text:
    THE FLORIDA BAR, Complainant, v. William Bedford WATSON, III, Respondent.
    No. SC09-2022.
    Supreme Court of Florida.
    Dec. 8, 2011.

      John F. Harkness, Jr., Executive Director, Kenneth Lawrence Marvin, Staff Counsel, and James A.G. Davey, Jr., Bar Counsel, The Florida Bar, Tallahassee, FL, for Complainant.
    John A. Weiss, P.A., Tallahassee, FL, for Respondent.
   PER CURIAM.

We have for review a referee’s report recommending that William Bedford Watson, III, be found guilty of professional misconduct and suspended from the practice of law for ninety days. We have jurisdiction. See art. V, § 15, Fla. Const. We approve the referee’s findings of fact. For the reasons discussed herein, we disapprove the referee’s recommendation that Watson be found not guilty of violating Rule Regulating the Florida Bar 4-8.4(c). We find that Watson is guilty of three violations of the rule. We approve the referee’s recommendations that Watson be found guilty of four violations of rule 5-1.1(b). We disapprove the referee’s recommended sanction of a ninety-day suspension and instead impose a three-year suspension, effective, nunc pro tunc, October 1, 2009.

FACTS

The Florida Bar filed a disciplinary complaint, with four counts, alleging that Respondent Watson engaged in financial transactions that violated the Rules Regulating the Florida Bar. The Bar contended that Respondent engaged in misconduct involving dishonesty, fraud, deceit, or misrepresentation in disbursing third-party funds from his trust account and that he did not apply the funds he held in trust to the specific purpose for which they were intended.

Count I addressed a transaction involving Steven Hooks, asserting violations of rules 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation) and 5-l.l(b) (money or other property entrusted to an attorney for a specific purpose is held in trust and must be applied only to that purpose). Count II alleged a violation of rule 5-1.1(b) based on a transaction involving Karl Brown. Count III presented a transaction involving Marian Reid, asserting violations of rules 4-8.4(e) and 5 — 1.1(b). Count IV alleged a violation of rule 5 — 1.1(b) based on a transaction involving Brandon Bury. A referee was appointed who held hearings and submitted a report to the Court making the following findings and recommendations.

Phil Walton, Jason Meyer, and Navin Subramaniam-Xavier. Respondent has provided legal services to Phil Walton numerous times since 2002 or 2003. According to testimony, Walton makes his living through commercial transactions that assist individuals in obtaining financing for projects.

Jason Meyer is a developer. In 2007 and 2008, Meyer requested Walton’s assistance in obtaining a “financing device” that they referred to as a “standby letter of credit.” The witnesses were not consistent in explaining how this financing device was supposed to function in their situation, but testimony indicates it was sought to assist Meyer in funding a development project. As Meyer was having difficulty obtaining the standby letter of credit, Walton suggested that Meyer contact Respondent, who had experience handling “international transactions, transactional funding, and large real estate projects.” Report of Referee at 2-3. In January 2008, Meyer asked Respondent to represent him in seeking the standby letter of credit. Respondent accepted the responsibilities, although he never personally met Meyer — all of their contact was by telephone or email.

Respondent determined that a standby letter of credit had been issued but had not been funded. In an effort to obtain funding, Meyer asked Walton to seek aid from Navin Subramaniam-Xavier, who was in Florida working as a commodity trader and investor. Based on the testimonies, Meyer needed to raise money to serve as collateral that would convince a bank to issue a standby letter of credit. Thus, Meyer was seeking investors to place their funds into an account, which would serve as the demonstrated collateral. It was determined that the investors’ funds would be held in Respondent’s trust account. The investors were informed that their monies would be returned to them, with exceptional interest, within a few days.

Meyer introduced Respondent to Subra-maniam-Xavier during a telephone conversation. Subsequently, Respondent and Subramaniam-Xavier had numerous telephone conversations throughout January 2008 concerning Subramaniam-Xavier’s potential investment in Meyer’s project. Respondent told Subramaniam-Xavier that these types of transactions were secure.

Previously, Subramaniam-Xavier had acted as a mortgage broker for Brown. Subramaniam-Xavier asked Brown about Respondent’s reputation and credentials. Brown determined that Respondent was an AV rated lawyer with a good reputation.

Thereafter, Subramaniam-Xavier obtained $400,000 from his uncle, who lived in Singapore, to partially fund Meyer’s project. On January 14, 2008, Subraman-iam-Xavier and Meyer signed a contract that Subramaniam-Xavier had prepared. The agreement specifically provided that Subramaniam-Xavier’s funds would be held in Respondent’s trust account. In return for their investment, Subraman-iam-Xavier and his uncle would be paid the entire principal of $400,000, plus the substantial additional amount of $300,000, within 48 hours. Respondent did not have any role in the negotiations or preparation of the contract.

On January 15, 2008, Subramaniam-Xa-vier transferred the $400,000 into Respondent’s trust account. That same day, Respondent wrote a letter to Subramaniam-Xavier that acknowledged the agreement, and he had a telephone conversation with Subramaniam-Xavier regarding the funds. During this conversation, Subramaniam-Xavier told Respondent that the funds could be released from the trust account and disbursed according to Meyer’s instructions. This oral agreement was confirmed by email messages between Respondent and Subramaniam-Xavier.

Following instructions from Meyer, Respondent disbursed the funds from his trust account. Even though Subraman-iam-Xavier did not receive the payments as agreed in the contract, neither he nor his uncle complained about the transaction.

Steven Hooks. Hooks is an investor and financial consultant in Texas. He understood that Meyer was in the process of securing funds for a development project in Arizona. They had numerous telephone conversations, some of which included Respondent. The terms of the eventual agreement, however, were negotiated by Hooks and Meyer. Respondent was not involved with the negotiations.

Hooks understood from Meyer that for his investment of $300,000, Hooks would receive a return of $600,000 within 48 hours. Hooks thought his funds would remain in Respondent’s trust account and not be disbursed without his permission. He concluded that Respondent was an independent escrow agent and not Meyer’s lawyer.

On January 16, 2008, Respondent wrote and emailed Hooks a letter with copies sent to Meyer and Walton, which Respondent calls a “disbursement letter.” Respondent testified that he prepared this letter based on his understanding of the transaction. Hooks received the email and believed that it accurately reflected the transaction, especially the point that his funds would remain in Respondent’s trust account. However, a few hours after receiving the email, Meyer made handwritten changes to it and transmitted the revised copy by email to Hooks and Respondent. Hooks denies receiving this changed version of the email. Respondent confirms that he received the changed version, but admits that he did not communicate with Hooks regarding the changes.

On January 22, 2008, Hooks transferred $300,000 into Respondent’s trust account. The next day, Respondent, acting upon Meyer’s instructions, disbursed those funds. When Hooks learned that the money was gone, he made an effort to recover his funds, both through Meyer and Respondent. Meyer repaid Hooks only about $72,000 of the $300,000.

Karl Brown, Marian Reid, and Brandon Bury. Subramaniam-Xavier was contacting other individuals to convince them to invest with Meyer. As part of this recruitment effort, Meyer asked Walton to prepare written material that he could show to prospective investors. On January 28, 2008, Walton prepared material that mentioned Respondent’s law firm, stating in part: “This is an excellent opportunity for an investor no risk and Watson & Watson -will provide a letter of undertaking to the lender that payment will be effected from the first disbursement from the transaction that is being funded.”

Subramaniam-Xavier again approached Brown, this time asking him to invest in Meyer’s project. Subramaniam-Xavier told Brown that there was little risk because the funds would remain in Respondent’s trust account. Brown spoke with Respondent by telephone prior to investing his money, explaining that he was concerned whether the financial transactions were part of an illegal scheme and that he did not want the money being released to Walton. Respondent assured Brown that he had handled many of these types of transactions before and that Brown’s funds would remain in Respondent’s trust account. Brown understood that he would receive a 25% profit on his investment in a very short time with little risk. On January 31, 2008, Brown deposited $46,000 into Respondent’s trust account. Also, Brown spoke with his friends, Richard Lawson and Brandon Bury, regarding the promised financial transaction.

During this time, Respondent was asked by Subramaniam-Xavier or Walton to prepare letters to five possible investors. Respondent prepared the letters, which were on his letterhead, signed by him, dated February 1, 2008, and addressed to Brown, Lawson, Bury, Azim Ramlize, and Lashon Toyer. The letters suggested that the five investors had already provided their funds for the project. Respondent sent the letters by email to Subramaniam-Xavier. Although Respondent had already signed and dated the letters, he claims the letters were not supposed to be distributed to the addressees until after they had deposited funds into his trust account.

Lawson spoke with his mother, Marian Reid, who is a nurse, about these financial transactions. He told Reid that if she invested, her funds would be secure because Subramaniam-Xavier had assured him that the money would remain in Respondent’s trust account. Lawson showed Reid the five letters. After seeing the signed and dated letters, Reid believed that the addressed individuals were investing. Reid understood that she would receive a profit of 25% on her investment. On February 1, 2008, she deposited $100,000 into Respondent’s trust account.

Brown discussed the investment with Bury, who is self-employed operating a swimming pool chemical business. Bury understood that the funds were to remain in Respondent’s trust account and that he would receive a 25% return on his investment. On January 30, 2008, Bury deposited $50,000 into Respondent’s trust account.

Respondent disbursed all of the funds received from Brown, Reid, and Bury on February 4, 2008, acting on Meyer’s instructions. Respondent did not seek permission from any of them before disbursing their monies.

On February 29, 2008, Respondent wrote letters to Brown and Reid, stating that there was a delay in the transaction, but did not state that the funds had been transferred. After some time passed, Brown contacted Respondent to ask about the transaction. At that point, Brown learned that the funds had been transferred from Respondent’s trust account.

Brown, Reid, and Bury made efforts to get their money back, but they did not recover anything. Brown, Reid, Bury, and Hooks have asserted that Respondent is responsible to them for transferring their funds out of his trust account.

Respondent’s Financial Benefits and Credibility. Respondent received $25,000 from Meyer, which Respondent asserts is a portion of his earned attorney’s fees. Respondent claims that Meyer owes him additional payment for his legal services. Otherwise, Respondent claims he received no financial benefit from the financial transactions or investments.

The Bar’s auditor noted that Respondent’s trust account was in compliance with record-keeping rules, but he could not offer an opinion as to whether the funds were utilized for the intended purposes. Whether Respondent violated the applicable rules is an issue of credibility. Respondent claims that he never agreed to hold the investors’ funds in his trust account. The investors say he did. The referee evaluated the evidence and found Respondent not credible.

