author: RAMIREZ, J.

text:
    Norma R. BROIN, et al., Petitioners, v. PHILLIP MORRIS COMPANIES, INC., et al., Respondents.
    Nos. 3D11-2129, 3D11-2141.
    District Court of Appeal of Florida, Third District.
    March 21, 2012.
    Rehearing Denied April 27, 2012.

      Gerson & Schwartz and Edward S. Schwartz; and Hunter, Williams & Lynch and Steve Hunter, for petitioners.
    Kozyak Tropin & Throckmorton and John W. Kozyak; David J. Sales; Searcy Denney and Christian D. Searcy; McGrane Nosich & Ganz and Miles A. McGrane, III; and Roderick N. Petrey, for respondents.
    Before RAMIREZ, SUAREZ, and ROTHENBERG, JJ.
   RAMIREZ, J.

Norma R. Broin, et al. (flight attendants) petition for certiorari review of an order disqualifying their attorneys in this case. We quash the trial court order because it departs from the essential requirements of law.

This appeal arises from a 1991 class action brought by numerous flight attendants against several tobacco companies. See Ramos v. Philip Morris Cos., 748 So.2d 24 (Fla. 3d DCA 1999); Broin v. Philip Morris Cos., 641 So.2d 888 (Fla. 3d DCA 1994). The class was defined as “[a]ll non-smoking flight attendants who are or have been employed by airlines based in the United States and are suffering from diseases and disorders caused by their exposure to second hand cigarette smoke in airline cabins.” The trial court was to try the case in two stages. The first stage would decide the common questions, chiefly causation. In the second stage, individual trials would determine each plaintiffs damages.

During the first stage trial, the parties entered into a settlement agreement. In return for the flight attendants’ waiver of their intentional tort and punitive damages claims, the defendant tobacco companies inter alia agreed to “establish a $300 million settlement fund to endow a foundation to sponsor scientific research for early detection and cure of diseases of flight attendants caused by cigarette smoke, which will be managed and directed by a board of trustees and governed by a trust instrument.” Ramos, 743 So.2d at 27. The trial court approved the settlement, “retaining] continuing jurisdiction in connection with the formation, management and direction of the [foundation].” This Court affirmed the trial court’s approval of the settlement in Ramos. Thereafter, the Flight Attendant Medical Research Institute (FAMRI) was formed, with several of the original Broin action flight attendants becoming members of FAMRI’s board.

Subsequently, numerous flight attendants filed their stage two individual actions for compensation. In the process, counsel for these flight attendants, including Steven Hunter and Philip Gerson, became concerned that FAMRI’s activities were unsupervised by the court. Accordingly, they requested an accounting from the foundation. FAMRI was unresponsive, and the flight attendants, through their counsel, petitioned the trial court for enforcement of the settlement. In particular, the flight attendants requested an accounting of FAMRI’s funds, an injunction against further expenditures, and an order directing distribution of the settlement funds to the flight attendants.

FAMRI and two flight attendant board members objected to this petition and moved to disqualify counsel for petitioners on the ground of conflicts of interest. The objectors argued that, because they were now challenging the foundation formed in accordance with a settlement agreed to by all class members, counsel for petitioners have in essence switched sides. In supporting affidavits, the objectors alleged that all plaintiffs’ counsel worked closely together and jointly were considered their attorneys in the original action regardless of individual representations. Mr. Gerson and Mr. Hunter denied currently representing any of the objectors, and, either denied former representation or alleged that upon learning of their objections, they withdrew from representation of the objecting clients.

After a hearing, at which the trial court considered the motion, responses, affidavits, legal argument and proffers of witness testimony, the trial court entered an order disqualifying all attorneys for the petitioners. Mr. Gerson and Mr. Hunter’s clients seek certiorari review of this order. Accordingly, we must determine if the trial court departed from the essential requirements of law in disqualifying petitioners’ attorneys.

First, we recognize that disqualification of counsel strikes at a significant right, that of a party to choose his or her own lawyer, and that often motions for disqualification are filed for tactical purposes. Because it is such a harsh and drastic remedy, it should be resorted to sparingly. Coral Reef of Key Biscayne Developers, Inc. v. Lloyd’s Underwriters at London, 911 So.2d 155, 157 (Fla. 3d DCA2005).

Respondents contend that petitioners’ attorneys have a conflict of interest with current and former clients, and should be disqualified pursuant to Florida Rules of Professional Conduct 4-1.7 and 4-1.9. We turn first to Rule 4-1.7 which prohibits a lawyer from representing a client if: “(1) the representation of 1 client will be directly adverse to another client; or (2) there is a substantial risk that the representation of 1 or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.” The comments to this rule clarify that “a lawyer ordinarily may not act as advocate against a person the lawyer represents in some matter, even if it is wholly unrelated.” For current clients the rules “do[] not require that matters be substantially related” to create a conflict. Florida Bar v. Dunagan, 731 So.2d 1237, 1240 n. 3 (Fla.1999).

As the Fifth District pointed out in Harvey E. Morse, P.A. v. Clark, 890 So.2d 496, 498 (Fla. 5th DCA 2004), a much stricter disqualification standard is imposed for a current client than a former client. The court discussed the reason for this difference:

The existing client rule is based on the ethical-concept requirement that a lawyer should act with undivided loyalty for his client and not place himself or herself in a position where a conflicting interest may affect the obligations of an ongoing professional relationship. It is difficult to imagine how a lawyer could appear in court one day arguing vigorously for a client, and then face the same client the next day and vigorously oppose him in another matter, without seriously damaging their professional relationship. Such unseemly conduct, if permitted, would further erode the public’s regard for the legal profession.

Id. (footnote omitted). Accordingly, under this rule a conflict exists if the attorney in representing one client must directly contend against or materially limit his advocacy on behalf of another client even if this occurs in unrelated matters. All that the party seeking disqualification must prove is that an attorney-client relationship exists. Lincoln Assocs. & Const., Inc. v. Wentworth Const. Co., Inc., 26 So.3d 638 (Fla. 1st DCA 2010). Further, the court examines the circumstances from the client’s perspective in deciding whether an attorney-client relationship exists. United States v. Abbell, 900 F.Supp. 449, 452 (S.D.Fla.1995).

If a rule 4-1.7 conflict arises “after representation has been undertaken, the lawyer should withdraw from the representation.” Rule 4-1.7. cmt.; see also, R. Regulating Fla. Bar 4 — 1.16(a)(1) (“[A] lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if ... the representation will result in violation of the Rules of Professional Conduct or law_”). Afterward, whether the lawyer may continue to represent the other client is determined according to Rule 4-1.9.

Rule 4-1.9 governs conflicts with former clients and states that “[a] lawyer who has formerly represented a client in a matter shall not thereafter ... represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent.” Accordingly, a party seeking disqualification under this rule must show that “(1) an attorney-client relationship existed, thereby giving rise to an irrefutable presumption that confidences were disclosed during the relationship, and (2) the matter in which the [lawyer] subsequently represented the interest adverse to the former client [is] the same or substantially related to the matter in which it represented the former client.” State Farm Mut. Auto. Ins. Co. v. K.A.W., 575 So.2d 630, 633 (Fla.1991). “Whether two legal matters are substantially related depends upon the specific facts of each particular situation or transaction.” Dunagan, 731 So.2d at 1240. As the comments to Rule 4-1.9 state, “Matters are ‘substantially related’ for purposes of this rule if they involve the same transaction or legal dispute, or if the current matter would involve the lawyer attacking work that the lawyer performed for the former client.”

