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    THE FLORIDA BAR, Complainant, v. Koko HEAD, Respondent.
    No. SC10-1175.
    Supreme Court of Florida.
    March 15, 2012.

      John F. Harkness, Jr., Executive Director, Kenneth Lawrence Marvin, Staff Counsel, and Carlos Alberto Leon, Bar Counsel, The Florida Bar, Tallahassee, FL, for Complainant.
    Koko, Head, pro se, St. Johns, FL, for Respondent.
   PER CURIAM.

We have for review a referee’s report recommending that Koko Head be found guilty of professional misconduct and sanctioned by an admonishment with probation. We have jurisdiction. See art. V, § 15, Fla. Const. We approve the referee’s recommendations as to guilt and award of costs. For the reasons discussed herein, we find that Respondent acted deliberately or knowingly and therefore disapprove the referee’s finding that Respondent acted negligently. We disapprove the referee’s finding that Respondent’s misconduct constitutes minor misconduct. We also disapprove the referee’s recommended sanction of an admonishment with probation and, instead, impose a ninety-one-day suspension. We approve the referee’s recommendation of imposing probation for one year, which shall commence upon Respondent’s reinstatement to The Florida Bar. Further, we approve the referee’s recommendation that Respondent shall complete at least five hours of continuing legal education by attending The Florida Bar’s Ethics School and also a Florida Bar professionalism course.

FACTS

The Florida Bar filed a complaint against Respondent, Koko Head, which consisted of two counts. A referee was appointed, who held hearings and made the following findings and recommendations.

Count I, The Commercial Tenant Dispute. Chris Johnson and his attorney, Margaret Wharton, filed Bar complaints against Respondent based on events that transpired during a fiercely contested commercial tenant eviction. Wharton is Respondent’s opposing counsel and Johnson is a third party adverse to Respondent’s client. In this count, three areas of Respondent’s conduct were examined.

First, Wharton’s client, Johnson, traveled to the leased premises on March 19, 2009. The premises were previously occupied by the defaulting tenant, Nations Fence (Nations). Johnson and his company, Superior Fence & Rail of North Florida, were competitors of Nations but were negotiating to purchase Nation’s assets, fixtures, inventory, and current job contracts. Johnson went to the premises to pick up “furniture, fixtures, equipment and inventory.” He had a letter signed by the insolvent tenant identifying him “as an authorized agent” of the tenant. Johnson asserts that Respondent illegally and unethically prevented him from removing items from the leased premises, as Respondent claimed a landlord’s hen for his client.

At the same time Nancy Allen, who was an employee of the defaulting tenant, Nations, visited the leased premises to retrieve business records to respond to a sales tax audit. Allen testified that she told Respondent and the landlord, James Lucas (who was Respondent’s client), that she needed the books and records for the audit. Allen stated that both of them did not permit her to take the items.

The facts were unclear as to whether the landlord, Nations, or Johnson had a superior interest to the furniture, fixtures, or inventory in the leased premises. The referee noted that Nations was in default of the lease and concluded that the landlord had a statutory lien on the tenant’s property that attached when the property was brought onto the premises. Also, the referee stated that the landlord’s lien was possessory (the landlord would have lost his lien if the property was removed from the premises), so Respondent’s client had a direct interest in preserving his landlord’s lien and preventing the removal of property from the leased premises. On that date, Respondent prevented everyone from removing any property from the premises. The referee found that Respondent did not commit any ethical misconduct by preserving the status quo until matters could be reviewed by a court.

The Bar alleged that Respondent violated Rules Regulating the Florida Bar 4-3.3(a), regarding candor towards the tribunal, and 4-8.4(c), regarding dishonesty, fraud, deceit, or misrepresentation. Before the referee, the Bar contended that Respondent misrepresented that he made certain business records of the defaulting tenant available to the defaulting tenant’s employee, Allen, on March 19, 2009, when he in fact denied the tenant access to those records on that date. The Bar asserts that the misrepresentation appears in Respondent’s Affidavit of Compliance that he filed with the court in the eviction case. Respondent denied the Bar’s allegation and testified before the referee that he expressly made the records available to the defaulting tenant on that date.

Allen, the defaulting tenant’s comptroller, testified that she arrived about 9:00 a.m. to pick up the files needed for the tax audit. Allen’s employer, the defaulting tenant, had asked her to retrieve the files. Allen drove to the leased premises in her car with her husband. Another Nations employee drove a truck to help transport the files. Allen brought banker’s boxes so she “could at least get the '08 job files so I could try to configure or put together sales tax reports for later '07, early '08.” When she arrived, she stated that she was there to gather the files, but the landlord denied her access. Allen testified that she was there through the lunch hour until about 2:30 or 3:00 in the afternoon, waiting almost six hours to retrieve the records. She ultimately told the truck driver to leave, knowing that she could take a significant number of files in her car. When Respondent arrived at the premises, he did not allow Allen to remove any files.

Whether Respondent improperly denied Allen access to the corporate books and records is not the issue in this count. The disciplinary issue is whether Respondent misrepresented those facts in his Affidavit of Compliance filed with the court on March 27, 2009. In the affidavit, Respondent asserted that he “told her she could take all the files.” Respondent maintains that Allen’s contentions are false. The referee found Respondent’s testimony on this issue not credible and noted that Respondent’s testimony directly conflicts with the plain language of an email he sent to Allen that evening. Accordingly, Respondent’s statement in the Affidavit of Compliance is inaccurate and untrue. The referee recommended finding Respondent guilty of violating Rule Regulating the Florida Bar 4-3.3 for filing the inaccurate and untruthful affidavit with the court.

Second, Wharton contended that Respondent misrepresented whether a complaint for distress for rent had actually been filed on March 19, 2009, and used that misrepresentation to his client’s benefit. The referee found that Respondent prepared a letter purporting to show a case number for the landlord’s distress proceedings, but at the time the proceedings had not been filed.

The letter contained a case number purporting to be the case number for the distress proceedings, but the case number had nothing to do with the landlord tenant matter. In fact, the distress proceedings had not been filed when the letter was issued. Although Respondent claims the incorrect case number was a simple clerical mistake, no case number could have been provided because the case was not yet filed. The referee found that Respondent provided a fictitious case number in the letter to create a tactical benefit to protect the landlord’s lien.

Respondent testified that he dictated the March 19, 2009, letter. Respondent then went to the premises and, to prevent access to the property, brought the letter which inadvertently contained the false case number. The referee did not accept Respondent’s testimony about how the false information was placed in the letter, i.e., that his staff had mistakenly typed it and he simply had not noticed. This is not a situation where an old document was modified for a new purpose and the wrong case caption was carried over accidentally. The referee found that the only reason the information was on the letter was to make it appear as though a case had been filed that authorized Respondent’s denial of access to the premises. The referee recommended finding Respondent guilty of violating Rule Regulating the Florida Bar 4-4.1 by posting the letter on the leased premises. The referee also stated: “However, such violation was minor and of no consequence in the case. No evidence was presented that showed that the letter was relied upon by anyone or caused damage or harm.”

