source: Caselaw Access Project

author: PER CURIAM. LEWIS, J.,

license: Public Domain

text:
    In re AMENDMENTS TO RULES OF THE SUPREME COURT RELATING TO ADMISSIONS TO THE BAR.
    No. SC08-2296.
    Supreme Court of Florida.
    Dec. 16, 2010.
    J. Jeffry Wahlen, Chair, Michele A. Ga-vagni, Executive Director, and Thomas A. Pobjecky, General Counsel, Florida Board of Bar Examiners, Tallahassee, FL, for Petitioner.
    John A. Weiss, Tallahassee, FL, Responding with comments.
   PER CURIAM.

This matter is before the Court for consideration of proposed amendments to the Rules of the Supreme Court Relating to Admissions to the Bar (rules). We have jurisdiction. See art. V, § 15, Fla. Const. We amend the rules as set forth below.

The Florida Board of Bar Examiners (Board) proposes the adoption of four new rules — rule 1-12.1 (Deadlines on Weekend or Holiday); 2-13.35 (Application for Admission for Convicted Felon); 4-65.1 (Relating to Educational Qualifications); and 4-65.2 (Relating to Work Product Submission or Rules of Conduct). The Board proposes the amendment of rules 2-13.1 (Disbarred or Resigned Pending Disciplinary Proceedings); 2-13.2 (Suspension for Disciplinary Reasons); 2-13.25 (Satisfaction of Court-Ordered Restitution and Disciplinary Costs); 2-13.5 (Found Unqualified by Board); 2-14 (Reapplications for Admission); 2-29 (Stale File Fee); 3-14.1 (Filed as an Applicant); 3-14.2 (Filed as a Registrant); 3-22.5 (Board Action Following an Investigative Hearing); 3-23.6 (Board Action Following Formal Hearing); 4-22 (Part A); 4-41 (Application Requirements); 4-43.2 ($525); 4-44 (Deadline on Weekend or Holiday); 4-45 (Word Processing Accommodations); 4-46 (Examination Postponement); 4-47 (Reapplication after Postponement); 4-47.1($75); 4-47.2 ($150); 4-48 (Examination Reapplication); and 4-65 (Invalidation of Examination Scores).

The Court published the proposed amendments for comment and received one comment concerning the proposed amendment to rule 2-13.1. We decline to adopt the Board’s proposed amendments to rule 2-13.1 and adopt our own amendments to this rule. Further, we amend rule 2-13.25 as proposed and in conjunction with our modifications. We amend or adopt the remaining rules as proposed by the Board. We decline to adopt the proposed new rule 2-13.35 (Application for Admission of Convicted Felon) at this time.

The Board recommends that rule 2-13.1(Disbarred or Resigned Pending Discipline Proceedings) be amended to codify the decisions of the Court that require disbarred attorneys and attorneys who resigned pending disciplinary proceedings to be readmitted in their home states before they are eligible to seek admission to The Florida Bar. See Fla. Bar re Sanders, 580 So.2d 594, 594 (Fla.1991) (holding that the Court would “not allow the practice of law in Florida of one disbarred in his home state”); Fla. Bd. of Bar Exam’rs re Higgins, 772 So.2d 486, 487 (Fla.2000) (approving the Board’s decision that the Bar applicant was “ineligible to apply for readmission so long as he [was] disbarred in New Jersey”). Specifically, the Board proposed amending the rule to require that applicants be eligible for readmission in “each jurisdictional authority from which the person had been disbarred or had resigned” before they would be eligible for admission in Florida.

Attorney John Weiss, the sole commenter, objects to the proposed amendment on the basis that it would result in permanent disbarment of a Florida lawyer who is disbarred in Florida (but not permanently) for misconduct in Florida and who is then reciprocally disbarred in another jurisdiction where disbarment is always permanent, for example, Ohio or New Jersey. Weiss contends that the proposed amendment would, in effect, overrule the Court’s decision in Florida Board of Bar Examiners re Simring, 802 So.2d 1111 (Fla.2000).

In Simring, an attorney who had been disbarred in Florida for misconduct committed in Florida was subsequently reciprocally disbarred in New York. After the requisite five-year ineligibility period in Florida had passed, he sought to apply for readmission in Florida. The Board advised him that he was ineligible to apply for readmission in Florida until he was also eligible to apply for readmission in New York. The New York period of ineligibility at that time was seven years. The attorney petitioned for review. This Court concluded that “it would be unfair to prevent Simring from applying for readmission in Florida simply because New York imposes a longer standard disbarment period than that imposed in Florida.” Id. at 1112. We held that despite the New York period of ineligibility, Simring was eligible to apply for readmission at that time.

In its response to the comment, the Board agreed that if the proposed amendment were adopted by the Court, the applicable ruling in Simring would no longer be controlling.

In order to avoid this result and still achieve the stated purpose of the proposed amendment, we adopt a modified version as follows.

2-13.1 Disbarred or Resigned Pending Disciplinary Proceedings. A person who has been disbarred from the practice of law, or who has resigned pending disciplinary proceedings and whose resignation from practice has been accepted by the Supreme Court of Florida, in proceedings based on conduct that occurred in Florida for the disbarment or resignation, will not be eligible to apply for readmission for a period of 5 years from the date of disbarment, or 3 years from the date of resignation, such other time as is set forth by any Florida rule of discipline, or such longer period as4s-set for readmission by the jurisdictional authority by the Supreme Court of Florida. If the person’s disbarment or disciplinary resignation is based on conduct that occurred in a foreign jurisdiction, then the person will not be eligible to apply for admission or readmission to The Florida Bar until the person is readmitted in the foreign .jurisdiction in which the conduct that resulted in discipline occurred. Readmission must occur in the foreign state in which the conduct occurred even if Florida imposed discipline prior to the imposition of discipline in the jurisdiction in which the conduct occurred and even if the person would otherwise be eligible for readmission under the terms of any Florida discipline.

Rule 2-13.2 (Suspension for Disciplinary Reasons), concerning out-of-state suspended attorneys seeking admission to The Florida Bar, is amended to require suspended attorneys in foreign jurisdictions to be reinstated in their home states in order to be eligible to seek admission to The Florida Bar.

We adopt the proposed amendments to rule 2-13.25 (Satisfaction of Court-Ordered Restitution and Disciplinary Costs), subject to our modifications. In the first sentence of the first paragraph, we delete the word “payment” and replace it with the words “satisfaction in full.” The other amendments to this rule expand the kinds of restitution the applicant must satisfy to be eligible for admission to include restitution imposed in an underlying criminal case or restitution owed to a Bar-sponsored client’s security fund for payments made by the fund to the attorney’s clients as a result of the misconduct. We also delete the last sentence of the current rule, which provides: “Any request for relief from the terms of the order must be granted by the court that ordered the payment of restitution and disciplinary costs.” Except upon a showing of exceptional circumstances, the requirement to satisfy legally imposed obligations for costs and restitution should not be waived as a prerequisite for admission.

We amend rules 2-13.5 (Found Unqualified by Board) and 2-14 (Reapplications for Admission) to clarify that a denial of admission can occur by the issuance of findings following a formal hearing or by a negotiated consent judgment authorized by rule 3-23.9. Rule 2-14 is further amended to replace the reference to a fingerprint card with language requiring the electronic submission of fingerprints to have these rules conform to rule 2-21, which requires an applicant or registrant to apply or register online. See Fla. Bd. of Bar Exam’rs re Amends, to Rules of the Supreme Court Relating to Admissions to the Bar, 967 So.2d 877 (Fla.2007) (amending rule 2-21 to require online registration or application).

We amend subdivision (d) of rule 3-23.6 (Board Action Following Formal Hearing) to authorize the Board to recommend permanent denial for “extremely grievous misconduct” and to clarify its meaning. In 2006, this Court ruled that a Bar applicant should be permanently barred from admission to The Florida Bar because of the “grievous nature of the misconduct” committed by the applicant. Fla. Bd. of Bar Exam’rs re W.F.H., 933 So.2d 482 (Fla.), cert. denied, 549 U.S. 1020, 127 S.Ct. 561, 166 L.Ed.2d 411 (2006). Our amendment of this rule codifies the holding in W.F.H. The amendment also conforms the rule to The Florida Bar’s companion provision for disbarment. Rule 3 — 5.1(f) of the Rules Regulating the Florida Bar provides that permanent disbarment shall preclude readmission.

We adopt new rules 4-65.1 (Relating to Educational Qualifications) and 4-65.2 (Relating to Work Product Submission or Rules of Conduct) to provide different penalties for those applicants who either falsify their work product in an attempt to be found educationally qualified or who cheat during the Florida Bar Examination and those applicants who, perhaps unwittingly, submit to the examination when not technically qualified to do so, for example, those who are a credit short of graduation. Thus, we delete the content of rule 4-65, which does not distinguish between these two groups, but keep the title and adopt new rules to address these two groups separately. Rules 4-65.1 and 4-65.2 establish different time periods for reapplying for each group — upon proof of satisfying all eligibility requirements for those who took the test when not qualified (rule 4-65.1) and after an ineligibility period of five years for those in the other group (rule 4-65.2).

The remaining amendments are housekeeping changes for stylistic purposes only, and we adopt them without modification or discussion.

Accordingly, we amend the Rules of the Supreme Court Relating to Admissions to the Bar as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. These amendments shall take effect immediately upon release of this opinion.

It is so ordered.

CANADY, C.J., and PARIENTE, QUINCE, LABARGA, and PERRY, JJ., concur.

LEWIS, J., concurs in part and dissents in part with an opinion, in which POLSTON, J., concurs.

LEWIS, J.,

concurring in part and dissenting in part.