Because of inevitable tension between large numbers of class members, class action litigation often leads to conflicts of interest. See, e.g., Geoffrey P. Miller, Conflicts of Interest in Class Action Litigation: An Inquiry Into the Appropriate Standard, 2003 U. Chi. Legal F. 581 (2003). A common dilemma arises when class counsel endeavor to reach a settlement which is fair to all members, and some of the members object to the proposed settlement. See generally, Piambino v. Bailey, 757 F.2d 1112, 1143-46 (11th Cir.1985); Grosso v. Fid. Nat’l Title Ins. Co., 983 So.2d 1165 (Fla. 3d DCA 2008).

We find persuasive the discussion of the United States Court of Appeals for the Third Circuit in Lazy Oil Co. v. Witco Corp., 166 F.3d 581, 589 (3d Cir.1999):

In many class actions, one or more class representatives will object to a settlement and become adverse parties to the remaining class representatives (and the rest of the class). If, by applying the usual rules on attorney-client relations, class counsel could easily be disqualified in these cases, not only would the objectors enjoy great “leverage,” but many fair and reasonable settlements would be undermined by the need to find substitute counsel after months or even years of fruitful settlement negotiations. “Moreover, the conflict rules do not appear to be drafted with class action procedures in mind and may be at odds with the policies underlying the class action rules.” Bruce A. Green, Conflicts of Interest in Litigation: The Judicial Role, 65 Fordham L.Rev. 71, 127 (1996).

In light of these concerns, the court fashioned a balancing test:

[I]n the class action context, once some class representatives object to a settlement negotiated on their behalf, class counsel may continue to represent the remaining class representatives and the class, as long as the interest of the class in continued representation by experienced counsel is not outweighed by the actual prejudice to the objectors of being opposed by their former counsel.

Id. at 590.

The need to balance the traditional rules of loyalty to a client, duties to the court, and duties to the class as a whole, calls for adaptation of the traditional conflict model. As noted by the United States Court of Appeals for the Second Circuit, these apparent conflicts between multiple clients in a class do not require a court to jettison entirely an attorney for the class. This is because “the attorney for the class is normally allowed to oppose the contentions of class members who have appeared in court in opposition to a proposed settlement of the class action, although technically the Code of Professional Responsibility would seem to prohibit his doing so.” In re Agent Orange Prod. Liab. Litig., 800 F.2d 14, 19 (2d Cir.1986) (citations omitted).

The mere appearance or possibility of conflict is not enough in this context, because class actions present unique considerations, particularly once the issue involves counsel’s role in approval or administration of a settlement under the court’s auspices. See id. Rather, as one California court noted, differing views regarding class certification or settlement are submitted to the court for its consideration of the class’ interests, not an individual client’s, which means differences of opinion between attorneys and class members are not automatically preclusive of the attorney’s continued service as counsel. See Kullar v. Foot Locker Retail, Inc., 191 Cal.App.4th 1201, 121 Cal.Rptr.3d 353, 358 (2011). The duty of counsel appointed by the trial court to administer a settlement is to ensure the best interests of the class, not an individual client. See In re Holocaust Victim Assets Litig., 2007 WL 805768, *42 (E.D.N.Y. Mar.15, 2007).

This case demonstrates why Florida’s Rules of Professional Conduct alone are inadequate to resolve conflict of interest problems typical to class action cases. Here, two class members, who object to a course of action approved by a significant number of their co-class members, demand the disqualification of counsel selected by the latter to represent them. The sole basis for disqualification is the alleged team effort of all plaintiffs’ counsel in the original action.

Here, Rule 4-1.7 does not apply because there is no evidence that Mr. Gerson and Mr. Hunter currently represent the respondents. Regarding Rule 4-1.9, except for one flight attendant, from whom they withdrew representation upon notice of the client’s objection, there is also no evidence that Mr. Gerson and Mr. Hunter personally represented the respondents. Respondents would have us impute an attorney-client relationship from the attorneys’ limited involvement in the litigation of the original action. Such an imputation would necessarily be warranted in all class actions where, although one attorney or a team of attorneys generally head the litigation for the class, others may from time to time collaborate or monitor the proceedings on behalf of individual clients. As the Lazy Oil court concluded, the threat of disqualifying their opponent’s counsel would give a minority great leverage in any dispute which may arise among class members.

The federal courts’ approach affords a better method for determining when to disqualify an attorney for conflict of interest in the context of a class action. This approach balances a party’s right to select his or her own counsel against a client’s right to the undivided loyalty of his or her counsel. Accordingly, we conclude that, before disqualifying a class member’s attorney on the motion of another class member, the court should balance the actual prejudice to the objector with his or her opponent’s interest in continued representation by experienced counsel. The trial court here did not engage in the balancing approach.

Here, petitioners’ right to be represented by experienced counsel of their choice is outweighed by any prejudice to the respondents. Mr. Gerson and Mr. Hunter are familiar with the history of this litigation, have demonstrated their ability to effectively advocate for their clients, and seek to provide greater benefits to all class members. Conversely, prejudice to the respondents is minimal. Mr. Gerson and Mr. Hunter were not lead counsel in the original action. Thus, their limited interaction with the respondents and their counsel would have resulted in little access to confidential information. Moreover, although arising from the prior litigation, the present action involves a different issue. Petitioners are not asking that the court undo the prior settlement, rather they are requesting that the court determine whether the foundation created under the settlement is functioning as originally intended.

For these reasons, we find that the trial court departed from the essential requirements of law in disqualifying petitioners’ counsel, quash the order of disqualification, and remand to the trial court for further proceedings in accordance with this opinion.

Petitions granted.

      . “[Cjertiorari is the proper method to obtain review of a disqualification order because denying a party counsel of his or her choice is a material injury without appellate remedy.” Event Firm, LLC v. Augustin, 985 So.2d 1174, 1175 (Fla. 3d DCA 2008).

      . Federal courts apply professional conduct rules similar to those which govern lawyers practicing in state courts. See Lazy Oil, 166 F.3d at 589; Woods v. Covington Cnty. Bank, 537 F.2d 804, 810 (5th Cir.1976); Rentclub, Inc. v. Transamerica Rental Fin. Corp., 811 F.Supp. 651, 654 (M.D.Fla.1992).


source: Caselaw Access Project

author: ROTHENBERG, J.

license: Public Domain

text:
    HARAMBAM CONGREGATION, INC., etc., Appellant, v. SIMCHA CONNECTION, INC., etc., et al., Appellees.
    No. 3D11-2887.
    District Court of Appeal of Florida, Third District.
    March 21, 2012.

      Rosenthal, Rosenthal, Rasco, Kaplan, LLC, and Jeffrey D. Swartz, Coral Gables, for appellant.
    The Metsch Law Firm, P.A., and Lawrence R. Metsch, Miami, for appellees.
    Before SUAREZ, ROTHENBERG, and SALTER, JJ.
   ROTHENBERG, J.

