author: REYES, ISRAEL U., Associate Judge.

text:
    Barbara Ann METCALFE, Appellant, v. Spencer LEE, M.D. and Mark A. Pinsky, M.D., P.A., Appellees.
    Nos. 4D05-4033, 4D06-1582.
    District Court of Appeal of Florida, Fourth District.
    April 4, 2007.

      Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, and Bryan D. Caulfield of Perenich, Carroll, Perenich, Avril, Caulfield & Noyes, P.A., Clearwater, for appellant.
    Dinah Stein and Mark Hicks of Hicks & Kneale, P.A., Miami, Coel & Warren, P.L., Boca Raton, and Adams, Coogler, Watson, Merkel, Barry & Kellner, P.A., West Palm Beach, for appellees.
   REYES, ISRAEL U., Associate Judge.

INTRODUCTION

In this consolidated appeal, Barbara Ann Metcalfe challenges an order dismissing her medical malpractice suit against defendants Dr. Spencer Lee and Mark A. Pinsky, M.D., P.A., as a consequence of the failure to comply with Florida Rule of Civil Procedure 1.260 and timely substitute a personal representative as plaintiff in the suit following Metcalfe’s death. Metcalfe also challenges the subsequent order denying her 1.540(b) motion to set aside the dismissal. Since the issues raised pertain to the proper construction to be afforded a Florida Rule of Civil Procedure, the standard of review is de novo. See, e.g., Saia Motor Freight Line, Inc. v. Reid, 930 So.2d 598, 599 (Fla.2006).

The plaintiff/appellant contends that the language of the rule simply requires that the motion for substitution be made within ninety days, not that the actual appointment of the personal representative and the substitution occur within ninety days. The plaintiff/appellant also argues that the language of the rule permits counsel for the deceased plaintiff to file the motion for substitution. We agree as to both contentions. The rule authorizes dismissal only when there is a failure to make the motion for substitution within ninety days. Accordingly, we reverse and remand for further proceedings.

PROCEDURAL HISTORY

Barbara A. Metcalfe (Metcalfe) filed a medical malpractice suit against Dr. Spencer Lee (Lee) and Mark A. Pinsky, M.D., P.A. (Pinsky). Metcalfe later died of causes unrelated to this action. On May 9, 2005, counsel for defendant Lee filed and served on Attorney Bryan Caulfield, counsel for the deceased Metcalfe, a suggestion of Metcalfe’s death, which occurred on or about May 6, 2005.

Plaintiff’s 1.260(a) Motion for Substitution

On June 30, 2005, Caulfield served a “Plaintiffs Motion for Substitution,” asserting that “[a]n estate for Ms. Metcalfe is currently being set up by the Law Offices of Joseph Pippen, estate counsel for Plaintiff’ and that “Plaintiff is in the process of probating Plaintiffs estate and is seeking the appointment of Robert D. Metcalfe, III, as Personal Representative of the estate” and requesting that the court enter an order substituting Robert D. Metcalfe, III, as Personal Representative of the Estate of Barbara Ann Met-calfe, as the plaintiff in the malpractice suit. When counsel for the defendants declined to stipulate to the substitution, the motion was set for hearing on August 22, 2005.

Defendants’ Motion to Dismiss for Failure to Substitute Parties

On August 10, 2005, defendant Pinsky filed a “Motion to Dismiss for Failure to Substitute Parties,” relying upon Florida Rule of Civil Procedure 1.260(a)(1). Pin-sky asserted dismissal of the action was required because (1) the suggestion of Metcalfe’s death was filed and served on May 9, 2005, and, thus, the ninety-day period referenced in the rule expired on August 8, 2005, and (2) the plaintiff failed to have the personal representative substituted before the expiration of-the ninety-day period. Defendant Lee subsequently joined in the motion to dismiss. Defendants were correct that the June 30th motion was served and filed despite the fact that a probate estate had not yet been opened and Robert D. Metcalfe, III, had not yet been appointed the personal representative.

Trial Court’s Ruling

On September 8, 2005, the trial court rendered an order denying the plaintiffs motion for substitution and granting the defendants’ motion to dismiss. In making its ruling, the trial court found:

[T]he Motion for Substitution was not filed by a party with appropriate standing to bring such a motion within 90 days from the date on which the Suggestion of Death [was served], since a personal representative had not yet been appointed and counsel for the Plaintiff provided no authority for the Court to consider.

The court also found that no request for extension of time to accomplish the appointment of the personal representative was made until plaintiffs ore tenus motion at the August 22nd hearing — after the expiration of the ninety days — and that the evidence established ignorance of the law and negligence on the part of plaintiffs counsel, but not excusable neglect.

Further Proceedings

Thereafter, the plaintiff filed a motion for rehearing, an amended motion for rehearing, a second amended motion for rehearing, a third amended motion for rehearing, and, ultimately, a 1.540(b) motion to vacate the order denying the motion for substitution and granting the motion to dismiss. The motions for rehearing were denied and the plaintiff filed a notice of appeal (case number 4D05-4033). Thereafter, this court relinquished jurisdiction and the trial court entered a final judgment of dismissal.

During the pendency of the appeal, this court also relinquished jurisdiction 'so that the trial court could rule on the pending' 1.540(b) motion. Among the documents filed with the trial court in support of the 1.540(b) motion was a copy of a September 13, 2005 order appointing Robert D. Met-calfe, III, and his sister, Marianne M. Cummings, as personal representatives of their mother’s estate. Following a hearing, the trial court denied the 1.540(b) motion, and that ruling was also appealed (case number 4D06-1582). The appeals are now consolidated.

ANALYSIS

Florida Rule .of Civil Procedure 1.260(a) Florida Rule of Civil Procedure 1.260(a) provides in relevant part:

(1) If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on all parties as provided in rule 1.080 and upon persons not parties in the manner provided for the service of a summons. Unless the motion for substitution is made within 90 days after the death is suggested upon the record by service of a statement of the fact of the death in the manner provided for the service of the motion, the action shall be dismissed as to the deceased party.

Principles of Statutory Construction Applicable to the Florida Rules of Civil Procedure

It is well-settled that the Florida Rules of Civil Procedure are construed in accordance with the principles of statutory construction. See generally Brown v. State, 715 So.2d 241, 243 (Fla.1998) (“Our courts have long recognized that the rules of construction applicable to statutes also apply to the construction of rules.”). “The cardinal rule of statutory construction is that the courts will give a statute its plain and ordinary meaning.” Weber v. Dobbins, 616 So.2d 956, 958 (Fla.1993). The same applies to rules of procedure. See Stowe v. Universal Prop. & Cas. Ins. Co., 937 So.2d 156, 158 (Fla. 4th DCA 2006) (stating that the trend is to construe rules of civil procedure according to their plain meaning). In addition, a court may refer to a dictionary to ascertain the plain and ordinary meaning. See L.B. v. State, 700 So.2d 370, 372 (Fla.1997), superseded by statute on other grounds as stated in State v. AM., 765 So.2d 927 (Fla. 2d DCA 2000); Williams v. State, 378 So.2d 902, 903 (Fla. 5th DCA 1980) (declaring “the word ‘shall’ as used by the Supreme Court when establishing rules of court procedure means exactly what it usually means and as defined in an accepted dictionary”). The goal is to “strictly construe provisions to create rules that are clear-cut and easy to apply.” Stowe, 937 So.2d at 158; see also Saia Motor Freight Line, Inc., 930 So.2d at 600 (describing rule 1.525 as establishing “a bright-line time requirement for motions for costs and attorney fees”); Wilson v. Salamon, 923 So.2d 363, 367 (Fla.2005) (interpreting rule 1.420(e) “by its plain meaning” to “further the purpose of decreasing litigation over the purpose of the rule and fostering the smooth administration of the trial court’s docket”); Lamb v. Matetzschk, 906 So.2d 1037 (Fla.2005) (adopting a bright line rule concerning the form of a rule 1.442 proposal for settlement).

Standing to File the Motion for Substitution

The rule states, in pertinent part, that “[t]he motion for substitution may be made by any party or by the successors or representatives of the deceased party.” Fla. R. Civ. P. 1.260(a)(1) (emphasis added). The term “any” means “one ... selected without restriction.” Merriam-Webster OnLine, http://www.m-w.com/ dictionary. A “party” is “a person ... taking one side of a ... dispute.” Id. Thus, “any party” can be a person on one side of a dispute selected without restriction. In addition, the rule’s language also allows for the “successors” of the deceased to file the motion. The word “successors” has been defined as “[t]hose persons, other than creditors, who are entitled to property of a decedent under his will or succession statute.” Black’s Law Dictionary 1432 (6th ed.1990); see also Schwister v. Schoenecker, 258 Wis.2d 1, 654 N.W.2d 852, 858 n. 9 (2002) (stating that term “successors” is not defined by rule and that “[a] successor might include, for example, heirs or beneficiaries of a will or distributees of an estate that ha[s] been distributed”); cf. Vera v. Adeland, 881 So.2d 707, 710 (Fla. 3d DCA 2004) (stating that “as a general rule, if an estate has been opened, then the decedent’s personal representative should be substituted,” but “[i]f no estate has been opened, then another appropriate representative, such as a guardian ad litem, will need to be substituted”). A representative is one who is standing or acting for another. See Merriam-Webster OnLine, http:// www.m-w.com/ dictionary.

