author: KELLY, Judge. SILBERMAN, Judge,

text:
    Adrian W. DOE, III and Evelyn Mullins Doe, Petitioners, v. SUNTRUST BANK, Tampa Bay, as Trustee of the Adrian W. Doe, Jr., Irrevocable 1997 Trust, and as Trustee of the 1998 Adrian W. Doe, Jr., Irrevocable Trust; Madelin Roe, a minor; and Maria Coe, a minor, Respondents.
    No. 2D08-1239.
    District Court of Appeal of Florida, Second District.
    Jan. 29, 2010.
    Rehearing Denied April 1, 2010.

      Robert Bruce Snow, P.A., Brooksville, for Petitioners.

      Steven L. Brannock of Brannock & Humphries, Tampa, and William R. Lane, Robert J. Kline, and Jennifer L. Griffin of Holland & Knight LLP, Tampa, for Respondent Suntrust Bank, Tampa Bay.
    Stephen C. Patrinostro and David L. Whigham of Whigham Law Group, P.A., Tampa, for Respondent Madelin Roe.
    George A. Vaka and Nancy A. Lauten of Yaka Law Group, P.L., Tampa, for Respondent Maria Coe.
   KELLY, Judge.

In this certiorari petition, Adrian Doe, III, and Evelyn Doe seek to quash an order that would compel them to provide a DNA sample (via buccal swab) to establish the paternity of Madelin Roe, a nine-year-old child who claims she is the child of the Does’ deceased father, Adrian W. Doe, Jr. This petition arises from a declaratory judgment action brought by Sun-trust Bank in its capacity as Trustee for various trusts established by Adrian Doe, Jr. The trusts provide that upon Doe’s death, the remaining assets are to be held in trust for the benefit of his “children” or “descendants” in equal shares. When Suntrust learned that Madelin and a second child, Maria Coe, might be Doe’s children, and thus beneficiaries of his trusts, it brought the declaratory judgment action against Evelyn, Adrian, Madelin, and Maria to determine the beneficiaries of the trusts.

Suntrust’s verified complaint alleges that Adrian and Evelyn are Doe’s legitimate children, and that Maria and Made-lin, who were born in Costa Rica, may be his children through relationships with Wendy Coe and Erika Roe, respectively. According to the complaint, Doe was never married to either girl’s mother, however, the Civil Registry in Costa Rica identifies Maria as the child of Doe and Wendy Coe. The Civil Registry is silent regarding the identity of Madelin’s father, however, according to the complaint, Erika has “made informal claims” that Doe is Madelin’s father. Adrian and Evelyn denied that Doe was the girls’ father, and they have actively opposed the guardians’ efforts to establish that the girls are his children, and thus, beneficiaries of his trusts.

At the request of the Trustee, the court appointed guardians ad litem to represent the girls in the litigation. The guardians traveled to Costa Rica to meet with their respective wards and further investigate the claims of paternity and compile evidence supporting the claims. Although Adrian and Evelyn have challenged their accuracy and authenticity, Maria’s guardian provided the court with documents from the Civil Registry that identify Doe as Maria’s father, including a document bearing Doe’s signature and passport number. Faced with the absence of any official record establishing that Doe was Madelin’s father, Madelin’s guardian ad litem sought an order compelling Adrian and Evelyn to each provide a buccal swab sample for testing to determine the paternal relationship between Madelin and Doe. Madelin’s motion indicates that she and her mother have already submitted a DNA sample for that purpose.

In support of her motion, Madelin cited section 742.12, Florida Statutes (2005), which provides for scientific testing in actions to determine paternity. Adrian and Evelyn objected stating that the court was without authority to compel them to submit to DNA testing because section 742.12 provides for testing of only the mother, child, and alleged fathers, not the legitimate children of a deceased putative father. The court denied Madelin’s motion.

Madelin filed a second motion, this time citing section 732.108(2)(b), Florida Statutes (2005), which recognizes that a child born out of wedlock may obtain an adjudication of paternity after the death of the father, and case law recognizing that paternity can be established in a proceeding to determine the beneficiaries of a trust. Adrian and Evelyn again objected arguing that the court was without authority to compel them to submit to DNA testing. Additionally, the Does argued that section 760.40, Florida Statutes (2005), prohibits the court from ordering them to submit a DNA sample for testing. After a hearing, the court, citing section 732.108, granted Madelin’s motion. Adrian and Evelyn then filed this petition for certiorari asking us to quash the order.

We view Madelin’s motion for DNA testing as a discovery request and the trial court’s order as one compelling discovery. Certiorari is the appropriate vehicle to obtain relief from orders granting discovery. See Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987). To obtain relief, the petitioner must demonstrate that the order departs from the essential requirements of law, causing material injury to the petitioner throughout the remainder of the proceedings which cannot be remedied on appeal. See id. Given the nature of the order at issue in this case, if we find that it departs from the essential requirements of law, the material harm element will follow. See Gasparino v. Murphy, 352 So.2d 933, 935 (Fla. 2d DCA 1977). Consequently, we turn to the question of whether the trial court’s order departs from the essential requirements of law.

The petitioners first contend that the trial court was not authorized to compel them to submit a buccal swab sample for testing to determine the paternal relationship between Madelin and Doe. Preliminarily, we note that paternity may be determined in an action for declaratory relief, see, e.g., Kendrick v. Everheart, 390 So.2d 53, 58-60 (Fla.1980) (recognizing the father’s right to bring a declaratory judgment action to determine paternity); Rogers v. Runnels, 448 So.2d 530, 532 (Fla. 5th DCA 1984) (recognizing a child’s right to bring an action for declaratory relief to determine paternity after the child reaches majority), including an action brought by a trustee to determine the beneficiaries of a trust. See Knauer v. Barnett, 360 So.2d 399 (Fla.1978) (reviewing a determination of paternity sought by a trustee in a declaratory judgment action to determine the parties entitled to receive the income and corpus of a trust). As in any other civil action, the Rules of Civil Procedure apply to an action to determine the beneficiaries of a trust. See § 736.0201(1), Fla. Stat. (2007). Rule 1.280(b)(1) provides that “[pjarties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party,” and rule 1.380 provides that the court may compel a party to comply with a discovery request. Because Doe’s trusts provide that his “children” are the beneficiaries, the issue of Madelin’s and Maria’s paternity is relevant to the subject matter of the action. Accordingly, we conclude that the trial court would have the authority to order Adrian and Evelyn to provide a buccal swab sample for testing to determine the paternal relationship between Doe and Madelin unless somehow prohibited by other law.

Adrian and Evelyn contend that section 760.40 prohibits the court from ordering them to submit to DNA testing. Specifically, they point to the passage in subsection (2)(a) that states: “DNA analysis may be performed only with the informed consent of the person to be tested.” Our first difficulty with the petitioners’ interpretation of this language is that they base it on the flawed assumption that DNA analysis performed pursuant to an order compelling discovery does not satisfy the informed consent requirement. In the context of this statute, informed consent is an aspect of the relationship between a DNA analyst and the person whose DNA is to be analyzed — it has nothing to do with the reason an individual may be providing a sample for testing. From the perspective of an entity or individual performing DNA analysis, when an individual presents themselves and provides a DNA sample for analysis, they have consented to having the analysis performed. The fact that the individual may have done so pursuant to a court order is beside the point in determining whether, from the analyst’s perspective, an individual has consented to having their DNA analyzed.

Nor does the plain language of the statute support the construction offered by the petitioners. Section 760.40 is aimed at two types of individuals or entities: those who analyze DNA and those who receive the records, results, or findings of the analysis. It criminalizes performing DNA analysis or disclosing the results without obtaining the informed consent of the person tested. See § 760.40(2)(b). It also provides confidentiality for results held by public entities by exempting them from the public records law. See § 760.40(2)(a). Finally, it requires that the person tested be notified that the analysis was performed and whether the information was used in any decision to grant or deny any insurance, employment, mortgage, loan, credit or educational opportunity. See § 760.40(3).

Viewed as a whole, it appears to us that the primary purpose of the statute is to protect individuals who undergo DNA analysis by requiring informed consent before the analysis is performed, by providing confidentiality for the results, including exempting the results from disclosure as a public record, by providing control over how the results are disclosed, and by requiring notification that the analysis was performed and how it was used. The exceptions in subsection (2)(a) are circumstances in which the legislature chose not to afford these protections. They are not, as the petitioners contend, the only circumstances in which a court may order testing. The petitioners’ contention that the exceptions listed in section 760.40 represents the only circumstance in which a court is authorized to order an individual to submit to DNA testing, ignores the reality that courts routinely order DNA testing under a variety of circumstances not specified in section 760.40. Aecord-ingly, we reject the petitioners’ contention that the trial court was categorically prohibited from ordering them to provide a DNA sample for testing to determine the paternal relationship between Doe and Madelin.

Although we reject the contention that the trial court was categorically prohibited from ordering the petitioners to submit a buccal swab sample for testing, we must still determine whether the court’s order in this case conforms to the essential requirements of law. Procedurally, this case is similar to Wicky v. Oxonian, 24 So.3d 571 (Fla. 2d DCA 2009). In Wicky, the personal representative of an estate pursuing a wrongful death claim filed a discovery request seeking permission to test an existing sample of the defendant’s blood. The personal representative’s motion did not identify the rule of civil procedure that authorized the testing, although it mentioned rule 1.280, the general discovery rule. The defendant thought the request was made under rule 1.350, which addresses the production of documents and things. This court concluded that neither rule governed the request, and that “a request to test human bodily fluids in a civil action must satisfy the requirements of rule 1.360, ‘Examination of Persons.’ ” Id. at 572-73. Because the parties did not view the discovery request as one under rule 1.360, they did not focus on the rule’s “good cause” and “in controversy” requirements when presenting their arguments to the trial court. See Fla. R. Civ. P. 1.360(1), (2). Ultimately, this court found that because of this, the movant had not met his burden under the rule and consequently, the order permitting the blood to be tested departed from the essential requirements of law.