Considering the large sums of money involved, it is inexplicable that the agreements were not placed in writing. The referee determined that the absence of documentation supported the investors’ assertions that they believed their funds were secure in a lawyer’s trust account.

Also, Respondent wrote the letter to Hooks on January 16, 2008, stating that the money would be held in trust. Respondent asserts that he wrote the letter based on what Hooks told him of the transaction. Thus, the letter is evidence that Hooks understood that the funds would be held in trust and that Hooks communicated that belief to Respondent. Although Respondent knew that Meyer later changed Respondent’s letter, Respondent did not communicate with Hooks about the differences between Hooks’ and Meyer’s views of the transaction.

Respondent’s February 6, 2008, letter to Brown, and February 29, 2008, letters to Brown and Reid, led them to believe that their funds were to remain in Respondent’s trust account. However, the funds had been disbursed by the time Respondent wrote the letters and he did not disclose that fact. Further, Subraman-iam-Xavier adamantly testified that the investors always understood that their funds were to remain in Respondent’s trust account.

In addition, Respondent wrote and signed the five letters to potential investors on February 1, 2008. He then gave the letters to Subramaniam-Xavier. Respondent knew the letters were incorrect and there was potential for their misuse because the letters falsely indicated that the five recipients were contributing their funds to Meyer’s project. Also, the letters created a sense of security and suggested to potential investors that a lawyer, Respondent, was handling their funds.

Respondent argues that Meyer was his client. Thus, it is incomprehensible why Respondent prepared the five letters pursuant to directions from Subramaniam-Xavier and Walton. Further, when Respondent was asked why he used his trust account for these transactions, he eventually stated that it was to make the investors feel secure that they would receive their profits.

Recommendations as to Guilt. Respondent asserted that he did not have any duty to the investors, arguing that his loyalty was to his client, Meyer. Respondent claimed that once the funds were deposited into his trust account, he was responsible only to Meyer, not to Hooks, Brown, Reid, or Bury. Contrary to Respondent’s arguments, the referee found by clear and convincing evidence that Respondent was obligated to hold the funds delivered by Hooks, Brown, Reid, and Bury in his trust account without disbursing them, and that his failure to do so violated rule 5 — 1.1(b) (a lawyer must hold property of others with the care required of a professional fiduciary). The referee recommended that Respondent be found guilty of violating rule 5-1.1(b) for counts I through IV.

Next, the referee found that the Bar did not prove that Respondent engaged in misrepresentation to Hooks or to Reid, as alleged in counts I and III. The referee found that Respondent acted negligently and, thus, did not intend to engage in misrepresentation. The referee recommended that Respondent be found not guilty of violating rule 4-8.4(c).

Disciplinary Recommendations. The referee considered disbarment, but found that Respondent’s conduct was not deliberate and intentional. Also, Respondent did not use the victim’s funds for his own benefit — rather, he was careless in disbursing their funds. On this basis, the referee recommended the sanction of a ninety-day suspension, effective nunc pro tunc, October 1, 2009, the date of Respondent’s current emergency suspension. In addition, the referee recommended that Respondent be placed on probation for three years following the suspension. The referee awarded costs to the Bar in the amount of $10,266.49.

With regard to aggravating factors, the referee found: (a) there was a total of four victims in two separate transactions (multiple victims); (b) Respondent has not acknowledged any wrongdoing; and (c) Respondent has substantial experience in the practice of law because as he has practiced for over forty years and has expertise in handling commercial transactions.

As to mitigating factors, the referee found that Respondent (a) has no prior disciplinary record; (b) did not have a dishonest or selfish motive because he acted negligently or carelessly; (c) made an effort to have the funds returned to the victims; (d) cooperated with the Bar’s audit of his trust account and had a cooperative attitude toward these proceedings; and (e) has outstanding legal and personal character reputations.

On Review. The Florida Bar sought review of the referee’s report. The Bar challenges the referee’s recommendations, asserting that (1) the referee’s findings that Respondent was negligent are unsupported, since the facts show that Respondent’s misconduct was deliberate or knowing; and (2) the referee’s recommended discipline of a ninety-day suspension is not supported by case law.

ANALYSIS

Deliberate or Knowing Conduct. First, The Florida Bar challenges the referee’s finding that Respondent acted negligently. The Bar asserts that Respondent deliberately or knowingly engaged in misconduct, and provides specific facts to support its claims. On review, the examination of this issue requires two steps.

The referee’s finding that Respondent did not have the necessary intent is a factual finding, which must be upheld if there is competent, substantial evidence in the record to support it. Fla. Bar v. Nicnick, 963 So.2d 219 (Fla.2007); Fla. Bar v. Forrester, 818 So.2d 477 (Fla.2002). However, in Florida Bar v. Fredericks, 731 So.2d 1249 (Fla.1999), the Court repeated the well-established principle that “in order to satisfy the element of intent it must only be shown that the conduct was deliberate or knowing.” Id. at 1252; see also Nicnick, 963 So.2d at 223-24; Fla. Bar v. Brown, 905 So.2d 76, 81 (Fla.2005); Fla. Bar v. Barley, 831 So.2d 163, 169 (Fla.2002). The motive behind the attorney’s action is not the determinative factor. Rather, the issue is whether the attorney deliberately or knowingly engaged in the activity in question. Fla. Bar v. Riggs, 944 So.2d 167, 171 (Fla.2006); Fla. Bar v. Brown, 905 So.2d at 81; Fla. Bar v. Smith, 866 So.2d 41 (Fla.2004); Fla. Bar v. Lanford, 691 So.2d 480, 481 (Fla.1997). Thus, if the record shows that Respondent deliberately or knowingly engaged in the acts, his conduct was intentional.

Next, the standard of review for recommendations as to guilt in disciplinary cases is as follows: The Court has repeatedly stated that the referee’s factual findings must be sufficient under the applicable rules to support the recommendations as to guilt. Fla. Bar v. Shoureas, 913 So.2d 554, 557-58 (Fla.2005). In this case, the referee’s finding that Respondent was negligent is the crucial issue. If the evidence shows that Respondent intentionally engaged in the misconduct, he is guilty of violating rule 4-8.4(c).

The February 1, 2008, Letters That Respondent Wrote to Toyer and Ramlize. The record shows that Respondent prepared letters on his letterhead, dated February 1, 2008, addressed to Brown, Lawson, Bury, Toyer, and Ramlize. The letters indicated that these five individuals had invested money in Meyer’s project. Respondent admits to this conduct. He signed the letters and provided them to Subramaniam-Xavier, who then used the letters in an effort to recruit other investors. These are facts, supported by competent substantial evidence in the record.

The letter of undertaking addressed to Toyer indicated that he had invested $25,000 in the project. The letter of undertaking addressed to Ramlize indicated that he had invested $69,000 in the project. The record shows that when Respondent drafted and signed these letters, neither Toyer nor Ramlize had invested any money into the project. Respondent is responsible for managing his trust account— these two individuals never deposited any money into his account. When Respondent signed the letters and provided them to Subramaniam-Xavier, he knew that Toyer and Ramlize had not invested their money. We find that the letters were dishonest.

Respondent asserts that his conduct regarding the letters cannot be found dishonest unless the Bar shows that someone relied on the letters. We disagree. Deceitful conduct does not have to be successful in order to be found dishonest.

Next, Respondent deliberately or knowingly engaged in the conduct of authoring, signing, and providing the dishonest letters to Subramaniam-Xavier. Thus, his conduct satisfies the element of intent. See Fla. Bar v. Fredericks, 731 So.2d 1249 (Fla.1999). Respondent is guilty of violating rule 4-8.4(c).

Respondent Refused to Provide the Investors with Information Regarding Their Money. After Respondent transferred the funds out of the trust account, investors asked Respondent to inform them of the status or location of their funds. Hooks, Brown, and Reid engaged in repeated and significant efforts to ascertain the facts from Respondent. He would not provide them with any truthful information. In fact, the record shows that Respondent told Reid that the funds were in the account, even though he had transferred them. Eventually Reid retained counsel, who sent Respondent a written demand for an accounting. Respondent refused to provide an accounting for the funds. Similarly, Respondent did not disclose the true events to Hooks, even though Hooks had traveled from Texas to meet with Respondent in Florida. Further, although Respondent transferred the funds out of his account on February 4, 2008, he wrote letters to Brown and Reid on February 29, 2008, asserting that there had been a delay in the transaction but he did not inform them that the funds had been transferred. These dishonest acts are clearly set forth in the record and are supported by competent substantial evidence.

Respondent asserts that Meyer was his client, so he was prohibited from providing the investors with the requested information. Respondent’s argument is misguided. He owed a fiduciary duty to Hooks, Brown, Reid, and Bury. As the comment to rule 5-1.1 states, “A lawyer must hold property of others with the care required of a professional fiduciary.” In Florida Bar v. Ward, 599 So.2d 650 (Fla. 1992), the Court addressed this responsibility, stating that lawyers have a “unique fiduciary duty,” individually and as a profession. “Never is an individual’s trust in attorneys more evident, or more at risk, then when he places funds or property into the hands of his attorney.” Id. at 652 (quoting Philip F. Downey, Comment, Attorneys’ Trust Accounts: The Bar’s Role in the Preservation of Client Property, 49 Ohio St. L.J. 275, 275 (1988)); see also Fla. Bar v. Martinez-Genova, 959 So.2d 241 (Fla.2007). As explained in Florida Bar v. Joy, 679 So.2d 1165 (Fla.1996), lawyers often hold funds in escrow where their client is one principal and a non-cíient is another principal party. By undertaking to do so, the lawyer establishes a new legal relationship with the principal parties either by an expressed agreement or by an agreement implied in law. The relationship that is established is one of principal and agent, in which the lawyer is an agent of, and owes a fiduciary duty to, all of the principals. Absent a written agreement, the law implies that the attorney will know the conditions of the principals’ agreement and will exercise reasonable skill and ordinary diligence in the holding and delivering of the escrowed funds in accordance with that agreement. Id. at 1167.

Since Respondent deliberately or knowingly, and repeatedly, refused to provide the investors with forthright information regarding their funds, his conduct demonstrates that he acted with intent. Respondent is guilty of violating rule 4-8.4(c).