Thus, Metcalfe’s attorney, as her representative, was authorized to file the motion for substitution. Additionally, he was filing the motion on behalf of Metcalfe’s son. A plain reading of the rule reveals that nowhere does it state that the motion for substitution must be made by the appointed personal representative.

The Ninety-Day Filing Requirement

Having determined that the plaintiffs attorney was authorized to serve and file the motion for substitution, we must now determine if it was timely. The rule has a clear due date: “Unless the motion for substitution is made within 90 days after the death is suggested upon the record by service of a statement of the fact of the death in the manner provided for the service of the motion, the action shall be dismissed as to the deceased party.” Fla. R. Civ. P. 1.260(a)(1). A notice of hearing must accompany the motion. Id. We also note that the language of the rule does not require that the hearing be held within the aforementioned ninety-day period. A motion under this rule is deemed to be made when filed with the clerk along with the corresponding notice of hearing or when both documents are served within the ninety days. See Mut. of Omaha Ins. Co. v. White, 554 So.2d 12, 13 (Fla. 3d DCA 1989) (“In the absence of an express requirement that the motion for substitution be filed within ninety days, we conclude that the generic term ‘made,’ when read in context, contemplates that the motion for substitution is timely if served or filed within ninety days.... [T]he motion is timely even if the original does not reach the clerk for filing until the ninety-day period has elapsed.”). In addition, the motion and the notice must be “served on all parties as provided in rule 1.080[] and upon persons not parties in the manner provided for the service of a summons.” Fla. R. Civ. P. 1.260(a)(1).

Here, the suggestion of death was filed by the codefendant on May 9, 2005. Thus, the motion for substitution had to be made on or before August 8, 2005. It is undisputed that the motion for substitution and the notice of hearing were served on or about June 30, 2005, and filed with the clerk July 5, 2005, certainly before the August 8th ninety-day expiration date. It is of no import that the hearing did not occur until sometime after the ninety-day expiration due to the unavailability of one of the defendants because the motion was “made,” as we now define that term, before the expiration date of August 8, 2005.

Appropriateness of a Dismissal

Recently, the Fifth District rejected the defendants’ argument that “Rule 1.260 implicitly requires the formal appointment of an appropriate representative on behalf of the estate within the ninety days because the case cannot proceed until a successor is appointed.” Eusepi v. Magruder Eye Inst., 937 So.2d 795, 798 (Fla. 5th DCA 2006). In rejecting the argument, the court stated that “the rule language is clear about what can authorize dismissal under the rule.” Id. Also, the rule “is in its present form precisely so that the process of substitution of a new party for a party who dies while litigation is pending will not cause otherwise meritorious actions to be lost. The rule is supposed to dispel rigidity, create flexibility and be given liberal effect.” Id. (citing New Hampshire Ins. Co. v. Kimbrell, 343 So.2d 107 (Fla. 1st DCA 1977)). We find this analysis to be persuasive especially in light of the rule’s plain language as to when a trial court can dismiss an action— only when there is a failure to make a motion for substitution. Here, because the motion for substitution was timely-made, the trial court erred in dismissing the action.

CONCLUSION

If the rule had intended for only personal representatives to be able to make the motion, then it would have clearly stated that. It does not. Thus, in keeping with the established rules of construction and applying the plain and ordinary meaning of the terms therein, the bright line rule is that any party or successor or representative of the deceased person may move for substitution of a proper party during the relevant ninety-day period. Once the motion and notice of hearing are timely made, the ninety-day expiration period is extinguished, and it is then up to the trial court to decide whether there is a proper party to be substituted during the mandated hearing on the motion.

We leave for the trial courts to determine who can be “proper parties” pursuant to governing law. But, we remark that where a personal representative has been appointed, he or she is most certainly a proper party. See also Canter v. Hyman, 363 So.2d 29, 30 (Fla. 3d DCA 1978) (stating that an administrator ad litem can be appointed to avoid delay).

Having ruled that the motion for substitution was timely made, the issues regarding the trial court’s refusal to grant the plaintiffs ore tenus motion for extension of time and additional ruling that counsel for the plaintiff failed to demonstrate a basis for relief under Florida Rule of Civil Procedure 1.540 are moot.

Reversed and Remanded.

KLEIN and SHAHOOD, JJ., concur.

      . This rule also requires that "[a]ll original papers shall be filed with the court either before service or immediately thereafter.” Fla. R. Civ. P. 1.080(d).

      . We note that if a plaintiff attempts to substitute an improper party, then a court can deny the motion for substitution. Or, if the motion is granted and it is later discovered that an improper party has been substituted, that party may be dropped upon the motion of a party or by order of the court on its own initiative. See Fla. R. Civ.'P. 1.250(b), 1.420(a)(2). Under both scenarios, however, the action would abate until the party's estate, or other appropriate legal representative, has been substituted. See Cope v. Waugh, 627 So.2d 136, 136 (Fla. 1st DCA 1993) (“Upon the death of an indispensable party, the action abates until the deceased party's estate, or other appropriate representative, has been substituted pursuant to rule 1.260(a)(1).”). However, as we already stated, once a party, successor, or representative of the deceased files or serves the motion along with the corresponding notice of hearing within the required ninety-day time period, dismissal is no longer the appropriate remedy pursuant to rule 1.260.

      . Even though we need not reach those issues based on our holding today, it appears that dismissal of the decedent's action for failure to meet the ninety-day requirement might be unwarranted where decedent's counsel establishes difficulty in probating the will and appointing a personal representative so as to constitute excusable neglect under rule 1.540. See Tucker v. Firestone Tire & Rubber Co., 552 So.2d 1178, 1179 (Fla. 2d DCA 1989).


source: Caselaw Access Project

author: WARNER, J.

license: Public Domain

text:
    Jorge RUBI, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4066.
    District Court of Appeal of Florida, Fourth District.
    April 4, 2007.

      Jonathan S. Friedman of Jonathan S. Friedman, P.A., Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   WARNER, J.

When the jury deliberating appellant’s case sent a note to the judge telling him that one of their members was not following the law, the judge instructed the jurors that they must follow the law, and all of the participants were depending on them to do so. Under the circumstances of this case, where the judge had previously given an Allen charge, we conclude that this was a coercive instruction which requires reversal.

The state charged appellant with aggravated battery, alleging that he hit a bouncer in the head with a beer bottle during a fight in front of a bar. The testimony at trial was conflicting, and appellant claimed that another person hit the bouncer. The court gave a standard charge to the jury, which consisted of four women and two men.

The jury began to deliberate around 12:30 in the afternoon. Later during jury deliberations, the jury advised the court as follows: “At this time we are not able to reach a unanimous decision on this case.”

After the court and counsel discussed various possibilities on how to proceed, the court ultimately decided to bring the jurors back in to ask them whether they might reach a verdict if given more time. When the foreperson indicated that more time would not help, the court gave the Allen charge with the consent of counsel.

THE COURT: Ladies and Gentlemen of the Jury, I’m now going to instruct you as follows: I know that all of you have worked hard to try to find a verdict in this case. It apparently has been impossible for you so far.
Sometimes an early vote before discussion can make it hard to reach an agreement about the case later. The vote, not the discussion, might make it hard to see all sides of the case. We are all aware it is legally permissible for a jury to disagree.
There are two things a jury can lawfully do; agree on a verdict or disagree on what the facts of the case may truly be. There is nothing to disagree about on the law. The law is as I told you. If you have any disagreements about the law I should clear them up for you now. That should be my problem not yours. If you disagree over what you believe the evidence showed then only you can resolve that conflict if it is to be resolved.
I have only one request of you. By law I cannot demand this of you, but I want you to go back into the jury room, then, taking your turns, tell each of the other jurors about any weaknesses of your own positions. You shall not interrupt each other’s comments or each other’s views until each of you have had a chance to talk.
After you’ve done that, if you simply cannot reach a verdict then come back to the courtroom and I will declare this case a mistrial and we’ll discharge you for your services. You may now retire to continue with your deliberations. Thank you, Ladies and Gentlemen.