Historically, this Court has endeavored to establish and apply the rules with regard to admission to The Florida Bar as objectively as possible. Cf. Fla. Bd. of Bar Exam’rs in re Barry Univ. Sch. of Law, 821 So.2d 1050, 1054-55 (Fla.2002); Fla. Bd. of Bar Exam’rs in re Mass. Sch. of Law, 705 So.2d 898, 899 (Fla.1998); Fla. Bd. of Bar Exam’rs in re Hale, 433 So.2d 969, 972-73 (Fla.1983); LaBossiere v. Fla. Bd. of Bar Exam’rs, 279 So.2d. 288, 279 (Fla.1973). This tends to eliminate uncertainty and provides standards and guidelines that may be clearly understood and equally applied. The majority departs from that approach today and creates a standardless window for the readmission to The Florida Bar of wayward lawyers who have been found to have stolen from clients, convicted of crimes, and ordered to pay restitution. Buried on page five of the majority opinion, the Court amends and modifies an otherwise clear proposed rule with regard to the readmission of disbarred, suspended, and resigned pending discipline wayward lawyers, and adds a standardless window that can now only be defined through unnecessary litigation.

The Florida Board of Bar Examiners proposed a clear and objective rule with regard to criteria for proof of payment of restitution and disciplinary costs as a condition for eligibility to apply for readmission to The Florida Bar of wayward lawyers who had previously been disbarred, resigned pending disciplinary proceedings, or who had been suspended. Under the proposed rule, wayward individuals in the disbarred, resigned, or suspended category would not be eligible to apply for readmission without proof of payment of previously assessed restitution and disciplinary costs — a simple, clear, and well — informed proposal that is supported by reason and common sense.

My experience on this Court informs that restitution is normally found in circumstances where lawyers have stolen from their clients in some manner. Stealing in the form of illegally draining trust accounts or taking money for unfulfilled promises of legal services — stealing nonetheless. We have also seen lawyers who have accepted enormous amounts of cash contrary to the interests of clients and our rules of discipline be subject to orders to return the ill-gotten gain. We do not normally see an order of restitution with regard to a lawyer misconduct matter unless the lawyer has actually received an illicit benefit. These are not normally simple issues of malpractice or negligence, but involve intentional behavior designed to enrich the subject lawyer.

In a similar manner, I have never seen disciplinary costs assessed unless it has been determined with finality that the lawyer has violated our code of professional responsibility. The proposed rule is simple enough, if a lawyer is determined to have enriched himself or herself at the expense of a client, pay it back before seeking to be readmitted to The Florida Bar. If a lawyer is found to have violated our code of professional responsibility and the proceedings to determine that wrongful conduct have caused costs and expenses advanced from the dues of all members — pay the costs before seeking readmission. See Fla. Bar v. Gussow, 519 So.2d 603, 604 (Fla.1988); Fla. Bar v. Baker, 529 So.2d 1097, 1097 (Fla.1988); see also Fla. Bd. of Bar Exam’rs in re Simring, 802 So.2d 1111, 1112-13 (Fla.2000).

In the past, disciplined lawyers have proffered all types of excuses in attempting to delay and avoid repayment. We have also seen the involvement of the Clients’ Security Fund produce unacceptable partial payment proposals based not on merit, but on issues of cash flow that a partial payment may assist but not in a manner necessarily equal to the gravity of the misconduct. Members of The Florida Bar would be surprised, and the typical Florida citizen would be outraged, if the requests and proposals we have seen were approved.

I suggest rules should be clear and objective to aid a process. Today, this Court unilaterally throws an “exceptional circumstances” blanket over the matter of restitution and disciplinary costs, an issue that deserves firm enforcement but now simply promises more unnecessary litigation for an area of lawyer regulation and bar readmission that once again undermines this profession and its reputation. Unfortunately, we will not know the true parameters of “exceptional circumstances” for years to come, but it is certain that the concept will be found in the “subjective eye of the beholder.” I dissent with regard to the unilateral modification.

POLSTON, J., concurs.

APPENDIX

Rule 1. General

1-12.1 Deadlines on Weekend or Holiday. If a deadline described in these rules falls on a Saturday, Sunday, or holiday, then the deadline will be extended until the end of the next business day.

Rule 2. Application requirements

2-13.1 Disbarred or Resigned Pending Disciplinary Proceedings. A person who has been disbarred from the practice of law, or who has resigned pending disciplinary proceedings and whose resignation from practice has been accepted by the Supreme Court of Florida, in proceedings based on conduct that occurred in Florida for the disbarment or resignation, will not be eligible to apply for readmission for a period of 5 years from the date of disbarment, or 3 years from the date of resignation, _such_otíiOTjime_asjsjetforüi_b^mr^ Florida rules of discipline, or such-longer period as — is-set for readmission — by- the jurisdictional authority by the Supreme Court of Florida. If the person’s disbarment or disciplinary resignation is based on conduct that occurred in a foreign jurisdiction, then the person will not be eligible to apply for admission or readmission to The Florida Bar until the person is readmitted in the foreign jurisdiction in which the conduct that resulted in discipline occurred. Readmission must occur in the foreign jurisdiction in which the conduct occurred even if Florida imposed discipline prior to the imposition of discipline in the other jurisdiction and even if the person would otherwise be eligible for readmission under the terms of any Florida discipline.

2-13.2 Suspension for Disciplinary Reasons. A person who has been suspended for disciplinary reasons from the practice of law in a foreign jurisdiction is not eligible to apply until expiration of the period of suspension. If the person’s suspension occurred in the person’s home state, then the person is not eligible to apply for admission to The Florida Bar until the person is reinstated to the practice of law in the person’s home state.

2-13.25 Satisfaction of Court-Ordered Restitution and Disciplinary Costs. Except upon a showing of exceptional circumstances, a person who was disbarred, resigned with pending disciplinary proceedings, or was suspended in Florida or from a foreign jurisdiction will not be eligible to apply except on proof of paymentsatisfaction in full of any restitution and disciplinary costs-imposed by a court in its order of disbarment-resignation, or ■ suspension. — Restitution consists of the following:

(a) restitution imposed by a court in its order of disbarment, resignation, or suspension;

(b) restitution ordered by a court in any underlying criminal case that resulted in the disbarment, resignation, or suspension; and

(c) restitution owed for the payment of any claims by the Clients’ Security Fund in Florida or by a similar bar fund in a foreign jurisdiction. Any request for relief from the terms of the order must be granted by the-court that ordered the payment of restitution and disciplinary-costs.

Exceptional circumstances may be established by showing that the applicant has made diligent, good-faith efforts to satisfy the restitution and costs obligation and has demonstrated a consistent commitment to fully satisfy the obligation; the applicant has entered a payment plan which insures satisfaction in full as soon as practicable; and the payment plan is necessary to protect the interests of any person or entity entitled to payment.

2-13.5 Found Unqualified by Board. Any applicant or registrant, who was previously denied admission by the board by a negotiated consent judgment or through a “Findings of Fact and Conclusions of Law” that has not been reversed by the Supreme Court of Florida, may reapply for admission by filing a new Bar Application after 2 years or such other period as may be set in the consent judgment or the Findings. The applicant or registrant will be eligible to take the General Bar Examination during the disqualification period.

2-14 Reapplications for Admission. Any applicant or registrant who was previously denied admission by the board by a negotiated consent judgment or through a “Findings of Fact and Conclusions of Law” that has not been reversed by the Supreme Court of Florida may reapply for admission by filing a new Bar Application after 2 years or such other period as may be set in the consent .judgment or the Findings. The new application must be filed on the form available on the board’s website with current references, a submission of fingerprints card: in the format required by the board, any supplemental documents that the board may reasonably require, the applicable fee, and a detailed written statement describing the scope and character of the applicant’s evidence of rehabilitation as required by rule 3-13. The statement must be sworn and may include corroborating evidence such as letters and affidavits. Thereafter, the board will determine at an investigative hearing, a formal hearing, or both, if the applicant’s evidence of rehabilitation is clear and convincing and will make a recommendation as required by rule 3-23.6. In determining whether an applicant should appear before an investigative hearing panel, a formal hearing panel, or both, the board is clothed with broad discretion.

2-29 Stale File Fee. An applicant whose Bar Application has been on file for more than 3 years is required to file a new Bar Application on the form available on the board’s website with current references, a submission of fingerprints eaí4 in the format required by the board, any supplemental documents that the board may reasonably require, and the applicable fee.

(a)-(b) [No Change]

Rule 3. Background investigation

3-14.1 Filed as an Applicant. Applicants are required to file complete and sworn Bar Applications. Transcripts required by this rule must be sent directly to the board from the educational institutions. The application will not be deemed complete until all of the following items have been received by the board:

(a)-(b) [No Change]

(c) an official transcript of academic credit from each law school attended including the law school certifying that the applicant has received the degree of bachelor of laws or doctor of jurisprudencej-and-an official transcript-fr-em each ■ post-see-ondary- institution-attended subsequently? which-must be sent-direetly from the-institution;

(d) if the applicant received an undergraduate degree, then an official transcript from the institution attended that awarded the applicant- an undergraduate degree,-4f the degree was awarded, which must be sent directly from the awarding institution;

(e)-(f) [No Change]

(g) supporting documents and other information as may be required in the forms available on the board’s website, and other documents, including additional academic transcripts, as the board may, in additionT reasonably require.

3-14.2 Filed as a Registrant. A registrant is required to file a complete and sworn Registrant Bar Application. Transcripts required by this rule must be sent directly to the board from the educational institutions. The application will not be deemed complete until all of the following items have been received by the board:

(a) [No Change]

(b) if the applicant received an undergraduate degree, then an official transcript from the institution attended that awarded the registrant an undergraduate degree,-# the^ degree was awarded,-which must be sent-directlyfrom the awarding-institution; and

(c) supporting documents and other information as may be required in the forms available on the board’s website, and other documents, including additional academic transcripts, as the board may, in addition, reasonably require.

3-22.5 Board Action Following an Investigative Hearing. After an investigative hearing, the board may make any of the following determinations:

(a) [No Change]

(b) The board will offer to the applicant or registrant a Consent Agreement in lieu of the filing of Specifications pertaining to drag, alcohol, or psychological problems and subject to the provisions of rule 5-15. In a Consent Agreement, the board is authorized to recommend to the court the admission of the applicant who has agreed to abide by specified terms and conditions on admission to The Florida Bar.