Third, Wharton stated that Respondent failed to timely communicate about and comply with court rulings. The referee found that Respondent was sometimes difficult to deal with, but his conduct did not rise to the level of flagrant and repeated unprofessional conduct necessary to violate the Bar rules. Ultimately, the referee concluded that “Wharton’s real issue stemmed from her belief that Respondent had caused a wrongful lockout of her client and had helped the tenant’s employee, Mr. Willard, incorporate a business with a deceptively similar name, with Respondent himself as the registered agent. Ms. Wharton maintained that Respondent’s actions demonstrated his active participation ‘in an apparent conspiracy to assume possession of the property and leased premises with the intent to divert those assets to this new corporation and its principal, Bill Willard, even though it is clearly not entitled to do so under the law.’” Also, the Bar argued that Respondent engaged in misconduct that was part of a conspiracy to convert the tenant’s business opportunity to the landlord. The Bar contended that Respondent and the landlord would not turn over the business assets and inventory to Johnson, or the books and records of the business to Allen, because the landlord needed both to steal the tenant’s business.

The referee noted that this theory may be the crux of Wharton’s client’s claims in the pending landlord-tenant action, but it was not proven in these proceedings. The referee found that the Bar failed to prove by clear and convincing evidence that Respondent intended to steal the tenant’s business. In fact, the referee stated that the evidence offered by the parties clearly established that Respondent was only attempting to protect the landlord’s interests.

For count I, the referee recommended that Respondent be found guilty of violating Rules Regulating the Florida Bar 4-3.3(a) (candor towards the tribunal), 4-4.1(truthfulness in statements to others), and 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation).

Count II, Murat Tastan. Respondent was representing Murat Tastan for water intrusion into the client’s condominium. Tastan filed a grievance with the Bar alleging that Respondent had not represented him properly. Tastan testified that Respondent had undermined his case by failing to provide copies of documents including an offer of settlement; drafting poor responses; delaying the case unnecessarily by requesting many extensions; responding late on several occasions to important time sensitive documents; and failing to communicate with him.

Eventually, Respondent withdrew from Tastan’s case. Tastan hired another attorney, Brad Hughes, who settled the case. The correspondence introduced before the referee established that Respondent knew of Hughes’ involvement on behalf of the client shortly after Respondent withdrew.

Tastan’s complaint was initially closed by the Bar as a fee dispute. However, after a failed request for fee arbitration, Respondent sent Tastan a letter on August 9, 2009, attaching a statement of claim for fees allegedly owed and stating that Respondent would not file the complaint if Tastan signed a mutual general release. Tastan did not sign the mutual release. He consulted with his counsel, Hughes, about the letter and forwarded it with a grievance to the Bar. The Bar reopened Tastan’s earlier grievance and asserted that Respondent had violated Rule Regulating the Florida Bar 4-1.8(h) by failing to advise Tastan of his right to independent counsel when attempting to limit his liability through the mutual release.

Before the referee, Respondent argued that Tastan had not alleged malpractice and that the Bar has neither pled malpractice nor proven it. Respondent also claimed that when he sent the letter, Tas-tan was represented by counsel in the water intrusion case. Respondent asserted that he could not violate rule 4-1.8(h) because his former client was represented.

Under the rule, a lawyer may not limit his liability to his former client unless he advises the client in writing that independent representation is appropriate. The referee found the mutual release that Respondent sent to Tastan was an attempt to limit his liability to Tastan. Therefore, based upon the language of rule 4-1.8(h) (“A lawyer shall not settle a claim for such liability with an unrepresented client or former client without first advising that person in writing that independent representation is appropriate in connection therewith.”), the referee found that Respondent had a duty to advise Tastan in writing that independent representation by counsel was appropriate when considering the mutual release and settlement. Further, the referee found that Respondent did not advise Tastan of his right to independent counsel for settlement/release purposes and by this failure, Respondent violated the rule.

For count II, the referee recommended that Respondent be found guilty of violating rule 4-1.8(h) (Limiting Liability for Malpractice).

Recommended Sanction. The referee considered case law and the Standards for Imposing Lawyer Sanctions. As a disciplinary sanction, the referee recommended: (a) imposing an admonishment; (b) imposing probation for one year, during which time Respondent would be required to complete at least five hours of continuing legal education in ethics or professionalism; (c) granting the Bar’s motion for sanctions and ordering Respondent to pay $500 to The Florida Bar’s Client Security Fund, and; (d) payment of The Florida Bar’s costs in these proceedings, which total $3,655.26.

The referee did not find any mitigating factors. As to aggravating factors, the referee found: (a) prior disciplinary offense-a grievance committee admonishment for minor misconduct dated November 12, 2007; (b) dishonest or selfish motive; (c) a pattern of misconduct; (d) multiple offenses; (e) refusal to acknowledge wrongful nature of conduct; and (f) substantial experience in the practice of law.

On Review. The Florida Bar sought review of the referee’s report, presenting five challenges to the report. Respondent filed a cross-petition for review in which he raises additional challenges.

ANALYSIS

Preliminary Issues. The Bar’s first two arguments focus on substantive issues of landlord-tenant law. When making these arguments, the Bar does not state whether the Court’s resolution of the civil law issues would have any impact on this disciplinary case. The Bar does not specifically assert that Respondent violated any Rules Regulating the Florida Bar by the conduct discussed under these two issues. Thus, it is not apparent why the Bar is presenting these issues before the Court. See Fla. Bar v. Garland, 651 So.2d 1182, 1183 (Fla.1995) (disciplinary proceedings are concerned with violations of ethical responsibilities imposed on an attorney as a member of The Florida Bar).

More significantly, the landlord-tenant dispute was a civil action pending in a lower court when the parties sought review of the referee’s report. Thus, the landlord-tenant issues are more appropriate for determination in the civil case between the underlying parties, rather than being considered in the instant disciplinary case. Accordingly, we reject these two arguments without further discussion.

Rule ¡¡.-8.1(6). Respondent challenges the referee’s recommendation that he is guilty of violating rule 4 — 8.4(c). Respondent claims that the referee’s findings of fact do not support this recommendation. The Court’s standard of review for evaluating a referee’s factual findings is as follows: This Court’s review of such matters is limited, and if a referee’s findings of fact are supported by competent, substantial evidence in the record, this Court will not reweigh the evidence and substitute its judgment for that of the referee. Fla. Bar v. Frederick, 756 So.2d 79, 86 (Fla.2000); see also Fla. Bar v. Jordan, 705 So.2d 1387, 1390 (Fla.1998).

Respondent’s assertion is without merit. For count I, the referee specifically recommended that the Court find Respondent guilty of violating rule 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation). The referee made the recommendation as to guilt after a lengthy discussion of facts that demonstrate Respondent engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation.

For example, Respondent stated that he allowed Allen to have access to the business records. Before the referee, Respondent “testified in these proceedings and in his affidavit filed in the eviction matter that he expressly made the records available to the tenant on that date.” Report of Referee at 9. After considering the testimonies and evidence, the referee did not find Respondent’s testimony credible. Allen testified that she waited for approximately six hours, starting about 9:00 a.m. and continuing until the afternoon, yet she was not provided with access to the business records. In addition, Respondent sent Allen an email later that day (5:21 p.m.). The email supported Allen’s testimony that Respondent would not make the records available unless her employer, the defaulting tenant, signed a revocation letter — the revocation letter was provided in that email. In the email, Respondent stated “upon receipt of the signed letter in the form I have prepared, the files you need for the audit will be made available to you.” These facts support the referee’s recommendation of guilt because Respondent engaged in dishonest conduct before the referee and lower court. Respondent’s evening email, which supports Allen’s testimony, shows that Respondent did not tell Allen “she could take all the files” when she was at the premises earlier that day. The facts show that Respondent’s statements before the referee and in the affidavit were untrue.