Thus, the trial court provided the standard Allen charge set forth in Florida Standard Jury Instruction (Criminal) 3.06 and derived from Allen v. United, States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).

The jury then exited to continue with its deliberations. Subsequently, the jury sent out another note, which stated:

We, the Jury, have the following question: One of our jurors is assuming and speculating on the evidence. Based upon his responses he is not following the law. The facts of the case is [sic] being said to not be factual and/or — ■ and/or not conceivable.

The judge observed that the note “doesn’t say they’re at an impasse.” After re-reading the note, the court stated: “My thought is to — they’re not saying that they can’t reach a verdict, they are not saying that. It’s not really a question, it’s a statement. It’s not a statement though that says they can’t reach a verdict.” The prosecutor suggested dismissing the jury for the night and simply reconvening the next morning. However, defense counsel suggested that the trial court should “just instruct the jurors that you have heard the laws that apply to this case, those are the only laws that you must apply to this case.”

The prosecutor then expressed reservations and suggested that a mistrial could be warranted in the situation:

[PROSECUTOR]: See, my concern is this, from what they’re saying I don’t think that it’s they don’t know what the law is, and, like you said, they have the instructions. It seems to me we have a juror who’s willfully disregarding what they’ve been instructed by the Court, and that could go either direction.
And, I’m thinking, I don’t know, maybe that is something that needs to be a mistrial, I don’t know.

The court then posed the following question to counsel:

THE COURT: But, I mean, both of you counsel agree that the statement, first of all, it’s not a question, even though it says it on the question sheet, it’s not a question, it’s a statement, and the statement does not indicate they can’t reach a verdict?
[PROSECUTOR]: Well, I think that’s the implication.
THE COURT: It may be, but it’s not fully stated there and that’s my concern. It says one of the jurors is not following the law.

Defense counsel suggested that the court simply repeat the instruction on following the law:

[DEFENSE COUNSEL]: My suggestion is just a brief statement to the jury that you’ve heard the law, you are to follow the law as I instructed you in order to apply it in this case. You can’t Allen charge them again. You’re not really — like you said, they’re not stating that, but I think you could read into that somewhat that they’re sort of like at a deadlock again.

During the discussion of how to handle the situation, the court noted that it was almost a quarter until 7:00. Ultimately, the trial court agreed with the defense’s suggestions, and over the objection of the prosecutor, brought the jury back to the courtroom and instructed them as follows:

THE COURT: Ladies and Gentlemen, the question I have is as follows: “One of our jurors is assuming and speculating on the evidence. Based upon his responses he is not following the law. The facts of the case is being said to not be factual and/or not conceivable.” Signed again by the foreperson.
Ladies and Gentlemen, pursuant to the instructions I previously gave you, both orally and verbally, I’m going to repeat one of those instructions. It’s under 3.10, Rules For Deliberations, Subsection 1.
You must follow the law as it is set out in these instructions. If you fail to follow the law, your verdict will be a miscarriage of justice. There is no reason for failing to follow the law in this case. All of us are depending upon you to make a wise and legal decision in this matter.
Thank you very much, Ladies and Gentlemen, you may reconvene for your deliberations. Thank you.

At 6:48 p.m., a few minutes after receiving this instruction from the judge, the jury returned a verdict of guilty.

In the appellant’s motion for a new trial, appellant contended that the trial court should have sua sponte declared a mistrial where the second instruction to the jury inappropriately directed the jury to reach a decision. The trial court denied the motion, concluding that the jury did not announce deadlock, so the court only gave one Allen charge. This appeal follows.

In giving an Allen instruction, a trial court must avoid: 1) coercive deadlines; 2) threats of marathon deliberations; 3) pressure for the surrender of conscientiously held beliefs; and 4) any implication of a false duty to decide. Roma v. State, 785 So.2d 1269, 1271 (Fla. 5th DCA 2001). This court has held that it is fundamental error for the trial court to repeat a deadlock jury instruction and send a jury back for further deliberations after it has announced a second deadlock. Tomlinson v. State, 584 So.2d 43, 45 (Fla. 4th DCA 1991). If the second note that the jury sent out is construed to be a second announcement of deadlock, then Tomlinson requires reversal. However, even if the second note does not constitute a second deadlock, the question still remains whether the circumstances show a coerced verdict.

A coerced verdict in a criminal case deprives the accused of a fair trial and is contrary to the mandate of the Declaration of Rights of the Constitution of the State of Florida. Webb v. State, 519 So.2d 748, 749 (Fla. 4th DCA 1988). A trial court should not couch an instruction to a jury or otherwise act in any way that would appear to coerce any juror to reach a hasty decision or to abandon a conscientious belief in order to achieve a unanimous position. See Thomas v. State, 748 So.2d 970, 976 (Fla.1999). The applicable standard of review is whether, under the totality of the circumstances, the trial judge’s actions were coercive. Id.

Some of the factors which courts have looked at to determine whether a juror was coerced include: 1) whether the jury was placed under time pressure to return a verdict; 2) exhortation of the jury to consider extraneous and improper factors, such as the government’s fiscal health, in arriving at a decision; 3) a potential holdout juror was isolated and demeaned for being in the minority; 4) a charge indicating that the jury was required to reach a unanimous verdict or that a juror had a duty to do so; 5) a threat of marathon deliberations; 6) whether the judge asked the jury what verdict the majority of the jurors favored; and 7) whether the judge singled out the minority jurors in imploring the jury to come to a decision. See Scoggins v. State, 691 So.2d 1185, 1189 (Fla. 4th DCA 1997), approved, 726 So.2d 762 (Fla.1999).

In Nelson v. State, 438 So.2d 1060, 1062 (Fla. 4th DCA 1983), Judge Glickstein succinctly observed:

It is the genius of our jury system that twelve impartial persons, individually, applying a subjective standard, come to a common conclusion of a defendant’s guilt beyond a reasonable doubt. This fundamental principle becomes subverted if a jury member is pressured to defer to the opinion of his peers, for unanimity is made a sham thereby. An objective standard is in effect substituted for the subjective, by virtue of the implication that the majority opinion is reasonable, and the minority unreasonable.

In reviewing the second note and the court’s instruction, we conclude that not only was the note an announcement of a second deadlock but the court’s subsequent charge amounted to coercion.

The court’s instruction pressured a holdout juror to conform to the views of his peers. The clear implication of the second note is that the jury was unable to reach a unanimous decision. The jury had singled out one of its members as the holdout and indicated that he was not following the law. The prosecutor believed that the second question indicated a continued deadlock of the jury and suggested that a mistrial may be in order. Instead, the trial court gave an additional instruction. Although this instruction is a standard instruction read at the beginning of deliberations, it appears unduly coercive to the holdout juror in the context that it was read after deliberations had progressed.

The instruction read by the court states:
You must follow the law as it is set out in these instructions. If you fail to follow the law, your verdict will be a miscarriage of justice. There is no reason for failing to follow the law in this case.
All of us are depending upon you to make a wise and legal decision in this matter.

Under these circumstances, this instruction implies that the court is agreeing with the majority that the holdout juror is not following the law, and it will be a miscarriage of justice if he fails to do so. The clear import of the instruction tells the holdout juror that he must join those other jurors who are following the law. That such coercion was successful is indicated by the announcement of a verdict only two or three minutes after deliberations resumed. This pressure on the holdout juror satisfies the test of coercion, and a coerced verdict is constitutionally impermissible. See Thomas, 748 So.2d at 980.

Even though defense counsel agreed with the charge, we still conclude that it constitutes fundamental error. As we said in Scoggins,

When confronting a claim that the jury’s verdict was unconstitutionally coerced, our fundamental error analysis depends on the constitutional analysis. If the totality of the circumstances supports the finding of improper coercion of the jury, then there has been a type of constitutional violation which is fundamental error, and per se reversible.

691 So.2d at 1189. In this case, we conclude that because the totality of the circumstances indicate juror coercion, the verdict is fundamentally and constitutionally defective, regardless of defense counsel’s failure to object.

For the foregoing reasons, we reverse the conviction and sentence of appellant and remand for a new trial.

STEVENSON, C.J., and TAYLOR, J., concur.


author: FARMER, J.

text:
    Scott R. JAY, Appellant, v. Warren R. TRAZENFELD; and Warren R. Trazenfeld, P.A., Appellees.
    No. 4D06-1711.
    District Court of Appeal of Florida, Fourth District.
    April 4, 2007.

      Ronald S. Lowy, Ronald S. Lowy, P.A., Miami, for appellant.
    Warren R. Trazenfeld, Warren R. Traz-enfeld, P.A., Miami, for appellee.
   FARMER, J.

