              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT



In re forfeiture of:                     )
2006 Pontiac Solstice, Identification    )
No. 1G2MB35B56Y115828, Tag J852AJ. )
                                         )
                                         )
ALLEN LEE UNDERWOOD,                     )
                                         )
                Appellant,               )
                                         )
v.                                       )          Case No. 2D15-2981
                                         )
STATE OF FLORIDA, on behalf of           )
COUNTY OF PINELLAS, for the use and )
benefit of the Pinellas County Sheriff's )
Office,                                  )
                                         )
                Appellee.                )
                                         )

Opinion filed August 10, 2016.

Appeal from the Circuit Court for Pinellas
County; J. Thomas McGrady, Judge.

Charles M. Schropp and Charles P.
Schropp of Schropp Law Firm, P.A.,
Tampa; Jerry Theophilopoulos of The
Crow Law Group, Tarpon Springs, for
Appellant.

Shannon Kennedy Lockheart, General
Counsel, Largo, for Appellee.
WALLACE, Judge.

             Allen Lee Underwood appeals a final order denying his amended motion

for damages, costs, and attorney's fees following the voluntary dismissal by the Pinellas

County Sheriff's Office (the PCSO) of a forfeiture proceeding involving a 2006 Pontiac

Solstice owned by Mr. Underwood. We affirm but write to explain our holding and to

point out what appears to be an inequity in the statutory scheme applicable to forfeiture

proceedings in effect at the time of the underlying proceedings. We also certify conflict

with the Fifth District's decision in Cox v. Department of Highway Safety & Motor

Vehicles, 881 So. 2d 641 (Fla. 5th DCA 2004).

                                     I. THE FACTS

             In connection with an investigation conducted by the PCSO, one of its

detectives (the Detective) requested and obtained a search warrant to seize evidence

related to the manufacture of marijuana at Mr. Underwood's residence. On December

14, 2010, detectives employed by the PCSO executed the warrant and seized evidence,

including numerous firearms, growing marijuana plants, harvested marijuana, drug

paraphernalia, and equipment and supplies commonly used to cultivate and harvest

marijuana indoors. In addition, a "concealment container," holding a small amount of

marijuana and rolling papers, was recovered from the front passenger seat of Mr.

Underwood's vehicle. Detectives arrested Mr. Underwood for possession of a

controlled substance with intent to sell and possession of a structure for the purpose of

manufacturing marijuana. See §§ 893.13(1)(a)(2), .1351(2), Fla. Stat. (2010).




                                           -2-
              On December 15, 2010, detectives seized Mr. Underwood's 2006 Pontiac

Solstice (the vehicle) under the Florida Contraband Forfeiture Act (the Act).1 The PCSO

filed a complaint for forfeiture on January 26, 2011, alleging in part that the vehicle was

"a contraband article as defined in [s]ection 937.701(2)(a), Florida Statutes [(2010)]."2

Mr. Underwood filed a request for an adversarial preliminary hearing at which the PCSO

would be required to establish probable cause that the vehicle "was used in violation of

the [Act]." § 932.701(2)(f).

              At the adversarial evidentiary hearing held March 10, 2011, the PCSO

relied upon the testimony of the Detective to establish that it had probable cause to

believe that the vehicle was a contraband article. A detailed account of the Detective's

testimony and Mr. Underwood's response is unnecessary to our resolution of this case.

At the conclusion of the hearing, the trial court found that under the totality of the

circumstances the PCSO had established probable cause for forfeiture of the vehicle

under the Act. However, the trial court observed that "when we get to trial, [the PCSO's]

burden is a whole lot different . . . . [a]nd it's not good, so maybe you can work

something out." The trial court issued a written order on March 21, 2011, finding

probable cause and permitting the PCSO to retain possession of the vehicle pending

further order of the court. Mr. Underwood answered the complaint for forfeiture and

discovery ensued.