Respondent also engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation when he used the fraudulent case number in the letter he created and posted on the premises. The letter indicated that a complaint for distress for rent had been filed, when in fact the proceedings had not been filed. The referee found the following facts:

Although the Respondent contends that the incorrect case number was a simple clerical mistake, no case number could have been provided since the case was not even filed until later. More likely, a fictitious case number was given by the Respondent for whatever tactical benefit it might lend to protect the landlord’s lien.
By his own testimony, Respondent admits that he then dictated the March 19, 2009, letter. Respondent then went to the location, and to prevent access to the property, brought with him his March 19, 2009, letter (TFB Exhibit F) containing an erroneous case number. This court does not accept Respondent’s testimony regarding how that information came to be on the letter — that his secretary/wife had mistakenly typed it in and he simply had not noticed. This is not a situation where an old document was modified for a new purpose and the wrong case caption was carried over ac-cidently. This court finds that the only reason that information is on the letter is to make it appear as though a case had been filed which may have authorized Respondent’s denial of access to the premises.

Report of Referee at 11-12.

Immediately after discussing the facts regarding Respondent’s false statements that he made the records available to Allen and Respondent’s fraudulent letter, the referee stated, respectively, that he was recommending that the Court find Respondent guilty of violating rules 4-3.3(a) (candor towards a tribunal) and 4-4.1 (truthfulness in statements to others). The referee also recommended that the Court find Respondent guilty of violating rule 4-8.4(c). 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. See Fla. Bar v. Skoureas, 913 So.2d 554, 557-58 (Fla.2005). Here, the referee’s factual findings are based on competent substantial evidence in the record such as testimonies and documents (the email to Allen and the fraudulent letter). Accordingly, we conclude that the referee’s factual findings support the referee’s recommendation that Respondent is guilty of violating rule 4-8.4(c).

The Bar also challenges the referee’s findings with regard to the violation of rule 4-8.4(c). The Bar asserts that the referee erred in finding that Respondent acted negligently rather than intentionally. The Court has repeatedly held that “[i]n order to find that an attorney acted with dishonesty, misrepresentation, deceit, or fraud, the Bar must show the necessary element of intent.” Fla. Bar v. Forrester, 818 So.2d 477, 483 (Fla.2002) (quoting Fla. Bar v. Fredericks, 731 So.2d 1249, 1252 (Fla.1999)). Thus, Respondent must have acted intentionally for Respondent to be found guilty of violating rule 4-8.4(c).

The referee made factual findings which show that Respondent violated the rule. Also, the referee recommended that Respondent be found guilty of violating this rule. Nevertheless, the referee inexplicably stated that Respondent did the acts due to negligence. We conclude that the referee is not supported by competent substantial evidence in finding that Respondent acted negligently. In fact, the referee’s findings demonstrate that Respondent acted intentionally.

For rule 4-8.4(c), the element of intent can be satisfied merely by showing that the conduct was deliberate or knowing. Fla. Bar v. Brown, 905 So.2d 76, 81 (Fla.2005); Fla. Bar v. Fredericks, 731 So.2d 1249, 1252 (Fla.1999); see also Fla. Bar v. Smith, 866 So.2d 41, 46 (Fla.2004) (recognizing that the motive behind the attorney’s action was not the determinative factor but instead the issue was “whether the attorney deliberately or knowingly engaged in the activity in question”). In the instant case, the referee specifically found that the fraudulent case number on Respondent’s letter was not a simple clerical mistake. As the referee noted, there could not have been a case number at the time the letter was posted because the case was not filed until later. Also, Respondent created the letter and posted it on the premises “to prevent access to the property.” Report of Referee at 12. The referee stated “a fictitious case number was given by the Respondent for whatever tactical benefit it might lend to protect the landlord’s lien.” Id. Therefore, Respondent’s deliberate and knowing act of providing a fraudulent letter with an unrelated case number, in order to obtain a tactical advantage for his client, demonstrates that he acted intentionally. As the referee stated, “the only reason that information is on the letter is to make it appear as though a case had been filed which may have authorized Respondent’s denial of access to the premises.” Id. (emphasis omitted).

Accordingly, we disapprove the referee’s finding that Respondent acted negligently. Competent substantial evidence in the record and the referee’s own factual findings show that Respondent acted with intent and violated rule 4-8.4(c).

Rule U-3.3. Respondent argues that the referee’s factual findings do not support the referee’s recommendation that Respondent is guilty of violating rule 4-8.8 (candor towards the tribunal). The Court has stated that the referee’s factual findings must be sufficient under the applicable rules to support the recommendations as to guilt. Shoureas.

The referee found that Respondent filed an untruthful affidavit with the civil court, in which he claimed that he made the business records available to Allen when she came to the premises on March 19, 2009. As previously discussed, Respondent’s email to Allen and her testimony support the referee’s finding that Respondent did not provide her with access to the records when she was at the premises that day. We conclude that these facts support the recommendation that Respondent is guilty of violating rule 4-3.3. Although Respondent asserts that he provided the business records to Allen at a later date, his argument is misguided. The point is that Respondent made a false statement in the affidavit by claiming that he made the records available to Allen on March 19, 2009. The issue is the truthfulness of Respondent’s statements; it is immaterial that he made the records available to Allen at a later date. Accordingly, we approve the referee’s recommendation that Respondent be found guilty of violating rule 4-3.3.

Rule i.l-8(h). Respondent asserts that the referee’s factual findings for count II do not support the referee’s recommendation that Respondent be found guilty of violating rule 4.1 — 8(h) (Limiting Liability for Malpractice). As previously stated, the standard of review for such a challenge is whether the referee’s factual findings are sufficient under the applicable rules to support the recommendation as to guilt. Shoureas.

Respondent argues that he was not required to inform his former client, Tastan, in writing, that Tastan might want to seek independent representation or advice when Respondent sent him the August 11, 2009, correspondence. Respondent claims that the rule does not apply to his circumstances because Tastan had not filed a malpractice action against him. Further, Respondent attempts to characterize the situation with Tastan solely as a fee dispute. However, Tastan’s Bar complaint alleged that Respondent had not represented him appropriately in his water intrusion case. In addition, Tastan provided several examples in his testimony about Respondent’s allegedly inadequate service. Tastan believed that Respondent committed malpractice. Thus, despite Respondent’s current arguments, his situation with Tastan involved allegations of malpractice.

Next, Respondent asserts that he did not violate the rule because Tastan had an attorney. However, Respondent sent the letter directly to Tastan, which included a civil complaint for fees allegedly owed. In the letter, Respondent informed Tastan that he would not file the complaint if Tastan signed a general release. Respondent admits that he did not advise Tastan, in writing or otherwise, that independent representation could be appropriate to assist Tastan in considering Respondent’s proposal. See Fla. Bar v. Jordan, 705 So.2d 1387 (Fla.1998) (finding a violation of rule 4-1.8 where respondent failed to advise client to seek independent counsel during discussions of settlement of client’s potential malpractice claim against respondent). Tastan felt threatened by Respondent’s letter, so he forwarded it to the Bar. The fact that Tastan had a successor attorney in the underlying water intrusion case did not remove Respondent’s duty to inform Tastan that -he might want to seek independent representation regarding the potential malpractice issues.

