credibility of expert witnesses’ by ‘simply cho[o]s[ing] sides in [the] battle of the experts.’ ”) (quoting Christophersen v. Allied-Signal Corp., 902 F.2d 362, 366 (5th Cir.1990)). Thus, the insurer should have been given the opportunity to present facts that may weigh on the reliability and credibility the opinion of the insured’s expert. See Dep’t of Agric. & Consumer Servs. v. Bogorff, 35 So.3d 84, 88 (Fla. 4th DCA 2010).

In conclusion, we reverse and remand for a new trial and for proceedings consistent with this opinion.

Reversed and remanded.

FORST, J., and COLBATH, JEFFREY, Associate Judge, concur.

      . We express no opinion as to whether repairing the cabinets was factually possible in this case.


author: SHEPHERD, FRANK, Associate Judge.

text:
    Christos STASINOS, Appellant, v. STATE of Florida, DEPARTMENT OF BUSINESS & PROFESSIONAL REGULATION, Construction Industry Licensing Board, Anthony Guzzetta, and Danielle Guzzetta, Appellees.
    No. 4D15-2506.
    District Court of Appeal of Florida, Fourth District.
    Oct. 13, 2016.

      Jeanne C. Brady and Frank R. Brady of Brady & Brady, P.A., Boca Raton, and Thomas D. Daiello of Thomas D. Daiello, P.A., Boca Raton, for appellant.
    William N, Spicola and Marisa G. Button, Tallahassee, for appellee Construction Industry Licensing Board.
    Chevonne T. Christian, Tallahassee, for appellee Department of Business & Professional Regulation.
    James S. Telepman of Cohen, Norris, Wolmer, Ray, Telepman & Cohen, North Palm Beach, for appellees Anthony Guz-zetta and Danielle Guzzetta.
   SHEPHERD, FRANK, Associate Judge.

Christos Stasinos, a Florida licensed general contractor, appeals a final order of the Florida Department of Professional Regulation, Construction Industry Licensing Board, awarding a $50,000 restitution payment to Anthony and Danielle Guzzetta on their claim against the Florida Homeowners’ Construction Recovery Fund for Stasinos’ abandonment of his residential construction contract with the Guzzettas. Stasinos’ interest in the matter arises out of the fact that payment of the claim will result in an automatic suspension of his contracting license. See § 489.143(8), Fla. Stat. (2015).

Stasinos raises two challenges to the order of the Construction Industry Licensing Board: (1) the Board did not have jurisdiction to enter the order under review; (2) if it did have jurisdiction to enter the order, the claimants’ claim is nevertheless time-barred. Finding no merit to either challenge, we affirm the order of the Board.

Procedural and Factual Background

The essential facts and procedural history of this case may be summarized as follows:

August 2005: Anthony and Danielle Guz-zetta entered into a contract with Andover Construction, Inc., to construct a new residence in Delray Beach, Florida. The final contract price for the project was $1,040,713.00. Christos Stasinos was the general contractor and qualifying agent for Andover Construction.

February 20, 2007: The Guzettas and And-over Construction entered into a letter agreement to resolve disputes concerning the work performed on the project. And-over Construction agreed to perform certain jobs to complete the project and to obtain a Certifícate of Occupancy (“CO”) by March 31, 2007 (or pay a $300 per day late fee for additional time to obtain the CO).

April 20, 2007: Andover Construction obtained the CO, but did not complete the work outlined in the letter agreement.

January 3, 2008: The Guzzettas sued Andover in the Palm Beach County Circuit Court to recover the additional expense incurred to complete the project and the late fee.

August 14, 2008: Andover countered with a bankruptcy filing in the United States Bankruptcy Court for the Southern District of Florida, staying the circuit court case.

June 26, 2009: The Bankruptcy Court granted the Guzzettas relief from the stay. Two and one-half weeks later, on July 14, 2009, the Bankruptcy Court ordered that the Guzzettas’ claim against Andover be allowed as a general unsecured claim in the amount of $32,000.

July 29, 2010: The Palm Beach County Circuit Court entered a final judgment against Andover in the sum of $73,923.69.

December 15, 2011: The Bankruptcy Court discharged Andover’s bankruptcy claim, concluding the case. The Guzzettas received nothing on their claim.

July 31, 2012: The Guzzettas filed a claim against the Florida Homeowners’ Construction Recovery Fund for recompense as a result of Andover’s abandonment of its construction contract.