(c)-(d) [No Change]

3-23.6 Board Action Following Formal Hearing. Following the conclusion of a formal hearing, the board will promptly notify the applicant or registrant of its decision. The board may make any of the following recommendations:

(a)-(c) [No Change]

(d) The applicant or registrant has not established his or her qualifications as to character and fitness and that the applicant or registrant be denied admission to The Florida Bar. In cases-of denial, aA 2-year disqualification period is presumed to be the minimum period of time required before an applicant or registrant may reapply for admission and establish rehabilitation. In a cases-involving significant mitigating circumstances, the board has the discretion to recommend that the applicant or registrant be allowed to reapply for admission within a specified period of less than 2 years. In a cases-involving significant aggravating factors (including but not limited to material omissions or misrepresentations in the application process), the board has the discretion to recommend that the applicant or registrant be disqualified from reapplying for admission for a specified period greater than 2 years, but not more than 5 years. In a case involving extremely grievous misconduct, the board has the discretion to recommend that the applicant or registrant be permanently prohibited from applying or reapplying for admission to The Florida Bar.

Rule 4. Bar examination

4-22 Part A. Part A will consist of 6 one hour segments. One segment will include the subject of Florida Rules of Civil and Criminal Procedure and the Florida Rules of Judicial Administration 2.330051, 2.420060, and 2.505160, and 2,515. The remaining 5 segments, each of which will include no more than 2 subjects, will be selected from the following subjects including their equitable aspects:

(a)-(m) [No Change]

4-41 Application Requirements. By the applicable filing deadline prescribed in rule 4-42 or the late filing deadline prescribed in rule 4-43, each applicant desiring to take the General Bar Examination for the first time must submit to the board either the complete Bar Application or, in the case of law student registrants, the Supplement to Registrant Bar Application, the appropriate applicant filing fee, a current 2" x 2" photograph of the applicant, and submission of fingerprints in the format required by the board, taken-on a eard-provided by the board-and-certified by-an-authorized law-enforeement-officer.' By the same date,- each applicant seeking reexamination-must submit to the-board a Reoxamination-4^pplication as prescribed in rule 4^18. — If the photograph furnished by the applicant with the Bar Application or the Supplement to Registrant Bar Application no longer is -current, by-such-date ■the applicant also -must submit to the board a-current 2--X-2" photograph of the applicant

4-43.2 $625. If the Bar Application, Supplement to Registrant Bar Application, or Reexamination Application, as applicable, is postmarked or received after December 15 but on or before January 15 for the February examination or after June 1 but on or before June 15 for the July examination, the fee is $625. No Bar Application, Supplement to Registrant Bar Application, Reexamination Application, appropriate applicant filing fee, 2" x 2" photograph, or submission of fingerprints card will be deemed to have met the late filing deadline if postmarked after January 15 for the February examination, or after June 15 for the July examination.

4-44 — Filing Deadline on Weekend or-Holiday, — If the -examination filing-deadline falls- on a Saturday, Sunday, or holiday, then the-deadline will be extended until -the end of the next business-day,

4-4544 Computer Option. Applicants are permitted the use of a laptop computer with software designated by the board to complete answers to the essay portion of the General Bar Examination. Applicants seeking to use a laptop computer must complete a form available on the board’s website and pay a fee of $125.

4-4645 Examination Postponement. Applicants seeking to postpone the taking of an individual part or the entire General Bar Examination must file a written request with the board. The applicable postponement fees based on the received date of the postponement request are set forth in rule 4-46 below. Applicants who fail to request a postponement or who untimely request a postponement received by the board after the commencement of the bar examination Postponement of taking-an-individual part.or — the ■ entire General-Bar Examination will~be accommodated on receipt of-written notice in advance -of — the General Bar.Examination. — The date-of receipt-ef notice-will define the applicable postponement fee due when refiling-for- a future examination. — Any-applicant who files an -untimely — postponement received after commencement of the General Bar Examination, and-any applicant who has been issued a ticket to the examination-and who-fails to show for that bar examination must reapply under rule 4-4847 and pay the $375 reapplication fee.

4-4746 Reapplication after Postponement. Applicants seeking to reapply after postponing as indicated above will be permitted admission into another General Bar Examination on filing with the board the Reexamination Application on the form available on the board’s website and receipt payment of the applicable postponement fee. In-order tTo be timely filed, the completed application and appropriate fee must be postmarked or received by the examination filing deadline. If the Reexamination Application is not postmarked or received on or before the filing deadline or if filed incomplete, the appropriate examination late filing fee must be included. Jf requested by the board, an applicant will submit a current photograph. The fee payable with the Reexamination Application will be as follows^,

(a) If the board receives the applicant’s written notice of postponement under rule 4-45 at least 7 days before the commencement of the administration of the postponed examination, the fee is $100.

(b) If the board receives the applicant’s written notice of postponement under rule 4-45 prior to but less than 7 days before the commencement of the administration of the postponed examination, the fee is $200.

4-47.1 — $10Q.-If~the applicant’s-wrltten notice-of- postponement under rule 4-46 is received by the board at least 7 days before-the commeneement-of the administration of the postponed-examination — the fee ⅛ <tifin 2.0 IIjJLUu.

4-47.2 — $200. If the applicant’s-wrltten notice of postponement under rule-4-46 is received by the-board prior to but less than 7 days before the commencement of the administration of the postponed examination, the fee -is-$200.

4-4847 Examination Reapplication. Applicants not covered by rule 4-46 and seeking to reapply for repeat all or part of second administration-of the General Bar Examination, or those who untimely-postponed--or failed to — show for a previous administration-of-the-General Bar-Examination,- will be permitted admission into another General Bar Examination on filing a Reexamination Application on the form available on the board’s website and payment of the reapplication fee of $450. In order-tTo be timely filed, the completed Reexamination Application and fee must be postmarked or received by the examination filing deadline. If the Reexamination Application is not postmarked or received on or before the filing deadline or if filed incomplete, the appropriate examination late filing fee must be included. If requested by the board, an applicant will submit a current photograph.

4-65 Invalidation of Examination Scores. — If an-applicant is found-by the Board after an investigation under rule 3-20 to be in violation of rule 4 — 13.1, to have made a material misstatement or omission under rule 4-13.4,-or to have-violated the examination-administration rules of conduct in rale-4-51, the results of the Florida Bar Examination will- be invalidated. — The applicant-will not be eligible to submit another -work-product (if in.violation of rule 4-13.4) or submit to another examination for a period of 5 years-from the date that the hoard-delivered its adverse Findings or the period of time as-may be set in the Findings-

4-65.1 Relating to Educational Qualifications. If an applicant is found by the board after an investigation under rule 3-20 to be in violation of rule 4-13.1, the results of the Florida Bar Examination will be invalidated. Once the results are invalidated and subsequent to providing evidence that all eligibility requirements have been met, the applicant will be permitted to resubmit to the General Bar Examination by filing a new application and the reapplication fee.

4-65.2 Relating to Work Product Submission or Rules of Conduct. If an applicant is found by the board after an investigation under rule 3-20 to have made a material misstatement or omission under rule 4-13.4, or to have violated the examination administration rules of conduct under rule 4-51, the results of the Florida Bar Examination will be invalidated. The applicant will not be eligible to submit another work product (if in violation of rule 4-13.4) or submit to another examination for a period of 5 years from the date that the board delivered its adverse Findings or the period of time set in the Findings.

      . The term "home state” refers to the jurisdiction in which the misconduct occurred. Fla. Bd. of Bar Exam’rs re: Webster, 3 So.3d 1058, 1061 (Fla.2009).


author: STEVENSON, J.

text:
    Charles ROBESON, an individual, and McDonald’s USA, L.L.C., a foreign corporation, Petitioners, v. H. Keith MELTON, an individual, Mark M. Watson, an individual, and Melton Management, Inc., a corporation, Respondents.
    No. 4D09-2552.
    District Court of Appeal of Florida, Fourth District.
    Nov. 18, 2009.
    Christian C. Burden of DLA Piper LLP, Tampa, for petitioners.
    Catherine C. Grieve of Goldstein, Tanen & Trench, P.A., Miami, for respondents.
   STEVENSON, J.

McDonald’s USA, L.L.C., and Charles Robeson, defendants below (collectively “Defendants”), seek certiorari review of a non-final order, denying, in part, their motion to stay the proceedings in favor of a federal lawsuit, which McDonald’s previously filed against Keith Melton, Mark Watson, and Melton Management, Inc. (“the Melton group”). The order granted a stay in favor of McDonald’s, but denied the stay as to Robeson. Defendants challenge that part of the order that denied the stay as to Robeson. We grant the petition.

The federal action

The facts involving the two lawsuits are somewhat lengthy, but are summarized for our analysis. On November 18, 2008, McDonald’s filed an action against the Melton group in the United States District Court for the Middle District of Florida for breach of a release agreement, declaratory judgment, and damages for violation of Florida’s anti-wiretapping law. McDonald’s federal complaint alleged that the Melton group operated certain franchises in Florida. McDonald’s breach of contract count alleged that when the Melton group began complaining about the financial performance of their franchise in Delray Plaza, McDonald’s agreed to provide financial assistance in the form of temporary rent reduction and a lump sum distribution, but required the Melton group to execute a general release. McDonald’s further alleged that, immediately prior to execution of the release, representatives of the Melton group met with Robeson, expressing concern over whether Baywinds, another franchise scheduled to open in December, would generate sufficient sales. Robeson told them they did not have to accept Baywinds if they were concerned, but the Melton group accepted it nonetheless. Less than three months later, they began to complain about the performance of that restaurant. Subsequently, the Melton group demanded that McDonald’s compensate them for losses at the two restaurants and the reduction in value of other franchises, which they had been operating pri- or to signing the release. McDonald’s refused to comply, and the Melton group retained counsel and threatened to sue. McDonald’s sought damages for the alleged breach of the release agreement.

McDonald’s second count was for declaratory relief, asserting that the Melton group’s position — that Robeson offered permanent rent relief and made representations creating a fiduciary relationship— would essentially rewrite the franchise agreement, which states that McDonald’s makes no representations as to the profitability of a restaurant. Count three claimed that the Melton group recorded their conversations with Robeson concerning the franchises without the authorization of Robeson or McDonald’s, in violation of Florida’s anti-wiretapping law.