We find the parties here in much the same situation. Madelin’s request did not identify the rule of civil procedure that would have authorized the test, and the petitioners apparently never considered the applicability of any of the rules. Initially, we conclude that a request to submit a buccal swab sample for DNA testing should satisfy the “good cause” and “in controversy” requirements of rule 1.360 even though the rule is not a precise fit given that the petitioners are not being examined, but rather, are being asked to produce something — cheek cells from the inside of their mouths. Although the test is noninvasive and involves cells rather than bodily fluids, we conclude that the reasoning in Wicky is applicable here, and it requires that such requests be afforded the protections found in rule 1.360. Additionally, without specifically analyzing its applicability, courts in this state have looked to rule 1.360 to determine the propriety of orders requiring DNA testing when the testing was not ordered pursuant to a particular statute that provided for such testing. See, e.g., Stevens v. Dep’t of Revenue ex rel. Beltran, 790 So.2d 1182 (Fla. 2d DCA 2001); Dep’t of Revenue ex rel. Chambers v. Travis, 971 So.2d 157 (Fla. 1st DCA 2007); Dep’t of Revenue ex rel. Freckleton v. Goulbourne, 648 So.2d 856 (Fla. 4th DCA 1995).

A party may request an examination under rule 1.360 if the condition that is the subject of the examination is in controversy and the requesting party has good cause for the examination. Fla. R. Civ. P. 1.360(1), (2). The movant must make an affirmative showing that the “ ‘condition as to which the examination is sought is really and genuinely in controversy’ ” and that good cause exists for ordering the examination. Gasparino, 352 So.2d at 935 (quoting Schlagenhauf v. Holder, 379 U.S. 104, 118, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964)). As explained in Schlagenhauf:

This does not, of course, mean that the movant must prove his case on the merits in order to meet the requirements for a mental or physical examination. Nor does it mean that an evidentiary hearing is required in all cases. This may be necessary in some cases, but in other cases the showing could be made by affidavits or other usual methods short of a hearing. It does mean, though, that the movant must produce sufficient information, by whatever means, so that the [trial] judge can fulfill his function mandated by the Rule.

Id. at 119, 85 S.Ct. 234; see also Russenberger v. Russenberger, 639 So.2d 963, 965 (Fla.1994) (holding that the trial court departed from the essential requirements of the law by permitting compulsory examinations under the discovery rule without determining whether the rule’s “good cause” and “in controversy” requirements had been satisfied). Although the pertinent pleadings in this case are verified, and thus could potentially satisfy the burden imposed on Madelin, we conclude that under the facts of this case, they are not sufficient. For that reason, the order compelling Adrian and Evelyn to provide a buccal swab sample departs from the essential requirements of law, and we grant the petition and quash the order.

Because it seems likely that Madelin will again attempt to obtain discovery to assist her in establishing that she is a beneficiary of Doe’s trusts, and because a request to test the relatives of a deceased putative father in the context of an action to determine the beneficiaries of a trust presents some unique issues, we believe it is appropriate to offer the parties and the court some guidance should this issue arise again.

First, we note that the issue of whether Madelin is Doe’s child, and thus a beneficiary of his trusts, is clearly at the heart of this litigation. However, thus far, it appears that the only pleadings suggesting she may be his child are the Trustee’s verified complaint, which simply attests to the Trustee’s knowledge that Madelin claims to be Doe’s child and her verified motion to compel testing which states only that she “maintains she is a child born out of wedlock” to Doe. We believe something more is required, for example, an affidavit from Madelin’s mother alleging paternity and setting forth facts establishing a reasonable possibility of the requisite sexual contact with Doe. See § 742.12(2) (requiring a sworn statement or declaration under penalty of perjury alleging paternity and setting forth facts establishing a reasonable possibility of the requisite sexual contact between the parties as a perquisite to obtaining an order for scientific testing). Such an affidavit would satisfy the requirement that the subject matter of the test be “really and genuinely” in controversy. See Schlagenhauf, 379 U.S. at 119, 85 S.Ct. 234.

Madelin will also have to demonstrate “good cause” for her request that Adrian and Evelyn be required to provide a buccal swab sample for testing. In the typical paternity action, a compelled DNA test is dispositive of the issue in controversy, and thus good cause for the test is established. See Wicky, 24 So.3d at 574. This case is not, however, a typical paternity case because it is the legitimate children of the deceased putative father who are being asked to submit a sample of their DNA for testing. Under these circumstances, we believe two considerations are important in determining the existence of good cause. First, it would seem appropriate that Madelin provide some evidence that a comparison of her DNA with the DNA of Doe’s legitimate children could produce a result that would tend to prove or disprove the existence of a genetic link between Doe and Madelin. Second, it would also seem appropriate to require that she make some showing of need. For example, in the arguments presented to this court, Madelin and the Trustee have indicated that Doe was cremated, thus eliminating the possibility of any comparison with a sample derived from his remains. As far as we can tell, this fact was not presented as evidence in the trial court. Likewise, while the Trustee’s verified complaint suggests that no official documentation exists that would allow Madelin to establish that Doe is her father, it seems reasonable to require a more definitive statement to that effect, perhaps from Madelin’s guardian ad litem.

Finally, as we explained in Wicky, in all discovery matters the competing interests of the parties must be balanced. 24 So.3d at 576. Doe did not name specific beneficiaries in his trusts; instead he instructed that the assets in the trusts be divided among his children. Other language in the trusts indicates he contemplated the possibility of having children other than Adrian and Evelyn. Given that this is an action to determine the beneficiaries of his trusts, consideration should be given to effectuating his intent as expressed in the trusts. As for Madelin, if she is in fact Doe’s child, her rights with respect to the trusts are equal to those of Evelyn and Adrian. Further, her interests are akin to those of an out of wedlock child seeking to share in the intestate estate of a parent. Florida recognizes the right of an out-of-wedlock child to share in a parent’s estate. See § 732.108(2). Florida also recognizes the right of a child born out of wedlock to establish paternity after the death of the father. See § 732.108(2)(b). For that right to be meaningful, the child must have a fair opportunity to prove that the deceased is her father. What is fair may vary from case to case, but any evaluation should take into account the heightened burden of proof imposed on out-of-wedlock children who seek to establish paternity after the death of the putative father. See Berkey v. Odom (In re Estate of Odom), 397 So.2d 420 (Fla. 2d DCA 1981) (holding that in an action to establish paternity after the death of the father, proof of paternity shall be by clear and convincing evidence), disapproved on other grounds, Wilson v. Scruggs (In re Estate of Smith), 685 So.2d 1206 (Fla.1996).

On the other hand, Adrian and Evelyn have a privacy interest they seek to protect. In considering the weight to afford that interest, several factors are important. First, the intrusion is minimal — the test Madelin seeks is noninvasive, and the purpose of the test is limited to comparing her DNA to theirs. Second, rule 1.360(a)(3) provides that the court, upon request, may establish protective rules governing an examination. Thus far, Adrian and Evelyn have only asserted a generalized complaint that submitting a DNA sample invades their privacy, however, if they are able to articulate any specific privacy concern, they have the ability to ask the court to fashion protective rules to address that concern. Third, Adrian and Evelyn have affirmatively denied that Madelin is Doe’s child, and they have actively opposed all efforts by her or Maria to prove that they are his children. Having taken that position, it is questionable whether they should be permitted to withhold the evidence that may put Madelin’s claim and their defense to rest once and for all. They have the alternative of conceding that Madelin is a beneficiary should they wish to avoid the test.

We grant the petition and quash the order.

ALTENBERND, J., Concurs.

SILBERMAN, J., Concurs in part and dissents in part with opinion.

SILBERMAN, Judge,

Concurring in part and dissenting in part.

I agree that the circuit court departed from the essential requirements of the law in ordering Adrian and Evelyn to submit to DNA testing. However, I do not agree with the majority’s reasoning or its conclusion that the circuit court, on remand, may order DNA testing under general discovery principles. The narrow question presented by this case is whether the circuit court departed from the essential requirements of the law by ordering Adrian and Evelyn to submit to DNA testing as part of the discovery process when section 760.40, Florida Statutes (2005), clearly prohibits such DNA testing without informed consent. Because I believe that the circuit court was bound by the limitations in section 760.40, I would answer that question in the affirmative and grant the writ of certiorari.

I agree with the majority that DNA testing is authorized for a determination of paternity for a person born out of wedlock under section 732.108(2)(b), Florida Statutes (2005). See § 742.12(1), Fla. Stat. (2005) (providing for DNA testing of the child, mother, and alleged fathers “[i]n any proceeding to establish paternity”) (emphasis added). However, section 760.40 imposes limitations on the court’s authority to order such DNA testing.

Section 760.40 is entitled “Genetic testing; informed consent; confidentiality; penalties; notice of use of results.” It provides in pertinent part as follows:

(2)(a) Except for purposes of criminal prosecution, except for purposes of determining paternity as provided in s. 409.256 or s. 74.2.12(1), and except for purposes of acquiring specimens from persons convicted of certain offenses or as otherwise provided in s. 943.325, DNA analysis may be performed only with the informed consent of the person to be tested\ and the results of such DNA analysis, whether held by a public or private entity, are the exclusive property of the person tested, are confidential, and may not be disclosed without the consent of the person tested.

