author: PER CURIAM. CANTERO, J.,

text:
    Wendy BETTS, Petitioner, v. FASTFUNDING THE COMPANY, INC., Respondent.
    No. SC03-1679.
    Supreme Court of Florida.
    Oct. 26, 2006.
    Christopher C. Casper of James, Hoyer, Newcomer and Smiljanich, P.A., Tampa, FL, E. Clayton Yates, Fort Pierce, FL, Richard A. Fisher, Cleveland, TN, and Paul Bland, Jr., Washington, D.C., for Petitioner.
    Lisa Marie Harris and John A. Boudet of Greenberg Traurig, P.A., Orlando, FL, and Susan Verbonitz of Weir and Partners, LLP, Philadelphia, PA, for Respondent.
   PER CURIAM.

We have for review FastFunding The Co. v. Betts, 852 So.2d 358 (Fla. 5th DCA 2003), in which the Fifth District Court of Appeal relied on Betts v. Ace Cash Express, Inc., 827 So.2d 294 (Fla. 5th DCA 2002), disapproved by McKenzie Check Advance of Florida, L.L.C. v. Betts, 928 So.2d 1204 (Fla.2006), and certified a question of great public importance to this Court. The Fifth District also cited to an opinion from the Fourth District Court of Appeal that was pending before this Court. See Buckeye Check Cashing, Inc. v. Cardegna, 824 So.2d 228 (Fla. 4th DCA 2002), quashed, 894 So.2d 860 (Fla.2005), rev’d, 546 U.S. 440, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006), and approved, 930 So.2d 610 (Fla.2006). We have jurisdiction. See art. V, § 3(b)(3)-(4), Fla. Const.; Jollie v. State, 405 So.2d 418 (Fla.1981).

On May 24, 2005, this Court stayed proceedings in this case pending disposition of McKenzie. After McKenzie was decided, this Court issued an order on June 21, 2006, directing the parties to show cause as to why this Court should not accept jurisdiction, quash the FastFunding decision, and remand for reconsideration in light of McKenzie.

We have considered the parties’ responses. We now grant the petition for review in the present case. The decision under review is quashed and this matter is remanded to the Fifth District Court of Appeal for reconsideration upon application of this Court’s decision in McKenzie and our decision on remand in Cardegna.

It is so ordered.

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

CANTERO, J., concurs in result only with an opinion.

PARIENTE, J., did not participate.

CANTERO, J.,

concurring in result only.

I concur in the result because our decision in McKenzie Check Advance of Florida, L.L.C. v. Betts, 928 So.2d 1204 (Fla. 2006), is now the precedent of this Court, and the majority simply remands to the district court for reconsideration in light of Betts as well as Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006). However, I continue to adhere to my opinion in Betts that the term “check cashing” as defined in the Money Transmitter’s Code, chapter 560, Florida Statutes (1997), includes deferred presentment transactions unless they involve a rollover for an additional fee. 928 So.2d at 1211-18 (Cantero, J., concurring in part and dissenting in part).

      . The Fifth District certified the following question: "Is an arbitration agreement enforceable when it is included as a requirement of a payment instrument sale executed pursuant to Florida Statute Chapter 560, Part II, and the arbitration is to be governed by the Federal Arbitration Act, 9 U.S.C. Sections 1-16?” FastFunding, 852 So.2d at 355.


source: Caselaw Access Project

author: ANSTEAD, J. PARIENTE, J., WELLS, J.,

license: Public Domain

text:
    ECHEVARRIA, McCALLA, RAYMER, BARRETT & FRAPPIER, etc., et al., Petitioners, v. Bradley COLE, etc., Respondent.
    No. SC05-564.
    Supreme Court of Florida.
    Feb. 1, 2007.
    John Beranek of Ausley and McMullen, Tallahassee, FL, Michael J. McGirney and Dale T. Golden of Marshall, Dennehey, Warner, Coleman and Goggin, Tampa, FL, for Petitioners.
    M. Stephen Turner, Kelly Overstreet Johnson, David K. Miller and Jennifer Winegardner of Broad and Cassel, Tallahassee, FL, Thomas J. Guilday, Claude W. Walker and Shawn M. Heath of Huey, Guilday, Tucker, Schwartz and Williams, Tallahassee, FL, for Respondent.
   ANSTEAD, J.

Echevarria, McCalla, Raymer, Barrett & Frappier, et al, seek review of the decision of the First District Court of Appeal in Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 896 So.2d 773 (Fla. 1st DCA 2004), on the ground that it expressly and directly conflicts with a decision of the Third District Court of Appeal, Boca Investors Group, Inc. v. Potash, 835 So.2d 273 (Fla. 3d DCA 2002), on a question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. We limit our review to the question of law upon which jurisdiction was granted, and hold that the litigation privilege applies in all causes of action, statutory as well as common law. Accordingly, we quash the contrary decision of the First District and remand for further proceedings consistent with our holding.

Facts and Procedural History

This case was presented to the district court under the limited circumstances of an interlocutory review of a trial court’s order certifying the case for class action status. The First District explained the underlying facts giving rise to this action in its decision below:

The plaintiffs are property owners who defaulted on their mortgages with their respective lenders. The Echevar-ria firm, one of the defendants below, was the primary firm retained by the lenders to handle the foreclosure proceedings against the plaintiffs. Echevar-ria sent reinstatement letters to the plaintiffs at the outset of the foreclosure proceedings, stating that the plaintiffs were in default on their respective mortgages and faced foreclosure unless they reinstated the mortgages by bringing their payments up to date. The letters further claimed that the plaintiffs owed certain costs incurred by the lenders in the course of the proceedings. Kim Na-bors and Otis Pye, the original plaintiffs in this action, both had defaulted on their respective mortgages and received reinstatement letters from Echevarria. Neither reinstated their mortgage, and their properties were ultimately foreclosed.
Nabors and Pye filed suit against Echevarria and the other named defendants, alleging that the firm had violated the Florida Consumer Collection Practices Act and the Florida Unfair and Deceptive Trade Practices Act. The essence of the complaint was that the defendants acted unlawfully by asserting a claim for a debt that was in excess of the actual costs their clients incurred during the foreclosure proceedings. Specifically, the plaintiffs argued that the reinstatement letter claimed costs of $325 for title search and examination and various other charges for service of process, when the only cost incurred by the firm was $55 for the title search.
In response, the defendants asserted that the $325 charge was legitimate, as it included $150 for a title search and $175 for a title examination performed by their in-house staff. They further argued that they had not violated either of the statutes referred to in the complaint because their contracts with their lender clients authorized them to charge these amounts.
Cole had previously received a reinstatement letter from Echevarria regarding the potential foreclosure of his mortgage, and as a result, paid the disputed amounts to reinstate his mortgage. On November 13, 2000, Cole, Na-bors and Pye moved for leave to file a third amended complaint to assert Cole’s statutory claims.
Later, Cole, as the putative class representative, filed a motion to certify a class that consisted of “all persons from whom the defendants have filed foreclosure actions and claimed, attempted or threatened to collect costs in the collection of a ‘consumer debt,’ as that term is defined in 559.55(1), Florida Statutes, which were in excess of the amount allowed or authorized by law” for the four years prior to the filing of the initial complaint through the present. He subsequently filed an amended motion for class certification seeking to define the class as all persons in Florida to whom the defendants sent reinstatement letters or against whom they had filed a foreclosure action as counsel for a lender or mortgagee for the period of July 6, 1994, through June 30, 2001.
The trial court granted the plaintiffs amended motion to certify the class action, and concluded that Cole was an appropriate class representative under rule 1.220, Florida Rules of Civil Procedure. In the certification order, the trial court defined the class as all persons in Florida to whom the Echevarria firms sent reinstatement letters between July 6, 1994, and June 30, 2001, seeking to collect amounts for (1) a title search or examination exceeding the firms’ actual out-of-pocket expenses incurred to a third-party vendor; (2) service of process; and (3) fees or costs that had not been incurred at the time the firms sent the reinstatement letter. However, the court limited the class to those persons whose default or failure to timely pay their mortgage obligations did not ultimately result in a foreclosure judgment or sale.

Echevarria, 896 So.2d at 774-75 (footnotes omitted). In appealing the trial court’s decision to the First District, Cole argued that the class definition was too narrow because it excluded property owners who received a reinstatement letter but who then failed to reinstate their mortgage, leading to a foreclosure judgment or sale of their properties. Id. at 775-76.

Cole asserted that an action under the Consumer Collection Practices Act does not depend on whether the underlying debt is valid, owed, paid, or reduced to judgment since the right to bring a suit under the Act arises from the debt collector’s conduct in collecting the debt and whether the conduct involves unscrupulous debt collection practices. Id. at 776. The trial judge seemingly agreed with Cole that the class should include everyone who received a reinstatement letter; the class certification order stated both that it was irrelevant whether the prospective class member reinstated the mortgage and that the mere transmission of the letter impacted all class members similarly. Id. Nevertheless, despite its explicit finding that “the violation of the Consumer Collection Practices Act is triggered by the transmission of the reinstatement letter seeking illegitimate costs, not by the ultimate outcome of any foreclosure proceedings,” the trial court limited the class to include only those whose failure to pay their mortgage obligations did not result in a foreclosure judgment or sale. Id.

In attempting to reconcile the discussions on the record from the trial court’s hearing with the trial court’s statements in the final order regarding the significance of an actual foreclosure judgment, the First District concluded that the trial court’s inclusion of this qualifier in the class definition was a misstatement. Id. The First District further held that, if it was not a misstatement, the trial court’s decision to limit the class size in such a manner was plain error under both the trade practices and the collection statutes because there was no legal justification for such a limitation. Id.

Echevarria asserted that the trial court limited the class in an attempt to avoid the implications of a possible litigation privilege bar to those claimants involved in judicial mortgage foreclosure actions. Id. The First District rejected that argument, finding that the litigation privilege did not apply to the instant case because the suit was initiated as a statutory cause of action. Id. at 777. The court below reasoned that the litigation privilege has traditionally been reserved only for common law tort actions such as libel, defamation and fraud. Id. at 776-77. Then, invoking a separation of powers analysis, the court stated that “a judicially created policy such as the judicial immunity rule must not be used to limit the application of a legislatively created, statutory cause of action.” Id. at 777. Thus, the First District concluded that “the judicially created judicial immunity rule cannot be applied as a bar to the statutory causes of action in this case.” Id.

