source: Caselaw Access Project

author: BELL, J. LEWIS, C.J., PARIENTE, J., QUINCE, J.,

license: Public Domain

text:
    LAW OFFICE OF DAVID J. STERN, P.A., Petitioner, v. SECURITY NATIONAL SERVICING CORPORATION, Respondent.
    No. SC06-361.
    Supreme Court of Florida.
    July 5, 2007.
    Rehearing Denied Dec. 3, 2007.

      Robert M. Klein, Gregory S. Glasser, and Cayla B. Tenenbaum of Stephens, Lynn, Klein, et al., Miami, FL, for Petitioners.
    Nancy W. Gregoire of Bunnell, Woulfe, Kirschbaum, Keller, McIntyre, Gregoire, and Klein, P.A., Fort Lauderdale, FL, for Respondents.
   BELL, J.

Law Office of David J. Stern, P.A. (Stern) seeks review of the Fourth District Court of Appeal’s decision in Security National Servicing Corp. v. Law Office of David J. Stem, P.A., 916 So.2d 934 (Fla. 4th DCA 2005), on the ground that it expressly and directly conflicts with three decisions of this Court, Cowan Liebowitz & Latman, P.C. v. Kaplan, 902 So.2d 755 (Fla.2005), KPMG Peat Marwick v. National Union Fire Insurance Co. of Pittsburgh, Pa., 765 So.2d 36 (Fla.2000), and Forgione v. Dennis Pirtle Agency, Inc., 701 So.2d 557 (Fla.1997). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

This case involves a legal malpractice claim arising out of an attempted mortgage foreclosure. Briefly, Security National alleges that Stern committed legal malpractice by filing an untimely foreclosure action and by voluntarily dismissing a previously filed, timely foreclosure action on the same mortgage. This blunder apparently occurred because Stern, having realized its error in filing the untimely action, intended to dismiss it but instead dismissed the timely foreclosure action by mistake. Stern continued to prosecute the untimely foreclosure action, and the trial court entered summary judgment against it. Meanwhile, the mortgage and note were assigned several times before Security National finally acquired them during the appeal in the foreclosure action. Security National retained Stern as counsel to represent its interests in the appeal. Ultimately, the Second District affirmed the trial court’s decision on appeal.

Subsequently, Security National brought a legal malpractice action against Stern, claiming to have standing either (1) by virtue of its attorney-client relationship with Stern or (2) as the assignee of the mortgage and note involved in the underlying foreclosure action. The trial court entered summary judgment against Security National, but the Fourth District reversed. The Fourth District held that Security National has standing to sue Stern as the assignee of the mortgage and note. See Stem, 916 So.2d at 939.

Now Stern seeks review by this Court of the Fourth District’s decision. For the reasons stated, we conclude that Security National lacks standing to sue Stern for legal malpractice either by attorney-client relationship or by assignment. Therefore, we quash the decision below.

FACTUAL AND PROCEDURAL BACKGROUND

The Fourth District described the facts of this case as follows:

This legal malpractice action arises out of a botched mortgage foreclosure. Security National is the transferee of the underlying note and mortgage....
... In 1997, the holder of the note and mortgage, UMLIC-SIX CORP., timely filed a mortgage foreclosure action. While that action was pending, UMLIC-SIX assigned the loan to EMC Mortgage. EMC hired Stern to foreclose the loan. Stern filed a second foreclosure action on the same note and mortgage on December 15, 1998. By this time, the statute of limitations had already expired, so that this 1998 foreclosure action was untimely.
On February 19, 1999, Stern substituted as counsel in the timely 1997 foreclosure suit, then five days later voluntarily dismissed that timely action, leaving only the untimely action intact. Stern essentially admits that this was malpractice.
On August 27, 1999, EMC assigned the loan to Universal Portfolio Buyers, Inc. (Universal). Stern continued on as Universal’s counsel in the untimely 1998 action. On October 15, 1999, Universal assigned the loan to North American Mortgage Co. (North American). Stern remained as North American’s counsel in the 1998 action.
On July 24, 2000, the owner of the encumbered property moved for summary judgment on statute of limitations grounds. On November 5, 2000, the trial court entered summary judgment for the defendant. North American appealed.
On April 30, 2001, while the appeal was pending, North American assigned the loan to Security National. The record does not reflect whether there was consideration for this transfer or whether Security National had knowledge of the status of the foreclosure at the time. Thereafter, Stern remained as counsel representing Security National, but only for a month or two.
On December 7, 2001, the second district affirmed the final judgment. [On November 5, 2002,] Security National ... brought this legal malpractice action against Stern. The complaint alleges negligence in dismissing the timely 1997 action (at the time EMC owned the loan) and in failing to timely move to reinstate the 1997 action until after the motion for summary judgment was filed (potentially spánning the ownership of EMC, Universal, and North American).
Although the trial court stated in her order that she “may take issue with the fairness of such ruling,” she felt bound to enter summary judgment on Stern’s behalf because there was no attorney-client relationship between Stern and Security National “at the time the cause of action accrued.”

Stem, 916 So.2d at 936 (citation omitted). On appeal, the Fourth District reversed, holding that under this Court’s decision in Kaplan, Security National received a valid assignment of the legal malpractice claim against Stern. The Fourth District reasoned that “the malpractice action was transferred incident to the transfer of the note and mortgage,” Stem, 916 So.2d at 936, and that the assignment in question did not implicate relevant policy concerns against legal malpractice assignments. See id. at 938-39.

On February 16, 2006, Stern filed a notice to invoke this Court’s discretionary jurisdiction. Stern claims that the Fourth District misapplied and improperly extended our holding in Kaplan, which was expressly limited to the particular facts of that case. Stern argues that Security National does not have standing either (1) by its attorney-client relationship with Stern or (2) by an implied general assignment of the malpractice claim. We address both of these issues in turn. As stated earlier, we ultimately determine that Security National does not have standing to sue Stern for the legal malpractice it alleges.

STANDING BY ATTORNEY-CLIENT RELATIONSHIP

The Fourth District properly concluded that Security National’s attorney-client relationship with Stern did not give it standing to bring a legal malpractice action based upon acts that occurred during Stern’s representation of a prior holder of the note and mortgage. As the Fourth District explained:

A legal malpractice action has three elements: 1) the attorney’s employment; 2) the attorney’s neglect of a reasonable duty; and 3) the attorney’s negligence as the proximate cause of loss to the client. See Kates v. Robinson, 786 So.2d 61, 64 (Fla. 4th DCA 2001). For statute of limitations purposes, a cause of action for legal malpractice does not accrue until the underlying adverse judgment becomes final, including exhaustion of appellate rights. See Silvestrone v. Edell, 721 So.2d 1173, 1175 n. 2 (Fla. 1998). That is the first point at which there is a redressable harm. Id. at 1175. Until then, a malpractice claim is “hypothetical” and damages are “speculative.” Id.; see also Hold v. Manzini, 736 So.2d 138, 142 (Fla. 3d DCA 1999) (“mere knowledge of possible malpractice is not dispositive of when a malpractice action accrues”). Security National points to this law and argues that because it owned the loan by the time the appeal was completed and the cause of action accrued, the law regarding the assignment of legal malpractice claims is irrelevant. Simply put, it claims that it was the owner of the loan at the critical point in time.

By contrast, Stern points to language from our decision in Kates, 786 So.2d at 64:

In stating a claim for legal malpractice, it is not sufficient merely to assert an attorney-client relationship. The plaintiff must also allege that a relationship existed between the parties with respect to the acts or omissions upon which the malpractice claim is based.

See also Maillard v. Dowdell, 528 So.2d 512 (Fla. 3d DCA 1988). These cases rejected attempts by former clients to retroactively expand the scope of the attorney’s representation. While they are factually different, the basic point seems sound: the time of the alleged negligent act or omission is the critical point for testing the scope and existence of the attorney-client relationship.

Stem, 916 So.2d at 936-37. We agree with the Fourth District’s conclusion. Security National did not gain standing to sue Stern for prior acts of legal malpractice by forming an attorney-client relationship with Stern during the appeal of the underlying foreclosure action. Therefore, we approve the Fourth District’s conclusion on this issue. However, as explained below, we disagree with the Fourth District’s extension of Kaplan into the context of general assignments of notes and mortgages.

STANDING BY ASSIGNMENT

We disapprove of the Fourth District’s decision and conclude that Security National did not receive a valid assignment of the right to sue Stern for legal malpractice. First, in Kaplan, we did not adopt the minority, case-by-case approach regarding the assignment of legal malpractice claims. We continued to adhere to the majority view that legal malpractice claims are generally not assignable. Second, the Fourth District’s reliance on Kaplan is further misplaced because the facts in Stem are significantly different from those in Kaplan. Third, the relevant policy considerations in cases such as this weigh against recognizing the assignment of a legal malpractice claim in a general assignment of a note and mortgage. We address each of these reasons in order.