Two attorneys of different firms hired as co-counsel dispute the division of fees due under a written contingency fee agreement that said:

“[Clients] hereby retain and employ Warren R. Trazenfeld, P.A., and Scott Jay, Esq., to pursue a legal malpractice claim against Spence, Payne, et al. and all other culpable parties. As compensation for the services rendered by our attorneys, they will be paid from the gross proceeds of any money collected a contingent fee based upon the following percentage: a) 40% of any recovery up to $1 million; b) 30% of any recovery between $1-2 million; c) 20% of any recovery in excess of $2 million .... ” [e.s.]

This fee agreement makes no distinction as to the responsibility of each attorney, and thus both appear to be equally responsible to the client for the representation. Obviously there was a recovery in the malpractice action. The total fee due from the client was deducted from the client’s share of the proceeds and part now lies in escrow. The issue is how to divide the fee between these joint counsel.

The subject of the claim for legal malpractice identified in the fee agreement was a prior tort suit in which Spence Payne had represented the client. That litigation resulted in an unsatisfied money judgment. Jay was then retained by the client to attempt collection of the judgment. During this representation, Jay discovered evidence of the malpractice claim against Spence Payne and enlisted Trazen-feld to participate in the malpractice action. Then during the malpractice litigation, Trazenfeld advanced a claim that Jay also had committed legal malpractice in his prior handling of the case, leading to the client formally terminating Jay from further representation. Jay was then added as a defendant in the malpractice litigation. But the trial court dismissed the claim against Jay. In an appeal from that decision we affirmed the dismissal, saying that “[u]nder no interpretation of these facts can Jay be liable for [malpractice] .... ” Kates v. Robinson, 786 So.2d 61, 65 (Fla. 4th DCA 2001).

On remand, the case against Spence Payne went to trial and resulted in a recovery of $485,000. After clients received their net proceeds of the recovery, Trazen-feld claimed the entire fee due under the agreement, nearly $218,000. Jay filed a notice of charging lien claiming 25% of the fee. The trial court dissolved the charging lien, citing our previous decision, the effect of which is that Jay was determined not to be entitled to any part of the fee. He appeals and we reverse.

The division of the fee is governed by the written fee contract. It is not ambiguous. It clearly provides for joint sharing between Trazenfeld and Jay without specifying that the share of each is anything other than an equal share. Although Jay was fired when Trazenfeld accused him of malpractice, our previous decision implies that his termination should be deemed unjustified. As between him and Trazenfeld, Jay must be held without cause or blame. The consequence is that under the clear text of the agreement Jay would seem to be entitled to a fixed share of 50% of the fee.

But Jay does not seek an equal share of the fee. In a striking illustration of ethical punctilio despite financial disadvantage, he explains in his argument to this court that he and Trazenfeld had an oral understanding — not then committed to writing — that Trazenfeld would be primarily responsible for the malpractice litigation and that he would be only secondarily responsible. Trazenfeld, he says, was designated to be lead counsel for trial, and he would be involved in pretrial matters and handle client communication. Thus, in spite of the clear text of the written fee agreement, Jay has requested only 25% of the fee as a secondary attorney under the Bar rule governing the division of contingency fees. See Rule 4-1.5(f)(4)(D), R. Reg. Fla. Bar. It is manifest to us that his charging lien is effective against Trazenfeld to enforce that claim.

We briefly address the legal argument consuming much of the attention of these lawyers and the trial judge. Trazenfeld argued that Jay’s only claim, if any, should be in quantum meruit under Rosenberg v. Levin, 409 So.2d 1016 (Fla.1982). Because Jay had failed to keep contemporaneous time records, Trazenfeld argued, Jay forfeited any right to a share under Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985). Rowe was cited for the proposition that time records are indispensable to a division of the fee. Under the circumstances of this case we reject this argument.

The rule of Rosenberg v. Levin applies to fees due from the client to the attorney when counsel has withdrawn before the occurrence of the contingency. By the express language of Rosenberg v. Levin the quantum meruit rule fixes the client’s obligation only when counsel has been discharged without cause before the contingency has occurred. There is no dispute in this case as to the client’s fee which has actually been paid by the client. As we have noted, the written fee agreement provides that co-counsel are jointly owed the fee. And because the contract did not specify otherwise, the division of the fee would ordinarily be equal — thus undifferentiated and fixed. Quantum meruit under Rosenberg v. Levin does not apply.

As to the failure to keep contemporaneous time records, there are circumstances when such records would not affect the result. In Searcy Denney Scarola Barnhart and Shipley v. Poletz, 652 So.2d 366 (Fla.1995), the court explained:

“In Rowe, we adopted the ‘lodestar’ method to establish a fair and reasonable attorney fee in those cases where the fee will be paid by someone other than the client who received the services.
“The conventional lodestar approach is ill-suited for the task of assessing attorney’s fees due as damages for breach of an agreement for the payment of fees because it does not allow for consideration of ‘the totality of the circumstances surrounding the professional relationship.’ ” [e.s.]

652 So.2d at 368, 868-69. Here where the fee agreement effectually makes the division, it would serve no purpose to keep such records to establish the share of each. In this kind of joint representation, counsel may recognize from the beginning of their undertaking that the amount of time spent by either will not control the division. They may even anticipate that the time of each will be unequal, but their business decision in structuring the fee division will control. As long as such a division is not unreasonable and does not violate the regulatory rules of The Florida Bar, there is no good reason why courts should resort to time records to divide the fee.

In this case, attorney Jay has been forthcoming and candid in acknowledging that by oral understanding his share was to have been only 25%. We commend him for his candor.

The order dissolving the charging lien is quashed. On remand the trial court shall enforce the charging lien against Trazen-feld to the extent of 25% of the total fee.

Reversed.

STONE and MAY, JJ., concur.

      . As the Rosenberg court explained:
      "There are two conflicting interests involved in the determination of the issue presented in this type of attorney-client dispute. The first is the need of the client to have confidence in the integrity and ability of his attorney and, therefore, the need for the client to have the ability to discharge his attorney when he loses that necessary confidence in the attorney. The second is the attorney's right to adequate compensation for work performed. To address these conflicting interests, we must consider three distinct rules.

      It is our opinion that it is in the best interest of clients and the legal profession as a whole that we adopt the modified quantum meruit rule which limits recovery to the maximum amount of the contract fee in all premature discharge cases involving both fixed and contingency employment contracts. The attorney-client relationship is one of special trust and confidence. The client must rely entirely on the good faith efforts of the attorney in representing his interests. This reliance requires that the client have complete confidence in the integrity and ability of the attorney and that absolute fairness and candor characterize all dealings between them. These considerations dictate that clients be given greater freedom to change legal representatives than might be tolerated in other employment relationships.”
      409 So.2d at 1019, 1021.

      . Under rule 4 — 1.4(f)(4)(D), the division of a contingency fee between lawyers not in the same firm is limited to 75% for the lawyer primarily responsible and 25% for the lawyer secondarily responsible. Also rule 4-1.4(g)(1) permits a division in proportion to the services performed by each lawyer even without a written agreement as to the division of the fee. Jay’s concession is entirely consistent with these rules.


author: ALTENBERND, Judge.

text:
    J.A.S., Appellant, v. STATE of Florida, Appellee.
    No. 2D06-919.
    District Court of Appeal of Florida, Second District.
    April 11, 2007.

      James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   ALTENBERND, Judge.

J.A.S. appeals an order adjudicating him delinquent for attempted burglary of a dwelling and the resulting disposition. Although the circumstances in this case certainly suggest the possibility that this juvenile intended to burglarize a home, the evidence presented was insufficient to support the adjudication. Accordingly, we reverse the adjudication and disposition.

On September 13, 2005, in the early afternoon during school hours, a man watched two teenage boys walk down a residential street. J.A.S. was one of the boys. He was a former resident of the neighborhood and was frequently seen in the area. While the man watched the two boys through a window in his home, they walked up a driveway to the house across the street.

At the house, J.A.S. jiggled the garage door handle while the other boy went to the front door. Neither boy gained entry to the house. After shaking the handle for approximately five to ten -minutes with his back to the street, J.A.S. turned around and leaned against the garage door for another few minutes. While the neighbor continued to watch the boys, they stayed in front of the house for at least another ten minutes and then simply walked down the street. The boys did not run or appear excited. All of the boys’ actions were done in broad daylight, in full view, and facing the street. Neither juvenile made an effort to conceal his actions or identity.

A few minutes later, a police officer arrived at the house in response to a signal from a burglar alarm. The neighbor who had observed the boys from across the street had not heard the burglar alarm; therefore, he did not know when it began ringing. The police investigated the scene and discovered a sliding door that was partially open at the back of the house. The description of this door in the record is confusing, but it appears that no one could get through this door from the outside because there were large, visible burglar bars between the exterior screen door and the interior sliding glass door.