Accordingly, based on the facts found by the referee, we approve the referee’s recommendation that Respondent be found guilty of violating rule 4-1.8(h).

Minor Misconduct. The Bar challenges the referee’s finding that Respondent’s dishonest acts constitute minor misconduct. The Bar asserts that Respondent engaged in serious deceptive behavior. We agree.

The referee found that the affidavit Respondent filed with the circuit court was false. Further, the referee found that Respondent testified untruthfully concerning that matter during the disciplinary hearing. Thus, Respondent engaged in dishonest conduct before the circuit court and the referee. Competent substantial evidence in the record supports the referee’s recommendation that Respondent be found guilty of violating rule 4-3.3 (candor towards the tribunal) for submitting the untruthful affidavit.

Next, Respondent created a fraudulent letter and posted it on the leased premises. He drafted the letter with a fictitious case number so he could gain a tactical advantage in the landlord-tenant dispute — he sought to create the appearance that he had already filed a civil case. The evidence supports the referee’s recommendation that Respondent be found guilty of violating rule 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation) for creating and posting the fraudulent letter.

By these acts, Respondent has engaged in severely dishonest conduct. Further, with regard to violations of rule 4-8.4(c), the Court has repeatedly stated that “basic fundamental dishonesty ... is a serious flaw, which cannot be tolerated.” Fla. Bar v. Rotstein, 835 So.2d 241, 246 (Fla.2002). Dishonesty cannot be permitted “by a profession that relies on the truthfulness of its members.” Id. (quoting Fla. Bar v. Korones, 752 So.2d 586, 591 (Fla.2000)). “Dishonest conduct demonstrates the utmost disrespect for the court and is destructive to the legal system as a whole.” Fla. Bar v. Head, 27 So.3d 1, 8-9 (Fla.2010).

In addition, the Court has plainly stated that it “does not view violations of rule 4-8.4(c) ... as minor.” Head, 27 So.3d at 8. In fact, rule 3 — 5.1(b), “Minor Misconduct,” clearly provides:

(1) Criteria. In the absence of unusual circumstances misconduct shall not be regarded as minor if any of the following conditions exist:
(E) the misconduct includes dishonesty, misrepresentation, deceit, or fraud on the part of the respondent ....

(Emphasis added.) Accordingly, as there are no unusual circumstances present that explain or excuse Respondent’s dishonest conduct, we disapprove the referee’s finding that Respondent’s misconduct was minor misconduct.

Disciplinary Sanction. The Bar argues that the referee’s recommended sanction, an admonishment with probation, is not supported and that the appropriate sanction is a ninety-one-day suspension. 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).

In contrast to the Bar, Respondent asserts that the Court should approve the referee’s recommended sanction. He argues that he did not intentionally engage in misconduct and that his misdeeds merely amount to minor misconduct. As previously discussed, we conclude that Respondent acted intentionally when he committed the misconduct. Also, his dishonest acts constitute serious misconduct. He filed a false affidavit with the circuit court. Respondent testified untruthfully before the referee. Further, he drafted and posted the fraudulent letter on the leased premises to mislead others into believing that he had already filed a civil case, which provided him with a tactical advantage.

In addition, the referee recommended finding Respondent guilty of violating rules 4-3.3(a) (candor towards the tribunal), 4-4.1 (truthfulness in statements to others), 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 4-1.8(h) (limiting liability for malpractice). The referee found six aggravating factors. No mitigation was found. Considering these recommendations as to guilt and the finding of six aggravating factors, the disciplinary sanction of an admonishment is not supported by the standards and case law.

Based upon the Florida Standards for Imposing Lawyer Sanctions and Respondent’s knowing conduct, a suspension is appropriate. Under standard 7.0, “Violations of Other Duties Owed as a Professional,” standard 7.2 provides that suspension is “appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional and causes injury or potential injury to a client, the public, or the legal system.” Respondent caused potential injury to the public and the legal system by submitting his false affidavit to a civil court, providing his untruthful testimony before the referee, and by creating and posting the letter stating a false case number.

In addition, standard 6.12, under “Violations of Duties Owed to the Legal System,” provides that suspension is appropriate “when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action.” This standard applies due to Respondent’s untruthful affidavit.

Based on case law, a ninety-one-day suspension is appropriate. In Florida Bar v. Lathe, 774 So.2d 675 (Fla.2000), the respondent was suspended for ninety-one days for making intentional misrepresentations to a judge on two separate occasions that he could not attend a deposition. Similar to the respondent in Lathe, Respondent provided false information to a court. Next, in Florida Bar v. Fortunato, 788 So.2d 201 (Fla.2001), the respondent was suspended for ninety days for providing false testimony at a disciplinary hearing. Here, Respondent has engaged in more egregious misconduct than the respondent in Fortunato because he has committed three acts of dishonesty. Thus, Respondent merits a more serious sanction than the ninety-day suspension imposed in Fortunato.

Further, Respondent violated rule 4-8.4(c), which case law recognizes as a serious violation of the Rules Regulating the Florida Bar. The Court has firmly stated that the legal profession cannot tolerate misconduct involving dishonesty. Fla. Bar v. Patrick, 67 So.3d 1009 (Fla.2011); Fla. Bar v. Hall, 49 So.3d 1254 (Fla.2010); Head; Rotstein.

After considering the standards and case law, we conclude that the referee’s recommended sanction of an admonishment with probation is unsupported. We impose a ninety-one-day suspension.

CONCLUSION

Accordingly, we approve the referee’s recommendations as to guilt and award of costs. We find that Respondent acted deliberately or knowingly and therefore disapprove the referee’s finding that Respondent acted negligently. We disapprove the referee’s finding that Respondent’s misconduct constitutes minor misconduct. We also disapprove the referee’s recommendation of an admonishment with probation. Instead, Koko Head is hereby suspended from the practice of law for ninety-one days and thereafter until he proves rehabilitation. We approve the referee’s recommendation of imposing probation for one year, which shall commence upon Respondent’s reinstatement to The Florida Bar. Further, we approve the referee’s recommendation that Respondent shall complete at least five hours of continuing legal education by attending The Florida Bar’s Ethics School and a Florida Bar professionalism course.

The suspension will be effective thirty days from the filing of this opinion so that Koko Head can close out his practice and protect the interests of existing clients. If Head notifies this Court in writing that he is no longer practicing and does not need the thirty days to protect existing clients, this Court will enter an order making the suspension effective immediately. Koko Head shall fully comply with Rule Regulating the Florida Bar 3-5.1(g). Further, Head shall accept no new business from the date this opinion is filed until he is reinstated to the practice of law in Florida.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Koko Head in the amount of $3,655.26, for which sum let execution issue.

It is so ordered.

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

      . The referee noted that Johnson claimed he was authorized by the defaulting tenant to take possession of the tenant’s assets, yet Johnson acknowledged that the sale had not been consummated.