First, the Fourth District misinterpreted our holding in Kaplan as an abandonment of the majority view which generally prohibits legal malpractice assignments in favor of the minority, case-by-case approach, which permits all legal malpractice assignments that do not violate relevant policy principles. As we explained in Kap-lan, “[a] majority of the states that have examined this issue, including Florida, have held that legal malpractice claims are generally not assignable.... A minority of jurisdictions allows assignment of legal malpractice claims[.]” 902 So.2d at 759 n. 3; see also KPMG, 765 So.2d at 38 (“[L]e-gal malpractice claims are not assignable because of the personal nature of legal services which involve a confidential, fiduciary relationship of the very highest character, with an undivided duty of loyalty owed to the client.”); Forgione, 701 So.2d at 559 (quoting Washington v. Fireman’s Fund Ins. Co., 459 So.2d 1148, 1149 (Fla. 4th DCA 1984) (“Florida law views legal malpractice as a personal tort which cannot be assigned because of ‘the personal nature of legal services which involve highly confidential relationships.’ ”)). The Fourth District read Kaplan as follows:

The significance of Kaplan is not a narrow point pertaining to the attorney-client privilege, but rather the more broad view that the door is now open to assignment of legal malpractice actions in exceptional cases which do not fully implicate the core policy concerns underlying the general rule.

Stern, 916 So.2d at 938-39 (emphasis added). Contrary to the Fourth District’s interpretation, the significance of Kaplan was indeed the narrow point pertaining to attorney-client privilege. Kaplan was not intended to proclaim that the door is now open to assignment of legal malpractice actions in exceptional cases.

Kaplan was the first and only case in which this Court permitted a limited exception to the general prohibition on legal malpractice assignments, and our holding was confined to the specific facts and circumstances of that case. Specifically, Kaplan involved the following facts:

Medical Research Industries, Inc. (MRI), a Florida corporation, developed and marketed homeopathic medical products. To raise money for capital improvements, MRI decided to issue a private placement of shares in the company. MRI’s majority shareholder, William Tishman, consulted attorneys who prepared private placement memoranda. Through four private placements between 1996 and 1998, MRI raised over $50 million from about 2000 shareholders. Later, Tishman borrowed about $18 million in unsecured loans from MRI, leading to its eventual insolvency. MRI sued Tishman to recover the loan amount and obtained a judgment. Unable to satisfy the judgment, however, MRI executed an “Assignment for the Benefit of Creditors” to Donald Kaplan. Kaplan then sued for legal malpractice the attorneys who prepared the private placement memoranda. The trial court granted the attorneys’ motions to dismiss, concluding that legal malpractice claims are personal and not assignable and are exempt from levy and sale under an execution of assignment.

902 So.2d at 757 (footnote omitted). The trial court dismissed the action, concluding that legal malpractice actions are not assignable. On appeal, the Third District reversed, holding that the legal services at issue in Kaplan were not personal in nature but rather involved the publication of corporate information to third parties. Subsequently, we approved the Third District’s holding and receded from “broad dicta” in Forgione and KPMG, which purported to prohibit the assignment of all legal malpractice claims. See Kaplan, 902 So.2d at 757; see also KPMG, 765 So.2d at 38; Forgione, 701 So.2d at 559. In reaching our conclusion, we compared lawyers preparing private placement memoranda to independent auditors (as in KPMG), and reasoned that both types of professionals owe professional duties to intended third parties who rely on the statements contained in their published documents. We permitted the assignment of the legal malpractice claim because the information prepared in Kaplan was intended for release to third parties, and, therefore, the assignment did not violate attorney-client confidentiality. However, we stressed that “the vast majority of legal malpractice claims remain unassignable because in most cases the lawyer’s duty is to the client.” Kaplan, 902 So.2d at 757 (emphasis added).

Thus, in Kaplan we reaffirmed our adherence to the majority view that most legal malpractice claims are nonassignable. In so doing, we necessarily rejected the minority, case-by-case approach of evaluating whether particular assignments violate public policy concerns. We do so again in this case.

Second, we also disapprove of the Fourth District’s reliance on Kaplan because the factual circumstances in Stem are not analogous to those in Kaplan. In Kaplan, “[t]he attorneys owed a duty to the public when advising MRI and preparing the private placement memoranda.” Kaplan, 902 So.2d at 761. We explained that attorneys preparing private (or public) placement memoranda “act not just for the corporation’s benefit, but for the benefit of all those who rely on the representations in their documents — in this case, potential shareholders.” Id. at 758 (emphasis added). Unlike the attorneys in Kaplan, Stern did not perform legal work for EMC with the intention of directly benefiting Security National or any other third party. Indeed, at the time Stern filed the untimely 1998 foreclosure action and voluntarily dismissed the timely 1997 foreclosure action, the duty Stern owed was solely to its client at the time, EMC.

Kaplan also differs from Stem in that the assignment of the legal malpractice claim in Kaplan was express, whereas Security National asserts an implied assignment of the legal malpractice claim through the general assignment of the note and mortgage. We find that the right to bring an action against Stern for legal malpractice is not one of the rights Security National acquired when it purchased the note and mortgage by general assignment. First, we note:

As a general rule, the assignee of a nonnegotiable instrument takes it with all the rights of the assignor, and subject to all the equities and defenses of the debtor connected with or growing out of the obligation that the obligor had against the assignor at the time of the assignment.

State v. Family Bank of Hallandale, 667 So.2d 257, 259 (Fla. 1st DCA 1995) (citing Dickerson, Inc. v. Federal Deposit Ins. Corp., 244 So.2d 748, 749 (Fla. 1st DCA 1971); Guaranty Mortgage & Ins. Co. v. Harris, 182 So.2d 450, 453 (Fla. 1st DCA), rev’d on other grounds, 193 So.2d 1 (Fla. 1966)); see also Rose v. Teitler, 736 So.2d 122 (Fla. 4th DCA 1999). Whereas the general assignment of a note and mortgage conveys to the assignee the rights of the assignor under the note and mortgage (subject to the equities and defenses of the obligor), such an assignment does not implicitly assign the attorney-client relationship between the assignor and his attorney. As we have stressed before, “ ‘the real basis and substance of the malpractice suit’ is a breach of the duties within the personal relationship between the attorney and client.” Forgione, 701 So.2d at 559 (emphasis added) (quoting Christison v. Jones, 83 Ill.App.3d 334, 39 Ill.Dec. 560, 405 N.E.2d 8,10 (1980)).

In Stem, the legal malpractice claim arose from the personal attorney-client relationship established when EMC hired Stern to enforce its rights under the note and mortgage. This attorney-client relationship was not inherent in those instruments themselves. In other words, the right to sue for legal malpractice is not “connected with or growing out of’ the relationship between the mortgagor and mortgagee; rather, the legal malpractice claim is connected to and grows out of the separately established relationship between the attorney and the client. See Family Bank of Hallandale, 667 So.2d at 259.

Third, we disapprove of the Fourth District’s decision below because the relevant policy concerns weigh against permitting legal malpractice assignments^ As we noted in Kaplan, the following passage from California’s Second District Court of Appeal well explains the policies against legal malpractice assignments:

It is the unique quality of legal services, the personal nature of the attorney’s duty to the client and the confidentiality of the attorney-client relationship that invoke public policy considerations in our conclusion that malpractice claims should not be subject to assignment. The assignment of such claims could relegate the legal malpractice action to the market place and convert it to a commodity to be exploited and transferred to economic bidders who have never had a professional relationship with the attorney and to whom the attorney has never owed a legal duty.... The commercial aspect of assignability of ... legal malpractice [actions] is rife with probabilities that could' only debase the legal profession. The almost certain end result of merchandizing such causes of action is the lucrative business of factoring malpractice claims which would encourage unjustified lawsuits against members of the legal profession, generate an increase in legal malpractice litigation, promote champerty and force attorneys to defend themselves against strangers. The endless complications and litigious intricacies arising out of such commercial activities would place an undue burden on not only the legal profession but the already overburdened judicial system, restrict the availability of competent legal services, embarrass the attorney-client relationship and imperil the sanctity of the highly confidential and fiduciary relationship existing between attorney and client.

Kaplan, 902 So.2d at 760 (quoting Goodley v. Wank & Wank, Inc., 62 Cal.App.3d 389, 133 CaLRptr. 83, 87 (1976)). In essence, the two major policy concerns justifying a general prohibition against the assignment of legal malpractice claims are (1) protecting attorney-client confidences and (2) preventing a market for legal malpractice claims. The Fourth District determined that these policy concerns were not present in Stem.

As to the first policy concern, the Fourth District reasoned that “[t]he case ... does not involve personal services. It also seems unlikely that EMC or North American shared privileged information with Stern.” See Stern, 916 So.2d at 938. Given the complete absence of any record support for this reasoning, it is rather speculative. We are unwilling to presume that Stern’s relationships with EMC and North American did not involve personal services or that confidential information was not disclosed. Likewise, we also are unwilling to determine, as the Fourth District necessarily did, that EMC impliedly waived the attorney-client privilege when it conveyed the note and mortgage by general assignment. See id. at 938. Finding such an implied waiver in the general assignment of a note and mortgage would permit numerous unforeseen assignees downstream to have access to the original assignor’s confidential information and would expose the assignor’s attorney to virtually limitless liability to parties with whom the attorney never owed a professional duty. See Kaplan, 902 So.2d at 760 (citing Goodley, 133 CaLRptr. at 87).

