text:
    Steve SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2879.
    District Court of Appeal of Florida, Fourth District.
    April 11, 2012.

      Althea M. Campbell, Tamarac, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

We affirm the trial court’s denial of appellant’s postconviction challenge to his 1986 conviction for possession of cannabis with intent to deliver. He claims that this conviction is causing deportation proceedings against him, which commenced in April 2010. He maintains that he was not advised by counsel or the court at the 1986 plea hearing, a transcript of which is now unavailable, that his plea may result in deportation, and that if he had been so advised he would not have pled to the crime. The trial court correctly denied the motion.

First, the motion was untimely, because it was outside the two-year window of State v. Green, 944 So.2d 208, 218 (Fla.2006), for bringing postconviction claims challenging convictions which could lead to deportation. Second, his reliance on Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), is misplaced. While Padilla authorizes an ineffective assistance of counsel claim where a defendant is misadvised as to the deportation consequences in pleading to a crime, Florida courts have held that Padilla cannot be applied retroactively. Hernandez v. State, 61 So.3d 1144, 1151 (Fla. 3d DCA 2011). See also McCalla v. State, 77 So.3d 845 (Fla. 4th DCA 2012); Davis v. State, 69 So.3d 315 (Fla. 4th DCA 2011). Third, even without the drug conviction, appellant may still be deportable or unable to adjust his immigration status because of his conviction for a firearm offense. See, e.g., Nieto Hernandez v. Holder, 592 F.3d 681, 686 (5th Cir.2009); 8 U.S.C. § 1227(a)(2)(C) (an alien convicted of an offense for possession of a firearm is de-portable). Thus, appellant has not clearly shown that the drug conviction is the sole basis for deportation. See Forrest v. State, 988 So.2d 38, 40 (Fla. 4th DCA 2008).

Affirmed.

HAZOURI and GERBER, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Eddie Lee HUDSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-435.
    District Court of Appeal of Florida, Third District.
    April 11, 2012.
    Eddie Lee Hudson, a/k/a Eddie Lee Green, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, CORTINAS, and SALTER, JJ.
   PER CURIAM.

Affirmed. Little v. State, 77 So.3d 722 (Fla. 3d DCA 2011).


text:
    Edwin Kevin WALKER, Former Husband, Appellant, v. Brenda D. WALKER, Former Wife, Appellee.
    No. 1D11-2869.
    District Court of Appeal of Florida, First District.
    April 12, 2012.

      Nick James and Brian P. North, Gaines-ville, for Appellant.
    Frank E. Maloney, Jr., Frank E. Malo-ney, Jr., P.A., Macclenny, for Appellee.
   PER CURIAM.

Edwin Kevin Walker, the Former Husband, appeals the trial court’s Final Judgment of Dissolution of Marriage. The Former Husband raises four issues on appeal. For the reasons set forth below, we reverse the final judgment and remand to the trial court for further proceedings.

First, the Former Husband challenges the trial court’s award of permanent alimony to Brenda D. Walker, the Former Wife. “Permanent periodic alimony is used to provide the needs and the necessities of life to a former spouse as they have been established by the marriage of the parties.” Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla.1980); accord Mallard v. Mallard, 771 So.2d 1138, 1140 (Fla.2000). In order to award permanent alimony, the trial court must make specific factual determinations with regard to actual need on the part of the former spouse seeking an alimony award. § 61.08(2), Fla. Stat. (“[T]he court shall first make a specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance.”); see Canakaris, 382 So.2d at 1201. Simple disparity in income will not support an award of permanent periodic alimony: “The purpose of permanent periodic alimony is not to divide future income to establish financial equality.” See Rosecan v. Springer, 845 So.2d 927, 929 (Fla. 4th DCA 2003) (citing Segall v. Segall, 708 So.2d 983 (Fla. 4th DCA 1998); Langevin v. Langevin, 698 So.2d 601 (Fla. 4th DCA 1997); Wright v. Wright, 613 So.2d 1330 (Fla. 4th DCA 1993)).

Here, the trial court made no specific factual determination with regard to the Former Wife’s actual need for permanent alimony. We must, therefore, “reverse the award of permanent alimony to the Wife and remand to the trial court with instructions to either make sufficient findings of fact to enable this court to determine the appropriateness of the permanent periodic alimony award, or to consider another form of alimony which would be supportable by the record in this case.” Segall, 708 So.2d at 988.

Next, the Former Husband asserts that the trial court erred in distributing the parties’ marital assets and liabilities. The Former Husband asserts that the trial court failed to make the findings required by law, including individual valuation of significant assets and the identification of the marital liabilities and designation of which spouse shall be responsible for each liability. See § 61.075(3), Fla. Stat. We agree that the trial court failed in these respects, and as a consequence, it is “extremely difficult, if not impossible, to analyze the ... distribution scheme in this case due to the lack of findings on the critical elements at issue here.” Santiago v. Santiago, 51 So.3d 637, 639 (Fla. 2d DCA 2011); accord Guida v. Guida, 870 So.2d 222, 224 (Fla. 2d DCA 2004). Accordingly, we reverse and remand with directions for the trial court to either make specific findings to support the distribution of assets or to reconsider the distribution. On remand, the trial court “may revisit other interrelated financial issues, such as alimony and attorneys’ fees, to the extent they are affected by any changes in the ... distribution scheme.” Santiago, 51 So.3d at 639.

The Former Husband also contests the trial court’s finding that he intentionally dissipated marital assets, specifically that the Former Husband dissipated his retirement account “on various and sundry items and incurred taxes and penalties in the amount of $47,440.09.” The record reflects that the Former Husband received early lump-sum distributions from his retirement account, and in doing so, he incurred early withdrawal penalties and taxes. However, in order to determine that a spouse has dissipated marital assets, the trial court must make “a specific finding of intentional misconduct based on evidence showing that the marital funds were used for one party’s ‘own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.’ ” Belford v. Belford, 51 So.3d 1259, 1260-61 (Fla. 2d DCA 2011) (quoting Roth v. Roth, 973 So.2d 580, 585 (Fla. 2d DCA 2008)). “Misconduct is not shown by ‘mismanagement or simple squandering of marital assets in a manner of which the other spouse disapproves.’ ” Id. (quoting Roth, 973 So.2d at 585 (stating there “must be evidence of spending spouse’s intentional dissipation or destruction of the asset”)).

Here, the record is devoid of any evidence of misconduct by the Former Husband or his intentional destruction of marital assets. Accordingly, we reverse the trial court’s finding that the retirement assets were dissipated by the Former Husband.

Finally, with respect to the trial court’s award of attorneys’ fees, we “remand to the trial court for reconsideration in light of the changes in the parties’ relative financial resources following the trial court’s ultimate ruling.” Segall v. Segall, 708 So.2d 983, 989 (Fla. 4th DCA 1998).

REVERSE AND REMAND.

VAN NORTWICK, THOMAS, and ROWE, JJ., concur.


text:
    Duane DuCHARME, Tai T. Huynh, et al., Appellants, v. TISSUENET DISTRIBUTION SERVICES, LLC, et al., Appellees.
    No. 5D10-4116.
    District Court of Appeal of Florida, Fifth District.
    April 13, 2012.
    Michael J. Furbush of Roetzel & An-dress, LPA, Orlando, and Andrew M. McNeil of Bose McKinney & Evans, LLP, Pro Hac Vice, Indianapolis, Indiana, for Appellants.
    Robert Alfert, Jr., P.A. and Kimberly Doud, of Broad and Cassel, Orlando, for Appellees.
   PER CURIAM.

Duane DuCharme, Tai T. Huynh, New Life Generation, Inc., and Allograft Innovations, LLC, (collectively Allograft Innovations) appeal the entry of a temporary injunction against the use of alleged trade secrets belonging to TissueNet Distribution Services, LLC, Surgical Tissue Network, Inc., and TissueNet Custom Applications, LLC (collectively TissueNet). TissueNet did not file a brief in this appeal.

Allograft Innovations and TissueNet are in the business of harvesting and distributing tissue (mainly bones and tendons) from human cadavers to be transplanted into living persons. A transplant of tissue from one person to a genetically dissimilar person is called an allograft. Allograft manufacturers, such as Allograft Innovations and TissueNet, are required to sterilize the tissue that they harvest from cadavers so that it is safe for transplantation into living persons.

TissueNet hired Mr. Huynh to develop a chemical cleaning protocol to be used prior to sterilization, and it is the protocol that Mr. Huynh developed for TissueNet that TissueNet alleged in the trial court is a trade secret that was misappropriated by Allograft Innovations. TissueNet brought suit against Allograft Innovations after Mr. Huynh resigned from TissueNet and began to develop a chemical cleaning protocol for Allograft Innovations. Tis-sueNet asserted in the suit that Mr. Huynh breached his employment and confidentiality agreements and that Allograft Innovations misappropriated TissueNet’s chemical cleaning protocol. Although the employment and confidentiality agreements contain confidentiality provisions and a customer-based non-solicitation provision, TissueNet did not obtain a non-compete agreement from Mr. Huynh.

We reverse the temporary injunction under review for the following reasons: 1) although TissueNet alleged that its trade secrets consist of the times, temperatures, and concentrations of the chemicals used in its protocol, TissueNet did not prove that Allograft Innovations uses the same times, temperatures, and concentrations of chemicals in its protocol; 2) at most TissueNet may have succeeded in establishing that Allograft Innovations’ cleaning process includes the same chemicals used by TissueNet in its cleaning process, but the identity of those chemicals are well known in the industry and Tis-sueNet conceded in the trial court that they do not form a part of TissueNet’s trade secrets; 3) TissueNet failed to prove that Allograft Innovations is using a protocol that is materially the same as the protocol that Mr. Huynh developed for TissueNet; 4) the protocol Mr. Huynh developed for Allograft Innovations was modeled from the protocol provided by Nova Sterillis, which is a company Mr. Huynh worked with to develop the protocol for Allograft Innovations; 5) Mr. Huynh used his education, knowledge, skill, and experience in conjunction with Nova Sterillis and its protocol to develop the protocol for Allograft Innovations; 6) Mr. Huynh did not breach his employment and confidentiality agreements with TissueNet and, if TissueNet wanted to prevent Mr. Huynh from working for a competitor, TissueNet should have obtained a non-compete agreement from Mr. Huynh, and it did not do so; and 7) TissueNet failed to demonstrate a substantial likelihood of success on the merits.