      . Allen testified that the records would only have been made available if and when her employer, the defaulting tenant, signed a revocation letter that Respondent emailed on the evening of March 19, 2009, after Allen left the premises. Respondent's email corroborates Allen's testimony. Respondent sent the email on March 19, 2009 at 5:21 p.m., which is the same day that Allen sought to remove the documents from the premises. In the email, Respondent wrote that "upon receipt of the signed letter in the form I have prepared, the files you need for the audit will be made available to you.” Thus, based on Respondent’s email, he did not make the files available to Allen earlier that day when she was at the premises.

      . In addition, Wharton testified that she spoke to Respondent by phone on March 19, 2009. When she asked Respondent if he had obtained a distress writ, he replied that he was on his way to obtain one. During the phone call, Respondent gave Wharton the case number that appears on his March 19, 2009, letter. After she spoke to Respondent that day regarding his denial of access to the property, she confirmed both that Respondent had not yet filed a case and that Respondent's purported case number actually referred to a mortgage foreclosure case filed earlier that was unrelated to the instant dispute.

      . Rule 4-1.8(h) provides:
      (h) Limiting Liability for Malpractice. A lawyer shall not make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement. A lawyer shall not settle a claim for such liability with an unrepresented client or former client without first advising that person in writing that independent representation is appropriate in connection therewith.

      . In his brief before the Court, Respondent stated that his repeated failures to "promptly coordinate and schedule [a specified] deposition until the week of the final hearing created inconvenience and scheduling problems for Bar Counsel [who] was involved in handling other matters for TFB. The inconvenience and delay was solely the responsibility of Respondent who has accepted responsibility for it. TFB moved for sanctions as a result of the inconvenience to its Bar Counsel which the Referee granted and ordered Respondent Mr. Head to pay $500.00 to TFB’s Client Security Fund. Respondent has already paid the amount and is not appealing this part of the Report of Referee.” Respondent's Answer Brief at 1 n. 2.

      . In considering Respondent’s creation and posting of the fraudulent letter, the referee stated that "such violation was minor and of no consequence in the case.” Report of Referee at 12. For the rule violations found under count I, the referee concluded that the "conduct of the Respondent, viewed in light of all of the evidence shows no more than minor misconduct and misjudgments by the Respondent." Report of Referee at 19.

      . Respondent acted deliberately or knowingly. Thus, we disapprove the referee’s application of the standards for situations involving negligence.


source: Caselaw Access Project

author: CANADY, C.J.

license: Public Domain

text:
    Willie BROWN, et al., Petitioners, v. Kim J. NAGELHOUT, et al., Respondents.
    No. SC10-868.
    Supreme Court of Florida.
    March 15, 2012.

      Lincoln J. Connolly of Rossman Baum-berger, Reboso, Spier and Connolly, PA., Miami, FL, for Petitioners.
    Daniel J. Fleming, Jose A. Gutierrez and Honey Dee Kalkins of Melkus, Fleming and Gutierrez, Tampa, FL; and Richard A. Sherman, Sr. of Richard A. Sherman, P.A., Fort Lauderdale, FL; and David B. Goulfine and Harold Davis Lewis, Jr. of Hightower and Partners, Orlando, FL, for Respondents.
   CANADY, C.J.

In this case, we consider the provisions of Florida law governing the selection of venue based on the residency of defendants. Specifically, we address a limitation placed on the selection of venue— known as the joint residency rule — derived from Enfinger v. Baxley, 96 So.2d 538 (Fla.1957), which held that the selection of venue based on residency was limited to the county of residence shared by the individual defendant and the corporate defendant.

We have for review the decision of the Fourth District Court of Appeal in Brown v. Nagelhout, 33 So.3d 83 (Fla. 4th DCA 2010), which, based on the joint residency rule, affirmed the grant of a motion for a change of venue to the county of residence shared by the individual defendant and one corporate defendant where there was not a county of residence common to all three defendants. The Fourth District’s decision expressly and directly conflicts with Aladdin Insurance Agency, Inc. v. Jones, 687 So.2d 937 (Fla. 3d DCA 1997); Reliable Electrical Distribution Co. v. Walter E. Heller & Co. of Louisiana, Inc., 382 So.2d 1287 (Fla. 1st DCA 1980); and Doonan v. Poole, 114 So.2d 504 (Fla. 2d DCA 1959), in which the First, Second, and Third District Courts of Appeal concluded that the joint residency rule was inapplicable to cases in which not all of the defendants shared a common county of residence. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

Because Enfinger was predicated on a serious misinterpretation of the governing statutes, we resolve the conflict by receding from Enfinger. We conclude that the Florida courts should uniformly apply the plain language of the venue statutes enacted by the Legislature, not the judicially created joint residency rule. Accordingly, we quash the decision of the Fourth District.

I. BACKGROUND

In June 2009, Willie and Brenda Brown filed a complaint in Broward County, Florida, against Kim Nagelhout, Helena Chemical Co., Inc., and CSX Transportation, Inc., alleging multiple causes of action arising from a collision between a truck owned by Helena Chemical and operated by Na-gelhout and a train operated by CSX, on which Willie Brown was riding. The collision occurred in Pasco County, Florida. Nagelhout and Helena Chemical subsequently filed a motion to dismiss or to transfer venue from Broward County to Pasco County, and CSX joined in the motion. The trial court granted the motion to transfer venue. Relying on Enfinger, the trial court concluded that because Na-gelhout and Helena Chemical both reside in Pasco County, Broward County was not a proper venue in which to litigate the Browns’ complaint. Brown, 38 So.3d at 84.

The Browns appealed in the Fourth District, contending that because not all of the defendants to this action share a county of residence, the joint residency rule from Enfinger does not apply. The Fourth District rejected the Browns’ argument. The Fourth District interpreted Enfinger to direct that where an individual defendant is sued together with a corporate defendant and the corporate defendant resides in the same county as the individual defendant, venue lies in the common county of residence. Brown, 33 So.3d at 84. Because the trial court found that Nagelhout resides in Pasco County and Helena Chemical has a business residence in Pas-co County, the Fourth District concluded that venue lies in Pasco County. The Fourth District stated that it found “no merit to any of the other issues raised by the Browns” and affirmed the trial court’s order granting the motion to transfer venue from Broward County to Pasco County. Id.

The Browns petitioned this Court for review, alleging express and direct conflict with Enfinger, Aladdin Insurance Agency, 687 So.2d at 939 (concluding that the joint residency rule was not applicable because there was “no county of residence which [was] common to all three defendants”); Reliable Electrical Distribution, 382 So.2d at 1288 (concluding that where defendants reside in multiple counties, plaintiff is entitled to choose venue pursuant to section 47.021, Florida Statutes); and Doonan, 114 So.2d at 506 (concluding that Enfinger did not apply where the three defendants did not all share a common county of residence). This Court granted review.

In the analysis that follows, after examining the governing statutory provisions and explaining the basis for receding from Enfinger, we then turn to the case on review and determine that the trial court erred in granting the motion for a change of venue.

II. ANALYSIS

The determination of venue in Florida is governed by a series of statutory provisions set forth in chapter 47, Florida Statutes (2011). Section 47.011, Florida Statutes (2011), provides that “[ajctions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located.” With respect to corporations, section 47.051, Florida Statutes (2011), provides:

Actions against domestic corporations shall be brought only in the county where such corporation has, or usually keeps, an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located. Actions against foreign corporations doing business in this state shall be brought in a county where such corporation has an agent or other representative, where the cause of action accrued, or where the property in litigation is located.