We also disagree with the Fourth District’s conclusion that permitting legal malpractice assignments in this context would not tend to create a marketplace for legal malpractice claims. To the contrary, this is precisely the type of transaction that our precedent warns against. See Kaplan, 902 So.2d at 760; KPMG, 765 So.2d at 38; Forgione, 701 So.2d at 559. Recognizing legal malpractice assignments under these circumstances would create an incentive for both holders of such impaired instruments and speculators to market these notes and mortgages with the right to sue the attorney in the failed foreclosure action included as a major factor in pricing the transaction. As stated earlier, this would expose attorneys to liability to parties who had no connection to the underlying foreclosure action, “never had a professional relationship with the attorney and to whom the attorney has never owed a legal duty.” Kaplan, 902 So.2d at 760 (quoting Goodley, 133 Cal.Rptr. at 87). Permitting such a market to arise would create an “undue burden on not only the legal profession but the already overburdened judicial system, restrict the availability of competent legal services, embarrass the attorney-client relationship and imperil the sanctity of the highly confidential and fiduciary relationship existing between. attorney and client.” Id. (quoting Goodley, 133 CaLRptr. at 87).

In short, the assignment of legal malpractice claims that arise in mortgage foreclosures violates the two policy concerns underlying the general prohibition against such assignment.

CONCLUSION

For the reasons expressed above, we quash the Fourth District’s decision and hold that Security National does not have standing to bring an action against Stern for legal malpractice either through an attorney-client relationship or by general assignment.

It is so ordered.

WELLS, ANSTEAD, and CANTERO, JJ., concur.

LEWIS, C.J., concurs in result only with an opinion.

PARIENTE, J., dissents with an opinion, in which QUINCE, J., concurs.

QUINCE, J., dissents with an opinion, in which PARIENTE, J., concurs.

LEWIS, C.J.,

concurring in result only.

I respectfully disagree with the holding of the majority that the assignment of the legal malpractice claim in the instant matter was not permissible under our previous decision in Cowan Liebowitz & Latman, P.C. v. Kaplan, 902 So.2d 755 (Fla.2005). Although I dissented in Kaplan and disagree with the analysis it presents, it is now the law of Florida. I am of the opinion that the Fourth District below correctly followed Kaplan and concluded that the assignment was permissible under the reasoning of this Court in Kaplan. See Sec. Nat’l Servicing Corp. v. Law Office of David J. Stem, P.A., 916 So.2d 934, 938 (Fla. 4th DCA 2006). Therefore, I concur in result only based on my continued belief, as expressed in my concurring in result only opinion in Kaplan, that the decision of this Court in Kaplan was overly broad and violated the long-standing principle in this State that legal malpractice claims are not assignable. See Kaplan, 902 So.2d at 762 (Lewis, J., concurring in result only) (“I cannot subscribe to the broad reasoning employed by the majority and its unnecessary reliance on broad concepts of general assignability that I believe to be inapplicable to the instant matter.”).

Contrary to the assertions of the majority, the decision of this Court in Kaplan was not “confined to the specific facts and circumstances of that case.” Majority op. at 967. Instead, the Kaplan decision established factors to be applied to permit the assignment of legal malpractice claims in situations where the legal services provided by the attorney are not personal in nature and therefore do not involve any confidential communications that would trigger the policy concern of protecting the attorney-client privilege, which generally justifies the prohibition against the assignment of legal malpractice claims. See Kaplan, 902 So.2d at 761 n. 4 (permitting the assignment of a legal malpractice claim where “[t]he claim[ ] ... [does] not involve personal services or implicate ... confidentiality concerns”). It is now too late for this Court to close the proverbial barn door by asserting that the Kaplan decision was limited only to the specific facts presented in that case without receding from that decision.

In the instant matter, as in Kaplan, the legal services provided were not personal in nature. See id. at 759. A mortgage foreclosure action requires only that the claimant be the owner and holder of the note and mortgage and that the mortgagee has defaulted on that note and mortgage. See Chemical Residential Mortgage v. Rector, 742 So.2d 300, 300 (Fla. 1st DCA 1998). In such actions, an attorney’s duty is to the client only to the extent that the client is the owner and holder of the note and mortgage. The benefit or detriment of any actions taken by the attorney with regard to the foreclosure will clearly flow to any subsequent holders, and, accordingly, subsequent holders should be permitted to hold the attorney accountable for malpractice with regard to the foreclosure action if the Kaplan analytical factors are applied. Similar to the preparation of the private placement memoranda in Kaplan, an attorney filing a foreclosure action acts for the benefit of not only the present client, but also any subsequent holder of the mortgage and note, who will rely on the representations contained in those documents.

Additionally, upon application of the underlying principles of Kaplan, the policy concerns that generally militate against permitting the assignment of legal malpractice claims are not present in the instant matter. As noted above, a foreclosure action requires only the mortgage and note, as well as a determination of whether the mortgagee has defaulted. See Chemical, 742 So.2d at 300. There is absolutely no reason to believe or assume that an attorney undertaking such an action will obtain confidential information from a client that would be protected under the attorney-client privilege. The assertion of the majority that the Fourth District’s position that no attorney-client privileged information with regard to the foreclosure action was shared with Stern during his representation is “speculative,” majority op. at 970, is simply not substantiated with any supporting evidence, nor is it supported by the reality of the information that is required to file a foreclosure action. Similarly, the majority’s assertion that to permit the malpractice claim in the instant matter would create a marketplace for legal malpractice claims, see majority op. at 970, the other asserted policy concern against allowing such assignments, is also unsubstantiated by any reasoning or evidence. Even permitting the assignment in actions such as the instant matter, an attorney’s duty in foreclosure actions would be far from unbounded because it would be limited to the present and any subsequent holders of the note and mortgage. The Kaplan factors are either valid or invalid and we should strive for stability.

Finally, the majority’s attempt to distinguish the instant matter from Kaplan based on the fact that the assignment in Kaplan was express, whereas in the instant matter the assignment was implied, is a distinction without legal significance. In Florida, unless a writing is required by statute, an assignment can be implied. See 3A Fla. Jur.2d Assignments § 18 (2006). Florida also recognizes the right to freely assign common law and statutory rights unless such an assignment offends public policy concerns. See VOSR Indus., Inc. v. Martin Props., Inc., 919 So.2d 554, 556 (Fla. 4th DCA 2005). Contrary to the assertion of the majority that the assignment in the instant matter would have constituted an impermissible assignment of the attorney-client relationship, see majority op. at 969, allowing the assigned malpractice claim to proceed would not have implicated any attorney-client confidentiality concerns because the legal services in the instant matter were not personal in nature. Therefore, there were no public policy concerns that would prevent the assignment.

In conclusion, the Fourth District below correctly applied the factors established by this Court in Kaplan and determined that the assignment in the instant matter was permitted under the reasoning of our earlier decision there. The legal services in the instant matter were not personal in nature and did not implicate confidentiality concerns. However, I concur in result only based on my continued objection to the broad reasoning employed by the majority of this Court in Kaplan, which has opened the door to the assignment of legal malpractice claims in potentially countless other contexts. We should either recede from Kaplan or apply the underlying factors used to support the Kaplan decision.

PARIENTE, J.,

dissenting.

I agree with Justice Quince’s dissent and would approve the well-reasoned decision of the Fourth District in this case. The Fourth District followed our decision in Cowan Liebowitz & Latman, P.C. v. Kaplan, 902 So.2d 755 (Fla.2005), in which we prohibited the assignment of most legal malpractice claims. Chief Justice Lewis correctly observes that the Fourth District’s reasoning and ultimate result in this case is clearly permissible under our analysis in Kaplan because the claim is not personal in nature and none of the other public policy concerns that justify prohibiting the assignment of legal malpractice claims is present. See concurring in result only op. at 971. Although Chief Justice Lewis is correct that we opened the door in Kaplan, it is my view that this door was neither unwisely opened nor does it now need to be closed.

I would follow the sound reasoning of those jurisdictions that have allowed “the assignment of a claim for malpractice that is part of a general assignment in a commercial setting and transaction that encompasses a panoply of other assigned rights, duties, and obligations.” Cerberus Partners, L.P. v. Gadsby & Hannah, 728 A.2d 1057, 1060 (R.I.1999). As astutely observed by the Massachusetts Supreme Court, the policy reasons justifying a blanket prohibition against the assignment of legal malpractice claims are in part based “on outmoded concepts and protectionism,” such as the fear of “open trading” of legal malpractice claims. N.H. Ins. Co. v. McCann, 429 Mass. 202, 707 N.E.2d 332, 337 (1999).

Further, as expressed by both of these courts, the attorney-client privilege is a non-issue given the commercial and transactional circumstances of these types of cases because the assignment operates as a waiver of any attorney-client privilege. See id.; Cerberus Partners, 728 A.2d at 1060. In fact, in rejecting the attorney-client privilege public policy concern as a basis for prohibiting the assignment of malpractice claims, the Supreme Court of Pennsylvania concluded: “We will not allow the concept of the attorney-client relationship to be used as a shield by an attorney to protect him or her from the consequences of legal malpractice. Where the attorney has caused harm to his or her client, there is no relationship that remains to be protected.” Hedlund Mfg. Co. v. Weiser, Stapler & Spivak, 517 Pa. 522, 539 A.2d 357, 359 (1988). I believe there is great wisdom in the analyses of these courts.