January 14, 2014: The Construction Industry Licensing Board met to consider the Guzzettas’ claim. Stasinos was present and represented by counsel. The Guz-zettas were not present or represented by counsel. The Board denied the Guzzettas’ claim as untimely filed.

February 10, 2015: The Construction Industry Licensing Board rendered its decision by written final order.

March 12, 2015: The Guzzettas filed a Notice of Administrative Appeal of the written final order on the last day for filing with the Construction Industry Licensing Board. On the same day, the Guzzettas asked the Board to reconsider the written final order on the ground that they did not receive notice of the hearing.

March 18, 2015: The Guzzettas and the Board filed an Agreed Motion to Relinquish Jurisdiction to the Board for the purpose of reconsidering the final order. Stasinos was served with a copy of the motion and did not object.

March 27, 2015: This court granted the motion and relinquished jurisdiction to the Board for a period of sixty days for the purpose of reconsidering the written final order.

May 13, 2015: With all parties and counsel present, the Board vacated its prior order, finding the Guzzettas’ claim to be timely filed, and awarded the Guzzettas $50,000 from the Recovery Fund.

May 14, 2015: The Guzzettas filed a Notice of Voluntary Dismissal Without Prejudice of their appeal pending before this court.

June 8, 2015: The Board rendered its written Order Vacating Prior Final Order and Granting Reconsideration.

June 29, 2015: Stasinos filed a Notice of Administrative Appeal of this order.

Standard of Review

Section 120.68, Florida Statutes, governs appellate review of final administrative agency action under the Florida Administrative Procedure Act. The inquiry on appeal is generally whether the final order is supported by competent, substantial evidence in the record. § 120.68(7)(b), Fla. Stat. (2015); Dep’t of Banking & Fin., Div. of Sec. & Inv’r Prot. v. Osborne Stern & Co., 670 So.2d 932, 933 (Fla.1996); Legal Envtl. Assistance Found., Inc. v. Clark, 668 So.2d 982, 987 (Fla.1996). If so supported, this court must affirm the final order unless there is a demonstration of a material error in procedure, an incorrect interpretation of law, or an abuse of discretion. §§ 120.68(7)(c)-(e), (8).

Analysis

A. The Construction Industry Licensing Board had jurisdiction to reconsider and vacate its prior final order.

Stasinos first argues that the Construction Industry Licensing Board lacked jurisdiction or authority to vacate or modify its prior final order. We disagree.

It is true that neither the Florida Administrative Procedure Act nor any rule of procedure provides for the filing of a motion for rehearing of final agency action. See § 120.68(1)-(2)(a); Sys. Mgmt. Assocs., Inc. v. Dep’t of Health & Rehab. Servs., 391 So.2d 688, 691 (Fla. 1st DCA 1980) (“Final agency action is reviewable only by appeal.”). However, “where the proceeding is in essence a judicial one,” an agency whose final orders are subject to review under the Florida Administrative Procedure Act “has the inherent or implied power to rehear or reopen a cause to reconsider the action taken therein.” Reich v. Dep’t of Health, 868 So.2d 1275, 1276 (Fla. 1st DCA 2004), (citing Smull v. Town of Jupiter, 854 So.2d 780, 782 (Fla. 4th DCA 2003)). “[T]his power must be exercised before an appeal from the original order has been filed or before such an order has become final by the lapse of time to file a timely notice of appeal.” Id. Here, the Guzzettas filed their request with the Department to vacate the prior final order on the same day they filed their timely notice of appeal from that order. The request indicates they had “previously discussed” the “reasons” for their request with the Department, Thereafter, upon the Guz-zettas’ and the Board’s agreed motion, this court relinquished jurisdiction to the Board for sixty days to reconsider the order. We conclude the request filed by the homeowners in this case satisfies the timeliness requirement.

Our conclusion on this point is supported by section 489.142 of the Recovery Act. This section of the Act provides in pertinent part that, “[w]ith respect to actions for recovery from the recovery fund, the board may intervene, enter an appearance, file an answer, defend the action, or take any action it deems appropriate and may take recourse through any appropriate method of review on behalf of the State of Florida.” § 489.142(1), Fla. Stat. (2015) (emphasis added). The Board also has inherent authority, in its discretion, to reopen a proceeding where there has been a potential due process violation. See Filarski v. Reemployment Assistance Appeals Comm’n, 97 So.3d 278, 281 (Fla. 4th DCA 2012) (“[A]n administrative agency may vacate and re-enter its final orders ... where the agency has express authority to do so, or where there has been a due process violation.”). It was the potential due process question that impelled the Board to reconsider its prior final order in this case. For these reasons, we find no error in this action by the Board.