(Emphasis added.) “DNA analysis” is defined as “the medical and biological examination and analysis of a person to identify the presence and composition of genes in that person’s body.” § 760.40(1). It also includes genetic testing and DNA typing. Id. Thus, the informed consent of the subject of DNA testing must be obtained prior to obtaining the DNA sample and conducting genetic testing or DNA typing unless one of the statutory exceptions applies. The only applicable exception in this case is the use of the DNA to determine paternity as provided in section 742.12(1).

Section 742.12 is entitled “Scientific testing to determine paternity,” and subsection (1) provides as follows:

(1) In any proceeding to establish paternity, the court on its own motion may require the child, mother, and alleged fathers to submit to scientific tests that are generally acceptable within the scientific community to show a probability of paternity. The court shall direct that the tests be conducted by a qualified technical laboratory.

(Emphasis added.) This section thus authorizes a court to require a child, mother, and putative father to submit to DNA testing. Reading this statute in conjunction with section 760.40, a court is authorized to require such DNA testing on the child, mother and putative father without their informed consent. However, because section 742.12(1) does not authorize a court to require a putative sibling to submit to DNA testing, the prohibition against DNA testing without informed consent in section 760.40(2)(a) applies to putative siblings.

In this case, the guardian for Madelin properly sought an adjudication of paternity pursuant to section 732.108(2)(b) after the decedent’s death. While the circuit court was authorized by section 742.12(1) to order DNA testing of the child, the mother, and the putative father in order to make a paternity adjudication, it was not authorized to order DNA testing of others absent their informed consent as required by section 760.40(2)(a). Accordingly, the circuit court departed from the essential requirements of the law in ordering Adrian and Evelyn to submit to DNA testing as putative siblings of Madelin.

The majority devalues the privacy right at issue in this case by asserting that the intrusion on one’s privacy is minimal because the test is noninvasive and used only to compare the putative child’s DNA to that of the legitimate children. The privacy right protected by section 760.40(2)(a) is not just the right to be free from unwarranted physical intrusion, but the right to keep private one’s DNA composition. The majority, under the guise of discovery rules, would allow circuit courts to order DNA testing if the testing is arguably relevant to the pending matter, thereby ignoring the legislative determination protecting an individual’s privacy rights to his or her own DNA.

I fully recognize Madelin’s entitlement to obtain relevant discovery under Florida Rule of Civil Procedure 1.280(b)(1) and the circuit court’s authority under Florida Rule of Civil Procedure 1.380 to compel a party to comply with a discovery request. However, the right to discovery is not absolute. Rule 1.280(b)(1) precludes discovery regarding any matter that is privileged. Florida law recognizes privileges created by the Florida Evidence Code, statutes, and the Florida and United States Constitutions. See § 90.501, Fla. Stat. (2005); cf. § 316.066(4), Fla. Stat. (2005) (creating a privilege for crash reports); § 766.101(5), Fla. Stat. (2005) (creating a privilege for medical review committee records). Section 760.40 effectively creates a privilege regarding DNA testing by requiring informed consent before such testing is performed and before any results of the testing are disclosed.

I cannot accept the majority’s conclusion that the purpose of section 760.40(2)(a) is to require an individual to sign a “consent” form against his or her will and under threat of sanctions by the circuit court in order to authorize DNA testing. There would appear to be no use for such a statute if DNA testing could be ordered by a court simply as part of the discovery process. Thus, the majority’s interpretation of section 760.40(2)(a) would render it meaningless, and we are not permitted to construe statutes in that manner. See Am. Home Assurance Co. v. Plaza Materials Corp., 908 So.2d 360, 367-68 (Fla.2005) (quoting Unruh v. State, 669 So.2d 242, 245 (Fla.1996)).

Furthermore, we are not permitted to ignore the clear intent of the legislature to protect the privacy rights of a person to his or her DNA. The majority’s interpretation of the statute essentially inserts the qualifying phrase, “unless directed by a circuit court in the course of discovery,” into section 760.40(2)(a)’s prohibition against DNA testing without informed consent. The majority supports this interpretation by expressing concern that section 760.40(2)(a) might preclude courts from ordering DNA testing against a party’s will in certain types of cases. However, the legislature has expressly considered the circumstances under which informed consent should not be required by including exceptions within section 760.40(2)(a) itself. The majority’s reservations about the consequences of applying the statutory protections in other types of cases do not justify interpreting section 760.40(2)(a) in a manner that completely eviscerates those protections.

It is sometimes helpful to remember that statutory interpretation is not a contact sport played between the judiciary and the legislature as members of opposing teams. Statutory interpretation is an important function of the judiciary designed to facilitate the functioning of the legislature and the fulfillment of the laws and policies adopted by the legislature. The judiciary must use a degree of common sense in deciding whether the legislature’s intent is sufficiently clear that the court may imply a qualifying phrase within a statute. If there is any reasonable concern that a reading other than a strict interpretation might not comport with the legislature’s intent, the legislature should generally be required to amend the statute, if that is necessary to fulfill its actual intent.

Doe v. Dep’t of Health, 948 So.2d 803, 809 (Fla. 2d DCA 2006) (footnote omitted).

For these reasons, I would grant the petition for writ of certiorari and quash the circuit court’s order compelling Adrian and Evelyn to submit to DNA testing.

      . A buccal swab is a cotton-tipped device used to collect cheek cells from the inside of an individual's mouth.

      . The names of the parties and the other persons mentioned in the caption and in the recitation of the facts of this case are fictitious. We use fictitious names in this opinion to protect the privacy of the individuals involved.

      . Section 742.12 provides in pertinent part:
      742.12. Scientific testing to determine paternity.—
      (1) In any proceeding to establish paternity, the court on its own motion may require the child, mother, and alleged fathers to submit to scientific tests that are generally acceptable within the scientific community to show a probability of paternity. The court shall direct that the tests be conducted by a qualified technical laboratory.
      (2) In any proceeding to establish paternity, the court may, upon request of a party providing a sworn statement or written declaration as provided by s. 92.525(2) alleging paternity and setting forth facts establishing a reasonable possibility of the requisite sexual contact between the parties or providing a sworn statement or written declaration denying paternity and setting forth facts establishing a reasonable possibility of the nonexistence of sexual contact between the parties, require the child, mother, and alleged fathers to submit to scientific tests that are generally acceptable within the scientific community to show a probability of paternity. The court shall direct that the tests be conducted by a qualified technical laboratory.

      . Section 732.108(2)(b) provides:
      (2) For the purpose of intestate succession in cases not covered by subsection (1), a person born out of wedlock is a lineal descendant of his or her mother and is one of the natural kindred of all members of the mother's family. The person is also a lineal descendant of his or her father and is one of the natural kindred of all members of the father's family, if:
      (b) The paternity of the father is established by an adjudication before or after the death of the father.

      . Section 760.40 provides:
      Genetic testing; informed consent; confidentiality; penalties; notice of use of results.—
      (1) As used in this section, the term “DNA analysis" means the medical and biological examination and analysis of a person to identify the presence and composition of genes in that person's body. The term includes DNA typing and genetic testing.
      (2)(a) Except for purposes of criminal prosecution, except for purposes of determining paternity as provided in s. 409.256 or s. 742.12(1), and except for purposes of acquiring specimens from persons convicted of certain offenses or as otherwise provided in s. 943.325, DNA analysis may be performed only with the informed consent of the person to be tested, and the results of such DNA analysis, whether held by a public or private entity, are the exclusive property of the person tested, are confidential, and may not be disclosed without the consent of the person tested. Such information held by a public entity is exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution.
      (b) A person who violates paragraph (a) is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
      (3)A person who performs DNA analysis or receives records, results, or findings of DNA analysis must provide the person tested with notice that the analysis was performed or that the information was received. The notice must state that, upon the request of the person tested, the information will be made available to his or her physician. The notice must also state whether the information was used in any decision to grant or deny any insurance, employment, mortgage, loan, credit, or educational opportunity. If the information was used in any decision that resulted in a denial, the analysis must be repeated to verify the accuracy of the first analysis, and if the first analysis is found to be inaccurate, the denial must be reviewed.

      . For example, section 943.325(8), Florida Statutes provides for the involuntary collection of DNA samples and even authorizes the use of reasonable force if necessary; section 943.325(13) provides for the results of DNA analysis performed under that section to be placed in a statewide database accessible by an assortment of criminal justice agencies; section 742.12(3), Florida Statutes provides that the results of tests ordered pursuant to that section be filed in the court file.

      . On its face, section 760.40 is silent regarding when DNA testing may be ordered. The legislative history, likewise, is silent on the issue of whether or when a court may order DNA testing. According to the legislative history, the purpose of the statute was to provide confidentiality for the results of genetic testing akin to the statutory confidentiality afforded to medical records. See Fla. S. Comm, on Judiciary, CS/SB 980 (1992) Staff Analysis (Feb. 28, 1992) (Fla. State Archives).

      . For example, section 760.40 omits section 742.12(2), which provides for court-ordered scientific testing at the request of a party in a paternity action and section 742.18, which provides for scientific testing to disestablish paternity. Additionally, DNA testing is sometimes ordered in family law cases, a fact recognized in Florida Family Law Rule 12.360, which explains that in a family law case a request under rule 1.360 may include, among other things, a request for genetic testing. The petitioners’ reading of the statute as one directed to what a court may or may not do would make it a misdemeanor for labs to perform the court-ordered DNA tests under these circumstances, and presumably would make it a misdemeanor for a judge to order it. Additionally, because the statute exempts only “criminal investigations,” arguably it would be a misdemeanor to use DNA analysis to investigate juvenile offenses that are "delinquent acts” rather than crimes.