The facts of this case highlight why allowing the assignment of this type of legal malpractice claim violates no conceivable public policy. Here, the act of malpractice occurred in 1999 when attorney Stern voluntarily dismissed the timely 1997 foreclosure action, leaving only the untimely 1998 foreclosure action intact. At the time, EMC Mortgage Corporation held the mortgage. However, based on our decision in Perez-Abreu, Zamora & De La Fe, P.A. v. Taracido, 790 So.2d 1051 (Fla. 2001), EMC could not bring a legal malpractice claim at that time because the cause of action did not accrue “until the conclusion of the ... underlying judicial proceeding.” Id. at 1055. Thus, the legal malpractice cause of action in this case did not accrue until 2001, when the Second District affirmed the final judgment holding that the mortgage foreclosure case was barred by the statute of limitations. By then the mortgage had been assigned from EMC to Universal Portfolio Buyers, Inc., to North American Mortgage Company, and finally to Security National Servicing Corporation. Instead of working at cross purposes, all of these entities cooperated with Stern, the original lawyer who admitted to the legal malpractice, in an attempt to eliminate the harm caused by the malpractice through the litigation process.

Frankly, it would be difficult for an outside observer not to conclude that the perpetuation of a rule that prohibits the assignment of legal malpractice claims in this context serves only to protect a clearly negligent attorney at the expense of the mortgage holders, who were engaged in legitimate commercial transactions. For these reasons, I must respectfully dissent.

QUINCE, J., concurs.

QUINCE, J.,

dissenting.

I do not agree with the majority that the assignment of the legal malpractice claim in this case would violate policy concerns which underlie the general prohibition against the assignment of legal malpractice actions. Therefore, I would approve the decision of the Fourth District Court of Appeal, which followed our decision in Cowan Liebowitz & Latman, P.C. v. Kaplan, 902 So.2d 755 (Fla.2005). In Kaplan we allowed the assignment of a legal malpractice claim finding that “[t]he claim MRI assigned to Kaplan does not involve personal services or implicate confidentiality concerns.” Kaplan, 902 So.2d at 761. The same is true in this case. In addition, I do not believe that concerns about the development of a market for legal malpractice claims outweigh the rights of the parties in this claim to their access to the courts for redress.

I agree with the majority that Kaplan is not an abandonment of Florida’s general prohibition against the assignment of legal malpractice claims. Instead, in Kaplan we said in no uncertain terms that “most” or the “vast majority” of legal malpractice claims continue to be unassignable. This Court in Kaplan cited the prior cases from this Court that have addressed the assign-ability issue. We noted that in Forgione v. Dennis Pirble Agency, Inc., 701 So.2d 557 (Fla.1997), receded from on other grounds by Cowan Liebowitz & Latman, P.C. v. Kaplan, 902 So.2d 755, 757 (Fla.2005), a case that did not involve a legal malpractice issue, we said legal malpractice claims generally involve personal service and issues of confidentiality which preclude assignment. We reiterated the position in KPMG Peat Marwick v. National Union Fire Insurance Co., 765 So.2d 36 (Fla. 2000), receded from on other grounds by Cowan Liebowitz & Latman, P.C. v. Kaplan, 902 So.2d 755, 757 (Fla.2005), another case that did not involve a legal malpractice issue, that legal malpractice claims were generally not assignable because of the personal nature of the service rendered. With those principles in mind, we examined the nature of the services rendered by the lawyers in Kaplan and concluded that the services were more in the nature of the independent auditor that was examined in KPMG. Moreover, we examined the notion that the assignment of legal malpractice claims would result in the creation of a market for these claims that would not bode well for the legal profession. And while we continued to express our concerns in these policy areas, we nonetheless found that the claim in Kaplan, the legal malpractice claim, was assignable.

As in Kaplan, neither the nature of the services nor the policy concerns require the nonassignability of the legal malpractice claim involved in this case. The majority is unwilling to presume that the law firm’s representation in this case did not involve personal services or the disclosure of confidential information. As the Fourth District pointed out, the underlying service in this case is a botched mortgage foreclosure. The plaintiff in the malpractice action, Security National, is the transferee of the note and mortgage that was the subject of the foreclosure action. The law office, on the other hand, represented all of the holders of the note and mortgage beginning with EMC Mortgage. EMC, after getting an assignment of the note, asked the law firm to foreclose the loan. While the action was pending, EMC assigned the loan to Universal Portfolio Buyers, who in turn assigned the loan to North American Mortgage Company. While an appeal from the grant of summary judgment in favor of the property owner was pending, North American assigned the loan to Security. The Law Office of David J. Stern, P.A. continued to represent each entity in this chain of assignments. It is Stern’s seamless, uninterrupted representation of EMC, Universal, North American, and Security in this matter that demonstrates that this type of representation for a commercial transaction lacks the unique and personal duties that characterize the typical malpractice claim that might be imperiled if we allowed the general assignment of legal malpractice claims.

The very nature of the mortgage industry itself further demonstrates a lack of unique and personal duties that often characterize confidential relationships. The sale of mortgage loans is a very common transaction in this country. Average hom-ebuyers are aware that their mortgages are likely to be sold to a new mortgagee at any time. It is more likely than not that as a member of an industry in which selling mortgages is an everyday occurrence, EMC was aware that the same information given to its attorney in this foreclosure action would necessarily flow to any as-signee purchasing the note and mortgage while the action was still pending.

If Stern, as attorney for a company in the business of acquiring then selling mortgage loans, was concerned about confidentiality, he could have advised his client, EMC Mortgage, or his subsequent client, Universal Portfolio Buyers, or his subsequent client, North American Mortgage, of their ability to not assign any potential malpractice claim if they opted to sell the mortgage. There would be no imperihnent of the sanctity of the relationship between an attorney and a client when that client is advised that any information divulged to the attorney can readily be kept confidential if the client values confidentiality more than the ability to assign the claim. Kevin Pennell, Note, On the Assignment of Legal Malpractice Claims: A Contractual Solution to a Contractual Problem, 82 Tex. L.Rev. 481, 500 (2003).

As to our public policy concern that we want to prevent creating a market for legal malpractice claims, I agree with the Fourth District that these concerns are more apparent when the legal representation and assignment occur in a non-commercial setting. See Security Nat’l Serv. Corp. v. Law Office of David J. Stern, P.A., 916 So.2d 934, 937 (Fla. 4th DCA 2006) (quoting from Kaplan the California case of Goodley v. Wank & Wank, Inc., 62 Cal.App.3d 389, 133 . CaLRptr. 83, 87 (1976)). In the instant case it is an important distinction, that we do not have the mere purchase of a malpractice claim, we have a commercial assignment of the lender’s original agreement. The malpractice claim was not transferred to economic bidders who have never had a professional relationship with Stern. The malpractice cause of action did not accrue until December 2001, by which time Stern had established a professional relationship with Security National; clearly he is not defending himself against strangers. Stem, 916 So.2d at 936.

I also do not believe that the assignment of the malpractice claim here would encourage an unjustified lawsuit against Stern or promote champerty, two additional concerns noted by the majority. The record indicates that Stern botched this foreclosure and that National Security held the mortgage and note on the property when the judgment resulting from Stern’s negligence became final. It was at this point that National Security was precluded from recovering on its note and mortgage. Id. This malpractice claim is thus meritorious and there is no encouragement of an unjustified lawsuit. It is not unjust to require Stern to compensate the holder of the mortgage that, because of his legal malpractice, is now unable to claim the property used to secure the mortgage.

Champerty requires a party unrelated to the lawsuit to form an agreement with a litigant in the suit to help pursue the litigant’s claim in consideration for receiving part of the judgment. Black’s Law Dictionary 246 (8th ed.2004). This is clearly not the situation here. The origin of this policy concern was the Goodley court, which was deciding the case in 1976 based on a claim for malpractice arising out of a divorce proceeding. See Goodley 133 Cal. Rptr. 83. The Goodley court was rightly concerned in a situation where a legal malpractice action was bought and brought by a stranger to a divorce action. Thirty years after Goodley, we should not be deciding a case in which the parties are operating in a commercial setting with the assignment of a commercial instrument on the same principal considerations used in a very personal divorce setting.

The majority also believes that allowing the assignment under these circumstances would create an incentive for both holders of mortgages and speculators to include the right to sue an attorney in failed foreclosures as a factor increasing the marketability of the mortgage. This seems highly speculative, and as one commentator notes:

Legal malpractice claims are very suspect. Many more claims end in defeat rather [than] victory. Such claims are quite often vigorously contested.... [B]ecause a rational buyer-assignee of any such claim will expect a stiff fight at the courthouse, a stable, routine market for such claims is unlikely to develop.