B. The Board properly determined that the homeowners’ claim for recovery from the fund was timely filed.

Stasinos next argues that, even if the Licensing Board had jurisdiction to reconsider and vacate the prior final order, the Guzzettas are barred from recovery because they did not file their recovery fund claim within a year of obtaining their circuit court judgment against the contractor. This argument lacks merit as well.

The Construction Industry Recovery Fund was created by the State Legislature in 1993, see Ch. 93-166, § 21, Laws of Fla. (codified as §§ 489.140-.142, Fla. Stat. (1993)), for the purpose of “provid[ing] reimbursement to individuals who, among other things, have recovered a judgment based on a construction contract, but have been unable to collect the judgment despite diligent efforts to do so.” Chappell v. Constr. Indus. Recovery Fund, 835 So.2d 339, 340 (Fla. 3d DCA 2003).

To be eligible for an award from the Fund, a homeowner must satisfy several conditions. Section 489.141, “Conditions for recovery; eligibility,” states in relevant part:

(1) Any claimant is eligible to seek recovery from the recovery fund after having made a claim and exhausting the limits of any available bond, cash bond, surety, guarantee, warranty, letter of credit, or policy of insurance, provided that each of the following conditions is satisfied:
(a) The claimant has received final judgment in a court of competent jurisdiction in this state....
(b) The judgment ... is based upon a violation of s. 489.129(1)(g), (j) [abandoning a construction project], or (k) or s. 713.35.
(c) The violation was committed by a licensee.
(d) The judgment ... specifies the actual damages suffered as a consequence of such violation.
(e) The contract was executed and the violation occurred on or after July 1, 1993....
(f) A claim for recovery is made within 1 year after the conclusion of any civil, criminal, or administrative action or award in arbitration based on the act.

§ 489.141(1)(a)-(f), Fla. Stat. (2015) (emphasis added).

Here, the Guzzettas filed their restitution claim against the Recovery Fund within one year of the conclusion of And-over’s bankruptcy proceeding. At that point, there was no likelihood of recovery from the party with whom they contracted. However, their filing was more than three years after receiving stay relief in the Andover bankruptcy case and two years after the final judgment rendered by the circuit court. Stasinos argues that the Guzzettas were delinquent in filing their claim against the Recovery Fund because the “action ... based on the Act” within the meaning of the eligibility provision of the Act, was the homeowners’ circuit court action against the contractor. We disagree.

The applicable law in this case indicates that claimants must exhaust all efforts to recover their damages in order to be eligible to seek a claim under the Recovery Fund. § 489.141(1) (e). The homeowners’ participation in the bankruptcy action was consistent with that purpose. Section 489.141(f) emphatically states the Recovery Fund claim must be made within one year after the conclusion of “any civil, criminal, or administrative action or award in arbitration based on the act.” Given the evident purpose of the Recovery Fund to serve as a source of last resort for recompense for qualifying claimants, we have no difficulty concluding that a bankruptcy claim for the purpose of recovering the homeowners’ loss is, broadly speaking, “a civil ... action” within the meaning and purpose of the law. See Black’s Law Dictionary (10th ed.2014) (civil adj. “Of, relating to, or involving private rights and remedies that are sought by action or suit, as distinct from criminal proceedings .... ”); (action “A civil or criminal judicial proceeding ... ‘defined to be an ordinary proceeding in a court of justice, by which one party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.’”); see also In re Coram Healthcare Corp., 2007 WL 643325, at *1 (D.Del. Mar.1, 2007) (analogizing adversary proceedings in bankruptcy court to civil cases filed in the United States District Courts).

Any realistic interpretive assessment of what the legislature meant by an “action ... based on the act” should “ ‘rest[ ] on two sound principles: (1) that the body of the law should make sense, and (2) that it is the responsibility of the courts within the permissible meanings of the text, to make it so.’ ” Med. Ctr. of Palm Beaches v. USAA Cas. Ins. Co., 202 So.3d 88, 91, 2016 WL 4540251, at *3 (Fla. 4th DCA Aug. 31, 2016). Here, the Guzzettas’ claim against the contractor in the bankruptcy case was based on the contractor’s act of abandoning the homeowners’ construction project. It was not until the contractor’s bankruptcy case was discharged that the Guzzettas “exhaust[ed] the limits of any available” source of compensation from the contractor, including “any available bond, cash bond, surety guarantee, warranty, letter of credit or policy of insurance.” § 489.141(1). As such, the homeowners’ Recovery Fund claim, which was filed within a year of the discharge of the bankruptcy action, was timely.