The owner of the home testified that J.A.S. had once lived next door to her but did not have permission to be in her house. The sliding door was normally locked from the inside with a bolt, and she believed that the door had been pried open rather than inadvertently left open. She did not testify, however, that anyone had actually entered her home during this event.

The police examined and dusted the sliding door for fingerprints but did not recover any prints or other physical evidence to support a theory that the two boys had pried this door open. The neighbor who watched the boys only testified that they were in front of the house, approached the front door and garage door, and jiggled the garage door handle. Thus, there was no evidence J.A.S. had anything to do with the opening of the sliding door. It is not clear why the burglar alarm went off, but from the evidence presented there is nothing to suggest that the activity at the garage door was the cause.

At the close of the State’s case, the defense moved for a judgment of dismissal because the State had failed to prove J.A.S. had the intent to commit a crime. To establish a prima facie case of attempted burglary of a dwelling, the State must introduce evidence of an act committed toward an attempted, unauthorized entry into a dwelling with the intent to commit an offense therein. See §§ 777.04(1), 810.02(l)(b), (3), Fla. Stat. (2005). Intent may be inferred through a statutory presumption. Section 810.07(2) provides: “In a trial on the charge of attempted burglary, proof of the attempt to enter such structure or conveyance at any time stealthily and without the consent of the owner or occupant thereof is prima facie evidence of attempting to enter with intent to commit an offense.” In this case, the owner testified that J.A.S. did not have consent to enter the dwelling and an eyewitness placed J.A.S. on the property. The evidence, however, lacked proof of either an intent to commit an offense on the property or the stealth necessary to employ the statutory presumption.

Although “stealth” is not defined in the statute, the word normally implies activity that is surreptitious, furtive, or sly. Black’s Law Dictionary 1453 (8th ed.2004). Courts- have concluded that a defendant acted stealthily when the actions were done in a furtive or clandestine behavior to avoid discovery. See Baker v. State, 636 So.2d 1342, 1343 (Fla.1994) (ruling the evidence supported a finding of stealthy entry where defendant crept underneath a plastic tarp into a backyard surrounded by a six-foot privacy fence, broke a window “while hidden from view in the seclusion of the backyard,” and fled when alarm sounded); M.S. v. State, 774 So.2d 777, 778 (Fla. 3d DCA 2000) (inferring intent through statutory presumption of stealthy entry where defendant ran from back exit of apartment late at night); Jackson v. State, 703 So.2d 515 (Fla. 3d DCA 1997) (stating the “jury could have reasonably concluded that [defendant’s] unauthorized and unannounced entry into the victim’s house coupled with his immediate flight from the house, without explanation, when seen by the victim constituted ‘stealthy entry’ ”); Florida v. State, 522 So.2d 1039,1042 (Fla. 4th DCA 1988) (determining there was sufficient circumstantial evidence of stealthy entry where defendant entered completely enclosed and locked screened-in porch in a condominium complex with gated security).

In contrast, courts have declined to conclude the evidence showed stealthy entry where the defendant did not act in a furtive or clandestine manner. See Peters v. State, 76 So.2d 147, 148 (Fla.1954) (reversing where defendant was “more artless than stealthy” by continuously ringing the victim’s doorbell, pleading with her that he wished to talk, and trying both front and back doors before kicking out a screen in the kitchen and entering); Frazier v. State, 664 So.2d 985, 986 (Fla. 4th DCA 1995) (reasoning the stealth instruction was improper because defendant smashed through the glass door of the home in broad daylight and in the presence of the victims); Harrell v. State, 647 So.2d 1016, 1018 (Fla. 4th DCA 1994) (stating “entry was anything but stealthy, since the robber, in full view of the victim, first tried to open her locked car door, and then smashed the window”).

In this case, the two boys did not sneak up to or run away from the house. Rather, in the middle of the afternoon in plain view, the boys approached the front entrance and garage door of a house in a residential neighborhood where any passerby could observe their actions. In the house across the street, the neighbor observed them through his window for at least ten minutes. The evidence, as presented, did not directly connect them to any action that may have set off the burglar alarm and did not place them near the door that was ajar in the back of the house. Thus, while we recognize that J.A.S.’s lingering in front of the garage door and rattling the handle was suspicious, the State did not establish a prima facie case of attempted burglary because it failed to present evidence of intent to commit an offense on the property or evidence of stealth. Thus, the trial court erred in denying the motion for judgment of dismissal.

Accordingly, we reverse the adjudication of delinquency and remand with directions that J.A.S. be discharged for the offense.

Reversed and remanded.

LaROSE, J., and DAEAN, STEPHEN L., Associate Senior Judge, Concur.


author: PER CURIAM. CALOGERO, Chief Justice, KNOLL, J.

text:
    In re James Wallace SPRADLING, II.
    No. 2006-B-1971.
    Supreme Court of Louisiana.
    Jan. 26, 2007.
    Rehearing Denied April 20, 2007.
    Charles B. Plattsmier, Baton Rouge, Robert S. Kennedy, Jr., Shreveport, for Applicant.
    James W. Spradling, Tommy K. Cryer, Shreveport, for Respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

1 ¡This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against the respondent, James Wallace Spradling, II, an attorney licensed to practice law in Louisiana, as well as in Oklahoma, Texas, and Massachusetts.

On August 21, 2003, the ODC filed a petition seeking respondent’s immediate interim suspension, on the ground that he is a threat of harm to the public. The ODC’s filing stemmed from three primary areas of concern, including respondent’s transfer of funds from his law firm’s client trust account to the operating account, his reported abuse of and dependency upon alcohol, and his neglect of client matters. Respondent filed a response to the petition in which he denied any misconduct other than two recent “short-term” transfers made from the law firm’s trust account, which respondent suggested was equally the responsibility of his law partner.

On September 10, 2003, we ordered respondent to show cause before a hearing committee why the relief requested by the ODC should not be granted. Following a two-day hearing on October 7-8, 2003, Hearing Committee # 16 submitted its findings and recommendation to this court, in which it concluded that respondent had | {¡committed serious violations of the Rules of Professional Conduct, was a threat of harm to the public and his clients, and should be placed on interim suspension. On November 13, 2003, we accepted the committee’s recommendation and interimly suspended respondent. In re: Spradling, 03-2381 (La.11/13/03), 860 So.2d 1105.

On April 12, 2005, the ODC filed seven counts of formal charges against respondent. On August 3, 2005, the ODC supplemented and amended the formal charges to include additional (or alternative) allegations of misconduct regarding respondent’s handling of a legal matter for his client Kathi Boyd. As is discussed in further detail below, respondent has answered the formal charges and generally denied any misconduct.

FORMAL CHARGES

Count I

By way of background, in April 2001, respondent and Mark Frederick formed the Shreveport law firm of Spradling, Frederick & Associates. Respondent was the managing partner of the firm and a 60% equity owner, while Mr. Frederick owned the remaining 40% share. The partnership dissolved shortly after the August 2003 filing of the ODC’s petition seeking respondent’s immediate interim suspension.

In July 2003, the ODC received a complaint against respondent from Casie Mon-tagne, a bookkeeper formerly employed by the Spradling firm. Among other alleged misconduct, Ms. Montagne reported that on May 27, 2003, respondent transferred $14,000 from the law firm’s client trust account to the operating account. Similarly, she reported that respondent transferred $16,000 of client funds into the operating account on June 5, 2003. These funds were not replaced until June 9, 2003, when respondent made a $30,000 deposit into the trust account.

lain his written response to Ms. Mon-tagne’s complaint, dated August 8, 2003, respondent represented that the two transfers were “done in error” and were merely an “oversight.” However, in his testimony at the October 2003 interim suspension hearing, respondent admitted under oath that the transfers were knowingly made and that his characterization of the transfers as an “oversight” was not candid.

The ODC alleged that respondent’s conduct violated Rules 1.15 (safekeeping property of clients or third persons), 8.1(a) (a lawyer shall not knowingly make a false statement of material fact in connection with a disciplinary matter), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct.

In his answer to the formal charges, respondent denied any misconduct relating to Count I. Respondent admitted that there were two short-term transfers made from the law firm’s trust account, primarily to cover the office payroll, but he asserted that Mr. Frederick had full knowledge of the transfers. In fact, respondent stated that Mr. Frederick received approximately $9,000 of the transferred funds in order to cover his own personal financial needs. Respondent also indicated that all of the funds were replaced in the client trust account upon the funding of a bank loan obtained by the law firm. Finally, respondent admitted that he characterized the transfers as errors to the ODC “in an ill-advised effort to minimize their appearance,” but he contended that he “harbored no intent to mislead or deceive anyone regarding their impropriety.”