Harambam Congregation, Inc. (“Haram-bam”) appeals from a non-final order granting Simcha Connection, Inc., et al.’s (“Simcha”) motion to dissolve a temporary injunction based on Harambam’s failure to certify pursuant to Florida Rule of Civil Procedure 1.610(a)(1)(B). Because Simcha elected to file a motion to dissolve the temporary injunction rather than appeal the injunctive order, and because Simcha was present and received the benefit of notice and an opportunity to be heard at a hearing on the motion to dissolve, all issues regarding notice, including Haram-bam’s failure to certify under rule 1.160(a)(1)(B), became moot. Accordingly, we conclude the trial court erred in granting Simcha’s motion to dissolve the temporary injunction, and reverse.

The relevant facts are as follows. In 2003, Harambam agreed to lease portions of its synagogue to Rabbi Faivish Dalfin and Simcha. In 2009, when Simcha stopped paying rent, Harambam instituted an eviction action, and sent Simeha a notice of termination of tenancy. After receiving the notice, Harambam claims Simcha attempted to: (1) take over Har-ambam by holding a corporate organizational meeting without providing notice to Harambam’s members or its board of directors; (2) elect a “usurper board of directors” comprised of the appellees; (3) file a fraudulent corporate report with the Florida Secretary of State on behalf of Harambam; and (4) retain an attorney on behalf of Harambam to intervene in the then-pending eviction action in an attempt to have the suit dismissed.

On March 4, 2011, Harambam filed the instant action seeking injunctive relief to regain control of the corporation and to enjoin Simcha from filing any further papers with the Secretary of State or asserting any claim that Simcha’s constituents were the rightful members of Harambam’s board of directors. On the same day, Har-ambam filed an ex parte motion for a temporary injunction to prevent Simcha from engaging in various corporate actions on behalf of Harambam, which the trial court granted.

On March 30, 2011, Simcha filed a motion to dissolve the temporary injunction (the “initial motion to dissolve”), arguing that Harambam failed to satisfy subsections (a)(1)(A) and (a)(1)(B) of Florida Rule of Civil Procedure 1.610, which provides:

(a) Temporary Injunction.
(1) A temporary injunction may be granted without written or oral notice to the adverse party only if:
(A) it appears from the specific facts shown by affidavit or verified pleading that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and
(B) the movant’s attorney certifies in writing any efforts that have been made to give notice and the reasons why notice should not be required.

On March 31, 2011, the trial court conducted an “emergency hearing” on Sim-cha’s initial motion to dissolve the temporary injunction based on Simcha’s concern that Harambam would alienate certain real property while counsel for Simcha was on vacation. The trial court, however, did not reach the merits of the motion at this hearing. Instead, given Harambam’s willingness to stipulate to an order that would prevent Harambam from selling the property until after the initial motion to dissolve was heard, the trial court determined there was no real emergency, postponed the hearing, and entered an order preventing Harambam from selling the property until the motion to dissolve was heard by the court.

On June 17, 2011, Simcha filed a second motion to dissolve the temporary injunction, which is the basis of the order on appeal. In this motion, Simcha did not argue that Harambam’s ex parte motion violated subsection (a)(1)(A) of rule 1.610. Simcha’s only argument supporting its second motion to dissolve was that Haram-bam’s ex parte motion violated subsection (a)(1)(B) of rule 1.610 because it did not include a certification by Harambam’s counsel stating what efforts had been made to notify Simcha and the reasons why notice should not be required.

After conducting a hearing on Simcha’s second motion to dissolve, the trial court orally granted the motion based on Har-ambam’s failure to certify. Harambam thereafter filed a motion for rehearing. The trial court conducted a hearing, ruled that the temporary injunction “stands dissolved,” and entered a written order granting Simcha’s motion to dissolve the temporary injunction. This appeal followed.

On appeal, Harambam contends that pursuant to State v. Beeler, 530 So.2d 982, 934 (Fla.1988), Simcha’s filing of a motion to dissolve the injunction with the trial court rendered moot all issues relating to notice, including Harambam’s failure to certify pursuant to rule 1.610(a)(1)(B). We agree.

In Beeler, the Florida Supreme Court held that “[ajfter a trial court issues a temporary injunction, a defendant has two options. He may question the lack of pri- or notice by immediately appealing the injunctive order pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(B), or he may file a motion to dissolve with the trial court.” Id. at 934. By electing the latter option and challenging the temporary injunction via a motion to dissolve, “notice becomes irrelevant because the defendant is present, and the burden would be on the plaintiff to show that the complaint and supporting affidavits are sufficient to support the injunction.” Id. More specifically, “[ojnce the opposing party has received the benefit of notice and an opportunity to be heard at a hearing on the motion to dissolve, any issue regarding prior notice is moot.” Id. As a result, “the party against whom a temporary injunction without notice is issued may not attack the lack of notice by appealing the order denying the motion to dissolve.” Id.

In this case, Simcha did not immediately appeal the injunction. Instead, Simcha challenged the validity of the injunction by proceeding under the second Beeler option and filing motions to dissolve. At the hearing conducted by the trial court on Simcha’s second motion to dissolve, Sim-cha challenged the granting of the ex parte motion on the ground that counsel for Harambam failed to include the notice certification required by rule 1.610(a)(1)(B):

Your Honor, we’re moving to dissolve the injunction because it was entered without the certificate required by rule 1.610(a)(1)(B) which requires that the attorney for the movant certify in writing any efforts that have been made to give notice or reason why notice should not be required.
In the motion for temporary injunction, which was done ex parte without the certificate, the case law is quite clear. In the absence of such a certificate, the injunction should be dissolved. I have three cases I gave to Counsel right here.

Based on Beeler, we conclude that because Simcha was present and “received the benefit of notice and an opportunity to be heard at a hearing on the motion to dissolve, any issue regarding prior notice,” including Harambam’s failure to satisfy the notice certification requirements of rule 1.610(a)(1)(B), “[became] moot.” Beeler, 580 So.2d at 934.

Simcha attempts to distinguish this case in two ways, neither of which is availing. First, Simcha argues that Harambam’s failure to certify is not an “issue regarding prior notice,” but an entirely independent, technical deficiency under rule 1.610(a)(1)(B). On this reasoning, Simcha argues that its filing of a motion to dissolve did not render Harambam’s failure to certify moot, because Beeler did not specifically address a movant’s failure to certify under rule 1.610(a)(1)(B). Simcha advanced this same contention at the hearing on the motion to dissolve, and the trial court adopted and relied on this logic in dissolving the injunction.