              1
                  §§ 932.701-.706, Fla. Stat. (2010).
              2
               Section 932.701(2)(a)(5) defines "contraband article" in pertinent part to
mean "[a]ny . . . vehicle of any kind . . . which was used or was attempted to be used as an
instrumentality in the commission of . . . any felony . . . or which [was] acquired by
proceeds obtained as a result of a violation of the Florida Contraband Forfeiture Act."
                                              -3-
              Ultimately, on November 29, 2012, the PCSO filed a notice/motion of

voluntary dismissal. The PCSO and Mr. Underwood submitted an agreed order

granting the PCSO's requested relief, and the PCSO returned the vehicle to Mr.

Underwood on December 4, 2012. When Mr. Underwood received the vehicle, he

discovered that it had been substantially damaged while in the PCSO's possession.3

On December 11, 2012, the trial court signed the agreed order dismissing the forfeiture

action while reserving jurisdiction to determine costs, fees, or damages, if appropriate.

No hearing or trial was held on the forfeiture claim, and neither the trial court nor a jury

determined whether the vehicle should be forfeited.

              Thereafter, on December 17, 2012, Mr. Underwood filed his "Amended

Claimant's Motion for an Award of Costs, Attorney's Fees, & Damages" under sections

932.704(9)(b) and (10) in the pending forfeiture action. Mr. Underwood claimed that

under section 932.704(9)(b) he was entitled to damages for the loss of use of and for

the loss of value in the vehicle arising from the PCSO's seizure of the vehicle because

he had prevailed in the forfeiture proceeding. He also claimed that he was entitled to

his attorney's fees and costs under section 932.704(10) because the PCSO's conduct

that precipitated the forfeiture action constituted a gross abuse of discretion. Mr.

Underwood further contended that the PCSO's continuation of the action, knowing that it

could not meet its burden of proof, was in bad faith. The trial court held an evidentiary

hearing on Mr. Underwood's motion on April 23, 2015, and May 22, 2015.




              3
               At the conclusion of the hearing on Mr. Underwood's motion for damages,
costs, and attorney's fees, the trial court found that the condition of the car when the
PCSO returned it was not the same as the condition of the car when it had been taken.
                                            -4-
              At the conclusion of the hearing, the trial court denied Mr. Underwood's

claim for damages under section 932.704(9)(b) because, based on the PCSO's

voluntary dismissal of the action, Mr. Underwood did not prevail in the forfeiture action

at a trial or on appeal as required under the statute. In denying Mr. Underwood's motion

for attorney's fees and costs under section 932.704(10), the trial court observed that it

had found at the preliminary adversarial hearing held on March 10, 2011, that the PCSO

had probable cause to seek forfeiture of the vehicle. Then, after conducting discovery,

the PCSO had dismissed the forfeiture action and had returned the vehicle to Mr.

Underwood. For these reasons, the trial court concluded that the PCSO had proceeded

in good faith and ruled that Mr. Underwood was not entitled to his attorney's fees and

costs under section 932.704(10). On June 1, 2015, the trial court entered its written

order denying Mr. Underwood's motion. This appeal followed.

                                    II. DISCUSSION

A. The Standard of Review

              We review the trial court's interpretation of section 932.704(9)(b) de novo.

See In re Forfeiture of: $221,898 in U.S. Currency, 106 So. 3d 47, 49 (Fla. 2d DCA

2013). We must determine whether the trial court's factual findings under section

932.704(10) that the PCSO did not abuse its discretion in bringing the action and that it

had proceeded in good faith are supported by competent, substantial evidence. See

Gay v. Beary, 758 So. 2d 1242, 1244 (Fla. 5th DCA 2000).

B. The Claim for Damages under Section 932.704(9)(b)

              Mr. Underwood argues that an award of damages for the PCSO's seizure

and improper storage of his vehicle was mandatory under section 932.704(9)(b). He



                                           -5-
asserts that the PCSO's position that he was not entitled to damages because he had

not prevailed "at trial or on appeal" as a result of the case having been voluntarily

dismissed before trial is contrary to the Fifth District's holding in Cox, 881 So. 2d 641.