Count II

In February 2002, respondent was held in contempt of court and was ordered to spend 24 hours in jail for failing to attend court proceedings in a juvenile case pending in the 26th Judicial District Court for the Parish of Bossier. The ODC alleged |4that respondent’s conduct violated Rule 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct.

In his answer to the formal charges, respondent admitted that he was held in contempt for failure to appear in court; however, he stated that his failure to appear “was due to a misunderstanding, not a willful failure of duty.” Respondent denied that either his failure to appear in court or the subsequent contempt ruling constituted a violation of Rule 8.4(d).

Count III

Respondent formerly operated a law office in Longview, Texas which was staffed by a Texas attorney, James Krug. In 1999, Martin Burns, a Texas resident, retained respondent to represent him in a personal injury matter. Mr. Krug filed suit on behalf of Mr. Burns in the district court of Gregg County, Texas in February 2001. He also performed some discovery in the case. In late March 2002, Mr. Krug left respondent’s firm. Respondent subsequently failed to respond to inquiries from Mr. Burns concerning the status of his case. On June 3, 2002, the Texas district court dismissed the Burns case with prejudice after respondent failed to appear in court for trial. Respondent did not inform Mr. Burns of the dismissal of the case until April 29, 2003. Moreover, in his letter of that date, respondent failed to advise Mr. Burns of his potential malpractice claim arising out of the dismissal.

The ODC alleged that respondent’s conduct violated Rules 1.4 (failure to communicate with a client), 1.7 (conflict of interest/general rule), 1.8 (conflict of interest/prohibited transactions between client and lawyer), and 8.4(c) of the Rules of Professional Conduct.

|BIn his answer to the formal charges, respondent denied any misconduct relating to Count III. He asserted that it was not his fault Mr. Burns’ case was dismissed, but pointed out that the case was being reinstated primarily due to his efforts. Respondent also denied that he attempted to mislead Mr. Burns in his letter notifying him of the dismissal of his case. Finally, respondent objected to a “lack of jurisdiction over the subject matter” because the Burns case arose in Texas and suit was filed in a Texas court on behalf of a Texas resident.

Count IV

On September 4, 2003, respondent filed a response in this court to the ODC’s petition for interim suspension for threat of harm to the public. In his response, respondent stated that with regard to the Burns matter (subject of Count III, supra ), he had mailed Mr. Burns a letter on July 7, 2003 — prior to the filing of the petition for interim suspension — which disclosed the possibility of liability on the part of his firm arising out of the dismissal of the personal injury case. In truth, however, the letter was postmarked on August 27, 2003, after the ODC filed the petition for interim suspension. In its report following the hearing on the interim suspension, Hearing Committee # 16 made a factual finding that the letter to Mr. Burns was not actually mailed until August 27th and that respondent’s reference to the July 7th letter was intended to be misleading.

The ODC alleged that respondent’s conduct violated Rules 3.3(a)(1) (a lawyer shall not knowingly make a false statement of material fact or law to a tribunal), 3.3(a)(4) (a lawyer shall not offer evidence that the lawyer knows to be false), 8.1(a), | fland 8.4(c) of the Rules of Professional Conduct. In his answer to the formal charges, respondent denied the allegations of Count IV.

Count V

On November 6, 2002, respondent pleaded guilty to first offense DWI. He was sentenced to serve 90 days in jail, suspended, and was placed on probation for two years with conditions, including community service and completion of a driver improvement program and a substance abuse program. Respondent met all requirements of his probation and thereafter his conviction was set aside and the prosecution dismissed pursuant to La.Code Crim. P. art. 894.

The ODC alleged that respondent’s conduct violated Rule 8.4(b) (commission of a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer) of the Rules of Professional Conduct.

In his answer to the formal charges, respondent admitted that he pleaded guilty to DWI, but he asserted that mitigating circumstances exist.

Count VI

On May 29, 2003, Kathi Boyd retained respondent to represent her in a child custody and visitation matter. Ms. Boyd paid respondent $2,250 in legal fees, plus $750 for costs and expenses. On June 19, 2003, respondent appeared on Ms. Boyd’s 17behalf at a custody hearing in the 26th Judicial District Court. Respondent withdrew from the representation of Ms. Boyd after his November 2003 interim suspension; however, he failed to refund the unearned portion of the legal fee he was paid, and he failed to refund the money advanced by Ms. Boyd for costs.

The ODC later supplemented and amended the formal charges to include additional (or alternative) allegations of misconduct in the Boyd matter. First, the ODC alleged that respondent failed to deposit the $3,000 paid by Ms. Boyd in his client trust account. He also failed to respond to Ms. Boyd’s repeated demands for an accounting and itemization of the work he performed. Finally, respondent filed no pleadings during the course of the representation that required the expenditure of court costs, but he nevertheless did not refund the unused costs at the conclusion of the representation.

The ODC alleged that respondent’s conduct violated Rules 1.4, 1.5(f)(6) (failure to refund an unearned legal fee), 1.15, 8.4(c), and 8.4(d) of the Rules of Professional Conduct. In his answer to the formal charges, respondent denied any misconduct relating to Count YI.

Count VII

Jerry Rupert retained respondent’s law firm to represent him in a personal injury matter. In March 2003, respondent’s partner, Mark Frederick, negotiated a partial settlement of Mr. Rupert’s claim in the amount of $100,000. At the time the settlement was disbursed, the sum of $13,554.78 was retained in the firm’s trust account to pay LSU Medical Center, one of Mr. Rupert’s medical providers. However, respondent closed the trust account after he was placed on interim [ ssuspension in November 2003, without remitting the funds in question to the medical provider, the client, or Mr. Frederick.

The ODC alleged that respondent’s conduct violated Rules 1.15 and 1.16(d) (obligations upon termination of the representation) of the Rules of Professional Conduct.

In his answer to the formal charges, respondent denied any misconduct relating to Count VII. Respondent asserted that the funds received by Mr. Frederick and placed in the firm’s trust account were “under Frederick’s management.” Respondent denied that he converted the funds when he subsequently closed the trust account.

Hearing Committee Recommendation

Based on the evidence presented at the two-day hearing in this matter, Hearing Committee # 32 concurred in the findings of fact made by Hearing Committee # 16 following the hearing on respondent’s interim suspension. In addition, Hearing Committee # 32 made its own findings of fact, as follows:

Count I: Respondent was the managing partner of the law firm of Spradling, Frederick & Associates and was primarily responsible for the firm’s client trust account. Respondent made improper transfers from the trust account in the amount of $14,000 on May 27, 2003 and $16,000 on June 5, 2003 to cover shortfalls in the firm’s operating account. The committee was unimpressed with respondent’s attempt to minimize his culpability for the transfers by blaming Mark Frederick, his former law partner, and Henry Burns, a CPA and firm’s office administrator. Likewise, the committee rejected respondent’s argument that the transfers caused no harm to any clients because he redeposited the funds in the trust account on June 9, 2003. Based |9on these factual findings, the committee determined that respondent violated Rules 1.15 and 8.4(c) of the Rules of Professional Conduct.

Count II: Respondent admitted that he failed to timely appear for the hearing in a juvenile matter pending in the 26th Judicial District Court. Respondent was found in contempt and jailed for 24 hours by order of the district judge. Respondent placed the blame for the failure not upon himself, but on his office staff for failing to properly calendar the hearing. Further, respondent was not concerned about the inconvenience his failure to appear caused the litigants, attorneys, and court staff, but maintained his failure was in the final analysis of no moment, as his appearance was only as a curator for a “non-existent” client. Based on these factual findings, the committee determined that respondent violated Rule 8.4(d) of the Rules of Professional Conduct.

Count III: Respondent admitted that his failure to act with diligence resulted in the dismissal of Martin Burns’ Texas lawsuit; however, respondent sought to minimize his own involvement by placing blame on a Texas attorney who had responsibility for the file, and further claimed his failures were mitigated by his subsequent attempts to reopen the matter. Further, respondent claimed the public reprimand and $250 fine he received from the Texas Bar Association were sufficient punishment for his failures. Based on these factual findings, the committee determined that respondent violated Rules 1.4, 1.7, 1.8, and 8.4(c) of the Rules of Professional Conduct.