We disagree, and conclude that Harambam’s failure to certify pursuant to rule 1.610(a)(1)(B) constitutes “an issue regarding prior notice.” Rule 1.610(a)(1)(B) prevents a trial court from granting a temporary injunction unless “the movant’s attorney certifies in writing any efforts that have been made to give notice and the reasons why notice should not be required.” (emphasis added). As is clear from the plain language of the certification requirement, rule 1.610(a)(1)(B) is one of several mechanisms designed to allay the potential due process concerns that are inherent in a trial court’s issuance of an order without notice. Specifically, the certification requirement helps to “assure that ‘a court ... never issue[s] an ex parte order without notice to defendants and without a hearing, unless an immediate threat of irreparable harm exists, which forecloses opportunity to give reasonable notice.’” See United Farm Workers of Am., AFL-CIO v. Quincy Corp., 681 So.2d 773, 776 (Fla. 1st DCA 1996) (quoting Lieberman v. Marshall, 236 So.2d 120, 125 (Fla.1970)). Consistent with this reasoning, the Fourth District in Sunplus Credit, Inc. v. Office of the Attorney Gen., Dep’t of Legal Affairs, 752 So.2d 1225, 1227 (Fla. 4th DCA 2000), expressly characterized a movant’s failure to certify under rule 1.610(a)(1)(B) as an issue regarding prior issue, stating:

Appellants argue that the motion for temporary injunction was deficient because it did not contain certification by plaintiffs counsel describing the efforts made to give notice and reasons why notice should not be required. See Fla. R. Civ. P. 1.610(a)(1)(B), (C). We disagree. Where the defendant has received the benefit of notice and an opportunity to be heard at a hearing on a motion to dissolve, any issue regarding prior notice is moot. State v. Beeler, 530 So.2d 982, 984 (Fla.1988).

(emphasis added). We agree with the Fourth District in Sunplus and reject Sim-cha’s argument to the contrary.

Lastly, Simcha argues that based on Gray v. Gray, 958 So.2d 955 (Fla. 1st DCA 2007), only a trial court’s holding of an evidentiary hearing on a motion to dissolve renders a movant’s failure to certify moot. We, however, do not read Gray as requiring an evidentiary hearing, and instead read Gray as further support for this Court’s ruling.

In Gray, the defendants filed a motion to dissolve with the trial court, arguing that the temporary injunction entered against them without notice should be reversed because the injunction did not state the time it was entered, lacked supporting affidavits, and was issued without requiring that the plaintiffs post a bond, in violation of rule 1.160(a) and (b). The trial court conducted an evidentiary hearing and, during a recess, the defendants filed a notice of appeal with the First District. The First District dismissed the appeal, holding that “by asking for and being afforded a hearing on their motion to dissolve, appellants have rendered their technical complaints about the evidentiary predicate for the original, temporary injunction without notice moot.” Id. at 959. The fact that the trial court in Gray happened to have conducted an evidentiary hearing does not suggest that an evidentia-ry hearing is a necessary element in rendering the defendants’ arguments moot.

In sum, Simcha rendered Harambam’s failure to certify moot by electing to file a motion to dissolve rather than a notice of appeal, and by being present and receiving the benefit of notice and an opportunity to be heard on the motion to dissolve. Accordingly, we reverse the trial court’s order granting Simcha’s motion to dissolve, and remand for a determination as to whether Harambam can demonstrate that the complaint and supporting affidavits are sufficient to support the injunction issued.

Reversed and remanded with instructions.

      . Rabbi Dalfin formed Simcha to raise money for his own congregation named "Or Mena-chem.”


author: PER CURIAM.

text:
    Jesus CRESPO, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION and Doral Hospitality Inc., Appellees.
    No. 4D10-3930.
    District Court of Appeal of Florida, Fourth District.
    March 21, 2012.

      Jesus Crespo, Hialeah Gardens, pro se.
    Louis A. Gutierrez, Tallahassee, for ap-pellee Unemployment Appeals Commission.
   On Motion fob Clarification

PER CURIAM.

We grant the motion for clarification, withdraw our previous opinion and substitute the following in its place.

Appellant challenges the Florida Unemployment Appeals Commission’s (“FUAC”) order dismissing as untimely his appeal of the denial of unemployment benefits. We reverse on the authority of Blaser v. Unemployment Appeals Comm’n, 687 So.2d 337, 338 (Fla. 4th DCA 1997). As in Blaser, appellant failed to file a timely appeal from the denial of his benefits, but it is apparent from the record that he was attempting to show newly discovered evidence which would affect the result. Specifically, he had settled a claim of employment discrimination with his employer through a settlement agreement in which the employer agreed not to contest his entitlement to his current receipt of unemployment benefits. Thus, his appeal is more in the nature of a request for redetermination pursuant to section 443.151(3)(e)l., Florida Statutes. As the employer agreed as part of the settlement not to contest his right to unemployment compensation, we vacate the order on appeal and remand this case to the FUAC for further remand to the Department of Economic Opportunity for consideration of the new information provided by appellant. That agency should hold a hearing to determine whether the appellant has a right to redetermination of the order denying his claim for benefits. See Ponce v. Fla. Unemployment Appeals Comm’n, 47 So.3d 929, 932 (Fla. 3d DCA 2010).

Reversed and remanded with instructions.

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


text:
    Rajkumari SETHI, Appellant, v. GMAC MORTGAGE; LLC, The Unknown Spouse of Rajkumari Sethi; Any and all Unknown Parties claiming by, through, under, and against the herein named Individual Defendant(s) who are not known to be dead or alive, whether said Unknown Parties may claim an interest as Spouses, Heirs, Devisees, Grantees, or Other Claimants; Tenant # 1, Tenant # 2, Tenant # 3, and Tenant # 4 the names being fictitious to account for Parties in Possession, Appellees.
    No. 4D11-956.
    District Court of Appeal of Florida, Fourth District.
    March 21, 2012.
    Rehearing Denied May 3, 2012.

      John J. Anastasio, Stuart, for appellant.
    Ann T. Taylor and D. Brian O’Dell of Bradley Arant Boult Cummings LLP, Birmingham, Alabama, for appellee GMAC Mortgage LLC.
   PER CURIAM.

Affirmed. See Dober v. Worrell, 401 So.2d 1322 (Fla.1981).

CIKLIN, GERBER and LEVINE, JJ., concur.


text:
    MAHOGANY LENDING GROUP, LLC, Appellant, v. OFFICE OF FINANCIAL REGULATION, Appellee.
    No. 3D11-774.
    District Court of Appeal of Florida, Third District.
    March 21, 2012.
    G.O.L. Henriques, for appellant.
    Gregg R. Morton, Chief Counsel, and Jenny S. Kim, Assistant General Counsel, for appellee.
    Before RAMIREZ and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

We reverse the default final order entered below, and remand to the Office of Financial Regulation for an administrative hearing in accordance with Mahogany Lending Group, LLC’s request.

Reversed and remanded for further proceedings.


text:
    Sylvia Montes DEHOCA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-366.
    District Court of Appeal of Florida, Third District.
    March 21, 2012.
    Rehearing Denied April 30, 2012.
    Grisel Ybarra, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, ROTHENBERG, and SALTER, JJ.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).


author: GRIFFIN, J.

text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner, v. K.D., A Child, Respondent.
    No. 5D11-3344.
    District Court of Appeal of Florida, Fifth District.
    March 23, 2012.
    Deborah Anne Schroth, Appellate Counsel, and Jeffrey Dana Gillen, Chief Appellate Counsel, of Department of Children & Families, Children’s Legal Services, Orange Park, for Petitioner.
    Christopher V. Carlyle, B.C.S. and Shannon McLin Carlyle, B.C.S., of The Carlyle Appellate Law Firm, The Villages, and Charles Thurston, Brevard County Legal Aid, Inc., Rockledge, for Respondent.
   GRIFFIN, J.