Finally, section 47.021, Florida Statutes (2011), provides that “[ajctions against two or more defendants residing in different counties may be brought in any county in which any defendant resides.” Although these provisions were previously numbered as sections 46.02 and 46.04, respectively, the substance of sections 47.021 and 47.051 has been part of Florida law since 1906. See §§ 1384, 1386, Gen.Stat. (1906).

Under this statutory scheme, the plaintiff may select a venue within which to litigate a cause of action based on the residency of the defendants. In the instant case, defendant Nagelhout, an individual, resides in Pasco County. Defendant Helena Chemical, a foreign corporation, has a business residence in Pasco County and a registered agent in Broward County. Defendant CSX has its principal place of business in Duval County, Florida, and its registered agent in Leon County, Florida. While it is not clear from the record whether CSX is a domestic or foreign corporation, the defendants do not claim that CSX has “an office for transaction of its customary business” or “an agent or other representative” in Pasco County. § 47.051, Fla. Stat. Thus, based on the above statutes, the Browns had the option to file suit based on residency in Pasco, Broward, Duval, or Leon counties. In their motion to transfer venue, however, the defendants argued that under En-finger, venue lay only in Pasco County, where Nagelhout and Helena Chemical share a common county of residence.

A defendant wishing to challenge the plaintiffs selection has “the burden of pleading and proving that the venue is improper.” Inverness Coca-Cola Bottling Co. v. McDaniel, 78 So.2d 100, 102 (Fla.1955). “When a trial court is presented with a motion to transfer venue based on the impropriety of the plaintiffs venue selection under section 47.011, the trial court must resolve any relevant factual disputes and then make a legal decision whether the plaintiffs venue selection is legally supportable.” McDaniel Reserve Realty Holdings, LLC v. B.S.E. Consultants, Inc., 39 So.3d 504, 508 (Fla. 4th DCA 2010) (citing PricewaterhouseCoopers LLP v. Cedar Resources, Inc., 761 So.2d 1131, 1133 (Fla. 2d DCA 1999)). “The trial court’s legal conclusions in this regard are reviewed de novo.” Id.

In Enfinger, this Court granted a writ of certiorari, quashing a trial court’s denial of a motion to dismiss for improper venue. Plaintiff Loudoun Baxley, a resident of Polk County, Florida, filed suit in Duval County against Dan Enfinger and Enfinger’s employer, Atlantic Coast Line Railroad Company. Enfinger was a resident of Polk County, and the railroad company, a foreign corporation, had an agent in and did business in both Polk and Duval counties. At that time, section 46.02, Florida Statutes (1955), provided that “[s]uits against two or more defendants residing in different counties ... may be brought in any county ... in which any defendant resides,” and section 46.04, Florida Statutes (1955), provided that suits against foreign corporations doing business in this state were to be “commenced in a county ... wherein such company may have an agent or other representative, or where the cause of action accrued.” Enfinger, 96 So.2d at 539-40 (quoting §§ 46.02, 46.04, Fla. Stat. (1955)). This Court concluded that “a corporate defendant ‘resides,’ within the meaning of Section 46.02, in the county or counties specified in Section 46.04,” and thus, Atlantic Coast Line resided in Polk and Duval Counties. Enfinger, 96 So.2d at 540.

This Court then concluded that because Enfinger and Atlantic Coast Line both resided in Polk County, the individual defendant and the corporate defendant should not be considered to reside in different counties within the meaning of section 46.02. This Court explained:

The applicability of the statute is clear where the venue privileges of the defendants are co-equal and not co-existent in the same county. Here, however both defendants “reside” in Polk County, even though the corporate defendant may also be said to “reside” in Duval County. If sued alone, the defendant corporation would have no greater right, under Section 46.04, to be sued in Duval County than in Polk County since it has an agent in both counties; but the individual defendant if sued alone would have the privilege, under Section 46.01, of being sued in Polk County. In this situation, we do not think Section 46.02 should be applied to give to a plaintiff the right to choose the forum in which to bring his suit. “The right of a plaintiff to have an action tried in another county than that in which the defendant has his residence is exceptional, and, if the plaintiff would claim such right, he must bring himself within the terms of the exception.” Brady v. Times-Mirror Co., 106 Cal. 56, 39 P. 209, 210 [(Cal.1895) ].

Enfinger, 96 So.2d at 540. This Court’s holding that where a corporate defendant is subject to suit in the county in which the individual defendant resides, “Section 46.02 cannot be applied to defeat the individual defendant’s venue privilege,” id. at 540-41, has become known as the joint residency rule.

In the instant case, the trial court applied the joint residency rule and therefore determined that venue was proper only in Pasco County, where Nagelhout and Helena Chemical shared a residence. Accordingly, the trial court granted the defendants’ motion to change venue.

In Florida, the “presumption in favor of stare decisis is strong.” N. Fla. Women’s Health & Counseling Servs., Inc. v. State, 866 So.2d 612, 637-38 (Fla.2003). Stare decisis “provides stability to the law and to the society governed by that law.” Rotemi Realty, Inc. v. Act Realty Co., 911 So.2d 1181, 1188 (Fla.2005) (quoting State v. Gray, 654 So.2d 552, 554 (Fla.1995)). “Our adherence to stare decisis, however, is not unwavering. The doctrine of stare decisis bends where there has been a significant change in circumstances since the adoption of the legal rule or where there has been an error in legal analysis.” Puryear v. State, 810 So.2d 901, 905 (Fla.2002) (citation omitted).

Stare decisis does not yield based on a conclusion that a precedent is merely erroneous. The gravity of the error and the impact of departing from precedent must be carefully assessed. The United States Supreme Court has succinctly summarized the salient relevant factors:

In deciding whether to depart from a prior decision, one relevant consideration is whether the decision is “unsound in principle.” Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 546 [105 S.Ct. 1005, 83 L.Ed.2d 1016] (1985). Another is whether it is “unworkable in practice.” Ibid. And, of course, reliance interests are of particular relevance because “[a]dherenee to precedent promotes stability, predictability, and respect for judicial authority.” Hilton v. South Carolina Public Railways Comm’n, 502 U.S. 197, 202 [112 S.Ct. 560, 116 L.Ed.2d 560] (1991) (citing Vasquez v. Hillery, 474 U.S. 254, 265-266 [106 S.Ct. 617, 88 L.Ed.2d 598] (1986)).

Allied-Signal, Inc. v. Director, Div. of Taxation, 504 U.S. 768, 783, 112 S.Ct. 2251, 119 L.Ed.2d 533 (1992). We have recognized that the circumstance that “the prior decision proved unworkable due to reliance on an impractical legal ‘fiction’” militates in favor of departing from a precedent. N. Fla. Women’s Health, 866 So.2d at 637. We have also recognized that the prospect of “serious injustice to those who have relied on” a precedent militates against departing from that precedent. Id.