Litigation Privilege

Echevarria now appeals to this Court, citing conflict with the Third District’s decision in Boca Investors as to the application of the litigation privilege in proceedings involving statutory causes of action. Boca Investors initially involved a suit for tortious interference with a business relationship; however, the plaintiffs later moved to amend their original complaint to add a “statutory anti-trust claim.” 885 So.2d at 274-75. The trial court dismissed the case and denied the motion to amend, citing this Court’s decision in Levin, Mid-dlebrooks, Mabie, Thomas, Mayes Mitchell, P.A. v. United States Fire Insurance Co., 689 So.2d 606 (Fla.1994), for the proposition that absolute immunity is properly afforded to any act occurring during the course of a judicial proceeding. Boca Investors, 835 So.2d at 274. The Third District subsequently upheld the trial court’s dismissal, including the rejection of the amendment, finding “such a [statutory] claim is also based on statements covered by the litigation privilege. See Burton [v. Salzberg, 725 So.2d 450, 451 (Fla. 3d DCA 1999) ].” Boca Investors, 835 So.2d at 275. Thus, in a case where a statutory antitrust claim was asserted, the Third District explicitly acknowledged that the litigation privilege could be invoked. Because the First District’s decision below, holding that the litigation privilege cannot be invoked when a statutory claim is being litigated, is in direct and express conflict with the Third District’s holding in Boca Investors, we accepted jurisdiction and now resolve the conflict.

Analysis

In Myers v. Hodges, 53 Fla. 197, 44 So. 357 (1907), this Court recognized the principle of the litigation privilege in Florida, essentially providing legal immunity for actions that occur in judicial proceedings. In that case, involving a libel suit based on statements contained in a complaint, this Court established a qualified litigation privilege, requiring that the alleged defamatory statements be relevant to the judicial proceeding. Id. at 361-2. Under our holding, once this threshold showing was met, the statements were entitled to immunity. Id.

We most recently applied the litigation privilege in Levin. In that case, the Eleventh Circuit certified a question to this Court, asking whether Florida’s litigation privilege protects the act of certifying to a trial court an intent to call opposing counsel as a witness at trial in order to obtain counsel’s disqualification, and later failing to subpoena and call that person as a witness, from a claim of tortious interference with a business relationship. 639 So.2d at 607. Answering in the affirmative, we extended the litigation privilege to all torts, finding that “absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior ... so long as the act has some relation to the proceeding.” Id. at 608. We reasoned that the justification behind immunizing defamatory statements applies equally to “other misconduct occurring during the course of a judicial proceeding.” Id. We concluded the opinion by noting that adequate remedies still exist for misconduct in a judicial proceeding, most notably the trial court’s contempt power, as well as the disciplinary measures of the state court system and bar association. Id. at 608-09. Notably, our holding was without qualification as to the nature of the judicial proceedings, whether based on common law, statutory authority, or otherwise.

Levin plainly establishes that “[t]he rationale behind the immunity afforded to defamatory statements is equally applicable to other misconduct occurring during the course of a judicial proceeding.” 639 So.2d at 608 (emphasis supplied). Importantly, the policy reasons for adopting a rule of immunity for actions taken in judicial proceedings focus on the judicial nature of the proceedings, not whether they were initiated under common law or statute. It is the perceived necessity for candid and unrestrained communications in those proceedings, free of the threat of legal actions predicated upon those communications, that is at the heart of the rule. The nature of the underlying dispute simply does not matter. Hence, the rationale upon which we relied in extending the litigation immunity privilege to all tortious causes of action likewise applies to a statutory cause of action: “Just as participants in litigation must be free to engage in unhindered communication, so too must those participants be free to use their best judgment in prosecuting or defending a lawsuit without fear of having to defend their actions in a subsequent civil action for misconduct.” Id.

We see no reason why this rationale would be limited by whether the misconduct constitutes a common-law tort or a statutory violation. The litigation privilege applies across the board to actions in Florida, both to common-law causes of action, those initiated pursuant to a statute, or of some other origin. “Absolute immunity must be afforded to any act occurring during the course of a judicial proceeding ... so long as the act has some relation to the proceeding.” Id.

Conclusion

Given the precedent established by Lev-in, we hold that the litigation privilege applies in all causes of action, whether for common-law torts or statutory violations. Accordingly, we approve the decision in Boca Investors, quash the decision of the First District herein, and remand for further proceedings consistent herewith.

It is so ordered.

LEWIS, C.J., and PARIENTE, QUINCE, and CANTERO, JJ., concur.

PARIENTE, J., concurs with an opinion, in which CANTERO, J., concurs.

WELLS, J., concurs in part and dissents in part with an opinion.

BELL, J., concurs in part and dissents in part.

PARIENTE, J.,

concurring.

I agree with the majority’s resolution of the conflict issue. I also agree with the majority’s decision not to address the other issues raised by the parties, including whether the litigation privilege covers the reinstatement letters at issue in this case. However, as Justice Wells notes, this is a threshold issue that requires a determination of whether the letters were sent “in the due course of the judicial proceedings or as necessarily preliminary thereto.” Concurring in part, dissenting in part opinion at 385 (quoting Ange v. State, 98 Fla. 538, 123 So. 916, 917 (1929)). Although the First District stated that “Echevarria sent reinstatement letters to the plaintiffs at the outset of the foreclosure proceedings,” Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 896 So.2d 773, 774 (Fla. 1st DCA 2004), the First District did not address whether the letters were, in fact, sent “in the due course of’ or as “necessarily preliminary” to the foreclosure action. Rather, the First District ruled that the litigation privilege did not apply because the lawsuit was initiated as a statutory cause of action. See id. at 777. Now that this Court has held that the privilege is applicable in litigation based on both common law and statutory causes of action, the First District should consider on remand whether the privilege covers the reinstatement letters sent in this case.

CANTERO, J., concurs.

WELLS, J.,

concurring in part and dissenting in part.

The majority opinion resolves the conflict regarding whether Florida’s litigation privilege may be applied as a bar to statutory causes of action by approving the Third District Court of Appeal’s decision in Boca Investors Group, Inc. v. Potash, 835 Solid 273 (Fla. 3d DCA 2002), and quashing the First District Court of Appeal’s decision in Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 896 So.2d 773 (Fla. 1st DCA 2004). However, the majority does not answer the more fundamental question of whether the litigation privilege extends to cover the reinstatement letters at issue in Echevarria. If the litigation privilege does not cover these letters, it is immaterial whether the plaintiffs’ cause of action is derived from statute or common law. I write separately to clarify that in my view, Florida’s litigation privilege does not extend to the reinstatement letters. It would be a waste of judicial resources to not answer this question while Echevarria is before the Court.

In Ange v. State, 98 Fla. 538,123 So. 916 (1929), the Court explained that the litigation privilege “extends to the protection of the judge, parties, counsel, and witnesses, and arises immediately upon the doing of any act required or permitted by law in the due course of the judicial proceedings or as necessarily preliminary thereto.” Ange, 123 So. at 917. In Levin, Middle- brooks, Mabie, Thomas, Mayes & Mitchell, P.A., v. United States Fire Insurance Co., 639 So.2d 606, 608 (Fla.1994), the Court reiterated that the litigation privilege “must be afforded to any act occurring during the course of a judicial proceeding.”

In the instant case, the majority rightfully declines to address at what point “a judicial proceeding” begins for purposes of the litigation privilege because it is unnecessary to do so given the facts of this case. Majority op. at 383 n. 1. The reinstatement letters sent by Echevarria were not a required condition precedent to foreclosure proceedings and were not related to the prosecution or defense of a foreclosure suit. Thus, the reinstatement letters are not covered by the litigation privilege.

Florida courts have previously addressed what statements are “necessarily preliminary” to judicial proceedings. The Fourth District Court of Appeal helpfully explained that publications necessarily preliminary to judicial proceedings include presuit communications that are required by statute or by contract as a condition precedent to suit. Pledger v. Bumwp & Sims, Inc., 432 So.2d 1323, 1326 (Fla. 4th DCA 1983). More recently, this Court considered whether voluntary statements made prior to the instigation of criminal charges should be protected by the litigation privilege. See Fridovich, 598 So.2d at 66. The Court held that while statements compelled by investigatory subpoena are absolutely privileged, voluntary statements to police are only qualifiedly privileged. The Court also noted that voluntary statements to private individuals are not privileged at all. Fridovich, 598 So.2d at 69 & nn. 7-8.

The reinstatement letters at issue were not a statutory or contractual prerequisite to foreclosure. As noted in Pledger, Florida law requires a plaintiff to send notice before filing a complaint in certain types of actions. For example, section 766.106, Florida Statutes (2006), requires a medical malpractice claimant to notify each prospective defendant by mail prior to filing a complaint. Medical malpractice litigation arguably “begins” when this notification is sent.

Here, no statute or contract provision required Echevarria to send borrowers reinstatement information in order to proceed with foreclosure. The First District stated:

Echevarria sent reinstatement letters to the plaintiffs at the outset of the foreclosure proceedings, stating that the plaintiffs were in default on their respective mortgages and faced foreclosure unless they reinstated the mortgages by bringing their payments up to date.

Echevarria, 896 So.2d at 774. This statement should not be read to mean that the reinstatement letters were sent “in the due course of’ foreclosure litigation or “necessarily preliminary” to it. Such a reading is not supported by the record. In actuality, the reinstatement letters did not refer to foreclosure proceedings. Mr. Echevar-ria testified that reinstatement letters were not sent to every borrower facing foreclosure. Rather, the letters containing the allegedly unlawful claim were sent in response to borrower requests for information regarding the possibility of reinstating the mortgage.

In terms we used in Ange, the reinstatement letters were not statements “required or permitted by law in the due course of the judicial proceedings,” nor were the letters sent because they were legally necessary in order to prosecute foreclosures. The letters were relevant only to reinstatement of the mortgages. The letters did not become part of a judicial proceeding simply because they were sent by a law firm. If the letters contained statements which were in violation of the law, it should make no difference whether the letters were sent by the bank or the bank’s lawyers. The litigation privilege as this Court has defined it would not insulate either the bank or the bank’s lawyers from liability for the unlawful statements.