Kevin Pennell, Note, On the Assignment of Legal Malpractice Claims: A Contractual Solution to a Contractual Problem, 82 Tex. L.Rev. 481, 495-96 (2003) (quoting Michael Sean Quinn, On the Assignment of Legal Malpractice Claims, 37 S. Tex. L.Rev. 1203, 1215-16 (1996)). Malpractice suits are an expensive and lengthy process, and the outcome is never certain. It is unlikely that sophisticated business entities will begin taking the extreme risk of purchasing mortgage notes solely to sue attorneys for malpractice. Narrowing our holding to allow claims to be brought only by assignees that have retained the attorney in question to represent them in the same matter further ensures that the majority’s fear of a market for such claims will never be realized.

I would affirm the lower court’s ruling and hold that pursuant to a commercial assignment, the assignee holding a commercial instrument at the time a cause of action accrues owns a legal malpractice claim if the attorney committing the alleged malpractice was retained by that current assignee in the same matter.

PARIENTE, J., concurs.

      . Defined in Merriam-Webster's Collegiate Dictionary (10th ed.) as "a proceeding by which a person not a party in a suit bargains to aid in or carry on its prosecution or defense in consideration of a share of the matter in suit.”


author: PER CURIAM.

text:
    Billy Leon KEARSE, Appellant, v. STATE of Florida, Appellee. Billy Leon Kearse, Petitioner, v. James R. McDonough, etc., Respondent.
    Nos. SC05-1876, SC06-942.
    Supreme Court of Florida.
    Aug. 30, 2007.
    Rehearing Denied Nov. 30, 2007.

      Neal A. Dupree, Capital Collateral Regional Counsel, Paul Kalil and Christina L. Spudeas, Assistant CCRC-South, Fort Lauderdale, FL, for Appellant/Petitioner.
    Bill McCollum, Attorney General, Tallahassee, Florida, and Leslie T. Campbell, Assistant Attorney General, West Palm Beach, FL, for Appellee/Respondent.
   PER CURIAM.

Billy Leon Kearse appeals an order of the circuit court denying his motion to vacate his first-degree murder conviction and sentence of death, and also petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. As we explain below, we affirm the circuit court’s order and deny Kearse’s petition.

I. FACTS AND PROCEDURAL BACKGROUND

Kearse was convicted of robbery with a firearm and the first-degree murder of Fort Pierce police officer, Danny Parrish. On direct appeal, we summarized the facts of the crime as follows:

After Parrish observed Kearse driving in the wrong direction on a one-way street, he called in the vehicle license number and stopped the vehicle. Kearse was unable to produce a driver’s license, and instead gave Parrish several alias names that did not match any driver’s license history. Parrish then ordered Kearse to exit the car and put his hands on top of the car. While Parrish was attempting to handcuff Kearse, a scuffle ensued, Kearse grabbed Parrish’s weapon and fired fourteen shots. Thirteen of the shots struck Parrish, nine in his body and four in his bulletproof vest. A taxi driver in the vicinity heard the shots, saw a dark blue vehicle occupied by a black male and female drive away from the scene, and called for assistance on the police officer’s radio. Emergency personnel transported Parrish to the hospital where he died from the gunshot injuries.
The police issued a be-on-the-lookout (BOLO) for a black male driving a dark blue 1979 Monte Carlo. By checking the license plate that Officer Parrish had called in, the police determined that the car was registered to an address in Fort Pierce. Kearse was arrested at that address. After being informed of his rights and waiving them, Kearse confessed that he shot Parrish during a struggle that ensued after the traffic stop.

Kearse v. State, 662 So.2d 677, 680 (Fla. 1995) (Kearse I). We affirmed as to Kearse’s guilt phase claims, but remanded for a new penalty phase based on errors “relate[d] to the penalty phase instructions and the improper doubling of aggravating circumstances.” Id. at 685.

After the new penalty phase, the unanimous jury recommended death, and the trial court again sentenced Kearse to death. Kearse v. State, 770 So.2d 1119 (Fla.2000) (Kearse II), cert. denied, 532 U.S. 945, 121 S.Ct. 1411, 149 L.Ed.2d 352 (2001). The trial court found in aggravation that the crime was committed in the course of a robbery, which it afforded “diminished” weight, and found three other aggravating factors that it merged into one — that the murder was committed to avoid arrest and to hinder law enforcement, and that the victim was a law enforcement officer engaged in official duties. The court found one statutory mitigating factor — the age of the defendant — and listed almost forty nonstatutory mitigators to which the court assigned some weight. On appeal, Kearse raised twenty-two issues. Id. at 1123. We affirmed the death sentence. Id. at 1135.

Kearse subsequently filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.851, in which he raised several claims and subclaims. The trial court held an evidentiary hearing on some of them, and subsequently denied relief on all claims.

II. THE ISSUES ON APPEAL

Kearse raises the following four issues on appeal: (A) that trial counsel provided constitutionally ineffective assistance, (B) that the circuit court erred in denying Kearse’s claim of newly discovered evidence warranting a new penalty phase, (C) that the trial court erred in denying Kearse’s public records requests, and (D) that the trial court erred in summarily denying several of his postconviction claims. We address each in turn below.

A. Ineffective Assistance of Counsel

Kearse first argues that he received ineffective assistance of counsel. In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Court established a two-pronged standard for determining whether counsel provided constitutionally ineffective assistance. First, a defendant must point to specific acts or omissions of counsel that are “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687, 104 S.Ct. 2052. Second, the defendant must establish prejudice by “show[ing] that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. A reasonable probability is a “probability sufficient to undermine confidence in the outcome.” Id. Claims of ineffective assistance present mixed questions of law and fact subject to plenary review. Occhicone v. State, 768 So.2d 1037, 1045 (Fla.2000). This Court independently reviews the trial court’s legal conclusions and defers to the trial court’s findings of fact.

Kearse argues that his trial counsel was constitutionally ineffective for (1) failing vigorously to advocate for him, (2) failing adequately to prepare the defense experts, (3)failing to investigate and prepare for the State’s mental health expert, (4) failing to present victim misconduct evidence, and (5) failing to prepare lay witnesses to testify-

1. Vigorous Advocacy

Kearse’s claim that counsel did not sufficiently advocate for him is based largely on various statements made by his counsel during the guilt phase and resen-tencing, most of which the jury did not hear. Kearse has lifted many of the'statements from their context and ascribed to them both importance and meaning not present when they are viewed in context. We agree with the trial court that, when viewed in context, the statements and arguments constitute defense counsel’s candid representations to the court. Accordingly, Kearse has demonstrated neither deficiency nor prejudice.

Kearse’s allegation that defense counsel did not understand the mental health issues at resentencing is similarly based on statements taken out of context. Defense counsel was an experienced death penalty attorney. He represented Kearse at the guilt phase and original sentencing and again at resentencing. At both sentencing proceedings, he presented the expert testimony of the same neuropsychologist, a number of professionals who had worked with Kearse when he was in a school for emotionally disturbed children, and family members. At the postconviction hearing, defense counsel testified that he understood the issues and was prepared at trial. We conclude that Kearse has failed to demonstrate either deficiency or prejudice.

2. Preparation of Experts

Kearse first argues that defense counsel failed adequately to prepare Dr. Lipman, a neuropharmacologist, to testify by failing to provide him with necessary information and did not provide Dr. Lip-man with the defense neuropsychologist’s assistance in preparing-part of an analysis in support of Dr. Lipman’s testimony. Competent, substantial evidence supports the circuit court’s finding that defense counsel provided Dr. Lipman with necessary materials. Further, Dr. Lipman testified at resentencing that counsel inundated him with information, and at the postconvictión hearing testified that he would not change his testimony now that he had seen further information. Finally, Dr. Lipman testified that when he needed expert assistance, he simply consulted another neuropsychologist. Accordingly, Kearse failed to establish either deficiency or prejudice.

Kearse raises another ineffective assistance claim regarding Dr. Lipman’s testimony. At the resentencing, Lipman testified that Kearse suffered from fetal alcohol effect, explained Kearse’s resulting neurodevelopmental problems, and related these factors to Kearse’s actions on the day of the murder. Kearse alleges that Dr. Lipman was not qualified to testify regarding his consultations with other experts about Kearse’s psychological testing. The resentencing record demonstrates, however, that as a neuropharmacologist, in making his diagnoses Dr. Lipman always relies on medical doctors and psychologists. We agree with the circuit court that Dr. Lipman was not barred from testifying about his reliance on other experts. Thus, Kearse fails to meet either requirement of Strickland.

3. Preparation for Expert Testimony

Kearse argues that defense counsel was ineffective for failing to depose and investigate Dr. Martell, the State’s mental health expert, and was thus unprepared to cross-examine him. He also claims that counsel failed to present a number of mental health experts in mitigation. To address this claim, we first place it in context by summarizing the mitigation testimony presented at resentencing.

Dr. Fred Petrilla, a neuropsychologist, evaluated Kearse in 1991 and again in 1996 for the resentencing. Petrilla testified for the defense that although Kearse had an IQ of 79 and was not mentally retarded, he had moderate brain dysfunction. Kearse had auditory, concentration, and behavioral problems, and severe learning problems. Kearse also tended to be hyperactive and react impulsively when confronted, and he was culturally deprived. The expert concluded Kearse was not malingering on testing and that two statutory mitigators were supported: extreme emotional disturbance and because of emotional disturbance, Kearse was incapable of conforming his conduct to the requirements of the law.