              Section 932.704(9)(b) provides—in pertinent part—that a "trial court shall

require the seizing agency to pay to the claimant the reasonable loss of value of the

seized property when the claimant prevails at trial or on appeal and the seizing agency

retained the seized property during the trial or appellate process." (Emphasis added.)

Thus the plain language of section 932.704(9)(b) requires that there must be a trial or

an appeal and that the claimant prevail at the trial or on appeal before the claimant is

entitled to damages under section 932.704(9)(b). Because no trial or appeal occurred

in this case, we agree with the trial court's ruling that Mr. Underwood was not entitled to

damages under section 932.704(9)(b).

              To the extent that the Fifth District's decision in Cox suggests that the

statute should be interpreted differently, we disagree with that decision. The pertinent

language in Cox is quoted from the Fifth District's earlier decision in Gay, which

interpreted section 932.704(10), not section 932.704(9). In Gay, the claimant appealed

the trial court's order denying her motion for attorney's fees under section 932.704(10)

after the sheriff elected not to proceed to trial and voluntarily dismissed his forfeiture

proceeding against her. 758 So. 2d at 1243-44. Before affirming the trial court's

decision, the Fifth District addressed the sheriff's argument that fees should not be

awarded under section 932.704(10) "because the forfeiture proceeding never reached

the trial stage and thus no 'trial' attorney's fees [were] awardable." 758 So. 2d at 1244.

The Fifth District pointed out that section 932.704(10) provided:



                                             -6-
              When the claimant prevails, at the close of the forfeiture
              proceedings and any appeal, the court shall award
              reasonable trial attorney's fees and costs to the claimant if
              the court finds that the seizing agency has not proceeded at
              any stage in the proceedings in good faith or that the
              agency's action which precipitated the forfeiture proceedings
              was a gross abuse of the agency's discretion.

Id. (emphasis added) (quoting section 932.704(10), Fla. Stat. (1997)). In rejecting the

sheriff's argument that a trial was required before fees could be awarded under section

932.704(10), the Fifth District reasoned as follows:

              [T]he obvious intent of the Legislature . . . was to make
              claimants of wrongfully seized property whole, by requiring
              the seizing agency which brought a baseless forfeiture
              proceeding to compensate the owner of the property for
              reasonably expended attorney's fees and costs necessary to
              regain the property seized. Many cases end before the trial,
              but preparation for trial is necessary and it requires time and
              effort be expended by counsel. It would be contrary to the
              remedial intent of the statute to give it the limited reading
              suggested by the Sheriff.

758 So. 2d at 1244 (emphasis added).

              The Fifth District similarly rejected the sheriff's argument that the claimant

was not the "prevailing party" under section 932.704(10). Instead, it "opt[ed] for the

view taken with regard to attorney's fee awards under other statutes and in contract

cases" and held that "[u]nder appropriate circumstances, after the Sheriff takes a

voluntary dismissal of a forfeiture suit, the claimant may be awarded attorney's fees as a

'prevailing' party." Id. (emphasis added). Ultimately, the Fifth District affirmed the trial

court's denial of the claimant's motion for attorney's fees under section 932.704(10)

because competent evidence supported the trial court's finding that there was no bad

faith and no gross abuse of discretion on the sheriff's part. 758 So. 2d at 1244-45. In

Gay, the Fifth District interpreted the plain language of section 932.704(10) as not

                                             -7-
requiring a forfeiture action to reach the trial stage for a claimant to recover attorney's

fees or to be the prevailing party under that subsection. Thus, the decision in Gay did

not address the language in section 932.704(9)(b) that requires a "claimant [to] prevail[]

at trial or on appeal" before the seizing agency may be required to pay "the reasonable

loss of value of the seized property."