The policy reasoning underlying the litigation privilege indicates that the privilege was not intended to preclude actions based on any misrepresentations contained in these reinstatement letters. In Levin, the Court explained that Florida’s litigation privilege “resulted from the balancing of two competing interests: the right of an individual to enjoy a reputation unimpaired by defamatory attacks versus the right of the public interest to a free and full disclosure of facts in the conduct of judicial proceedings.” Levin, 689 So.2d at 608. The Court held that absolute immunity must be afforded to any act occurring during the course of a judicial proceeding because:

Just as participants in litigation must be free to engage in unhindered communication, so too must those participants be free to use their best judgment in prosecuting or defending a lawsuit without fear of having to defend their actions in a subsequent civil action for misconduct.

Id. The Court designed the privilege to ensure litigants’ freedom of advocacy without leaving victims of tortious conduct without remedy by restricting the litigation privilege to acts occurring during the course of judicial proceedings. Victims of torts committed during judicial proceedings are protected by the trial judge’s contempt power and the Court’s authority to discipline members of The Florida Bar. Id.

But when communications are separate from pending litigation and are not necessary in order to pursue future litigation, tort victims do not have the benefit of these judicial safeguards. Therefore, the litigation privilege should not be structured so as to deprive those who are intended to have the protection of law in respect to the communications from having that protection. Recipients of misleading or fraudulent reinstatement letters must be able to enforce Florida’s Consumer Collection Practices Act (FCCPA) and Deceptive and Unfair Trade Practices Act (FDUTPA), the statutory bases of the causes of action pleaded in Echevarria, for relief. To not allow such enforcement would be an unintended and unstated consequence of the litigation privilege.

In short, the reinstatement letters currently at issue were nonadversarial communications between private individuals. As noted above, this Court has emphasized that the litigation privilege does not apply to voluntary presuit statements made by private individuals to private individuals. See Fridovich, 598 So.2d at 69 n. 8. Thus, the litigation privilege does not bar a civil suit based on these letters, regardless of whether that suit is statutory or common law in nature.

      . The parties have raised numerous other issues both in the briefs and at oral argument which go well beyond the conflict issue, including, for example, an issue as to the point at which the litigation privilege may first be asserted. As we emphasized in our jurisdictional order, we granted jurisdiction in this case to consider only the conflicting holdings on the application of the litigation privilege.

      . In addition to numerous traditional defamation claims, courts in Florida have applied Levin to uphold the use of the privilege in such diverse actions as civil conspiracy and tortious conduct in interfering with custody and visitation rights. See Van Horn v. McNabb, 715 So.2d 380, 381 (Fla. 4th DCA 1998) ("It is clear, from the face of the complaint, that Van Horn enjoys absolute immunity from any alleged defamation or other tortious act done in the course of the prior judicial proceeding.”); Rushing v. Bosse, 652 So.2d 869, 875-76 (Fla. 4th DCA 1995) (affirming a dismissal for a count of civil conspiracy, citing to Levin and holding that "absolute immunity would be afforded to any conduct occurring during the course of the adoption proceeding, regardless of whether the conduct involved a defamatory statement or other tortious behavior, including a violation of rule 2.060(d) because signing the petition for adoption ... has some relation to the adoption proceeding”).

      . In Fridovich v. Fridovich, 598 So.2d 65, 69 (Fla. 1992), the Court receded in part from Ange, explaining:
      We thus hold, as a majority of the other states have held in this context, that defamatory statements voluntarily made by private individuals to the police or the state's attorney prior to the institution of criminal charges are presumptively qualifiedly privileged. We therefore recede from Ange and Robertson [v. Industrial Insurance Company, 75 So.2d 198 (Fla. 1954),] to the extent they are inconsistent with our ruling today.

        (Footnotes omitted.) However, importantly, the Court reaffirmed Ange’s crucial holding that the litigation privilege arises upon the doing of any act necessarily preliminary to a judicial proceeding. Id. at 66.

      . Echevarria's letter to class representative Cole never uses the word "foreclosure/' except that it is signed by "Haelee Holjes Foreclosure Paralegal.”


author: BELL, J.

text:
    Richard Edward PARKER, Petitioner, v. Margaret J. PARKER, Respondent.
    No. SC05-2346.
    Supreme Court of Florida.
    Feb. 1, 2007.

      Scott A. Lazar of Koltun and Lazar, P.A., Miami, FL, for Petitioner.
    Margaret J. Parker, pro se, Coral Springs, FL, for Respondent.
   BELL, J.

We have for review Parker v. Parker, 916 So.2d 926 (Fla. 4th DCA 2005), in which the Fourth District Court of Appeal certified conflict with the First District Court of Appeal’s decision in M.A.F. v. G.L.K., 573 So.2d 862 (Fla. 1st DCA 1990). The conflict issue is whether a wife’s misrepresentation of paternity in a dissolution of marriage proceeding is extrinsic or intrinsic fraud. This differentiation is significant because of the one-year limitation for filing a motion for relief from judgment under Florida Rule of Civil Procedure 1.540(b). As explained below, we agree with the Fourth District that this type of misconduct is intrinsic fraud and, therefore, relief from any judgment based upon such fraud must be sought within one year. Consequently, we approve the Fourth District’s decision in Parker finding that the petitioner’s motion is .time-barred, and we disapprove the First District’s conflicting decision in M.A.F. Consistent with our resolution of this issue, we also réject the petitioner’s alternative request that we reinstate his independent action against his former wife for damages based on this fraud.

I. FACTUAL AND PROCEDURAL BACKGROUND

The conflict issue arises from the following facts in Parker. Richard Parker, petitioner, and Margaret Parker, respondent, were married in 1996. Almost two years later, a child was born to the marriage. During the parties’ dissolution of marriage proceeding in 2001, Margaret represented to the court as well as to Richard that he was the child’s biological father. On December 7, 2001, a final judgment was entered dissolving the parties’ marriage. This judgment incorporated a revised marital settlement agreement acknowledging Richard as the father of the couple’s minor child and requiring him to pay child support.

In March 2003, Margaret filed a motion for contempt and a petition to enforce child support against Richard. In response, Richard had a DNA test conducted and discovered that he was not the child’s biological father. In June 2003, Richard filed an independent civil action against Margaret claiming fraud and seeking compensatory damages for past and future child support obligations. The trial court dismissed Richard’s civil action with prejudice. Richard appealed to the Fourth District, which, at Richard’s request, treated the claim as a motion for relief from the dissolution of marriage final order pursuant to Florida Rule of Civil Procedure 1.540(b).

Following a thorough discussion, the Fourth District ultimately held that “the issue of paternity misrepresentation in marital dissolution proceedings is a matter of intrinsic fraud. It is not extrinsic fraud, or a fraud upon the court, that can form the basis for relief from judgment more than a year later.” Parker, 916 So.2d at 934. The Fourth District also certified conflict with the First District’s decision in M.A.F. Id. at 930. In M.A.F, the First District held that

when a wife knows that her husband is not the father of her children, and the husband does not know, concealment of that knowledge in a divorce proceeding involving child support is extrinsic fraud upon the court. The husband’s petition was not barred by the doctrine of res judicata or the one year limitation of actions provision of Florida Rule of Civil Procedure 1.540(b).

M.A.F., 573 So.2d at 863.

II. DISCUSSION

To reiterate, the conflict issue is whether a wife’s misrepresentation of paternity in a dissolution of marriage proceeding is extrinsic or intrinsic fraud. This distinction is important because of the one-year limitation for filing a motion for relief from judgment under Florida Rule of Civil Procedure 1.540(b). At the outset, we acknowledge the difficulty of this issue and that the First District’s approach in M.AF. is certainly well reasoned. However, we find that the essential reasoning and conclusion of the Fourth District’s decision in Parker best reflects this Court’s precedent concerning the distinctions between extrinsic and intrinsic fraud in the context of marital dissolution proceedings. In reaching this conclusion, we outline the reasoning of the Fourth District in Parker as follows: first, we discuss this Court's precedent concerning the distinctions between extrinsic and intrinsic fraud in the context of dissolution of marriage cases, as revisited in Parker; second, we discuss the Fourth District’s specific application of this Court’s precedent to the facts in Parker and approve its ultimate conclusion; and finally, we briefly discuss the balance of policy considerations addressed in Parker and M.A.F. and express our agreement with the Fourth District that any changes requiring a different result should be made by the Legislature, particularly with regard to the presumption of legitimacy.

A. Extrinsic Versus Intrinsic Fraud in Marital Dissolution Proceedings

The Fourth District’s essential reasoning and conclusion in Parker reflects this Court’s precedent regarding the distinctions between extrinsic and intrinsic fraud in the context of marital dissolution proceedings. As a threshold matter, the Fourth District considered the petitioner’s action as a motion to vacate the final judgment dissolving the marriage and establishing paternity under rule 1.540(b) in keeping with this Court’s precedent in D.F. v. Dep’t of Revenue ex rel. L.F., 823 So.2d 97 (Fla.2002). In D.F., this Court recognized that because a determination of child support in a final dissolution of marriage order is deemed a final determination of paternity, relitigation of paternity is barred by res judicata, and a party seeking relief from child support obligations established during the dissolution of marriage proceedings must proceed under rule 1.540. See id. at 100; see also Parker, 916 So.2d at 929 (quoting portion of holding in D.F.).

Under rule 1.540(b), relief from a judgment based on intrinsic fraud must be sought by motion within one year of its entry. However, this one-year limit does not apply to extrinsic fraud, because extrinsic fraud is considered “fraud on the court.” See DeClaire v. Yohanan, 453 So.2d 375, 377 (Fla.1984), and discussion infra. Rule 1.540(b) specifically provides that “[t]his rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree for fraud upon the court.” See DeClaire, 453 So.2d at 378 (“[Rule 1.540(b) ] clearly preserves the equitable remedy of an independent action where extrinsic fraud is established.”).

