author:
PER CURIAM.
      LEWIS, J.,

text:
    THE FLORIDA BAR, Complainant, v. Arthur James SPRINGER, Respondent.
    No. SC02-1687.
    Supreme Court of Florida.
    April 29, 2004.

      John F. Harkness, Jr., Executive Director, and John Anthony Boggs, Staff Counsel, The Florida Bar, Tallahassee, FL; and Thomas Edward DeBerg, Assistant Staff Counsel, Tampa, FL, for Complainant.
    Scott K. Tozian and Gwendolyn Hollst-rom Hinkle of Smith and Tozian, P.A., Tampa, FL, for Respondent.
   PER CURIAM.

We have for review a referee’s report regarding alleged ethical breaches by Arthur James Springer. We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons that follow, we approve the referee’s factual findings and recommended discipline and hereby disbar Springer from the practice of law in Florida.

FINDINGS OF FACT AND RECOMMENDATIONS OF GUILT

The Florida Bar filed a six-count complaint against Springer. At a disciplinary hearing, The Florida Bar and Springer stipulated to detailed facts which the referee adopted as the facts of the case. Based on these facts, the referee issued a report containing the following recommendations as to each count.

COUNT I

Howard Mitchell hired Springer to defend him in a real property partition action in Georgia brought by David Centa. While Springer was involved in the case, from December 1997 to November 2000, he never filed a pro hac vice motion or a notice of appearance with the Georgia trial court; thus, Springer did not file any documents with the court diming the case. Springer did communicate with the plaintiffs counsel, who informed Springer of the trial date set by the court. However, Springer did not appear at trial. The jury found in favor of the plaintiff Centa, and the court entered judgment against Mitchell. Even after the court entered judgment, when Mitchell asked about the case Springer told him “it’s going to be fine.” Springer prepared but did not file with the court a motion to set aside final judgment. He repeatedly lied to Mitchell, telling him that hearings had been scheduled on the motion and then postponed. Mitchell did not recover the value of his interest in the property, which he alleged was about $29,000.

On count I, the referee recommended that Springer be found guilty of violating the following Rules Regulating the Florida Bar: rule 4-1.1 (a lawyer shall provide competent representation to his client); rule 4-1.3 (an attorney shall act with reasonable diligence in the representation of his client); rule 4-1.4(a) (a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information); rule 4-5.5 (a lawyer shall not practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction); rule 4-8.4(a) (a lawyer shall not violate or attempt to violate the Rules of Professional Conduct); rule 4-8.4(e) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); and rule 4-8.4(d) (a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice).

COUNT II

The Camelot Condominium Owners’ Association, of which Howard Mitchell was president, hired Springer in 1993 to handle foreclosures of timeshare condominium units whose owners failed to pay their maintenance fees or taxes. In March 1998, Mitchell asked Springer about twenty-four foreclosure cases which had not been finalized. Springer gave Mitchell falsified copies of certificates of title to the twenty-four timeshare units, all dated April 9, 1998. Springer misrepresented to Mitchell that the twenty-four foreclosures were final. Mitchell sold some of the units to new owners, but in April 1999, Mitchell discovered that the certificates of title were not recorded and that the foreclosures were not finalized. The sales of units based on Springer’s falsified certificates of title resulted in Camelot’s having to resolve cases of multiple owners claiming the same unit, creating additional legal expenses and potentially harming Camelot’s reputation.

On count II, the referee recommended that Springer be found guilty of violating rule 4-1.1 (competence); rule 4-1.3 (diligence); rule 4-1.4(a) (communication); rule 4~8.4(a) (violation of Rules of Professional Conduct); rule 4-8.4(c) (dishonest conduct); and rule 4-8.4(d) (conduct prejudicial to the administration of justice).

COUNT III

In December 1995, Howard Mitchell hired Springer to pursue a breach of agreement claim arising from Mitchell’s sale of a house to Garland and Mary Cunningham. Springer failed to file a claim against the Cunninghams. In March 1999, Springer falsely told Mitchell that he had obtained a garnishment of Mr. Cunningham’s wages. In August 1999, Mitchell learned of Springer’s negligence in this and other cases, and Springer signed a letter admitting his negligence and promising diligence in the future. Despite his promises, in April 2000, Springer falsely represented to Mitchell that he was following up with Mr. Cunningham’s employer to enforce a garnishment, when there was in fact no judgment to support a garnishment. In December 2000, Mitchell fired Springer and Springer withdrew from the case. In January 2001, Mitchell filed pro se a motion for default that Springer had drafted and successfully obtained a default judgment against the Cunninghams.

On count III, the referee recommended that Springer be found guilty of violating rule 4-1.1 (competence); rule 4-1.3 (diligence); rule 4-1.4(a) (communication); rule 4-8.4(a) (a lawyer shall not violate or attempt to violate the Rules of Professional Conduct); and rule 4-8.4(e) (dishonest conduct).

COUNT IV

In January 2000, Howard Mitchell hired Springer to pursue a breach of contract claim arising from the failure of Randy Baron and Jennifer Wall to pay Mitchell for construction work on their home. In February 2000, Springer filed a claim of lien, but the defendants filed a motion to dismiss because the complaint failed to allege certain elements of an oral contract. The court gave Mitchell fifteen days to respond. Springer failed to respond, and the court granted the defendants’ motion to dismiss.

Over the next several months, Springer told Mitchell he was filing papers and scheduling hearings to reinstate the case, which he did not do. In October 2000, Springer filed a new complaint. Baron and Wall counterclaimed. Springer failed to answer the counterclaim, and the court entered a default judgment against Mitchell. In December 2000, Mitchell fired Springer, and Springer withdrew from the case.

On count IV, the referee recommended that Springer be found guilty of violating rule 4-1.1 (competence); rale 4-1.3 (diligence); and rule 4-1.4(a) (communication).

COUNT V

In November 1997, Howard Mitchell hired Springer to file a lien against C & D Printing for failure to pay Mitchell for construction work. Over the next several months, Springer did nothing substantive on the case but told Mitchell that he had filed a complaint and that a hearing was scheduled. In August 1999, Mitchell learned of Springer’s negligence in this and other cases, and Springer signed a letter admitting his negligence and promising diligence in the future.

In September 1999, Springer filed a complaint but misnamed C & D Printing as “Cee & Dee Printing.” In February 2000, the clerk of court issued a notice of intent to dismiss for failure to obtain service. In May 2000, Springer lied to Mitchell, saying he had obtained a judgment and was attempting to enforce collection. In October 2000, Springer filed an amended complaint and C & D Printing filed a motion to dismiss. In January 2001, Mitchell fired Springer and Springer withdrew from the case.

On count V, the referee recommended that Springer be found guilty of violating rule 4-1.1 (competence); rule 4-1.3 (diligence); rule 4-1.4(a) (communication); and rule 4-8.4(c) (dishonest conduct).

COUNT VI

In 1998 Camelot filed a lien against timeshare unit owner Richard Baserap for failure to pay maintenance fees and taxes. In November 1998, Baserap filed suit against Camelot alleging illegal lockout and challenging the amount of the lien. Springer timely filed an answer and affirmative defenses for Camelot but then failed to comply with a court order regarding discovery. The court entered a judgment of liability in favor of Baserap. Springer settled the case for $18,000 without Camelot’s consent. He paid the $18,000 from his own funds and told Camelot about the settlement after the fact.

On count VI, the referee recommended that Springer be found guilty of violating rule 4-1.2(a) (a lawyer shall abide by a client’s decision whether to make or accept an offer of settlement of a matter); rule 4-1.3 (diligence); and rule 4-1.4(a) (communication).

RECOMMENDED DISCIPLINE

At the disciplinary hearing, the Bar sought to have Springer suspended from the practice of law for two years followed by a two-year probationary period and a mandatory review of his practice by the Law Office Management Assistance Service of the Florida Bar (LOMAS), as well as payment of the Bar’s costs. In his final report, the referee recommended that Springer be disbarred from the practice of law and be required to pay the Bar’s costs. The referee found in aggravation that Springer had committed multiple offenses and demonstrated a pattern of misconduct. The referee stated that Springer’s multiple incidents of incompetent action followed by lies, then more lies to cover up the deceit, demonstrated “a defect, if not an absolute absence, of honesty, integrity, and ethical judgment.” In mitigation, the referee found that Springer had a cooperative attitude during the proceedings and showed remorse. In evaluating the mitigating factors, the referee found that Springer’s cooperation and remorse did not “rise to the level of a valid basis to outweigh the harm of Respondent’s actions.” The referee concluded that Springer “has not and cannot meet” the Bar’s standards of professional and ethical responsibility, and “thus is not qualified to practice law and represent members of the public.”

ANALYSIS

Neither party contests the referee’s findings of fact or recommendations as to guilt. Therefore, we approve the referee’s findings of fact and recommendations of guilt without further discussion. Springer challenges the referee’s recommended discipline, arguing that a one-year suspension rather than disbarment is the appropriate sanction. The Bar counters that disbarment is appropriate.

In reviewing a referee’s recommended discipline, this Court’s scope of review is broader than that afforded to the referee’s findings of fact because, ultimately, it is our responsibility to order the appropriate sanction. See Florida Bar v. Anderson, 538 So.2d 852, 854 (Fla.1989); see also art. V, § 15, Fla. Const. However, generally speaking, this Court will not second-guess the referee’s recommended discipline as long as it has a reasonable basis in existing case law and the Florida Standards for Imposing Lawyer Sanctions. See Florida Bar v. Temmer, 753 So.2d 555, 558 (Fla.1999).

We agree with the Bar and find the referee’s recommended discipline to be reasonably supported by existing standards and case law. See Fla. Stds. Imposing Law. Sanes. 4.41 (disbarment appropriate when a lawyer knowingly fails to perform services or engages in a pattern of neglect of client matters, and causes serious or potentially serious injury to a client); 4.51 (disbarment appropriate when a lawyer’s course of conduct demonstrates that the lawyer does not understand the most fundamental legal doctrines or procedures, and the lawyer’s conduct causes injury or potential injury to a client); and 5.11(f) (disbarment appropriate when a lawyer engages in intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice); see also Florida Bar v. Nesmith, 707 So.2d 331, 333 (Fla.1998) (stating that this Court deals more harshly with cumulative misconduct than it does with isolated acts); Florida Bar v. Benton, 157 So.2d 420 (Fla.1963) (imposing a two-year suspension on an attorney who was hired to obtain a divorce for a client, failed to file suit, but told the client his divorce was final and gave the client a falsified divorce decree). In light of the multiple instances of misconduct involved and the nature of the misconduct in this case, we approve the referee’s recommendation that Springer be disbarred.