Dr. Lipman testified that Kearse had neurodevelopmental problems from an early age due to his mother’s alcohol abuse during pregnancy. This alcohol abuse caused Kearse to suffer from fetal alcohol effect (FAE), one of the effects of which is brain dysfunction. The expert testified that his finding of FAE is consistent with Kearse’s hyperactivity, impulsivity, and slow physical and subnormal educational development and is consistent with the findings of other experts who tested Kearse, such as Dr. Petrilla. Further, Dr. Lipman testified that Kearse confabulated (i.e., rationalized what happened) in retelling the crime and thus was not “lying” about it. Dr. Lipman opined that at the time of the murder Kearse “exploded” without thought and did not kill the officer to avoid arrest. He also concluded that Kearse had a verbal memory disorder and was not malingering on the Minnesota Multiphasic Personality Inventory (MMPI).

Various teachers and school officials taught Kearse at a school for severely emotionally disturbed children, where Kearse was placed based on psychological evaluations. These education professionals testified that Kearse suffered from severe emotional dysfunction and functioned below grade level. Kearse had learning disabilities and was unable to master the skills of a normal student. He previously had failed in school, repeating the first and second grades twice and being socially promoted through several grades based solely on his age. At age fifteen, Kearse was in the seventh grade when he scored in the .8 percentile (i.e., the bottom one percent of all students) on the Wide Range Achievement Test. Functioning at a third-grade level, Kearse then dropped out at the end of that school year. The educators testified that Kearse had a genuine desire to learn, but was unsuccessful because of his limitations, and over time Kearse became increasingly disruptive in school. Further, his mother’s neglect was apparent. Kearse came to school dirty, hungry, unkempt, and malnourished. His mother failed to respond to school requests for information or consultation.

Kearse’s relatives — two aunts, an uncle, and Kearse’s mother — testified that Kearse’s mother was fifteen when he was born, and that his mother drank excessively during and following the pregnancy. Kearse’s father left when he was two, and his mother failed to show him affection and neglected him. She also physically abused him, and as he grew older, was unable to control him. Kearse was slow to develop both physically and emotionally. As a child, he had slurred speech and difficulty pronouncing words. He also was delayed in learning skills, such as tying his shoes. Kearse had difficulty understanding and following through on directions and had significant difficulties with school work. He frequently ran away for days at a time and lived on the street.

Pamela Baker, a licensed mental health counselor and at one time Kearse’s teacher, first encountered Kearse in 1981 when at age eight he was referred to the Suspect Child Abuse and Neglect program. She testified regarding his documented school and psychological history and Kearse’s home life. According to Baker, Kearse’s mother neglected and frequently “whipped” him. At one time Kearse was reluctant to leave the youth home in which he was placed because he was fed better there. She said that Kearse was classified as severely emotionally disturbed and was placed in special classes. At age twelve, his approximate IQ was 69. He failed grade levels and was usually promoted socially based on age. Neurological testing in 1981 revealed that Kearse had problems related to brain damage, including poor memory, motor skills, and planning skills, an inability to do abstract thinking, and poor comprehension. His mental age was lower than his chronological age. She noted that Kearse became involved in smoking and drinking at an early age and committed petty thefts and burglaries, but there was little aggressive behavior involved in these crimes. Baker visited Kearse in prison and found that he had learned how to read and write while there. She further stated that Kearse exhibited symptoms of panic attacks and conduct disorder. Finally, she testified that although Kearse was sometimes a bully at school, he was not violent, and she never thought he would kill anyone.

The State presented Dr. Martell, who testified that neither statutory mental health mitigator applied, that FAE is not a mental disorder, and that Kearse had no brain damage. He opined that Kearse was depressed, which could account for Kearse’s low verbal IQ, and that Kearse had a conduct disorder and chose not to apply himself in school. He opined that Kearse had an antisocial personality disorder and scored within the range for psychopathy. Further, Martell said that Kearse’s MMPI results evidenced malingering. Martell concluded that Kearse is a pathological liar, who consciously shot the officer, took the gun with him because of the fingerprints, extinguished his headlights to escape, and then lied to evade responsibility.

Having summarized the evidence at the resentencing, we now address Kearse’s claim that defense counsel was deficient for failing to depose Dr. Martell, the State’s mental health expert. The record shows that Dr. Martell examined Kearse on the Thursday before the resentencing proceedings began the following Monday, and that defense counsel’s motion for a continuance was denied. Upon receipt of Dr. Martell’s raw data and report, defense counsel forwarded these to his experts and consulted with them about the information. He also consulted the state attorney regarding Martell’s upcoming testimony. At the posteonvietion hearing, defense counsel testified that despite not having deposed Martell, he knew what Dr. Martell’s testimony would be regarding statutory miti-gators, what his test results supposedly revealed, and where Martell’s testimony would differ from his own experts’ testimony. As evidenced from the foregoing summary, the evidence shows that Udell correctly anticipated Martell’s testimony. Kearse thus has not demonstrated anything material that defense counsel did not anticipate or could have done differently had he deposed Dr. Martell.

Kearse also claims that defense counsel should have presented more mitigation or chosen different experts. This claim simply ignores the extensive mental health mitigation outlined above that was presented at resentencing through a psychologist, a neuropharmacologist, a licensed mental health counselor, several educators, and family members. Further, as the trial court pointed out, and Kearse does not dispute, Kearse’s experts at the postconviction hearing largely testified in conformity with the testimony defense counsel presented at the resentencing. We can think of no other case — and Kearse has not cited one — in which defense counsel has presented so much expert testimony and other mitigation, but has been found ineffective for failure to present mitigation. Accordingly, we hold that Kearse’s claim fails to meet Strickland’s requirements.

4. Failure to Investigate and Present Victim Misconduct Evidence

Kearse next claims that defense counsel was ineffective for insufficiently investigating and by failing to use a mitigation strategy to vilify the victim. Kearse argues that evidence of Officer Parrish’s prior misconduct suggested that he provoked the incident resulting in his death and that presentation of this mitigation would have resulted in a life sentence. Defense counsel considered this strategy and investigated citizen complaints against Officer Parrish. Counsel testified that after considering several factors — including the refusal of some witnesses to testify, the lack of substance of some testimony, and determinations by the Fort Pierce police that formal complaints against the officer were unfounded — he ultimately decided not to use this strategy. In addition, he considered the potential that the strategy would backfire, especially in light of the facts, such as Kearse’s firing thirteen bullets into the officer as the officer pled for his life and Kearse’s passenger’s testimony that at all times Officer Parrish was friendly and polite. Defense counsel admitted that he did not request the officer’s personnel file. However, the evidence at the postconviction hearing showed that any evidence in the file supporting the vilification mitigation could have been countered at trial by other evidence in it of Officer Parrish’s good reports and commendations. We find that counsel’s decision not to present this mitigation strategy was reasonable. Further, Kearse has not demonstrated prejudice from counsel’s failure to obtain the personnel record. Accordingly, we affirm denial of relief on this claim.

5. Failing to Prepare Lay Witnesses

Kearse alleges that defense counsel failed to prepare him, Pamela Baker, and his aunt and uncle to testify. Kearse’s claim that counsel failed to prepare him is based on an exchange at resen-tencing in which defense counsel asked Kearse where he had been incarcerated before his arrest for the murder. Kearse answered that he had been on death row at Raiford, which is where he was incarcerated after the trial. This answer was unresponsive to the question. Accordingly, Kearse fails to demonstrate that counsel was deficient. Kearse’s claim regarding his relatives was not raised in his postconviction motion and thus it is unpre-served for appeal. Further, in his brief the claim is conclusory, meeting neither prong of Strickland. Kearse’s claim that counsel was ineffective for allowing Ms. Baker to testify regarding his juvenile record is also conclusory and meritless. He claims without explanation that the evidence was not admissible. As the testimony at the postconviction hearing made clear, the evidence was admissible and defense counsel chose to admit it through Ms. Baker who could present it in context with Kearse’s mental health and social services history. Accordingly, the trial court was correct to deny relief on all of these claims.

B. Newly Discovered Evidence

Kearse argues that the circuit court erred in concluding that information he alleges could have been used at resen-tencing to impeach the state’s mental health expert does not constitute newly discovered evidence. We disagree.

Kearse claims that evidence about Dr. Martell’s conduct as an expert witness for the federal government in a criminal case in New Mexico demonstrates that he gave biased testimony in favor of the State at resentencing. In Jones v. State, 709 So.2d 512 (Fla.1998), this Court articulated a two-part test for establishing newly discovered evidence: (1) The evidence must have existed but have been unknown by the trial court,-the party, or counsel at the time of trial, and must not have been discoverable through the use of due diligence, and (2) the newly discovered evidence must be of such a nature that it would probably produce an acquittal on retrial. Jones, 709 So.2d at 521. The evidence shows that Kearse’s penalty phase commenced on December 9, 1996, and sentence was imposed on March 25, 1997. Both Dr. Martell’s actions in the federal criminal case and allegations regarding his conduct postdated Kearse’s sentencing. Thus, the evidence did not exist at the time of the resentencing, and Kearse fails to meet the first prong of the test. The evidence also fails to meet the second prong.