Affirmed.

CONNER and KLINGENSMITH, JJ., concur.

      . Pursuant to section 489.1195(1)(a), Florida Statutes (2015), qualifying agents for a business organization are jointly and equally responsible for supervision of all operations of the business organization, including field work and financial matters.

      . The Recovery Fund is funded through a 1.5 percent surcharge of the permit fees associated with the enforcement of the Florida Building Code collected statewide. § 489.140, Fla. Stat. (2015).


author: CONNER, J.

text:
    STATE of Florida, Appellant, v. Stevhen Devon JOHNSON, Appellee.
    No. 4D15-567.
    District Court of Appeal of Florida, Fourth District.
    Oct. 13, 2016.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman, Assistant Attorney General, West Palm Beach, for appellant.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellee.
   CONNER, J.

The State appeals the trial court’s post-trial order granting Johnson’s motion for judgment of acquittal as to a trafficking in cocaine charge, after a jury returned a verdict finding Johnson guilty of the trafficking offense, as well as fleeing and eluding. On appeal, the State argues that it provided sufficient evidence to show that Johnson had dominion and control over the cocaine, the factor upon which the trial court based its order. We agree, and reverse for reentry of the jury verdict and sentencing.

Factual History and Procedural Posture

At trial, a detective testified that on the day of the incident, he was driving an unmarked police vehicle that was outfitted with a siren and lights. A deputy was riding with him in the front passenger seat. At some point, he saw a Ford Edge traveling on the road, and noticed that the driver of the Edge did not have on a seatbelt. He identified Johnson as the driver of the Edge, and testified that there was a passenger riding in the front seat of the vehicle, but no one in the backseat.

He followed the Edge until it pulled into the driveway of an abandoned or empty house. At that time, the detective activated his lights, and said, “Sheriffs Office. Stop,” over the loudspeaker. The deputy then exited from the passenger’s side of the police vehicle and approached the Edge. The Edge then took off, so the detective, leaving the deputy behind, pursued.

During the pursuit, the Edge made a turn, and the detective followed. He saw a few people in front of a mechanic’s shop pointing down another road, so he turned there to continue following the Edge. Then, he saw an arm come out of the passenger’s side window, and throw a softball-sized item out of the Edge. The detective testified that the brake lights of the Edge came on contemporaneously with the item being thrown and the Edge slowed down, but the detective could not tell whether it was the passenger or Johnson who threw the item. Another witness, one of the individuals standing in front of the mechanic’s shop, testified that he saw what appeared to be a bag thrown from the window, but did not see the Edge slow down before the item was thrown. When the witness went to see what was thrown, he observed a bag containing a white substance about the size of an avocado. The detective testified that he was communicating with his sergeant during the pursuit. The sergeant called off the chase, whereupon the detective circled back around, and saw the Edge broken down on the side of the road.

The two occupants were taken into custody, and the detective, with his K-9, returned to where he saw the item thrown from the vehicle. The detective recovered three sandwich baggies containing a white powdery substance, all within another sandwich baggie, and a fourth sandwich baggie with a white powdery substance, about a foot in front of the other bundle of baggies. The substance was later tested, and it was determined to be fifty-six grams of cocaine. The detective ran Johnson’s driver’s license: it was valid, and he had no active warrants. The Edge, Johnson, and the passenger were also checked, and nothing illegal was found on them.

After the State’s case-in-chief, Johnson moved for a judgment of acquittal, arguing that the State did not prove his possession of the cocaine, and the trial court reserved ruling as to the trafficking count. Johnson called a witness, the occupant of a house near where the cocaine was found, who testified that she saw the Edge cut down a street and slow down a bit, but then testified that she saw a plastic bag fly out of the driver’s side window, as opposed to the passenger’s side window. She also testified that she saw a third occupant, a person in the backseat of the Edge.