Whether Respondent Assured Hooks That His Money Would Stay in Respondent’s Trust Account, Then Transferred the Money Without Authorization. The Bar asserts that Respondent acted deliberately or knowingly with regard to the transfer of Hooks’ funds. We agree. Respondent emailed Hooks a letter, dated January 16, 2008, which plainly stated:

This will also confirm I will hold your funds in my Trust Account until I am able to send you the $600,000.00, and, if I am not able to send you the $600,000.00 within 48 hours after receipt of your funds, I will return your funds to you.

Shortly thereafter, despite having assured Hooks that he would maintain the funds in his trust account, Respondent deliberately and knowingly disbursed the funds. Further, he did not seek Hooks’ permission to disburse Hooks’ money. The referee found that Respondent transferred the funds without Hook’s permission, for which the referee recommended finding that Respondent violated rule 5-1.1(b) (money or other property entrusted to an attorney for a specific purpose is held in trust and must be applied only to that purpose). These facts are supported by competent substantial evidence in the record, which includes documents and testimonies.

Based on these same facts, we find that Respondent acted with intent when he transferred the funds and is therefore guilty of violating rule 4-8.4(c).

Discipline. Second, the Bar argues that the referee’s recommended discipline of a ninety-day suspension, effective, nunc pro tunc, on the date of Respondent’s emergency suspension, followed by three years of probation, is not supported by the Florida Standards for Imposing Lawyer Sanctions and case law. Respondent asserts that the referee’s recommended sanction is appropriate. In reviewing a referee’s recommended discipline, this Court’s scope of review is broader than that afforded to the referee’s findings of fact because, ultimately, it is our responsibility to order the appropriate sanction. See Fla. Bar v. Anderson, 538 So.2d 852, 854 (Fla.1989); see also art. V, § 15, Fla. Const. However, generally speaking, this Court will not second-guess the referee’s recommended discipline as long as it has a reasonable basis in existing case law and the Florida Standards for Imposing Lawyer Sanctions. See Fla. Bar v. Temmer, 753 So.2d 555, 558 (Fla.1999).

At the outset, the referee’s recommendation of probation does not contain any terms or conditions for the probation. The Bar states that it is a nullity, as there is nothing to enforce. We agree, and hereby disapprove the recommendation of probation.

Next, the Bar argues that the appropriate sanction is a three-year suspension. The Bar asserts that Respondent should be required to demonstrate proof of rehabilitation because he is a danger to the public and cannot be trusted. Fla. Bar v. Berman, 659 So.2d 1049 (Fla.1995) (disapproving a recommended ninety-day suspension for the intentional misuse of third-party trust funds, and imposing a six-month suspension requiring proof of rehabilitation prior to reinstatement); see also Fla. Bar v. Whigham, 525 So.2d 873 (Fla. 1988) (suspending respondent for three years for commingling trust funds and violating recordkeeping rules, even though no client complained, no money was missing, and there was no financial injury). Respondent significantly injured four individuals by contributing to the loss of their funds, an extremely large amount of funds, which he had promised to keep secure in his trust account.

Respondent had a fiduciary duty to the individuals who placed their funds in his trust account. In Florida Bar v. Joy, 679 So.2d 1165 (Fla.1996), the Court stated that lawyers often hold funds in escrow under circumstances in which one principal is a client and the other principal party is not a client. By doing so, the lawyer establishes a new legal relationship with the principal parties either by an expressed agreement or by an agreement implied in law. Id. at 1167. The relationship that is established is one of principal and agent, where the lawyer/agent owes a fiduciary duty to all of the principals. Id. Absent an express agreement, the law implies that the attorney will know the conditions of the principals’ agreement and will exercise reasonable skill and ordinary diligence in holding and delivering the es-crowed funds according to the agreement. Id. at 1167. Respondent clearly had a duty to the four individuals, and he violated that responsibility.

Further, in Florida Bar v. Hall, 49 So.3d 1254, 1259 (Fla.2010), the Court held that “[ejven though Respondent was not acting in a formal attorney-client relationship, she was still a member of The Florida Bar and bound by its ethical rules.” Like the respondent in Hall, Respondent misused his status as an attorney to harm members of the public. He caused these individuals to believe that their funds would be safe in his attorney trust account, yet he intentionally disbursed their funds without their knowledge or consent. Respondent’s flagrant misuse of his position as an attorney, by which he purposefully lulled members of the public into thinking their funds would be safe in his account, merits a severe sanction. See Fla. Bar v. Hosner, 520 So.2d 567, 568 (Fla.1988) (“[Ljawyers are necessarily held to a higher standard of conduct in business dealings than are nonlawyers.”).

Respondent deliberately or knowingly engaged in these improper acts. We find that Respondent is guilty of three violations of rule 4-8.4(c), in addition to the referee’s recommendation of four violations of rule 5 — 1.1(b). We do not view violations of rule 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation) as minor. The Court has clearly stated that “basic, fundamental dishonesty ... is a serious flaw, which cannot be tolerated,” Fla. Bar v. Rotstein, 835 So.2d 241, 246 (Fla.2002), because dishonesty and a lack of candor “cannot be tolerated by a profession that relies on the truthfulness of its members.” Id. (quoting Fla. Bar v. Ko-rones, 752 So.2d 586, 591 (Fla.2000)); see also Fla. Bar v. Head, 27 So.3d 1, 8 (Fla. 2010). Considering this principle, the egregious nature of Respondent’s misconduct clearly outweighs the mitigation.

The respondent in Florida Bar v. Riggs, 944 So.2d 167 (Fla.2006), engaged in misconduct regarding client funds, committed acts involving dishonesty and misrepresentation, and violated trust account requirements. In part, he failed to properly manage his trust accounts, including real estate funds, and a paralegal allegedly stole some of the account funds. Riggs, like Respondent, asserted that his actions were negligent and not intentional. The Court found Riggs’s actions were deliberate and knowing and met the element of intent, and found him guilty of violating rule 4-8.4(c). Like Respondent, he was also guilty of violating rule 5-l.l(b). Riggs argued for a ninety-day suspension. The Court imposed a three-year suspension. The Court stated:

It is well settled that the misuse of funds held in trust is one of the most serious offenses a lawyer can commit and that disbarment is presumed to be the appropriate sanction. Fla. Bar v. Travis, 765 So.2d 689, 691 (Fla.2000); see also Fla. Bar v. Tillman, 682 So.2d 542 (Fla.1996). However, there are cases involving attorney misconduct relating to client funds in which the attorneys were disciplined by lengthy suspensions instead of disbarments. See Fla. Bar v. Whigham, 525 So.2d 873 (Fla. 1988) (three-year suspension). In light of the facts of this case, a lengthy suspension is the appropriate sanction.

Riggs, 944 So.2d at 171. Respondent, like Riggs, did not properly fulfill his responsibilities as an attorney in managing his trust account. He did not exercise the necessary care and discretion. Instead, he allowed Meyer to direct him in handling the funds of Hooks, Brown, Reid, and Bury. This is similar to Riggs permitting his paralegal to handle the trust account, without Riggs’s proper management. See also Fla. Bar v. Whigham, 525 So.2d 873 (Fla.1988) (a lawyer’s gross negligence in managing a client trust account, absent willful misappropriation of client funds, warranted a three-year suspension).

In light of Riggs and Whigham, we disapprove the referee’s recommended discipline of a ninety-day suspension because it does not have a reasonable basis in existing case law. Based on case law and Respondent’s egregious misconduct, we conclude that a three-year suspension is the appropriate sanction.

CONCLUSION

Accordingly, we approve the referee’s findings of fact and award of costs. We disapprove the referee’s recommendation that Respondent be found not guilty of violating rule 4-8.4(c). We find Respondent guilty of three violations of rule 4-8.4(c). We approve the referee’s other recommendations as to guilt. Further, we disapprove the referee’s recommendation of a ninety-day suspension. William Bed-ford Watson, III, is hereby suspended from the practice of law for three years, effective, nunc pro tunc, October 1, 2009. As Respondent is currently suspended, it is unnecessary to provide him with thirty days to close out his practice to protect the interests of existing clients. William Bed-ford Watson, III, shall fully comply with Rule Regulating the Florida Bar 3-5.1(g). Further, Watson shall accept no new business from the date this opinion is filed until he is reinstated.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from William Bedford Watson, III, in the amount of $10,266.49, for which sum let execution issue.

It is so ordered.

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

      . On September 1, 2009, the Court issued an order imposing an emergency suspension on Respondent. See Fla. Bar v. Watson, 18 So.3d 529 (Fla. Sept. 1, 2009). Respondent is still under an emergency suspension, which commenced in October 2009.

      . Subramaniam-Xavier testified that after the funds were transferred out of the account, Meyer called him and stated that Meyer could pay the $700,000 as agreed. Instead of taking the $700,000, Subramaniam-Xavier and his uncle decided to accept $125,000 from Meyer and reinvest the difference with him. In addition, Subramaniam-Xavier decided to invest $150,000 of his own funds. Further, Subramaniam-Xavier began recruiting other investors because Meyer offered to pay him a "commission.” Meyer directly sent Subra-maniam-Xavier a $75,000 commission, without going through Respondent. At one point in his testimony, Subramaniam-Xavier stated that he received $11,000 as another commission. Subramaniam-Xavier later testified that the $11,000 was not a commission but was money that was owed to him. Subra-maniam-Xavier also testified that he was to receive a ten-percent commission for the "Brown, Bury, and Reid deal.”

      . Subramaniam-Xavier thought Ramlize and Toyer would participate in this venture, but they did not. As these two did not participate, there is scant evidence in the record about them.


source: Caselaw Access Project

author: PER CURIAM. CANADY, C.J.,

license: Public Domain

text:
    Roman PINO, Petitioner, v. The BANK OF NEW YORK, etc., et al., Respondents.
    No. SC11-697.
    Supreme Court of Florida.
    Dec. 8, 2011.
    Enrique Nieves, III, of ICE Legal, P.A., Royal Palm Beach, FL, for Petitioner.
    Katherine E. Giddings and Nancy Mason Wallace, of Akerman Senterfitt, Tallahassee, FL, for Respondents.
   PER CURIAM.