After determining that the petitioner’s action would be treated as a motion under rule 1.540(b), the Fourth District revisited this Court’s explanation of the substantive distinctions between extrinsic and intrinsic fraud in DeClaire v. Yohan-an. In DeClaire, this Court considered whether a husband’s presentation of false financial affidavits during a dissolution of marriage proceeding constituted extrinsic or intrinsic fraud. This Court detailed the distinction between extrinsic and intrinsic fraud in DeClaire as follows:

Extrinsic fraud involves conduct which is collateral to the issues tried in a case- [T]his Court has defined extrinsic fraud as the
prevention of an unsuccessful party [from] presenting his case, by fraud or deception practiced by his adversary; keeping the opponent away from court; falsely promising a compromise; ignorance of the adversary about the existence of the suit or the acts of the plaintiff; fraudulent representation of a party without his consent and connivance in his defeat; and so on.
Fair v. Tampa Electric Co., 158 Fla. 15, 18, 27 So.2d 514, 515 (1946). See Black’s Law Dictionary 595 (rev. 5th ed.1979). In other words, extrinsic fraud occurs where a defendant has somehow been prevented from participating in a cause.
Intrinsic fraud, on the other hand, applies to fraudulent conduct that arises within a proceeding and pertains to the issues in the case that have been tried or could have been tried. This Court ... has expressly held that false testimony given in a proceeding is intrinsic fraud. We have stated that
[i]f a judgment was obtained upon false testimony or a fraudulent instrument and the parties were heard, the evidence submitted to and received consideration by the court, then it may be said that the matter has been actually tried, or was so in issue that it might have been tried and the parties are estopped to set up an intrinsic or direct fraud to vitiate the judgment, because the judgment is the highest evidence and cannot be contradicted by the parties to it.
Johnson v. Wells, 72 Fla. 290, 299, 73 So. 188, 191 (1916) (citation omitted).

DeClaire, 453 So.2d at 377 (emphasis added). In essence, extrinsic fraud is conduct which prevents a party from trying an issue before the court, and the prevention itself becomes a collateral issue to the cause; whereas intrinsic fraud is the presentation of misleading information on an issue before the court that was tried or could have been tried. Id.

In DeClaire, this Court also explained the procedural significance of the substantive distinction between extrinsic and intrinsic fraud. As this Court explained,

The concept of fraud on the court has historically been limited in its application to ensure the finality of judgments and to avoid frequent attacks against final judgments. Prior to the adoption of Florida Rule of Civil Procedure 1.540(b), only what was defined as “extrinsic fraud” could, in reality, form the basis for relief from a judgment. Johnson v. Wells; Fair v. Tampa Electric Co. Further, such relief could be obtained only by an independent action in equity. There was no practical basis for relief from a judgment obtained by intrinsic fraud....
Where relief from a judgment is sought by motion [under rule 1.540(b) ], “[t]he motion is filed in the action in which the judgment was rendered.” Trawick, Florida Practice and Procedure § 26.8 (1982). Where relief is sought by independent action, however, “[t]he action is not a continuation of the action in which the judgment ... under attack was entered. A new complaint is filed, service of process is made and the new action follows the same procedure as other civil actions.” Id.
... It should be clearly understood that rule 1.540(b) broadened the grounds upon which a final judgment could be attacked, but created a one-year limitations period within which such an attack must be made. The rule does not change the existing definitions of intrinsic and extrinsic fraud or change the type of conduct which constitutes fraud on the court.

DeClaire, 453 So.2d at 378-79 (emphasis added). Thus, where fraud is extrinsic, it is deemed independent of the action and, therefore, must be attacked independent of the action. However, where fraud is intrinsic, it is deemed to have occurred in the current action and must be attacked by a'rule 1.540(b) motion directed at the current action. And because rule 1.540(b) seeks to achieve finality, the motion must be filed within one year of the final judgment.

B. Essential Reasoning and Conclusion of the Fourth District

After revisiting DeClaire’s distinction between intrinsic and extrinsic fraud, the Fourth District applied this distinction as well as its prior precedent in Guerriero v. Schaub, 579 So.2d 370 (Fla. 4th DCA 1991), to the fraud presented in this case. Just as we concluded in DeClaire that a husband’s presentation of false financial affidavits was intrinsic fraud, the Fourth District concluded in Parker that the wife’s false misrepresentation concerning paternity is intrinsic fraud because it “concerned an issue that could have been raised in the dissolution proceedings, rather than an issue collateral to those proceedings.” Parker, 916 So.2d at 930. The Fourth District further noted that its decision is in line with the majority view of our sister states and with current policy considerations in this State. Id. at 931-33. Accordingly, the Fourth District held as follows:

[W]e conclude, along with the majority of states, that the issue of paternity misrepresentation in marital dissolution proceedings is a matter of intrinsic fraud. It is not extrinsic fraud, or a fraud upon the court, that can form the basis for relief from judgment more than a year later. Any relevant policy considerations that would compel a different result are best addressed by the legislature.

Id. at 934 (affirming the trial court’s dismissal of the husband’s petition for relief based on fraud).

We agree with the essential reasoning and conclusion of the Fourth District as stated above. Though there are strong arguments in favor of finding the wife’s misconduct in this case to be extrinsic fraud, we believe that the Fourth District reached the result which best reflects this Court’s precedent. Contrary to the First District’s analysis, paternity is not an issue that “was tried or could have been tried” only when the husband actually contests paternity during the dissolution of marriage proceeding. Rather, paternity is an issue which not only can be tried but actually is tried by virtue of the existence of a minor child to the marriage. See § 61.052, Fla. Stat. (1999) (requiring trial courts to take notice that there is a minor child belonging to a marriage and to take appropriate steps to further the best interests of the child and the parties during the pen-dency of the action); D.F., 823 So.2d at 100 (holding that a final order dissolving the marriage and establishing child support serves as a final determination of paternity).

Accordingly, we agree with the essential reasoning of the Fourth District and its conclusion that the former wife’s misrepresentation concerning paternity during the dissolution of marriage proceedings constitutes intrinsic fraud. Consequently, we agree with the Fourth District’s conclusion that the petitioner’s rule 1.540(b) motion was barred because it was not brought within one year of the judgment dissolving the marriage and establishing paternity.

C. Balance of Policy Considerations

Moreover, we agree with the Fourth District’s reasoning in Parker that the balance of policy considerations does not require a different result, particularly with regard to the presumption of legitimacy. We find that the balance of policy considerations favors protecting the best interests of the child over protecting the interests of one parent defrauded by the other parent in the midst of a divorce proceeding. The Fourth District presents a fair summary of our concerns, as follows:

We recognize that the former husband in this case may feel victimized. However, Theresa Glennon argues cogently that:
[wjhile some individuals are innocent victims of deceptive partners, adults are aware of the high incidence of infidelity and only they, not the children, are able to act to ensure that the biological ties they may deem essential are present.... The law should discourage adults from treating children they have parented as expendable when their adult relationships fall apart. It is the adults who can and should absorb the pain of betrayal rather than inflict additional betrayal on the involved children.
[Mary J. Anderlik, Disestablishment Suits: What Hath Science Wrought?, 4 J. Center for Families, Child. & Cts. 3, 18 (2003)] (quoting Theresa Glennon, Expendable Children: Defining Belonging in a Broken World, 8 Duke J. Gender L. & Pol’y 269, 275 (2001)).

Parker, 916 So.2d at 934.

The petitioner urges this Court to adopt the reasoning of the First District in M.A.F. In M.A.F., the First District found that because paternity is presumed when a child is born to a marriage due to the presumption of legitimacy, a father is under no obligation to contest or try the issue of paternity during the dissolution of marriage proceedings; and because the father in that case had no reason to contest paternity otherwise, the wife’s misrepresentation concerning paternity constituted extrinsic fraud which may be attacked any time. See M.A.F., 573 So.2d at 863. However, as we have stated, the presumption of legitimacy was created primarily to protect the welfare of the child. Sacks v. Sacks, 267 So.2d 73, 76 (Fla.1972). The presumption of legitimacy is a constitutional right afforded to every child born into a marriage granting the child the right to remain legitimate, both legally and factually, if doing so is in the child’s best interest. See art. I, § 9, Fla. Const.; see also Dep’t of Health & Rehab. Servs. v. Privette, 617 So.2d 305, 307 (Fla.1993). Furthermore, courts have consistently held that it is generally in a child’s best interest to promote stability and finality in matters of paternity. See, e.g., Fla. Dep’t of Revenue ex rel. R.A.E. v. M.L.S., 756 So.2d 125,127 (Fla. 2d DCA 2000) (citing Benac v. Bree, 590 So.2d 536 (Fla. 2d DCA 1991); Marshall v. Marshall, 386 So.2d 11 (Fla. 5th DCA 1980)).

While we certainly are mindful of the impact this decision has on the petitioner’s interests, as explained above, the current balance of policy considerations favors protecting the best interests of the child over protecting the interests of one parent defrauded by the other parent in the midst of a divorce proceeding. Thus, we agree with the Fourth District that the current balance of policy considerations does not require a different result and that any policy considerations requiring a different result, particularly with regard to the presumption of legitimacy, are best addressed by the Legislature.

Accordingly, we approve the essential reasoning and conclusion of the Fourth District’s opinion in Parker and disapprove the First District’s opinion in M.A.F.

III. REQUEST TO REINSTATE CIVIL SUIT

Finally, we reject the petitioner’s alternative argument that his original cause of action for damages should be reinstated. First, as determined above, the petitioner cannot sustain an independent action for fraud because his former wife’s misrepresentations concerning his paternity did not constitute extrinsic fraud. Furthermore, a civil suit for compensatory damages based on fraud is not the proper vehicle for attacking a final judgment based on alleged extrinsic fraud. Rather, as stated above, the proper vehicle is an action in equity. See DeClaire, 453 So.2d at 378 (stating that rule 1.540(b) “preserves the equitable remedy of an independent action where extrinsic fraud is established”). Accordingly, we deny the petitioner’s request to reinstate his independent action for damages.

IV. CONCLUSION

For the foregoing reasons, we approve the Fourth District’s decision in Parker and disapprove the First District’s decision in M.A.F. We hold that a wife’s false misrepresentation concerning her husband’s paternity during a dissolution of marriage proceeding constitutes intrinsic fraud which must be attacked by a rule 1.540(b) motion filed within one year of the final judgment dissolving the marriage. Accordingly, we agree with the Fourth District that the petitioner’s attempt to vacate the final judgment dissolving his marriage is time-barred. We also deny the petitioner’s request to reinstate his civil suit for damages.

It is so ordered.

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

      . We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

      . With regard to this Court's specific holding in DeClaire, as the Fourth District noted in Lefler v. Lefler, 776 So.2d 319, 322 n. 1 (Fla. 4th DCA 2001), "DeClaire has been superseded ... by amendments to Florida Rule of Civil Procedure 1.540(b) and Florida Family Law Rule 12.540, which eliminates the one year rule for cases of false financial affidavits in a family law case.”