REVERSED.

SAWAYA, LAWSON and COHEN, JJ., concur.

      . Appellant Duane DuCharme is the owner of New Life Generation, Inc., which is a not-for-profit company that recovers tissue from donors and supplies it to tissue processing companies such as TissueNet. DuCharme is also the owner of Allograft Innovations, LLC.

      . In Colonial Bank, N.A. v. Taylor Morrison Services, Inc., 10 So.3d 653 (Fla. 5th DCA 2009), this court explained:
      Injunctions are an extraordinary remedy, which must be granted sparingly. Hiles v. Auto Bahn Fed’n, Inc., 498 So.2d 997, 998 (Fla. 4th DCA 1986). A temporary injunction may be entered if the party seeking the injunction establishes the following: (1) the likelihood of irreparable harm; (2) the unavailability of an adequate remedy at law; (3) a substantial likelihood of success on the merits; and (4) consideration of the public interest. Yardley v. Albu, 826 So.2d 467, 470 (Fla. 5th DCA 2002).

        Id. at 655; see also St. Johns Inv. Mgmt. Co. v. Albaneze, 22 So.3d 728 (Fla. 1st DCA 2009), review denied, 36 So.3d 655 (Fla.2010).


text:
    David GOODWIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-4784.
    District Court of Appeal of Florida, First District.
    April 16, 2012.
    Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

WOLF, PADOVANO, and MARSTILLER, JJ., concur.


text:
    HARVEY COVINGTON & THOMAS, LLC, as servicing agent for Harvey Covington & Thomas of South Florida LLC (“Harvey Covington”), Appellant, v. WMC MORTGAGE CORP., James Thompkins, Monica Thompkins, Unknown Parties,
    No. 1D10-4047.
    District Court of Appeal of Florida, First District.
    April 17, 2012.

      Amy L. Fischer and F. Malcolm Cunningham, Jr., of The Cunningham Law Firm, P.A., West Palm Beach, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

We reverse the summary final judgment of foreclosure issued in favor of the Appel-lee/Plaintiff, WMC Mortgage Corp. (‘WMC”). The Appellant, Harvey Coving-ton & Thomas, LLC (“Harvey Coving-ton”), raises three issues on appeal. Two of the three issues lack merit; however, we reverse on the basis of the third issue.

Harvey Covington filed a motion to continue, seeking delay of the summary judgment hearing in order to allow time for it ■to conduct discovery on the affidavits submitted by WMC. It stated in its motion that WMC had never responded to its discovery requests. The trial court found that “while the plaintiff has not provided the discovery requested by Harvey Cov-ington, in many respects, the discovery requested seeks information that borders on the irrelevant and in light of the age of this case,” the court denied the motion. The denial of this motion was error.

Harvey Covington may have been able to successfully challenge the affidavits as the only evidence of the amount due and owing on hearsay grounds, had it been allowed time to complete discovery and had the case then proceeded. See, e.g., Mazine v. M & I Bank, 67 So.3d 1129 (Fla. 1st DCA 2011). It is speculative at this stage whether discovery would in fact have shown the documents inadmissible or insufficient evidence, but "with discovery pending and such essential questions unresolved, the trial court abused its discretion in denying the motion to continue. See generally A.P.D. Holdings, Inc. v. Reidel, 865 So.2d 682 (Fla. 4th DCA 2004) (noting that a ruling on a motion to continue is reviewed for abuse of discretion); American Funding, Ltd. v. Hill, 402 So.2d 1369, 1370 (Fla. 1st DCA 1981) (observing that rule 1.380(a)(2) requires that, if a party fails to respond to a request for inspection under rule 1.350, the inspection shall be permitted as requested). Summary judgment should not be granted until the material facts have been sufficiently developed for the court to be reasonably certain that no genuine issue of material fact exists. See Brandauer v. Publix Super Markets, Inc., 657 So.2d 932, 933 (Fla. 2d DCA 1995). “Generally, it is an abuse of discretion for a trial court to grant summary judgment where the opposing party has not had an opportunity to complete discovery.” Crowell v. Kaufmann, 845 So.2d 325, 327 (Fla. 2d DCA 2003). Factual issues inherent in determining issues of agency may preclude summary judgment before discovery into the agency issue has been completed. See Vance v. Barton-Malow Thatcher, Inc., 680 So.2d 492, 494 (Fla. 1st DCA 1996).

Because the trial court granted summary judgment without allowing Harvey Covington to complete discovery on the colorable issue of the affidavits, we reverse and remand for further proceedings, including allowing the Appellant to conduct discovery on WMC’s affidavits.

DAVIS,' PADOVANO, and ROWE, JJ., concur.


text:
    Derek SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. ID12-0009.
    District Court of Appeal of Florida, First District.
    April 17, 2012.
    Derek Smith, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The amended petition seeking a belated appeal of the order rendered on or about August 19, 2011, denying petitioner’s motion to correct illegal sentence in Duval County Circuit Court case number 16-2007-CF-4995-AXXX-MA, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal.

PADOVANO, THOMAS, and RAY, JJ., concur.


text:
    Paul BRANCH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-1521.
    District Court of Appeal of Florida, First District.
    April 17, 2012.
    Paul Branch, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED as premature. See Frazier v. State, 964 So.2d 797 (Fla. 1st DCA 2007).

BENTON, C.J., ROWE and MAKAR, JJ., concur.


text:
    Edward GALSTYAN, Appellant, v. Irina GALSTYAN, Appellee.
    No. 4D11-641.
    District Court of Appeal of Florida, Fourth District.
    April 18, 2012.

      Ricardo E. Pines of Ricardo E. Pines, P.A., Coral Gables, for appellant.
    No brief filed on behalf of appellee.
   PER CURIAM.

The former husband appeals a final judgment of dissolution of marriage. The former wife did not file an answer brief. The trial court’s failure to make required findings of fact causes us to reverse. We reverse and remand for reconsideration of the alimony award, the lump-sum payment on the husband’s alimony arrearage, and that portion of the final judgment ordering the former husband to obtain life insurance and a bond to secure his alimony and child support obligations and the required factual findings.

I. Background

The former husband and wife were married for fifteen years and have two minor children. During the course of the marriage, the former husband sold furniture and then started his own business. The former wife did not work outside of the home. After the parties separated, the former husband earned no income; the former wife worked as a nanny and gymnastics instructor.

Prior to entry of the final judgment, the parties agreed that the former husband would pay $1,000.00 per month in child support for both children until the older child reached the age of eighteen, married, or died, whichever occurred first, at which time, his child support obligation would be reduced to $700.00 per month until the younger child reached the age of eighteen, married, or died, whichever occurred first. The parties also agreed that child support would continue for each child beyond the age of eighteen years in the event that such child was still in high school and was performing in good faith with a reasonable expectation of graduation before the age of nineteen. The child support payments were to commence on November 1, 2010, at which time the parties’ minor children were fifteen and sixteen years of age.

The parties then entered into a Stipulation and Agreed Judgment Establishing Child Support, which contained the foregoing provisions. Under this agreement, the former husband would be responsible for a total amount of $25,800. The cost of child support from November 1, 2010, until the older child reached the age of eighteen on March 1, 2012, would be $16,000 (16 months x $1,000). The cost of child support until the younger child reached the age of eighteen on May 81, 2013, would be $9,800 (14 months x $700). If both children remained in high school at the age of eighteen, but had a reasonable expectation of graduation before the age of nineteen, then the cost of child support until the older child reached the age of nineteen on March 1, 2013, would be $28,000 (28 months x $1,000). The cost of child support until the younger child reached the age of nineteen on May 31, 2014, would be $18,200 (26 months x $700). Under this scenario, the husband’s total child support obligation would amount to $46,200. The trial court ratified and incorporated this agreement into its October 28, 2010, Agreed Final Judgment Establishing Child Support.

After a hearing, the trial court entered its Final Judgment of Dissolution of Marriage (“Final Judgment”). The trial court awarded the former wife $5,000 per month in alimony for sixteen years. The trial court also ordered the former husband to pay the $23,500 in arrearages for undifferentiated support by making a lump-sum payment of $12,500 to the former wife within ten days of the entry of the Final Judgment and by paying the remainder at the rate of $500 per month.

The trial court also directed the former husband to obtain a one million dollar term life insurance policy to secure his alimony obligation, finding the former husband could afford the life insurance. The trial court also ordered the former husband to secure his alimony payments by posting bond in the amount of one million dollars.

In the portion of the Final Judgment entitled “Child Support and Related Expenses,” the trial court directed the former husband to obtain a $100,000 dollar term life insurance policy to secure his child support obligation and found that the former husband could afford the cost. The trial court also ordered the former husband to secure his child support (erroneously described as “alimony”) by posting bond in the amount of $100,000.

II. Alimony

Although we review a trial court’s award of alimony for an abuse of discretion, “ ‘[w]here a trial judge fails to apply the correct legal rule ... the action is erroneous as a matter of law.’ ” Ondrejack v. Ondrejack, 839 So.2d 867, 870 (Fla. 4th DCA 2003) (quoting Kennedy v. Kennedy, 622 So.2d 1033, 1034 (Fla. 5th DCA 1993)).

“Section 61.08(1), Florida Statutes ... mandates findings of fact relative to the factors enumerated in subsection 2 ... which lists several economic factors the trial court ‘shall consider’ in determining a proper award of alimony. Failure to consider all of the mandated factors is reversible error.” Ondrejack, 839 So.2d at 870. “In determining whether to award permanent periodic alimony, the trial court must consider the needs of the spouse requesting the alimony and the ability of the other spouse to make alimony payments.” Segall v. Segall, 708 So.2d 983, 987 (Fla. 4th DCA 1998). In determining ability to pay, the trial court must make specific findings of fact regarding the paying spouse’s financial resources. See Lift v. Lift, 1 So.3d 259, 261 (Fla. 4th DCA 2009).