CONCLUSION

Arthur James Springer is hereby disbarred from the practice of law in the State of Florida without leave to apply for readmission for five years. The disbarment will be effective thirty days from the fifing of this opinion so that Springer can close out his practice and protect the interests of existing clients. If Springer notifies this Court in writing that he is no longer practicing and does not need the thirty days to protect existing clients, this Court will enter an order making the disbarment effective immediately. Springer shall accept no new business from the date this opinion is filed until he is readmitted to the practice of law in Florida. We also enter judgment against Springer in favor of The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for costs in the amount of $3,313.12, for which sum let execution issue.

It is so ordered.

ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.

LEWIS, J., concurs with an opinion, in which BELL, J., concurs.

LEWIS, J.,

specially concurring.

The referee below in the case before us demonstrated to the citizens of Florida, all trial and appellate courts of the state, and members of the bar the ability to protect the public against unfit attorneys and to ensure the integrity of our judicial system. This Court has now seized the opportunity to stand firmly against this type of behavior by accepting and approving the referee’s disbarment recommendation. The Court has recognized the uncontroverted evidence demonstrating that Springer engaged in numerous instances of gross misconduct for the better part of a decade. There is absolutely no basis in law for this Court to reject the referee’s recommendation in this case and in standing firm we have today fulfilled our duty as the body ultimately responsible for maintaining and advancing the ethical standards for lawyers practicing in this state, and delivered the firm and correct message to the bench, bar, and concerned public of Florida. The majority ably and correctly recites the applicable standard of review, acknowledging that we will not second-guess a referee’s recommended discipline as long as it has a reasonable basis in existing case law and the Florida Standards for Imposing Lawyer Sanctions. See Florida Bar v. Temmer, 753 So.2d 555, 558 (Fla.1999). The referee’s recommendation in this case is, most assuredly, firmly rooted in the guidelines for sanctioning lawyers and existing case law. Springer admits that he is guilty of five violations of rule 4-1.1 of the Rules of Professional Conduct, which requires attorneys in this state to competently represent their clients. Florida’s Standards for Imposing Lawyer Sanctions provides that disbarment is the appropriate penalty in cases involving the failure to provide competent representation when “a lawyer’s course of conduct demonstrates that the lawyer does not understand the most fundamental legal doctrines or procedures, and the lawyer’s conduct causes injury or potential injury to a client.” Fla. Stds. Imposing Law. Sanes. 4.51 (emphasis supplied). The commentary to that section provides, “Disbarment should be imposed on lawyers who are found to have engaged in multiple instances of incompetent behavior.” Fla. Stds. Imposing Law. Sanes. 4.51 (cmt.) (emphasis supplied). Cautioning that the severe sanction of disbarment should not be imposed for single instances of incompetence, the commentary further explains, “[DJisbarment should be imposed on lawyers whose course of conduct demonstrates that they cannot or will not master the knowledge and skills necessary for minimally competent practice.” Id.

Disbarring Springer for his grossly incompetent representation is entirely consistent with the discipline measures outlined in the governing standards. As a result of Springer’s failure to appear at trial in the Georgia partition action, Howard Mitchell was subject to a default judgment. Another default judgment resulted from Springer’s failure to answer a counterclaim in the Baron/Wall matter. In addition, Mitchell was deprived of the benefits of swift resolution of the Cunningham matter, which Springer failed to prosecute for six years, and the claim of lien against C & D Printing, which Springer neglected to initiate for two years. Most incredibly, Springer’s falsification of twenty-four certificates of title to timeshare units subjected Camelot Condominium Owner’s Association to protracted litigation and concomitant expense resulting from numerous competing claims of ownership.

Springer’s course of conduct patently exhibits a complete lack of understanding of the most fundamental legal procedures and obligations, resulting in serious injury to his clients. The multiplicity of incidents and prolonged nature of his incompetent and intentionally wrongful conduct reveals that he either cannot or will not master the knowledge and skills necessary for minimally competent practice. Under the guidelines, disbarment is warranted on the basis of Springer’s incompetent conduct alone.

Springer’s culpability is not, however, limited to the miserable incompetence demonstrated here. Springer is also guilty of six violations of the rule requiring attorneys to act with reasonable diligence and promptness in representing a client. Springer admits that he lacked diligence in the incidents referenced above, as well as in an illegal lockout claim, where his failure to comply with court-ordered discovery resulted in a liability judgment against Camelot. Notably, Springer subsequently even settled the action for $18,000 without his client’s consent. In sanctioning lawyers for lack of diligence, the guidelines recommend disbarment when “a lawyer knowingly fails to' perform services for a client and causes injury or potentially serious injury” or where “a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client.” Fla. Stds. Imposing Law. Sanes. 4.41. Suspension is appropriate where “injury” as opposed to “serious injury” results. See id. at 4.42.

In my view, there is no doubt that Springer’s lack of diligence resulted in “serious injury” warranting disbarment under the guidelines. All told, his failure to take timely action on behalf of his clients resulted in two default judgments, a liability judgment, substantial and unnecessary litigation expenses, and the deprivation of benefits from unprosecuted claims. The facts and circumstances of this case make it entirely clear that Springer is either unable or unwilling to perform the duties of our profession at a level of reasonable competence and diligence.

It is most telling that Springer’s ethical transgressions did not, however, end with his failure to perform in a reasonably competent and diligent manner. To cover up for these failures, he resorted to misrepresentations and lies, resulting in additional breaches of the rules governing the legal profession. Springer misrepresented the status of his client’s claims to disguise the fact that he had simply failed to act or had mishandled the matters. When his ineptitude or disregard was discovered by his clients, he was contrite and even signed a letter admitting his negligence and rededicating himself to act with due competence and diligence. Ultimately, however, even Springer’s mea culpa was a lie. After signing that letter, he continued to perform in the same inexcusable manner as before.

Based on this pattern of avoidance and deceitfulness, the referee determined that Springer should be found guilty of six violations of the rule requiring attorneys to keep their clients reasonably informed about the status of a matter, and five violations of the rule prohibiting attorneys from engaging in conduct involving fraud, deceit, or misrepresentation. Based on Springer’s misconduct, the referee also found two violations of the rule proscribing violations of the Rules of Professional Conduct, two violations of the rule against engaging in conduct prejudicial to the administration of justice, one violation of the rule prohibiting the unlicensed practice of law, and one violation of the rule requiring attorneys to abide by their client’s decision with regard to settlement. Springer fully admits that he is guilty of these violations and none are disputed.

As the uncontested facts demonstrate, Springer violated a multitude of rules governing the legal profession numerous times over many years, and the ill effects of his misconduct seriously injured not one, but multiple clients. Despite the shocking enormity of the misconduct of this case, and the firm basis for disbarment in the guidelines governing the sanction of lawyers, Springer asks this Court to buckle and reduce his sanction. As a basis for reduction, Springer asserts a lack of case law supporting the disbarment here. To me, this justification is meritless.

As a threshold matter, a case law void is unsurprising with regard to facts such as these. I would expect that attorneys displaying conduct as egregious as Springer’s normally forfeit their bar memberships and do not have the moxie to present a request for appellate review before this Court. Moreover, the assertion that there are no factual analogs rests on an unduly conservative interpretation of the standard of review. A sanction recommendation need only be reasonably based in existing case law; it need not spring from factually identical precedent. We should not subscribe to the view that disbarment may not occur if this Court has not previously rendered an opinion of disbarment on identical facts. Facts supporting disbarment (such as those in the present case) may be so egregious that this Court has not had the occasion to render such an opinion.

In any event, I am of the opinion that there is more than ample support for the referee’s recommendation in existing case law. In addition to those decisions set forth by the majority, in Florida Bar v. Blaha, 366 So.2d 433 (Fla.1978), we disbarred an attorney for mishandling three clients’ cases over a one-year period. Bla-ha mishandled a guardianship and real estate transaction, repeatedly misrepresented the status of the case to his client, and, after the transaction was finally consummated, retained the proceeds for a period of five months. See id. at 434-35. Blaha filed another client’s action in the wrong court, resulting in dismissal, and mishandled a repossession action that ultimately resulted in his client being assessed a $3000 contempt fine for reselling repossessed furniture in violation of a court order. See id. at 435-37.

Despite the striking similarities, Springer would have us ignore Blaha. Perhaps Blaha can be distinguished because the attorney in that case also failed to respond to The Florida Bar’s complaint against him, whereas Springer cooperated fully in the disciplinary proceeding against him. The facts here were so obvious and egregious, he had no other choice. Given that Springer’s incompetence was more extreme than Blaha’s, and resulted in even more substantial injury to his clients (two default judgments, a liability judgment, tens of thousands of dollars in unnecessary legal bills, and delay of benefit in two unprosecuted claims), I do not believe that Blaha’s failure to participate in the disciplinary proceeding against him, standing alone, is a sufficient basis to distinguish the sanctions imposed.

In my opinion, we certainly would not have hesitated to disbar Springer had he also committed a financial infraction — such as the failure to maintain a trust account. See, e.g., Florida Bar v. Horowitz, 697 So.2d 78, 84 (Fla.1997) (disbarring an attorney guilty, in pertinent part, of competency, candor, and diligence infractions, as well as the failure to cooperate with the disciplinary investigation, return client property, and maintain trust account and other financial records); Florida Bar v. Mitchell, 385 So.2d 96, 97 (Fla.1980) (disbarring attorney who failed to file claims, make court appearances, prosecute appeals, maintain a trust account, return monies advanced to him by his clients, and who knowingly and willfully issued a check with insufficient funds). However, in my view, the numerous, varied violations of the ethical rules committed by Springer were as serious, if not more serious, than the failure to maintain a trust account. What a perverse result it would be if an attorney could violate a panoply of rules, wreak tremendous damage on his client’s interests, yet avoid the ultimate punishment by keeping his financial house in reasonable order.

More importantly, it is also my view that Springer’s position fails to accommodate the repeated and prolonged nature of his conduct. Surely, had Springer been subject to disciplinary proceedings for each of his offenses as they occurred, this Court would not have continued to prescribe short-term suspensions. At some point we would have said “enough is enough,” and rescinded Springer’s license to practice law. He deserves no more lenient punishment because his numerous transgressions were lumped into one disciplinary proceeding.