      . As noted by the Fourth District in Parker, 916 So.2d at 931-33, the majority of states have also found the type of fraud alleged in Parker to be intrinsic fraud. For example, courts in Alabama, Arkansas, Oklahoma, South Carolina, Texas, and Vermont have held that a wife’s misrepresentation regarding paternity in a dissolution of marriage proceeding constitutes intrinsic fraud, not extrinsic fraud. See, e.g., Anonymous v. Anonymous, 473 So.2d 502 (Ala.Civ.App.1984); Graves v. Stevison, 81 Ark.App. 137, 98 S.W.3d 848 (2003); Miller v. Miller, 956 P.2d 887, 905 (Okla.1998); Mr. G. v. Mrs. G, 320 S.C. 305, 465 S.E.2d 101, 103 (App.1995); Temple v. Archambo, 161 S.W.3d 217 (Tex.App.2005); Godin v. Godin, 168 Vt. 514, 725 A.2d 904 (1998). Nevada is in the minority, finding this type of fraud to be extrinsic because it prevents the husband from knowing he has a claim or defense. Love v. Love, 114 Nev. 572, 959 P.2d 523 (1998).

      . For a more detailed discussion of the decisions of our sister states and relevant policy considerations, see the Fourth District’s discussion in Parker, 916 So.2d at 930-34.

      . We note that the Legislature did, in fact, address some of these policy considerations when it enacted section 742.18, Florida Statutes, in 2006, which provides the circumstances and procedures under which a male may disestablish paternity and terminate a child support obligation. However, we have not considered and do not address the applicability of this new statute to the petitioner’s circumstances.

      . Moreover, as referenced in footnote 5, supra, we note that section 742.18, which provides the means and procedures by which a male may petition the trial court to disestablish paternity and terminate a child support obligation, forecloses the right to be compensated for child support already paid. § 742.18(5), Fla. Stat. (2006) ("This section shall not be construed to create a cause of action to recover child support that was previously paid.”).


author: PER CURIAM.

text:
    C.C., etc., Petitioner, v. STATE of Florida, Respondent.
    No. SC05-1556.
    Supreme Court of Florida.
    Feb. 8, 2007.
    James Marion Moorman, Public Defender and John C. Fisher, Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, and Ronald Napolitano, Assistant Attorney General, Tampa, FL, for Respondent.
   PER CURIAM.

We have for review State v. J.C., J.G., E.G., T.N., & C.C., 916 So.2d 847 (Fla. 2nd DCA 2005), in which the Second District Court of Appeal cited V.K.E. v. State, 902 So.2d 343 (Fla. 5th DCA 2005), quashed, 934 So.2d 1276 (Fla.2006), and certified the same question as was then pending review in this Court in V.K.E. We have jurisdiction. See art. V, § 3(b)(3)-(4), Fla. Const.; Jollie v. State, 405 So.2d 418 (Fla.1981).

We have since quashed V.K.E. and answered the certified question in a manner contrary to the decision presently on review. See V.K.E. v. State, 934 So.2d 1276 (Fla.2006). We have thus determined, and respondent agrees, that we should exercise our jurisdiction to grant the petition for review, quash the decision under review, and remand to the Second District Court of Appeal for reconsideration upon application of this Court’s decision in V.K.E.

It is so ordered.

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

CANTERO and BELL, JJ., concur in result only.


text:
    S.J.H., etc., Petitioner, v. STATE of Florida, Respondent.
    No. SC05-1693.
    Supreme Court of Florida.
    Feb. 8, 2007.
    James S. Purdy, Public Defender and Marvin F. Clegg, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, FL, for Respondent.
   PER CURIAM.

We have for review S.J.H. v. State, 909 So.2d 411 (Fla. 5th DCA 2005), in which the Fifth District Court of Appeal cited V.K.E. v. State, 902 So.2d 343 (Fla. 5th DCA 2005), quashed, 934 So.2d 1276 (Fla.2006), and certified the same question as was then pending review in this Court in V.K.E. We have jurisdiction. See art. V, § 3(b)(3)-(4), Fla. Const.; Jollie v. State, 405 So.2d 418 (Fla.1981).

We have since quashed V.K.E. and answered the certified question in a manner contrary to the decision presently on review. See V.K.E. v. State, 934 So.2d 1276 (Fla.2006). We have thus determined, and respondent agrees, that we should exercise our jurisdiction to grant the petition for review, quash the decision under review, and remand to the Fifth District Court of Appeal for reconsideration upon application of this Court’s decision in V.K.E.

It is so ordered.

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

CANTERO and BELL, JJ., concur in result only.


text:
    D.W.A., etc., Petitioner, v. STATE of Florida, Respondent.
    No. SC05-1731.
    Supreme Court of Florida.
    Feb. 8, 2007.

      James S. Purdy, Public Defender and Marvin F. Clegg, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, FL, for Respondent.
   PER CURIAM.

We have for review D.W.A. v. State, 909 So.2d 412 (Fla. 5th DCA 2005), in which the Fifth District Court of Appeal certified the same question as was then pending review in this Court via V.K.E. v. State, 902 So.2d 343 (Fla. 5th DCA 2005), quashed, 934 So.2d 1276 (Fla.2006). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

We have since answered the certified question in a manner contrary to the decision presently on review. See V.K.E. v. State, 934 So.2d 1276 (Fla.2006). We have thus determined, and respondent agrees, that we should exercise our jurisdiction to grant the petition for review, quash the decision under review, and remand to the Fifth District Court of Appeal for reconsideration upon application of this Court’s decision in V.K.E.

It is so ordered.

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

CANTERO and BELL, JJ., concur in result only.


author: PARIENTE, J.

text:
    Mario GASTON, Petitioner, v. STATE of Florida, Respondent.
    No. SC05-1901.
    Supreme Court of Florida.
    Feb. 8, 2007.
    Jerrard B. Cutrone, Miami, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, and Jill Kramer Traína, Assistant Attorney General, Miami, FL, for Respondent.
   PARIENTE, J.

We have for review State v. Gaston, 911 So.2d 257 (Fla. 3d DCA 2005), in which the Third District Court of Appeal certified conflict with Green v. State, 895 So.2d 441 (Fla. 4th DCA 2005), quashed, 944 So.2d 208 (Fla.2006). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

In Gaston, the defendant moved to withdraw a plea of guilty to a charge of carrying a concealed firearm entered a decade earlier. 911 So.2d at 258. Gaston asserted that the trial court did not advise him that the plea might subject him to deportation and that he was subsequently advised by an immigration attorney that he would be subjected to deportation proceedings if he applied for residency. Id. The trial court granted the motion but the Third District reversed, concluding that Gaston had not stated a prima facie case by pleading that he was specifically threatened with deportation because of the plea. Id.

In Peart v. State, 756 So.2d 42 (Fla.2000), we held that to establish prejudice arising from a trial court’s failure to advise a defendant of deportation consequences of a plea, a defendant “must be threatened with deportation resulting from the plea.” Id. at 46. However, in Green, we receded from this statement in Peart and held that “[hjenceforth, it is the fact that the plea subjects the defendant to deportation, rather than a specific threat of deportation, that establishes prejudice.” 944 So.2d at 218. We also stated that courts should apply the new standard in cases now pending on this issue in the trial and appellate courts.

The decision below applied the Peart standard requiring an allegation of a specific threat of deportation rather than the requirement in Green that the defendant allege that the plea subjected the defendant to deportation. Accordingly, we quash the Third District decision in this case and remand for reconsideration in light of our decision in Green.

It is so ordered.

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


text:
    R.R.K., etc., Petitioner, v. STATE of Florida, Respondent.
    No. SC05-1733.
    Supreme Court of Florida.
    Feb. 8, 2007.
    James S. Purdy, Public Defender and Rose M. Levering, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, Florida and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, FL, for Respondent.
   PER CURIAM.

We have for review R.R.K. v. State, 912 So.2d 328 (Fla. 5th DCA 2005) (on motions for rehearing and certification), in which the Fifth District Court of Appeal certified the same question as was then pending review in this Court via V.K.E. v. State, 902 So.2d 343 (Fla. 5th DCA 2005), quashed, 934 So.2d 1276 (Fla.2006). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

We have since answered the certified question in a manner contrary to the decision presently on review. See V.K.E. v. State, 934 So.2d 1276 (Fla.2006). We have thus determined, and respondent agrees, that we should exercise our jurisdiction to grant the petition for review, quash the decision under review, and remand to the Fifth District Court of Appeal for reconsideration upon application of this Court’s decision in V.KE.

It is so ordered.

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

CANTERO and BELL, JJ., concur in result only.


text:
    B.J.H., etc., Petitioner, v. STATE of Florida, Respondent.
    No. SC05-1825.
    Supreme Court of Florida.
    Feb. 8, 2007.
    James S. Purdy, Public Defender and Allison A. Havens, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, FL, for Respondent.
   PER CURIAM.

We have for review B.J.H. v. State, 910 So.2d 945 (Fla. 5th DCA 2005) (on motion for rehearing), in which the Fifth District Court of Appeal cited V.KE. v. State, 902 So.2d 343 (Fla. 5th DCA 2005), quashed, 934 So.2d 1276 (Fla.2006), and certified the same question as was then pending review in this Court in V.KE. We have jurisdiction. See art. V, § 3(b)(3)-(4), Fla. Const.; Jollie v. State, 405 So.2d 418 (Fla.1981).

We have since quashed V.KE. and answered the certified question in a manner contrary to the decision presently on review. See V.KE. v. State, 934 So.2d 1276 (Fla.2006). We have thus determined, and respondent agrees, that we should exercise our jurisdiction to grant the petition for review, quash the decision under review, and remand to the Fifth District Court of Appeal for reconsideration upon application of this Court’s decision in V.KE.

It is so ordered.

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

CANTERO and BELL, JJ., concur in result only.


text:
    S.L.G., etc., Petitioner, v. STATE of Florida, Respondent.
    No. SC05-1953.
    Supreme Court of Florida.
    Feb. 8, 2007.
    James S. Purdy, Public Defender and Meghan Ann Collins, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, and Kristen L. Davenport, Assistant • Attorney General, Daytona Beach, FL, for Respondent.
   PER CURIAM.