      . That right may be especially important to children whose parentage may be called into question by the DNA test results.


source: Caselaw Access Project

author: LEVINE, J. FARMER, J.,

license: Public Domain

text:
    William Albert BROSE, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2530.
    District Court of Appeal of Florida, Fourth District.
    Feb. 17, 2010.
    Rehearing Denied May 11, 2010.

      Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   LEVINE, J.

This appeal presents the question of whether the State established the corpus delicti of the crime of dealing in stolen property with the requisite corroborating evidence aside from Appellant’s extrajudicial statements. We find that there is sufficient evidence, in addition to Appellant’s statements, to affirm the conviction for dealing in stolen property.

The State presented a witness, Officer Aguirre of the Riviera Beach Police, who testified that Appellant, with another man beside him, was pushing a city-issued garbage can filled with twenty to thirty fishing poles in a parking lot located three or four blocks from the Intracoastal Waterway. Officer Aguirre saw Appellant and made contact with him to find out why he was pushing so many fishing poles in a garbage can. At trial, Aguirre described Appellant as being unkempt and wearing dirty clothes. Another Riviera Beach officer, Officer Gordon, testified to Appellant’s statements after his arrest, regarding where the fishing poles were stolen from and what Appellant was to receive in exchange for the stolen fishing poles.

At trial, there was testimony that Appellant brought the officers to the house from which he took the fishing poles. Appellant pointed to the place where he had made entry into the home, the southwest side of the garage. There, the window screen was cut out, and in the northeast corner of the garage, there was a fishing pole rack with numerous empty slots for the missing poles. The State entered into evidence photographs of the garbage can with the fishing poles, as well as the pictures of the home broken into and the broken out window and cut screen.

“In reviewing a motion for judgment of acquittal, a de novo standard of review applies.” Pagan v. State, 830 So.2d 792, 803 (Fla.2002). An appellate court will not reverse a conviction that is supported by competent substantial evidence. Id. “If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.” Id.

Section 812.019(1), Florida Statutes (2007), makes it a crime for any person to “traffic” in or endeavor to “traffic” in, property he knows or should have known was stolen. Trafficking means “[t]o sell, transfer, distribute, dispense, or otherwise dispose of property” or “[t]o buy, receive, possess, obtain control of, or use property with the intent to sell, transfer, distribute, dispense, or otherwise dispose of such property.” § 812.012(8), Fla. Stat. (2007). The parties do not dispute that the State established that the fishing poles were stolen. Instead, the question is whether there was sufficient evidence of the possession of stolen goods with the intent to sell or transfer aside from Appellant’s own extrajudicial statements.

“Evidence of theft only, with the intent personally to put the stolen item or items to normal use, constitutes only the crime of theft and not the crime of trafficking or dealing in stolen property....” State v. Camp, 596 So.2d 1055, 1057 (Fla.1992). The State, however, introduced significant evidence tending to show that the stolen property, that being twenty or thirty fishing poles transported in a garbage can in the middle of the night by Appellant, was not for normal or personal use. Further, there is no minimum number of stolen goods required to constitute trafficking in stolen property. Gonzalez v. State, 948 So.2d 892 (Fla. 5th DCA 2007).

After the State introduced the evidence of Appellant pushing a garbage can of twenty to thirty fishing poles in the middle of the night, the State was able to introduce Appellant’s statements. A confession can be admitted only after the State proves the corpus delicti of the crime by bringing forth substantial evidence tending to show the commission of the crime charged. State v. Allen, 335 So.2d 823, 825 (Fla.1976); Snell v. State, 939 So.2d 1175, 1179 (Fla. 4th DCA 2006). The State merely has to make a prima facie demonstration of the corpus delicti, independent of the inculpatory statements. Hodges v. State, 176 So.2d 91, 93 (Fla.1965). The State need not establish the perpetrator’s identity. Snell, 939 So.2d at 1179. In this case, there was substantial evidence tending to show that someone committed the crime of dealing in stolen property, allowing for the admission of Appellant’s confession. The sheer number of fishing poles in Appellant’s possession belies any contention that the poles were for his personal use.

The primary reason for the requirement that the proof of the corpus delicti of the crime be introduced before the admission of the defendant’s statement is to protect the defendant “from being convicted of a nonexistent crime due to ‘derangement, mistake or official fabrieation.’ ” Snell, 939 So.2d at 1178-79 (citation omitted). In the present case, based upon the evidence presented, there is no concern that the crime did not occur or that Appellant confessed to a nonexistent crime.

For all the foregoing reasons, we affirm.

Affirmed.

WARNER, J., concurs.

FARMER, J., dissents with opinion.

FARMER, J.,

dissenting.

In affirming the conviction for dealing in stolen property, the majority reasons:

“ ‘Evidence of theft only, with the intent personally to put the stolen item or items to normal use, constitutes only the crime of theft and not the crime of trafficking or dealing in stolen property.... ’ State v. Camp, 596 So.2d 1055, 1057 (Fla.1992). The State, however, introduced significant evidence tending to show that the stolen property, that being 20 or 30 fishing poles transported in a garbage can in the middle of the night by Appellant, was not for normal use. Further there is no minimum number of stolen goods required to constitute trafficking in stolen property.”

Slip Op. at 2. Their logic is based on the notion that he must have wanted to sell them because he stole so many of them. Is more than one enough, under this rationale? How many is enough to indicate selling?

As the court held in Blount v. State, 641 So.2d 447, 449 (Fla. 2d DCA 1994): “the critical concept in Camp is not personal use, but negotiation” when the crime is dealing in stolen property. And even if personal use were the test for the crime of dealing in stolen property — which it isn’t-— how do we derive the conclusion that 20 or 30 fishing poles is too many for personal use? As in Blount, the majority’s construction introduces an intolerable ambiguity.

When the crime is merely theft, personal use may be important because one element of the crime of theft is the appropriation of property of another to one’s own use. See Pizzo v. State, 945 So.2d 1203 (Fla.2006) (holding that among elements of grand theft is obtaining property of another with intent to appropriate the property to one’s own use). But when dealing is the charge, there can be no reliance on an intuition of personal use, because it is certainly predictable for a thief to steal a longterm supply to reduce the frequency of having to commit the act of theft. The majority’s premise simply does not fit their conclusion.

As suggested above, the text of the statute does not bear the construction placed on it by the majority. Section 812.019(1) provides: “Any person who traffics in, or endeavors to traffic in, property that he or she knows or should know was stolen shall be guilty of a felony of the second degree. ...” The term traffic is defined to mean:

“(a) To sell, transfer, distribute, dispense, or otherwise dispose of property, (b) To buy, receive, possess, obtain control of, or use property with the intent to sell, transfer, distribute, dispense, or otherwise dispose of such property.”

§ 812.012(8), Fla. Stat. (2009). The majority opinion would make mere possession of goods sufficient to prove dealing, without any other evidence of an overt act designed to “sell, transfer, distribute, dispense, or otherwise dispose of such property.”

The analogue to trafficking in controlled substances simply does not hold up. In Rawlings v. State, 979 So.2d 1238 (Fla. 4th DCA 2008), the stolen substance possessed by the defendant was packaged in 31 individual baggies. If the possessor intends only to smoke the entire lot himself, why go to the trouble of packaging it in 31 individual baggies?

Nothing in this case suggests that defendant had packaged or handled or used his trove in such a manner. In fact there is absolutely no evidence, apart from the fishing poles themselves, indicating in any way he intended to traffic in fishing poles. The majority is unreasonably enlarging the definition of the crime without textual support. I would grant a JOA on this charge because the evidence is facially insufficient to support a confession.

I dissent.

      . Specifically, Appellant told Officer Gordon that he planned to sell the fishing poles to "Bobby Lee.”

      . An analogy can be drawn to drug cases, where the amount of drugs can be used to establish the defendant's intent to sell or distribute. Rawlings v. State, 979 So.2d 1238 (Fla. 4th DCA 2008) (finding competent evidence of intent to sell was established by the amount of drugs found on defendant as that amount was inconsistent with personal use).


author: PER CURIAM.

text:
    Michael SENECA, a/k/a Anothony Valentino, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-5213.
    District Court of Appeal of Florida, Fourth District.
    Feb. 24, 2010.
    Rehearing Denied May 5, 2010.
    Michael Seneca, Madison, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the summary dismissal of appellant’s second, successive postconviction relief motion. The motion was untimely and an abuse of procedure. See Witt v. State, 465 So.2d 510, 512 (Fla.1985). The issue that appellant raised could and should have been raised on direct appeal and not in postconviction proceedings. See Rose v. State, 675 So.2d 567, 569 n. 1 (Fla.1996); McCrae v. State, 437 So.2d 1388, 1390 (Fla.1983). Indeed, appellant provides those portions of the transcript which show that the very issue he raises in this motion was raised before the trial judge in the original proceedings. His claim that a “manifest injustice” would occur if he is not given relief is specious.

GROSS, C.J., WARNER and FARMER, JJ., concur.


text:
    Marcus L. BLACKMON, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2880.
    District Court of Appeal of Florida, Fourth District.
    March 3, 2010.
    Rehearing Denied May 11, 2010.

      Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Marcus L. Blackmon was tried by jury and convicted of unlawful sexual activity with a minor. He appeals his conviction and sentence on the ground that the trial court committed fundamental error in proceeding to trial without finding him competent to proceed. However, in this case, unlike in an earlier case discussed below, the defendant neither claimed that he was incompetent to stand trial nor moved for a hearing to determine his competency.