C. The Public Record Requests

Kearse next argues that he was. denied due process because certain public records pertaining to his case were not provided to him, in violation of Chapter 119, Florida Statutes (2005), and Florida Rule of Criminal Procedure 3.852. Each of his claims is addressed below..

Kearse requested production of pictures and videotape that Fort Pierce police took from the perspective of the apartments of two witnesses on the crime scene. The police produced more than two hundred pictures. At a hearing on Kearse’s public records request, however, the police explained they did not have the videotape and that no records showed a videotape ever was placed in the evidence locker. The police suggested the possibility it did not exist due to malfunction. On appeal, Kearse argues that the postconviction court erred in denying an evidentiary hearing on his claim regarding the failure to produce the videotape. We conclude that the trial court did not abuse its discretion. The undisputed evidence demonstrates that the police did not have a videotape and at the hearing on the request, postconviction counsel apparently accepted the explanation given by the police and never again requested the tape or listed it as an outstanding request.

Kearse next contends the circuit court abused its discretion by denying his request for the personnel files of a state investigator and two assistant state attorneys. He claims that under Florida Rule of Criminal Procedure 3.852, he must be given the records because the circuit court did not timely deny the request. Rule 3.852(g)(3) provides that the trial court “shall hold a hearing and issue a ruling within 30 days” ordering production if the “additional public records sought are relevant to the subject matter ... or appear reasonably calculated to lead to the discovery of admissible evidence.” The rule also provides the trial court with discretion to conduct in-eamera inspections and extend the time specifications in the rule. See Fla. R.Crim. P. 3.852(k). The record shows that after an in-camera inspection, the court denied the request for the personnel files, finding they were not relevant and could not reasonably be calculated to lead to evidence helpful to Kearse’s post-conviction motions. Accordingly, the court issued a ruling making the requisite finding and had discretion with regard to the date of issuing its order. Kearse has not demonstrated an abuse of that discretion.

Finally, Kearse argues that a letter the assistant state attorney sent to Kearse’s trial counsel regarding the ineffective assistance claims against him in the postconviction proceedings is not privileged work product. The State responds that under section 119.071, Florida Statutes (2005), the letter is exempt from disclosure as work product prepared in anticipation of litigation. We review the claim under the abuse of discretion standard. See State v. Coney, 845 So.2d 120, 137 (Fla.2003) (“A circuit court’s ruling on a public records request filed pursuant to a rule 3.850 motion will be sustained on review absent an abuse of discretion.”).

At the evidentiary hearing, Kearse’s trial counsel stated that the assistant state attorney sent him a letter regarding the issues at the hearing. Kearse’s postcon-viction counsel asked to see the letter. Upon the State’s objection, the circuit court sealed the letter and examined it in camera. After hearing argument, the trial court ruled that given the nature of the witness—Kearse’s trial counsel-—in a post-conviction proceeding and that trial counsel was listed as a witness for the State as well as the defense, the letter was work product not subject to disclosure.

Section 119.071(l)(d), Florida Statutes (2005), provides as follows in pertinent part:

(d)l. A public record that was prepared by an agency attorney (including an attorney employed or retained by the agency or employed or retained by another public officer or agency to protect or represent the interests of the agency having custody of the record) or prepared at the attorney’s express direction, that reflects a mental impression, conclusion, litigation strategy, or legal theory of the attorney or the agency, and that was prepared exclusively for civil or criminal litigation or for adversarial administrative proceedings, or that was prepared in anticipation of imminent civil or criminal litigation or imminent adversarial administrative proceedings, is exempt from s. 119.071(1) and s. 24(a), Art. I of the State Constitution until the conclusion of the litigation or adversarial administrative proceedings. For purposes of capital collateral litigation as set forth in s. 27.7001, the Attorney General’s office is entitled to claim this exemption for those public records prepared for direct appeal as well as for all capital collateral litigation after direct appeal until execution of sentence or imposition of a life sentence.

The assistant state attorney’s letter containing his mental impressions about the case clearly fits within the exemption of attorney work product prepared with regard to the ongoing postconviction proceedings. See § 119.071 (l)(d), Fla. Stat. (2005); see also Fla. R.Crim. P. 3.220(g)(1) (“Disclosure shall not be required of legal research or of records, correspondence, reports, or memoranda to the extent that they contain the opinions, theories, or conclusions of the prosecuting or defense attorney or members of their legal staffs.”); State v. Kokal, 562 So.2d 324, 327 (Fla. 1990) (“Of course, the state attorney was not required to disclose his current file relating to the motion for 'postconviction relief because there is ongoing litigation with respect to those documents.”). Accordingly, we hold that the circuit court did not abuse its discretion by denying Kearse’s request for the letter.

D. Miscellaneous Claims

Kearse argues that the circuit court erred in summarily denying a number of his claims. We disagree, and affirm the trial court’s order.

During the 1996 resentencing proceeding, Kearse’s defense counsel told the court that at the 1991 trial the courtroom was full of uniformed law enforcement officers. Based solely on this statement, Kearse argued in his postconviction motion that he was deprived of a fair trial in 1991. The circuit court summarily denied relief, finding the claim legally insufficient because the mere presence of the officers was insufficient to demonstrate a hostile courtroom and Kearse failed to demonstrate prejudice. We agree. Kearse does not allege any other facts that in the “totality of the circumstances” would entitle him to relief. See Woods v. Dugger, 923 F.2d 1454, 1455 (11th Cir.1991) (applying a totality of the circumstances test to a similar claim).

Finally, in conclusory fashion and without any argument, Kearse alleges the following: (1) that counsel was ineffective for failing to cross-examine or impeach witnesses, failing to consult crime scene and firearms experts, failing to prepare defense witnesses, failing to argue age as a statutory mitigator, and for conceding aggravating factors without Kearse’s consent; (2) that the trial court erred in denying cause challenges and rejecting mental health mitigation; (3) that Brady violations occurred; (4) that nonstatutory ag-gravators were presented; and (5) that pretrial publicity, the venue, and events in the courtroom denied him a fair trial. We hold these claims are waived and affirm the denial of relief. See Cooper v. State, 856 So.2d 969, 977 n. 7 (Fla.2003) (“Cooper has chosen to contest the trial court’s summary denial of various claims, by contending, without specific reference or supportive argument, that the ‘lower court erred in its summary denial of these claims.’ We find speculative, unsupported argument of this type to be improper, and deny relief based thereon.”); see also Duest v. Dugger, 555 So.2d 849, 852 (Fla.1990) (“The purpose of an appellate brief is to present arguments in support of the points on appeal. Merely making reference to arguments below without further elucidation does not suffice to preserve issues, and these claims are deemed to have been waived.”).

III. THE HABEAS PETITION

In his petition for a writ of habeas corpus, Kearse contends (A) that appellate counsel was ineffective for failing to raise two meritorious claims, and (B) that both his death sentence and lethal injection are unconstitutional. We address these claims below and deny the petition.

A. Ineffective Assistance of Appellate Counsel

The requirements for establishing a claim based on ineffective assistance of appellate counsel parallel the standards announced in Strickland. “[The][p]etitioner must show 1) specific errors or omissions which show that appellate counsel’s performance deviated from the norm or fell outside the range of professionally acceptable performance, and 2) the deficiency of that performance compromised the appellate process to such a degree as to undermine confidence in the fairness and correctness of the appellate result.” Wilson v. Wainwright, 474 So.2d 1162, 1163 (Fla.1985). Counsel ordinarily is not deemed ineffective under this standard for failing to raise issues that are procedurally barred because they were not properly raised during the trial court proceedings. See Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000). Moreover, appellate counsel cannot be deemed ineffective for failing to raise nonmeritorious claims on appeal. See id.

1. Denial of a Cause Challenge

Kearse alleges first that appellate counsel was ineffective for failing to raise the trial court’s denial of Kearse’s cause challenge to juror Matthews. Kearse’s re-sentencing, like the 1991 trial, was held in Indian River County instead of St. Lucie County. During jury selection, defense counsel moved to strike Matthews for cause based on her knowledge of facts of the case and her relationship to a testifying detective. After the court denied the strike, defense counsel took the necessary steps to preserve the issue by requesting additional peremptories and renewing the motion before the jury was sworn. See Trotter v. State, 576 So.2d 691 (Fla.1990) (explaining the requirements for preserving a cause challenge). On direct appeal, appellate counsel raised the denials of other cause challenges, but did not raise the preserved claim regarding Matthews, who actually served on the jury. See Kearse II, 770 So.2d at 1128-29. Accordingly, contrary to the State’s argument, this claim of ineffective assistance of appellate counsel is properly raised by habeas petition in this Court. Nevertheless, we deny the claim.