              In Cox, the Florida Department of Highway Safety and Motor Vehicles

(DHSMV) sought forfeiture of Mr. Cox's vehicle under the Act after Mr. Cox permitted a

third party with a suspended license to drive the vehicle while intoxicated, causing a

crash. 881 So. 2d at 642. Following an adversarial preliminary hearing at which the

trial court found the seizure of Mr. Cox's vehicle was supported by probable cause, Mr.

Cox filed an answer and affirmative defenses. He also filed a counterclaim for damages

in which he alleged "that the DHSMV knew or should have known it had no 'admissible

evidence' to support its forfeiture complaint . . . [and] that Cox had little or no equity in

the truck at the time of the seizure due to a lien in favor of Citrus Bank." Id. After the

trial court dismissed Mr. Cox's counterclaim, the DHSMV returned Mr. Cox's truck to

Citrus Bank and dismissed the main action over Mr. Cox's objection. Mr. Cox argued

that he should have been permitted to have his day in court to establish that the

repossession was wrongful and to conduct discovery to show that the DHSMV had

proceeded in bad faith or had grossly abused its discretion.

              On appeal, the Fifth District observed that "at least some of Cox's . . .

claims . . . appear to be authorized by section 932.704(9)(b), Florida Statutes (2001),"

and that "[u]nder the statute, Cox may be considered a 'prevailing party' even though

the seizing agency dismissed the action." 881 So. 2d at 646 (citing Gay, 758 So. 2d at



                                             -8-
1244). Thus it appears that the district court in Cox applied its prior interpretation of the

language in section 932.704(10) to its interpretation of section 932.704(9).

              In considering Mr. Underwood's argument under Cox, we observe that the

facts in Cox are distinguishable from the facts in this case. When Mr. Cox appealed the

dismissal of his counterclaim he had never been given an opportunity to prove his

entitlement to damages and attorney's fees under section 932.704. In the case before

us, Mr. Underwood appeals the denial of his claim after he received a full evidentiary

hearing. However, to the extent that the Fifth District in Cox interpreted sections

932.704(9)(b) and 932.704(10) as establishing the same requirements for a claimant to

prove his or her entitlement to damages and to attorney's fees and costs, we disagree

with that interpretation of the statutes. Sections 932.704(9) and 932.704(10) use

different language to describe when a claimant may recover damages and when he or

she may recover attorney's fees and costs. Section 932.704(9)(b) plainly requires a

claimant to "prevail[] at trial or on appeal" to be entitled to the damages enumerated in

that subsection. On the other hand, section 932.704(10) requires a claimant to "prevail[]

at the close of forfeiture proceedings and any appeal"4 and to establish that "the seizing

agency has not proceeded at any stage of the proceedings in good faith or that the

seizing agency's action which precipitated the forfeiture proceedings was a gross abuse

of the agency's discretion." Thus to the extent that Cox holds that a claimant may be




              4
                We observe that section 932.701(2)(g) defines "forfeiture proceeding" to
mean "a hearing or trial in which the court or jury determines whether the subject
property shall be forfeited." Thus, it is arguable that the Fifth District wrongly concluded
in Gay that a claimant may be considered to be the prevailing party under section
932.704(10) after the sheriff takes a voluntary dismissal in the absence of such a
hearing or trial. We need not resolve that issue on this appeal.
                                            -9-
entitled to damages under section 932.704(9)(b) without "prevail[ing] at trial or on

appeal," we disagree with that decision and certify conflict.

C. Attorney's Fees and Costs under Section 932.704(10)

              Mr. Underwood also contends that the trial court erred in failing to award

him attorney's fees and costs under section 932.704(10), which provides for fees and

costs when "the seizing agency has not proceeded at any stage of the proceedings in

good faith or that the seizing agency's action which precipitated the forfeiture

proceedings was a gross abuse of the agency's discretion." He argues that the PCSO's

forfeiture case was entirely dependent upon the testimony of the Detective, who

resigned from his position in July 2012 amid allegations of misconduct. Specifically, the

Detective's testimony was indispensable to the PCSO's case because he claimed that

Mr. Underwood made certain admissions to him that called into question the source of

the funds used to buy the vehicle. Further, Mr. Underwood had produced a witness at

the preliminary adversarial hearing who testified that the vehicle was lawfully purchased

with payments from labor. Thus, Mr. Underwood argues, the PCSO failed to act in good

faith and to timely dismiss its case until five months after the Detective's resignation.