In an earlier case, the defendant was charged with two counts of burglary of a conveyance. He was found incompetent to proceed to trial on July 27, 2007. His case was transferred to a second judge, who ordered the Department of Children and Families to provide the defendant with competency restoration and treatment.

On May 14, 2008, the defendant attended a plea and sentencing hearing before a third judge in the burglary case. Before the proceedings, neither the defense attorney nor prosecutor apprised the trial court of the July 27, 2007 order adjudicating the defendant incompetent. The court did not hold a hearing to determine whether the defendant had been restored to competency or enter a written order to that effect. The defendant entered a negotiated plea of guilty to one count of burglary of a conveyance and one count of attempted burglary of a conveyance. He was sentenced as a habitual felony offender to concurrent terms of one year plus one day in prison on both counts. The defendant appealed his conviction and sentence. We reversed, holding that the defendant remained incompetent to enter guilty pleas until the trial court held a hearing and adjudicated him competent to proceed. See Blackmon v. State, 23 So.3d 239 (Fla. 4th DCÁ 2009).

The appeal now before us arose from a separate case, wherein the defendant was charged with armed sexual battery, kidnapping, and unlawful activity with a minor. The defendant’s trial on these charges began on June 3, 2008, about three weeks after the plea hearing in the burglary case. The defendant went to trial before the same judge, with the same prosecutor and defense attorney. However, as mentioned above, the record in this case does not reflect that the defendant ever moved for a hearing to determine his competency to proceed to trial or that an order adjudicating him incompetent was ever entered.

It is well-settled that “ ‘a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.’” Carter v. State, 706 So.2d 873, 875 (Fla.1997) (quoting Drope v. Missouri,, 420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975)). Further, “once adjudicated incompetent, the legal status of a defendant cannot change from incompetent to competent without a hearing.” Erickson v. State, 965 So.2d 294, 294 (Fla. 5th DCA 2007). Accord Jackson v. State, 880 So.2d 1241, 1242 (Fla. 1st DCA 2004).

Generally, however, the trial court has no independent obligation to hold a competency hearing if there is nothing to alert the court that the defendant may lack competency. See Cushnie v. State, 993 So.2d 590 (Fla. 4th DCA 2008). In the burglary case, wherein the defendant entered a plea, a review of the court file would have alerted the trial court to the unresolved competency issues. Upon reviewing the file and finding the order adjudicating the defendant incompetent, the court would have been required to conduct a competency hearing and enter a written order stating that the defendant was restored to competence before accepting his plea in that case. Blackmon, 23 So.3d at 240.

In contrast, here, where no motion had been filed and no order adjudicating the defendant incompetent had ever been entered, the trial court was presumably unaware that the defendant may have been incompetent to proceed to trial. The record does not reflect that counsel for the defendant or the state raised the issue of the defendant’s competency in this case. Nor does the record reflect that the defendant’s conduct during the course of the proceedings was such as to alert the trial court to any competency concerns. Moreover, the court could not properly be charged with knowledge of the contents of the file and competency proceedings in the separate burglary case. We thus affirm the defendant’s conviction and sentence without prejudice to seek postconviction relief.

Because we find no merit in the defendant’s claim that the trial judge committed fundamental error in sentencing the defendant pursuant to an inconsistent verdict, we affirm on that point as well.

Affirmed.

TAYLOR, GERBER and LEVINE, JJ., concur.


author: WARNER, J.

text:
    Ivy SCHNEIDER, Appellant, v. Andrew SCHNEIDER, Appellee.
    Nos. 4D07-2796, 4D07-3239.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2010.

      H. Mark Purdy and Craig J. Trocino of Purdy & Flynn, P.A., and H.T. Maloney and Heather Apicella of Patterson & Malo-ney, Fort Lauderdale, for appellant.
    Howard S. Friedman and Lisa K. Bennett of Fischler & Friedman, P.A., Fort Lauderdale, for appellee.
   WARNER, J.

The dissolution of the marriage of the parties to this appeal has been a costly, time-consuming affair. Commenced in 2001, a final judgment was entered in 2002, but post-judgment appeals and litigation over attorney’s fees has consumed the ensuing years. In these consolidated cases, the wife appeals two judgments ordering the husband to pay her attorney’s fees— one award of fees arises out of the original dissolution proceedings, and the other arises out of post-judgment proceedings to compel the husband to increase his life insurance. Although the parties have treated both orders as final orders subject to appeal, we conclude that the order awarding fees out of the original litigation is not a final order. Moreover, that order, which attached a lengthy transcript as the court’s ruling, is lacking in substantive clarity so that even if we were to treat it as a final judgment, we would have to reverse. As to the second order awarding fees for the post-judgment proceeding, the trial court refused to award fees for litigating the motion for fees, as a matter of law. We reverse that order, as we hold that awarding fees for fee litigation in a marital dissolution case falls within the discretion of the trial court.

The wife initially retained Ryna Mehr of Hunt, Cook, Riggs, Gross & Greenberg, P.A. (“Hunt Cook”) to represent her in the dissolution proceedings. However, she terminated Hunt Cook before the final hearing and refused to pay the firm for its services. The firm filed a notice of claim and charging lien. The court awarded the firm $102,281.38 against the wife only, finding that its conclusion as to the reasonableness of the fees applied exclusively to the wife. The wife appealed the final judgment on the Hunt Cook charging lien, and this court issued a PCA affirming the judgment. See Schneider v. Schneider, 892 So.2d 1050 (Fla. 4th DCA 2004).

After the wife terminated Hunt Cook, she hired two attorneys from different law firms, Andrew Rose of Rose & Rose, P.A., and Peter Ticktin of Ticktin & Rodriguez, P.A., to represent her in the dissolution proceedings. Rose represented the wife with respect to matters related to the financial aspects of the divorce, while Tick-tin worked on matters related to the children.

After a lengthy trial, the court entered a final judgment of dissolution of marriage which resolved issues pertaining to child custody, equitable distribution, and alimony, and which required the husband to maintain a certain level of life insurance coverage to secure his support obligations. As to attorney’s fees, the court reserved jurisdiction to determine the reasonable amount of attorney’s fees that the husband would be required to pay to the wife. The wife then terminated Ticktin and Rose and retained Hugh Maloney, Esquire, of Patterson & Maloney as her attorney.

The husband appealed the final judgment of dissolution of marriage. On motion by the husband, the trial court stayed further consideration of the attorney’s fees issue until after the appeal. This court affirmed the final judgment in its entirety. See Schneider v. Schneider, 864 So.2d 1198 (Fla. 4th DCA 2004). The husband then filed a petition for writ of certiorari with the Florida Supreme Court, which was denied. Schneider v. Schneider, 874 So.2d 1192 (Fla.2004). The Florida Supreme Court provisionally granted the wife appellate fees of $2,500 resulting from the husband’s petition for certiorari.

Following their termination, Ticktin and Rose each moved to establish and adjudicate charging liens in favor of their respective law firms. After several evidentiary hearings on the issue of these charging liens, the trial court entered an order adjudicating the amount of the charging liens for Ticktin and Rose. The court determined the reasonable number of hours and hourly rate for each lawyer. It awarded Ticktin $97,000 in attorney’s fees plus costs and awarded Rose $60,485 plus costs. Both awards were made against the wife only, the court specifically stating that the order would have no effect on the issue of entitlement in any proceeding to require the husband to pay fees. The wife appealed this judgment on the Ticktin and Rose charging liens, and this court issued a PCA affirming the judgment. See Schneider v. Schneider, 954 So.2d 1172 (Fla. 4th DCA 2007).

After the appeal of the final judgment in the original proceeding concluded, the wife moved to increase the amount of life insurance coverage the husband was required to maintain. The court granted the motion, prompting another appeal which was affirmed. See Schneider v. Schneider, 942 So.2d 893 (Fla. 4th DCA 2006). This court conditionally granted the wife’s motion for appellate fees.

The wife then moved for attorney’s fees in the trial court for prosecuting the motion to increase life insurance. After a full hearing, the trial court entered a final judgment awarding a total of $32,664.75 in fees and costs for both trial and appellate work relative to the life insurance issue. The court specifically rejected the amount of time that the attorneys expended in pursuing their entitlement and amount of attorney’s fees for the motion.

With respect to the attorney’s fees up to the time of the entry of the final judgment, multiple hearings were held on the motions from 2004 to 2007. During that time, three judges recused themselves from these proceedings.

On January 11, 2007, the trial court orally announced its ruling. At the beginning of the oral ruling the court asked the wife’s attorney to prepare an order. The court would announce its ruling and permit the lawyers to ask questions to clarify the ruling. Then the wife’s attorney would reduce the ruling to writing. The court referred to a demonstrative aid, on which the court made some modifications, to be part of the ruling. The court also mentioned that it would reserve ruling on some additional fees which the wife’s attorney claimed. The court then prefaced its determination of the actual amounts awarded by telling the parties that they had essentially wasted their assets and money through this hotly contested litigation. The court found that the fees were excessive.

The court determined that the husband would be required to pay some of the wife’s fees due to the dramatic disparity in the parties’ respective incomes. However, it rejected the assertion of each party that the other party’s litigation tactics caused each to incur such large fees. The court noted that both parties evidenced a “my way or the highway” approach to the litigation. The trial court attributed much of the fees the wife incurred to “attorney hand holding” for the wife as well as her father.

Explaining that it had gone line by line through the bills of each of the firms who represented the wife, the court then “rati-fie[d]” the Hunt Cook lien of $102,281. The court found that the Ticktin and Rose fees awarded in the lien litigation were reasonable but not for purposes of fee shifting to the husband. After finding that there was excessive hand holding in this case, the trial court gave specific examples of the charges that would be disallowed for fee shifting purposes. It discounted multiple entries on the bills. On some of the bills, the court announced the number of hours discounted, but on others it did not. The court did not specify the amount of reasonable hours or the hourly rate of any of the lawyers involved.