After deliberating, the jury found Johnson guilty of fleeing and eluding and trafficking in cocaine. Johnson filed a written motion for judgment of acquittal, arguing that the State did not provide any evidence that Johnson had dominion and control over the cocaine. The trial court granted Johnson’s motion for judgment of acquittal as to the trafficking in cocaine count, but adjudicated Johnson guilty of the fleeing and eluding count, and sentenced Johnson to serve thirty months in prison, followed by thirty months of probation, This appeal follows.

Appellate Analysis

“In matters such as the present, which concern a trial court’s order granting a motion for judgment of acquittal entered after a jury’s verdict of guilt, this court conducts a de novo review of the record to determine whether sufficient evidence supports the jury’s verdict.” State v. Odom, 862 So.2d 56, 59 (Fla. 2d DCA 2003).

Most of the evidence showed that the cocaine was thrown from the passenger’s side window, although there was testimony by Johnson’s witness that it came from the driver’s side window. Regardless of which window the cocaine was thrown from, however, the State was able to show that Johnson had constructive possession of the cocaine. “To convict a defendant for possession of a controlled substance under a constructive possession theory, the State must prove that ‘the defendant had knowledge of the presence of the drug and the ability to exercise dominion and control over the same.’ ” Brown v. State, 8 So.3d 1187, 1188 (Fla. 4th DCA 2009) (quoting Martoral v. State, 946 So.2d 1240, 1242 (Fla. 4th DCA 2007)).

The knowledge element in this case is not at issue. However, “[i]t is conceivable that an accused might be well aware of the presence of the substance but have no ability to maintain control over it.” Jean v. State, 638 So.2d 995, 996 (Fla. 4th DCA 1994). Therefore, even though the State was able to provide sufficient evidence to show that Johnson had knowledge of the cocaine, this is not necessarily determinative of the fact that he had the ability to exercise dominion and control over the same.

The factors that the State relies upon most for reversal is that Johnson fled from the police vehicle and slowed down the Edge while the cocaine was seen being thrown out from the window. “Where the evidence of guilt is wholly circumstantial ... the following standard applies: not only must the evidence be sufficient to establish each element of the offense, but the evidence also must be inconsistent with any reasonable hypothesis of innocence proposed by the defendant.” Twilegar v. State, 42 So.3d 177, 188 (Fla.2010) (citing Pagan v. State, 830 So.2d 792, 803 (Fla.2002)).

We agree that the evidence provided by the State is inconsistent with Johnson’s reasonable hypothesis of innocence: that it was the passenger, and the passenger alone, who had dominion and control over the cocaine, and that he was simply driving the vehicle. First, the most persuasive piece of evidence is that the detective (as well as Johnson’s own witness) testified that the Edge slowed down as the cocaine was thrown from the window. This is certainly inconsistent with Johnson’s claim that he did not have the ability to exert dominion and control over the cocaine, because it shows that he purposefully slowed the vehicle to assist the passenger in disposing of the cocaine. “In many instances ... the ability to control narcotics will be inferred from the ability to exercise control over the premises where they are found.” Jennings v. State, 124 So.3d 257, 263 (Fla. 3d DCA 2013) (quoting Johnson v. State, 456 So.2d 923, 924 (Fla. 3d DCA 1984)) (internal quotation marks omitted). In Jennings, the Third District further explained the parameters of the dominion and control analysis:

Properly understood, the rule of Brown[ v. State, 428 So.2d 250 (Fla. 1983) ], as applied to contraband found in a jointly occupied vehicle, can be stated simply as follows: generally, evidence that the defendant knew contraband was in the vehicle and had control of the vehicle is sufficient to create a jury question on the issue of dominion and control.

Id. (emphasis added).

“It is commonly understood that dominion and control of an item includes the ability to knowingly manipulate the movement of the item.” Hudson v. State, 198 So.3d 935, 940 (Fla. 4th DCA 2016) (Conner, J., dissenting). Additionally, “control” is defined as “[t]o exercise power or influence over.” Black’s Law Dictionary (10th ed.2014). The fleeing and slowing by Johnson certainly shows that he not only had the ability to exert control over the vehicle, but purposefully manipulated the vehicle, and thus the cocaine contained therein, in such a way as to prevent discovery by officers. We find these factors to be key to the determination of Johnson’s ability to maintain dominion and control over the cocaine.

Although the State’s other witness, who was in front of the mechanic’s shop, testified that the Edge did not slow down, “the force of such conflicting testimony should not be determined on a motion for judgment of acquittal.” State v. Konegen, 18 So.3d 697, 700 (Fla. 4th DCA 2009) (quoting State v. Shearod, 992 So.2d 900, 903 (Fla. 2d DCA 2008)). Therefore, the evidence provided by the detective, that he observed the Edge slow down as the contraband was thrown from the window, was enough for the State to survive a motion for judgment of acquittal.