A trial court abuses its discretion when it orders a spouse to make a monthly alimony payment which “greatly exceeds the [spouse’s] monthly income without competent substantial evidence that [his] actual monthly income exceeds his stated monthly income.” Bengisu v. Bengisu, 12 So.3d 283, 286 (Fla. 4th DCA 2009). When a trial court imputes income to the parties for the purposes of determining alimony, the imputation “must be supported by competent, substantial evidence.” Sallaberry v. Sallaberry, 27 So.3d 234, 236 (Fla. 4th DCA 2010).

Here, the trial court abused its discretion by awarding the wife $5,000 per month in alimony without making any specific factual findings concerning the former husband’s ability to pay or his financial resources or source of income. Although paragraph 5.3 of the Final Judgment states that the husband “is currently supporting himself’ and that he “has the responsibility to financially support the wife and children,” it fails to explain how the husband supports himself.

Additionally, the final judgment does not make any factual findings concerning the parties’ financial resources. In paragraph 5.8, the trial court states that the former wife “does not have the earning capacity to support herself in the lifestyle commensurate with the lifestyle established by the husband for her during the marriage. The husband is temporarily expressing his own financial problems but has the ability to pay alimony to the wife over time.” The trial court does not provide any particulars regarding the former husband’s “financial problems” and does not discuss how his financial problems impact his ability to pay alimony. Although the trial court determined that the former husband had the “responsibility” to provide alimony, without factual findings concerning the funds he has available, we cannot determine whether the former husband actually has the ability to pay $5,000 per month in alimony.

III. Child Support

We review a trial court’s ruling on child support arrearages for an abuse of discretion. Thompson v. Thompson, 989 So.2d 1237, 1239 (Fla. 4th DCA 2008). Although the trial court has discretion to determine how child support arrearages will be paid, it must take the paying spouse’s ability to pay into account. See Alois v. Alois, 937 So.2d 171, 176 (Fla. 4th DCA 2006); Orsini v. Orsini, 909 So.2d 558, 560 (Fla. 4th DCA 2005) (holding that the trial court abused its discretion in establishing an arrearages repayment plan without making any factual findings concerning the paying spouse’s ability to pay).

Here, the trial court abused its discretion by establishing a repayment plan without making factual findings regarding the former husband’s ability to pay. Aside from generalized statements that the former husband and wife have “limited financial resources” and “no assets that could be utilized to provide income,” and that the former husband is “currently supporting himself,” the Final Judgment is devoid of information concerning the former husband’s financial resources. This constitutes reversible error under Alois and Or-sini.

IV. Life Insurance and Bond Requirements

We review a trial court’s interpretation of a statute de novo. City of Parker v. State, 992 So.2d 171, 176 (Fla.2008).

Under sections 61.13(l)(c) and 61.08, the court maintains discretion to order the paying spouse to “purchase or maintain a life insurance policy or a bond” to secure an award of child support or alimony. §§ 61.08(3), .13(l)(c), Fla. Stat. (2008).

Generally, the conjunction “or” expresses the alternative and connotes a choice. See Pompano Horse Club v. State, 93 Fla. 415, 111 So. 801, 805 (1927). When the language of a statute “is unambiguous and conveys a clear and definite meaning, that meaning controls unless it leads to a result that is either unreasonable or clearly contrary to legislative intent.” Tillman v. State, 934 So.2d 1263, 1269 (Fla.2006).

Here, the word “or” in sections 61.13(l)(c) and 61.08(3) indicate the trial court may choose to order a paying spouse to obtain a life insurance policy or a bond, but not both. Under the plain reading of these two statutes, the trial court erred by requiring the husband to obtain both life insurance and a bond to secure his alimony and child support obligations.

Further, if a trial court orders a spouse to obtain life insurance, then it must make “specific findings as to the availability and cost of the policies and the impact of such cost on the husband.” Norman v. Norman, 939 So.2d 240, 241 (Fla. 1st DCA 2006); Davidson v. Davidson, 882 So.2d 418, 421 (Fla. 4th DCA 2004) (reversing and remanding the portion of a final judgment ordering the spouse to obtain life insurance because the trial court failed to make factual findings concerning the cost of the policy or the spouse’s ability to obtain or pay for it). “An order requiring a spouse to maintain a life insurance policy to secure alimony ‘is justified only if there is a demonstrated need to protect the alimony recipient.’ ” Forgione v. Forgione, 845 So.2d 968, 969 (Fla. 4th DCA 2008) (quoting Moorehead v. Moorehead, 745 So.2d 549, 552 (Fla. 4th DCA 1999)). The “demonstrated need” must be supported by competent, substantial evidence. Id. at 969-70.

Here, the portions of the final judgment pertaining to the husband’s obligation to obtain life insurance are devoid of factual findings concerning the cost of the policy or his ability to obtain and pay for it, other than the general conclusion that “the husband can afford the cost of life insurance.” Under Davidson, the trial court erred as a matter of law by justifying its decision without factual findings supported by the evidence.

Finally, when a trial court orders a spouse to obtain life insurance or a bond to secure a child support award, such an order must be supported by factual findings that it is “appropriately tailored to the obligation being secured.” Mackoul v. Mackoul, 32 So.3d 741, 743 (Fla. 1st DCA 2010). We review a trial court’s imposition of a security requirement for an abuse of discretion. Watford v. Watford, 605 So.2d 1313, 1315 (Fla. 4th DCA 1992).

As we have explained, “[a] court may not order a child support payer to maintain excessive insurance, when taking into account the total amount of the child support obligation that the insurance is designed to secure.” Lakin v. Lakin, 901 So.2d 186, 189 (Fla. 4th DCA 2005) (finding that the trial court imposed an excessive security when it required the husband to obtain a life insurance policy that was more than double the amount of the child support order).

Here, the trial court ordered the former husband to obtain a $100,000 insurance policy as well as a $100,000 bond to secure his child support obligation. As explained above, if the husband pays child support until both minor children reach the age of eighteen, then the total child support obligation amounts to $25,800. If, on the other hand, both minor children remain in high school past the age of eighteen, but have a reasonable expectation of graduation before the age of nineteen, then the former husband’s total child support obligation amounts to $46,200. Even under the latter, more costly, scenario, the security imposed by the trial court far exceeds the former husband’s child support obligation. Under Lakin, a $200,000 security is not appropriately tailored to meet a $46,200 child support obligation, let alone a $25,800 obligation.

Based upon the foregoing, we reverse the final judgment of dissolution of marriage and remand to the trial court for further proceedings consistent with this opinion.

Reversed and Remanded.

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


author: MAY, C.J.

text:
    K.S., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-345.
    District Court of Appeal of Florida, Fourth District.
    April 18, 2012.

      Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   MAY, C.J.

After pleading to carrying a concealed weapon, possession of less than twenty grams of cannabis, and possession of paraphernalia, a juvenile appeals an order denying her motion to suppress. She argues the trial court erred in denying her motion because law enforcement lacked reasonable suspicion for the stop and could not provide articulable facts to support probable cause for the pat-down. We agree with the second argument and reverse.

At the motion to suppress hearing, a female officer testified that around 1:46 a.m. she noticed a parked car running with the headlights on, but the tag light off. The officer acknowledged that a disabled tag light is a nonmoving violation. The car was parked in a lot near a closed business.

The officer turned on her emergency lights and spotlight, and conducted a traffic stop. She approached from the driver’s side and saw occupants in the car with the windows down. Her male backup officer approached from the passenger’s side.

The female officer saw the juvenile “in the front seat passenger rummaging through the floorboard/center console area moving her shoulders about.” Because she couldn’t see what the juvenile was doing, she asked her to put her hands up. She then asked the juvenile to exit the vehicle.

The female officer conducted a pat-down search for weapons, during which she found an unidentifiable hard, round object in the juvenile’s left hip area. The officer explained, “[i]t could’ve possibly been some sort of weapon, either a knife, taser, or small gun.” When the officer asked the juvenile what the object was, she responded that it was her “weed grinder.”

The officer took the object out, and performed a Valtox test, which showed positive for cannabis. She placed the item into evidence and took the juvenile into custody. The car door remained open. The juvenile’s purse was seen in plain view on the floorboard where the juvenile had been reaching. The male backup officer dealt with the purse.

The male officer testified that he saw the juvenile “rummaging through the vehicle toward the floorboard inside a purse and the under areas. [He] gave her two to three verbal commands to stop rummaging and — and put her hands up.” He testified that:

She would comply, and then two or three seconds later, right back to the— the floorboard area. It got to the point where I informed [the female officer] that — you know — we needed to check what was going on. Due to it being a female, [the female officer] and [I] switched positions — I went to the driver side; she went to the passenger side— and she took out the — [minor].

The male officer unstrapped the top strap to his gun holster because of what he saw. He searched her purse and found a black bottle that had “ ‘Police Magnum’ on it, and it was a pepper spray bottle.” The male officer ascertained that it was a concealed weapon because it was inside the purse. He charged the juvenile under section 790.01, Florida Statutes (2010).

The defense called an investigator, who took photographs of the area. He testified there were no businesses in that area; it was strictly residential with a few multifamily structures. There were no parking lots capable of holding sixty cars as the officer had indicated.

The defense argued that the car was not moving on a public road, but was parked in a residential setting. A potential future traffic violation is insufficient to make a traffic stop. Because the underlying traffic stop was illegal, the defense argued the seizure was illegal.

The State responded that the relevant statute requires a tag light to be lit when the headlights are on; it doesn’t require the vehicle to be moving. The police had a lawful reason to approach the car and write a citation for the tag light. As a result, the weapons pat-down was warranted. The defense replied that the officers did not articulate facts to provide probable cause that the juvenile had a weapon.

The trial court denied the motion, finding that the officers had the authority to make a brief stop to issue the non-moving citation. They had the right to ask the juvenile to step out of the car for the officers’ safety. The trial court explained, “[t]he officer did a pat-down, resembled something round and hard in her waistband .... I think that gave the officer a legal authority for her safety to remove it. But I think it would’ve been discovered inevitably.”

On appeal, the juvenile argues the trial court erred in denying her motion to suppress because the evidence failed to establish probable cause that she was armed or posed a threat to officer safety. The State responds that the officers had the lawful authority to conduct a traffic stop, and the juvenile’s furtive movements gave them a reasonable belief that she might be armed. This gave the officers the authority to conduct a lawful pat-down of the juvenile, revealing illegal contraband.