Petitioner, Department of Children and Families [hereinafter “Petitioner”], seeks a writ of certiorari to undo the trial court’s September 13, 2011, order denying Petitioner’s Motion to Quash Interrogatories.

The order for which Petitioner seeks review arises out of proceedings conducted in the circuit court for Brevard County after remand by this Court in accordance with the opinion in Department of Children and Families v. K.D., 45 So.3d 46, 47 (Fla. 5th DCA 2010). In K.D., we said:

The Department of Children and Families (“DCF”) appeals from an order determining that a dependent child, K.D., is eligible to participate in the Road to Independence (“RTI”) Program. This program provides financial assistance to former foster children for educational and vocational training. § 409.1451(5)(b) 1., Fla. Stat. (2009). The trial court determined that K.D. is eligible despite the fact that she had been living with a non-relative court-approved guardian rather than in foster care. The court concluded, sua sponte, that the statute’s eligibility provisions violated equal protection by unfairly affording services to foster children but not to children living in non-relative placements.
On appeal, DCF correctly argues the trial court improperly declared the statute unconstitutional without affording it notice and an opportunity to be heard on that issue. See State v. Turner, 224 So.2d 290, 291 (Fla.1969) (“[Cjourts are not to consider a question of constitutionality which has not been raised by the pleadings, or which has not been raised by a person having the requisite interest.”); see also 16 Am.Jur.2d Constitutional Law § 132 (updated 2010) (explaining that the purpose behind this rule is to give interested parties sufficient time to “brief and prepare arguments defending the constitutionality of the challenged statute” and to “furnish reviewing courts with an adequate record upon which to adjudge the constitutionality of the statute”). Accordingly, we reverse the order on appeal and remand with instructions that the trial court either declare K.D. ineligible for participation in the RTI program or, if a constitutional challenge is raised by K.D. on remand, to give the Department a reasonable opportunity to present evidence and/or argument relating to that issue before deciding it.

Id. at 47-48. On remand, Respondent filed her “Motion to Find Florida Statute 409.1451 Unconstitutional As Applied and to Order the Department of Children and Families to Provide RTI Benefits to OLD.].”

On July 22, 2011, K.D. served twenty written interrogatories on the Petitioner. Petitioner contends, however, that when viewed in the context of the numerous sub-parts, the questions actually number nearly 500. K.D. asserted in her written interrogatories that such interrogatories were authorized for usage as a discovery tool “pursuant to Fla. R. Juv. P. 8.245, and other controlling Florida statutes....” K.D.’s attorney explained the reasoning behind pursuing the interrogatories as follows:

MR. THURSTON: Essentially they were based on the Department’s previous appellate brief to the 5th DCA where they stated that were they to grant [K.D.] benefits, it would run them out of money. So we simply asked them to tell us, well, where are you spending your money.

Petitioner filed a motion to quash the interrogatories, arguing that the Florida Rules of Juvenile Procedure govern the proceedings below and those rules do not authorize the use of interrogatories as a discovery tool in dependency proceedings. The trial court denied Petitioner’s motion to quash.

Petitioner correctly contends that discovery in juvenile proceedings is governed by rule 8.245 and that the discovery tools authorized are limited. The rule permits production of documents and things for inspection and other purposes [rule 8.245(d) ], production of documents and things without deposition [rule 8.245(e)] and depositions [rule 8.245(g) ]. The juvenile rules do allow for the use of written interrogatories for “Perpetuating Testimony Before Action or Pending Appeal.” See Fla. R. Juv. P. 8.245(h)(1)(C). That rule does not apply in these circumstances, however, and there is no other authority for the use of interrogatories in dependency cases. Because no rule authorizes their use, there is also no rule regulating their use. To refuse to disallow the use of interrogatories by K.D. was a material departure from the essential requirements of law.

Petitioner points out that there was a time when interrogatories may have been an available discovery tool in dependency proceedings due to a reference to the rules of civil procedure in the juvenile rules. Former Florida Rule of Juvenile Procedure 8.200 used to provide that “[wjhere the rules are silent, the parties are to refer to the Florida Rules of Civil Procedure.” However, rule 8.200 was eliminated when the juvenile rules were amended in November 1992. See In re Amendments to the Florida Rules of Juvenile Procedure, 608 So.2d 478 (Fla.1992). The Supreme Court also added this language to the committee notes to rule 8.000: “Reference to the civil rules, previously found in rule 8.200, has been removed because the rules governing dependency and termination of parental rights proceedings are self-contained and no longer need to reference the Florida Rules of Civil Procedure.”

K.D. contends that, even if the trial court’s order were erroneous, certiorari should nevertheless be denied because Petitioner has an adequate remedy on appeal. However, once the interrogatories are allowed and Petitioner expends the effort and expense to respond to them, there is no remedy available on appeal that can provide any relief.

PETITION GRANTED; ORDER QUASHED.

SAWAYA and LAWSON, JJ., concur.

      . This begs the relevancy question, but that issue was not directly raised in the petition.


author: CASANUEVA, Judge.

text:
    Dennis B. BAKER, individually, and as Trustee of the Bradford Baker Revocable Trust Agreement, Appellant, v. STEARNS BANK, N.A., Appellee.
    No. 2D11-2986.
    District Court of Appeal of Florida, Second District.
    March 23, 2012.

      Christopher C. Morrison of J. Kevin Drake, P.A., Sarasota, for Appellant.
    John A. Anthony and Kristi Neher Davisson of Anthony & Partners, LLC, Tampa, for Appellee.
   CASANUEVA, Judge.

Dennis B. Baker, for himself and as trustee of the Bradford Baker Revocable Trust, appeals a nonfinal order that denied his “emergency motion to quash service of process of a summons and complaint for foreclosure, vacate the default judgment, and set aside the final judgment of foreclosure.” Our jurisdiction to review this appeal is pursuant to Florida Rule of Appellate Procedure 9.130(a)(4), which permits review of nonfinal orders that determine jurisdiction of the person. Because the appellee Stearns Bank, N.A. (“the Bank”), did not sufficiently show that it perfected substituted service on Mr. Baker, we reverse.