The issue we address is whether Florida Rule of Appellate Procedure 9.350 requires this Court to dismiss a case after we have accepted jurisdiction based on a question certified to be one of great public importance and after the petitioner has filed his initial brief on the merits. This narrow question arose after the parties to this action filed a joint Stipulated Dismissal, which advised that they had settled this matter and stipulated to the dismissal of the review proceeding pending before this Court. It cannot be questioned that our well-established precedent authorizes this Court to exercise its discretion to deny the requested dismissal of a review proceeding, even where both parties to the action agree to the dismissal in light of an agreed-upon settlement. The question certified to us by the Fourth District Court of Appeal in this case transcends the individual parties to this action because it has the potential to impact the mortgage foreclosure crisis throughout this state and is one on which Florida’s trial courts and litigants need guidance. The legal issue also has implications beyond mortgage foreclosure actions. Because we agree with the Fourth District that this issue is indeed one of great public importance and in need of resolution by this Court, we deny the parties’ request to dismiss this proceeding.

FACTS AND PROCEDURAL HISTORY

As conveyed by the Fourth District in the decision below, the plaintiffs and now respondents in this Court, the Bank of New York Mellon, et al. (BNY Mellon), commenced an action in the trial court to foreclose a mortgage against the defendant and now petitioner in this Court, Roman Pino. See Pino v. Bank of New York Mellon, 57 So.3d 950, 951 (Fla. 4th DCA 2011). Thereafter, Pino moved for sanctions, alleging that BNY Mellon had filed a fraudulent assignment of mortgage. Id. In response, BNY Mellon filed a notice of voluntary dismissal of the foreclosure action. Id. at 952. Five months later, BNY Mellon refiled an identical action to foreclose the same mortgage. Id. In the original, dismissed action, Pino filed a motion seeking to vacate the voluntary dismissal pursuant to Florida Rule of Civil Procedure 1.540(b) on the grounds of fraud on the court and requesting dismissal of BNY Mellon’s newly filed action as a consequent sanction. Pino, 57 So.3d at 952. The trial court denied Pino’s motion, essentially holding that because the prior action had been voluntarily dismissed, the court lacked jurisdiction, and thus the authority, to consider any relief. Id.

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application. The motion shall be filed within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree for fraud upon the court.

The Fourth District, sitting en banc, affirmed the trial court’s denial of Pino’s motion to vacate BNY Mellon’s notice of voluntary dismissal. Id. In so affirming, however, the district court recognized that “this is a question of great public importance” since “many, many mortgage foreclosures appear tainted with suspect documents.” Id. at 954. Responding to Pino’s request to sanction BNY Mellon by denying it the equitable right to foreclose the mortgage at all, the district court observed that if this sanction were available after a voluntary dismissal, “it may dramatically affect the mortgage foreclosure crisis in this State.” Id. at 954-55. Consequently, the Fourth District certified the following question as one of great public importance:

DOES A TRIAL COURT HAVE JURISDICTION AND AUTHORITY UNDER RULE 1.540(b), Fla. R. Civ. P., OR UNDER ITS INHERENT AUTHORITY TO GRANT RELIEF FROM A VOLUNTARY DISMISSAL WHERE THE MOTION ALLEGES A FRAUD ON THE COURT IN THE PROCEEDINGS BUT NO AFFIRMATIVE RELIEF ON BEHALF OF THE PLAINTIFF HAS BEEN OBTAINED FROM THE COURT?

Id. at 955.

After the Fourth District certified this question, Pino filed a notice to invoke this Court’s discretionary jurisdiction to review the district court’s decision. Pursuant to our authority under article V, section 8(b)(4), of the Florida Constitution, we accepted jurisdiction. See Pino v. Bank of New York, 58 So.3d 261 (Fla.2011). Pino subsequently filed his initial brief on the merits. Prior to BNY Mellon serving its answer brief on the merits, the parties filed in this Court a joint Stipulated Dismissal pursuant to rule 9.850, advising that they had settled this matter and stipulated to its dismissal. For the reasons expressed below, we deny the parties leave to dismiss this review proceeding and exercise our discretion to retain jurisdiction over this cause.

ANALYSIS

Florida Rule of Appellate Procedure 9.350 provides the mechanism through which a party to an action may seek to dismiss an appeal prior to an appellate court’s decision on the merits. The rule provides in pertinent part:

(a) Dismissal of Causes When Settled. When any cause pending in the court is settled before a decision on the merits, the parties shall immediately notify the court by filing a signed stipulation for dismissal.
(b) Voluntary Dismissal. A proceeding of an appellant or petitioner may be dismissed before a decision on the merits by filing a notice of dismissal with the clerk of the court without affecting the proceedings filed by joinder or cross-appeal. ...

Fla. R.App. P. 9.350(a)-(b). The language of this rule does not impose upon the appellate court a mandatory obligation to dismiss a case following the filing of a notice of dismissal before a decision on the merits has been rendered. Rather, this Court has long recognized its discretion to retain jurisdiction over a matter and proceed with an appeal notwithstanding a litigant’s timely filing of a notice of dismissal pursuant to rule 9.350, especially when the matter involves one of great public importance and is likely to recur. See Gregory v. Rice, 727 So.2d 251, 252 n. 1 (Fla.1999) (“Mootness does not destroy this Court’s jurisdiction when the questions raised are of great public importance or are likely to recur.”).

For example, in Holly v. Auld, 450 So.2d 217 (Fla.1984), this Court addressed the merits of a question certified to be of great public importance even after the respondent settled with the petitioners and the respondent’s attorney filed a suggestion of mootness with this Court. Id. at 218 n. 1. Notably, the respondent’s attorney never filed a brief in opposition. Id. at 221 (Ehrlich, J., dissenting). Framing the issue as one of mootness, the Court stated that “[i]t [was] well settled that mootness does not destroy an appellate court’s jurisdiction ... when the questions raised are of great public importance or are likely to recur.” Id. at 218 n. 1 (majority opinion) (citing Pace v. King, 38 So.2d 823 (Fla.1949); Tau Alpha Holding Corp. v. Bd. of Adjustments, 126 Fla. 858, 171 So. 819 (1937)). Given that the district court properly certified its question as one of great public importance, and noting that the situation at issue would occur again, this Court retained jurisdiction and addressed the merits of the case despite the parties’ settlement of the matter. Id.

Similarly, in State v. Schopp, 653 So.2d 1016 (Fla.1995), this Court held that “[e]ven where a notice of voluntary dismissal is timely filed, a reviewing court has discretion to retain jurisdiction and proceed with the appeal.” Id. at 1018. We expressly rejected the appellant’s argument that since his rule 9.350(b) notice of voluntary dismissal was filed before the district court of appeal’s decision became final, his appeal had to be dismissed as a matter of right. Id. Importantly, we noted this Court’s power to retain jurisdiction where the case presents a question of public importance. Id.

In yet another instance, this Court in Bell v. U.S.B. Acquisition Co., 734 So.2d 403 (Fla.1999), ruled upon an issue of great public importance even after noting that the parties had settled their claims and filed a joint stipulation of dismissal in this Court. Id. at 405 n. 1. Deciding the merits of the case notwithstanding the parties’ settlement and joint stipulation of dismissal, this Court held: “As we have done in the past, we exercise our discretion to retain jurisdiction in this case because we consider this issue to be of great public importance.” Id.; see also Enter. Leasing Co. v. Almon, 559 So.2d 214, 215 n. * (Fla.1990) (retaining jurisdiction in order to resolve the conflict issue presented after the parties settled and stipulated to the dismissal of the case prior to the scheduled oral argument); Ervin v. Capital Weekly Post, Inc., 97 So.2d 464, 466 (Fla.1957) (retaining jurisdiction to consider issue of public importance where appellees sought dismissal prior to initial decision).

In the present case, it is true that the parties have filed a notice of stipulated dismissal pursuant to rule 9.350 notifying this Court that this matter has been settled. Although the issues underlying this litigation may be moot as to the parties involved, our precedent clearly establishes that mootness does not defeat appellate jurisdiction, and a reviewing court has the discretion to retain jurisdiction over a case to decide the merits notwithstanding a notice of dismissal filed by the parties denoting a settlement of their dispute.

At issue in this case is whether the plaintiff in a mortgage foreclosure action (here, BNY Mellon) may be subject to sanctions for filing what is alleged to be a fraudulent assignment of mortgage where the plaintiff filed a notice of voluntary dismissal before the trial court had the opportunity to rule on the motion for sanctions. As reflected above, the Fourth District certified this issue to be one of great public importance, and in doing so, noted that “many, many mortgage foreclosures appear tainted with suspect documents” and that Pino’s requested remedy, if imposed, “may dramatically affect the mortgage foreclosure crisis in this State.” Pino, 57 So.3d at 954-55. The issue also has broader implications and presents questions outside of the mortgage-foreclosure context. Moreover, Pino, the petitioner to the instant review proceeding, has already filed his initial brief on the merits in this Court.

Consistent with the rationale undergird-ing our prior precedent, we conclude that these circumstances fully support this Court’s decision to exercise its discretion to retain jurisdiction over and decide the merits of this important case. To adopt the dissent’s interpretation of rule 9.350(a) — that the act of the parties’ stipulation for dismissal is binding on the Court — would require us to recede from our past decisions recognizing just the opposite. Instead, we adhere to our precedent and, accordingly, exercise our discretion to deny the parties leave to dismiss this review proceeding.

It is so ordered.

PARIENTE, LEWIS, LABARGA, and PERRY, JJ., concur.

CANADY, C. J. dissents with an opinion, in which QUINCE and POLSTON, JJ., concur.

CANADY, C.J.,

dissenting.

I dissent from the Court’s disapproval of the stipulation for dismissal.

Florida Rule of Appellate Procedure 9.350(a) provides that “[w]hen any cause pending in the court is settled before a decision on the merits, the parties shall immediately notify the court by filing a signed stipulation for dismissal.” The rule does not appear to contemplate that such a stipulation for dismissal is subject to disapproval by the Court. The very designation “stipulation for dismissal” — as opposed to “motion for dismissal” — suggests that the act of the parties is dispositive. The committee note to the rule recognizes that dismissal of the case is the clerk’s ministerial duty: “On the filing of a stipulation of dismissal, the clerk of the court will dismiss the case as to the parties signing the stipulation.”

Although the majority is certainly correct that this Court has on occasion refused to give effect to a “stipulation for dismissal” filed pursuant to rule 9.350(a), the majority is unable to point to any case in which we recognized that we were retaining jurisdiction in the face of such a stipulation filed prior to the completion of briefing. The majority is also unable to point to any case in which we analyzed the text of rule 9.350(a). Our deliverances on this subject take the form of pronouncements of a conclusion rather than the reasoned examination of the governing rule. The majority’s decision here is one more such pronouncement.