We review an order on a motion to suppress under a mixed standard. We are bound by the trial court’s findings of fact, but have de novo review of the legal issues. State v. Holland, 76 So.3d 1032, 1034 (Fla. 4th DCA 2011).

“The ‘Florida Stop and Frisk Law’ allows law enforcement officers to detain a person temporarily to ascertain the person’s identity and the ‘circumstances of his presence’ when there are reasonable indications ‘that such person has committed, is committing, or is about to commit a violation of the criminal laws of this state.’ ” Sutton v. State, 698 So.2d 1321, 1323 (Fla. 2d DCA 1997) (quoting § 901.151(2), Fla. Stat. (1993)).

However, a valid stop ... does not necessarily validate a subsequent pat-down search of the occupants for weapons. The Florida Stop and Frisk Law allows an officer, who has validly stopped an individual, to search the individual only if the officer has probable cause to believe that the individual is armed with a dangerous weapon and poses a threat to the officer or any other person.

Dewberry v. State, 905 So.2d 963, 966 (Fla. 5th DCA 2005) (emphasis added) (citations omitted).

Furtive movements or evasive behavior can be considered in determining whether there is a reasonable belief that someone is armed and dangerous. Brown v. State, 863 So.2d 459, 461 (Fla. 5th DCA 2004). However, “[p]at-down searches performed routinely or for safety purposes only” and without any articulable suspicion “are constitutionally impermissible.” D.L.J. v. State, 932 So.2d 1138, 1135 (Fla. 2d DCA 2006). “The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). “The touchstone of Fourth Amendment analysis is the reasonableness in all the circumstances of the governmental invasion of a citizen’s personal security.” Brown, 863 So.2d at 461.

Here, the responding officer pulled up behind a vehicle, and properly sought to issue a traffic violation for an inoperable tag light. See State v. Petion, 992 So.2d 889, 895 (Fla. 2d DCA 2008) (“It is well established that an officer can stop a car for an inoperable tag light....”). After observing the juvenile rummage around the floorboard/center console, law enforcement asked the juvenile to exit the vehicle. We see nothing wrong with this request.

At this point in the encounter, however, there was no reason to believe the juvenile was armed. While the officers testified to the juvenile rummaging around, neither officer testified that they saw a bulge of any type or gave any reason to suspect the juvenile was armed, and the juvenile did nothing suspicious after having exited the vehicle. It was only after the pat-down that the officer felt the object, which did not in fact turn out to be a weapon.

Had the officers not found the “weed grinder” during the pat-down, the juvenile would not have been arrested, and there would have been no reason to go inside the vehicle to search her purse. We therefore reverse and remand the case to the trial court to vacate the disposition order and finding of guilt.

Reversed and Remanded.

GROSS and DAMOORGIAN, JJ., concur.

      . Section 901.151(5) speaks in terms of "probable cause,” however, courts have suggested that "probable cause” in this context is akin to "reasonable suspicion” or a "reasonable belief” that the person is armed. See Smith v. State, 925 So.2d 465, 467 (Fla. 4th DCA 2006); State v. Webb, 398 So.2d 820, 824 (Fla.1981).

      . Section 316.221 governs taillamps in motor vehicles and provides, in relevant part:
      (2) Either a taillamp or a separate lamp shall be so constructed and placed as to illuminate with a white light the rear registration plate and render it clearly legible from a distance of 50 feet to the rear .... [and] shall be so wired as to be lighted whenever the headlamps or auxiliary driving lamps are lighted.
      (3) A violation of this section is a noncriminal traffic infraction, punishable as a non-moving violation....
      § 316.221(2)-(3), Fla. Stat. (2010).


text:
    Christopher K. STANLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5447.
    District Court of Appeal of Florida, First District.
    April 19, 2012.
    Christopher K. Stanley, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

ROBERTS, WETHERELL, and ROWE, JJ., concur.


text:
    Carlton Lucius GOODSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2742.
    District Court of Appeal of Florida, First District.
    April 19, 2012.
    Robert A. Harper, Jr. and Robert A. Harper, III, of Harper & Harper Law Firm, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

PADOVANO, LEWIS, and WETHERELL, JJ., concur.


author: PADOVANO, J.

text:
    Daniel DECKER, Appellant, v. UNIVERSITY OF WEST FLORIDA, Appellee.
    No. 1D11-5021.
    District Court of Appeal of Florida, First District.
    April 24, 2012.

      Ryan M. Barnett of Whibbs & Stone, P.A., Pensacola, for Appellant.
    Anita Schonberger, Deputy General Counsel, University of West Florida, Office of the General Counsel, Pensacola, for Ap-pellee.
   PADOVANO, J.

Daniel Decker, a student at the University of West Florida, seeks judicial review of an administrative order imposing disciplinary sanctions against him for a violation of the university’s Academic Misconduct Code. We conclude that the order is not appealable to this court, because the university was not acting as an agency as defined in the Florida Administrative Procedure Act when it rendered the decision. The proper remedy is to seek review by certiorari to the circuit court. Because the notice of appeal was timely and otherwise sufficient to invoke appellate jurisdiction, we transfer the case to the Circuit Court for Escambia County.

A hearing panel assigned by the university found Mr. Decker guilty of cheating and suspended him as a student for two semesters. He appealed the decision to the provost, but the appeal was unsuccessful. On August 2, 2011, the provost wrote to Mr. Decker, explaining the reasons for upholding the decision by the hearing panel. Subsequently, on August 19, 2011, counsel for the university wrote to Mr. Decker, informing him that the provost’s decision was final and advising him that he had a right to seek judicial review by filing a petition for writ of certiorari in the circuit court. Mr. Decker appealed to this court in the apparent belief that the decision by the university amounted to final agency action under the Administrative Procedure Act. The notice of appeal was filed on September 19, 2011.

The university moved to dismiss the appeal on the ground that the notice of appeal was untimely. This argument would be well taken if we were to measure the time from the date of the first letter on August 2, 2011, but we are of the view that the second letter dated August 19, 2011, is the one that qualifies as a final administrative order. We base this conclusion on the language of the two letters. When measured from the date of the second letter, the notice of appeal filed on September 19, 2011, a Monday, was timely and therefore effective to invoke appellate jurisdiction.

The university also argued in the motion to dismiss that this court is not the appropriate forum for judicial review. This argument can be summarized in the form of a syllogism. The jurisdiction of the district courts of appeal to hear appeals from administrative orders is limited to decisions by administrative bodies that qualify as “agencies” under the Florida Administrative Procedure Act. The university was not acting as an “agency” with respect to the decision at issue because it was acting under a power created by the Florida Constitution and not by general law. Therefore, the order is not reviewable by appeal to a district court of appeal.

A decision is reviewable by appeal to a district court of appeal under the general provisions of the Administrative Procedure Act only if the person or entity rendering the decision falls within the statutory definition of an agency. See § 120.68(1), Fla. Stat.; Eckert v. Board of Com’rs of North Broward Hosp. Dist., 720 So.2d 1151 (Fla. 4th DCA 1998); Bryant v. Beary, 665 So.2d 385 (Fla. 5th DCA 1996). The Act limits the definition of an agency to persons or entities “acting pursuant to powers other than those derived from the constitution.” § 120.52(1), Fla. Stat. The significance of this limitation is clear: when an officer or agency is exercising power derived from the constitution, the resulting decision is not one that is made by an agency as defined in the Administrative Procedure Act.

The action taken in this case plainly falls within the scope of the power vested in the university by Article IX, section 7 of the Florida Constitution. Section 7(d) provides that the state board of governors shall “operate, regulate, control and be fully responsible for the management of the whole university system,” and section 7(c) states that each university within the system shall be operated by a board of trustees under powers granted by the board of governors. See Graham v. Haridopolos, 75 So.3d 315 (Fla. 1st DCA 2011); NAACP, Inc. v. Florida Bd. of Regents, 876 So.2d 636 (Fla. 1st DCA 2004). The order in question dealt with a matter arising in the course of the operation and management of the university. Hence, the order does not qualify as agency action as defined in the Administrative Procedure Act and it is not appealable to this court.

We recognize that there are a number of cases in which university disciplinary decisions have been reviewed by appeal to a district court of appeal. However, these decisions either predate the adoption of Article IX, Section 7, in November 2002, see Hardison v. Florida A & M University, 706 So.2d 111 (Fla. 1st DCA 1998); Wallace v. Florida A & M University, 433 So.2d 600 (Fla. 1st DCA 1983); Morfit v. University of South Florida, 794 So.2d 655 (Fla. 2d DCA 2001); Abramson v. Florida Int'l University, 704 So.2d 720 (Fla. 3d DCA 1998), or rely on precedents predating Article IX, Section 7, see Matar v. Florida Int'l University, 944 So.2d 1153 (Fla. 3d DCA 2006); Heiken v. University of Cent. Florida, 995 So.2d 1145 (Fla. 5th DCA 2008). Therefore, we do not consider these decisions to be persuasive on the issue presented here.

In the absence of a general law establishing a right to appeal, the order in this case is reviewable by certiorari. Rule 9.190(b)(3) of the Florida Rules of Appellate Procedure provides that “[rjeview of quasi-judicial decisions of any administrative body, agency, board, or commission not subject to the Administrative Procedure Act shall be commenced by filing a petition for certiorari in accordance with rule 9.100(b) and (c) unless review is provided by general law.” See Smull v. Town of Jupiter, 854 So.2d 780 (Fla. 4th DCA 2003). In this circumstance, appellate review is a matter of right, as it would be in the case of a plenary appeal. See Broward County v. G.B.V. Int’l, Ltd., 787 So.2d 838 (Fla.2001); City of Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla.1982).

We know from these authorities that certiorari is the proper remedy. However, the power to issue a writ of certiorari exists in the circuit courts as well as in the district courts of appeal. See Fla. Const. Art. V, § 5(b); Art. V, § 4(b)(3). That leaves us to identify the proper appellate forum for filing the petition. In analogous situations, the Florida courts have held that the petition should be filed in the circuit court. For instance, a final administrative decision by a local administrative body is initially reviewable by certiorari to the circuit court. See Haines City Community Development v. Heggs, 658 So.2d 523 (Fla.1995). The courts follow the same procedure when a state agency makes a decision that is statutorily excluded from the definition of an agency action. An administrative decision setting a parole release date, for example, is subject to judicial review in the circuit court, even though the parole commission otherwise qualifies as an agency under the Administrative Procedure Act. See Sheley v. Florida Parole Com’n, 720 So.2d 216 (Fla.1998). Based on these decisions, we conclude that the petition for writ of cer-tiorari must be filed in the circuit court.