The state action

On December 28, 2008, more than a month after McDonald’s filed its lawsuit in federal court, the Melton group filed this circuit court action against McDonald’s and Robeson, alleging that Robeson, a vice president of McDonald’s, accepted personal responsibility for the failure of one new franchise to meet projections, its impact on an existing one, and the prospective similar failure of a newer franchise and its prospective impact on another existing one. Robeson allegedly represented, on behalf of McDonald’s, that he would make the Melton group “whole” as to lost income and lost value as to those franchises, but he never did. The eight-count complaint filed from this nucleus of facts includes claims against Robeson for breach of fiduciary duty, fraud and misrepresentation, claims against McDonald’s for vicarious liability based on Robeson’s conduct, and claims against both Robeson and McDonald’s for fraud in the inducement and tortious interference with prospective business advantage in connection with the proposed sale of some of its franchises, which their actions allegedly defeated.

The federal action was filed and served first. After filing the instant state court action, the Melton group, defendants in the federal action, moved to dismiss and/or stay the federal action, claiming it would not resolve all the issues between the parties, but all the parties were before the Florida court (including Robeson, who was not a party to the federal action); McDonald’s had filed first in order to forum shop a case that otherwise could not be removed to federal court; there were no federal issues in the case; the Florida court could determine the rights and liabilities of all the parties; and factual issues predominated.

Defendants filed their motion to stay the proceedings in state court, due to the pen-dency of the earlier-filed federal action, citing authority that a subsequently filed state action should be stayed when a previously filed federal action is pending between substantially the same parties on substantially the same issues. They represented that the federal court was in the process of considering the Melton group’s motion to stay or dismiss the federal lawsuit, which was fully briefed. In its response in opposition to that motion, McDonald’s took the position that the fact that Robeson was not a party was not significant, as the federal court could exercise supplemental jurisdiction over any claim that the Melton group sought to assert against him.

In the state court action, the Melton group opposed Defendants’ motion to stay proceedings, contending Robeson was hoping to escape liability; McDonald’s was engaged in forum shopping; the parties were not identical; the claims were different; and McDonald’s had filed two frivolous claims in a case which could not have been removed to federal court because Robeson is a Florida resident. The Melton group further argued that the only federal claim similar to the Florida claims is the claim by McDonald’s for declaratory judgment, in which it attempted to anticipate the claims which the Melton group would file against it, and was, therefore, better suited for a defense. The Melton group suggested that the federal court would likely stay or dismiss the action after properly considering the appropriate factors enunciated in Ameritas Variable Life Insurance Co. v. Roach, 411 F.3d 1328 (11th Cir.2005), describing when a federal court should decline to exercise discretionary jurisdiction of a declaratory action in favor of a subsequently filed parallel state court action.

The trial court granted the stay as to McDonald’s, but denied the motion as to Robeson and ordered him to respond to the amended complaint within ten days. Defendants sought certiorari relief and this court has accepted jurisdiction. REWJB Gas Invs. v. Land O’ Sun Realty, Ltd., 643 So.2d 1107, 1108 (Fla. 4th DCA 1994) (reviewing order staying eviction case, pending the outcome of another suit, and denying certiorari relief), rev. dismissed sub nom. Williams v. Williams, 651 So.2d 1197 (Fla.1995); see also Pilevsky v. Morgans Hotel Group Mgmt., LLC, 961 So.2d 1032, 1033 n. 1 (Fla. 3d DCA 2007) (quashing order denying stay, where previously filed New York lawsuit would resolve most of the issues in the action).

First, Defendants argue that one court ordinarily will not consider a controversy over which another court has already obtained jurisdiction. Shooster v. BT Orlando Ltd. P’ship, 766 So.2d 1114, 1115 (Fla. 5th DCA 2000). This principle promotes comity between courts and prevents unnecessary litigation. Hirsch v. DiGaetano, 732 So.2d 1177, 1178 (Fla. 5th DCA 1999); Beckford v. Gen. Motors Corp., 919 So.2d 612, 613 (Fla. 3d DCA 2006). Second, Defendants maintain that, assuming it is proper to stay the Florida action, the Florida action should have been stayed in its entirety. Compare Pilevsky, 961 So.2d at 1035 (quashing order denying stay, though additional parties — the investors and officers of the corporate plaintiff in the New York action — were named as defendants in the Florida action; policy against forum-shopping “would be meaningless if a party could avoid the dictates of comity by simply naming nominal defendants in a second-filed action”). Defen-

dants argue the Melton group would not be prejudiced by a stay and the federal court could exercise supplemental jurisdiction over any counterclaims against Robeson. See 28 U.S.C. § 1367.

In their response, the Melton group asserts Robeson lacks standing to request a. stay of the instant Palm Beach County proceeding pending the federal court’s ruling simply because he is not a party to the federal action. The Melton group contends there is no need for the federal court to reach out for expanded jurisdiction over Robeson by means of their filing a counterclaim against him, when all parties already are before the state court. Ameritas Variable Life Ins. Co., 411 F.3d at 1331 n. 5. Thus, they argue, the trial court did not depart from the essential requirements of law in denying Robeson’s request for a stay.

Defendants reply that Robeson does have standing because he has a sufficient interest at stake in the controversy. He is a central witness in both lawsuits, and his duplicative participation would be necessary if both lawsuits proceed. At any rate, the Defendants argue that clearly McDonald’s has standing to request a stay in the Palm Beach County circuit court and simply adding a party to a later filed suit does not control the issuance of a stay. See Pilevsky, 961 So.2d at 1035 (no requirement of identity of parties between two actions where parties were substantially similar and resolution of issues in first-filed action would resolve many of issues in second-filed action); Ricigliano v. Peat, Marwick, Main & Co., 585 So.2d 387, 387 (Fla. 4th DCA 1991) (disparity in parties between two actions did not require denial of stay where the basis for the two actions were the same). Additionally, the Defendants maintain that the Melton group’s arguments that their claims against Robeson stand on their own does not square with their position that McDonald’s is vicariously liable for the same claims. Defendants point out that the Melton group has asserted the similarity of the two proceedings in their own motion to stay or dismiss the federal action.

The trial court wisely stayed the Melton group’s action against McDonald’s. See Beckford, 919 So.2d at 613 (“It is well-settled that when a previously filed federal action is pending between substantially the same parties on substantially the same issues, a subsequently filed state action should be stayed pending the disposition of the federal action.”). We believe that the Defendants’ arguments are well-taken and thus conclude that the trial court abused its discretion in not also staying the action as to Robeson. The issue of whether the federal action should be stayed or dismissed is currently pending in that court. Given the kinds of claims asserted in each complaint, the federal court may ultimately grant the Melton group’s motion to stay or dismiss the federal action pending the resolution of the state action. However, until the federal district court rules, the trial court should stay the entire subsequently filed and substantially related state action, not just that part of the lawsuit pending against McDonald’s. Otherwise, it is possible that the federal court will retain jurisdiction and the result will be two duplicative proceedings with the possibility of inconsistent results.

Accordingly, the petition for writ of cer-tiorari is GRANTED.

WARNER and CIKLIN, JJ., concur.

      . The factors listed in that opinion include: the strength of the state's interest in having the issues raised in the federal declaratory action decided in the state courts; whether the judgment in the federal declaratory action would settle the controversy; whether the federal declaratory action would serve a useful purpose in clarifying the legal relations at issue; whether the declaratory remedy is being used merely for the purpose of "procedural fencing" — that is, to provide an arena for a race for res judicata or to achieve a federal hearing in a case otherwise not removable; and other factors. 411 F.3d at 1331.


author: PER CURIAM.

text:
    Henry BOLDEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1489.
    District Court of Appeal of Florida, Fourth District.
    June 9, 2010.
    Henry Bolden, Raiford, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Anthony v. State, 980 So.2d 610 (Fla. 4th DCA 2008); see also Florida v. Powell, — U.S. -, 130 S.Ct. 1195, 175 L.Ed.2d 1009 (2010).

POLEN, DAMOORGIAN and CIKLIN, JJ., concur.


text:
    James TULLIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2786.
    District Court of Appeal of Florida, Fifth District.
    June 15, 2010.
    James S. Purdy, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    James Tullís, Jasper, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See LeGrand v. State, 81 So.3d 924, 926 (Fla. 1st DCA 2010).

MONACO, C.J., TORPY and COHEN, JJ., concur.


author: POLEN, J.

text:
    Elwood J. COOPER, Appellant, v. TOWN OF JUPITER, City of Boynton Beach, and City of Lake Worth, Appellees.
    No. 4D09-198.
    District Court of Appeal of Florida, Fourth District.
    June 16, 2010.

      Elwood J. Cooper, Coleman, pro se.
    Karen E. Roselli and Thomas J. Baird of Law Offices of Baird & Roselli, North Palm Beach, for appellee Town of Jupiter.
    James A. Cherof and Shana H. Bridge-man of Goren, Cherof, Doody & Ezrol, P.A., Fort Lauderdale, for appellee City of Boynton Beach.
    Elaine A. Humphreys, Acting City Attorney, Lake Worth, for appellee City of Lake Worth.
   POLEN, J.

Appellant Elwood Cooper appeals the trial court’s order granting three separate motions to dismiss filed by appellees Town of Jupiter, City of Boynton Beach, and City of Lake Worth (the “cities”).

Cooper is currently serving a life sentence in federal prison for trafficking in cocaine. See Cooper v. U.S. Dep’t of Treasury, Drug Enforcement Agency, Asset & Forfeiture Section, No. 05-14417, 2006 WL 637817 at *1 (11th Cir. Mar. 15, 2006). This appeal arises out of a lengthy litigation brought by Cooper pro se in 2002 against several local governments in an attempt to recover allegedly public records relating to a 1997 multi-jurisdiction task force organized by the Drug Enforcement Agency which investigated and ultimately arrested Cooper for his drug crimes.

In June 2006, Cooper moved the trial court for leave to amend the complaint to add the cities of West Palm Beach, Lake Worth, Boynton Beach, and the Town of Jupiter as defendants in this action. The court denied the motion without explanation and denied Cooper’s motion for rehearing. Cooper then filed an “interlocutory appeal” of that order which appeal was summarily dismissed for lack of jurisdiction on October 23, 2006. Cooper v. Palm Beach County, No. 4D06-3606 (Oct. 23, 2006).