The court found that the husband had already paid approximately $105,000 towards the wife’s attorney’s fees, and the wife had paid $136,000. It then ordered the husband to be responsible for an additional sum of $140,000 plus interest from 2007 less a credit the wife owed the husband on an equitable distribution award. Concluding that there was no appropriate way to divide the amount between the wife’s lawyers, the court “exercised discretion” in making the awards. However, it then explained that its calculations on the repayment schedule needed to be “retooled.” It stated that “the total reasonable fees [is] $247,556, of which then the bottom line obligation [of] Doctor Schneider is $123,757.... ” After making some other comments, the court said to the wife’s attorney, “With that I would turn to Mr. Maloney as the drafter of the order asking if there is any question that I can answer to assist you in the preparation of the written order.” Both attorneys asked multiple questions, including how the various fee amounts would be divided between the various lawyers. The oral ruling continued for 40 pages of transcript.

The written order which was signed a month later simply stated, “Former Husband shall pay Former Wife’s attorneys’ fees and costs pursuant to the ruling of the Court on January 11, 2007, at 10:00 a.m.; as delineated in the attached transcript.” It is apparent that the wife’s attorney made no attempt to prepare a written order recording the exact provisions of the oral ruling, nor did he attach the demonstrative aid the court used in making its calculations.

The wife timely appealed both the order awarding fees on the life insurance obligation and the order on fees for the original dissolution litigation.

As to the order on fees for the original litigation, it is not a final, appeal-able order as the court clearly intended to have a written order incorporating all of its findings and “retooled” in several respects. Some of the figures the trial court used were “approximate,” for which it appears that the court intended that the parties supply the correct amounts, such as how much the husband had already paid in attorney’s fees to the wife. It made various calculations, deducting hours from the Tiektin and Rose bills, but those calculations do not appear in the “final order.” Whether they can be gleaned from the demonstrative exhibits or from the bills introduced in evidence at the various hearings is something that the trial court will have to determine when it enters its final order. The court also did not include in its calculation of fees the amount of the accounting fee which it found was reasonable.

The order is incomplete. Under prevailing law, the trial court must make findings to substantiate a fee award and allow for meaningful review. See DeLillo v. DeLillo, 848 So.2d 454, 455 (Fla. 4th DCA 2003). When someone other than the client is required to pay the other party’s attorney’s fees, the trial court must award only a reasonable fee, determined from testimony by expert witness lawyers as to the prevailing rates for attorneys in comparable circumstances and as to the amount of time reasonably expended by the attorney for the party seeking payment. Franklin & Marbin, P.A. v. Mascola, 711 So.2d 46, 48-49 (Fla. 4th DCA 1998); Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145 (Fla.1985). This requires the trial court to make findings of fact in the judgment as to the number of hours spent and a reasonable hourly rate. Simpson v. Simpson, 780 So.2d 985, 988 (Fla. 5th DCA 2001). Absent such factual findings, reversal is required even where evidence is contained in the record from which the Rowe factors of the number of hours and reasonable rate can be determined. Id. Because the order does not contain these findings, we would reverse even if we did consider it a final order. We simply cannot review the propriety of these awards without understanding exactly what the trial court determined to be the reasonable amount of hours expended by the attorneys employed by the wife.

Based upon the foregoing, we dismiss the appeal of the order on attorney’s fees for the original litigation.

The wife also appeals the final judgment of attorney’s fees for the life insurance litigation. She does not question the court’s findings on the reasonableness or amount of fees. Instead, she contends that the court erred in failing to award her fees for litigating the reasonableness and amount of fees. The trial court specifically declined to include such fees in its award.

On appeal, the wife claims that State Farm Fire & Casualty Co. v. Palma, 629 So.2d 830, 833 (Fla.1993), required the court to award fees for litigating the entitlement to fees but contends that Palma should not be followed to the extent that it disallows attorney’s fees for litigating the amount of fees. We conclude that Palma does not apply to attorney’s fees awarded in dissolution proceedings pursuant to section 61.16, Florida Statutes.

In Palma, the supreme court considered whether a court could include attorney’s fees for litigating the entitlement and amount of fees awardable pursuant to section 627.428(1), Florida Statutes, to an insured who obtains a final judgment against an insurer pursuant to a policy or contract of insurance. The court held that the statutory language permitted a court to award fees for litigating the issue of entitlement to fees, because the statutory provision is implicitly part of all insurance policies and thus entitlement to fees constituted a claim under the policy. However, the statute could not be construed to include fees for litigating the amount of fees. The court invited the legislature to change the statute if it disagreed with the court’s construction. Palma, therefore, is strictly a statutory interpretation case and not a general public policy pronouncement on the compensability of “fees for fees.”

Section 61.16(1), Florida Statutes, under which fees are awarded in dissolution of marriage litigation, is a decidedly different statute from the statute involved in Palma. It provides:

The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter....

The statute permits awards of temporary attorney’s fees as well as a final award. It is not a prevailing party fee statute. See Widder v. Widder, 673 So.2d 954 (Fla. 4th DCA 1996) (recognizing that relative financial circumstances of the parties controls fee award in dissolution proceedings, not prevailing party standard).

Our supreme court in Rosen v. Rosen, 696 So.2d 697 (Fla.1997), explained that under Chapter 61 the principal consideration for awarding fees is the relative financial circumstances of the parties regarding their need and ability to pay. It emphasized the wide discretion that family courts have in determining fee awards.

[P]roceedings under chapter 61 are in equity and governed by basic rules of fairness as opposed to the strict rule of law. See § 61.011, Fla. Stat. (1995) (“Proceedings under this chapter are in chancery.”). The legislature has given trial judges wide leeway to work equity in chapter 61 proceedings. See, e.g., § 61.001, Fla. Stat. (1995). Thus, section 61.16 should be liberally — not restrictively — construed to allow consideration of any factor necessary to provide justice and ensure equity between the parties.
Section 61.16 constitutes a broad grant of discretion, the operative phrase being “from time to time.” The provision simply says that a trial court may from time to time, i.e., depending on the circumstances surrounding each particular case, award a reasonable attorney’s fee after considering the financial resources of both parties. Under this scheme, the financial resources of the parties are the primary factor to be considered. However, other relevant circumstances to be considered include factors such as the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; whether the litigation is brought or maintained primarily to harass (or whether a defense is raised mainly to frustrate or stall); and the existence and course of prior or pending litigation. Had the legislature intended to limit consideration to the financial resources of the parties, the legislature easily could have said so.
We further find that a court may consider all the circumstances surrounding the suit in awarding fees under section 61.16. Moreover, in situations where a court finds that an action is frivolous or spurious or was brought primarily to harass the adverse party, we find that the trial court has the discretion to deny a request for attorney’s fees to the party bringing the suit.

Id. at 700-01 (footnote omitted). Thus, unlike the statute involved in Palma in which attorney’s fees were granted in an action at law, courts assessing fees in dissolution of marriage proceedings look to far different factors in determining both the entitlement and amount of fees. Whether a party is entitled to fees depends upon the court’s rulings as to the distribution of assets, alimony, and child support, which all factor into the determination of the need of the requesting spouse. But the amount of fees also impacts the financial circumstances of the requesting spouse, because leaving an impecunious spouse with substantial fees to pay could severely impact that spouse’s financial circumstances. Indeed, Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), teaches that an award of attorney’s fees may be proper to prevent an inequitable diminution of one spouse’s assets.

The assessment of fees in a marital dissolution action is part of the court’s duty to effect an equitable division of the parties’ assets and income. The need and ability to pay requirement is tantamount to a finding of entitlement of one spouse to have the other spouse pay all or a portion of the spouse’s fees. To determine that need and ability, however, the amount of those fees must also be considered. Therefore, the court in its discretion may assess fees for litigating both factors, as they are part and parcel of the equitable proceedings.

We disagree with the conclusion of Wight v. Wight, 880 So.2d 692 (Fla. 2d DCA 2004), which applied Palma to hold that fees awarded to a needy spouse in a dissolution action cannot include fees for litigating the amount of fees. Wight acknowledged that a fee award under section 61.16 is based on different considerations than the fee award in Palma but interpreted Palma as holding that awarding fees for litigating the amount of fees was proper only where the purpose of the statutory fee award was to assure that indigent defendants could secure adequate representation. Reasoning that the purpose of a section 61.16 award was to assure that both parties were able to secure competent counsel, the court determined that fees for litigating the amount of the fee could not be recovered pursuant to Palma.

The court in Wight theorized that permitting fees for litigating the amount of fees would give no incentive to the party who expected to win the award to limit its fees. We do not agree that this would routinely be the case. To the contrary, the party who expects to have to pay fees could litigate the amount of fees to excess, knowing that he or she would not be responsible to the other party for the fees incurred. It is also possible that the wealthier party may excessively litigate the fee amount for the purpose of harassing the other party.

In any event, Rosen solves the dilemma. Under our supreme court’s interpretation of section 61.16 in Rosen, the trial court has wide discretion in the award of reasonable and necessary fees. Should the court conclude that the fees incurred were unnecessary or that the positions taken were frivolous, then the court can adjust the amounts accordingly. However, no ban on fees for litigating fees, as a matter of law, is contained in either the statute or Rosen. Palma simply does not apply to section 61.16 fee awards. In this case, the court disallowed fees for litigating fees as a matter of law. Because we conclude that the court has discretion in that determination, we reverse and remand the final judgment for fees in the life insurance issue for a reconsideration of the matter and the exercise of the court’s discretion as to whether to allow them in this case.