We have for review S.L.G. v. State, 912 So.2d 613 (Fla. 5th DCA 2005) (on motion for rehearing), in which the Fifth District Court of Appeal certified the same question as was then pending review in this Court via V.K.E. v. State, 902 So.2d 343 (Fla. 5th DCA 2005), quashed, 934 So.2d 1276 (Fla.2006). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

We have since answered the certified question in a manner contrary to the decision presently on review. See V.K.E. v. State, 934 So.2d 1276 (Fla.2006). We have thus determined, and respondent agrees, that we should exercise our jurisdiction to grant the petition for review, quash the decision under review, and remand to the Fifth District Court of Appeal for reconsideration upon application of this Court’s decision in V.K.E.

It is so ordered.

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

CANTERO and BELL, JJ., concur in result only.


text:
    A.B.H., etc., Petitioner, v. STATE of Florida, Respondent.
    No. SC06-754.
    Supreme Court of Florida.
    Feb. 8, 2007.
    James Marion Moorman, Public Defender and Cynthia J. Dodge, Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, Robert J. Krauss, Bureau Chief, Tampa Criminal Appeals and Deborah Fraim Hogge, Assistant Attorney General, Tampa, FL, for Respondent.
   PER CURIAM.

We have for review A.B.H. v. State, 923 So.2d 1168 (Fla. 2d DCA 2006) (table), in which the Second District Court of Appeal cited V.K.E. v. State, 902 So.2d 343 (Fla. 5th DCA 2005), quashed, 934 So.2d 1276 (Fla.2006), which was then pending review in this Court. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.; Jollie v. State, 405 So.2d 418 (Fla.1981).

We have since quashed V.KE. See V.KE. v. State, 934 So.2d 1276 (Fla.2006). We have thus determined, and respondent agrees, that we should accept jurisdiction and grant the petition for review, quash the decision under review, and remand to the Second District Court of Appeal for reconsideration upon application of this Court’s decision in V.KE.

It is so ordered.

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

CANTERO and BELL, JJ., concur in result only.


text:
    T.N., etc., Petitioner, v. STATE of Florida, Respondent.
    No. SC05-1555.
    Supreme Court of Florida.
    Feb. 8, 2007.
    James Marion Moorman, Public Defender and John C. Fisher, Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, and Ronald Napolitano, Assistant Attorney General, Tampa, FL, for Respondent.
   PER CURIAM.

We have for review State v. J.C., J.G., E.G., T.N., & C.C., 916 So.2d 847 (Fla. 2nd DCA 2005), in which the Second District Court of Appeal cited V.KE. v. State, 902 So.2d 343 (Fla. 5th DCA 2005), quashed, 934 So.2d 1276 (Fla.2006), and certified the same question as was then pending review in this Court in V.KE. We have jurisdiction. See art. V, § 3(b)(3)-(4), Fla. Const.; Jollie v. State, 405 So.2d 418 (Fla.1981).

We have since quashed V.KE. and answered the certified question in a manner contrary to the decision presently on review. See V.KE. v. State, 934 So.2d 1276 (Fla.2006). We have thus determined, and respondent agrees, that we should exercise our jurisdiction to grant the petition for review, quash the decision under review, and remand to the Second District Court of Appeal for reconsideration upon application of this Court’s decision in V.KE.

It is so ordered.

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

CANTERO and BELL, JJ., concur in result only.


text:
    E.G., etc., Petitioner, v. STATE of Florida, Respondent.
    No. SC05-1553.
    Supreme Court of Florida.
    Feb. 8, 2007.

      James Marion Moorman, Public Defender and John C. Fisher, Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL and Ronald Napolitano, Assistant Attorney General, Tampa, FL, for Respondent.
   PER CURIAM.

We have for review State v. J.C., J.G., E.G., T.N., & C.C., 916 So.2d 847 (Fla. 2nd DCA 2005), in which the Second District Court of Appeal cited V.K.E. v. State, 902 So.2d 343 (Fla. 5th DCA 2005), quashed, 934 So.2d 1276 (Fla.2006), and certified the same question as was then pending review in this Court in V.KE. We have jurisdiction. See art. V, § 3(b)(3)-(4), Fla. Const.; Jollie v. State, 405 So.2d 418 (Fla.1981).

We have since quashed V.KE. and answered the certified question in a manner contrary to the decision presently on review. See V.KE. v. State, 934 So.2d 1276 (Fla.2006). We have thus determined, and respondent agrees, that we should exercise our jurisdiction to grant the petition for review, quash the decision under review, and remand to the Second District Court of Appeal for reconsideration upon application of this Court’s decision in V.KE.

It is so ordered.

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

CANTERO and BELL, JJ., concur in result only.


text:
    J.G., etc., Petitioner, v. STATE of Florida, Respondent.
    No. SC05-1551.
    Supreme Court of Florida.
    Feb. 8, 2007.
    James Marion Moorman, Public Defender and John C. Fisher, Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL and Ronald Napolitano, Assistant Attorney General, Tampa, FL, for Respondent.
   PER CURIAM.

We have for review State v. J.C., J.G., E.G., T.N., & C.C., 916 So.2d 847 (Fla. 2nd DCA 2005), in which the Second District Court of Appeal cited V.KE. v. State, 902 So.2d 343 (Fla. 5th DCA 2005), quashed, 934 So.2d 1276 (Fla.2006), and certified the same question as was then pending review in this Court in V.KE. We have jurisdiction. See art. V, § 3(b)(3)-(4), Fla. Const.; Jollie v. State, 405 So.2d 418 (Fla.1981).

We have since quashed V.KE. and answered the certified question in a manner contrary to the decision presently on review. See V.KE. v. State, 934 So.2d 1276 (Fla.2006). We have thus determined, and respondent agrees, that we should exercise our jurisdiction to grant the petition for review, quash the decision under review, and remand to the Second District Court of Appeal for reconsideration upon application of this Court’s decision in V.K.E.

It is so ordered.

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

CANTERO and BELL, JJ., concur in result only.


text:
    R.R.K., etc., Petitioner, v. STATE of Florida, Respondent.
    No. SC05-1269.
    Supreme Court of Florida.
    Feb. 8, 2007.
    James S. Purdy, Public Defender and Rose M. Levering, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, FL, for Respondent.
   PER CURIAM.

We have for review R.R.K. v. State, 904 So.2d 661 (Fla. 5th DCA 2005), in which the Fifth District Court of Appeal cited V.K.E. v. State, 902 So.2d 343 (Fla. 5th DCA 2005), quashed, 934 So.2d 1276 (Fla.2006), and certified the same question as was then pending review in this Court in Y.K.E. We have jurisdiction. See art. V, § 3(b)(3)-(4), Fla. Const.; Jollie v. State, 405 So.2d 418 (Fla.1981).

We have since quashed V.K.E. and answered the certified question in a manner contrary to the decision presently on review. See V.K.E. v. State, 934 So.2d 1276 (Fla.2006). We have thus determined, and respondent agrees, that we should exercise our jurisdiction to grant the petition for review, quash the decision under review, and remand to the Fifth District Court of Appeal for reconsideration upon application of this Court’s decision in V.K.E.

It is so ordered.

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

CANTERO and BELL, JJ., concur in result only.


text:
    B.W.H., etc., Petitioner, v. STATE of Florida, Respondent.
    No. SC05-1291.
    Supreme Court of Florida.
    Feb. 8, 2007.
    James S. Purdy, Public Defender and Thomas J. Lukashow, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, FL, for Respondent.
   PER CURIAM.

We have for review B.W.H. v. State, 904 So.2d 659 (Fla. 5th DCA 2005), in which the Fifth District Court of Appeal cited V.KE. v. State, 902 So.2d 343 (Fla. 5th DCA 2005), quashed, 934 So.2d 1276 (Fla.2006), and certified the same question as was then pending review in this Court in V.KE. We have jurisdiction. See art. Y, § 3(b)(3)-(4), Fla. Const.; Jollie v. State, 405 So.2d 418 (Fla.1981).

We have since quashed V.KE. and answered the certified question in a manner contrary to the decision presently on review. See V.KE. v. State, 934 So.2d 1276 (Fla.2006). We have thus determined, and respondent agrees, that we should exercise our jurisdiction to grant the petition for review, quash the decision under review, and remand to the Fifth District Court of Appeal for reconsideration upon application of this Court’s decision in V.KE.

It is so ordered.

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

CANTERO and BELL, JJ., concur in result only.


text:
    A.N.R., etc., Petitioner, v. STATE of Florida, Respondent.
    No. SC05-1343.
    Supreme Court of Florida.
    Feb. 8, 2007.
    James S. Purdy, Public Defender and Leonard R. Ross, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, FL, for Respondent.
   PER CURIAM.

We have for review A.N.R. v. State, 906 So.2d 339 (Fla. 5th DCA 2005), in which the Fifth District Court of Appeal cited V.KE. v. State, 902 So.2d 343 (Fla. 5th DCA 2005), quashed, 934 So.2d 1276 (Fla.2006), and certified the same question as was then pending review in this Court in V.KE. We have jurisdiction. See art. V, § 3(b)(3)-(4), Fla. Const.; Jollie v. State, 405 So.2d 418 (Fla.1981).

We have since quashed V.KE. and answered the certified question in a manner contrary to the decision presently on review. See V.KE. v. State, 934 So.2d 1276 (Fla.2006). We have thus determined, and respondent agrees, that we should exercise our jurisdiction to grant the petition for review, quash the decision under review, and remand to the Fifth District Court of Appeal for reconsideration upon application of this Court’s decision in V.K.E.

It is so ordered.

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

CANTERO and BELL, JJ., concur in result only.


text:
    A.J.N., etc., Petitioner, v. STATE of Florida, Respondent.
    No. SC05-1322.
    Supreme Court of Florida.
    Feb. 8, 2007.
    James S. Purdy, Public Defender and Dee R. Ball, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, FL, for Respondent.
   PER CURIAM.

We have for review A.J.N. v. State, 906 So.2d 339 (Fla. 5th DCA 2005), in which the Fifth District Court of Appeal cited V.K.E. v. State, 902 So.2d 343 (Fla. 5th DCA 2005), quashed, 934 So.2d 1276 (Fla.2006), and certified the same question as was then pending review in this Court in V.K.E. We have jurisdiction. See art. V, § 3(b)(3)-(4), Fla. Const.; Jollie v. State, 405 So.2d 418 (Fla.1981).

We have since quashed V.K.E. and answered the certified question in a manner contrary to the decision presently on review. See V.K.E. v. State, 934 So.2d 1276 (Fla.2006). We have thus determined, and respondent agrees, that we should exercise our jurisdiction to grant the petition for review, quash the decision under review, and remand to the Fifth District Court of Appeal for reconsideration upon application of this Court’s decision in V.K.E.