We therefore reverse the trial court’s order granting Johnson’s motion for judgment of acquittal, “and remand with directions to reinstate the jury’s verdict, enter judgment, and sentence” Johnson. Id.

Reversed and remanded for further proceedings.

GERBER and KLINGENSMITH, JJ„ concur.

      . We note that Johnson’s evidence that the cocaine was thrown from the driver’s window would add evidence in favor of the State. In his answer brief, Johnson makes no argument concerning the testimony of his witness. Instead, his arguments on appeal are framed from the viewpoint that the evidence showed the cocaine was thrown from the passenger window.


text:
    Margaret L. ZURRO, Appellant/Cross-Appellee, v. WELLS FARGO BANK, N.A., Appellee/Cross-Appellant.
    No. 2D15-175.
    District Court of Appeal of Florida, Second District.
    Nov. 2, 2016.

      William Rambaum of William Rambaum, P.A., Oldsmar; and Kennan G. Dandar of Dandar & Dandar, P.A., Tampa, for Appellant/Cross-Appellee.
    Ronald D. Edwards, Jr. and Matthew G. Brenner of Lowndes, Drosdick, Doster, Kantor & Reed, P.A., Orlando, for Appel-lee/Cross-Appellant.
   BLACK, Judge.

Margaret Zurro appeals from the final judgment entered in her lawsuit against Wells Fargo Bank, N.A. Wells Fargo cross-appeals. We affirm on all issues, save one: the trial court’s determination that Ms. Zurro is not entitled to an award of attorney’s fees. We therefore reverse that portion of the final judgment which denies Ms. Zurro’s attorney’s fees claim.

I. Background

Ms. Zurro’s original complaint, filed in December 2011, set forth two claims: a count for civil theft (count I) and a count for conversion (count II). Count I included an allegation that, as a result of Wells Fargo’s actions, Ms. Zurro had been required to obtain counsel and was obligated to pay counsel a reasonable fee and that Wells Fargo was liable for Ms. Zurro’s attorney’s fees pursuant to section 772.11, Florida Statutes (2011). The “Wherefore” clause or prayer for relief of count I also demanded attorney’s fees. Count II did not include an allegation regarding procurement of counsel or otherwise demand fees.

In May 2013, the complaint was amended by stipulation of the parties and a count for breach of contract (count III) was added. Count III did not include a demand for attorney’s fees in its prayer for relief; it did, however, set forth an allegation that Ms. Zurro had been required to obtain counsel and was obligated to pay counsel a reasonable fee.

Three months later, in August 2013, Ms. Zurro moved to file a second amended complaint, seeking to add a claim for punitive damages to count II and to add the inadvertently omitted demand for attorney’s fees in the Wherefore clause of count III. An amended motion to file a second amended complaint was filed in January 2014. Wells Fargo filed no response to either motion.

On February 25, 2014, about one week before the trial date, a hearing was held on Ms. Zurro’s motions. There is no transcript of that hearing, but based on the order denying the motions to amend — entered on the same day as the final judgment, almost nine months after the hearing — both parties’ correspondence to the trial court, and the arguments before this court, it is apparent that neither the parties nor the court addressed the attorney’s fee issue at the hearing. The court orally denied the request to add a punitive damages claim to count II.

The case proceeded to a bench trial in early March 2014. On the final day of trial, the court made oral findings and requested that both parties submit proposed orders consistent with the court’s findings. The court did not identify the counts for which it was ruling in favor of Ms. Zurro, nor did it address attorney’s fees. As a result, the parties’ proposed orders differed as to the counts on which Ms. Zurro had prevailed. Significantly, along with her proposed order Ms. Zurro included a cover letter to the court which addressed attorney’s fees:

There was no ruling on the claims for attorney fees ... and I assumed that that would be addressed by later Motions. If you prefer to make a preliminary ruling on entitlement to attorney fees, I submit the following language for inclusion in the Order:
Paragraph 29 of the Wachovia Bank Deposit Agreement provides that the depositor must reimburse Wachovia Bank for Wachovia Bank’s costs and expenses (including attorney fees) in any action in which Wachovia Bank is the prevailing party. The Plaintiff is the prevailing party for purposes of this provision. Florida Statutes Section 57.105(7) provides for the reciprocal recovery of attorney fees. If a contract contains a provision allowing attorney fees to a party when he or she is required to take any action to enforce the contract, the court must also allow reasonable attorney fees to the other party when that party prevails in any action, whether as plaintiff or defendant with respect to the contract. Accordingly, the plaintiff shall be entitled to recover her attorney fees in this action.