Count IV: Respondent wrote a letter to Martin Burns dated July '7, 2003 disclosing the possibility of liability on the part of respondent’s law firm due to the dismissal of Mr. Burns’ case. The letter was postmarked on August 27, 2003 and was mailed after respondent was advised of the petition for interim suspension filed by the ImODC. The committee specifically found that respondent attempted to mislead the ODC and this court in this regard. Respondent admitted that he was responsible for printing and mailing the letter, but maintained that the primary cause of the initial failure to notify Mr. Burns was not due to his own actions, but was due to the failure of his secretary and office staff in failing to send the letter as he had instructed on July 7, 2003. Based on these factual findings, the committee determined that respondent violated Rules 3.3(a)(1), 3.3(a)(4), 8.1(a), and 8.4(c) of the Rules of Professional Conduct.

Count V: Respondent admitted that he pleaded guilty to DWI, which the committee determined constituted a violation of Rule 8.4(b) of the Rules of Professional Conduct.

Count VI: Kathi Boyd contacted respondent in May 2003 to obtain legal services related to issues of child support and visitation. Respondent failed to give Ms. Boyd’s legal matter proper attention and diligence. He failed to file appropriate pleadings, despite the instructions of his client, and failed to pursue the goals of the client.

Respondent prepared and obtained Ms. Boyd’s signature on a fee agreement which was designed to be a “minimum fee contract” yet which provided for hourly bills. The minimum fee paid by Ms. Boyd was placed in respondent’s operating account, rather than his trust account. Respondent also obtained $750 from Ms. Boyd for costs; however, respondent failed to provide an accounting for sums he claimed to have expended for costs and failed to refund to the client the unused portion of the costs. Further, respondent retained the excess amount tendered as “costs” as an additional fee. When questioned as to his failure to account for the unused funds, respondent claimed he “didn’t realize” he was required to account for the funds or to [^refund the difference. After the formal hearing, respondent refunded $160.25 to Ms. Boyd for charges for paralegal services. Based on these factual findings, the committee determined that respondent violated Rules 1.5(f)(6) and 8.4(c) of the Rules of Professional Conduct.

Count VII: Respondent admitted that he was the managing partner of the law, firm of Spradling, Frederick & Associates and was primarily responsible for the firm’s trust account which held $13,554.78 in escrow to pay the medical lien for a client, Jerry Rupert., These funds were obtained from the settlement of Mr. Rupert’s personal injury claim. The medical lien was disputed but was later determined to be due and owing to LSU Medical Center. Due to the action/failure of respondent, the funds disappeared. Respondent is unable to account for the funds. The lien was subsequently paid with funds recovered by Mr. Frederick on a successful UM claim for Mr. Rupert. Mr. Rupert has not been reimbursed for the funds. Respondent claims he was never advised by Mr. Frederick that the funds were in the trust account pending the determination of the validity of the medical lien. Respondent denies conversion of the funds, but acknowledges his responsibility for his “virile share” of the loss. Respondent has taken no actions whatsoever to begin repayment of the money, maintaining the case was “not his responsibility.” Based on these factual findings, the committee determined that respondent violated Rules 1.15 and 1.16(d) of the Rules of Professional Conduct.

The committee also made factual findings which are not specifically related to the formal charges, as follows:

• Respondent stated that he has “absolutely no doubt he is seriously alcohol dependent” and stated that he has consumed no alcohol since August 8, 2003. He presents a large amount of credible written evidence as verification, | ^together with his active participation in Alcoholics Anonymous and the Lawyers Assistance Program.
• While respondent admitted “major mistakes,” he was very quick to place most of the blame for all of “his” failures on his law partner, financial assistant, secretaries, staff, and former clients.
• Mark Frederick, respondent’s former law partner, and Kathi Boyd, respondent’s former client, were found to be very credible, while respondent’s testimony was determined to be seriously lacking in candor and credibility.
• There is a pattern of misuse of the law firm’s trust account by respondent, and he had in fact and by admission advanced funds from the trust account to litigants for living expenses.
• As a factor in mitigation, respondent has a strong supportive spouse and family, who have continued to support respondent during the period of his interim suspension. Respondent is qualified to practice law in the states of Louisiana, Texas, Oklahoma, and Massachusetts. Respondent has not been able to find employment until recently, but based upon his education and experience, has been determined by a number of governmental agencies to be “best qualified” for employment, absent his suspension from the practice of law.
• In aggravation, respondent has demonstrated a pattern of misusing his trust account; has failed to acknowledge the wrongful nature of his conduct (converting money advanced for costs and expenses by Ms. Boyd and | ^converting $13,554.78 belonging to Mr. Rupert; failing to acknowledge the wrongful nature of his conduct in testimony when given the opportunity; failing to repay funds during the past 24 months); lacks remorse for his dishonesty; and demonstrated an uncooperative attitude during the proceedings.

The committee found that respondent violated duties owed to his clients, the public, the legal system, and as a professional. Respondent’s actions were knowing and intentional; only rarely can his actions be deemed negligent.

Considering the issue of an appropriate sanction, the committee observed:

... The Committee was impressed Respondent has taken large steps toward dealing with a serious alcohol problem, and understands the necessity to continue the program to avoid a relapse. The Committee was impressed with the devotion of Respondent’s spouse and her diligent and devoted efforts to assist in Respondent’s rehabilitation. While Respondent now takes the position alcoholism was a major contributor to the violations of the Professional Rules, the Hearing Committee is of the opinion such a mitigating factor is not so great as to overcome the serious, continuing, pattern of misconduct. In fact, alcohol played no part in Respondent’s behavior since August 2003. Respondent did not/ was not able to engage in employment from the time of his suspension up to approximately six months prior to the hearing.
The Hearing Committee believes the aggravating factors enumerated herein far outweigh the mitigating factors. Moreover, the Committee finds as a fact Respondent cannot be trusted in a fiduciary capacity. Thus, the aggravating factors outweigh the factor of Respondent’s efforts at rehabilitation from alcoholism.
... The Committee concludes alcohol was not the primary factor in the misconduct of Respondent. Respondent testified he ceased consuming alcohol on August 8, 2003. He sent the letter postmarked August 27, 2003 (and dated July 7, 2003) to Mr. [Burns]. In the opinion of the Committee the primary factor in the pattern of continuing misconduct were character flaws that were continually evidenced in the actions of the Respondent after his heavy consumption of alcohol had ceased. This finding is 114buttressed by repeated acts of conversion of funds, the failure to acknowledge responsibility for past actions, and the failure since August of 2003 to make any attempt toward repayment of the loss, which caused, and continues to cause substantial harm. The Committee viewed the actions of Respondent, taken as a whole, as meeting the criteria of Supreme Court Rule 19, Appendix E, Guideline # 1 [repeated or. multiple instances of intentional conversion of client funds with substantial harm].
The nature of the multiple charges and findings of fact, together with the pattern of Respondent in abusing trust/financial accounts with which he was entrusted, indicates Respondent has serious and continuing flaws in judgment and character. In the opinion of the Committee, if the Respondent' is allowed to continue the practice of law, and to exercise the responsibilities of an attorney, absent further monumental change (in attitude, professional practices and ethics), he will continue to present a clear danger to clients, the public, the legal system and the legal profession.

Based on this reasoning, the hearing committee recommended that respondent be permanently disbarred.

In response to the hearing committee’s report, the ODC agreed that permanent disbarment is an appropriate sanction, but suggested that the committee should have relied upon Guideline 2 of the permanent disbarment guidelines (intentional corruption of the judicial process, including but not limited to bribery, perjury, and subornation of perjury) rather than Guideline l. On the other hand, respondent filed an objection to nearly the entirety of the hearing committee’s report, including its factual findings, application of the Rules of Professional Conduct, and recommended sanction. Respondent admitted that he should be disciplined for his misconduct, | isincluding conversion of client funds and his DWI, but argued that he should not be permanently disbarred. Rather, respondent suggested that he should be suspended from the practice of law for a period of two to three years, with his reinstatement conditioned upon his continued sobriety.

Disciplinary Board Recommendation

The disciplinary board accepted the hearing committee’s factual findings and agreed that the committee properly applied the Rules of Professional Conduct, with the exception of the committee’s conclusion that respondent violated Rule 1.5(f) in connection with Count VI, the Boyd matter. The committee reasoned that respondent erred in failing to deposit the minimum fee paid by Ms. Boyd in his trust account; however, the board pointed out that Rule 1.5(f)(2) allows a lawyer to place a minimum fee into his operating account. The board did find that respondent violated Rule 1.5(f)(6) relative to fee disputes, because he failed to pursue the goals of the client and therefore unearned fees should have been due to Ms. Boyd. Respondent placed no funds in trust; rather, he kept the entire fee, and further, failed to account for or refund unearned costs.