Appeal dismissed in part; reversed in part.

STEVENSON and LEVINE, JJ., concur.


text:
    Roger KHAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1366.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2010.
    Rehearing Denied May 4, 2010.
    Roger Khan, Indiantown, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Roger Khan seeks review of two orders. The first order dismisses a filing, construed as a Rule 3.850 motion, as untimely, successive, and abusive. Khan moved for rehearing, alleging that he had not sent the filing to the circuit court, nor was it intended for the court’s review. The motion for rehearing was also dismissed as frivolous. The trial court forwarded a certified copy of the order dismissing the rehearing motion to the Department of Corrections for consideration of sanctions under sections 944.279(1), 944.28, and 944.09, Florida Statutes.

We reverse and remand for the trial court to vacate the orders. The record on appeal does not reflect that Khan sent the initial filing to the circuit court such that it should have been considered as a Rule 3.850 motion and characterized as successive, untimely, and frivolous. Consequently, the order denying rehearing must be vacated as well.

FARMER, STEVENSON and LEVINE, JJ., concur.


text:
    UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. PETER F. MERKLE, M.D., P.A., a/a/o Terry Laray, Respondent.
    No. 4D09-1715.
    District Court of Appeal of Florida, Fourth District.
    March 17, 2010.
    Rehearing Denied May 7, 2010.
    Thomas L. Hunker, Miami, for petitioner.
    Roberts J. Bradford, Jr. of Law Office of R.J. Bradford, Jr., P.C., Johnson City, Tennessee, for respondent.
   WARNER, J.

By this petition for writ of certiorari United Automobile Insurance Company seeks review of a decision of the circuit court, sitting in its appellate capacity, affirming a summary judgment entered by the county court. Petitioner contends that the circuit court relied on the “tipsy coachman” doctrine to affirm the summary judgment on the basis of the legal insufficiency of United’s affidavit in opposition to the motion for summary judgment, which was not the ground upon which the county court granted the motion. However, in so ruling, the circuit court failed to grant United’s request for an opportunity to amend its affidavit to correct the insuffi-ciencies. This constitutes a departure from the essential requirements of law which would result in a miscarriage of justice, denying United the opportunity to show that it is entitled to a trial on the merits.

Dr. Peter Merkle, the respondent, treated one of United’s insureds for injuries suffered in an auto accident. Merkle submitted his bills to United, which refused payment. Merkle filed suit to collect the insured’s PIP benefits.

Merkle moved for summary judgment on the issue of the reasonableness, relatedness, and necessity of the treatment provided. In support of the motion Merkle filed affidavits from himself and his billing manager. In opposition, United filed an affidavit from Dr. Richard Glatzer, who had conducted a peer review of the insured’s medical records. Generally, he opined that some of the treatment was unnecessary.

At the hearing on the motion for summary judgment, the county court refused to consider Dr. Glatzer’s affidavit because he did not physically examine the insured. The court concluded that section 627.736(7)(a), Florida Statutes, required Dr. Glatzer to independently examine the insured in order to issue a “valid report” under the statute and that a peer review report which consisted of a review of the insured’s treatment records was insufficient to contest the reasonableness of the treatment. The trial court did not rule on Merkle’s oral objections to the legal sufficiency of Dr. Glatzer’s affidavit, as they did not affect the court’s opinion on the peer review issue.

United appealed to the circuit court. While on appeal both the Second and Third Districts held that the statute did not require the reviewing physician to perform an independent medical examination before the insurer could contest payment of the treating physician’s bills. State Farm Mut. Auto. Ins. Co. v. Rhodes and Anderson, D.C., P.A., 18 So.3d 1059 (Fla. 2d DCA 2008); United Auto. Ins. Co. v. Bermudez, 980 So.2d 1213, 1215 (Fla. 3d DCA 2008), receded from on other grounds by United Auto. Ins. Co. v. Santa Fe Med. Ctr., 21 So.3d 60 (Fla. 3d DCA 2009). United argued in its appellate brief that the circuit court should reverse.

In response, Merkle argued that the county court should still be affirmed under the tipsy coachman rule because of the legal insufficiency of the Glatzer affidavit. In its reply brief, United argued that, at most, Merkle pointed to technical defects that could be cured and thus should not be a basis for summary judgment, citing Stephens v. Dichtenmueller, 216 So.2d 448 (Fla.1968) (holding that party should have been afforded at least one opportunity to amend or supplement the expert affidavit to correct technical deficiencies); McCoy v. Hoffmeister, 435 So.2d 989, 990 (Fla. 5th DCA 1983) (holding that non-moving party should have received an opportunity to correct the deficiency in an expert affidavit as “summary judgment should not be granted because of technical deficiencies in the non-movant’s affidavit”). Because the alleged defects in the affidavit could be corrected, the defects are not a basis for summary judgment without giving United an opportunity to amend, which United specifically requested.

The circuit court decided the appeal in favor of Merkle based upon the legal insufficiency of the Glatzer affidavit, not on the statutory ground of failure to conduct an independent medical examination (“IME”) in support of Glatzer’s report. The circuit court did not provide leave for United to amend the affidavit. United then filed this petition for certiorari from that decision.

In the interim, we decided Central Magnetic Imaging Open MRI of Plantation v. State Farm Fire and Casualty, 22 So.3d 782 (Fla. 4th DCA 2009). In Central Magnetic, we concluded that an IME is not required for a peer review report. This is consistent with a recent decision by the Third District in United Automobile Insurance Co. v. Metro Injury & Rehab Center, 16 So.3d 897 (Fla. 3d DCA 2009). Therefore, the issue raised in the county court has been resolved against the county court’s ruling.

Certiorari review from an appellate decision of the circuit court is limited to instances where the circuit court did not afford procedural due process or where it departed from the essential requirements of law. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003) (“A district court should exercise its discretion to grant certiorari review only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice”) (emphasis in original); Haines City Cmty. Dev. v. Heggs, 658 So.2d 523 (Fla.1995) (in reviewing a petition for cer-tiorari district courts of appeal should be primarily concerned with seriousness of error, not mere existence of error; a departure from the essential requirements of law is more than a legal error, it is an act that results in a gross miscarriage of justice); see also Ivey v. Allstate Ins. Co., 774 So.2d 679 (Fla.2000). A departure from the essential requirements of law is synonymous with the failure to apply the correct law. State v. Belvin, 986 So.2d 516, 525 (Fla.2008).

United claims that the circuit court departed from the essential requirements of law resulting in a miscarriage of justice when it failed to permit United an opportunity to correct the technical deficiencies in Dr. Glatzer’s affidavit. As this same issue has been addressed in Stephens, we are bound by the supreme court’s resolution.

The supreme court quashed a decision of our court, Stephens v. Dichtenmueller, 207 So.2d 718 (Fla. 4th DCA 1968), in which we affirmed a final summary judgment in an auto accident case. In our opinion we concluded that an affidavit offered by the plaintiff in opposition to the defendant’s motion for summary judgment did not have the effect of establishing the existence of a material issue of fact, because the affidavit was legally or technically deficient in several respects. Even though the plaintiff had moved to amend to correct the defects and raised this issue in her brief, our court affirmed, concluding that error had not been demonstrated.

On petition for certiorari to the supreme court, the court held that our court had failed to apply the rationale of Holl v. Talcott, 191 So.2d 40 (Fla.1966), in refusing to permit amendment to the affidavit where the defects were “largely technical and may have been amenable to correction .... ” Stephens, 216 So.2d at 450. The court explained, “Great caution should be exercised in any summary judgment proceedings not to deny a litigant ample opportunity to demonstrate that he is entitled to the benefit of a trial.” Id. In a strong concurring opinion, Justice Drew noted the right to a jury trial guaranteed by the Constitution should not be taken away lightly through a summary judgment where there is a genuine issue of material fact present in the suit. Id. at 451.

We have continued to apply this rule requiring an opportunity to correct the affidavit where a summary judgment has been granted on the technical insufficiency of the affidavit. See, e.g., Verdino v. Charcoal Pit, Inc., 898 So.2d 246 (Fla. 4th DCA 2005).

In this case, the circuit court failed to apply the correct law of Stephens when it affirmed the summary judgment on grounds that the Glatzer affidavit was technically deficient, without providing United the opportunity to cure the defects. Stephens also shows that it is a miscarriage of justice to deny a party the right to trial based upon a technical deficiency where the affidavit shows that a genuine issue of fact exists, even if the affidavit is deficient in form, where the party has requested leave to amend to correct the defects. That is the case here.

Because the circuit court failed to apply the correct law, resulting in a miscarriage of justice, we grant the petition, quash the opinion of the circuit court, and remand for further proceedings.

POLEN and STEVENSON, JJ., concur.

      . See Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999) (explaining that "[i]n some circumstances, even though a trial court’s ruling is based on improper reasoning, the ruling will be upheld if there is any theory or principle of law in the record which would support the ruling''); Cohen v. Mohawk, Inc., 137 So.2d 222, 225 (Fla.1962) (‘‘[I]f upon the pleadings and evidence before the trial court, there was any theory or principle of law which would support the trial court’s judgment in favor of the plaintiffs, the district court was obliged to affirm that judgment.”) (emphasis in original); see also Home Depot U.S.A. Co. v. Taylor, 676 So.2d 479, 480 (Fla. 5th DCA 1996).