It is so ordered.

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

CANTERO and BELL, JJ., concur in result only.


text:
    T.J.M., etc., Petitioner, v. STATE of Florida, Respondent.
    No. SC05-1541.
    Supreme Court of Florida.
    Feb. 8, 2007.
    James S. Purdy, Public Defender and Susan A. Fagan, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FI, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, FL, for Respondent.
   PER CURIAM.

We have for review T.J.M. v. State, 907 So.2d 618 (Fla. 5th DCA 2005), in which the Fifth District Court of Appeal cited V.KE. v. State, 902 So.2d 343 (Fla. 5th DCA 2005), quashed, 934 So.2d 1276 (Fla.2006), and certified the same question as was then pending review in this Court in V.KE. We have jurisdiction. See art. V, § 3(b)(3)-(4), Fla. Const.; Jollie v. State, 405 So.2d 418 (Fla.1981).

We have since quashed V.KE. and answered the certified question in a manner contrary to the decision presently on review. See V.KE. v. State, 934 So.2d 1276 (Fla.2006). We have thus determined, and respondent agrees, that we should exercise our jurisdiction to grant the petition for review, quash the decision under review, and remand to the Fifth District Court of Appeal for reconsideration upon application of this Court’s decision in V.KE.

It is so ordered.

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

CANTERO and BELL, JJ., concur in result only.


text:
    J.C., etc., Petitioner, v. STATE of Florida, Respondent.
    No. SC05-1548.
    Supreme Court of Florida.
    Feb. 8, 2007.
    James Marion Moorman, Public Defender and John C. Fisher, Assistant Public Defender, Tenth Judicial Circuit Bartow, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, and Ronald Napolitano, Assistant Attorney General, Tampa, FL, for Respondent.
   PER CURIAM.

We have for review State v. J.C., J.G., E.G., T.N., & C.C., 916 So.2d 847 (Fla. 2nd DCA 2005), in which the Second District Court of Appeal cited V.KE. v. State, 902 So.2d 343 (Fla. 5th DCA 2005), quashed, 934 So.2d 1276 (Fla.2006), and certified the same question as was then pending review in this Court in V.KE. We have jurisdiction. See art. V, § 3(b)(3)-(4), Fla. Const.; Jollie v. State, 405 So.2d 418 (Fla.1981).

We have since quashed V.KE. and answered the certified question in a manner contrary to the decision presently on review. See V.KE. v. State, 934 So.2d 1276 (Fla.2006). We have thus determined, and respondent agrees, that we should exercise our jurisdiction to grant the petition for review, quash the decision under review, and remand to the Second District Court of Appeal for reconsideration upon application of this Court’s decision in V.KE.

. It is so ordered.

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

CANTERO and BELL, JJ., concur in result only.


author: PER CURIAM. ANSTEAD, J.,

text:
    THE FLORIDA BAR, Complainant, v. John Louis WALKDEN, Respondent.
    No. SC06-323.
    Supreme Court of Florida.
    Feb. 22, 2007.

      John F. Harkness, Jr., Executive Director, Tallahassee, FL, and Lorraine C. Hoffmann, Bar Counsel, the Florida Bar, Fort Lauderdale, FL, for Complainant.
    Kevin P. Tynan of Richardson and Tyn-an, P.L.C., Tamarac, FL, for Respondent.
   PER CURIAM.

This matter is before the Court on The Florida Bar’s petition for contempt against John L. Walkden. We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons expressed below, we grant the Bar’s petition for contempt and disbar Walkden from The Florida Bar.

BACKGROUND

On February 20, 2006, The Florida Bar filed a petition for contempt and for an order to show cause against John L. Walk-den. The Bar alleged Walkden continued to practice law after he was suspended by the Court. The facts as alleged by the Bar, which Walkden did not dispute or deny in his response, or as established by the attachments to the Bar’s petition, which includes a transcript of the hearing before the referee in Florida Bar v. Walkden, 917 So.2d 196 (Fla.2005) (No. SC04-1555), on June 3, 2005, established the following sequence of events.

On April 11, 2002, the Court suspended Walkden for ninety days, to commence on May 11, 2002, followed by probation for three years. See Fla. Bar v. Walkden, 817 So.2d 852 (Fla.2002). One term of Walk-den’s probation was that he was to comply with his Florida Lawyers Assistance, Inc., (FLA) contract, which required him to abstain from alcohol and to undergo random drug and alcohol tests to verify his compliance. Under the terms of this negotiated plea agreement, Walkden was to be suspended for ninety-one days if he failed to abide by the terms of his probation. During the term of his suspension, Walkden maintained his client trust account; disbursed money from a trust to nine heirs; and prepared an inventory and accounting of trust assets and expenses, a non-probate pleading. Walkden’s ninety-day suspension period ended on or about August 11, 2002, and he began his three-year probationary period.

Some time in the middle of September 2002, Walkden went to an FLA meeting intoxicated. FLA sent a letter to the Bar, which filed a petition for contempt and order to show cause in this Court. That petition was assigned case number SC02-2146. The Bar was seeking to have Walk-den suspended for ninety-one days for violating the terms of his probation.

Walkden opposed the Bar until February 2004, when he tested positive for alcohol in a random test. At that point, he notified the Court that he did not oppose the imposition of a ninety-one day suspension. On March 11, 2004, the Court entered an order suspending Walkden for ninety-one days for breaching the terms of his FLA contract. See Fla. Bar v. Walk-den, 871 So.2d 875 (Fla.2004). That suspension commenced on April 12, 2004. Walkden has been suspended from the practice of law continuously since then, having never successfully petitioned for reinstatement as required by Rules Regulating the Florida Bar 3~5.1(e) (suspensions) and 3-7.10 (reinstatement and readmission procedures).

On April 12, 2004, Walkden was still the attorney of record in four cases in the Seventeenth Judicial Circuit Court. He failed to notify the judges, opposing counsel, and his remaining clients of his suspension. On May 13, 2004, he attended an evidentiary hearing to determine an attorney’s fee award with his client. During the hearing, he cross-examined the witnesses who testified for the other side. In June 2004, he received a call from opposing counsel in a different case, an age discrimination suit, who made a settlement offer of $35,000. Walkden communicated the offer to his client.

On June 18, 2004, the Bar received notice that Walkden was still practicing law and opened an investigation. On August 3, 2004, the Bar filed a petition for contempt and order to show cause against Walkden. By the end of the month the Court had issued an order to show cause and an order for the appointment of a referee. According to Walkden, he ultimately notified his clients of his suspension and filed the necessary affidavit with the Bar in late September or early October 2004 for the suspension that began April 12, 2004.

A formal hearing was held before the referee on June 3, 2005. The Bar was seeking disbarment. The referee recommended a one-year suspension, which the Court approved in an order dated November 3, 2005.

After the formal hearing in June, Walk-den continued to engage in the practice of law. On July 13, 2005, Arnold M. Strauss, Jr., a lawyer representing the buyers in a real estate transaction, wrote to Walkden, as the lawyer representing the owners of the real estate, asking to schedule a closing on the property. Walkden responded in writing on July 14, 2005, on his law office letterhead. Below his signature were the printed words: “John L. Walk-den, Esq.” On August 3, 2005, Gene Albert, Chairman of the Legal Committee for the development where the property was located, wrote a letter to Strauss, with a copy to Walkden, relating that he had received correspondence from both concerning the property dispute.

On September 1, 2005, Walkden filed a Complaint for Slander of Title, for Cancellation of Document, and for Posting of Adequate Bond, in the Seventeenth Judicial Circuit Court. The complaint was signed by Walkden under the heading: “Law Offices of John L. Walkden, Attorneys for Plaintiffs.” That same day, a summons filed in the case referenced “John L. Walkden, plaintiffs attorney.” Strauss wrote to the Bar on September 15, 2005, in reference to “Estate of-Feder sale to Beaudoin.” Strauss, referring to Walk-den, wrote: “I have been working with this attorney for six (6) months.” According to the Bar, it received notice that Walkden was still practicing on September 16, 2005, probably referring to its receipt of Strauss’s letter.

Shortly after the Court’s November 3, 2005, order in Case No. SC04-1555, suspending Walkden for one year, see Fla. Bar v. Walkden, 917 So.2d 196 (Fla.2005), the Bar wrote to Walkden with directions concerning what he was required to do to comply with the Court’s order of suspension. As of the date of the Bar’s petition in this case, February 20, 2006, Walkden had failed to notify the necessary parties of his suspension and to provide the Bar with his affidavit of compliance.

The Florida Bar’s petition asked the Court to issue an order to show cause as to why Walkden should not be disbarred for continuing to practice law while suspended. The Court issued an order to show cause on March 6, 2006, to which Walkden filed a response on March 21, 2006. The Bar filed its reply on March 30, 2006.

In his response, Walkden admitted that he filed a legal action on behalf of the estate, but claimed he was not authorized by the client to do so. He further argued that he made no effort to have the action served on the defendant after it was filed. Although he admitted his actions warranted a sanction, he argued that disbarment is not warranted. He further argued that it would be a violation of the principle of double jeopardy for the Court to take into consideration his prior misconduct in Bar proceedings previously closed.

In its reply, the Bar responded that Walkden admitted that he had filed the action while suspended. Further, he filed it just three months after the hearing before the referee which involved his earlier acts of practicing law while suspended, so his action was knowing, willful, and intentional. His testimony at the hearing concerning his continued practice of law during his suspension was false. The Bar argued that Walkden’s continuing misconduct, false testimony, and failure to provide the necessary parties with notice of his suspension demonstrated his profound and unyielding contempt for this Court’s orders. It is the Bar’s position that Walk-den should be immediately disbarred. We agree.

ANALYSIS

As noted by the Bar, this Court views cumulative misconduct more seriously than an isolated instance of misconduct. Fla. Bar v. Carlon, 820 So.2d 891, 899 (Fla.2002). In determining the appropriate discipline, we consider prior misconduct and cumulative misconduct, and treat cumulative misconduct more severely than isolated misconduct. Disbarment is appropriate where, as here, there is a pattern of misconduct and a history of discipline. Additionally, cumulative misconduct of a similar nature warrants an even more severe discipline than might dissimilar conduct. Fla. Bar v. Vining, 761 So.2d 1044, 1048 (FIa.2000).