Here, the joint residency rule of Enfinger is based on a serious interpretative error, which resulted in imposing a meaning on the statute that is “unsound in principle.” Allied-Signal, 504 U.S. at 783, 112 S.Ct. 2251 (quoting Garcia, 469 U.S. at 546, 105 S.Ct. 1005). There is no basis in the statutory provisions for treating the venue rights of an individual defendant as superior to the plaintiffs statutory right to select venue. To the contrary, section 47.021 — which permits a plaintiff to bring an action “in any county in which any defendant resides,” § 47.021, Fla. Stat. (2011) (emphasis added) — does not distinguish between corporate and individual defendants or place any other limitation on the plaintiffs choice of venue based on residency. Under the reasoning of En-finger, for purposes of section 47.021 a corporate defendant may be deemed to reside in only one county, although under the unequivocal terms of section 47.051 the same corporate defendant may have more than one county of residence. Enfinger thus relies on an unwarranted and “impractical legal ‘fiction.’ ” N. Fla. Women’s Health, 866 So.2d at 637.

Enfinger is also legally unsound due to its erroneous reliance on the Supreme Court of California’s conclusion in Brady that the “right of a plaintiff to have an action tried in another county than that in which the defendant has his residence is exceptional.” Enfinger, 96 So.2d at 540 (quoting Brady, 39 P. at 210). The relevant venue statutes are too dissimilar for Brady to constitute persuasive authority in Florida.

In Brady, the plaintiff filed an action in San Diego County, the county in which the alleged tort occurred and one — but not all — of the codefendants resided. The issue before the court was whether the plaintiff could subject all of the defendants to suit in San Diego County. The California court concluded that — based on a state statute which granted each defendant “the right to have the action tried in the county of his residence” — the defendants’ motion to transfer venue should have been granted. Brady, 39 P. at 210. In contrast to the statute in Brady, Florida’s venue provisions did not and do not provide a defendant with a right to be sued in his county of residence. Instead, section 46.02, now section 47.021, expressly provides that where codefendants reside in more than one county, the plaintiff has the right to select venue in any county in which any defendant to the action resides. The Florida venue provision does not extend any home-county venue right to each defendant. In other words, while the California legislature gave priority to a defendant’s right to venue in his home county over a plaintiffs right to select venue, Florida’s legislature gave preference to the plaintiffs right to select venue. As a result of these statutory differences, unlike in California, a plaintiffs right to have an action tried in a county other than the one in which the defendant resides is not exceptional in Florida.

Furthermore, whereas in Brady, the California court determined that the complaint did not in fact seek relief from the defendant who resided in San Diego County, in Enfinger, there was no dispute regarding whether the plaintiff sufficiently stated a cause of action against the defendant who resided in Duval County. Given these legal and factual dissimilarities between the cases, this Court seriously erred in relying on Brady when deciding Enfinger.

As evidenced by the instant case and the conflict cases, confusion has arisen regarding whether the joint residency rule applies where some — but not all — of the defendants to an action share a county of residence. This Court’s decision to impose a restriction on venue not found in the Florida Statutes has created uncertainty and inconsistency. Receding from the joint residency rule of Enfinger will promote stability in the law. Once the joint residency rule of Enfinger is abrogated, venue in the situation of multiple defendants will be governed by the application of the plain terms of section 47.021, Florida Statutes, under which defendants will be amenable to suit “in any county in which any defendant resides.” § 47.021, Fla. Stat. (2011) (emphasis added).

Receding from Enfinger will not result in any injustice to defendants who have relied on the joint residency rule. There is no basis for concluding that there has been any such reliance. It is not plausible to suggest that defendants have organized their affairs or chosen whether and when to commit torts or to breach contracts on the basis of the Enfinger joint residency rule. No reliance interests are implicated by the joint residency rule.

Based on the foregoing, we recede from Enfinger’s restriction on a plaintiffs right to select a venue based on the defendants’ residency. When reviewing a plaintiffs venue selection, the Florida courts should apply the plain language of sections 47.011, 47.021, and 47.051, Florida Statutes. Where there are multiple defendants to an action, a plaintiff may choose as venue any county in which any defendant, without consideration of his or her eodefendants, may be considered a resident.

Here, the Browns were entitled to file their complaint in Broward County based on defendant Helena Chemical’s residency and amenability to suit in that county. We therefore quash the Fourth District’s decision affirming the grant of the motion to transfer venue.

Finally, we decline to address the defendants’ argument on appeal that the change of venue should have been affirmed based on section 47.122, Florida Statutes (2009), which provides that “[f]or the convenience of the parties or witnesses or in the interest of justice, any court of record may transfer any civil action to any other court of record in which it might have been brought.” “The party seeking the transfer [pursuant to section 47.122] bears the burden of showing substantial inconvenience or undue expense to establish a basis for the transfer.” Resor v. Welling, 44 So.3d 656, 657 (Fla. 5th DCA 2010). The instant record, however, does not contain and the trial court did not consider any evidence regarding the competing conveniences of the parties, the location, number, or availability of the witnesses, or any other factor relevant to the convenience of the parties or the interests of justice in this case. Accordingly, this Court cannot evaluate at this time whether a motion to transfer pursuant to section 47.122 would have or should have been granted. See Kasischke v. State, 991 So.2d 803, 815 (Fla.2008) (declining to address on appeal an issue that had “not been addressed in this case and [was] outside the scope of the conflict”).

III. CONCLUSION

In summary, we recede from Enfinger because it placed an extrastatutory restriction on a plaintiffs right to select venue. We quash the Fourth District’s decision and remand to the Fourth District for further proceedings consistent with this opinion.

It is so ordered.

LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

PARIENTE, J., recused.

      . Again, section 46.02, Florida Statutes (1955), which provided that an action against two or more defendants could be brought in any county in which any defendant resided, is substantively equivalent to today's section 47.021, and section 46.04, Florida Statutes (1955), which defined where a corporation doing business in Florida could be sued, is substantively equivalent to today's section 47.051. See ch. 67-254, § 3, Laws of Fla. (renumbering statutes including sections 46.02 and 46.04).


author: PER CURIAM.

text:
    Eric EDENFIELD, Petitioner, v. STATE of Florida, Respondent.
    No. SC10-2146.
    Supreme Court of Florida.
    March 15, 2012.
    Susan Z. Cohen and David M. Robbins of Epstein and Robbins, Jacksonville, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, Joshua Ryan Heller, and Thomas D. Winokur, Assistant Attorneys General, Tallahassee, FL, for Respondent.
    Sonya Rudenstine, Gainesville, FL, Michael Robert Ufferman, Tallahassee, FL, and David Oscar Markus, Miami, FL, on behalf of the Florida Association of Criminal Defense Lawyers, the National Association of Criminal Defense Lawyers, and the American Civil Liberties Union of Florida, as Amicus Curiae.
   PER CURIAM.

We initially accepted jurisdiction to review the decision of the First District Court of Appeal in Edenfield v. State, 45 So.3d 26 (Fla. 1st DCA 2010), based on express and direct conflict. See art. V, § 3(b)(3), Fla. Const. Upon further consideration, we have determined that jurisdiction was improvidently granted. Accordingly, we hereby discharge jurisdiction and dismiss this review proceeding.

It is so ordered.

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


author: BENTON, C.J. THOMAS, J.

text:
    UNIFIRST CORPORATION, Appellant, v. CITY OF JACKSONVILLE, TAX COLLECTOR’S OFFICE, a Florida municipal corporation, Appellee.
    No. 1D09-0820.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2011.
    Rehearing Denied March 25, 2012.
    Kevin S. Sanders, Jacksonville, for Appellant.
    Richard A. Mullaney, General Counsel, and Carol Mirando, Assistant General Counsel, Jacksonville, for Appellee.
   ON MOTION FOR REVIEW OF AWARD OF ATTORNEY’S FEES AND COSTS

BENTON, C.J.