Wells Fargo also submitted a proposed final judgment and cover letter. It did not raise the issue of Ms. Zurro’s alleged pleading deficiency in response to her proposed final judgment and cover letter. Rather, it proposed that the court reserve jurisdiction to hear any fee motions.

Thereafter, the court entered an Order on Findings of Fact and Conclusions of Law, wherein the court found in favor of Wells Fargo on count I and in favor of Ms. Zurro on counts II and III. The court stated that it would consider any properly filed motions for attorney’s fees and costs. The Order did not otherwise address attorney’s fees. Both parties subsequently filed motions for reconsideration. In its motion, Wells Fargo alleged that Ms. Zur-ro had made it “abundantly clear” that attorney’s fees were the driving force behind her claims. Both parties also filed motions for determination of entitlement to attorney’s fees and costs.

The fee motions were heard September 16, 2014. At that hearing, for the first time, Wells Fargo raised its argument that Ms. Zurro was not entitled to fees on count III because she had not demanded them in the Wherefore clause of the claim. Ms. Zuito verbally sought permission to amend count III to conform to the evidence presented at trial, but the motion was denied. The day after the hearing, Ms. Zurro submitted correspondence to the court wherein she reminded the court that the August 2013 motion to amend the complaint included the request to amend the Wherefore clause of count III, that Wells Fargo had not objected to the addition of the demand for fees, that the court had not ruled upon the request to amend the Wherefore clause at the hearing on the motions to amend, and that no written order on the motion had been entered. Ms. Zurro further argued that the exception to the rule that claims for attorney’s fees must be pleaded, as announced in Stockman v. Downs, 573 So.2d 835 (Fla.1991), was applicable to her case.

On November 10, 2014, eight months following the trial, the court entered three orders: (1) the order denying Ms. Zurro’s motion for reconsideration, granting her motion for clarification, granting Wells Fargo’s motion for clarification and motion for reconsideration, denying Wells Fargo’s motion for rehearing, and vacating the Order of Findings of Fact and Conclusions of Law; (2) the order denying Ms. Zurro’s motions to file a second amended complaint; and (3) the final judgment.

The order denying Ms. Zurro’s motions to file a second amended complaint provides that the court previously orally denied the request to add a claim for punitive damages and that because Ms. Zurro presented no argument concerning her request to add a specific demand for attor-ne/s fees to the Wherefore clause of count III, the argument had been waived.

Without elaboration, the final judgment provides both that Ms. Zurro was permitted to amend the Wherefore clause of count III to include a demand for attorney’s fees and that Ms. Zurro is not entitled to attorney’s fees because there was no request for attorney’s fees in count III. Both parties filed motions for rehearing which were denied. This appeal followed.

II. Analysis

The fundamental concern with regard to claims for attorney’s fees is notice. Stockman, 573 So.2d at 837. Therefore, “a claim for attorney’s fees, whether based on statute or contract, must be pled” in order “to notify the opposing party of the claims alleged and prevent unfair surprise.” Id. “A party should not have to speculate throughout the entire course of an action about what claims ultimately may be alleged against him.” Id. However, the Stockman court announced an exception to the general rule: “[wjhere a party has notice that an opponent claims entitlement to attorney’s fees, and by its conduct recognizes or acquiesces to that claim or otherwise fails to object to the failure to plead entitlement, that party waives any objection to the failure to plead a claim for attorney’s fees.” Id. at 838.