Walkden, who has been suspended since April 12, 2004, has continued to engage in the practice of law. When the Bar discovered that he was still practicing law and instituted proceedings to have him held in contempt for doing so, he continued to practice law. After a referee conducted a formal hearing to determine what the appropriate sanction should be, he continued to practice law. After the Court imposed a one-year suspension for the instances of practice which the Bar alleged and proved at the formal hearing, he continued to practice law.

Walkden’s acts of practice, which occurred after the formal hearing before the referee, i.e., after June 3, 2005, were not addressed at the formal hearing and were not considered by the Court in deciding to suspend Walkden for one year. These acts of practice are new, unsanctioned acts of contempt, even though many of them preceded the Court’s order suspending him for an additional year. His proven misconduct following the Court’s order of November 3, 2005, consisted of failing to provide the necessary parties with notice of his suspension and failing to provide the affidavit of compliance to the Bar. See R. Regulating Fla. Bar 3-5.1(g). •

The Court’s consideration of earlier acts of misconduct for which Walkden has already been sanctioned does not present a double jeopardy issue, as argued by Walk-den. The Florida Standards for Imposing Lawyer Sanctions expressly provide for consideration of other prior acts of misconduct, whether the same or different in nature, in determining the appropriate discipline. See Fla. Stds. Imposing Law Sanes. 8.1 (disbarment appropriate when lawyer intentionally violates the terms of a prior disciplinary order or has been suspended for the same or similar misconduct in the past); 9.22(a) (prior disciplinary offenses as aggravating factors); 9.22(c) (a pattern of misconduct as aggravating factor); and 9.22(d) (multiple offenses as aggravating factor).

This is the second time Walkden has come before the Court on contempt charges for continuing to practice law while suspended. The first time, the Court suspended him for an additional year. Heedlessly, Walkden continued to practice law even while those proceedings were pending against him.

The Court has sanctioned Walkden three times previously, imposing increasingly heavier sanctions, progressing from a ninety-day suspension, to a ninety-one-day suspension (for violating the terms of his probation), to a one-year suspension. The next level of discipline is disbarment.

This Court has not hesitated to disbar attorneys who have continued to engage in the practice of law while suspended. See Fla. Bar v. Forrester, 916 So.2d 647, 654 (Fla.2005) (disbarring suspended attorney for hiring an associate to sign pleadings and perform public aspects of running the law office, while directing matters from behind the scenes); Fla. Bar v. Heptner, 887 So.2d 1036, 1045 (Fla.2004) (disbarring attorney for continuing to practice while suspended); Fla. Bar v. McAtee, 674 So.2d 734 (Fla.1996) (disbarring attorney in light of his misconduct, which included practicing law while suspended, and disciplinary history). In Florida Bar v. Brown, 635 So.2d 13, 13-14 (Fla.1994), this Court stated: “Clear violation of any order or disciplinary status that denies an attorney the license to practice law generally is punishable by disbarment, absent strong extenuating factors.”

Walkden has not presented or argued the existence of any strong extenuating factors in this case. He has not offered any justification for his actions, other than the nonsensical claim that he was not authorized by the client to file the very legal action that he filed. In our view, this fact makes his misconduct more egregious, not less.

There are no factual issues that necessitate the appointment of a referee. A referee is usually appointed to serve as the fact-finder for the Court. Here, Walk-den does not dispute the facts as presented by the Bar. Many of these facts come from his own testimony at the hearing before the referee in Case No. SC04-1555. Further, many of the remaining facts are established by the documentary evidence attached to the Bar’s present petition, which Walkden concedes is accurate. In terms of judicial economy, the appointment of a referee is unnecessary.

CONCLUSION

The Florida Bar’s petition for contempt is granted. John L. Walkden is held in contempt of this Court and is immediately disbarred from the practice of law in this state for a period of five years effective, nunc pro tunc, April 12, -2004.

It is so ordered.

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

ANSTEAD, J., concurs in part and dissents in part, with an opinion.

ANSTEAD, J.,

concurring in part and dissenting in part.

I concur in the majority opinion in all respects save one: I would impose a three-year suspension for respondent’s misconduct.

      . Walkden petitioned for reinstatement in Case No. SC05-743. His petition was denied on May 4, 2006. See Fla. Bar re Walkden, 931 So.2d 901 (Fla.2006).


author: PER CURIAM. BROWNING, J.,

text:
    Ray L. MONK, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4461.
    District Court of Appeal of Florida, First District.
    March 31, 2005.
    Rehearing Denied April 5, 2005.
    Nancy A. Daniels, Public Defender; G. Kay Witt, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General; Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Simmons v. State, 886 So.2d 399 (Fla. 1st DCA 2004).

WOLF, C.J., and DAVIS, J., Concur; BROWNING, J., Concurs with written opinion.

BROWNING, J.,

concurring.

I concur only because Simmons is controlling precedent, but I believe it was incorrectly decided, as stated in my dissent in Simmons.


author: ALLEN, J. BENTON, J.,

text:
    Alan M. O’NEAL; A & J Holdings, LLC; William H. Smith; and South Walton Properties, LLC, Appellants, v. Robert E. BLACKERBY; Florida Bahama Group, LLC; Robert Blackerby & Associates, LLC; BAB Developers, LLC; BAB Developers I, LLC; BAB Developers II, LLC; BAB Developers III, LLC; BAB Developers IV, LLC; BAB Developers V, LLC; BAB Developers VI, LLC; BAB Developers VII, LLC; BAB I, LLC; and BAB II, LLC, Appellees. William H. Smith and South Walton Properties, LLC, Appellants, v. Robert E. Blackerby; Florida Bahama Group, LLC; Robert Blackerby & Associates, LLC; Alan M. O’Neal; A & J Holdings, LLC; BAB Developers, LLC; BAB Developers I, LLC; BAB Developers II, LLC; BAB Developers III, LLC; BAB Developers IV, LLC; BAB Developers V, LLC; BAB Developers VI, LLC; BAB Developers VII, LLC; BAB I, LLC; and BAB II, LLC, Appellees.
    Nos. 1D06-2524, 1D06-2465.
    District Court of Appeal of Florida, First District.
    Dec. 21, 2006.

      Major B. Harding and John R. Beranek of Ausley & McMullen, Tallahassee; and J. Nixon Daniel, III, Mary Jane Bass, and Terrie L. Didier of Beggs & Lane, RLLP, Pensacola, for Appellants Alan M. O’Neal and A & J Holdings, LLC.
    Elliott H. Scherker, Elliott B. Kula and Daniel M. Samson of Greenberg Traurig, Tallahassee; Barry Richard of Greenberg Traurig, Miami; and Jannea S. Rogers and Bradley R. Byrne of Adams and Reese, LLP, Mobile, AL, for Appellants William H. Smith and South Walton Properties, LLC.
    Jeffrey P. Whitton, Panama City; W. Dexter Douglass and Thomas Porter Crapps, Tallahassee; Philip A. Bates, Pensacola; and Martha Blackmon-Milligan, Panama City, for Appellees Robert E. Blackerby, Florida Bahama Group, LLC, and Robert Blackerby & Associates, LLC.
   ALLEN, J.

Parties in these appeals, which we hereby consolidate for purposes of rendering our decision, are members of a Florida Limited Liability Company known as BAB Developers, LLC (“the company”). The appellants challenge a nonfinal order entering partial summary final judgment and directing the immediate disbursement of proceeds from the sale of real property owned by the company. The appellants argue that the trial court erred by concluding, as a matter of law at the summary judgment stage of the proceedings below, that the sale of this property created an event of dissolution under a plain reading of the provisions of the company’s operating agreement. We reverse the order under review.

As specified in the operating agreement, the company was formed to “acquire, own, manage, control and develop real estate and the products thereof, directly or through subsidiaries, and to engage in such other activities permitted under the laws of the State of Florida.” And the agreement further provides that, unless dissolved and terminated in accordance with the provisions of section 13 of the operating agreement, the company’s duration is perpetual. Among those circumstances designated in section 13 as constituting an event of dissolution is the “sale or other disposition of all or substantially all of [the company’s] property and assets.” The agreement further specifies that the company’s net cash flow, after the payment of taxes, is to be reinvested or held for reinvestment unless the members elect to distribute the cash instead.

Following its formation, the company purchased several parcels of real property. When the subsequent sale of this real property had been finalized and a significant profit had been realized, a complaint was filed in which it was alleged that the company had sold all or substantially all of its property and assets, thereby effecting an event of dissolution pursuant to section 13 of the operating agreement. The appellants disputed that an event of dissolution had occurred, arguing that the proceeds from the sale were being held for reinvestment in accordance with the agreement and therefore constituted a substantial remaining asset of the company. They argued that there was no “disposition” of all or substantially all of the company’s assets, and that section 13 of the agreement was consequently not satisfied. The trial court disagreed, ruling as a matter of law that the operating agreement provides that profits from the sale of the company’s only property do not constitute assets of the company under section 13.

We cannot agree with this conclusion. Neither section 13 nor any other provision of the operating agreement unambiguously indicates that cash profits from the sale of company property are excluded from the term “assets.” In order to accept the trial court’s conclusion, we would be required to accord little significance to the company’s broad purpose, perpetual duration, and reinvestment objectives recited in the operating agreement, and we would also be required to ignore numerous authorities specifically defining the term “asset” to include cash.

The language of the operating agreement does not unambiguously resolve the issue of whether the sale of the real property constituted an event of dissolution. If section 13 had made reference only to the “disposition of’ all or substantially all of the company’s property and assets, there clearly would have been no event of dissolution, because the company holds substantial remaining cash assets. Conversely, if the provision had referenced only the “sale” of all or substantially all of the company’s property and assets, the trial court’s interpretation would be more compelling. But, whether read in isolation or in conjunction with the entire operating agreement, section 13 as actually written is not free from ambiguity and its meaning consequently cannot be discerned from a simple reading of the operating agreement at the summary judgment stage of this litigation.

The order under review is accordingly reversed and this case is remanded.

HAWKES, J., concurs;

BENTON, J., concurs in the judgment with opinion.

BENTON, J.,

concurring in the judgment.

I write to underscore the narrowness of today’s decision. We reverse the grant of summary judgment on grounds that controlling documents are ambiguous, so that parol evidence the parties may offer should be considered before the matter is finally decided. In doing so, we do not rule out the possibility that the trial court may end up, after all relevant evidence has been taken into account, construing the parties’ agreements in exactly the same way that they were construed in the summary judgment proceeding.