Springer argues that a short suspension is appropriate here. The referee’s recommendation of disbarment here sends the unmistakable message that an attorney is unfit to represent the citizens of the State of Florida, not just that he made serious errors, but is capable of rehabilitation. The gravity and frequency of Springer’s transgressions proves beyond doubt that he is unfit to practice law in this state. His own failed attempt to correct his behavior demonstrates that he cannot or will not be rehabilitated. Thus, this Court must not hesitate to affirm the powerful message of the referee — that misconduct as egregious as that demonstrated in the instant matter will result in disbarment. The conduct of Springer cannot be more eloquently described than in the words of the referee below, the Honorable Mark I. Shames, as he stated:

Respondent harmed his clients by incompetent action, he expressly lied about it to his clients, and thereafter he continued to affirmatively lie and attempt to cover up the lies. Significant consideration must be given to the fact of multiple incidents of such conduct by the Respondent, involving several clients. There is no way to interpret the Respondent’s deliberate actions in a light favorable enough to him to accept his suggestion that he meant no harm. He is not a competent lawyer. More egregious, however, is the defect he refers to as one of personality. It is more; it is a defect, if not an absolute absence of honesty, integrity, and ethical judgment. Arguably, a lawyer who has these qualities but is less competent than others should have an opportunity to raise himself to a minimum level of competence To practice law and' represent clients. A lawyer without these qualities should not, regardless of competence. The Bar has an obligation to protect the public and to maintain reasonable standards of professional and ethical responsibility. Mr. Springer has not and cannot meet those standards, and thus is not qualified to practice law and represent members of the public.

If this Court were weak in its resolve in a case such as this, and unwilling to affirm the imposition of sanctions befitting the misconduct, criticism of our ability to oversee attorney disciplinary proceedings would be well-founded. The lower courts and the public at large must not lose faith in the ability of the existing system to respond and react to ethical transgressions as appropriate. If we were to reject and reduce the recommended sanction in this case, we would undermine the very process which protects Florida citizens. The people of Florida are entitled to expect more from attorneys and we should demand no less. For the reasons stated herein, I fully concur with the majority’s decision and opinion.

BELL, J., concurs.

      . By contrast, the guidelines provide that "[s]uspension is appropriate when a lawyer engages in an area of practice in which the lawyer knowingly lacks competence, and causes injury or potential injury to a client.” Fla. Stds. Imposing Law. Sanes. 4.52. Here, Springer did more than just venture ill-prepared into a new area of the law. He simply totally failed to perform, or incompetently performed, the basic tasks of his profession which he accepted and agreed to complete.

      . Like onions, the counts described in the majority opinion can be peeled to reveal numerous layers of incompetence. For instance, Mitchell’s original complaint in the Baron/Wall matter was dismissed when Springer failed to respond to the defendant’s motion to dismiss.

      . When Springer finally did file the claim of lien against C & D, he misnamed the defendant nearly resulting in dismissal for failure to obtain service.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    J.C. STINE, M.D., et al., Petitioners, v. Manual G. JAIN, M.D., Respondent.
    No. SC02-2595.
    Supreme Court of Florida.
    April 29, 2004.
    Jonathan B. Trohn and Theodore W. Weeks, IV of Gray, Harris & Robinson, P.A., Lakeland, FL; and Neal L. O’Toole and Joseph R. Kruk of the Law Offices of Neal L. O’Toole, P.A., Bartow, FL, for Petitioners.
    Stephen D. Milbrath of Allen, Dyer, Doppelt, Milbrath & Gilchrist, P.A., Orlando, FL, for Respondent.
   PER CURIAM.

After receiving jurisdictional briefs from the parties pursuant to Rule 9.120(d) of the Florida Rules of Appellate Procedure, we accepted jurisdiction to review Jain v. Green Clinic, Inc., 830 So.2d 836 (Fla. 2d DCA 2002). After consideration of both the jurisdictional and merits briefs, we have determined that there is no express and direct conflict with any decision of another district court of appeal on the same question of law pursuant to article V, section 3(b)(3), of the Florida Constitution. Accordingly, we have determined that jurisdiction was improvidently granted and hereby dismiss this case.

It is so ordered.

ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.


author: RAMIREZ, J.

text:
    BUTLER, PAPPAS, WEIHMULLER, etc., et al., Petitioners, v. CORAL REEF OF KEY BISCAYNE DEVELOPERS, INC., et al., Respondents.
    Nos. 3D03-1975, 3D03-1987.
    District Court of Appeal of Florida, Third District.
    Nov. 26, 2003.
    Rehearing and Rehearing En Banc Denied May 24, 2004.

      Carlton Fields, and Frederick T. Hawkes, and Nicole R. Rekant, and Thomas E. Warner, Stuart; and Holland & Knight, and Rodolfo Sorondo, Jr., Miami, and llene L. Pabian, and Lucinda A. Hoffman, for petitioners.
    Gonzalo R. Dorta; and Billbrough and Marks, and Geoffrey Marks, Miami; and Colson, Matthews, Martinez & Mendoza, and Ervin A. Gonzalez, Coral Gables; and Manny Kadre; and Kuvin & Stettin, for respondents.
    Before SCHWARTZ, C.J, and FLETCHER, and RAMIREZ, JJ.

       Chief Judge Schwartz did not hear oral argument.

   RAMIREZ, J.

Petitioners Butler, Pappas, Weihmuller, Katz, Craig, LLP, attorney John J. Pappas (“Butler Firm”), and Certain Interested Underwriters at Lloyd’s, London (“Lloyd’s”) seek to quash an order compelling the discovery of certain documents alleged to be covered by the attorney-client privilege. We grant the petition because the conduct of the insurer did not amount to insurance fraud upon the insured under the circumstances of this case.

Respondent Coral Reef of Key Biseayne Developers, Inc. owns a rental apartment building in Key Biseayne, Florida and Lloyd’s is Coral Reefs property insurer. In the fall of 1999, Coral Reef and its principal, Homero Meruelo, Jr., who had a prior conviction for insurance fraud, submitted two claims of loss to Lloyd’s in the sum of $1.45 million. The claims represented the cost to repair property damage caused by hidden decay and collapse. Coral Reef retained Frank Inguanzo of EPIC Group as its public adjuster and based the amount of its claim on a $1.45 million estimate from contractor Andre Fuxa of Star Restoration, Inc.

Lloyd’s retained Concorde Adjusting, Inc. and its principal, Jon Stettin, as its independent adjuster. Stettin estimated Coral Reefs covered damages at approximately $500,000.00. Lloyd’s settled the claim in December of 1999 for $551,021.80 and paid Coral Reef $440,817.44, but held back $110,204.36 pending the commencement of repair work to the property. In September of 2000, Coral Reef sued Lloyd’s seeking to recover the held back amount. Lloyd’s retained the Butler Firm to represent it.

In May of 2000, prior to the commencement of repair work to the property, Mer-uelo, Jr. submitted on Coral Reefs behalf three additional claims of loss for the sum of $4.76 million. Coral Reef based the amount of this claim on an estimate from Coastal Insurance Repair, Inc., an agency under the investigation of the Department of Insurance for improper inflation of insurance claims. Lloyd’s subsequently requested additional information from Coral Reef in order to reach a decision upon the claims and asked to conduct an examination under oath.

On January 11, 2001, Lloyd’s denied Coral Reefs claim through Stettin. Lloyd’s relied upon Coral Reefs breach of four insurance contract provisions, including failure to cooperate, failure to produce books and records, failure to submit to an examination under oath, and intentional misrepresentation and concealment of material facts. Lloyd’s also stated that Coral Reef filed suit prior to having fulfilled its contractual obligations and that Coral Reef “attempted to commit insurance fraud.”

In May of 2001, Coral Reef sued Lloyd’s for breach of contract and declaratory judgment on the $4.76 million insurance claim. Coral Reef later amended its complaint and included a defamation count against Lloyd’s, Concorde Adjusting, and Stettin. The Butler Firm, who represented all of the defendants, had the case removed to federal court who later remanded the case back to state court for further proceedings.

In response to Coral Reefs discovery requests, Lloyd’s and Concorde filed objections and privilege logs arguing that Coral Reefs requests included documents covered by attorney-client privilege. Coral Reef moved to compel production contending that the documents addressed the truth and motive for the statements in the denial letter and went to the heart of the defamation claims and that the privileged communications would help determine the factual basis for the defamatory statements in the January 11, 2001 denial letter.

On October 9, 2002, the trial court ordered an initial hearing to determine whether the crime-fraud exception applied to the attorney-client privilege. The trial court also requested that the parties address what evidence Coral Reef relied upon to' demonstrate a prima facie case, the admissibility of that evidence, and the crime-fraud which would support application of the exception, with particular attention paid to sections 817.234(7) and 817.234(l)(a)3.a., Florida Statutes, relating to false and fraudulent insurance claims.

At the November 26, 2002 hearing on whether the crime-fraud exception applied, the trial court found that Coral Reef established a prima facie case to conduct an evidentiary hearing to determine whether a crime or fraud was committed and hence applied to the attorney-client privilege, under section 90.502(4), Florida Statutes. In support of Coral Reefs prima facie case that the crime-fraud exception applied, the trial court only considered an affidavit from Inguanzo filed on July 4, 2001.

An extensive evidentiary hearing followed. On June 23, 2003, the trial court issued its order and concluded that the attorney-client privilege had been waived.

The Crime-Fraud Exception

The attorney-client privilege is widely recognized and applies to all confidential communications between a client and its attorney “made in the rendition of legal services,” unless the communication falls within a statutory exception to the privilege. See § 90.502(2), Fla. Stat. (2003). See also Haskell Co. v. Georgia Pac. Corp., 684 So.2d 297, 298 (Fla. 5th DCA 1996)(holding that confidential communications are not subject to disclosure, unless one of the statutory exceptions to the privilege applies).

Under section 90.502(4)(a), Florida Statutes (2003), there is no attorney-client privilege, as provided for in section 90.502(2), when “[t]he services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew was a crime or fraud.” See First Union Nat’l Bank v. Turney, 824 So.2d 172, 186-187 (Fla. 1st DCA 2001). This crime-fraud exception thus effectively eliminates the privileged character of an attorney-client communication if the client communicates with the attorney in order to obtain advice or assistance to perpetuate what the client knows to be a crime or fraud. Id.