      . United’s attorney cited Holl v. Talcott to the county court at the hearing on the motion for summary judgment. The court did not entertain argument, however, as the court had already determined the case based upon the peer review report issue.


author: COPE, J.

text:
    Jose CAMINO, Appellant, v. CARL’S FURNITURE, INC., Appellee.
    No. 3D09-2956.
    District Court of Appeal of Florida, Third District.
    March 17, 2010.
    Mai-Ling E. Castillo, Miami, for appellant.

      Andrew J. Daire, for appellee.
    Before COPE, WELLS, and SALTER, JJ.
   COPE, J.

This is an appeal from an order transferring venue to Palm Beach County based on a provision in a purchase contract. We reverse.

The appellant purchased a leather sofa which was custom made. The price was over $4,000 and the price was paid in full. The appellant sued the appellee alleging that the sofa turned out not to be leather and it turned out to be poorly manufactured. The plaintiff filed suit in Miami-Dade County and the defendant moved to transfer venue based on a mandatory venue selection clause in the purchase contract. The mandatory venue selection clause language on the reverse side of the contract is placed in the middle of a section entitled “Default.” The first two or three sentences deal with default in payment. This is followed by the language requiring venue for a dispute to be in Palm Beach County.

The mandatory venue selection clause reads as follows:

7. DEFAULT — In the event buyer cancels or otherwise does not adhere to the overall terms of the sales contract, Revolving Charge Agreement, Credit Card Agreement, buyer forfeits to seller any deposit, or payment amount as liquidated damages to be used for ordering, restocking, storage, financing and administrative expenses associated with the original sales contract. In addition buyer agrees that seller’s retention of these amounts shall be in addition to any other remedy to which seller is otherwise entitled, pursuant to the default provision of the Revolving Charge Agreement o[r] Credit card agreement. Legal venue for all disputes shall be Palm Beach County. Unless a separate written Revolving Charge Agreement or Credit Card agreement exists full payment for the sales contract is due and payable upon receipt of the merchandise, SELLER reserves the right to levy 1.5% interest per month, 19.56 Annual Percentage Rate, on any outstanding balances past due and unpaid by buyer. SELLER shall also be entitled to recover from buyer attorney’s fees and costs incurred in the enforcement of the terms of this agreement.

Because of the placement of the language, we conclude that this venue selection clause applies only in default payment cases, which is not the case here. See Sauder v. Rayman, 800 So.2d 355, 358 (Fla. 4th DCA 2001) (in interpreting forum selection clause, Court looked to the intent of the parties and the language used in the particular forum provision).

We reverse.


author: PALMER, J.

text:
    ALLSTATE INSURANCE COMPANY, Appellant, v. Dave Lee JENKINS, Appellee.
    No. 5D08-4164.
    District Court of Appeal of Florida, Fifth District.
    March 19, 2010.

      David B. Shelton, of Rumberger, Kirk & Caldwell, P.A., Orlando, for Appellant.
    Roy D. Wasson, of Wasson and Associates, Chartered, Miami, and Marianne R. Howanitz of Daniel L. Hightower, P.A., Ocala, for Appellee.
   PALMER, J.

In this uninsured motorist coverage lawsuit, Allstate Insurance Company (Allstate) appeals the final judgment entered by the trial court on the jury’s verdict in favor of Dave Jenkins. Finding no reversible error in the final judgment, we affirm without further discussion. Allstate also appeals the trial court’s order conditionally awarding Jenkins attorney’s fees pursuant to his demand for settlement filed below. That order is not a final appealable order; therefore, this court lacks the legal authority to review it at the present time.

At the close of the trial below, a verdict was entered in Jenkins’ favor in the combined total of $119,237.99. The parties agree that, after set-offs, the net verdict was $94,717.59.

Jenkins filed a motion for attorney’s fees pursuant to section 768.79 of the Florida Statutes (2005) based on Jenkins’ previously filed demand for settlement in which he offered to settle his uninsured motorist claims for the combined policy limits of $75,000.00. The motion stated that a fee award would be warranted provided that the net judgment totaled $93,750.00.

Jenkins thereafter filed a motion seeking leave to amend his complaint to set forth a statutory claim of bad faith against Allstate. See §§ 624.155; 627.727(10), Fla. Stat. (2005). The trial court granted the motion, but abated resolution of the bad faith claims pending resolution of the instant appeal.

The trial court then entered a partial final judgment. The court reduced the net verdict to the available uninsured motorist policy limits of $75,000.00, and then added in an award of costs in the amount of $15,968.33, for a net judgment of $90,968.38. In its order, the trial court expressly reserved jurisdiction to determine any and all statutory bad faith claims.

On the same day, the trial court entered a separate order awarding Jenkins attorney’s fees in the amount of $200,723.75. However, the court ruled that, pursuant to the law as expressed in Allstate Insurance Company v. Sutton, 707 So.2d 760 (Fla. 2d DCA 1998), the award was

contingent upon, and shall not be executed until, a judicial finding of bad faith on the part of the Defendant, ALLSTATE INSURANCE COMPANY. This court, or any court presiding over the Plaintiffs related bad faith claims, shall provide for Entry of Final execution of this Final Judgment once it has been judicially determined that ALLSTATE INSURANCE COMPANY acted in bad faith.

Allstate challenges this ruling arguing that the trial court’s reliance on Sutton was misplaced. This court lacks the authority to review this claim of error at this time because the trial court’s attorney’s fee order constitutes a non-final, non-ap-pealable order.

To that end, the law is well-settled that an attorney’s fee award is not appeal-able until both the issues of entitlement and amount are ruled upon. Here, because the issue of Jenkins’ entitlement to recover his claim for statutory fees is contingent upon future events occurring in the still pending bad faith litigation, the attorney’s fee award is not final, and thus, not reviewable. See State, Dept. of Highway Safety and Motor Vehicles v. Trauth, 971 So.2d 906, 908 (Fla. 3d DCA 2007)(holding that an attorney’s fee award does not become final, and therefore appealable, until the amount of fees is set); Mills v. Martinez, 909 So.2d 340, 342 (Fla. 5th DCA 2005)(explaining that an order determining entitlement to attorney’s fees was not a final order despite being included in a final judgment because an award of attorney’s fees does not become final, and, therefore, appealable until the amount is set by the trial court).

Jenkins has filed with this court a motion for a conditional award of appellate attorney’s fees, seeking an award of attorney’s fees under section 768.79 of the Florida Statutes (2005) conditioned upon his recovery of a judgment sufficiently exceeding the amount of his demand for settlement. As an additional ground for an award of appellate attorney’s fees, Jenkins cites to section 624.155 of the Florida Statutes (2005), which authorizes the recovery of attorney’s fees by a successful plaintiff in a bad faith action. We deny the motion on both grounds.

With regard to the demand for settlement statutory fee request, the net judgment rendered in this action did not rise to the level necessary to entitle Jenkins to recover such fees. The trial court’s decision to allow the bad faith claim in a supplemental proceeding in this action, rather than as a separate action, cannot revive Jenkins’ claim for attorney’s fees under his demand for settlement. The bad faith action is a separate and distinct cause of action, which did not accrue until completion of the initial action and thus cannot be used to obtain attorney’s fees under the demand for settlement filed in the initial action. Although Sutton appears to allow for a subsequent bad faith action to be brought in the original proceeding (a practice which creates an abundance of problems), the bad faith action is more appropriately brought as a separate cause of action.

Similarly, the request for a conditional award of appellate attorney’s fees under the bad faith statute is denied. The instant appeal was from the initial action, not from the subsequent bad faith action. If Jenkins is ultimately successful on his claim of bad faith, he will be entitled to seek recovery of statutory attorney's fees as part of the damages in that suit.

AFFIRMED.

ORFINGER and EVANDER, JJ., concur.


author: STEVENSON, J.

text:
    A-1 QUALITY CORP., Appellant, v. OAK PARK TERRACE, INC., Appellee.
    No. 4D08-4085.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2010.
    Rehearing Denied May 7, 2010.
    Kevin L. Hagen of the Law Offices of Hagen & Hagen, P.A., Fort Lauderdale, for appellant.
    Adam C. Herman of Marshall, Denne-hey, Warner, Coleman & Goggin, Orlando, for appellee.
   STEVENSON, J.

The trial court granted final summary judgment in favor of Oak Park Terrace, Inc. (“Oak Park”), finding that A-l Quality Corp. (“A-l”) was a contractor that undis-putedly did not have a license and thus could not enforce its contract with Oak Park. We reverse as a genuine issue of material fact remains regarding whether the parties’ contract contemplated that A-1 would perform services requiring a contractor’s license.

Oak Park moved for summary judgment, arguing that pursuant to section 489.128, Florida Statutes (2007), entitled “Contracts entered into by unlicensed contractors unenforceable,” A-l could not enforce its contract with Oak Park because A-l was an unlicensed contractor. See § 489.105(3), Fla. Stat. (2007) (“ ‘Contractor’ means ... the person who, for compensation, undertakes to, submits a bid to, or does himself or herself or by others construct, repair, alter, remodel, add to, demolish, subtract from, or improve any building or structure, including related improvements to real estate, for oth-ers_”). A-l responded that the parties’ contract contemplated that A-l would perform only services that did not require a contractor’s license, thereby exempting A-l from the licensing requirement. See § 489.128(l)(a), Fla. Stat. (2007) (“For purposes of this section, if no state or local license is required for the scope of work to be performed under the contract, the individual performing that work shall not be considered unlicensed.”). We find the instant contract ambiguous as to whether A-1 would provide services requiring a license. Thus, we reverse the summary judgment and remand for further proceedings.

Reversed and remanded.

WARNER and POLEN, JJ., concur.

      . The trial court also granted summary judgment in favor of Oak Park on A-l's conversion count. A-l did not contest this on appeal, and we do not herein disturb that ruling.