Cooper then filed another motion to amend his complaint to add Lake Worth, Boynton Beach, and Jupiter among other entities as defendants in April 2008. Cooper claimed that he had new information regarding the cities’ involvement in the task force which indicates their responsibility to provide public records. He then filed a copy of the amended complaint. All three localities then moved to dismiss the amended complaint.

Without addressing the arguments in the motions to dismiss, the court sua sponte dismissed the amended complaint with prejudice and noted the 2006 order denying Cooper leave to file an amended complaint adding Jupiter, Boynton Beach, and Lake Worth. The trial court found that the complaint was filed without leave of the court and in violation of the Florida Rules of Civil Procedure. Accordingly, without reaching the arguments raised in the motions to dismiss, the court dismissed the complaint with prejudice. We hold that this was error and reverse.

Our reversal rests entirely on the fact that the trial court dismissed Cooper’s amended complaint with prejudice. “Leave to amend should be liberally given and a dismissal with prejudice is not proper unless the privilege to amend has been abused, or it is clear that the pleading cannot be amended to state a cause of action.” Gamma Dev. Corp. v. Steinberg, 621 So.2d 718, 719 (Fla. 4th DCA 1993). Here, the trial court specifically stated that it was dismissing the action with prejudice for Cooper’s failure to obtain leave of court prior to filing the amended complaint. This was a drastic and unwarranted measure in light of the record. Therefore, we reverse the trial court’s order dismissing the amended complaint with prejudice and remand for the court to reconsider Cooper’s motion for leave to amend taking into account factors such as whether such amendment would prejudice the opposing parties, whether the privilege of amendment has been abused, and whether amendment would be futile. Vaughn v. Boerckel, 20 So.3d 443, 445 (Fla. 4th DCA 2009).

Reversed and remanded.

WARNER and DAMOORGIAN, JJ., concur.

      . § 119.01, Fla. Stat. (2002).

      . We have not determined whether the trial court could have properly denied Cooper’s motion for leave to amend to add additional cities, but the appropriate disposition based on the trial court's 2006 order denying leave to amend would have been to strike the proposed "third party complaints” against the additional defendants. Freeman v. Mintz, 523 So.2d 606, 609 (Fla. 3d DCA 1988) (holding that trial court acted properly in striking amended complaint where plaintiff neglected to obtain leave of court prior to amending allegations).


author: LEVENSON, JEFFREY, R., Associate Judge. TAYLOR, J., FARMER, J.,

text:
    Frank SPECIAL, as Personal Representative of the Estate of Susan Special, Appellant, v. Ivo BAUX, M.D., Ivo Baux, M.D., P.A.; Pinnacle Anesthesia, P.L.; and West Boca Medical Center, Inc., Appellees.
    No. 4D08-2511.
    District Court of Appeal of Florida, Fourth District.
    June 23, 2010.

      Philip M. Burlington and Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach, and Gary M. Cohen and Andrew B. Yaffa of Grossman Roth, P.A., Boca Raton, for appellant.
    Irene Porter and Kathryn L.S. Griswold of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, and Eugene Ciotoli of Bobo Ciotoli Bocchino Newman Corsini White & Bui-gas, P.A., North Palm Beach, for appellees Ivo Baux, M.D., Ivo Baux, M.D., P.A., and Pinnacle Anesthesia, P.L.

      Michael K. Mittelmark and K. Calvin Asrani of Michaud, Mittelmark, Antonacci & Marowitz P.A., Boca Raton, for West Boca Medical Center, Inc.
   LEVENSON, JEFFREY, R., Associate Judge.

Frank Special, as the personal representative of his wife’s estate, appeals a final judgment in favor of the defendants below, Dr. Ivo Baux, his related corporations, and West Boca Medical Center, Inc. Special raises three claims. We affirm on all three, but write to discuss Special’s contention that the trial court erred in limiting his cross-examination of one of the defendants’ witnesses.

Susan Special became pregnant at 38. Five weeks before her due date, Susan underwent a cesarean delivery because her fetus presented breech. She was wheeled into the operating room at the Center’s labor and delivery suite. Dr. Baux, the anesthesiologist, applied spinal anesthesia. Another doctor delivered the baby. About a minute after the placenta was removed, Susan became unresponsive and her blood pressure dropped acutely. She had a cardiopulmonary arrest. Dr. Baux intubated her and called a code blue, and he and other hospital personnel attempted to revive Susan. Although they resuscitated her, Susan suffered another arrest in the Intensive Care Unit. She died approximately five hours after delivery.

On behalf of the estate, Special sued the defendants for negligence. Special alleged that Dr. Baux and the Center were negligent in administering anesthesia, in monitoring her system and controlling her fluids during surgery, and in responding to her cardiopulmonary arrests. The defendants denied the allegations. They alleged instead that Susan’s death was caused by amniotic fluid embolus (AFE), an allergic reaction from mother’s blood mixing with amniotic fluid, sometimes causing heart-lung collapse. After a jury heard the matter, it found that Dr. Baux was not negligent. The trial court rendered final judgment in favor of the defendants.

At trial, the AFE diagnosis figured prominently. Most notably, Special called Dr. Barbara Wolf, the chief medical examiner of Palm Beach County at the time of Susan’s death. Dr. Wolf testified that she had conducted the autopsy on Susan and concluded that there was no evidence of AFE. She explained that in a majority of cases where someone dies from AFE, the autopsy provides evidence of AFE. Special also called Dr. Mark Adelman, a treating physician at the hospital, to testify. Special asked him about the disproportionate number of cases of AFE at the Center as compared to the national average. He testified that he recalled personally seeing one or two cases per year at the Center.

Subsequently, the defendants called Dr. Gary Dildy, an obstetrician gynecologist and maternal-fetal medicine expert, to testify. Dr. Dildy also maintained that Susan died of AFE. On cross-examination, Special elicited from Dr. Dildy that the probability of AFE is approximately 1 in 20,000 births, but can range between 1 in 8,000 and 1 in 80,000. The defendants objected when Special began to ask Dr. Dildy to address Dr. Adelman’s testimony that he saw between one and two cases of AFE annually at West Boca. Special responded that he sought this line of questioning to impeach Dr. Adelman’s testimony. The trial court sustained the objection, noting that Special could inquire about numbers and make his argument about disproportionate diagnoses in closing, but Special was not permitted to have Dr. Dildy testify about the credibility of Dr. Adelman because it was impermissible collateral impeachment.

On appeal, Special argues that the trial court abused its discretion because his cross-examination of Dr. Dildy would have undermined Dr. Dildy’s own conclusion that Susan died of AFE. We disagree, and hold that the court did not abuse its discretion in excluding the testimony. See Nationwide Mut. Fire Ins. Co. v. Bruscarino, 982 So.2d 753, 754 (Fla. 4th DCA 2008).

“ ‘Impeachment on collateral issues is clearly impermissible.’ ” Id. (quoting Strasser v. Yalamanchi, 783 So.2d 1087, 1095 (Fla. 4th DCA 2001)). “When evidence ‘neither (1) is relevant to prove an independent fact or issue nor (2) would discredit a witness by establishing bias, corruption, or lack of competency on the part of the witness,’ it constitutes collateral, impermissible evidence.” Id. (quoting Strasser). “The test for determining whether a matter is collateral or irrelevant is whether the proposed testimony can be admitted for any purpose independent of the contradictions.” Foster v. State, 869 So.2d 743, 745 (Fla. 2d DCA 2004) (quoting Lawson v. State, 651 So.2d 713, 715 (Fla. 2d DCA 1995)). See also § 90.608(5), Fla. Stat. (2003) (providing that any party may attack the credibility of a witness by contradictory testimony given by another witness as long as facts testified to are not collateral to the issue).

The trial court properly found that the issue of over-diagnosis of AFE at the Center was a collateral issue. A general claim of over-diagnosis of AFE at the Center does not affect whether, in this case, Dr. Baux negligently attended to Susan during her C-section or negligently attempted to resuscitate her, as alleged in Special’s complaint. In other words, whether AFE was over-diagnosed at the Center had no bearing on the issue of Dr. Baux’s alleged negligence. Because over-diagnosis was an immaterial fact, evidence on it would have been irrelevant. See § 90.401, Fla. Stat. (2003) (“Relevant evidence is evidence tending to prove or disprove a material fact.”). Thus, the testimony was otherwise inadmissible and the trial court did not abuse its discretion in preventing Special from eliciting such testimony from Dr. Dildy to impeach Dr. Adelman.

Assuming arguendo that the evidence in question was not collateral, and the court abused its discretion, such error would have been harmless. Clearly, the issue of over-diagnosis was sufficiently presented in Dr. Adelman’s testimony, through the Center’s interrogatory answers, and — most prominently — in Special’s closing argument. In particular, Special argued with vigor that the Center either had an epidemic of AFE or was over-diagnosing it:

[Dr. Adelman] said, I see one to two a year at West Boca Medical Center. I didn’t put the words in his mouth. He said, I see one to two a year at West Boca Medical Center.
[I]f you take his numbers, and you believe they have this many amniotic fluid emboluses at West Boca Medical Center every year, it is somewhere between 15 and 80 times the national average they’re diagnosing amniotic fluid embolus at West Boca Medical Center, between 15 and 80 times the national average.
So, it was either an epidemic, which there isn’t, at West Boca Medical Center, or they’re overdiagnosing amniotic fluid embolus. They’re calling things that aren’t amniotic fluid embolus, like he did in this case, ... because they’re not bothering to look at autopsies, they’re not bothering to look at other records, they’re not bothering to investigate why....
It’s not the epidemic, it’s that he’s overstating the diagnosis, and that’s wrong, ladies and gentlemen, that is flat out wrong to do, and that’s what they did in this case.

As such, the jury was well aware of the AFE over-diagnosis allegation both through evidence and through argument, rendering any error clearly harmless. See Pascale v. Fed. Express Corp., 656 So.2d 1351, 1353-54 (Fla. 4th DCA 1995) (“Generally, an error is harmless if it does not injuriously affect the substantial rights of the complaining party. The test is whether, but for the error, a different result would have been reached.” (citation omitted)).

Accordingly, we affirm the judgment entered below.

TAYLOR, J., concurs specially with opinion.