Application of the Crime-Fraud Exception

The trial court determines whether an attorney-client communication falls within any of the statutory exceptions to the privilege. See American Tobacco Co. v. State, 697 So.2d 1249, 1253 (Fla. 4th DCA 1997). First, the party that seeks disclosure of the privileged communications must allege that the communication was made as .part of an effort to perpetrate a crime or fraud, and the party must also specify the crime or fraud. See Florida Mining & Materials Corp. v. Continental Cas. Co., 556 So.2d 518, 519 (Fla. 2d DCA 1990)(holding that the party seeking discovery of the privileged communication must allege that the client “affirmatively sought the advise of counsel to procure a fraud” before the application of the statutory crime-fraud exception).

Second, the party that seeks disclosure must establish a prima facie case that the party asserting the attorney-client privilege sought the attorney’s advice in order to commit, or in an attempt to commit, a crime or fraud. See Florida Mining, 556 So.2d at 519; First Union Nat’l Bank v. Whitener, 715 So.2d 979, 982 (Fla. 5th DCA 1998)(stating that “[t]he party seeking to invoke the fraud exception must present prima facie evidence that the client sought the advice of counsel to procure a fraud.”).

Under section 817.234(l)(a), Florida Statutes (2003), a person commits insurance fraud when that person, “with the intent to injure, defraud, or deceive any insurer,” does the following:

1. Presents or causes to be presented any written or oral statement as part of, or in support of, a claim for payment or other benefit pursuant to an insurance policy or a health maintenance organization subscriber or provider contract, knowing that such statement contains any false, incomplete, or misleading information concerning any fact or thing material to such claim.

Subsection (7) also provides:

The provisions of this section shall also apply as to any insurer or adjusting firm or its agents or representatives who, with intent, injure, defraud, or deceive any claimant with regard to any claim. The claimant shall have the right to recover the damages provided in this section.

The trial court may review attorney-client communications in camera to determine the applicability of the crime-fraud exception, and its decision to conduct such a review lies entirely within its sound discretion. See United States v. Zolin, 491 U.S. 554, 572, 109 S.Ct. 2619, 105 L.Ed.2d 469 (1989). This determination is dependent upon whether the client’s communication was made in furtherance of a crime or fraud. See Triple Five of Minn., Inc. v. Simon, 213 F.R.D. 324, 326 (D.Minn.2002).

If the trial court determines that the crime-fraud exception applies, the client is entitled to provide a reasonable explanation for the communication or its conduct at an evidentiary hearing, see Turney, 824 So.2d at 183 and Eight Hundred, Inc. v. Florida Dept. of Rev., 837 So.2d 574, 576 (Fla. 1st DCA 2003), at which the client carries the burden of persuasion to give a reasonable explanation for its communication or conduct. See American Tobacco, 697 So.2d at 1256.

The Prima Facie Case

Coral Reef in this case must have alleged that the communications between Lloyd’s and the Butler Firm were made as part of Lloyd’s effort to perpetrate what they knew to be a crime or fraud as defined in sections 817.234(l)(a) or 817.234(7), Florida Statutes (2003). Coral Reefs argument is that Lloyd’s accused Coral Reef of fraud with the intent to injure, defraud, or deceive Coral Reef with regard to its claim. Coral Reef had the burden to produce prima facie evidence sufficient for the trier of fact to determine the applicability of the crime-fraud exception. Lloyd’s in turn carried the burden of persuasion to give a reasonable explanation for its conduct or communication.

We do not find that Coral Reef made its threshold showing through the production of prima facie evidence of the existence of an underlying crime or fraud. We instead conclude that Lloyd’s did not commit insurance fraud through the inclusion of the sentence in its denial letter that Coral Reef had “attempted to commit insurance fraud;” and the denial letter did not contain false, incomplete, or misleading information and was not intended to injure, defraud, or deceive Coral Reef. Lloyd’s had a reasonable basis to believe that Coral Reef had attempted to commit insurance fraud at the time in which it issued the denial letter.

First, Lloyd’s believed that the second claim of loss was grossly inflated. The claim was more than triple the initial claim of loss. Although, as Coral Reef argues, Lloyd’s admitted that the first claim was a covered claim and Lloyd’s expected to receive a supplemental claim, the second claim nonetheless created a highly suspect disparity between the first and second claim of loss that could not' readily be dismissed as a valuation difference. The second claim was also vastly disproportionate to the original settlement amount. Second, Lloyd’s understood that Coral Reef had not undertaken any repairs to the property prior to its submission of the second claim of loss, which could have justified the increase in the claim. Third, Lloyd’s knew that Meruelo, Jr., the individual who signed the second claim of loss, had previously been convicted of property insurance fraud. Meruelo, Jr.’s disassociation as an officer of Coral Reef and Lloyd’s knowledge of his fraud conviction prior to its issuance of any payment to Coral Reef does not at all undermine Lloyd’s suspicion that Coral Reef was nonetheless attempting to defraud them.

Finally, Lloyd’s knew that Coastal Insurance Repair, Inc., the company which prepared the estimate that Coral Reef had relied on to submit the second claim of loss, was under investigation by the Department of Insurance for improper inflation of insurance estimates. Coral Reef argues that this investigation was not at all linked to Coral Reef and there was no evidence that suggested that the investigation had any relation to the relevant claim of loss. The dispositive question is whether the investigation, coupled with Meruelo, Jr.’s prior fraud conviction, other reasons notwithstanding, gave rise to a legitimate reasonable belief of fraud on the part of Coral Reef.

These reasons were sufficient to support Lloyd’s reasonable belief that Coral Reef had attempted to commit insurance fraud. The trial court thus departed from the essential requirements of the law and consequently misapplied the crime-fraud exception to Lloyd’s privileged communications.

We therefore reverse the order in which the trial court concluded that Lloyd’s had waived the attorney-client privilege under the crime-fraud exception. We decline to address the remaining issues in the petition.

Reversed.


text:
    Edson LOPES, Appellant, v. ALLSTATE INDEMNITY CO., Appellee.
    No. 3D02-2405.
    District Court of Appeal of Florida, Third District.
    Jan. 21, 2004.
    Rehearing and Rehearing En Banc Denied May 19, 2004.
    Levey, Airan, Brownstein, Shevin, Friedman, Roen & Kelso, and John R. Kelso, Miami, for appellant.
    Adams & Adams, and Travis McMillen; Gaebe, Mullen, Antonelli, Esco & DiMat-teo, and Joel V. Lumer, Miami, for appel-lee.

      Before GERSTEN, RAMIREZ, and WELLS, JJ.
   RAMIREZ, J.

Edson Lopes appeals from a Final Judgment after a defense jury verdict and from the trial court’s order denying his motion for judgment in accordance with Lopes’ prior motion for directed verdict. We affirm because the jury’s verdict finding that Lopes materially misrepresented or concealed material facts in reporting the claim was supported by evidence.

On April 9, 2000, Lopes drove his 1999 Ferrari 550 Maranello in a parade at Homestead Speedway when he lost control of his car and crashed it against a retaining wall. Lopes had been allowed on the track as part of a promotion called the “Ferrari Challenge.” Ralueia Silva, Lopes’ girlfriend, called Allstate to report the claim, stating that she was driving on a public street when she had the accident. Lopes knew that his girlfriend lied to Allstate about how the accident occurred.

As part of its investigation, Allstate took a statement from Ms. Silva on May 23, 2000, in which she swore that she was driving the car at the time of the accident, exiting the Florida Turnpike near Campbell Drive in Homestead, when she lost control of the car, hit a median and ended up near a pond or lake. She swore that no police were summoned to the scene and there was no police report. Upon investigation, Allstate discovered that there was no median where Ms. Silva stated the accident occurred, nor was there a pond or lake in the area. The carrier subsequently spoke with Ms. Silva on the telephone a number of times.

In August of 2000, Lopes hired an attorney to adjust his claim with Allstate. It was not until November 2, 2000, that Lopes finally corrected his misrepresentation and told Allstate that he was driving the car at the time of the accident in question and that the accident had occurred in the race track.

Allstate denied the claim, stating that the car was in a prohibited race and that the circumstances had been initially falsified. Lopes sued Allstate under the automobile collision insurance policy provision for damages resulting from Lopes’ one-car accident. Allstate answered that the events that led to the auto accident were actions which were specifically excluded under the language of the insurance policy. The policy issued to Lopes states, in its “Fraud or Misrepresentation” clause, that “Allstate will not provide coverage for any loss which occurs in connection with any material misrepresentation, fraud, or concealment of material facts.” There is also another separate clause in the subject policy, titled “Assistance and Cooperation,” which states that “[a]n insured person must cooperate with us in the investigation, settlement and defense of any claim or lawsuit.”

At trial, the jury was presented with two issues: 1) whether Lopes was involved in a loss “arising out of any prearranged or organized racing or speed contest or in practice or preparation for any contest of this type”; and 2) whether there was “any material misrepresentation or concealment of material facts in reporting the claim of April 9, 2000.” The insurance policy provided for the denial of a claim based on the occurrence of either of these two events.

Lopes argued in his motion for a directed verdict that the issue regarding the misrepresentation turned on whether the misrepresentation prejudiced Allstate. He argued that in a one-car accident such as his where the insured has collision insur-anee coverage, the location of the accident did not matter. He further contended that Allstate could not have been prejudiced by the initially false but later cured misrepresentation.

Both the race and misrepresentation issues were submitted to the jury, which jury returned a verdict finding that the loss did not arise out of any prearranged or organized racing or speed contest. The jury did find, however, that there had been a material misrepresentation or concealment of material facts in the reporting of the claim by Lopes.

Lopes now contends that the trial court erred in failing to direct a verdict that Lopes’ misrepresentation of fact to Allstate, about how the accident occurred, was not legally material to the existence of coverage. He also contends that the burden was on Allstate to prove that it was substantially prejudiced by his claimed breach of the insurance policy’s cooperation clause.

Allstate answers that the trial court did not err because, under Florida law, if there is a willful false statement of material fact, there is no requirement that an insurer show prejudicial reliance in order to enforce the contract provision. Allstate contends that the question of whether an insured has made a material misrepresentation is a question for the jury. We agree with Allstate that the trial court was correct in entering final judgment in its favor and in denying Lopes’ renewed motion for directed verdict.