Rule 9.040(c) of the Florida Rules of Appellate Procedure provides that “[i]f a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought,” and rule 9.040(b)(1) states that “[i]f a proceeding is commenced in an inappropriate court, that court shall transfer the cause to an appropriate court.” Applying these two rules, we treat the notice of appeal which was timely filed with the agency clerk, as a petition for writ of certiorari in the circuit court having territorial jurisdiction over the university. See Johnson v. Citizens State Bank, 537 So.2d 96 (Fla.1989). In this case, the proper forum is the circuit court for Escambia County.

In summary, we conclude that the notice of appeal was timely and therefore effective to initiate appellate review but that the order in question is not reviewable by appeal to this court. We treat the notice as a petition for writ of certiorari and transfer the case to the circuit court.

LEWIS and WETHERELL, JJ., concur.


text:
    Peter ROACH, Francine Roach, Mark Landau, Ella Landau, Geri Fessler and Eric Fessler, Appellants, v. TOTALBANK, a Florida banking corporation, Appellee.
    No. 4D10-3641.
    District Court of Appeal of Florida, Fourth District.
    April 25, 2012.

      William J. Berger and David K. Friedman of Weiss, Handler, Angelos, Cornwell, P.A., Boca Raton, for appellants.

      Suzan Jon Jacobs of Levine & Partners, P.A., Miami, for appellee.
   MAY, C.J.

Personal guarantors appeal a summary final judgment of foreclosure and recovery on the personal guarantees. They argue the trial court erred in striking their affirmative defenses of lack of personal jurisdiction and improper service, and in granting summary judgment on the foreclosure, as genuine issues of material fact remained unresolved. We affirm in part and reverse in part.

The borrower executed and delivered a promissory note and mortgage to the lender, encumbering both realty and personalty. The note specified a maturity date nearly eighteen months later. It also contained an option to extend the maturity date for a single six-month period based upon certain conditions (written request for extension, absence of default, and upfront payment of a one quarter of one percent “renewal fee”).

Each of the guarantors also executed and delivered a Continuing Unlimited Guaranty, by which each personally and unconditionally guaranteed repayment of the loan and accepted joint and several . liability regardless of the borrower’s liability. The borrower exercised the option to extend the maturity date in writing and paid the prescribed fee.

Thereafter, the borrower made another written request for a further ninety-day maturity date extension. The lender made clear that it would not approve a further extension without the borrower and guarantors providing certain information, including updated financial statements. The guarantors admitted in deposition that the lender made numerous demands for the information. Based on continuing promises that the information would be provided, the lender advised it would grant a forty-five, not ninety-day, extension. Two of the guarantors failed to provide the financial information prior to the scheduled maturity date.

About five months after the default, the lender sent letters demanding payment. The next month, the lender filed suit to: (a) foreclose its mortgage against the borrower; (b) recover on the note; and (c) recover on the separate guaranties. As to the four out-of-state guarantors, the complaint alleged that each was:

[S]ui juris and ... subject to [personal] jurisdiction, inter alia, as: operating, conducting, engaging in, or carrying on a business or business venture in this state ...; owning, using, possessing, or holding a mortgage or other lien on any real property within this state; breaching a contract in this state by failing to perform acts required by the contract to be performed in this state; and engaging in substantial and not isolated activity within this state.

The four out-of-state guarantors were each personally served with the complaint.

Before responding to the complaint, one of the guarantors called the lender’s attorney and indicated he was an attorney and would represent the defendants. He engaged in an email exchange, in which he agreed to respond on the merits without asserting jurisdictional or service defenses in exchange for the lender extending the time to respond and not objecting to an appearance pro hoc vice.

The guarantors subsequently responded through another attorney, admitted execution of the relevant loan documents, but alleged lack of jurisdiction and improper service of process with respect to the four out-of-state guarantors. They also filed a counterclaim alleging they relied on representations from the lender that the maturity date would be extended yet another year in exchange for their payment of an appraisal; their reliance also delayed construction, which would have been completed and sold for a profit, but for these misrepresentations. The lender moved to strike several of the defenses.

The trial court struck the affirmative defenses of lack of jurisdiction and personal service, finding those defenses to have been waived. The defendants were given fifteen days to amend.

The defendants sought to amend their affirmative defenses four times. The fifth and final version alleged the lender was estopped from accelerating, and had waived the right to accelerate, the loan balance. The lender moved to strike the defenses as legally insufficient, but subsequently withdrew the motion to strike and replied to the affirmative defenses.

The lender then moved for summary judgment. In its motion, the lender argued that the defenses: (a) failed to state any cognizable affirmative or other defense; (b) failed to contain requisite elements and/or sufficient ultimate facts; (c) were barred by provisions of the loan documents; (d) were barred by the statute of frauds; and (e) were barred by the parol evidence rule. The lender further argued that the affirmative defenses were disproved by the record. In support, the lender filed an Affidavit of Debt, other affidavits, and excerpts and exhibits from depositions. The borrower and guarantors filed affidavits and deposition excerpts in opposition to the motion.

The affidavit of the borrower’s corporate representative attested to the following: the lender agreed to extend the loan for another year in exchange for the borrower paying for another appraisal and an additional one-quarter of one percent of interest on the loan during the one year extension to be paid on the new maturity date; the borrower accepted the terms offered by the lender; and the borrower delayed construction in reliance upon the lender’s representation that the loan had been extended.

The affidavit of one of the guarantors also denied the default based on the extension of time and the verbal agreement of the parties. It provided that the lender debited $6,000 from the construction loan account for the appraisal, and continued to assure them that the loan had been extended for the additional year.

The trial court entered a final summary judgment of foreclosure. The trial court found the parties’ course of conduct revealed that all loan documents, including any extensions, were in writing and no competent evidence supported a waiver of that requirement. From this judgment, the guarantors appeal.

We review orders striking affirmative defenses for an abuse of discretion. Upland Dev. of Cent. Fla., Inc. v. Bridge, 910 So.2d 942, 944 (Fla. 5th DCA 2005). “In ruling upon a motion to strike, the trial court must resolve all doubts in favor of the pleading; thus, on review, where there is no showing that a pleading was plain fiction or undoubtedly false, the pleading must be reinstated.” Id.

The guarantors argue the trial court should have considered only the legal sufficiency of their affirmative defenses before striking them. The lender responds that the guarantors filed frivolous, legally insufficient affirmative defenses after agreeing not to dispute jurisdiction or service. Two affirmative defenses are at issue: (1) lack of personal jurisdiction; and (2) lack of service of process.

Here, while the guarantors raised insufficiency of service of process and lack of personal jurisdiction as affirmative defenses, they failed to plead those defenses with particularity as required by rule 1.140(b). Fla. R. Civ. P. 1.140(b). That rule requires that “[t]he grounds on which any of the enumerated defenses are based and the substantial matters of law intended to be argued shall be stated specifically and with particularity in the responsive pleading or motion. Any ground not stated shall be deemed to be waived....” Id. The guarantors merely recited the defenses without setting forth “the substantial matters of law intended to be argued” and without stating “with particularity” the bases for those defenses. As the trial court found, the guarantors waived those defenses. The trial court properly exercised its discretion and struck those affirmative defenses. Cf. Three Seas Corp. v. FFE Transp. Servs., Inc., 913 So.2d 72, 74-75 (Fla. 3d DCA 2005) (finding the affirmative defense of improper venue waived).

The guarantors next argue the trial court erred in granting summary judgment where there was conflicting material evidence as to whether the lender and borrower orally agreed to a one-year extension of the loan’s maturity date. The guarantors further argue the parol evidence rule does not bar the modification agreement. The lender responds that the affidavits in opposition to summary judgment contradicted the guarantors’ prior deposition testimony.

This court reviews summary judgments de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Florida law requires that “[t]he party moving for summary judgment bear[ ] the heavy burden of proving a negative — the nonexistence of a genuine issue of material fact. ‘If the record reflects even the possibility of a material issue of fact, or if different inferences can be drawn reasonably from the facts, that doubt must be resolved against the moving party and summary judgment must be denied.’ ” Doe v. N. Okaloosa Med. Ctr., Inc., 802 So.2d 1202, 1203 (Fla. 1st DCA 2002) (quoting Cox v. CSX Intermodal, Inc., 732 So.2d 1092, 1095 (Fla. 1st DCA 1999)). “[Sjummary judgment is appropriate only where each affirmative defense has been conclusively refuted on the record.” Pavolini v. Williams, 915 So.2d 251, 253 (Fla. 5th DCA 2005).

The lender argues the parol evidence rule and statute of frauds prohibit the guarantors from obtaining an extension of time by oral agreement. However, “[t]he parol evidence rule applies to verbal agreements between the parties to a written contract which are made before or at the time of execution of the contract. It does not apply to the admission of subsequent oral agreements that alter, modify, or change the former existing agreement between the parties.” Id. at 254 (emphasis added).

The statute of frauds generally prohibits a claim based on an oral agreement that is not to be performed within one year of its making. § 725.01, Fla. Stat. (2008). The guarantors argue that the statute of frauds does not bar their defense of equitable estoppel because the lender’s performance was complete upon its agreement to the extension of time, removing the oral agreement from the one year requirement of the Statute of Frauds. See Fla. Pottery Stores of Panama City, Inc. v. Am. Nat. Bank, 578 So.2d 801, 804 (Fla. 1st DCA 1991) (citing Yates v. Ball, 132 Fla. 132, 181 So. 341, 345 (1938)) (To fit within the statute of frauds, “it must be shown that neither party’s performance was intended to be complete within one year.”). Next, the guarantors argue that nothing in the oral agreement prevented them from paying off the loan before the end of the year. We find merit in both arguments, at least to the extent that they created genuine issues of fact, preventing the entry of summary judgment. Yates, 181 So. at 344 (finding the agreement at issue “con-tainted] no express provision that it should not be performed within a year....”).