FARMER, J., dissents with opinion.

TAYLOR, J.,

concurring specially.

I concur with the majority that the judgment in this case should be affirmed. I disagree that the trial court properly limited plaintiffs cross-examination of the defendants’ AFE expert on the high rate of AFE diagnoses at West Boca Medical Center. In my view, the hospital’s alleged propensity for over-diagnosing or misdiagnosing AFE was not a collateral matter, but rather an issue that related directly to the cause of Mrs. Special’s death after delivery. The jury was asked to decide whether she died as a result of AFE, as defendants contended, or from anesthetic complications, as plaintiff claimed. Testimony from the defendants’ own expert regarding the hospital’s unusually high incidence of this rare condition tended to support the plaintiffs theory that the defendants rushed to judgment in reaching them AFE diagnosis in this case.

However, I agree with the majority that the error was harmless. During the plaintiffs proffer, Dr. Dildy testified that, assuming Dr. Adelman’s recollection of the incidence of AFE at West Boca Medical Center was accurate, he would be concerned that AFE was being over-diagnosed. Yet, even when confronted with statistics documenting this possibility, he persisted in his opinion that Mrs. Special presented a case of AFE. He testified, “But this case here, we’re talking about, it doesn’t matter what all these other cases are, this case is this case, and this case is an amniotic fluid embolism.”

Under the harmless error standard of review, the test is whether, but for the error, a different result would have been reached. Dessanti v. Contreras, 695 So.2d 845 (Fla. 4th DCA 1997); Pascale v. Federal Express Corp., 656 So.2d 1351 (Fla. 4th DCA 1995); Aristek Communities, Inc. v. Fuller, 453 So.2d 547 (Fla. 4th DCA 1984); Anthony v. Douglas, 201 So.2d 917 (Fla. 4th DCA 1967). Here, plaintiffs counsel was unable to establish during its proffer that evidence of the hospital’s over-diagnosis of AFE in other cases would have affected Dr. Dildy’s opinion that Mrs. Special died as a result of AFE. Further, as the majority points out, plaintiffs counsel strenuously argued during his closing remarks that the hospital continued its practice of misdiagnosing AFE when determining the decedent’s cause of death. Thus, it is difficult to say that, but for the exclusion of Dr. Dildy’s testimony regarding this matter, a different result would have been reached. I would, therefore, affirm the judgment for defendants.

FARMER, J.,

dissenting.

Susan Special became pregnant as she was nearing her fortieth year. The fetus presented breech, and her doctors proceeded with a caesarian section at 35 weeks. Dr. Baux applied spinal anesthesia. A moment after they removed the placenta, she became unresponsive. Her blood pressure fell precipitately as she went into cardiopulmonary arrest. Calling a code blue, Dr. Baux and hospital staff attempted to revive her. She was temporarily resuscitated and transferred to ICU where another arrest occurred. Susan died five hours after the delivery.

Her Estate sued Dr. Baux and West Boca Hospital for negligence. The claim is that Dr. Baux and the Hospital were negligent in administering anesthesia, in monitoring her system and controlling her fluids during surgery, and in responding to her cardiopulmonary arrests. Defendants denied the allegations, alleging instead that Susan’s death was caused by amniotic fluid embolus (AFE), an allergic reaction from mother’s blood intermingling with amniotic fluid, sometimes causing heart-lung collapse.

At trial the AFE diagnosis figured prominently. Plaintiff called the Chief Medical Examiner performing the autopsy, who testified she found no evidence of AFE in Susan’s body. Plaintiffs expert testified that Susan died because of the above alleged departures from the standard of care. Plaintiff later questia West Boca staff physician, Dr. Adelman, as to the facts leading to the AFE diagnosis of Susan, the number of AFE cases seen at that Hospital, and to contrast the prevailing statistics about the incidence of AFE. He testified to figures suggesting the diagnosis of AFE at this Hospital was about 15 times the rate elsewhere.

The defense called Dr. Dildy as their expert. He opined that Susan died from AFE. On cross examination, plaintiff elicited from him that that the probability of AFE is usually 1/20,000, but ranges from 1/8,000 to 1/80,000. Plaintiff then tried to begin a line of cross examination of Dr. Dildy about the reliability of the Adelman diagnosis that AFE had actually occurred in Susan and the unusually high incidence of it in West Boca Hospital.

Defendants’ objection on relevancy grounds was sustained. The court held that plaintiff could inquire only about the statistical occurrence of AFE and could not question Dr. Dildy using the substance of Dr. Adelman’s testimony and its reliability to explore the trustworthiness of defendants’ diagnosis of AFE. The court concluded that doing so would amount to improper collateral impeachment.

Again, the principal dispute at trial was the cause of Susan’s death. In response to plaintiffs claims of negligence, defendants alleged that regardless of their handling of the emergency from cardiopulmonary arrest, it was AFE that caused her death. The presence of AFE was thus the essential issue.

Our Evidence Code requires the admission of relevant evidence except when explicitly excluded by law. The Code defines relevant evidence as “evidence tending to prove or disprove a material fact.” The Code also provides that expert witnesses shall be required to disclose facts or data underlying their opinions. A party may attack the credibility of any witness by testimony from another witness that material facts are not as professed by the witness being impeached.

In this case, the trial judge accepted defendants’ contention that this entire field of proposed cross examination would have been collateral to the issue on trial. Characterizing evidence as collateral is simply another way of saying it is not pertinent, hence irrelevant. The primary test as to whether evidence would be collateral is to consider whether the same evidence could be admitted for another purpose than the inconsistency. If it could be thus admitted, it is obviously relevant and not collateral.

The object of the proposed cross examination of the defense expert was to elicit answers leading to proof of the cause of death, the crux of the lawsuit. Had plaintiff called Dr. Dildy as his own witness, doubtlessly he could have questioned him directly on the same line of inquiry to which defendants objected on cross examination. The results of an exploration of his knowledge and related opinions as to any medically reliable evidence of AFE in Susan, the frequency of AFE elsewhere and its claimed presence more frequently at this Hospital, surely could have led directly to proof illuminating the cause of the death of Susan in childbirth.

Barring an entire line of cross examination of one’s expert witness about facts and opinions directly relating to the vital issue in the trial requires on review that we indulge the possibility that, if allowed, answers and concessions could have yielded impeachment of all or part of opinions expressed by opposing witnesses. Achieving recognition from Dr. Dildy as to anomalies or errors in Dr. Adelman’s diagnosis by a probing line of inquiry could have a significant effect on the jury — namely, that the believable facts about the cause of death may not have been those opined or relied upon by Dr. Adelman and Dr. Dildy.

Because the subject is as relevant and probative as evidence can be on the fundamental dispute between the parties, the Evidence Code afforded the trial judge no discretion to bar it ab initio on the basis it involved collateral matters. At the very outset of the inquiry it is simply not possible to hold this entire line of cross examination collateral or prejudicial. And the conceivable probative force of this subject of inquiry makes it very unlikely that the exclusion of the entire area of cross examination was harmless.

Neither can the objection be justified by the rationale (as the trial judge later posited when he revisited the issue) that answers yielded by such a cross examination would inevitably result in unfair prejudice outweighing any probative value. Evidence that in reality is misleading, confusing, duplicative or unfairly prejudicial, though having some relevancy, is deemed unreliable by § 90.403 as a matter of law. But this provision is not a general grant of authority to trial judges to bar evidence adversely affecting a party’s position at trial; it bars evidence only when it genuinely has the statute’s elements of legal unreliability. It is thus critical to grasp the sort of unfair prejudice required by § 90.403.

For some issues, as here, an application of widely accepted scientific principles to a particular set of facts can be fairly debated by even those most knowledgeable on the subject. It is the very purpose of inquiry of scientists to have them explain the analysis underlying their opinions in the case, i.e. their scientific methodology. Of necessity this includes an exploration and application of scientific principles to the pertinent facts and theories on which each relied to reach an opinion.

The purpose here was to provide expert testimony to “assist the trier of fact in understanding the evidence in determining” the scientific reliability of an AFE diagnosis. This was the core relevant evidence in this trial. Answers relating to the cause of death simply cannot be legally brushed aside as unfairly prejudicial to the defendants or their expert witness. Nothing in the record presents any basis to conclude that the proposed line of inquiry would have categorically produced only inflammatory, bewildering or unreasonably duplicative evidence, the only grounds authorized by § 90.403.

In our adversary system of civil litigation, the clash of experts is as much a part of trials as the very conflict of the parties themselves. But there can be no “battle of the experts” on an obscure scientific subject if the trial judge bars the parties from ever testing the other’s opinions by the traditional forensic methodology of pertinent questioning. In fact the nature of scientific inquiry itself is rooted in attempting to disprove theories by incisive questions. Asking an expert on a scientific subject questions designed to disprove a theory is only duplicating what the expert was required by scientific custom to do in forming the opinion. An inquiry revealing contrary opinions between qualified experts relevant to the dispute simply does not lead to unfair prejudice within the meaning of § 90.403.

Moreover, any prospect of unfair prejudice actually resulting from such a relevant inquiry of a science expert could no more be ascertained at the outset than could the actual answers produced by the inquiry. A line of inquiry may yield impeachment; or it may only support the opinion of an opposing expert; it may even involve some objectionable questions, which the judge can then bar individually; but no judge can foresee at the outset what will ultimately emerge. The outcome of a lawyer’s examination of experts on highly technical relevant scientific subjects — such as the cause of death in this case — is therefore incapable of being labeled unfairly prejudicial before the first question is even answered.

Here the trial court improperly used a provision meant to eliminate only legally unreliable evidence to bar what could have been the most relevant and reliable evidence in the case — evidence that lacked any of the factors on which a § 90.403 exclusion could be premised. Ironically the application of § 90.403 in this case had the perverse result of inflicting unfair prejudice on the proponent of the evidence, the plaintiff.

I therefore conclude that this exclusion of a proper line of inquiry in cross examination of defendants’ expert witness requires a new trial. As to the other issues raised on this appeal I would not foreclose the trial judge from revisiting them in a new trial.

      . Along with his related corporate entities.

      . § 90.402, Fla. Stat. (2009) ("All relevant evidence is admissible, except as provided by law”).