When reviewing a trial court’s refusal to enter a directed verdict, an appellate court must review the evidence and all inferences of fact in the light most favorable to the non-moving party. See Anesthesiology Critical Care & Pain Mgmt. Consultants, P.A. v. Kretzer, 802 So.2d 346, 351 (Fla. 4th DCA 2001). A denial of a motion for directed verdict should be reversed only when there is no evidence upon which a jury could properly rely in reaching its verdict. Id.

First, as previously discussed, the subject policy contained a provision whereby Allstate stated it would not provide coverage for any loss which occurred in connection with any material misrepresentation, fraud or concealment of material facts. This policy provision is fully enforceable in Florida. See Schneer v. Allstate Indem. Co., 767 So.2d 485, 489 (Fla. 3d DCA 2000) (insureds’ fraudulent misrepresentations as to their contents claim voided their homeowner’s policy in its entirety and thus voided the dwelling coverage); Valdez v. Consolidated Prop. and Cas., 762 So.2d 1034 (Fla. 3d DCA 2000) (final judgment voiding insured’s insurance policy affirmed where insurance policy contained a valid provision voiding the policy upon intentional concealment or misrepresentation by the insured); American Reliance Ins. Co. v. Kiet Invs., Inc., 703 So.2d 1190 (Fla. 3d DCA 1997) (clauses voiding coverage for intentional misrepresentations and fraud in claims process are valid and enforceable); Wong Ken v. State Farm Fire & Cas. Co., 685 So.2d 1002, 1003 (Fla. 3d DCA 1997) (“[t]he clause which voids coverage if the insured makes an intentional misrepresentation ‘after a loss’ — that is, as here, in making a claim— is valid and enforceable”) (citation omitted); American Employers’ Ins. Co. v. Taylor, 476 So.2d 281 (Fla. 1st DCA 1985) (jury verdict for insurance company affirmed based on misrepresentations made by the insured in the claims process).

In addition, under Florida law, if there is a willful false statement of a material fact, there is no requirement that an insurer show prejudicial reliance in order to enforce the contract provision. See Prudential Ins. Co. v. Whittington, 98 So.2d 382, 388 (Fla. 2d DCA 1957); Michigan Millers Mut. Ins. Corp. v. Benfield, 140 F.3d 915 (11th Cir.1998) (in a case involving the application of Florida law to a declaratory judgment action by an insurer where the insured made misrepresentations during the investigation of a claim, the district court directed a verdict for the insurer, stating the insurer was not required to demonstrate that it relied on the insured’s misrepresentations when a asserting a policy defense based on fraud; the insured perpetrating a material fraud in pursuing an insurance claim was sufficient). The public policy rationale behind such cases being that if there is no consequence when a policyholder makes a false representation to his or her insurance company, the policy provision would be rendered meaningless, which would be inconsistent with the principle that every provision in a contract is to be given meaning and effect. See American Employers’ Ins. Co., 476 So.2d at 284.

Second, Lopes’ position that Allstate should not have had the right to have a jury determine the material misrepresentation issue because he eventually corrected his false statement after he made it is without merit. The question of whether an insured has made a material misrepresentation is a question for the jury to determine. See Haiman v. Federal Ins. Co., 798 So.2d 811 (Fla. 4th DCA 2001). Consequently, it would have been an error for the trial court to direct a verdict and not submit the issue to the jury.

Lopes cites Flores v. Allstate Ins. Co., 819 So.2d 740 (Fla.2002) in support of his position. The issue in Flores was whether the insured’s submission of a fraudulent bill under the personal injury protection (PIP) portion of an automobile liability policy voided the insured’s right to claim uninsured motorist (UM) benefits under the policy even where no fraud occurred in connection with the UM claim. Thus, we find Flores distinguishable and inapplicable here. As the Florida Supreme Court in Flores concluded, Schneer and Wong Ken, supra, did not address the issue presented in Flores because the policies in Schneer and Wong Ken were homeowners’ policies containing clear language that the policy would be void for fraud or misrepresentation whether the fraud occurred before or after the loss. Flores, 819 So.2d at 747.

In this case, the false information was provided by Lopes’ girlfriend in May 2000. Lopes did not come forth with the correct information until November 2000. During this time, Allstate spent approximately seven months investigating the case and eventually discovered that Lopes had lied. The trial court correctly submitted the issue to the jury, and the jury found that Lopes made a material misrepresentation or material concealment of facts in reporting his claim. The court properly held that the jury’s determination that the insured made a material misrepresentation precluded his claim from coverage. Accordingly, the trial court correctly entered Final Judgment for Allstate and denied Lopes’ motion for judgment in accordance with his prior motion for directed verdict.

Affirmed.

      . Silva was a plaintiff, but at trial, was dropped as a party.

      . We agree with Allstate that this case deals with the policy’s fraud and misrepresentation clause, and not its cooperation clause. The cases cited by Lopes involve breaches of cooperation clauses. In addition, the cases cited by Lopes are also distinguishable because they are from states that require an insurer to show prejudice when an insured commits a fraud or makes a material misrepresentation.


author: TORPY, J. SHARP, W., J.,

text:
    Saul CARMONA, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-229.
    District Court of Appeal of Florida, Fifth District.
    March 5, 2004.
    James B. Gibson, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   TORPY, J.

Appellant challenges the lower court’s order that denied his motion to withdraw his pleas to three of the ten counts to which he had entered pleas. Appellant contends that the trial court erred by not appointing conflict-free counsel to represent him during the hearing on his motion. The State confesses error based on our recent decision in Smith v. State, 845 So.2d 987 (Fla. 5th DCA 2008). Notwithstanding the State’s confession, because we believe the parties misapprehend our decision in Smith, we affirm.

Immediately prior to the commencement of his trial, Appellant requested a continuance. Following the denial of this last-minute request, Appellant pled guilty in four separate cases to a total of ten separate counts, with the understanding that he would receive concurrent fifteen-year sentences on all cases. He signed written plea forms which provided, among other things, that he was not pressured or forced to enter the pleas. Additionally, the trial judge conducted an extensive colloquy with Appellant during which Appellant, under oath, stated that he was not under the influence of drugs or alcohol, that he fully understood the proceedings, and that he had not been pressured, forced or threatened by anyone prior to entering the pleas. Sentencing was deferred while a pre-sen-tence investigation was conducted.

When Appellant appeared for sentencing, his attorney advised the court that Appellant wished to withdraw his plea on three of the ten counts. Appellant’s attorney stated that Appellant’s decision was contrary to his advice because the court would still sentence him to fifteen years on the other seven counts whether or not the court granted Appellant’s motion. The court inquired of Appellant who confirmed that this was his wish.

Thereafter, the court placed Appellant under oath and asked him to provide the basis for his request. Appellant’s only stated basis was that he desired to go to trial because he was innocent of the three offenses, that he was confused when he entered his pleas, and that he “fe[lt]” his counsel had forced him to plea. No other facts were proffered in support of the motion. During the proceeding, Appellant did not request that his counsel be discharged, nor did counsel suggest the existence of a conflict requiring that he be permitted to withdraw. The trial judge denied Appellant’s motion to withdraw his plea.

Appellant argues one point on appeal, that the court erred in not appointing conflict-free counsel. In support of his argument, Appellant relies on our recent decision in Smith. We disagree that Smith compels reversal.

In Smith, we held that when a patent conflict of interest arises between counsel and client in a motion to withdraw proceeding, the court has a duty to offer the client conflict-free counsel. In Smith, during a hearing on a motion to withdraw the defendant’s plea, counsel interrupted his client for the purpose of controverting his client’s rendition of the relevant facts and interjecting his own version of the facts. We held that, under those circumstances, because the conflict between counsel and client was patent, the court had a-duty to intercede and offer the defendant the opportunity to seek conflict-free counsel.

In the instant case, there was no patent conflict between counsel and client. Counsel simply told the court that his client wished to withdraw his plea against the advice of counsel. The ensuing brief discourse related only to the wisdom of withdrawing the plea. Counsel never disputed any factual account by Appellant. He merely made clear that, in counsel’s opinion, Appellant was acting imprudently because Appellant still would receive fifteen years on the other seven counts, plus would face additional exposure on the three counts that he wished to take to trial. Counsel was not taking a conflicting position with his client. Indeed, he was doing what ethical counsel is supposed to do under these circumstances: giving competent advice.

As to Appellant’s statement that he felt forced by his lawyer to enter the plea, again no patent conflict existed. His counsel said nothing to contradict Appellant on this point, perhaps because he knew that no facts existed to support his client’s conclusion, or perhaps because he knew the allegations were refuted by the record created when Appellant entered his initial plea. In any event, even assuming that a conflict did in fact exist, which seems unlikely on this record, the conflict was latent, not patent.

After hearing Appellant’s stated grounds, the trial court summarily denied the request. The summary denial was correct because, first, Appellant’s statement that he “felt” forced was not a sufficient allegation to support a finding of threat or coercion. Second, even if deemed sufficient, Appellant’s stated ground was contrary to the facts actually witnessed by the trial judge during the plea proceeding and ensuing plea colloquy. Finally, because the plea to the three offenses was entered at the same time as the other seven to which Appellant did not take issue, Appellant’s claim of coercion was inherently disingenuous.

Because the parties were apparently confused by our decision in Smith, we take this opportunity to clarify its holding. Even after Smith, the primary responsibility for alerting the court to potential conflict in situations such as this lies with counsel. It is counsel who knows, through confidential communications, the precise factual basis for a client’s request to withdraw a plea. When counsel recognizes that a client’s request is not based on legally sufficient evidence, counsel obviously has no duty to withdraw. When counsel becomes aware that his client’s version of the facts is legally sufficient to support his client’s request for relief, but that counsel’s testimony would contradict his client on relevant facts, then counsel is duty-bound to ask for permission to withdraw.

Our opinion should not be read to prohibit a trial judge, when confronted with a situation where conflict might exist, albeit not patent, from inquiring generally of counsel as to whether conflict exists. It is only when conflict becomes obvious, as it did in Smith, however, that the trial judge is obligated to intervene into the attorney-client relationship to offer conflict counsel. Such was clearly not the case here.

AFFIRMED.

GRIFFIN, J., concurs.

SHARP, W., J., dissents with opinion.

SHARP, W., J.,

dissenting.