In rejecting the stipulated dismissal, the Court is requiring that the parties litigate a case that has been settled, is no longer in controversy, and has not been perfected for consideration by this Court. The respondent who has settled this case will now be required to expend resources to prepare an answer brief. And the petitioner, who may no longer be represented by counsel, is directed to file a reply brief.

Although the issues underlying this litigation may be issues of great importance, it is no more proper for the Court to compel the parties to litigate those issues after they have jointly filed a notice of dismissal than it would be for the Court to compel a party to file a petition for discretionary review. The parties to this proceeding have rights. They should not be dragooned into litigating a matter that is no longer in controversy between them simply because this Court determines that an issue needs to be decided.

Under the Florida Constitution, this Court does not have the power to reach out and grab cases that we deem worthy of our attention. Nor should we exercise the power to grasp a case which has been brought to the Court but which the parties wish to dismiss before it has ever been considered by the Court on the merits. In doing so, we step beyond the proper role of an appellate court to adjudicate those cases that are properly presented to it by a party seeking review.

QUINCE and POLSTON, JJ., concur.

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

      . Rule 1.540(b) provides in pertinent part:

      . In fact, we just recently declined to dismiss a case where the parties settled their dispute after oral argument but before we reached a decision on the merits and issued an opinion. See Public Health Trust of Miami-Dade Cnty. v. Acanda, 71 So.3d 782 (Fla.2011); Public Health Trust of Miami-Dade Cnty. v. Acanda, 71 So.3d 782 (Fla.2011) (denying the parties’ request to dismiss the review proceeding).


author: PER CURIAM.

text:
    In re CERTIFICATION OF NEED FOR ADDITIONAL JUDGES.
    No. SC11-2246.
    Supreme Court of Florida.
    Dec. 15, 2011.
   PER CURIAM.

This opinion fulfills our constitutional obligation to determine the State’s need for additional judges in Fiscal Year 2012/2013 and to certify our “findings and recommendations concerning such need” to the Legislature. Certification is “the sole mechanism established by our constitution for a systematic and uniform assessment of this need.” In re Certification of Need for Additional Judges, 889 So.2d 734, 735 (Fla.2004).

TRIAL COURTS

The Florida Supreme Court continues to use a weighted caseload system as a primary basis for assessing judicial need for the trial courts. Using objective standards, this Court has examined case filing and disposition data, analyzed various judicial workload indicators, applied a three-year average net need, and considered judgeship requests submitted by the lower courts. As part of our ongoing effort to carefully evaluate judicial workload and within our discretion pursuant to Florida Rule of Judicial Administration 2.240, we have slightly modified our methodology this year, using a three-year average net need rather than the sustained net judicial need based on the lowest need for the prior three years. We believe that this modification to our methodology more accurately reflects the net judicial need from year to year.

Applying this methodology, this Court certifies the need for seventy-one judge-ships statewide, twenty-three of which are in circuit court and forty-eight in county court.

We submit this certification recognizing the economic difficulties that continue to affect both the private sector and the public sector in Florida. Further, we acknowledge that state general revenues remain low, thereby creating competition between funding new judgeships and other critical state needs. Yet, as we noted in last year’s certification opinion, our judges and court staff continue to work diligently to ensure the administration of justice and the timely resolution of disputes. They do so despite a demonstrated net need for new judges and with fewer support staff.

Our analysis indicates that felony, delinquency, and civil filings have decreased in circuit court relative to previous years. The drop in felony and delinquency filings correlates with fewer arrests being made as reported by the Florida Department of Law Enforcement. The drop in circuit civil filings is primarily attributable to the self-imposed moratorium on residential mortgage foreclosures by various lending institutions. However, mortgage foreclosure filings are projected to increase in the coming months. Notwithstanding the decreases to certain filing categories, our three-year average net need analysis indicates that additional judgeships are necessary in our circuit courts. This three-year average net need reflects accumulated workload over a multi-year period.

Chief judges have identified a number of the workload trends that are affecting court operations throughout the state. Several of the chief judges cited low clearance rates, substantial pending caseloads, high jury trial rates, fewer staff to assist with case processing matters, and statutory requirements requiring additional hearings for certain case types in civil, criminal, and family law as contributing to judicial workloads. Others note the protracted delays experienced by parties in scheduling hearings along with the impact of self-represented litigants on court time and resources. Collectively, these factors contribute to court delay.

Our judges continue to absorb the work previously performed by magistrates, law clerks, case managers, and other supplemental support staff lost in the budget reductions of the last several years. Most of these positions provided direct case management, legal research, and adjudicatory support to our judges. Chief judges have advised us that the loss of support staff translates into slower case processing times, crowded dockets, and long waits to access judicial calendars. Restoration of case processing support staff lost in the budget reductions over the last three years remains a priority for the judicial branch. Accordingly, we fully support the trial courts’ Fiscal Year 2012/2013 Legislative Budget Request that seeks additional funding for case managers, general magistrates, and law clerks, as these positions are integral to case disposition, docket management, and pending caseload reduction.

Several of our chief judges noted the long waits associated with obtaining hearing times. In some jurisdictions, dockets are so full that it takes several weeks to schedule a hearing. Similarly, lengthy jury trials must be scheduled months in advance. These conditions are additional indicators of an under-resourced court system. This situation frustrates all who use the courts, .especially litigants, their lawyers, and our judges. Chief judges continue to report concerns that judges are unable to devote sufficient time to hearings due to significant workload.

The circuits have responded admirably to changing circumstances bearing on caseloads, including case complexity, demographics, and other factors within their jurisdictions. Where appropriate, the circuits continue to use mediation and differentiated ease management techniques to address workload. Moreover, as the complexity of Florida’s caseload increases, many jurisdictions have chosen to respond by instituting specialized court dockets. These include juvenile and adult drug courts; veterans’ courts; those dealing with probate, elder, and mental health proceedings; and tobacco cases, asbestos cases, and other complex cases.

Workload associated with the residential mortgage foreclosure crisis continues to impede disposition times and rates in our circuit civil division. The Court is grateful to the Legislature for funding the Foreclosure and Economic Recovery Initiative, which terminated on June 30, 2011. The case managers and senior judges used in the Foreclosure and Economic Recovery Initiative made a significant difference in reducing backlog throughout the state. Unfortunately, due to the severity and protracted nature of the crisis, our trial courts continue to struggle with heavy pending caseloads and the slow resurgence of foreclosure filings. The absence of additional case processing resources, such as case managers and senior judges, will continue to delay case processing times and pending caseloads in our civil divisions for the foreseeable future. Moreover, this crisis has a ripple effect on the workload of other court divisions as chief judges and administrative judges allocate limited court resources to address demand.

County court workload continues to increase in several areas, including evictions and landlord/tenant cases. In select jurisdictions, some chief judges report that personal injury protection and credit card debt cases are impacting county court workload.

The loss of civil traffic infraction hearing officers in county court continues to have an impact on county judge workload throughout the state. In many counties, county judges are hearing traffic cases previously processed by the civil traffic infraction hearing officers.

Self-represented litigants continue to affect Florida’s court system. All circuit and county civil divisions are experiencing an increase in self-represented litigants. Frequently, self-represented litigants are unprepared for the rigors of presenting evidence, following rules of procedure, and generally representing themselves in court. Consequently, they often require enhanced judicial involvement, which entails lengthier hearings, rescheduled hearings, and court delay.

DISTRICT COURTS OF APPEAL

The Second District Court of Appeal requests two additional judgeships. That court cites to its workload and Florida Rule of Judicial Administration 2.240(b)(2)(B), which provides that a presumption of need arises “where the relative weight of cases disposed on the merits per judge would have exceeded 280 after application of the proposed additional judge(s).” Using our discretion under Florida Rule of Judicial Administration 2.240 and as part of our ongoing effort to carefully evaluate judicial workload, we have slightly modified our methodology this year for the district courts, using a three-year average of weighted dispositions per judge. We believe that this modification to our methodology more accurately reflects the net judicial need from year to year.

A number of factors are impacting the overall workload in the Second District, including changes in statutes requiring appellate review and clarification, changes in criminal and sentencing statutes, and growth in prison population and postcon-viction motions. Other factors impacting case processing include the unavailability of senior judges and fewer central staff attorneys to assist the judges with legal research and related case processing matters due to budget reductions. Of particular concern to this Court is the observation by the Chief Judge of the Second District that although the district has been able to maintain high clearance and disposition rates, it does so at the expense of time dedicated to a given case.

The Chief Judge of the Second District also cites to two qualitative factors contained in Florida Rule of Judicial Administration 2.240: effectiveness and professionalism. Effectiveness means that each appellate court judge must have adequate time to review and consider briefs, petitions, motions, and memoranda to fully research legal issues, write opinions, and review all decisions by the court. Given their current workload, the judges in the Second District find themselves increasingly challenged to fully meet the rigors of the effectiveness standard.

The professionalism factors of the rule speak to judicial participation in activities designed to enhance lawyer and judicial professionalism, improve the administration of justice, and improve relations between the bench and bar. The Second District notes that high workloads and reduced resources continue to adversely affect its judges’ ability to meet this standard.

While the Second District Court of Appeal has requested that two additional district court judges be certified, our analysis of the three-year weighted dispositions per judge average indicates that they do not meet the threshold of 280 weighted dispositions per judge after a second judge is added. Therefore, we certify the need for one additional district court judge in the Second District for Fiscal Year 2012/2013.

CONCLUSION

We have conducted both a quantitative and qualitative assessment of judicial workload. Using the case weighted methodology required by the Legislature and the application of other factors identified in Florida Rule of Judicial Administration 2.240, we certify the need for seventy-one additional trial court judges in Florida, consisting of twenty-three in circuit court and forty-eight in county court, as set forth in the appendix to this opinion, and one additional district court judge in the Second District Court of Appeal.

Many of the workload trends we identified in last year’s certification opinion remain today. In response, our courts continue to proactively manage their dockets to ensure that the administration of justice is not diminished. Yet despite these measures, we remain concerned that the timeliness and quality of justice are being adversely affected.