      . § 90.401, Fla. Stat. (2009).

      .§ 90.705(1), Fla. Stat. (2009) ("On cross-examination the expert shall be required to specify the facts or data”).

      . § 90.608(5), Fla. Stat. (2009) ("Any party ... may attack the credibility of a witness by ... proof by other witnesses that material facts are not as testified to by the witness being impeached”).

      . Dempsey v. Shell Oil Co., 589 So.2d 373, 377 (Fla. 4th DCA 1991) (relying on C. Eh-rhardt, Florida Evidence 294-5 (2d ed. 1984)).

      . Johnston v. State, 863 So.2d 271, 278 (Fla.2003) (trial court’s discretion on admissibility of evidence is limited by the rules of evidence); Reed v. State, 883 So.2d 387 (Fla. 4th DCA 2004) (trial court’s discretion in determining admissibility of evidence is limited by rules of evidence).

        .See § 90.403, Fla. Stat. (2009) ("Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice”).

      . See Ramirez v. State, 810 So.2d 836, 843 (Fla.2001) ("In applying [§ 90.403], the court bars ... evidence that is unduly prejudicial, misleading, or confusing — i.e., evidence that is 'legally' unreliable”).

      . See Brown v. State, 719 So.2d 882, 885 (Fla.1998) (term unfair prejudice in § 90.403 means undue tendency to suggest decision on an improper basis (relying on Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997)).

      . Dr. Jacob Bronowski explained the essence of the scientific method in this way: "ask an impertinent question and you are on the way to a pertinent answer.” The Ascent of Man (episode 4, Fires, Metals and Alchemy).

      . § 90.705(1), Fla. Stat. (2009).

      . § 90.702, Fla. Stat. (2009) ("If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial”).

      . "It is often said in science that theories can never be proved, only disproved.” Frank Wolfs, Introduction to the Scientific Method, University of Rochester, teacher.pas. rochester.edu/PHY_LABS/AppendixE/ AppendixE.html.


author: FARMER, J.

text:
    Drew C. HARTLEY, Appellant, v. Walter A. McNEIL, Appellee.
    No. 4D09-1299.
    District Court of Appeal of Florida, Fourth District.
    June 30, 2010.
    Drew C. Hartley, Milton, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Lance Eric Neff, Assistant Attorney General, Tallahassee, for appel-lee.
   FARMER, J.

On motion for rehearing, the director of the Department of Corrections (DOC) has brought our attention to Bush v. State, 945 So.2d 1207 (Fla.2006). Among other things, Bush held that:

“the proper venue for a prisoner’s challenge to a sentence-reducing credit determination by [DOC], where the prisoner has exhausted administrative remedies and is not alleging entitlement to immediate release, continues to be in circuit court in Leon County, where the Department is located.”

945 So.2d at 1213-14. It follows that our decision on the venue issue is error. We therefore grant the motion for rehearing, vacate our February 17, 2010, opinion, and affirm the decision of the trial court transferring this case to the Second Circuit, Leon County, where DOC has its headquarters.

Affirmed.

WARNER and LEVINE, JJ., concur.


author: PER CURIAM. WARNER, J.,

text:
    Claudeth STEWART and Shawn Stewart, Petitioners, v. Denzil CORMACK and Jenoris Cormack, Respondents.
    No. 4D10-1058.
    District Court of Appeal of Florida, Fourth District.
    Aug. 4, 2010.
    Robert J. Hauser of Beasley Hauser Kramer Leonard & Galardi, P.A., West Palm Beach, and John P. Marinelli of Law Offices of John P. Marinelli, LLC, West Palm Beach, for petitioners.
    Denzil Cormack and Jenoris Edwards Cormack, Loganville, Georgia, pro se.
   PER CURIAM.

The petition for writ of prohibition is hereby denied.

POLEN and FARMER, JJ., concur.

WARNER, J., dissents with opinion.

WARNER, J.,

dissenting with opinion.

I would consider this petition for writ of prohibition as an appeal pursuant to Florida Rule of Appellate Procedure 9.130(a)(4). As such, I would find that the trial court did not have jurisdiction to consider the motion to determine rents filed after the summary judgment had been entered and respondents’ time for filing a motion for rehearing or to amend had passed. I would reverse on the authority of Garcia v. Stewart, 906 So.2d 1117 (Fla. 4th DCA 2005). Nevertheless, because the majority has not ruled on the merits but simply denied the petition, it would appear that petitioners are not barred from asserting further jurisdictional objections to any final order entered on this supplemental pleading.


text:
    Wilbert METAYER, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3651.
    District Court of Appeal of Florida, Fourth District.
    Aug. 4, 2010.
    Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    No response for appellee.
   ON MOTION TO REVIEW DENIAL OF BOND PENDING APPEAL

PER CURIAM.

Appellant, through counsel, requests review of the lower court’s order denying motion for bond pending appeal. The order states no reasons for the denial and is, therefore, contrary to Florida Rule of Appellate Procedure 9.140(h)(8) and Florida Rule of Criminal Procedure 3.691(b); see also Dumas v. State, 889 So.2d 189 (Fla. 4th DCA 2004) (holding that trial court’s failure to make written findings upon denying defendant’s bond request required reversal). We ordered a response from the State within fifteen days, and the State has failed to respond within that time. Accordingly, we reverse and remand for reconsideration of appellant’s motion for an appeal bond. If the lower court again denies bond, it must make the findings necessary to support the denial.

Reversed and remanded for further proceedings.

GROSS, C.J., POLEN and CIKLIN, JJ., concur.


text:
    Tatyana NUDEL, Petitioner, v. FLAGSTAR BANK, FSB, Mortgage Electronic Registration Systems, Inc. as Nominee for Flagstar Bank, FSB, Palm Beach County, and Adorno & Yoss, LLP, Respondents. Richard J. Davis and Nancy Davis, Petitioners, v. HSBC Bank USA, National Association, as Trustee, for Sequoia 2007-3, Respondent.
    Nos. 4D10-641, 4D10-1842.
    District Court of Appeal of Florida, Fourth District.
    Aug. 11, 2010.

      Thomas E. Ice of Ice Legal, P.A., West Palm Beach, for petitioners Tatyana Nu-del, Richard J. Davis and Nancy Davis.
    No response required for respondents.
   PER CURIAM.

In these two cases, which we have consolidated for purposes of this opinion, the law firm of Ice Legal, P.A. (Ice), seeks, under the guise of disqualifying the judge, to exclude itself from proceeding before Judge Sasser, who presides over the foreclosure division of the Palm Beach circuit court. These petitions for writ of prohibition represent the seventh and eighth petitions that this law firm has filed in this court seeking the same relief. All the prior petitions were carefully reviewed and denied on the merits.

As in the prior petitions and motions to disqualify filed by the firm, Ice attempts to pyramid a host of unrelated matters, which were not raised within the ten-day time limit of Florida Rule of Judicial Administration 2.330(e), to achieve its goal. The repetitive claims have been reviewed de novo on numerous occasions and rejected on the merits. None of these issues, alone or together, provide lee’s clients with any objectively reasonable basis to fear that the judge is biased.

In addition to re-raising these issues, the Ice firm raised new arguments alleging that ex parte communication between opposing counsel and the judge requires disqualification. The communications involved a recurring scheduling dispute involving Ice. The Ice firm has insisted on specially-set hearings on its motions even though the judge, through her judicial assistant (JA), had expressed that the types of motions at issue should be set for ten-minute hearings on the uniform motion calendar. Ice has complained that it needs at least fifteen minutes to be heard and demanded specially-set hearings.

In one of these cases, aware of Ice’s persistent objections to their motion being set on the uniform motion calendar, the plaintiff bank scheduled a hearing on Ice’s motion to dismiss during a time reserved for summary judgment motions. The judge phoned the bank’s counsel advising that the hearing needed to be scheduled on the uniform motion calendar and that twenty minutes was not necessary to argue the motion. The bank’s attorney immediately informed Ice and tried to coordinate a convenient time for the hearing. The next day, the judge entered a written order requiring the bank to schedule the hearing on the motion calendar within ten days.

In the second case, an administrative employee for the bank’s counsel attempted to coordinate scheduling of Ice’s motions on the uniform motion calendar. Ice continued to object to the scheduling, maintaining its position that it needed fifteen minutes instead of ten. Another administrative employee for the bank’s counsel contacted the judge’s JA to inform her that the Ice firm was again objecting to having their motions heard at the uniform motion calendar. Another judge, sitting in Judge Sasser’s absence, signed orders scheduling the hearing on the uniform motion calendar. The above incident led Ice to request all emails between the law firm’s staff and the JA. Ice contends the emails show that the law firm’s administrative staff has been engaged in ex parte communications with the judicial assistant.

Based on these allegedly improper ex parte communications, Ice seeks to disqualify the judge from all of its cases. In all of its prior petitions, Ice has sought what amounts to firm-wide disqualification which would effectively exclude Ice from proceeding in the foreclosure division. Judge Sasser is presently the only judge presiding in the foreclosure division.

We review de novo the legal sufficiency of the motions to disqualify that were filed below. See Edwards v. State, 976 So.2d 1177, 1178 (Fla. 4th DCA 2008).

Ex parte communications regarding purely administrative, non-substantive matters, such as scheduling, do not require disqualification. See Rose v. State, 601 So.2d 1181, 1183 (Fla.1992) (“[A] judge should not engage in any conversation about a pending case with only one of the parties participating in that conversation. Obviously, ... this would not include strictly administrative matters not dealing in any way with the merits of the case.”). See Rodriguez v. State, 919 So.2d 1252, 1274-75 (Fla.2006) (ex parte discussion of an administrative matter, the nature of a scheduled hearing, did not require disqualification); Randolph v. State, 853 So.2d 1051, 1064 (Fla.2003) (ex parte conversation about ministerial matter — wording of a sentence in an order — was insufficient to disqualify); Arbelaez v. State, 775 So.2d 909, 916 (Fla.2000) (holding that an ex parte communication between the judge and the state attorney in a death penalty case did not require disqualification where the communication related to purely administrative matters, including the amount of time the state would be provided to respond to defendant’s postconviction motion and the scheduling of hearings).