Alternatively, a party may “ ‘ple[a]d themselves around’ the statute of frauds defense by demonstrating an estop-pel on the face of their pleading.” DK Arena, Inc. v. EB Acquisitions I, LLC, 31 So.3d 313, 324 (Fla. 4th DCA 2010) (quoting Young v. Pottinger, 340 So.2d 518, 520-21 (Fla. 2d DCA 1976)). Here, the guarantors assert that they detrimentally relied upon the lender’s oral representations to extend the maturity date as evidenced by their consent to the $6,000 deduction from the loan proceeds to obtain a new appraisal and their forgoing the development and sale of the project. This is sufficient to create at least a genuine issue of material fact precluding summary judgment.

While the parties had previously entered into other extensions of time in writing, the alleged oral agreement to extend the maturity date another year occurred after the written contracts were executed. The evidence introduced in opposition to the motion for summary judgment created issues of fact on whether the lender should be estopped from foreclosing on the loan. The record contains an affidavit directly attesting to the oral agreement and the guarantors’ reliance on it. Because the lender was unable to disprove the affirmative defense, it failed to meet its burden.

Genuine issues of material fact remain precluding summary judgment. We therefore reverse the final summary judgment and remand the case to the trial court.

Affirmed in part, Reversed in part, and Remanded for further proceedings.

STEVENSON and GROSS, JJ., concur.

      . The borrower’s amended counterclaim was later dismissed with prejudice for failure to state a cause of action based in part on Hillcrest Pacific Corp. v. Yamamura, 727 So.2d 1053 (Fla. 4th DCA 1999).

      . The borrower did not appeal.

      . It is important to note that both this case and DK Arena involve the use of equitable estoppel, not promissory estoppel, as a defense. The equitable estoppel defense has been recognized as a valid defense to the " 'new' statute of frauds which was enacted to protect lenders from liability for actions or statements a lender might make in the context of counseling or negotiating with the borrower which the borrower construes as an agreement, the subsequent violation of which is actionable against the lender.” Brenowitz v. Cent. Nat’l Bank, 597 So.2d 340, 342 (Fla. 2d DCA 1992) (footnote omitted).


text:
    VERO BEACH REAL ESTATE INVESTORS, L.L.C. and Eric Levine, Appellants, v. JERICHO STATE CAPITAL CORP. of Florida, Andrea Levine and Stuart Kramer, Appellees.
    No. 4D11-710.
    District Court of Appeal of Florida, Fourth District.
    April 25, 2012.

      Karl M. Scheuerman and Robert Rivas of Sachs Sax Caplan, P.L., Tallahassee, for appellants.
    Lee Milich of Lee Milich, P.A., Fort Lauderdale, for appellees.
   PER CURIAM.

Appellant, Vero Beach Real Estate Investors, LLC (“VBRE”), a dissolved limited liability company, appeals an order which dismissed all the counts it brought in a Fourth Amended Complaint against Jericho State Capital Corporation of Florida (“Jericho”). We affirm the dismissal. The trial court correctly concluded that VBRE lacked standing because it assigned its claims against Jericho to the members of VBRE. We note that the counts asserted by the co-plaintiff, Eric Levine, a former member of VBRE, remain pending.

We understand VBRE’s concerns about the inconsistent positions taken by Jericho during this litigation. In seeking dismissal of Levine’s claims in earlier versions of the complaint, Jericho argued that Levine lacked standing because there was no valid assignment of VBRE’s claims against Jericho to Levine. We write this opinion to make it clear that our affirmance is based on the conclusion that VBRE assigned its claims against Jericho to the managing members of VBRE, including Levine. Therefore, it is now the law of the case that Levine received a valid assignment of VBRE’s claims against Jericho.

Affirmed.

TAYLOR, CIKLIN and GERBER, JJ„ concur.


text:
    Guillermo A. ALONSO and Adriana Alonso, Appellants, v. The BANK OF NEW YORK MELLON TRUST COMPANY, National Association f/k/a The Bank of New York Trust Company, N.A., as successor to JPMorgan Chase Bank, N.A., as Trustee for RFMSI 2003S20, Appellee.
    No. 4D11-39.
    District Court of Appeal of Florida, Fourth District.
    April 25, 2012.
    Jay L. Farrow of Farrow Law, P.A., Davie, for appellants.
    D. Brian O’Dell and Ann T. Taylor, Bradley Arant Boult Cummings LLP, Birmingham, Alabama, for appellee.
   PER CURIAM.

Affirmed. See Beaulieu v. J.P. Morgan Chase Bank, N.A., 80 So.3d 365 (Fla. 4th DCA 2012).

WARNER, STEVENSON and GROSS, JJ., concur.


text:
    Audley FEARON and Charmaine Fearon, Appellants, v. BANKUNITED, FSB, Appellee.
    No. 4D11-2085.
    District Court of Appeal of Florida, Fourth District.
    April 25, 2012.
    Jay L. Farrow of Farrow Law, P.A., Davie, for appellants.
    Patricia M. Baloyra and Francisco Armada of Broad and Cassel, Miami, for appellee.
   PER CURIAM.

Affirmed. See Beaulieu v. J.P. Morgan Chase Bank, N.A., 80 So.3d 365 (Fla. 4th DCA 2012).

WARNER, STEVENSON and GROSS, JJ., concur.


text:
    LAGUNA BEACH PROPERTIES, LLC and William Ronald Browning, Appellants, v. Andrew GOTHARD, Appellee.
    No. 1D12-0860.
    District Court of Appeal of Florida, First District.
    April 27, 2012.
    Daniel W. Uhlfelder, Grayton Beach, for Appellant.
    Charles M. Wynn, Marianna, for Appel-lee.
   PER CURIAM.

The appellee’s motion to dismiss, filed February 20, 2012, is granted and the appeal is hereby DISMISSED. See Fla. R.App. P. 9.110(b).

LEWIS, CLARK, and MARSTILLER, JJ., concur.


text:
    Charles B. BARNIV, Cynthia Barniv and Bruce Witkind, Appellants, v. BANKTRUST, an Alabama Banking corporation, CCB, L.L.C., a Florida Limited Liability Company, L & J Development, L.L.C., a Florida Limited Liability Company, and Driftwood Estates Phase II Homeowners Association, Inc., a Florida Non-profit Corporation, Appellees.
    No. 1D11-6828.
    District Court of Appeal of Florida, First District.
    April 27, 2012.

      John N.C. Ledbetter of Ledbetter & Associates, P.L., Destín, for Appellants.
    George M. Walker and Paul T. Beck-mann of Hand Arendall LLC, Mobile, AL; C. Jeffrey Mclnnis of Anchors Smith Grimsley, PLC, Fort Walton Beach, for Appellees.
   PER CURIAM.

We reverse the lower court’s order denying appellants’ emergency motion to quash writs of execution and garnishment, because appellants’ counterclaims against appellee remain pending. See Millennium Group I, L.L.C. v. Attorneys Title Insurance Fund, Inc., 847 So.2d 1115 (Fla. 1st DCA 2003); Norris v. Paps, 615 So.2d 735 (Fla. 2d DCA 1993); Peterson v. Affordable Homes of Palm Beach, Inc., 65 So.3d 112 (Fla. 4th DCA 2011); Carpenter v. Super Pools, Inc., 534 So.2d 426 (Fla. 5th DCA 1988); Davar Corp. v. Tropic Land Improvement Corp., 330 So.2d 482 (Fla. 4th DCA 1976).

REVERSED and REMANDED.

PADOVANO, LEWIS, and WETHERELL, JJ., concur.


text:
    POLK COUNTY BOARD OF COUNTY COMMISSIONERS and Commercial Risk Management, Appellants, v. Monica J. LYON-SPIRES, Appellee.
    No. 1D11-4944.
    District Court of Appeal of Florida, First District.
    April 27, 2012.
    Thomas P. Vecchio of Vecchio, Carrier & Feldman, P.A., Lakeland, for Appellants.
    Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee, Joshua C. Nelson of Smith, Feddeler, Smith & Miles, P.A., Lakeland, and Susan W. Fox of Fox & Loquasto, P.A., Orlando, for Appellee.
   PER CURIAM.

In this workers’ compensation case, the Employer/Carrier (E/C) seeks review of an order of the Judge of Compensation Claims (JCC) ruling Dr. Khan remains authorized for medical care, and awarding Claimant “a reasonable attorney’s fee,” reserving jurisdiction to set the amount. As to that portion of the order which determines entitlement to attorney’s fees but reserves jurisdiction to set the amount of the fee, we dismiss the appeal for lack of jurisdiction. See Se. Recycling v. Cottongim, 728 So.2d 342 (Fla. 1st DCA 1999); see also Zampell Refractories, Inc. v. Welch, 61 So.3d 1160 (Fla. 1st DCA 2011); Wometco Enters. v. Cordoves, 650 So.2d 1117 (Fla. 1st DCA 1995). As to the remainder of the order, we affirm without further comment.

ROBERTS, WETHERELL, and ROWE, JJ., concur.


text:
    In re Charles WILLIAMS.
    No. 2011-B-1457.
    Supreme Court of Louisiana.
    Jan. 24, 2012.

      Charles Bennett Plattsmier, Baton Rouge, LA, Robert Samuel Kennedy, Jr., Shreveport, LA, for Applicant.
    Charles Williams, for Respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

11 This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Charles Williams, an attorney licensed to practice law in Louisiana, but currently suspended from practice.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent’s prior disciplinary history. Respondent was admitted to the practice of law in Louisiana in 1977. In 1985, respondent was privately reprimanded by the Committee on Professional Responsibility for issuing a $100 check drawn on a closed bank account and thereafter refusing to make the check good, despite repeated attempts by the payee to collect.

In 1986, this court suspended respondent for a minimum term of two years for improperly entering into a business transaction with a client, charging an excessive legal fee in a worker’s compensation case, and neglecting a legal matter. Louisiana State Bar Ass’n v. Williams, 498 So.2d 727 (La.1986) (“Williams I”). The court’s judgment in Williams I provided that respondent could seek reinstatement at the end of the two-year period, provided he had fulfilled certain | ¡.conditions; however, if respondent had not fulfilled all of the specified conditions, “his suspension from the practice of law shall continue indefinitely.”