The board determined that respondent violated duties owed to his clients, to the public, to the legal system, and as a professional. The board agreed with the committee that respondent acted intentionally in some instances, knowingly in others, and only rarely acted negligently. Regarding injury, the board found that respondent’s misappropriation of client funds created the potential for great harm. His failure to make any attempt to refund unearned fees and unused costs to Ms. Boyd and to repay the funds owed to Mr. Rupert continues to cause harm. By his attempts to mislead the ODC and this court, respondent engaged in a serious ethical breach |1fithat directly affects the lawyer disciplinary system and the administration of justice. Respondent’s DWI conviction reflects badly on his trustworthiness and fitness to practice law, as does his citation for contempt for failing to make appearances in court. Considering these circumstances and the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the baseline sanction for respondent’s misconduct is disbarment.

As aggravating factors, the board recognized the following: a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, submission of false evidence, false statements, or other deceptive practices during the disciplinary process, refusal to acknowledge the wrongful nature of the conduct, and indifference to making restitution. In mitigation, the board recognized the mitigating factor of personal or emotional problems related to respondent’s problems with alcohol; however, the board agreed with the committee’s assessment that the evidence fails to establish a causal link between respondent’s misconduct and his alcohol abuse.

Considering the multiple instances of conversion of client funds, but also respondent’s dishonest and fraudulent attempts to disguise wrongdoing, and the numerous aggravating factors, the board concluded that permanent disbarment is appropriate under Guidelines 1 and 2 of the permanent disbarment guidelines. The record shows that respondent converted approximately $45,000. Though the conversion in Count I was of a short duration, respondent has yet to repay Mr. Rupert and Ms. Boyd the more than $13,000 he has owed them since 2003. Respondent also created a backdated letter in an attempt to hide his earlier failure to notify his client of possible malpractice on the part of his firm. Such conduct was an intentional 117attempt by respondent to mislead the ODC and the court, as was respondent’s disingenuous explanation for the funds transfer in Count I (that the transfer was an “oversight”).

Based on this reasoning, the board recommended that respondent be permanently disbarred. The board further recommended that respondent be ordered to make restitution to Jerry Rupert and Ka-thi Boyd, and that he be assessed with all costs and expenses of these proceedings.

Respondent filed an objection to the disciplinary board’s recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992).

Respondent has filed a lengthy brief in this court in which he takes issue with nearly all of the findings which have been made by the hearing committee and the disciplinary board. These arguments must fail in light of the committee’s specific finding that “The testimony of Respondent was determined to be seriously lacking in candor and credibility.” The credibility factor was particularly important in the committee’s determination that respondent was solely responsible for the two transfers made from the law firm’s trust account to the operating account (Count I) and that respondent attempted to mislead the ODC and this court when he testified | ^concerning the July 7, 2003 letter to Martin Burns, which letter was not actually mailed until August 27, 2003, after the ODC filed its petition for interim suspension (Count IV). The committee’s findings turned in large measure on the credibility determinations it made after hearing respondent and the various witnesses testify. In disciplinary matters where credibility determinations are central to the determination of misconduct, we have rarely rejected the factual findings of the committee, observing that the committee members are “in a superior position to observe the nuances of demeanor evidence not revealed in a record” and that they “.act as the eyes and ears of this court.” In re: Bolton, 02-0257 (La.6/21/02), 820 So.2d 548. Therefore, we cannot say the hearing committee was clearly wrong when it determined, based on its credibility findings, that respondent committed the misconduct alleged in the formal charges.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

While not minimizing respondent’s other misconduct, clearly the most egregious conduct is his conversion of client funds and his submission of false evidence in this disciplinary proceeding. In In re: Harris, 03-0212 (La.5/9/03), 847 So.2d 1185, we permanently disbarred a lawyer who manufactured evidence and | iapresented perjured testimony during his disciplinary proceeding. Similarly, respondent in the instant case falsely claimed that he had notified his client of his potential malpractice liability in a letter of July 7, 2003. The hearing committee made a factual finding that this letter was not actually mailed until August 27, 2003, and that respondent had attempted to mislead the committee and this court by referencing the letter of July 7th. Moreover, it is disturbing to note that respondent lied to the ODC in his response to the complaint filed against him by his former bookkeeper, unequivocally stating that two transfers from the law firm’s trust account were made, in error and were merely an oversight. As respondent was later forced to admit, these characterizations were absolutely false.

In mitigation, respondent claims that his judgment was impaired by alcohol during the time period in which all of his misconduct occurred. Indeed, respondent’s abuse of alcohol was a primary issue of concern to the hearing committee which considered whether he should be placed on interim suspension. Nevertheless, following the hearing on the formal charges, Hearing Committee #32 was not convinced that alcohol abuse was a major contributor to respondent’s misconduct. The disciplinary board accepted this finding, noting that respondent engaged in misconduct even after he stopped drinking on August 8, 2003. We agree that this finding is supported by the record, as respondent sent the letter to Martin Burns on August 27, 2003, but dated July 7, 2003, in an attempt to conceal his earlier misconduct.

The applicable aggravating factors include the following: a dishonest or selfish motive, a pattern of misconduct, multiple offenses, refusal to acknowledge the wrongful nature of the conduct, and substantial experience in the practice of law (admitted in Louisiana in 1993). We also note that respondent has a prior disciplinary | 2nrecord arising out of a complaint filed against him alleging that he neglected a legal matter. In 1999, the complaint was referred by the ODC to the diversion program, which respondent successfully completed. The diversion matter is considered to be an aggravating factor in this ease. See Supreme Court Rule XIX, § 10(A)(9); In re: LeBlanc, 04-0681, n. 5 (La.10/14/04), 884 So.2d 552.

Respondent’s submission of false evidence in this matter, coupled with his intentional conversion of client funds, indicates he lacks the requisite honesty and integrity to practice law. Accordingly, respondent must be permanently disbarred.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that the name of James Wallace Spradling, II, Louisiana Bar Roll No. 22161, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

CALOGERO, C.J., concurs in part and dissents in part.

KNOLL, J., dissents and would impose disbarment only.

CALOGERO, Chief Justice,

concurring

in part and dissenting in part.

hi concur that respondent should be sanctioned, but I would not designate this disbarment as permanent under La. Sup. Ct. Rule XIX, Sects. 10(A)(1) and 24(A).

KNOLL, J.

dissents.

hi respectfully dissent. I would impose disbarment only.

      . Respondent has a long history of alcohol abuse dating back to approximately 1980. He stopped drinking for several months after his 2002 DWI arrest (see Count V, infra), but he resumed drinking thereafter and continued to drink until August 8, 2003, when the investigation of this matter commenced. In November 2003, respondent signed a two-year recovery agreement with the Lawyers Assistance Program; however, it is unclear from the record whether the agreement is still in effect.

      . On December 1, 2004, respondent was publicly reprimanded in Texas for neglecting the Burns legal matter and for failing to communicate with Mr. Burns, in violation of Rules 1.01(b)(1) and 1.03(a) of the Texas Disciplinary Rules of Professional Conduct. Respondent was also ordered to pay $250 in attorney’s fees to the Chief Disciplinary Counsel for the State Bar of Texas. Respondent did not notify the ODC of the Texas disciplinary proceeding.

      . The retainer agreement signed by Ms. Boyd provided that the $2,250 fee was a "minimum fee”:

        I the undersigned client, retain and employ SPRADLING, FREDERICK & ASSOCIATES to render legal advice and services in connection with divorce, child custody and property and such other matters as I later request attorney to [handle] and attorney accepts.
      Fee: The minimum attorney fee in this matter is $2,250.00.
      Services in addition to those described above, if necessary, will be charged at ... an hourly rate not less than $75.00 PER HOUR.

      . Respondent did indeed acknowledge that a living expense advance to a client was inadvertently made from the trust account; however, because respondent has not been charged with such misconduct here, it cannot be considered. See In re: Nevitte, 02-1962 (La.9/30/02), 827 So.2d 1135 ("... [w]e find the hearing committee erred in finding respondent guilty of ethical violations based on the uncharged conduct. Accordingly, we will not consider the uncharged conduct and will make no further reference to it in this opinion. Rather, we confine our opinion to the charged misconduct relating to respondent's criminal conviction.”).

      . The ODC conceded that "the evidence of conversion in this case does not warrant permanent disbarment under Guideline 1.” By way of explanation, the ODC pointed out that respondent's conversion of $30,000 in Count I was intentional but did not cause substantial harm to any clients or third parties. Conversely, respondent’s conversion of $13,000 from Jerry Rupert in Count VII caused substantial harm but cannot reasonably be said to have been intentional. Accordingly, the ODC suggested that the committee erred in relying on Guideline 1, and that it should have relied instead on Guideline 2, based upon respondent’s submission of false and fabricated evidence in this disciplinary proceeding.