The ex parte communications in the present cases all involved purely administrative, non-substantive matters regarding the scheduling of motions, not the merits of the case. The judge, who had read and was familiar with Ice’s motions, did not exhibit any objectively reasonable basis for Ice’s clients to fear bias when she indicated that the motions did not require additional time.

As to the communications between the administrative personnel of the bank’s law firm and the JA, neither the ex parte communications, nor the alleged animosity that has developed between the JA and one of Ice’s employees, provides an objectively reasonable basis for Ice’s clients to fear that the judge will not be fair and impartial. See Leone v. F.J.M. Constr., 911 So.2d 1285, 1285-86 (Fla. 1st DCA 2005) (holding that a judicial assistant’s disparaging comments to a party’s attorney, made after a scheduling dispute, did not provide any reasonable basis to fear that the judge would not be fair). As noted in Leone, scheduling of hearings is typically a matter delegated by judges to judicial assistants. This is particularly necessary in the foreclosure division which has an extraordinary backlog of cases. Judge Sasser cannot be expected to hold hearings regarding the length of upcoming hearings in order to settle insignificant disputes about whether an additional five minutes is necessary for oral argument on a motion.

Contrary to Ice’s accusations, Judge Sasser did not violate Canon 3(B)(7) of the Florida Code of Judicial Conduct, which expressly exempts communications relating to scheduling and other administrative matters from its prohibition on ex parte communications. The judge’s ex parte communication with the bank’s counsel regarding the bank’s improperly-scheduled motion was immediately brought to Ice’s attention. Ice has had abundant opportunity to respond but never specified any reason why fifteen minutes was required to hear its motions.

Ice’s repetitive attempts at disqualification in these cases appear designed, not to ensure that the proceedings against their clients are presided over by a neutral and fair tribunal, but to achieve a strategic advantage and/or frustrate the efficient function of the foreclosure division. As we suggested in Nassetta v. Kaplan, 557 So.2d 919, 921 (Fla. 4th DCA 1990), this tactic is an improper use of the disqualification procedure.

The petitions are denied on the merits.

GROSS, C.J., STEVENSON and DAMOORGIAN, JJ., concur.

      . The foreclosure division, which attempts to streamline scheduling procedures, was created to handle the extraordinary backlog of foreclosure cases. See Administrative Order 3.302, Fifteenth Judicial Circuit. At the time the petition was filed, an estimated 55,000 foreclosure cases were pending in that court. This number has likely increased since that time.

      . Feith v. Indy Mac Fed. Bank, 4D09-5070; Sandomingo v. Washington Mut. Bank, 4D09-5000; Vidal v. U.S. Nat’l Bank Ass’n, 4D10-397; Glarum v. Lasalle Bank, 4D10-603; Brown v. Wachovia Bank, 4D10-130; Brown v. Wachovia, 4D10-642.

      . A specially-set hearing would not be available until much later in time, whereas the motions could be heard sooner if set on the uniform motion calendar. Ice made no attempt to schedule its motions for hearing nor has it provided any explanation why its motions — which do not involve evidentiary matters — required any additional time for oral argument. As noted by the judge, at a hearing where the policy was explained to Ice, the judge had read the motions — which raised similar issues Ice has repeated in many of its cases — and additional time for oral argument was unnecessary.
      We are aware of no rale or law that requires a trial court to hear oral argument on a pretrial, non-evidentiary motion. See Gaspar, Inc. v. Naples Fed. Sav. & Loan Ass’n, 546 So.2d 764, 766 (Fla. 5th DCA 1989) ("Judicial consideration and determination of a non-evidentiary motion on the basis of memoran-da of law rather than oral argument by counsel at a noticed hearing does not constitute an ex parte hearing or a denial of due process”); First City Dev. of Fla., Inc. v. Hallmark of Hollywood Condo. Ass’n, 545 So.2d 502, 503 (Fla. 4th DCA 1989) ("There is no rale of procedure or law that requires the trial court to have oral argument as to [objections to discovery]”). See also Fla. R.App. P. 9.320 ("Oral argument may be permitted in any proceeding”) (emphasis supplied); In re Proposed Florida Appellate Rules, 351 So.2d 981, 1011 (Fla.1977) ("[Tjhere is no right to oral argument” in appellate proceedings).


text:
    Charles MONINGER, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-1429.
    District Court of Appeal of Florida, Fourth District.
    Aug. 11, 2010.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Attorney General, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Based on the authority of State v. Montgomery, 39 So.3d 252 (Fla.2010), and this Court’s recent opinion in Singh v. State, 36 So.3d 848 (Fla. 4th DCA 2010), we affirm the trial court’s decision as it relates to the manner in which it instructed the jury without further discussion.

Affirmed.

FARMER, HAZOURI and DAMOORGIAN, JJ., concur.


text:
    James Patrick WONDER, Petitioner, v. STATE of Florida, Respondent.
    No. 4D10-2547.
    District Court of Appeal of Florida, Fourth District.
    Aug. 11, 2010.
    Michael J. Entin and Frank A. Maister, Fort Lauderdale, for petitioner.
    No response required for respondent.
   PER CURIAM.

James Patrick Wonder, the defendant in a criminal prosecution pending in Broward County Circuit Court, seeks certiorari review of an order denying his request for an evidentiary hearing on the issue of immunity from prosecution pursuant to section 776.032, Florida Statutes (2009) (the “Stand Your Ground” law, enacted by chapter 2005-27, section 5, at 202, Laws of Florida).

We deny the petition, because the trial court did not depart from the essential requirements of law by following Velasquez v. State, 9 So.3d 22 (Fla. 4th DCA 2009).

We certify conflict with Peterson v. State, 983 So.2d 27 (Fla. 1st DCA 2008); Horn v. State, 17 So.3d 836 (Fla. 2d DCA 2009); State v. Yaqubie, 51 So.3d 474 (Fla. 3d DCA 2010); and Gray v. State, 13 So.3d 114, 115 (Fla. 5th DCA 2009). We also certify, as a question of great public importance, the following:

WHETHER SECTION 776.032, FLORIDA STATUTES (2009) (THE “STAND YOUR GROUND” LAW), REQUIRES A TRIAL COURT, UPON MOTION TO DISMISS, TO HOLD AN EVIDEN-TIARY HEARING PRIOR TO TRIAL AND RESOLVE DISPUTED FACTUAL ISSUES TO DETERMINE WHETHER A DEFENDANT HAS ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE HIS/ HER ENTITLEMENT TO STATUTORY IMMUNITY FROM PROSECUTION.

We grant Defendant’s motion for stay and direct the trial court on remand to stay his prosecution pending the resolution of this issue by the Florida Supreme Court in Dennis v. State, 29 So.3d 290.

TAYLOR, GERBER and LEVINE, JJ., concur.

      . Dennis arose from this court’s opinion in Dennis v. State, 17 So.3d 305 (Fla. 4th DCA), rev. granted, 29 So.3d 290 (Fla.2009) (holding that "a motion to dismiss based on statutory immunity is properly denied when there are disputed issues of fact.”).


author: GROSS, C.J.

text:
    Shawn DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2330.
    District Court of Appeal of Florida, Fourth District.
    Aug. 18, 2010.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   GROSS, C.J.

Shawn Davis appeals the summary denial of his motion to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.170((). We affirm because the motion filed by defense counsel failed to contain specific factual allegations that would require the trial court to hold a hearing or appoint a new lawyer to handle the motion to withdraw plea.

Davis entered a plea of no contest to the crimes of robbery with a firearm while wearing a mask and kidnapping, with the understanding that he would be sentenced to no more than 15 years in prison followed by two years of probation. At a sentencing hearing, the tidal court sentenced him to concurrent terms of 15 years in prison followed by two years of probation.

Two weeks after sentencing, Davis’s counsel filed a motion to withdraw the plea in which she asserted that Davis informed her he wanted to withdraw his plea. The motion stated that she could not represent Davis, because their positions had become adverse; she requested that the trial judge appoint conflict-free counsel to represent him. The motion contained no specific factual allegations to support the motion. The trial court summarily denied the motion in a written order explaining the court’s reasoning.

Davis relies on Sheppard v. State, 17 So.3d 275 (Fla.2009). In Sheppard, a defendant filed a pro se motion to withdraw his plea which contained specific allegations that gave “rise to an adversarial relationship, such as allegations that counsel misadvised the defendant, made affirmative misrepresentations regarding the terms of the plea, or coerced the defendant into taking the plea.” Sheppard, 17 So.3d at 276-77. The Supreme Court held that where a motion contained such “allegations giving rise to an adversarial relationship,” the trial court “should hold a limited hearing at which the defendant, defense counsel, and the State are present.” Id. at 287. Under Sheppard, a “trial court is not required to appoint conflict-free counsel unless both an adversary relationship exists and the defendant’s allegations are not conclusively refuted by the record.” Nelfrard v. State, 34 So.3d 221, 223 (Fla. 4th DCA 2010) (emphasis removed). In this case, as the trial court recognized, it was not necessary to hold a hearing on the rule 3.170(() motion because the motion contained no factual allegations to support the request for relief.

This case is controlled by Williams v. State, 919 So.2d 645 (Fla. 4th DCA 2006). There, defense counsel filed a rule 3.170(() motion with only a “bare allegation” of coercion, unsupported by any facts. In part, we held that such a bare allegation was insufficient to require the trial court to hold a hearing on the motion or to appoint conflict free counsel. Id. at 646. Here, defense counsel’s bare bones motion distinguishes this case from Schriber v. State, 959 So.2d 1254, 1255 (Fla. 4th DCA 2007), where a defendant filed a pro se motion to withdraw a plea containing specific allegations of “misadvice and ineffective assistance.” Schriber distinguished Williams as a case where “Williams’s original attorney drew up and filed the motion to withdraw the plea which was found to be insufficient.” Id. at 1257.

We therefore affirm the trial court’s ruling. As we did in Williams, we note that “our affirmance is without prejudice for appellant to file a motion for postconviction relief on any legally sufficient grounds supported by factual allegations that have not been conclusively refuted by the record.” 919 So.2d at 646 (emphasis removed).

WARNER, J., and FISHMAN, JANE D., Associate Judge, concur.