Appellant’s motion for review of award of attorney’s fees and costs is granted in part. The circuit court shall reduce the award against Kevin S. Sanders by any amount attributable to any litigation other than the proceedings in this court that eventuated in the denial of the motion for rehearing (filed on December 15, 2009) by order entered March 25, 2010.

In the absence of even a motion for attorney’s fees in the supreme court, there is no basis for an award of attorney’s fees incurred in proceedings in the supreme court. See Milanick v. Osborne, 6 So.3d 729, 731 (Fla. 5th DCA 2009) (holding Osborne not entitled to attorney’s fees incurred defending against Milanick’s attempt to obtain discretionary review of the Fifth District’s opinion in the supreme court where Osborne “did not request an award of fees incurred with respect to the supreme court proceedings”); Respiratory Care Servs., Inc. v. Murray D. Shear, P.A., 715 So.2d 1054, 1056 (Fla. 5th DCA 1998) (holding motion for attorney’s fees was necessary predicate).

HAWKES and THOMAS, JJ., concur.

ON MOTION FOR REHEARING OR CLARIFICATION AND REHEARING EN BANC

THOMAS, J.

This cause is before us on Appellant’s motion for rehearing or clarification and rehearing en banc, which we deny. In responding to Appellant’s motion, Appellee also filed a motion for attorney’s fees and sanctions pursuant to section


author: WALLACE, Judge.

text:
    Peter Brad PERKINS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D09-3696.
    District Court of Appeal of Florida, Second District.
    Feb. 8, 2012.
    Rehearing Denied April 10, 2012.

      James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Caroline Johnson Levine, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

Peter Brad Perkins, Jr., appeals the probate court’s order entered following an involuntary civil commitment hearing, which adopts the report and recommendations of a general magistrate. The probate court’s order also recognizes an order entered in a separate criminal proceeding as a valid and enforceable placement order under chapter 394, Florida Statutes (2008). The criminal court entered its order on June 25, 2009, after the parties stipulated to the dismissal of the criminal charge against Mr. Perkins under Florida Rule of Criminal Procedure 3.213(b)(1) due to his continued incompetence to proceed in the criminal matter. The order states, in part, that “[tjhere is clear and convincing evidence that the Defendant continues to meet the criteria for involuntary placement pursuant to Florida Statute 394.467.” In addition, the order directs that Mr. Perkins’ commitment be reviewed every six months as required by rule 3.212(5). On June 29, 2009, when involuntary commitment proceedings were initiated against Mr. Perkins in the probate court, the probate court ruled that the criminal court’s June 25 order operated to collaterally es-top it from readjudicating the issue of whether Mr. Perkins met the criteria for civil commitment under section 394.467(1).

Based on the reasoning in Linn v. State, 79 So.3d 783 (Fla. 2d DCA 2011), we conclude that — under the circumstances of this case — the probate court erred in- ruling that the doctrine of collateral estoppel precluded it from determining whether Mr. Perkins .met the criteria for civil commitment under section 394.467(1). As in Linn, no one presented any evidence at the hearing in the criminal proceeding to establish that Mr. Perkins met the civil commitment criteria. Thus the record does not establish that the facts supporting Mr. Perkins’ commitment in the criminal proceedings are the same and based upon the same evidence presented in the probate proceedings. See Mass v. State, 927 So.2d 157, 160 (Fla. 3d DCA 2006) (“For purposes of collateral estoppel, the facts are the same when they are shown by the same testimony or evidence.”). Moreover, the record fails to demonstrate that Mr. Perkins affirmatively waived his right to be present at a hearing to determine whether he met the criteria for civil commitment. See Register v. State, 946 So.2d 50, 50 (Fla. 1st DCA 2006) (“A patient has a fundamental right to be present at a commitment proceeding,” and “a court must certify through proper inquiry that the waiver [of that right] is knowing, intelligent, and voluntary.”). And, as we noted in Linn, the defense attorney’s primary goal in the context of the criminal proceeding was to obtain a dismissal of the criminal charges based upon Mr. Perkins’ continued incompetence to proceed to trial. There is no support in the record for the proposition that Mr. Perkins should be bound by any determination of his mental status resulting from a hearing at which everyone stipulated to the dismissal of the criminal proceeding. See Cook v. State, 921 So.2d 631, 636 (Fla. 2d DCA 2005) (observing that Florida recognizes a manifest injustice exception to the collateral estoppel rule that “comes into play when application of the doctrine ‘would defeat the ends of justice’ ” (quoting State v. McBride, 848 So.2d 287, 291 (Fla.2003))).

This panel also considered whether an earlier hearing in the criminal court, during which it initially determined that Mr. Perkins was incompetent and committed him for treatment under rule 3.212(c)(3), may have satisfied the requirements of a Baker Act hearing under section 394.467(6). We noted that if the criminal court entered an earlier order in the criminal proceedings finding that Mr. Perkins met the criteria for civil commitment following a full hearing, that order might be binding in the probate proceedings even if the June 25 order was not binding. Therefore, we asked the parties to supplement the record with additional documents from the criminal proceedings that may support this theory. However, the additional records that we received are insufficient to permit us to affirm the probate court’s order based upon this alternative theory. See Butler v. Yusem, 44 So.3d 102, 105 (Fla.2010) (noting that an appellate court may affirm a trial court’s decision that reaches the right result for the wrong reasons, but “only if ‘there is any theory or principle of law in the record which would support the ruling’ ” (quoting Robertson v. State, 829 So.2d 901, 906 (Fla.2002))).

For these reasons, the probate court erred in ruling that the criminal court’s June 25, 2009, order collaterally estopped it from readjudicating the issue of whether Mr. Perkins met the criteria for civil commitment under section 394.467(1). Accordingly, we reverse the order under review and remand for further proceedings consistent with this opinion.

Reversed and remanded.

ALTENBERND and DAVIS, JJ., Concur.

      . Mr. Perkins was charged with second-degree murder in 2004, and on June 4, 2004, the criminal court adjudicated him incompetent to proceed to trial on that charge. The stipulated dismissal is without prejudice. And, we note that the State may prosecute Mr. Perkins "for a capital felony, a life felony, or a felony that resulted in a death ... at any time." § 775.15(1), Fla. Stat. (2003). In addition, section 916.14, Florida Statutes (2003), provides that "[t]he statute of limitations shall not be applicable to criminal charges dismissed because of the incompetency of the defendant to proceed.”


text:
    Marcus SUTTON, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Sunshine Restaurant Merger Sub, Appellees.
    No. 1D11-6330.
    District Court of Appeal of Florida, First District.
    Feb. 9, 2012.
    Rehearing Denied Feb. 24, 2012.
    Marcus Sutton, pro se, Appellant.
    A. Robert Whaley, General Counsel, and Louis A. Gutierrez, Assistant General Counsel, Tallahassee, for Appellee Florida Unemployment Appeals Commission.
   PER CURIAM.

Appellee’s motion to dismiss is granted. The October 28, 2011, decision of the Unemployment Appeals Commission, which is the subject of this appeal, found appellant qualified for the receipt of unemployment benefits. Accordingly, this appeal is hereby dismissed as the appellant lacks standing to appeal issues of employer chargea-bility which are not adverse to him.

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