The Facts

The Bank commenced foreclosure proceedings on Mr. Baker’s home in Venice, Florida, in October 2010. The Bank hired a professional process server to deliver the necessary documents to Mr. Baker at his home. At Mr. Baker’s home, a middle-aged gentleman spoke with the process server. But this gentleman refused to accept service. The return of service that was subsequently filed stated under the heading of “Additional Information pertaining to this Service”:

SERVER MADE CONTACT WITH MAN HERE WHO STATED THAT SUBJECT [Mr. Baker] IS IN EUROPE ON BUSINESS AND HIS RETURN DATE IS UNKNOWN. HE STATED THAT HE SPOKE TO SUBJECT OVER THE PHONE BUT THEN DENIED HAVING A PHONE NUMBER FOR HIM. THE MAN REFUSED TO PROVIDE HIS NAME, BUT STATED THAT HE IS LIVING AT THE RESIDENCE. THE MAN WAS VERY UNCOOPERATIVE. HE THEN WENT INSIDE AND CLOSED THE DOOR. HE REFUSED TO OPEN IT AND ACCEPT THE DOCUMENTS IN HAND. HE THEN STATED TO LEAVE THE DOCUMENTS OUTSIDE THE DOOR. SERVER DROPPED THE DOCUMENTS OUTSIDE THE FRONT DOOR OF THE HOME AFTER ANNOUNCING THE CONTENTS ALOUD. HIS DESCRIPTION MATCHES THAT WHICH WAS PROVIDED BY THE CLIENT [the Bank].

Mr. Baker did not answer the complaint and a clerk’s default was entered. The Bank then moved for summary judgment of foreclosure, and after hearing, a uniform judgment of mortgage foreclosure was rendered on February 23, 2011, with a foreclosure sale date scheduled for the following March 30. Before the scheduled foreclosure sale, Mr. Baker filed two motions: an emergency motion to quash service of process, vacate the default, and set aside the final judgment of foreclosure, and a motion to stay the foreclosure sale. Attached to the emergency motion were two affidavits.

The first of these affidavits was from Mr. Baker. It stated that on the date of service, he was not physically present at his home because he was in Europe on a business trip. While he was away, he allowed Mr. and Mrs. Vadim Saitgareev, out-of-town parents of a friend, to stay at his home while they met with medical providers in Sarasota. He allowed no one else to occupy or reside in his home since the lawsuit began. He departed for Europe three days before the process server’s visit and returned four days after-wards. Contrary to the process server’s note on the return of service, Mr. Baker at no time talked to the process server concerning service of papers upon him related to this or any other legal proceeding. He authorized no other person to accept service of process for him in this matter. The Saitgareevs arrived at his home after he had left for Europe and had already departed when he returned from his trip. He did not speak with them by telephone while he was in Europe. He had not seen the papers that the process server claimed to have left outside his home. And he first learned that he had been served with papers in this case and that a default judgment had been entered against him when he received a message from his realtor so informing him. Attached to his affidavit were copies of pages from his passport displaying immigration stamps marking his entry and exit from Europe on the dates he claimed. Finally, he stated that at no time between these dates did he leave Europe.

The second affidavit attached to Mr. Baker’s emergency motion was from Va-dim Saitgareev. Mr. Saitgareev stated that he was born in Russia and that English is not his first language. His permanent residence is in Massachusetts and he resides at no other place. On the date of service in this matter, he was temporarily away from home as a houseguest of Mr. Baker. Mr. Baker had permitted him and his wife to use his home while he was away in Europe because they needed a place to stay for a few days while attending medical treatment in Sarasota. Mr. Baker was not present at the home at any time during their visit. Their daughter is a friend of Mr. Baker and she arranged the visit. He and his wife did not talk to him to arrange the visit, nor did they talk to him during their stay at his home. One day during his stay, a man followed their car into the driveway and approached him. But they did not understand and told the man so, saying that they did not know Mr. Baker. After this they went inside the home. A few minutes later, this man approached the front door and asked them to open the door, saying he had papers for Mr. Baker. They did not open the door but said that Mr. Baker was not at home. He told the man that he would not see Mr. Baker and that Mr. Baker was a friend of their daughter. The man kept yelling at them through the door. He told the man that he would not accept any paper for Mr. Baker because he did not expect to see him before he returned home. He did not tell the man to leave the paper outside the door.

At the evidentiary hearing on Mr. Baker’s motion to quash service of process, vacate default, and set aside the final judgment of foreclosure, the Bank submitted the return of service into evidence. Mr. Baker submitted his and Mr. Saitgareev’s affidavits and also gave testimony. Mr. Baker’s testimony was substantially the same as his affidavit. The Bank did not provide any further evidence or call any witness. The trial court denied Mr. Baker’s motion.

The Standard of Review

“It is well settled that the fundamental purpose of service is ‘to give proper notice to the defendant in the case that he is answerable to the claim of plaintiff and, therefore, to vest jurisdiction in the court entertaining the controversy.’ ” Shurman v. Atl. Mortg. & Inv. Corp., 795 So.2d 952, 953 (Fla.2001) (quoting State ex rel. Merritt v. Heffernan, 142 Fla. 496, 195 So. 145, 147 (1940)). When a trial court rules on a motion to quash service of process, we review that ruling de novo. See Hernandez v. State Farm Mut. Auto. Ins. Co., 32 So.3d 695 (Fla. 4th DCA 2010).

Analysis

Section 48.031(l)(a), Florida Statutes (2010), governs the present issue of validity of substituted service of process and must be strictly construed. Robles-Martinez v. Diaz, Reus & Targ, LLP, — So.3d -, -, 2011 WL 3586179 (Fla. 3d DCA 2011) (“Service made under the substitute service provisions of section 48.031, Florida Statutes, must be strictly complied with, and these provisions are to be strictly construed.”); see also Walton v. Walton, 181 So.2d 715, 717 (Fla. 2d DCA 1966) (“Statutes authorizing constructive service of process must be strictly construed and exactly followed in order for a [trial] court to acquire jurisdiction.”). Section 48.031(l)(a) provides:

Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper or by leaving the copies at his or her usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents. Minors who are or have been married shall be served as provided in this section.

There is no issue whether Mr. Baker was personally served. The question then narrows to whether Mr. Saitgareev was “residing” at Mr. Baker’s home when the process server left the papers at the door. This is so because the parties do not dispute any of the remaining elements of this statute, i.e., the place at which the process server left the summons and complaint was Mr. Baker’s “usual place of abode,” Mr. Saitgareev was fifteen years of age or older, and the process server did inform the person there of the contents of the papers he left at the front door.

At the evidentiary hearing on Mr. Baker’s emergency motion to quash service of process, vacate default, and set aside the final judgment of foreclosure, the Bank had the initial burden to sustain the validity of service because it was the party invoking the jurisdiction of the court. See Bank of Am., N.A. v. Bornstein, 39 So.3d 500 (Fla. 4th DCA 2010). The Bank carried its initial burden in this case because it presented as evidence at the hearing the return of service, which Mr. Baker admits is regular on its face. “A process server’s return which is regular on its face is presumed valid absent clear and convincing evidence to the contrary.” Bennett v. Christiana Bank & Trust Co., 50 So.3d 43, 45 (Fla. 3d DCA 2010).