We resolve this appeal on the basis of the Stockman exception. Wells Fargo was on notice of Ms. Zurro’s claim for entitlement to attorney’s fees well before trial. Wells Fargo cannot justifiably argue otherwise. All three counts of the complaint alleged that Ms. Zurro had been required to obtain counsel and that she was obligated to pay counsel a reasonable fee, and count I included an express demand for fees. Further, Ms. Zurro’s claim for attorney’s fees was before the court prior to final judgment, and the record establishes that prior to entry of the final judgment the court had not ruled upon Ms. Zurro’s request to add the express demand for attorney’s fees in the Wherefore clause of count III. Cf. Stockman, 573 So.2d at 838 (finding the exception to the pleading requirement inapplicable where the “claim for attorney’s fees was not before the court prior to final judgment”). Moreover, Wells Fargo did not object to Ms. Zurro’s request to amend count III or to her statement regarding entitlement to fees in correspondence to the court attaching her proposed order of findings of fact and conclusions of law. The issue of attorney’s fees was clearly in play at the time of trial. Cf. BMR Funding, LLC v. DDR Corp., 67 So.3d 1137, 1141 (Fla. 2d DCA 2011) (quoting Sardon Found. v. New Horizons Serv. Dogs, Inc., 852 So.2d 416, 421 (Fla. 5th DCA 2003)). Any argument by Wells Fargo to the contrary is disingenuous, as established by its posttrial arguments. In its motion for reconsideration following the court’s Order of Findings of Fact and Conclusions of Law, Wells Fargo alleged that Ms. Zurro had made it “abundantly clear” that attorney’s fees were the driving force behind her claims. Cf. Stockman, 573 So.2d at 838 (“There was no action or inaction on Stockman’s part that can be deemed to be a recognition of the fact that the Downses intended to claim attorney’s fees or a waiver of objection to their failure to plead such a claim.”). As such, Wells Fargo, “at all pertinent times knew, recognized and acquiesced, without objection or suggestion of surprise, prejudice or disaccommodation,” that Ms. Zurro was claiming entitlement to attorney’s fees. See Brown v. Gardens by the Sea S. Condo. Ass’n, 424 So.2d 181, 183 (Fla. 4th DCA 1983), cited with approval in Stockman, 573 So.2d at 838; see also Auglink Commc’ns, Inc. v. Canevari, 932 So.2d 338, 341 (Fla. 5th DCA 2006) (applying the Stockman exception where it was “abundantly clear that there was no surprise caused by Cane-vari’s failure to plead entitlement to attorneys’ fees in his answer”).

III. Conclusion

The court erred in finding that Ms. Zur-ro was not entitled to attorney’s fees; the Stockman exception to the failure to plead a claim for attorney’s fees is applicable. Consequently, we reverse that portion of the final judgment which denies Ms. Zur-ro’s claim for fees and remand for proceedings consistent with this opinion.

Affirmed in part; reversed in part; remanded.

WALLACE and LUCAS, JJ., Concur.

      . Neither party’s motion addressed the internal inconsistency of the final judgment with regard to attorney’s fees.

      . We recognize that American Express Bank International v. Inverpan, S.A., 972 So.2d 269, 270 (Fla. 3d DCA 2008), holds that the allegation in a complaint that the plaintiff had retained counsel and was obligated to pay fees to counsel failed to "plead specifically a request for attorney’s fees.” However, unlike our case, Inverpan involved an amended single-count complaint with no prayer for attorney’s fees where no further amendment was sought. Cf. Fanelli v. HSBC Bank USA, 170 So.3d 72, 73 (Fla. 4th DCA 2015) (“If the purpose of the Stockman pleading requirement is to give notice to an opposing party, a sentence in a mortgage foreclosure pleading stating that a party has hired attorneys and is obligated to pay a reasonable fee for their services is sufficient to alert the other side that attorney’s fees might come into play.”).

      . Ms. Zurro clearly sought to comply with the pleading requirement of Stockman by moving to amend her complaint. See, e.g., BMR Funding, LLC v. DDR Corp., 67 So.3d 1137, 1140 (Fla. 2d DCA 2011) (”[T]he phrase ‘must be pled’ [in Stockman ] is to be construed in accord with the Florida Rules of Civil Procedure. Complaints, answers, and counterclaims are pleadings pursuant to Florida Rule of Civil Procedure 1.100(a).” (alteration in original) (quoting Green v. Sun Harbor Homeowners’ Ass’n, 730 So.2d 1261, 1263 (Fla.1998))). The court’s apparent failure to rule on Ms. Zurro’s request to amend count III to include a demand for attorney's fees in the Wherefore clause prior to trial serves to preclude a waiver determination and to further disprove any lack of notice argument by Wells Fargo. See Brown v. Gardens by the Sea S. Condo. Ass’n, 424 So.2d 181, 184 (Fla. 4th DCA 1983) ("As matters stood, appellants were affirmatively lulled into believing that their claim was known, alive, and that same would be adjudicated.”), cited with approval in Stockman, 573 So.2d at 838.