I respectfully dissent. I do not think that the State, in conceding error here, “misapprehended” this court’s opinion in Smith v. State, 845 So.2d 937 (Fla. 5th DCA 2003), and I submit that the majority opinion narrows and limits the holding of Smith in a confusing way. The majority says Smith requires that there be a “patent” rather than a “latent” conflict of interest between counsel and a defendant, or that the conflict somehow becomes “obvious” before appointment of separate counsel is required. The determination of what is “latent” and what is “patent” has created conflicting decisions and fine distinctions in the civil law area to such an extent it sometimes no longer makes good sense. Its introduction into the substantive law of a defendant’s constitutional right to counsel is unwise.

Carmona stated that he had been forced by his lawyer to enter into the guilty pleas, that he was innocent of three of the charges, and that he wanted to go to trial on those counts. Carmona’s attorney said: “It’s against my advice to do so.” In my view, a conflict clearly arose because the lawyer disagreed with Carmona’s efforts to withdraw from the guilty pleas, and he would also be a potential adverse witness as to the fact that he did not “pressure” his client to accept the plea bargain. Call it patent or latent; the conflict was there.

In Smith v. State, the attorney appointed to represent the defendant began testifying against his client, denying the fact basis for Smith’s motion to withdraw his plea (ie., that counsel did not sufficiently explain to him his options and alternatives). The court held that once a conflict of interest arises between defendant and his counsel, the preferred course is to appoint a different counsel for the purpose of representing the defendant on his or her motion to withdraw. In that case, the court noted the conflict was “patent.” However, it did not limit this holding to “patent” conflict cases.

The Smith court cited to two other DCA cases as authority for its holding that do not mention “patent” or “latent.” In Jones v. State, 827 So.2d 1086 (Fla. 1st DCA 2002), the first case relied on by Smith, the defendant claimed he was misled when entering into his plea agreement and that he did not understand the consequences of his plea. His attorney who had been representing him refused to represent him at the motion hearing because she knew she would be called by the State to testify against him. The court said it was clear at the onset of the hearing that counsel and defendant were in “adversarial positions,” based on the circumstance that counsel would be expected to deny the defendant’s claims she misled him or did not explain to him the consequences of his plea.

The Jones scenario is indistinguishable from the case before us. When the conflict arose at the beginning of the hearing, the defendant’s right to new counsel matured. It did not matter that his counsel later refused to represent him or that she testified against him. Nor did it matter that the defendant’s basis for his motion was without merit and could have been disposed of without a hearing. The court said, even in that event, the defendant was entitled to newly appointed counsel.

This argument is without merit. This court has held “assistance of counsel is among those ‘constitutional rights so basic to a fair trial the infraction can never be treated as harmless error’.”

Jones at 1087.

In Karg v. State, 706 So.2d 124 (Fla. 1st DCA 1998), the defendant sought to withdraw his plea because he claimed his attorney failed to communicate plea offers to him. Based on that alone, the court held that a conflict between the defendant and his trial counsel appeared in the record and therefore the trial court was required to appoint conflict-free counsel to represent the defendant regarding his motion to withdraw his plea. The conflict in that case, as well as in this case, arose because the defendant claimed some kind of malfeasance on the part of the attorney’s representation of the defendant, which caused the defendant to accept the plea bargain. That alone was sufficient in Karg to require appointment of conflict-free counsel. It should also suffice in this case.

      . Appellant also relies upon four other cases, all of which are distinguishable. In Smith v. State, 835 So.2d 1259 (Fla. 2d DCA 2003) and Karg v. State, 706 So.2d 124 (Fla. 1st DCA 1998), the conflicts between attorney and client were patent. In the other two cases, the court simply treated the defendants as appearing pro se. Brown v. State, 835 So.2d 402 (Fla. 2d DCA 2003) (defendant moved to discharge counsel); Jones v. State, 827 So.2d 1086 (Fla. 1st DCA 2002), (counsel informed court he could not represent defendant because of a conflict).

      . Independent Mortg. and Finance, Inc. v. Deater, 814 So.2d 1224 (Fla. 3d DCA 2002); Emergency Associates of Tampa, P.A. v. Sassano, 664 So.2d 1000, 1003 n. 4 (Fla. 2d DCA 1995); Bajrangi v. Magnethel Enterprises, Inc., 589 So.2d 416, 419 n. 5 (Fla. 5th DCA 1991).


author: GODERICH, Judge.

text:
    The STATE of Florida, Appellant, v. Gabriel HARDEN, et al., Appellees.
    No. 3D03-521.
    District Court of Appeal of Florida, Third District.
    March 10, 2004.

      Charles J. Crist, Jr., Attorney General, and Jason Vail and Charles M. Fahlbusch, Assistant Attorneys General, and Christopher M. Kise, Solicitor General, for appellant.
    Anthony C. Vitale; G. Richard Strafer; Mark L. Shumaker; Manto & Kassebaum and Ronald J. Manto; Tony Moss; and Bennett H. Brummer, Public Defender, and Carlos Gonzalez, Assistant Public Defender, for appellees.
    Sonnenshein Nath & Rosenthal (Washington, D.C.), Bruce Merlin Fried, Gadi Weinreich, Howard J. Young, Lisa A. Estrada and Jane Hyatt Thorpe, as amicus curiae.
    Before COPE, GODERICH and SHEVIN, JJ.
   CORRECTED OPINION

GODERICH, Judge.

The State appeals from an order granting the defendants’ motion to dismiss the information and declaring Florida’s Medicaid Provider Fraud Statute, § 409.920(2)(e), Fla. Stat. (2000), unconstitutional. We affirm.

On December 22, 2000, the State filed a nine-count information charging Gabriel Harden and nine other defendants with racketeering, conspiracy to commit racketeering, and Medicaid fraud. Specifically, in Counts 3-9, the State alleged that the defendants violated the “anti-kickback” provision of Florida’s Medicaid Provider Fraud Statute, § 409.920(2)(e), Fla. Stat. (2000), by paying drivers, who were alleged to be “employed by or associated with” three corporate entities that were engaged in the business of providing dental services to children, a per head fee or commission for the “solicitation and transportation” of Medicaid eligible children to “dental facilities for treatment.” Counts 1 and 2 charged the defendants with racketeering and conspiracy to commit racketeering, and were based on the same allegations as Counts 3-9.

On October 4, 2002, Harden filed a motion to dismiss the information arguing, among other things, that payment of wages by a Medicaid provider to its employees for the “solicitation and transportation” of Medicaid-eligible children “to dental facilities for treatment” was expressly protected by federal Medicaid statutes and regulations, the so-called “safe harbors,” and that the State’s attempt to criminally prosecute this federally protected activity was unconstitutional under the Supremacy Clause. U.S. Const, art. VI, cl. 2. Thereafter, the other defendants adopted Harden’s motion.

On December 12, 2002, the State filed its response arguing that the method of payment used by the providers to pay the drivers was unlawful. The State alleged that the provider would pay the driver $25 to $30 cash for each Medicaid-eligible child the driver could find and bring to the clinic. The State argued that this recruiting or solicitation of patients by Medicaid providers through its paid employees was unlawful under both federal and state law and amounted to kickbacks for patient referrals.

On January 10 and 31, 2003, the trial court heard arguments of counsel, and on February 18, 2003, the trial court granted Harden’s motion to dismiss stating, in part:

[T]he State’s attempt herein to prosecute, as a category of unlawful “remuneration” barred by Section 409.920(2)[ (e) ], the wages paid by Harden’s business, Dental Express, Inc., (i.e., an employer) to certain of its employees for the purposes of soliciting and transporting Medicaid-eligible patients to Harden’s dental facilities is preempted by both an express provision of the federal Medicaid Act, 42 U.S.C. § 1320a-7b(b)(3), as well as a parallel administrative “safe harbor” provision, 42 C.F.R. § 1001.952(f).

Thus, the trial court applied implied conflict preemption analysis and found that section 409.920(2)(e), Florida Statutes (2000), was unconstitutional. Additionally, the trial court found that the mens rea requirement in section 409.920(l)(d), Florida Statutes (2000), as applied to section 409.920(2)(e), Florida Statutes (2000), was preempted by federal law and also unconstitutional. The trial court subsequently entered dismissal orders as to the other defendants. The State’s appeal follows.

The State contends that the trial court erred by declaring section 409.920(2)(e), Florida Statutes (2000), unconstitutional and by dismissing the defendants’ informations. Specifically, the State argues that Florida’s anti-kickback statute does not conflict with the federal anti-kickback statute and that therefore the Florida statute is not preempted under the Supremacy Clause. We disagree.

Implied conflict preemption occurs when (a) compliance with both federal and state regulations is a physical impossibility, or (b) when a state law is an obstacle to execution and accomplishment of the objectives and purpose of a Congressional enactment. Pharmaceutical Research & Mfrs. of Am. v. Meadows, 304 F.3d 1197, 1206 (11th Cir.2002).

The federal anti-kickback statute, 42 U.S.C. § 1320a-7b (2000), titled “Criminal penalties for acts involving Federal health care programs,” provides, in pertinent part:

(b) Illegal remunerations
* * *
(2) whoever knowingly and willfully offers to pay any remuneration (including any kickback, bribe, or rebate) directly or indirectly, overtly or covertly, in cash or in kind to any person to induce such person—
(A) to refer an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under a Federal health care program, ...
* * *
shall be guilty of a felony....
(3) Paragraphs (1) and (2) shall not apply to—
(B) any amount paid by an employer to an employee (who has a bona fide employment relationship with such employer) for employment in the provision of covered items or services....

At first glance, section 409.920(2)(e), Florida Statutes (2000), appears to track the language of the federal statute by making it unlawful to:

(e) Knowingly solicit, offer, pay, or receive any remuneration, including any kickback, bribe, or rebate, directly or indirectly, overtly or covertly, in cash or in kind, in return for referring an individual to a person for the furnishing or arranging of the furnishing of any item or service for which payment may be made, in whole or in part, under the Medicaid program, or in return for obtaining, purchasing, leasing, ordering, or arranging for or recommending, obtaining, purchasing leasing or ordering any goods, facility, item or service, for which payment may be made, in whole or in part, under the Medicaid program.