The burden then shifted to Mr. Baker to make a prima facie showing by clear and convincing evidence that the substituted service was defective. This he did by submitting not only the two affidavits, which are competent evidence on such issue, see Viking Superior Corp. v. W.T. Grant Co., 212 So.2d 331 (Fla. 1st DCA 1968), but also by testifying in person. He testified that Mr. Saitgareev was staying at his home while he himself was away on business, that Mr. Saitgareev was but a temporary houseguest who did not stay more than seven days — evidenced by the fact that the Saitgareevs were not there when he left nor when he returned — and that his home was the “usual place of abode” to no one but himself. Mr. Sait-gareeVs affidavit established that his own “usual place of abode” was in Massachusetts, and he attached a photocopy of his current driver’s license to substantiate his Massachusetts address. Thus, his temporary stay in Mr. Baker’s home for a few days to receive medical treatment in Sarasota merely made him a short-term house-guest. A short-term houseguest is not a person residing in the usual place of abode of the person to be served. Couts v. Md. Cas. Co., 306 So.2d 594 (Fla. 2d DCA 1975) (holding that a stay of a few days is insufficient to qualify that visitor to receive substituted service); Gamboa v. Jones, 455 So.2d 613 (Fla. 3d DCA 1984) (holding the same for a ten-day visitor).

Having had its prima facie showing of regular substituted service rebutted, it was incumbent upon the Bank to provide competing evidence to overcome Mr. Baker’s showing of substituted service upon a mere short-term houseguest. This burden-shifting is illustrated, in the analogous context of personal jurisdiction via the long-arm statute, in Hilltopper Holding Corp. v. Estate of Cutchin ex rel. Engle, 955 So.2d 598 (Fla. 2d DCA 2007). In Hilltopper, the plaintiff met its initial burden to establish personal jurisdiction over the defendants, but the defendants fully disputed, via sworn affidavits only, the jurisdictional basis alleged by the plaintiff. This shifted the burden back to the plaintiff to prove by affidavit or other sworn proof that a basis for personal jurisdiction existed. The plaintiff failed in this by offering no other sworn facts to establish personal jurisdiction over the defendants and refute their evidence that they were not subject to personal jurisdiction via the long-arm statute. Id. at 603. Accordingly, the trial court’s order finding that personal jurisdiction over the defendants had been established was reversed.

Like the plaintiff in Hilltopper, the Bank, as plaintiff, failed to refute Mr. Baker’s factual evidence that Mr. Saitgareev was not residing in his home at the time service was attempted. The Bank presented no further evidence, such as an affidavit or testimony that Mr. Saitgareev’s stay was of a longer duration so as to qualify him as a person residing at Mr. Baker’s usual place of abode. Cf. Magazine v. Bedoya, 475 So.2d 1085 (Fla. 3d DCA 1985) (holding that mother-in-law’s six-week visit qualified her as a person residing in the defendant’s usual place of abode); Sangmeister v. McElnea, 278 So.2d 675 (Fla. 3d DCA 1973) (holding that a visit of four months establishes that person as a resident who may properly accept substituted service).

Conclusion

Mr. Baker established by unrefuted clear and convincing evidence that Mr. Sa-itgareev was not residing at this home when the process server attempted substituted service. The Bank failed to refute this evidence. Therefore we must reverse the trial court’s order which was entered without personal jurisdiction over Mr. Baker and his trust.

Reversed and remanded with instructions to grant the motion to quash service of process, vacate the default, and set aside the final judgment of foreclosure.

SILBERMAN, C.J., and DAVIS, J., Concur.

      . We find without merit the Bank’s argument that Mr. Baker’s counsel's filing of a "special appearance” and attendance at the summary judgment hearing without contesting jurisdiction resulted in an untimely appeal. This filing stated: "[Undersigned counsel] notifies all parties of record of its limited special appearance on behalf of Dennis B. Baker ... for the purpose of contesting service of the court’s Order to Show Cause for Entry of Final Judgment dated January 20, 2010, on [Mr.] Baker as prescribed in said order. This is not to be construed as a general appearance by undersigned counsel or by [Mr.] Baker in this action.”

      . § 48.193, Fla. Stat. (2005).


author: WALLACE, Judge.

text:
    Philip D. KALTENBACHER, Appellant/Cross-Appellee, v. MORGAN KEEGAN & COMPANY, INC., Appellee/Cross-Appellant, and Richard Angelotti and Edward Rosenberg, Appellees.
    No. 2D10-5800.
    District Court of Appeal of Florida, Second District.
    March 23, 2012.

      Steven D. Hutton and Przemyslaw L. Dominko of Steven D. Hutton, P.L., Sarasota, for Appellani/Cross-Appellee.
    Michael A. Brady and Ryan R. Baker of Bass, Berry & Sims, PLC, Memphis, Tennessee, for Appellee/Cross-Appellant.
    No appearance for Appellees Richard Angelotti and Edward Rosenberg.
   WALLACE, Judge.

Philip D. Kaltenbacher appeals a final judgment confirming a securities arbitration award that granted his claims in part against Richard Angelotti and Edward Rosenberg and denied his claims against Morgan Keegan and Company, Inc. Mr. Kaltenbacher challenges the circuit court’s denial of his motion to vacate the arbitration panel’s award. Morgan Keegan cross-appeals the final judgment and challenges the circuit court’s denial of its request for an award of the attorney’s fees that it incurred in defending Mr. Kaltenbacher’s motion to vacate.

Mr. Kaltenbacher has failed to demonstrate reversible error in the circuit court’s denial of his motion to vacate the arbitration award. Accordingly, on the direct appeal, we affirm the final judgment without further comment. On Morgan Kee-gan’s cross-appeal, we reverse the final judgment to the extent that it denied Morgan Keegan’s request for the attorney’s fees that it incurred in defending the motion to vacate in the circuit court.

The Client Agreement between Morgan Keegan and Mr. Kaltenbacher included the following pertinent provision: The fees incurred by Morgan Keegan in defending the motion to vacate fall within the language of this attorney’s fee clause. Absent some compelling reason to the contrary, the circuit court was obligated to enforce this provision. See Lashkajani v. Lashkajani, 911 So.2d 1154, 1158 (Fla. 2005) (“Trial courts do not have the discretion to decline to enforce ... provisions [in contracts for awards of fees and costs to the prevailing party], even if the challenging party brings a meritorious claim in good faith.”).

Any expense, including attorney’s fees (whether for outside or inside counsel) incurred by Morgan Keegan in defense of an action brought by the undersigned against Morgan Keegan or its agents or employees in connection with any account of the undersigned shall be borne solely by the undersigned should Morgan Keegan prevail.

Mr. Kaltenbacher argues that Morgan Keegan is not entitled to an award of attorney’s fees for defending the motion to vacate in the circuit court because the arbitration panel declined to award Morgan Keegan any attorney’s fees in connection with the arbitration proceeding. We disagree.