As we certify the need for new judge-ships, we also observe that the last year has proven very difficult for Florida’s State Court System due to the depletion of funds in the State Courts Revenue Trust Fund in the spring. While the State Courts Revenue Trust Fund was created by the Legislature to address funding issues in the court system, it has proven insufficient to sustain funding for the judicial branch. To address this deficiency, the Legislature directed the state courts, pursuant to Specific Appropriation 2986 in the 2011 General Appropriations Act, to work with the clerks of court to identify appropriate and sufficient funding streams for both the court system and the clerks of court. Those recommendations have been submitted to the Legislature.

We recognize that the funding of new judgeships is an expensive proposition, especially during difficult economic times with diminished state revenues. If monies become available, we encourage the Legislature to give priority consideration to funding the trial courts’ Fiscal Year 2012/2013 Legislative Budget Request for positions to assist with case processing (i.e., case managers, law clerks, and magistrates).

It is so ordered.

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

APPENDIX

Trial Court Need

Circuit Court County Court

Circuit Certified Judges County Certified Judges

NA 0

0 NA 0

NA

Duval

Citrus

Lake

Marion

NA

Flagler

St. Johns

Volusia

NA

Orange

Osceola

10 Polk

11 Miami-Dade 10

12 Manatee

Sarasota

13 Hillsborough

14 Bay

15 Palm Beach

16 NA

17 Broward

18 Seminole

19 St. Lucie

20 Lee

Total 23 Total 48

      .Article V, section 9 of die Florida Constitution provides in pertinent part:
      Determination of number of judges.— The supreme court shall establish by rule uniform criteria for the determination of the need for additional judges except supreme court justices, the necessity for decreasing the number of judges and for increasing, decreasing or redefining appellate districts and judicial circuits. If the supreme court finds that a need exists for increasing or decreasing the number of judges or increasing, decreasing or redefining appellate districts and judicial circuits, it shall, prior to the next regular session of the legislature, certify to the legislature its findings and recommendations concerning such need.

      . Our certification methodology relies primarily on case weights and calculations of available judge time to determine the need for additional trial court judges. See Fla. R. Jud. Admin. 2.240.

      . In re Certification of Need for Additional Judges, 60 So.3d 955 (Fla.2011).

      . It is important to note that when the case weights were originally developed in 1999 and updated in 2007, they incorporated the availability of supplemental resources to assist judges with case processing matters. It is reasonable to conclude that the loss of these supplemental positions (i.e., case managers, law clerks, and magistrates) may increase the case weights if not restored prior to the next case-weight update. Increased case weights may translate into the need for more judge-ships.

      . The Florida State Courts System's Legislative Budget Request for Fiscal Year 2012/2013 is available on the Florida Fiscal Portal at http://floridafiscalportal.state.fl.us/.

      . Available at http://www.myfloridahouse.gov/ filestores/Adhoc/Appropriations/GAA/2011-Senate/CR_SB_2000.pdf.


author: WARNER, J.

text:
    Richard J. SCHAFFER, Appellant, v. Rebecca S. LING, Appellee.
    No. 4D10-1335.
    District Court of Appeal of Florida, Fourth District.
    Sept. 28, 2011.
    Chad R. Laing, Boca Raton, for appellant.
    Charles Thompson of Beaulieu Law Group, P.A., Delray Beach, for appellee.
   WARNER, J.

Appellant, an unwed father, timely appeals a final order dismissing his paternity action for lack of jurisdiction. He claims that the Florida courts have jurisdiction to determine paternity, support, and time sharing, simply because the child was conceived in Florida, even though the child was born in New Hampshire where she and the mother reside and have continued to reside. We reject his claim, because under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) Florida is not the home state of the child, thus precluding Florida from exercising jurisdiction to determine custody, which includes the time sharing sought in this case.

The father and mother met on a cruise. Subsequently the mother came to Florida three times to see the father. The parties engaged in sexual relations while she was in Florida, which resulted in the mother becoming pregnant in April 2009. In January 2010, before the child was born, the father filed a Verified Petition to Determine Paternity and for Related Relief in the Circuit Court in and for Palm Beach County, Florida. Less than a month after he filed the petition, the mother gave birth to the child, who has resided in New Hampshire ever since.

In his petition the father requested that parental responsibility be shared by both the father and the mother, but stated: “In the event that the Mother fails to co-parent with the Father, then the Father requests, in the alternative, that he be awarded overriding decision making power and parental responsibility.” He sought the development of a parenting plan and proposed a plan in which he had substantial time sharing with the child, including the entire summer and most vacation periods. The mother moved to dismiss, claiming that the court did not have subject matter jurisdiction. She also contested personal jurisdiction. The father filed a response in opposition to the motion to dismiss, asserting that the conception of the child in Florida provided jurisdiction under sections 742.011, 48.193(l)(h), and 88.2011(6), Florida Statutes. Although he conceded that the mother should have primary residential custody, he proposed a time-sharing plan for visitation with the child. Following a hearing, the trial court entered an order granting the mother’s motion to dismiss. Relying on Munnerlyn v. Wingster, 825 So.2d 481 (Fla. 5th DCA 2002), and Wilson v. Zambito, 773 So.2d 581 (Fla. 4th DCA 2000), the court reasoned that even though the child was conceived in Florida, the court did not have subject matter jurisdiction under the UC-CJEA. The court dismissed the proceeding, prompting this appeal.

The issue of whether the Florida circuit court has subject matter jurisdiction involves a question of law and is therefore subject to de novo review. See In re D.N.H.W., 955 So.2d 1236, 1238 (Fla. 2d DCA 2007).

Subject matter jurisdiction over child custody matters is governed by the Uniform Child Custody Jurisdiction and Enforcement Act, which the Florida Legislature adopted in 2002 to replace the Uniform Child Custody Jurisdiction Act (“UC-CJA”). See Hindle v. Fuith, 33 So.3d 782, 784 n. 2 (Fla. 5th DCA 2010). The UC-CJEA is codified in sections 61.501-542, Florida Statutes (2010). One of the stated purposes of the UCCJEA is to “[ajvoid jurisdictional competition and conflict with courts of other states in matters of child custody.” § 61.502(1), Fla. Stat. (2010). Under the UCCJEA, a “child custody determination” means “a judgment, decree, or other order of a court providing for the legal custody, physical custody, residential care, or visitation with respect to a child.” § 61.503(3), Fla. Stat. (2010) (emphasis supplied). The term includes a permanent, temporary, initial, and modification order, but does not include an order relating to child support or other monetary obligation of an individual. Id. A “ ‘[cjhild custody proceeding’ means a proceeding in which legal custody, physical custody, residential care, or visitation with respect to a child is an issue. The term includes a proceeding for ... paternity....” § 61.503(4), Fla. Stat. (emphasis supplied). A judgment or order incorporating a parenting plan under the general provisions of Chapter 61 is a child custody determination under the UCCJEA. See § 61.046(14)(c), Fla. Stat. (2010) (“For purposes of the Uniform Child Custody Jurisdiction and Enforcement Act, part II of this chapter, a judgment or order incorporating a parenting plan under this part is a child custody determination under part II of this chapter.”) (emphasis supplied).

With limited exceptions, a Florida court has jurisdiction to make an initial child custody determination “only if Florida is the child’s home state on the date of the commencement of the custody proceeding or was the child’s home state within six months before commencement of the proceeding and a parent or person acting as a parent continues to live in the state.” Lande v. Lande, 2 So.3d 378, 381 (Fla. 4th DCA 2008); see also § 61.514(l)(a), Fla. Stat. (2010). For example, in Munnerlyn v. Wingster, 825 So.2d 481 (Fla. 5th DCA 2002), the Fifth District held that even though the child was conceived in Florida, the Florida circuit court did not have subject matter jurisdiction over the putative father’s petition to determine paternity and child custody where the mother and child lived in Michigan, and the child had no significant connection to Florida.

Because the father has sought both shared parental responsibility and time-sharing with the child, he is seeking visitation with the child within the meaning of the UCCJEA. Therefore, its provisions control. Florida is not the home state of the child, and Florida can exercise jurisdiction only if it is the home state or one of the other limited exceptions under the act apply, which they do not.

We distinguish our decision in Sanchez v. Fernandez, 915 So.2d 192 (Fla. 4th DCA 2005). There, the mother, Sanchez, resided in Columbia with the minor child. Sanchez filed a petition for adjudication of paternity and awards of custody and child support. Id. at 192. The petition alleged that the putative father, Fernandez, was a resident of Broward County. The trial court dismissed the petition for lack of subject matter jurisdiction pursuant to the UCCJEA. On appeal, this court reversed, holding that under the “narrow facts” of the case, the trial court incorrectly applied the UCCJEA in dismissing Sanchez’s paternity case. Id. at 192-93. We explained: “Where, as in the instant case, the putative father agrees that the mother should be awarded permanent primary residency of the child, custody is not an issue and the UCCJEA is inapplicable.” Id. at 198. We did not discuss, because it was not within the facts of the case, whether any request for time-sharing or visitation was made. If it had been, then the UCCJEA would apply. If Sanchez had involved visitation and time-sharing, our opinion would have been contrary to the express provisions of the UCCJEA.

It is completely contrary to the legislative goals of the UCCJEA for Florida to assert jurisdiction to superintend the custody, shared parental responsibility, and visitation where the child is not and has never been a resident of this state. The mere fact of conception in this state is not such a tie to permit the courts of this state to exercise control in the face of express statutory authority precluding Florida from asserting jurisdiction.

Affirmed.

POLEN, J., and EHRLICH, MERRILEE, Associate Judge, concur.


author: MAY, C.J.

text:
    Ron BRANSCOMBE and Iva Branscombe, Appellants, v. JUPITER HARBOUR, LLC, a Florida limited liability company, Appellee.
    No. 4D10-2093.
    District Court of Appeal of Florida, Fourth District.
    Sept. 28, 2011.

      George P. Ord of Murphy, Reid, LLP, Palm Beach Gardens, for appellants.
    Roberto M. Vargas and Scott G. Hawkins of Jones, Foster, Johnston & Stubbs, P.A., West Palm Beach, for appellee.
   MAY, C.J.

A parking space dispute brings this case to our court. Parcel G owners appeal a declaratory judgment that determined that Parcel F-2 owners have an easement over Parcel G for the purpose of accessing certain parking spaces. In the declaratory judgment, the court also determined that any breach of an existing parking agreement was cured by the Parcel F-2 owners. The Parcel G owners argue that the court erred in entering the declaratory judgment. We find no error and affirm.

Parcels F and G adjoin each other; Parcel G is north of Parcel F on the Intracoas-tal Waterway. In April, 2001 a restaurant and paved parking existed on Parcel G. A paved parking area, a CBS wall, and a building under construction existed on Parcel F.