Respondent had not sought reinstatement from his suspension in Williams I when it came to the ODC’s attention that in 1998, while employed as a paralegal, respondent had accompanied two of his employer’s clients to sworn statements taken by counsel for the insurance company in a personal injury claim. Respondent actively participated in the sworn statements, indicated that he was an attorney, and advised the clients how to answer questions asked of them. In 2003, respondent was suspended for an additional two years, with all but one year and one day deferred, for his unauthorized practice of law. In re: Williams, 02-2698 (La.4/9/03), 842 So.2d 353 (“Williams II”). Respondent has not been reinstated from his suspension in Williams II, nor has he fulfilled the conditions of reinstatement ordered in Williams I; accordingly, respondent remains suspended from the practice of law.

Against this backdrop, we now turn to a consideration of the misconduct at issue in the present proceeding.

UNDERLYING FACTS

It is undisputed that on Thanksgiving Day, November 25, 2004, respondent shot and killed Larry Broome, with whom he had been friends for some thirty-five years. The shooting occurred in the course of an altercation between respondent |3and the victim in the parking lot of the Club Nexus bar in Benton, Louisiana. Respondent has consistently maintained that he acted in self-defense.

Respondent was arrested following the shooting and charged with manslaughter. On May 9, 2006, respondent pleaded guilty as charged. Pursuant to a plea agreement, he was sentenced to serve ten years at hard labor, suspended, and placed on active probation for three years with special conditions. However, unbeknownst to the parties involved in the plea colloquy, the trial judge lacked the authority to suspend respondent’s sentence and to place him on probation.

Thereafter, respondent appealed the legality of his sentence. In February 2009, this court vacated the sentence and remanded the matter to allow respondent the opportunity to withdraw his guilty plea and to plead anew. State ex rel. Williams v. State, 08-1059 (La.2/6/09), 999 So.2d 1136. Upon remand, respondent pleaded not guilty, and the Bossier Parish District Attorney’s Office ultimately declined to prosecute the matter any further.

DISCIPLINARY PROCEEDINGS

In July 2007, the ODC filed one count of formal charges against respondent, alleging that by his actions as set forth above he has committed a criminal act in violation of Rule 8.4(b) of the Rules of Professional Conduct. In January 2008, the ODC supplemented and amended the formal charges to assert that permanent disbarment is appropriate in this case.

Respondent answered the formal charges and denied any misconduct. He contended that he entered a guilty plea to the manslaughter charge in 2006 as a result of his “extensive and coercive incarceration” in the Bossier Parish jail 1 ¿following his arrest, and he maintained that he had acted in self-defense in the shooting death of the victim. Respondent therefore suggested that the formal charges should be dismissed. In response to the amended formal charges, respondent again contended that he acted in self-defense and therefore did not violate the Rules of Professional Conduct. Furthermore, respondent denied that his conduct justifies the imposition of permanent disbarment.

This matter was originally set for hearing in October 2007; however, that hearing was continued pending further proceedings in respondent’s criminal case. A hearing was subsequently held in March 2008, at which time the ODC introduced the certificate of respondent’s conviction and rested. Respondent testified on his own behalf. The hearing committee then took the matter under advisement pending the outcome of respondent’s appeal of his sentence.

As discussed above, respondent’s appeal was successful. His guilty plea was vacated, and in 2009, the criminal case was concluded when the Bossier Parish District Attorney’s Office decided not to prosecute the matter further. Accordingly, the ODC was unable to pursue discipline based upon Supreme Court Rule XIX, § 19, which requires a criminal conviction. Nevertheless, the ODC chose to proceed with the formal charges against respondent based upon allegations that he committed a criminal act, in violation of Rule 8.4(b) of the Rules of Professional Conduct. A second hearing was held to consider this issue in August 2010. During the hearing, the ODC called two witnesses to testify: Vernon Broome (the brother of the victim) and Detective Thomas C. Bloxom, a deputy with the Bossier Parish Sheriffs Office. Respondent testified on his own behalf and on cross-examination by the ODC.

The evidence as adduced at the hearing may be summarized as follows. In December 2008, the victim invited respondent to work at his bar, Club Nexus, which is located in a sparsely populated, rural area on the outskirts of Benton, ^Louisiana. The victim offered to pay respondent $700 a week for this employment, and said respondent could live with him in the house he owned in the back of the club. Respondent agreed to the arrangement and moved to Benton from his home in New Orleans.

On Thanksgiving Day in 2004, the victim was still asleep when respondent left the house to take a walk. As he often did, respondent went to visit Vernon Broome, whose house was about half a mile north of the club on Highway 3. Respondent always carried his .32 caliber pistol with him when he walked in this area, as there were snakes in the nearby woods.

A short time later, at about 11:00 a.m., John Charles Griffin, a friend of Vernon Broome, drove to Vernon Broome’s house to tell respondent that a customer had shown up at the club to purchase liquor, but the club was closed. Respondent was told or surmised that the victim was now awake and was angry he had not yet opened the club, so he rode back to the club with Mr. Griffin. Vernon Broome said he would get his dog and would be along in a few minutes.

When respondent and Mr. Griffin arrived at the club, the victim was in the parking lot. The victim told respondent to get off his property, and an altercation ensued between them. Mr. Griffin did not intervene and decided to leave the club. Just as he started to pull out of the parking lot, Vernon Broome drove up. Mr. Griffin stopped and told Vernon Broome that he needed to speak with him back at his house. Vernon Broome heard the victim and respondent arguing; nevertheless, he turned around to put the dog back into his truck so that he could go home to talk with Mr. Griffin. Vernon Broome then got into the truck and started to drive away. IfiAs he did so, he heard a gunshot. Vernon Broome put the truck into reverse and backed up into the parking lot, where he saw the victim slumped against his truck with his chin on his chest. Vernon Broome got out of the truck and ran toward respondent, who was holding a gun in his hand, and asked respondent whether he had shot the victim. Respondent mumbled something in reply and then threw the gun into some weeds on the south side of the parking lot.

Vernon Broome ran into the club and called 911, but he dropped the telephone before speaking to an operator. Vernon Broome then went back into the parking lot and he and respondent put the victim into his truck and took him to the Benton fire station. The victim was airlifted from the fire station to the LSU Medical Center in Shreveport, but he died en route to the hospital or shortly after arriving there.

The Bossier Parish Sheriffs Office was dispatched to the club by the 911 operator. Officers found a spent .32 caliber shell casing and respondent’s .32 caliber pistol in the parking lot of the club, and a spent .380 caliber shell casing on the sidewalk in front of the house at the rear of the club premises. After using respondent’s key to gain access to the house, the police found the victim’s .380 caliber pistol on his bed underneath a pillow.

When the police took respondent’s statement, he explained that upon arriving at the club with Mr. Griffin, the victim immediately pulled him out of the truck and started yelling at him about why he had not already opened the club for the day. The victim then began punching respondent with his left hand, keeping his right hand in the pocket of his jacket. Respondent said that he knew the victim owned a gun, a .380 caliber pistol, and that he always had the gun with him in his 17pocket. Fearing that his life was in danger, respondent fired a single shot at the victim, striking him in the chest:

And you know he was telling me you know get off my property, such and such and so and so. And one thing led to another. And he pushed me all the way from behind the truck and all that. I don’t know if Vernon and them saw everything. But then he punched me on the left side of my jaw. And when he got to the truck door he told me to go for it. You know like he was gonna shoot me. And I went for it. And you know I was trying to hit him in the arm, but it happened so fast. And when I realized I hit him that’s when I threw the pistol away and called Vernon and tried to get him to the hospital as soon as possible. [Emphasis added.]

Respondent told the detective that when the victim told him to “go for it,” while holding his hand in his pocket as if a gun were there, he perceived he was being threatened. Furthermore, he stated that the victim was a “big dude” much larger than he was, and that the victim had been violent towards him in the past. Notably, however, no gun was found on the victim’s person, and the detective who conducted the interview did not observe any wounds on respondent’s head or face, or any tears in the clothing he was wearing.

An autopsy was subsequently performed on the victim’s body. The report of the autopsy states that the victim’s death was due to a gunshot wound of the chest, resulting in severe blood loss from multiple organ lacerations. The entrance wound was on the left anterior axillary line at the level of the left axilla. The bullet path was anterior to posterior, left to right, and superior to inferior. The bullet fractured the second rib on the left anterior axillary line, lacerated both upper and lower lobes of the left lung, fractured the left sixth rib near the spine, and then | traveled downward along the spine. The bullet was lodged in the muscle adjacent to the left side of the spine.

Hearing Committee Report

After reviewing the testimony and the evidence presented at the hearing, the hearing committee made the following factual findings:

Respondent claims that as soon as Mr. Griffin drove up to the club, the victim pulled him out of the truck, threw him to the ground, and began beating him. However, when Mr. Griffin testified during the preliminary examination hearing in respondent’s criminal case, he did not corroborate respondent’s assertion that he had been pulled from the truck and beaten. Mr. Griffin also did not confirm that the victim threatened respondent by implying he had a gun in his hand in his jacket. However, Mr. Griffin did verify that respondent and the victim had “a heated argument.”

About five minutes after respondent arrived at the club with Mr. Griffin, Vernon Broome came by to walk his dog. When he arrived, Vernon Broome saw the victim and respondent in the parking lot. The victim was working on the door to his truck, and Vernon Broome heard him tell respondent to get his clothes and get off his property. Vernon Broome did not witness a physical confrontation between the victim and respondent, but as he drove out of the parking lot, he heard a gunshot. The committee found Vernon Broome’s various statements about these events are consistent, from his interview with police on the date of the shooting to his testimony at the December 2005 preliminary examination and during the formal charge hearing.

|9In determining whether respondent was justified in shooting the victim, the committee noted his testimony from the 2008 formal charge hearing that he fired his gun after the victim had shot at him, but missed. The committee rejected this testimony, finding the victim was not armed. The committee also rejected any assertion by respondent that someone tampered with the gun owned by the victim, as it was found locked in his house on his bed. Finally, the committee rejected respondent’s claim that he acted in self-defense:

Two witnesses, Vernon Broome and John Griffin, were the only ones who could have corroborated that Larry Broome was attacking Charles Williams, but they did not. The police officer who interrogated Charles Williams immediately after the shooting did not notice that Charles Williams had any injuries about his face or hands. The officer did not see that any of his clothes were ripped or torn. Charles Williams did not seek any medical treatment. With these facts we have to question a claim of self-defense, especially since both Vernon Broome and John Griffin heard Larry Broome tell Charles Williams to get his things and get off his property. It does not sound like Larry Broome is the aggressor; he is giving Charles Williams the chance to leave.