              After the hearing on Mr. Underwood's motion, the trial court found that Mr.

Underwood had failed to meet his burden to recover fees and costs under section

932.704(10). In reaching this conclusion, the trial court stated as follows:

                     Now, I understand your frustration and I think we all
              are frustrated—and I'm not making a specific finding in this
              case—when law enforcement goes outside of the law to do
              what they do. But in this case the search was issued
              [pursuant] to a warrant signed by a judge. There was an
              adversarial preliminary hearing in which I found probable
              cause; and even in that hearing, as you pointed out, I said
              that the standard is much different than an adversarial

                                           - 10 -
              preliminary hearing because the totality of the circumstances
              or at least probable cause to proceed and I found that. After
              that, based on the record, and it took several months, in
              essence what the sheriff's office did was proceed with
              discovery and other . . . well, discovery essentially for which
              they, after examining that discovery, said, "No, I don't think
              we should go any further," and then dismissed the case."
              [sic] I don't find that that was not done in good faith; in fact, I
              find that the way they proceeded after that point was in good
              faith in trying to make a decision: ["]Is it time to shut this
              down and give the man his car back[?"]

Our review of the record reflects that the trial court's findings are supported by

competent, substantial evidence. Thus we affirm the denial of attorney's fees and costs

under section 932.704(10).

                                     III. CONCLUSION

              To summarize, we affirm the trial court's determination that Mr.

Underwood was not entitled to recover damages under section 932.704(9)(b) because

he did not establish that he prevailed at trial or on appeal. We also affirm the trial

court's determination that Mr. Underwood was not entitled to his attorney's fees and

costs under section 932.704(10) based upon its findings that the PCSO did not abuse

its discretion in initiating the action and that it had proceeded in good faith. Further, to

the extent that the Fifth District held in Cox v. Department of Highway Safety & Motor

Vehicles, 881 So. 2d 641 (Fla. 5th DCA 2004), that a claimant may be entitled to

damages under section 932.704(9)(b) without "prevail[ing] at trial or on appeal," we

disagree with that decision and certify conflict.

              Under the circumstances of this case, some may question the fairness of

the statutory requirements that a claimant prevail at trial or on appeal to recover

damages and that a claimant establish the seizing authority's gross abuse of discretion



                                            - 11 -
and bad faith to recover attorney's fees and costs. Here, the PCSO seized Mr.

Underwood's vehicle on December 15, 2010, and retained the vehicle until December 4,

2012, when it voluntarily dismissed the forfeiture action after almost two years. During

that period, Mr. Underwood was deprived of the use of the vehicle, the value of his

vehicle depreciated, and the vehicle incurred damage from exposure to the elements

and from other causes while in the PCSO's possession. As the trial court noted at the

conclusion of the hearing on Mr. Underwood's motion for damages, costs, and

attorney's fees: "This is a tough area in the sense that government, the sheriff's office,

gets some kind of extraordinary rights against a person. But it is what it is." In addition

to his damages, Mr. Underwood incurred attorney's fees and costs to defend the action

that the PCSO ultimately dismissed.

              We note that the legislature recently amended section 932.703(1)(d)(2) of

the Act to provide, among other things that "[u]nless otherwise expressly agreed to in

writing by the parties, the agency seeking forfeiture of the seized property is responsible

for any damage to the property and any storage fees or maintenance costs applicable to

the property." Ch. 2016-179, § 2, at 1996-98, Laws of Fla. Thus under the amended

version of the statute, Mr. Underwood would have been entitled to recover his damages

upon the PCSO's voluntary dismissal of the forfeiture action.

              Affirmed; conflict certified.



SILBERMAN and BLACK, JJ., concur.




                                              - 12 -