Previous owners of both parcels entered into a parking agreement in 1987. After a dispute arose, the then current parcel owners entered into a “First Amendment and Restatement of Parking and Access Agreement.” It provided in part:

h. The parties desire to amend, modify and completely restate the Cross Parking Agreement ... and express the rights and obligations of the parties and their respective properties with regard to cross-parking, common ingress and egress, maintenance, and additional rights and privileges as part of a general plan for the beneficial use and development of each of Parcel F and Parcel G, and as a covenant running with the land.
... [T]he parties to this Agreement hereby agree that the Cross Parking Agreement is amended and restated in its entirety to read as follows:
3.... A surveyor’s sketch of Parcels F and G and the designation of parking spaces thereon referred to as the “Parking Lot Plan” is attached hereto as Exhibit “B.”
The combined and contiguous parking areas located within Parcels F and G are depicted within the bold perimeter boundary on the Parking Lot Plan. Those portions of the parking areas depicted in the Parking Lot Plan that are located within Parcel F are hereafter referred to as the “Parcel F Parking Area.” Those portions of the parking areas depicted in the Parking Lot Plan that are located within Parcel G are hereafter referred to as the “Parcel G Parking Area.” The Parcel F Parking Area is the area upon which a parking and access easement is made available for vehicular access and parking for the shared benefit of Parcel F and Parcel G, as more fully hereinafter described.
4. The parties agree to the restricted use of parking on Parcel F, as depicted in the Parking Lot Plan as follows:
a. The location and designation of one hundred forty-two (142) available parking spaces, located within the Parcel F Parking Area:
(1) [59 parking spaces to be for exclusive use of [Parcel F owner] weekdays from 5 a.m. to 5:30 p.m.; 58 spaces to be for exclusive use of [Parcel G owner] weekdays from 5 a.m. to 5:30 p.m.]
(2) [40 spaces to be shared by [Parcel F & G owners] weekdays after 5:30 p.m. and weekends; 94 spaces for exclusive use of [Parcel G] weekdays after 5:30 p.m. and weekends]
5. Irrevocable and perpetual easements in, on and over the Parcel F Parking Area are confirmed as granting and creating, for the use and benefit of [Parcel G owner] and all lessees, guests, employees, for invitees and patrons of the business or improvements presently and to be located upon Parcel G, access, ingress and egress by pedestrian and vehicular traffic over, through and across the Parcel F Parking Area. No change in the location of the driveways and each of the 142 parking spaces within the Parcel F Parking Area shall be made without the prior written consent of both [Parcels F and G owners].

In May, 2001 the Parcel F owner conveyed the property to Harbor Investment, Ltd. In March of 2003, Harbor Investment, Ltd. replatted Parcel F into Parcels F-l and F-2. In July of 2003, portions of Parcel F-l were conveyed to Lennar Homes, Inc., which constructed townhomes on the property. In August of 2003, the Parcel G owner conveyed the property to the current owners.

In November of 2005, Harbour Investment, Ltd. obtained approval from the Town of Jupiter to construct a medical office building on part of Parcel F-2. In September of 2007, Harbour Investment, Ltd. conveyed Parcel F-2, and the associated development rights, to the current Parcel F-2 owner.

The site plan for Parcel F-2 reflected three parking spaces toward the northeast side of the F-2 Parcel along the border between the F-2 and G parcels. The parties refer to these three parking spaces as the “triangle spaces.” Given the location of the triangle spaces and the medical building permitted by the site plan, it was apparent that the “triangle spaces” could not be accessed except by traveling onto Parcel G.

The site plan also called for the construction of a pedestrian walkway on Parcel F from the main road to the medical building. The construction of the walkway resulted in the loss of parking spaces located on Parcel F. The April 2001 parking agreement affords use of the lost parking spots to Parcel G.

In April of 2008, the Parcel G owners filed a declaratory judgment action against the Parcel F-2 owners, seeking a declaration that the April 2001 amended parking agreement had not given the owners of Parcel F-2 an easement over Parcel G for the purpose of accessing the triangle spaces. The complaint further alleged that the Parcel F-2 owner had no right to construct the pedestrian walkway in the approved site plan because it would interfere with the parking rights afforded the owners of Parcel G by the April 2001 parking agreement. The Parcel F-2 owner counterclaimed for a declaration in its favor, and asserted, among other affirmative defenses, that the Parcel G owners were estopped from seeking declaratory-relief as they were aware of the Parcel F-2 owner’s rights under the agreement and “knew or should have known that the owners of Parcel F were able to transgress Parcel G to utilize the spaces when the Agreement was initially drafted.”

Parcel G owners offered testimony that the newly constructed walk-way resulted in the loss of three to four parking spaces to Parcel G. The Parcel F-2 owner correspondingly offered testimony that the walkway had resulted in the loss of only two parking spaces to Parcel G. To remedy the loss of the two spaces, the Parcel F-2 owner contracted with the adjoining marina to secure two spaces for the exclusive use of the Parcel G owners.

As for the “triangle spaces,” the Parcel G owners acknowledged they were aware that a building was to be constructed on Parcel F and the three “triangle spaces” had curbing that blocked access from Parcel F when they purchased the property. The Parcel G owners testified that, during construction of the medical building on Parcel F-2, the curbs around the “triangle spaces” had been removed. They took the position that the inability to access the “triangle spaces” was the result of the development and design on Parcel F-2. Admittedly, the Town of Jupiter requires curbs around the parking spaces.

The Parcel F-2 owner provided testimony of a former owner of Parcel F, who signed the parking agreement on behalf of Harbour Investment. He testified that: (1) the parties intended for the three “triangle spaces” to be shared by Parcel F and Parcel G; (2) the curbs around the “triangle spaces” were present when the agreement was signed; (3) the “triangle spaces” were depicted on the Parking Lot Plan, Exhibit B to the parking agreement; (4) cars traveled over Parcel G to access the “triangle spaces” when the agreement was signed; and (5) this traffic pattern continued without objection afterward.

The trial court ruled that the parking agreement was unambiguous and created an express easement over Parcel G for the purpose of allowing Parcel F owners and patrons to access the “triangle spaces”. The trial court further found that, even if the agreement was ambiguous, the parties’ habitual use of Parcel G to access the “triangle spaces” on Parcel F evidenced the intent to create an easement. Further, the trial court found the doctrines of laches and waiver barred the Parcel G owners from obtaining relief. Although the construction resulted in a loss of two parking spaces to Parcel G, there was no violation of the parking agreement because the Parcel F owners replaced the two lost spaces. The Parcel G owners appeal the declaratory judgment.

“ ‘The interpretation or construction of a contract that is clear and unambiguous is a matter of law that is reviewed de novo.’” Amquip Crane Rental, LLC v. Vercon Constr. Mgmt., Inc., 60 So.3d 536, 539 (Fla. 4th DCA 2011) (quoting Lipton v. First Union Nat’l Bank, 944 So.2d 1256, 1258 (Fla. 4th DCA 2007)). A trial court’s construction of an ambiguous contract will be affirmed when it is supported by competent substantial evidence. See Dinallo v. Gunster, Yoakley, Valdes-Fauli & Stewart, P.A., 768 So.2d 468, 471 (Fla. 4th DCA 2000).

On appeal, the Parcel G owners contend the trial court erred in finding the parking agreement created an express easement because the plain and unambiguous language of the agreement establishes that Parcel F-2 is subservient to Parcel G. They suggest the only express easement in the agreement exists in favor of Parcel G. The Parcel F-2 owners respond that the parking agreement, attached parking lot plan, and testimony established the parties’ intent to create an easement on Parcel G.

“Although an easement is not an estate in land and its creation does not convey title, it is an interest that gives to one other than the owner a right to use the land for some specific purpose.” Am. Quick Sign, Inc. v. Reinhardt, 899 So.2d 461, 464 (Fla. 5th DCA 2005). “[A]n easement may be created by express grant contained in a deed or other written document.” Id. at 465. “There are no magical words that one must divine in order to create an express easement. All that is necessary are words showing the intention of the parties to create an easement on a sufficiently identifiable estate.” Id. And, “[documents that convey easements should be construed in the same manner as contracts.” Id.; see also Sandlake Residences, LLC v. Ogilvie, 951 So.2d 117, 119 (Fla. 5th DCA 2007).

We agree with the Parcel G owners on their first point. The parking agreement expressly provides an easement in favor of the Parcel G owners. It does not express in words an easement in favor of the Parcel F-2 owners as it relates to the “triangle spaces.”

Nevertheless, “ ‘[t]he contract should be reviewed as a whole and all language given effect’ ” and “ ‘[a]n interpretation which gives a reasonable meaning to all provisions ... is preferred to one which leaves a part useless or inexplicable.’ ” PNC Bank, N.A. v. Progressive Employer Servs. II, 55 So.3d 655, 658 (Fla. 4th DCA 2011) (quoting Leisure Resorts, Inc. v. City of W. Palm Bch., 864 So.2d 1163, 1166 (Fla. 4th DCA 2003)).

If the document is ambiguous, “extrinsic evidence may be examined to determine the intent of the parties at the time the document establishing the easement was created.” Am. Quick Sign, 899 So.2d at 465. “[E]vidence relating to the character of the dominant and servient land, its use, and the situation of the parties to the easement, at the time the easement was created” are thus properly considered where there is ambiguity. Corrigans v. Sebastian River Drainage Dist., 223 So.2d 57, 58 (Fla. 4th DCA 1969).

While we disagree with the trial court’s finding that the parking agreement is unambiguous, we do agree that the agreement with its attached parking lot plan created an ambiguity allowing the trial court to consider parol evidence. The testimony of the witnesses, along with the agreement and attached parking lot plan, established the parties’ intent to create an easement by substantial, competent evidence. As the trial court found:

Section 3 of the Parking Agreement provides that the Parcel F parking lot is to operate for the shared benefit of both Parcels F and G. Section 4 and Exhibit B of the Parking Agreement outline [Parcel F owner’s] exclusive right to use the three parking spaces during the day and right to share use of those spaces with the [Parcel G owners] on nights and weekends. Composite Exhibit A and Exhibit B to the Agreement further outline the existence of curbing around the three spaces and that such curbing makes access to the spaces only possible by traversing Parcel G.
Reason and rationality dictate that the original signatories to the Parking Agreement would not have given the owner of Parcel F the right to use the three disputed parking spaces without also giving the ability to access those spaces. An interpretation of the plain language of the Agreement to the contrary would lead to an absurd result. King v. Bray, 867 So.2d 1224, 1227 (Fla.
5th DCA 2004) (where one interpretation of a contract would be absurd and another would be consistent with reason and probability, the contract should be interpreted in a rational manner); Paddock v. Bay Concrete Indus., Inc., 154 So.2d 313, 315-16 (Fla. 2d DCA 1963) (same).