During individual questioning by the attorneys, Matthews indicated that she remembered a media report from several years before in which a Fort Pierce officer was “shot about 14 times” and “[t]here was like a trail where he tried to get away.” She repeated that she was uncertain these facts concerned this case and had made the tentative connection based on the questioning during jury selection. Matthews also volunteered that, the night before, she learned from her husband’s parents that her father-in-law’s half brother, a retired Fort Pierce police officer, was coming to Florida for Christmas' and to testify at a trial involving the murder of an officer. Matthews stated that she had not seen Detective Raulerson in three years and did not know him well. She assured the court that this would have no effect on her impartiality in the resentencing proceeding. At the resentencing, Raulerson, who was lead crime scene detective in the investigation of Officer Parrish’s murder, testified regarding the gathering of physical evidence in the case.

We find that neither Matthews’s vague memories about the crime, nor her attenuated relationship to a testifying detective, either separately or cumulatively, raises a reasonable doubt about her ability to be fair and impartial in light of her unwavering statements during voir dire of the need for a fair sentencing proceeding and her ability to be impartial. See Lusk v. State, 446 So.2d 1038, 1041 (Fla.1984) (“The test for determining juror competency is whether the juror can lay aside any bias or prejudice and render his verdict solely upon the evidence presented and the instructions on the law given to him by the court.”); Singer v. State, 109 So.2d 7, 24 (Fla.1959) (announcing test for juror competency). Accordingly, , the trial court did not err in denying the cause challenge, and appellate counsel was not ineffective for failing to raise the preserved claim.

2. The Motion for Appointment of Co-Counsel

Kearse next argues that appellate counsel was ineffective for failing to raise on appeal the trial court’s denial of defense counsel’s motion for appointment of co-counsel at the 1991 trial. Shortly after his appointment, defense counsel moved for appointment of co-counsel on numerous grounds. After a hearing, the trial court denied the motion and denied the renewed motion before the first penalty phase.

In Armstrong v. State, 642 So.2d 730, 737 (Fla.1994), we stated that the question of appointment of additional counsel rests within the discretion of the trial court “and is. based on a determination of the complexity of a given case and the attorney’s effectiveness therein.” The record shows that trial counsel agreed with the trial court that the case was not complex, and Kearse does not claim here that it was. Accordingly, Kearse has not established that the motion for co-counsel would have been found meritorious on direct appeal and thus has failed to establish ineffective assistance of appellate counsel.

B. Constitutional Claims

Kearse claims that his death sentence is unconstitutional on various grounds. First, he argues that because of his age, low level of intellectual functioning, and mental and emotional impairments he cannot be executed under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), which prohibited execution of people with mental retardation. However, Kearse’s own expert at the resentencing testified that he was not mentally retarded, and he presented no evidence at his postconviction hearing that he was. Thus, his sentence is not unconstitutional under Atkins. See Hill v. State, 921 So.2d 579, 584 (Fla.), cert. denied, 546 U.S. 1219, 126 S.Ct. 1441, 164 L.Ed.2d 141 (2006).

Next, he argues that because he was only eighteen years and three months old at the time of the crime and had low level intellectual functioning and mental and emotional impairments, he cannot be executed under Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). Roper prohibited execution of any defendant who was under age eighteen at the time of the crime. Accordingly, Kearse does not qualify for exemption from execution under Roper. See Hill, 921 So.2d at 584.

Kearse also argues that Florida’s capital sentencing scheme is unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), because instructions diminish the role of the jury, all elements are not charged in the indictment, a unanimous jury is not required, and the jury does not decide all the elements. First, Ring is not retroactive to Kearse’s case. See Johnson v. State, 904 So.2d 400, 402 (Fla.2005) (“We hold that ... the United States Supreme Court’s decision in Ring v. Arizona ... does not apply retroactively in Florida.”). We also note that Kearse’s resentencing jury returned a unanimous recommendation of death. Further, this Court has rejected all of these claims previously. See Parker v. State, 904 So.2d 370, 383 (Fla.2005) (listing claims and citing cases in which the Court denied these and other claims).

Finally, Kearse argues that Florida’s lethal injection statute and procedure are unconstitutional. This Court has previously upheld the statute against this challenge in other cases. See Sims v. State, 754 So.2d 657 (Fla.2000); accord Thompson v. State, 796 So.2d 511, 515 (Fla.2001); Bryan v. State, 753 So.2d 1244, 1254 (Fla. 2000). We have also previously rejected the claims Kearse raises here regarding the lethal injection procedure. See Diaz v. State, 945 So.2d 1136, 1144 (Fla.) (citing cases), cert. denied, — U.S. -, 127 S.Ct. 850, 166 L.Ed.2d 679 (2006). Accordingly, we deny relief on these claims.

It is so ordered.

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

      . Most of the twenty-five issues Kearse raised on appeal concerned the penalty phase. Kearse I, 662 So.2d at 680-81. The guilt phase issues alleged error as follows: (1) the giving of the State’s special instruction on premeditated murder over objection; (2) the instruction to the jury on escape as the underlying felony of felony murder; (3) the denial of Kearse's cause challenges to prospective jurors; (4) the admission of testimony regarding the purpose of a two-handed gun grip; (5) the denial of motions to suppress; (6) the instruction on reasonable doubt denied Kearse due process and a fair trial; and (7) the admission of hearsay evidence during the guilt phase.

      . Kearse raised the following claims: (1) the trial court's refusal to return venue to the county where the offense occurred; (2) the denial of Kearse's objection to a motion to compel a mental health examination; (3) the denial of Kearse’s motion for a continuance; (4) the proportionality of the death penalty; (5) the trial court's evaluation of the mitigating circumstances; (6) the trial court's failure to find the statutory mitigating circumstance of emotional or mental disturbance; (7) the denial of Kearse's motion to disqualify the prosecutor; (8) the denial of Kearse’s motion for mistrial based on the prosecutor's comments; (9) the trial court informed the jury that Kearse had been found guilty in a previous proceeding, but that the case was remanded for resentencing; (10) the denial of Kearse's motion to interview jurors to determine juror misconduct; (11) pretrial conferences were conducted during Kearse’s involuntary absence; (12) the granting of the State's cause challenge to a juror; (13) the denial of Kearse's cause challenges to two jurors; Kearse's compelled mental health examination (14) constituted an unconstitutional rule of discovery, (15) violated the ex post facto clauses of the United States and Florida Constitutions, and (16) Kearse’s Fifth, Sixth, Eighth, and Fourteenth Amendment rights; (17) the victim impact jury instruction was vague and gave evidence undue importance; (18) the trial court gave little weight to age as a mitigating circumstance; the "committed during a robbery" aggravating circumstance (19) should have been merged with the other aggravators or (20) should not have been considered; (21) the admission of photographs of the victim; and (22) electrocution is cruel and unusual punishment. Kearse II, 770 So.2d at 1123.

      . Kearse claimed the following: (1) that public records were withheld; (2) that defense counsel failed vigorously to advance Kearse’s position, to cross-examine witnesses at trial and at the motion to suppress hearing, to consult with crime scene, firearm, and medical experts, to request co-counsel at the second penalty phase, to prepare witnesses to testify at the resentencing, to object to the admission of evidence, to argue the age mitigating factor, to present evidence regarding the victim's prior misconduct, to obtain Kearse’s consent to concede aggravating factors, and cumulative error; (3) that the trial court erred in denying a cause challenge, in denying trial counsel’s motion for co-counsel, and in rejecting two statutory mental health mitigating factors; (4) that the State knowingly withheld evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); (5) that newly discovered evidence demonstrates the State’s expert was biased for the prosecution; (6) that Kearse's rights under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), were denied through the ineffective assistance of counsel and inadequate assistance of mental health experts; (7) that Kearse's death sentence is fundamentally unfair; (8) that Kearse was denied the right to a fair trial because of pretrial publicity, the lack of adequate venue, and events in the courtroom at trial; (9) that Florida's death penalty scheme violates Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); (10) that his death sentence is unconstitutionally based on an automatic aggravator; and (11) that Kearse is insane to be executed.

      . In fact, when we affirmed the death sentence in this case, three members of this Court found the mitigation so compelling that they dissented, opining that “[t]he bottom line is that this is clearly not a death case. It is not one of the most aggravated and least mitigated or among the worst of the worst for which we have reserved death as the only appropriate response.” Kearse II, 770 So.2d at 1138 (Anstead, J., dissenting).

      . Kearse also argues that defense counsel was ineffective for failing to cross-examine two witnesses at the motion to suppress hearing. He claims that on the day of the murder the eyewitness passenger (Rhonda Pendleton) was his girlfriend who was staying at her brother's home. Kearse argues that the police search of that house was invalid because he was an overnight guest there. This is not the argument Kearse made in his postconviction motion, and it is thus not preserved. Second, we held in Kearse I that exigent circumstances provided probable cause for the warrantless arrest and that physical evidence seized at the scene was not subject'to suppression. Kearse I, 662 So.2d at 684.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (requiring State disclosure of material information favorable to the defense).

      . Kearse’s contention on appeal that the juror was not qualified because she was the prosecutor's insurance agent was not preserved for review.

      . As a result of the execution of Angel Diaz, litigation concerning the constitutionality of Florida’s lethal injection procedures is ongoing in Lightbourne v. McCollum, No. SC06-2391 (Fla. petition filed Dec. 14, 2006). We do not consider those issues here and express no opinion regarding the merits of any subsequent challenge Kearse may bring related to lethal injection.