However, upon closer examination, there are two significant differences between the federal anti-kickback statute and the Florida anti-kickback statute. First, the federal statute contains several so-called “safe harbor” provisions that exclude certain types of payments from being considered “illegal remuneration.” 42 U.S.C. § 1320a-7b(b)(3)(2000). Specifically, 42 U.S.C. § 1320a-7b(b)(3)(B)(2000) protects employer-employee payments for the provision of covered items or services from criminal prosecution. The federal medicaid statutes require participating states to provide transportation to those eligible for dental services. 42 U.S.C. § 1396a(a)(43)(2000); § 409.905(12), Fla. Stat. (2000). Therefore, the Florida anti-kickback statute without any “safe harbor” provisions criminalizes certain activity that is protected under the federal anti-kickback statute and stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Meadows, 304 F.3d at 1206.

Secondly, the federal anti-kickback statute contains a “knowing and willful” mens rea requirement. Under federal law, “in order to establish a ‘willful’ violation of a statute, ‘the Government must prove that the defendant acted with knowledge that his conduct was unlawful.’ ” Bryan v. United States, 524 U.S. 184, 192, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998) (citations omitted). In contrast, Florida’s anti-kickback statute only requires that the defendant act “knowingly.” In turn, “knowingly” is defined as “done by a person who is aware or should be aware of the nature of his or her conduct and that his or her conduct is substantially certain to cause the intended result.” § 409.920(l)(d), Fla. Stat. (2000). This Florida definition of “knowingly” would include “mere negligence,” thereby criminalizing activity that the federal statute intended to protect. Hanlester Network v. Shalala, 51 F.3d 1390, 1399 n. 16 (9th Cir.1995)(“The legislative history demonstrates that Congress, by use of the phrase ‘knowingly and willfully’ to describe the type of conduct prohibited under the anti-kickback laws, intended to shield from prosecution only those whose conduct ‘while improper, was inadvertent.’ ”). Again, enforcement of the Florida anti-kickback statute would stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Meadows, 304 F.3d at 1206.

For these reasons, we conclude that the trial court properly found that there was implied conflict preemption and declared section 409.920(2)(e), Florida Statutes (2000), unconstitutional.

Accordingly, we affirm.

      . In its order of dismissal, the trial court found other constitutional defects. Because the issues discussed above are dispositive, we do not consider the propriety of those rulings.


author: WHATLEY, Judge.

text:
    Julie Ann DICKINSON, Appellant, v. Jason Terry PHILLIPS, Appellee.
    No. 2D03-637.
    District Court of Appeal of Florida, Second District.
    March 19, 2004.
    Rehearing Denied May 17, 2004.

      J. Stanford Lifsey of J. Stanford Lifsey, P.A., Tampa, for Appellant.
    No appearance for Appellee Jason Terry Phillips, Dover.
   WHATLEY, Judge.

Julie Ann Dickinson appeals an amended final judgment of paternity. We find error only in the trial court’s failure to determine each party’s responsibility for the minor child’s uncovered medical expenses which are reasonable and necessary. The trial court should make provision for these expenses to be paid by either or both parties based upon each party’s ability to pay. Green v. Green, 681 So.2d 769, 770 (Fla. 2d DCA 1996). As to all other issues, the final judgment is affirmed.

Affirmed in part, reversed in part, and remanded with directions.

KELLY and WALLACE, JJ., concur.


author: WALLACE, Judge. VILLANTI, Judge,

text:
    HOUSING AUTHORITY OF the CITY OF TAMPA, Petitioner, v. Connie BURTON, Respondent.
    No. 2D03-995.
    District Court of Appeal of Florida, Second District.
    March 24, 2004.
    Rehearing Denied May 17, 2004.

      J. Frazier Carraway, Astrid Hapanow-icz, and Cheryl J. Lister of Saxon, Gilmore, Carraway, Gibbons, Lash & Wilcox, P.A., Tampa, for Petitioner.
    Guy M. Burns, Jonathan S. Coleman, and Zachary D. Messa of Johnson, Pope, Bokor, Ruppel & Burns, P.A., Tampa, for Respondent.
   WALLACE, Judge.

The Tampa Housing Authority seeks certiorari review of the circuit court’s order denying its petition for writ of prohibition. The petition for writ of prohibition had sought to disqualify the county judge from further proceedings in litigation to evict a tenant of the Housing Authority. We treat the petition for writ of certiorari as an appeal from the circuit court and affirm.

In Hillsborough County Court, the Housing Authority obtained a favorable jury verdict in the eviction trial of Connie Burton, a resident of public housing in Tampa. When ruling on Burton’s motion for a new trial, the county judge denied the motion on the grounds asserted but ordered a new trial on his own initiative based on his personal observation that one juror was “consistently asleep in the jury box during the presentation of evidence” and that “to allow the jury verdict to stand would be a manifest injustice.” The trial record did not contain any mention by either party or the judge of a sleeping juror. The Housing Authority filed a motion to disqualify the county judge, accompanied by affidavits of representatives of the Housing Authority who were present during the trial but did not observe the juror sleeping. The Housing Authority feared judicial prejudice or bias because the county judge did not raise the issue of juror misconduct until after the trial’s conclusion, even though such misconduct could have been cured by seating an alternate juror during the trial. The county judge denied the motion.

The Housing Authority filed a petition for writ of prohibition in the Circuit Court of the Thirteenth Judicial Circuit seeking to direct the county judge to disqualify himself. Ruling that the Housing Authority’s motion lacked sufficient facts alleging prejudice or bias, the circuit court denied the petition.

The order denying the Housing Authority’s petition for writ of prohibition concluded the original proceeding in the circuit court. As such, the order is an appealable final order. See Harris v. Culbreath, 818 So.2d 563, 564 (Fla. 2d DCA 2002); Loftis v. State, 682 So.2d 632, 633 (Fla. 5th DCA 1996); State v. Brown, 527 So.2d 207, 208 (Fla. 3d DCA 1987); Philip J. Padovano, Florida Appellate Practice § 21.4 (2003 ed. West Group); but see State v. Shaw, 643 So.2d 1163 (Fla. 4th DCA 1994). Accordingly, we treat the Housing Authority’s petition for writ of certiorari as a timely filed notice of appeal. See Fla. R.App. P. 9.040(c).

For the county judge ruling on the motion, the circuit court entertaining the petition for writ of prohibition, and this court on direct appeal, the sole issue is the legal sufficiency of the Housing Authority’s motion to disqualify without regard to proof of prejudice or bias. See Roberts v. State, 840 So.2d 962, 968-69 (Fla.2002). “A motion to disqualify shall show ... that the party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge.... ” Fla. R. Jud. Admin. 2.160(d)(1); see also § 38.10, Fla. Stat. (2002). A motion is legally sufficient when the facts alleged, taken as true, would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial. Thompson v. State, 759 So.2d 650, 659 (Fla.2000); Peterson v. Asklipious, 833 So.2d 262, 263-64 (Fla. 4th DCA 2002). The alleged facts must be “germane to the judge’s undue bias, prejudice or sympathy.” Dragovich v. State, 492 So.2d 350, 352 (Fla.1986). Adverse rulings, by themselves, whether they are correct or incorrect, are not legally sufficient grounds upon which to base a motion to disqualify a judge for prejudice or bias. Thompson, 759 So.2d at 659; Areizaga v. Spicer, 841 So.2d 494, 496 (Fla. 2d DCA 2003).

Based upon our de novo review of the motion and supporting affidavits, the gravamen of the Housing Authority’s fear of prejudice or bias was that the new trial order lacked a basis in law and fact. The Housing Authority did not allege facts relating to the county judge’s personal prejudice or bias. A disqualifying prejudice does not result “merely from the fact that the judge has ruled adversely to the party who seeks to disqualify him.” Wilson v. Renfroe, 91 So.2d 857, 860 (Fla.1956). The circuit court’s order denying the petition for writ of prohibition was not in error, and we affirm.

Affirmed.

SALCINES, J., Concurs.

VILLANTI, J., Dissents with opinion.

VILLANTI, Judge,

Dissenting.

I respectfully dissent because in my view, the allegations contained in the Housing Authority’s motion to disqualify would place a reasonably prudent person in fear of not receiving a fair and impartial trial or hearing.

As the majority notes, the sole issue before this court is the legal sufficiency of the Housing Authority’s motion to disqualify. A legally sufficient motion to disqualify must allege facts which, if true, would cause a reasonably prudent person to fear he would not receive a fair and impartial trial or hearing. Thompson v. State, 759 So.2d 650, 659 (Fla.2000). The motion must contain facts that are “germane to the judge’s undue bias, prejudice, or sympathy.” Jackson v. State, 599 So.2d 103, 107 (Fla.1992) (emphasis added). Here, the Housing Authority’s motion contained facts germane to the judge’s bias because the facts and the reasonable inferences that could be drawn from them suggested the judge was not able to conduct a fair and impartial trial or hearing.

Unlike the majority, I do not believe that a facially sufficient motion for disqualification must be read so narrowly that only facts directly representative of prejudice can serve as evidence of the judge’s bias. Rarely, if ever, will facts standing on their own clearly show a judge’s blatant bias. Instead, the question of whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair trial requires a court to consider whether the facts as stated by the party reasonably create the inference the party is suggesting they create. In this case, the facts do lead to the reasonable inference the Housing Authority is suggesting, namely, that by ordering a new trial based on the judge’s observation of a sleeping juror that neither party observed and that the judge himself failed to bring to the attention of either party, the judge exhibited bias and favoritism toward the tenant.

The majority correctly notes that bias cannot be inferred from a trial judge’s adverse ruling. However, this case goes beyond an adverse ruling. By ordering a new trial based on a juror observed sleeping by no one except the judge, without conducting an evidentiary hearing to determine (1) whether the juror actually was asleep and (2) whether the verdict was compromised by the sleeping juror, the judge effectively interjected himself into the litigation such that he became an advocate rather than an impartial arbiter. This was tantamount to the judge’s taking the bat from the tenant, corking it; and then hitting a home run for her. Although the law is clear that an adverse ruling alone does not warrant a judge’s disqualification, when a judge actually interjects himself into the litigation, thereby giving one party an unfair advantage, there is a basis for disqualification. See Shore Mariner Condo. Ass’n v. Antonious, 722 So.2d 247 (Fla. 2d DCA 1998) (disqualifying judge for instructing defendant to amend his pleadings to include additional defenses, thus creating the appearance of favoritism); Campbell Soup Co. v. Roberts, 676 So.2d 435, 436 (Fla. 2d DCA 1995) (judge’s statement that defendant’s dismissed counsel was “innocent victim” and insistence that counsel continue to represent defendant created well-grounded fear about judge’s inability to be impartial); Zuchel v. State, 824 So.2d 1044, 1046 (Fla. 4th DCA 2002) (denial of right to cross-examination was more than adverse ruling- but an indication of “unwillingness to hear” one party’s side of case); J.F. v. State, 718 So.2d 251, 252 (Fla. 4th DCA 1998) (trial court “depart[ed] from a position of neutrality” when it ordered, sua sponte, production- of evidence State did not even offer into evidence).