“ ‘The inconvenience, hardship, or absurdity of one interpretation of a contract or its contradiction of the general purpose is weighty evidence that such meaning was not intended when the language is open to an interpretation which is neither absurd nor frivolous and is in agreement with the general purpose of the parties.’ ” Am. Med. Int’l, Inc. v. Scheller, 462 So.2d 1, 7 (Fla. 4th DCA 1984) (quoting James v. Gulf Life Ins. Co., 66 So.2d 62, 63 (Fla.1953)). It would be absurd to suggest that the parties intended that Parcel F-2 owners would not be able to access the shared “triangle spaces.”

There was substantial, competent evidence to support the trial court’s conclusion that an easement was created by the parking agreement, its attachment, and the parties’ long-term use of those spaces by traversing over Parcel G’s property. We need not address the laches and estop-pel arguments. We further find no error in the trial court’s conclusion that the Parcel F-2 owners remedied any alleged breach when two parking spaces were eliminated by the construction of a pedestrian walkway by providing two alternative parking spaces. For these reasons, we affirm.

Affirmed.

GROSS, J., and STREITFELD, JEFFREY E., Associate Judge, concurs.


author: DAMOORGIAN, J.

text:
    David REED and Scott Reed, Appellants, v. Rachel HONOSHOFSKY, Appellee.
    No. 4D10-2468.
    District Court of Appeal of Florida, Fourth District.
    Sept. 28, 2011.

      Bonnie S. Satterfield of Bonnie S. Sat-terfield, P.A., Coral Springs, for appellants.
    Nancy Little Hoffmann of Nancy Little Hoffman, P.A., and Ted P. Galatis, Jr., of Ted P. Galatis, Jr., P.A., Fort Lauderdale, for appellee.
   DAMOORGIAN, J.

Appellants David and Scott Reed appeal from a final judgment in a declaratory action which determined, in relevant part, the parties’ respective interests in Natural Resources Development Corporation (hereinafter the “corporation”). We affirm in part, and reverse and remand in part, for further proceedings consistent with this opinion.

By way of background, Charles Douglas Reed formed a Florida corporation in 1979 with the assistance of his attorney. The Articles of Incorporation authorized the issuance of 7,500 shares of common stock and listed the attorney as the registered agent, initial incorporator, and sole director of the corporation. In the early months of 1980, three parcels of land in Tennessee were conveyed in fee simple to the corporation. Claude and Lora Reed owned two of the properties jointly. Claude and Charles Douglas Reed owned the third property jointly.

In July of 1980, Charles Douglas Reed disappeared from his last known domicile in Florida, and the corporation was administratively dissolved in late 1980. A year after his son’s disappearance, Claude Reed contacted his son’s attorney and granted him a limited power of attorney to assign the 7,500 shares of the corporation to his daughter, Appellee Rachel Honoshofsky. The attorney executed the assignment at Claude Reed’s request.

After the assignment and throughout the years, Appellee paid the property taxes on the Tennessee properties and shared the maintenance payments on the properties with her father Claude Reed. In 1999 after the death of her father, Appellee, signing as “president” of the corporation, transferred the three Tennessee properties to herself with a life estate to her mother Lora Reed. At some point before the commencement of the underlying proceedings, Lora Reed also passed away.

In 2004, David, Reed successfully sought an order establishing the death of his father Charles Douglas Reed. In 2005, Appellants filed a petition to quiet title to the three Tennessee properties, challenging Appellee’s 1999 transfer of the properties to herself as “president” of the corporation. The Tennessee court deferred to the Florida courts on the question of whether Appellee had the authority to act on behalf of the Florida corporation in transferring the real property. Accordingly, in 2006, Appellants sought declaratory relief in Florida to determine ownership rights in the corporation.

The declaratory action in Florida proceeded to a non-jury trial, and was followed by the trial court’s entry of a final judgment. Among other things, the final judgment determined Appellee did not have the authority to transfer the Tennessee properties to herself, and Charles Douglas Reed, Claude Reed, and Lora Reed made capital contributions to the corporation in the form of the Tennessee properties. It then determined the respective interests of these three individuals in the corporation according to those contributions. The trial court found Charles Douglas Reed had a 25% interest, Claude Reed had a 50% interest, and Lora Reed had a 25% interest, and it divided the shares according to each individual’s percentage interest.

Explaining this part of its decision at the conclusion of the non-jury trial, the trial court stated:

[W]e have a property contributed by Claude and Charles Reed who each owned 50 percent interest, and Claude and Lora Reed owning 50 percent interest in their properties. If you work that out, you’ll find that Claude obviously is on two of those transfers. Therefore, he is entitled — You have basically four people, one of them being the same person to go in. Doing the math very quickly, you’ll find that Claude has a 50 percent interest, Lora 25 percent, and Charles [Douglas] Reed 25 percent capital contribution interest in this corporation.

On appeal, Appellants contest this portion of the final judgment, which divided the interests in the corporation. They contend the trial court erred in its declaration of the respective interests in the 7,500 shares of the corporation. In so arguing, Appellants make four arguments. First, they point to the Articles of Incorporation, which state that shareholders “shall have preemptive rights.” They submit that Florida law does not allow for preemptive rights with respect to shares issued for consideration other than money. § 607.0630(2)(c)5., Fla. Stat. (2006). Therefore, the shares issued by the trial court pursuant to the real property conveyances contradict the Articles of Incorporation. Second, they submit there was no competent substantial evidence that any of the real property conveyed to the corporation was a capital contribution. Third, they maintain the trial court’s declaration of proportionate ownership based on the property transferred to the corporation is wrong as a matter of law, arguing the evidence established Charles Douglas Reed as the only person with an ownership interest in the corporation. Fourth, they assert that even the trial court’s count of grantors’ names on the warranty deeds is wrong. Appellee responds that the court’s declaration was in accordance with Florida law and the Articles of Incorporation.

Our court has recognized that a trial court’s decision in a declaratory judgment action is accorded a presumption of correctness. See Royal Oak Landing Homeowner’s Ass’n v. Pelletier, 620 So.2d 786, 788 (Fla. 4th DCA 1993). A trial court’s findings of fact in a declaratory judgment action will be upheld if supported by competent substantial evidence. McAllister v. Breakers Seville Ass’n, 981 So.2d 566, 570 (Fla. 4th DCA 2008). Finally, where a trial court’s conclusions following a non-jury trial are based upon legal error, the standard of review is de novo. Acoustic Innovations, Inc. v. Schafer, 976 So.2d 1139 (Fla. 4th DCA 2008).

We do not agree with Appellants’ first contention that the trial court’s division of interests in the corporation conflicts with the Articles of Incorporation. This argument has no merit and is irrelevant to the validity of the final judgment in this case. Telling is Appellants’ failure to supply any authority to support its argument regarding preemptive rights. Section 607.0630(2)(c)5. provides: “There is no preemptive right with respect to: [s]hares issued for consideration other than money.” In the instant case, the statement in the Articles of Incorporation that shareholders “shall have preemptive rights” is trumped by section 607.0630(2)(c)5. Because the trial court divided the interests in the shares based on real property contributions, section 607.0630(2)(c)5. is inapplicable and the provision in the Articles of Incorporation regarding preemptive rights was not implicated.

Next, we do not agree with Appellants’ second contention that there was a lack of evidence to support the finding that the real property conveyances were capital contributions. See Muben-Lamar, L.P. v. Dep’t of Revenue, 763 So.2d 1209, 1210 (Fla. 1st DCA 2000) (discussing capital contributions made in the form of real property). Competent substantial evidence existed to support the trial court’s determination that the transfers were capital contributions based upon the actual transfer of title from the individuals to the corporation without consideration.

Appellants also contend that a ruling on proportionate ownership is outside the scope of the relief requested. We find no merit to this argument. The complaint seeking declaratory relief asked the trial court to determine ownership rights in the corporation. The final judgment did just that. See Local 532 of the Am. Fed’n of State, County, and Mm. Employees, AFL-CIO v. City of Fort Lauderdale, 273 So.2d 441, 442 (Fla. 4th DCA 1973) (“ ‘A declaratory judgment must clearly define the rights of the parties which are in controversy. ... The judgment should not decide matters not presented for decision, but should decide all questions within the pleadings and properly before the court.’ ”) (citation omitted).

Next, Appellants assert that the court’s determination of proportional ownership based on the transfer of real property to the corporation is wrong as a matter of law. We disagree. Appellants’ reliance on Anson v. Anson, 772 So.2d 52 (Fla. 5th DCA 2000) is misplaced. Anson involved a dissolution of marriage. See id. at 53. In Anson, the Fifth District addressed whether the appreciation in the husband’s capital stock was a marital asset, which has no relevance to the trial court’s determination of ownership in the corporation here. Id. at 55. Here, the trial court properly determined ownership in the corporation based on the evidence before it, as requested by the parties. Cf. Agrie. Land Servs., Inc. v. State, Dep’t of Transp., 715 So.2d 297, 297-98 (Fla. 1st DCA 1998) (analyzing ownership interest in a business for the purpose of acquiring certification as a disadvantaged business enterprise based in part on “contributions of capital”).

Finally, Appellants point out that the trial court’s calculation of percentage ownership constituted error. The trial court divided the interests in the corporation between Claude (50%), Lora (25%) and Charles Douglas (25%) based upon their real property contributions. We agree that the court’s calculation does not match up with the percentages of ownership in the three properties contributed. Accordingly, we remand for the trial court to recalculate the interests while taking into consideration each party’s respective interests in the three properties. We affirm all other aspects of the final judgment.

Affirmed in Part, Reversed in Part and Remanded.

CIKLIN and LEVINE, JJ., concur.

      . Claude and Lora Reed are the parents of Charles Douglas Reed and Appellee Rachel Honoshofsky.

      . There was no evidence that the corporation ever established officers. However, in 2008, Appellee reinstated the corporation and named herself president pursuant to the advice of her attorney.