Based upon its factual findings, the committee concluded respondent committed a criminal act in violation of Rule 8.4(b) of the Rules of Professional Conduct. The applicable baseline sanction is disbarment.

The committee found no mitigating factors present. As an aggravating factor, the committee found respondent has prior discipline in Williams I.

Under these circumstances, the committee recommended respondent be disbarred.

| inThe ODC filed an objection to the hearing committee’s report, arguing the committee failed to conduct an appropriate review of the record to determine whether the offense of manslaughter was proven. The ODC also maintained that the sanction recommended by the committee is too lenient, and that permanent disbarment is warranted.

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee’s factual findings are supported by the record and are not manifestly erroneous. Accordingly, the board adopted the factual findings contained in the committee’s report. Based on these facts, the board agreed with the committee that respondent violated Rule 8.4(b) of the Rules of Professional Conduct. The board reasoned that although respondent was not convicted of manslaughter, he admits that he shot and killed the victim. Moreover, the committee correctly found the ODC proved by clear and convincing evidence that respondent was not acting in self-defense when he committed the crime.

The board determined that respondent knowingly violated duties owed to the public and to the profession, causing actual injury. Relying upon Standard 5.11 of the ABA’s Standards for Imposing Lawyer Sanctions, the board found the baseline sanction for respondent’s misconduct is disbarment.

The board found the aggravating factor of prior disciplinary offenses is present. The board found no mitigating factors supported by the record.

Considering respondent’s misconduct in light of the permanent disbarment guidelines and the prior jurisprudence of this court, the board recommended respondent be permanently disbarred.

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

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

In a disciplinary proceeding against an attorney who has been convicted of a crime, the attorney is conclusively presumed to be guilty of the crime. See Supreme Court Rule XIX, § 19(E). In such cases, the ODC bears no additional burden to prove the attorney’s criminal conduct; the sole issue to be determined is whether the crime warrants discipline and, if so, the extent thereof. Id.

The fact that an attorney has not been convicted of a crime does not preclude the ODC from proving the attorney committed a criminal act in violation of Rule 8.4(b) of the Rules of Professional Conduct. See, e.g., In re: Ruffin, 10-2544 (La.1/14/11), 54 So.3d 645; In re: Richard, 10-1479 (La.11/30/10), 50 So.3d 1284; In re: Clark, 09-1631 (La.12/1/09), 25 So.3d 728; and In re: Domm, 07-0348 (La.9/21/07), 965 So.2d 380. However, in such cases, the ODC is not entitled to the benefit of the presumption in Supreme Court Rule XIX, § 19(E) and must instead 1 T;>bear the burden of proving by clear and convincing evidence that the attorney committed a criminal act.

In the instant case, the undisputed facts establish that respondent shot and killed the victim. Nonetheless, respondent has taken the position that the shooting was justified pursuant to La. R.S. 14:20 because he reasonably believed he was in imminent danger of losing his life or receiving great bodily harm, and that killing the victim was necessary to save himself. Therefore, the ODC is required to establish that respondent did not act in self-defense when he shot Mr. Broome, and that the shooting was unjustified.

The hearing committee, which heard the testimony of respondent and other witnesses, made a factual finding that respondent did not act in self-defense. In reaching this conclusion, the committee made the following factual determinations: (1) respondent’s version of the altercation with Mr. Broome was not corroborated by the testimony of the witnesses; (2) the witnesses heard Mr. Broome tell respondent that he should collect his belongings and leave the premises, which suggests Mr. Broome was not the aggressor; and (3) the police officer who investigated the shooting did not observe any injuries to respondent’s face or hands, and respondent did not seek medical treatment after the incident. Based upon these facts, the committee concluded that respondent was not acting in self-defense when he shot Mr. Broome.

In bar disciplinary cases involving credibility determinations, we generally defer to the factual findings of the hearing committee members who act as the eyes and ears of this court. See In re: Geiger, 09-2344 (La.2/12/10), 27 So.3d 280; In re: Holliday, 09-0116 (La.6/26/09), 15 So.3d 82; In re: Bolton, 02-0257 (La.6/21/02), 820 So.2d 548. This standard of review is not dissimilar from the standard we apply in civil cases, where it is well settled that when the findings are based on determinations regarding the credibility of witnesses, the manifest error-_Jclearly13 wrong standard demands great deference to the findings of fact, for only the factfinder is cognizant of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840 (La.1989).

Based on our review of the record, we find no manifest error in the hearing committee’s factual determinations. As the committee found, respondent’s account of the altercation, in which he characterized the victim as the aggressor, was not supported by the testimony of other witnesses or by the physical evidence. Accordingly, we find the ODC met its burden of proving that respondent committed a criminal act when he shot and killed the victim, in violation of Rule 8.4(b) of the Rules of Professional Conduct.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any |14 aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

The record demonstrates that respondent knowingly violated duties owed to the public and to the profession, causing actual injury. The baseline sanction for respondent’s misconduct is disbarment.

Respondent’s prior disciplinary offenses are an aggravating factor in this case. The only mitigating factor present is the imposition of other penalties or sanctions, namely the eighteen months respondent spent in jail following his arrest.

Under the circumstances, we see no reason to deviate from the baseline sanction of disbarment. Accordingly, the sole remaining inquiry is whether respondent’s offenses are so egregious that he should be permanently prohibited from applying for readmission to the bar.

In Appendix E to Supreme Court Rule XIX, we set forth guidelines illustrating the types of conduct which might result in permanent disbarment. While these guidelines are not intended to bind this court in its decision-making process, they present useful information concerning the types of conduct we might consider worthy of permanent disbarment, including the following:

GUIDELINE 9. Instances of serious attorney misconduct or conviction of a serious crime, when the misconduct or conviction is preceded by suspension or disbarment for prior instances of serious attorney misconduct or conviction of a serious crime. Serious crime is defined in Rule XIX, Section 19. Serious attorney misconduct is defined for purposes of these guidelines as any misconduct which results in a suspension of more than one year.

Here, respondent’s violation of Rule 8.4(b) is unquestionably serious attorney misconduct. This misconduct was preceded by his suspensions in 1986 and 2003 for prior instances of serious attorney misconduct. Therefore, both elements of Guideline 9 are satisfied.

11sWe have long recognized that permanent disbarment is the most serious form of professional discipline this court can impose and should be reserved for those cases where the attorney’s actions demonstrate a lack of moral fitness to practice law. See, e.g., In re: Smith, 09-2523 (La.3/12/10), 29 So.3d 484; In re: Jefferson, 04-0239 (La.6/18/04), 878 So.2d 503; In re: Morphis, 01-2803 (La.12/4/02), 831 So.2d 934. The facts of the instant case, considered together with respondent’s disciplinary history, evidence a convincing lack of character and moral fitness on respondent’s behalf. To maintain the integrity of the profession and to protect the public, we must permanently disbar respondent.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that the name of Charles Williams, Louisiana Bar Roll number 13493, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . These conditions included the payment of $8,275 in restitution to two clients, attainment of a satisfactory score on the Multistate Professional Responsibility Examination, and payment of all costs of Williams I.

      . It is noteworthy that Mr. Broome was also a Louisiana-licensed attorney, but was suspended from the practice of law at the time of his death. In re: Broome, 01-2260 (La.2/26/02), 815 So.2d 1.

      . La. R.S. 14:20(A)(1) provides that a homicide is justifiable if "committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.”

      .La.Code Crim. P. art. 893(A) provides that the court may not suspend the sentence of a conviction for a crime of violence, including manslaughter.

      . Respondent purchased the gun for $100 from a customer of the club. He carried the gun for protection while working at the club, and used it for target practice, in addition to carrying it with him on his walks.

      . Mr. Griffin testified at the preliminary examination conducted in respondent’s criminal case, but he was not called to testify at the disciplinary hearing. During the preliminary examination, Mr. Griffin testified he also heard the gun shot, but he thought "it was somebody shooting in the air or something.” He continued on to Vernon Broome's house and did not return to the club.

      . According to the report of the autopsy, the victim was 6'5" tall and weighed between 230-250 pounds. Respondent is 5'11" tall and weighed about 150 pounds.

      . By contrast, the autopsy report indicates there were multiple abrasions on the victim's face at the time of death, specifically on his forehead in the area of the left and right eyebrows.

      . Based upon the trajectory of the bullet as described in the autopsy report, the ODC asserted at the hearing that respondent "executed” the victim while standing over him. The hearing committee rejected this hypothesis, which notably was not supported by the testimony of a forensic or medical expert.

      . During the March 2008 hearing, respondent first explained that he and the victim had an argument, during which the victim beat him “viciously,” and then "when he went to his pocket like he was going to shoot me, I shot him first.” However, respondent then went on to say that the victim "expended one bullet and missed me. I, in turn, fired and hit him.”

      .The committee found the spent .380 caliber shell casing located at the scene (which was from the victim’s gun) was unrelated to the shooting at issue.

      . Standard 5.11 suggests that disbarment is appropriate when a lawyer engages in "the intentional killing of another.”

      . Although respondent contends the victim was armed and that someone must have tampered with the gun after the shooting, there is no evidence in the record to support this contention. As the hearing committee pointed out, the victim’s gun was found by the police locked in his house on the bed. The officers were only able to gain entry to the house after using respondent's set of keys to open the door.

      . In brief and at oral argument, respondent suggests the committee committed legal error by failing to consider the victim's "dangerous character,” as demonstrated by numerous prior acts of violence allegedly committed by the victim. The ODC argued that such evidence is not admissible under the Louisiana Code of Evidence and should not be considered. However, we find we need not pass on the question of the admissibility of this evidence, because unlike a lay jury, this court, in its role as trier of fact in disciplinary cases, has the ability to consider the entire record and evaluate and weigh the probative value of evidence based on the totality of the circumstances. In re: Stamps, 03-2985 (La.4/14/04), 874 So.2d 113. Having considered respondent’s allegations of the victim’s dangerous character, we find it does not undermine the committee’s factual finding that there was no evidence the victim was the aggressor in this particular altercation.