The judge’s propitious ruling in this case correlated to his interjecting himself into the litigation because without affording the parties a hearing on the matter, he implicitly made factual findings as to both the existence of a sleeping juror and the prejudice caused by this sleeping juror. These facts give rise to an inference of partiality sufficient to cause a reasonably prudent person to fear his ability to obtain a fair trial or hearing. For these reasons, I would reverse.


author: SCHWARTZ, Chief Judge.

text:
    ARCHIVE AMERICA, INC., a Florida Corporation, Appellant/Cross-Appellee, v. VARIETY CHILDREN’S HOSPITAL d/b/a Miami Children’s Hospital, a Florida not for profit corporation, Appellee/Cross-Appellant.
    Nos. 3D03-2531, 3D03-2574.
    District Court of Appeal of Florida, Third District.
    March 24, 2004.

      Ruden, McClosky, Smith, Schuster & Russell and John H. Pelzer (Fort Lauder-dale), for Archive America, Inc.
    Broad & Cassel and Karen L. Stetson, Miami, for Variety Children’s Hospital d/b/a Miami Children’s Hospital.
    Before SCHWARTZ, C.J., and GREEN, J., and BARKDULL, THOMAS H., JR., Senior Judge.
   SCHWARTZ, Chief Judge.

Archive America, Inc. owns a large warehouse which stored literally tons of patients’ medical records kept by Miami Children’s Hospital. After a dispute arose between the two, the hospital sought to move the records to a competitor of Archive, and Archive, in turn, sued the hospital to recover damages for breach of contract and for the warehousing charges involved. In these proceedings, both sides challenge a non-final order in which the trial judge dealt with the facts that, on one hand, Archive held a possessory warehouseman’s lien on the records under section 677.209, Florida Statutes (2003), and, on the other, that the hospital needed access to them in the course of its business of treating patients. The order now in question resolved the competing interests involved, pending final determination of the case by (a) ordering Archive to release the records under court supervision, but only (b) on the condition that the hospital post a bond or cash equivalent in an amount deemed appropriate to provide a fair substitute for the possessory lien.

Treating the primary issues before us, we find no merit either in Miami Children’s Hospital’s claim of error in the bond requirement in general or in Archive’s contention that the amount was inadequate. Hence, to the extent that the order below is renewable on non-final appeal under Florida Rule of Appellate Procedure 9.130(a)(3)(B)(orders relating to injunctions), see Parker Tampa Two, Inc. v. Somerset Dev. Corp., 544 So.2d 1018 (Fla.1989), or Rule 9.130(a)(3)(C)(ii)(orders determining the right to immediate. possession of property), we affirm. Alternatively considering the papers as applications for certiorari, see Eagle Brothers 2000, Inc. v. G.R. Sunrise, Inc., 863 So.2d 1283 (Fla. 4th DCA 2004); McClain Constr. Corp. v. Roberts, 351 So.2d 399 (Fla. 2d DCA 1977); Paul Gallizzi Gen. Contractor, Inc. v. Deeb Contractors, Inc., 502 So.2d 28 (Fla. 2d DCA 1987), we deny review.

I.

First, although neither the warehouseman’s provisions of the Florida law, sections 677.201-677.210, Florida Statutes (2003)(7-201 to 7-210 of the UCC), nor any other statute specifically so provides, we find that the lower court acted well within its inherent equitable powers to condition the release of the property from the effect of the warehouseman’s lien upon the posting of a bond to satisfy a final judgment for the warehousing charges. This process — in which, in effect, the court transferred the lien to bond so as to equitably protect Archive’s rights while, again in effect, mandatorily enjoining the transfer of the property subject to the lien — has long been recognized and employed in Florida. As the court stated in Merryman v. Southern Tours, Inc., 120 Fla. 440, 162 So. 897, 899 (1935):

The absence of a special statute requiring injunction bonds in all cases affords no occasion per se for a departure from the requirement in cases like this where by injunction the complainant seeks to destroy, for the period of the injunction’s duration, valuable rights being claimed by the defendant contrary to the alleged equity of complainant’s adverse pleading.

Accord LTD Commodities Inc. v. Perederij, 699 F.2d 404 (7th Cir.1983); Foreman v. Behr, 866 So.2d 705 (Fla. 2d DCA 2003)(attorney’s possessory retaining lien); Andrew Hall & Assocs. v. Ghanem, 679 So.2d 60 (Fla. 4th DCA 1996)(same); Wintter v. Fabber, 618 So.2d 375 (Fla. 4th DCA 1993); Maplewood Phase One Homeowner’s Ass’n v. Cecil, 585 So.2d 370, 371 (Fla. 4th DCA 1991)(“While no statute or rule of court appears to authorize the replacement of a homeowner association’s maintenance lien with a bond, we can think of no good reason why the chancellor might not order such a procedure as an exercise of his equitable powers.”); Annot., Furnishing of Bond as a Prerequisite to Issuance of Temporary Restraining Order, 73 A.L.R.2d 854, § 2 at 856 (1960). LTD Commodities is closely on point and fully supports the determination below.

II.

After extensive hearings, see and compare AOT, Inc. v. Hampshire Management Co., 653 So.2d 476 (Fla. 3d DCA 1995), and eases cited at 478, the trial court fixed the amount of the bond at $446,290.89. It did so upon an evaluation of the competing interests involved, including “each party’s hardship and likelihood of ultimate success,” LTD Commodities, at 407, and the fact that the records in question really belong, not to either party, but to the respective patients. We find no error or abuse of discretion in this determination. See Fidelity & Casualty Co. v. D.N. Morrison Constr. Co., 99 Fla. 309, 126 So. 151 (1930); Cushman & Wakefield, Inc. v. Cozart, 561 So.2d 368 (Fla. 2d DCA 1990).

Specifically, although the contention presents the most difficult issue in the case, we reject Archive’s argument that, notwithstanding the extent of its claim was hotly disputed on the merits, the court was required to set the bond at no less than the full amount of its demand of $2.5 million. We believe that this position is in erroneous conflict with the principle that decisions of this sort should be based upon an assessment of all the competing equities, including not only what is sought by the offended party, but the “likelihood of [its] ultimate success.” LTD Commodities, at 407.

Archive’s heavy reliance on State v. Miller, 373 So.2d 677 (Fla.1979) is essentially misplaced. Miller upheld the constitutionality of section 713.76, Florida Statutes (1977), which permitted release of a pos-sessory lien established by section 713.58 in favor of persons providing labor and services on personal property, upon the posting of a bond “in the amount of the final bill” rendered by the lienor. But this provision was sustained as sufficiently protecting the lienor’s rights, even though— really, only because — no hearing on the merits at all was statutorily provided. This case, in which an adversarial hearing was afforded below, presents no such issue and requires no such condition. See North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975); Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). While it is true, as the court euphemistically said in Miller, that the very purpose of a pos-sessory lien is to provide “leverage looking solely toward full payment,” 373 So.2d at 680, there is nothing in the law to require that a lienor be permitted to coerce a settlement of its underlying claim simply by a unilateral determination as to its amount which would make it financially impossible for the hospital otherwise to have access to its property.

Affirmed; certiorari denied.

      . 677.209 Lien of warehouseman.—
      (1) A warehouseman has a lien against the bailor on the goods covered by a warehouse receipt or on the proceeds thereof in his or her possession for charges for storage or transportation (including demurrage and terminal charges), insurance, labor, or charges present or future in relation to the goods, and for expenses necessary for preservation of the goods or reasonably incurred in their sale pursuant to law. If the person on whose account the goods are held is liable for like charges or expenses in relation to other goods whenever deposited and it is stated in the receipt that a lien is claimed for charges and expenses in relation to other goods, the warehouseman also has a lien against him or her for such charges and expenses whether or not the other goods have been delivered by the warehouseman. But against a person to whom a negotiable warehouse receipt is duly negotiated a warehouseman's lien is limited to charges in an amount or at a rate specified on the receipt or if no charges are so specified then to a reasonable charge for storage of the goods covered by the receipt subsequent to the date of the receipt.
      (2)The warehouseman may also reserve a security interest against the bailor for a maximum amount specified on the receipt for charges other than those specified in subsection (1), such as for money advanced and interest. Such a security interest is governed by the chapter on secured transactions (chapter 679).
      (3) A warehouseman’s lien for charges and expenses under subsection (1) or a security interest under subsection (2) is also effective against any person who so entrusted the bailor with possession of the goods that a pledge of them by him or her to a good faith purchaser for value would have been valid but is not effective against a person as to whom to document confers no right in the goods covered by it under s.677.503.
      (4) A warehouseman loses his or her lien on any goods which he or she voluntarily delivers or which he or she unjustifiably refuses to deliver.

      . Archive correctly points out that no patients’ interests have been affected by the litigation because it has freely permitted access to the records when issues of their health have arisen. While this is certainly an equitable consideration to be weighed on Archive's side, its practice also shows that it has not, because it could not conscientiously have done so, insisted on its now-asserted right to hold all the records in ransom for a full payment of the amount it claims is due. Indeed, in legal contemplation, it may have abandoned its lien rights to that extent. See U.C.C. § 7-209(4) (2003); Foster v. Thornton, 131 Fla. 277, 179 So. 882 (1937); 34 Fla. Jur.2d § 32 Liens, at 638 (2000); 78 Am. Jur.2d § 73 Warehouses, at 207 (2002).

      . It must be said that the required bond in LTD Commodities was in the amount the lien- or claimed was due for services rendered. See also Wintter v. Fabber, 618 So.2d 375 (Fla. 4th DCA 1993). This determination, however, was the result only of the same balancing and evaluative process which in this case happened to yield a different outcome.

      . Although the hospital's characterization of the process as "extortion” may not exceed the bounds of permissible advocacy, a legitimate legal tool is not rendered illegitimate by calling it a bad name.

      . We find no merit in any of the other positions asserted by either parly.