After the arbitration panel made its decision, Mr. Angelotti and Mr. Rosenberg tendered to Mr. Kaltenbacher all monies due from them in accordance with the arbitration award. Thus the arbitration proceeding was concluded. When Mr. Kaltenbacher filed his motion to vacate in the circuit court, he began a separate proceeding. The arbitration panel’s ruling on entitlement to attorney’s fees was not binding on the circuit court in the separate action initiated by Mr. Kaltenbacher to vacate the arbitration panel’s award. Under these circumstances, Morgan Keegan was entitled under the Client Agreement to an award of attorney’s fees for defending the motion to vacate in the circuit court. See Burton Corp. v. Shanghai Viquest Precision Indus. Co., No. 10 Civ. 3163(DLC), 2010 WL 3024319 (S.D.N.Y. Aug.3, 2010) (slip, opinion) (ruling that Vi-quest was entitled under a prevailing party provision in the parties’ contract to its attorney’s fees and costs incurred in successfully opposing Burton’s petition to vacate an arbitration award and in obtaining an order confirming the award; no fees were awarded in the underlying arbitration proceeding); Elite Inc. v. Texaco Pan. Inc., 777 F.Supp. 289, 292 (S.D.N.Y.1991) (ruling that Texaco was entitled to attorney’s fees and costs under a prevailing party provision in the parties’ agreement for successfully defending Elite’s motion to vacate an arbitration award and for obtaining an order confirming the award); Trans-Asiatic Oil Ltd. S.A. v. UCO Marine Int’l Ltd., 618 F.Supp. 132, 137 (S.D.N.Y.1985) (awarding Trans-Asiatic additional attorney’s fees under a contractual fee provision for fees that were incurred in opposing UCO’s petition to vacate an arbitration award and in support of a cross-petition to confirm the award).

For the foregoing reasons, we reverse the final judgment to the extent that it denied Morgan Keegan’s motion for an award of the attorney’s fees that it incurred in the circuit court action and remand for further proceedings. In all other respects, the final judgment is affirmed.

Affirmed in part, reversed in part, and remanded.

KHOUZAM and CRENSHAW, JJ., Concur.

      . We have considered Mr. Kaltenbacher’s other arguments in opposition to Morgan Kee-gan’s claim for attorney’s fees and find them to be without merit. Mr. Kaltenbacher’s other arguments do not warrant further discussion.


text:
    Charles Bernard ROBINSON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3840.
    District Court of Appeal of Florida, Fifth District.
    March 23, 2012.
    Rehearing Denied April 20, 2012.
    Charles B. Robinson, Jr., Milton, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

In his 2002 cases, defendant Charles Bernard Robinson, Jr., entered into a specific, written, signed plea agreement. He was sentenced as agreed. After his direct appeal was dismissed, he pursued a course of numerous post-conviction motions without success. Upon review of his latest motion, the trial court ruled:

As noted at the beginning of this Order, the Defendant’s current Motion is the sixth he has filed since entering his plea agreement in 2004, each one seemingly lengthier and more convoluted than the last. Every motion has been denied as meritless. The Defendant is advised that if he files one more motion without merit, the Court will not only direct the Clerk of Court to refuse any further pro se filings from the Defendant, it will direct the Department of Corrections to consider imposing sanctions under section 944.279, Florida Statutes (2010) for abusing the process of the Court.

Robinson appealed. After review of his appeal which raised eight spurious claims, this court entered a show cause order pursuant to State v. Spencer, 751 So.2d 47, 48-49 (Fla.1999). Robinson failed to respond, and, we conclude that he has no valid reason for continuing to file frivolous appeals like this one. We hold that he is abusing the judicial process, and that he should be barred from further pro se filings. We therefore prohibit Robinson from filing with this Court any more pro se pleadings concerning case number 05-2002-CF-60567 in the Circuit Court of the Eighteenth Judicial Circuit in and for Brevard County. See Hastings v. State, 79 So.3d 739 (Fla.2011), and Steele v. State, 14 So.3d 221, 228 (Fla.2009) (recommending sanctions for both defendants and stating that the courts need to devote their finite resources to consideration of legitimate claims); Britt v. State, 931 So.2d 209, 210 (Fla. 5th DCA 2006) (defendant’s “pro se filings have become frivolous, an abuse of process, and a waste of the taxpayers’ money”); Isley v. State, 652 So.2d 409, 410-11 (Fla. 5th DCA 1995) (“Enough is enough.”).

The Clerk of this Court is directed to forward a certified copy of this opinion to Robinson and the appropriate institution for consideration of available disciplinary procedures. Rehearing will not be entertained.

AFFIRMED; Future pro se filings PROHIBITED; Certified Opinion FORWARDED to Robinson and the Department of Corrections.

ORFINGER, C.J., MONACO and PALMER, JJ., concur.


text:
    STATE of Florida, Appellant, v. Israel TACHER and Julio Pedroso, Appellees.
    No. 3D10-2694.
    District Court of Appeal of Florida, Third District.
    March 28, 2012.
    Pamela Jo Bondi, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellant.
    Williams and Trese, LLP, and Teresa Williams, for appellees.
    Before ROTHENBERG and SALTER, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

The State of Florida (“the State”) appeals the trial court’s final order granting Israel Tacher and Julio Pedroso’s (collectively, “the co-defendants”) motion to dismiss for lack of jurisdiction. We reverse.

THE FACTS

For the purpose of determining the sole issue on appeal, i.e., whether the Office of Statewide Prosecution (“OSP”) has the authority to prosecute the co-defendants in this case, the facts are undisputed. The State alleges that the co-defendants and two uncharged co-conspirators, Ricardo Olmedo and Bryant Olmedo (collectively, “the Olmedos”), conspired to and did traffic in contraband legend drugs. In then-sworn affidavits, the Olmedos explained that Bryant Olmedo would purchase and retrieve the contraband drugs from a drug dealer in New Jersey, and then personally transport them to Miami-Dade County by bus, traveling the length of Florida via 1-95, 1-4, and the Turnpike. When Bryant Olmedo reached Miami-Dade County, he delivered the drugs to Ricardo Olmedo, who would then deliver the drugs to the co-defendants. The co-defendants, in turn, sold the drugs to others.

The OSP charged the co-defendants in a consolidated information with Count 1: racketeering; Count 2: conspiracy to commit racketeering; Count 3: organized scheme to defraud; Count 4: trafficking in contraband legend drugs; Count 5: conspiracy to traffic in contraband legend drugs; and Count 6: money laundering.

Defendant Tacher filed a motion to dismiss, arguing that the OSP lacked jurisdiction. Pursuant to section 16.56(l)(a), Florida Statutes (2009), the OSP has the authority to prosecute an enumerated offense “only when any such offense is occurring, or has occurred, in two or more judicial circuits as part of a related transaction, or when any such offense is connected with an organized criminal conspiracy affecting two or more judicial circuits.” The crux of Tacher’s motion to dismiss, although incorrectly characterized as an issue of the OSP’s jurisdiction rather than its authority, was that the OSP failed to meet the requirements of section 16.56(l)(a) because all of the events comprising the crimes alleged in the information occurred in Miami-Dade County.

The OSP filed a response supported by the affidavits executed by the Olmedos, contending that section 16.56(l)(a)’s requirements were met because Bryant Olmedo, the uncharged co-conspirator, traveled by bus through seven judicial circuits while possessing the drugs in furtherance of the conspiracy. The trial court granted the defendants’ motion to dismiss, finding that “the casual passing of a bus through one or more Florida Counties does not satisfy the requirement in Winter that there be ‘some clear proof of an actual impact in other judicial circuits to satisfy the requirement that two or more circuits be affected.’ ”

In its motion for rehearing, the State argued that the transportation of illegal pharmaceutical drugs through the entire eastern section of the state constituted an actual crime in every circuit traveled, not merely activity in furtherance of a conspiracy. The trial court denied the State’s motion for rehearing, and this appeal followed.

LEGAL ANALYSIS

We review a trial court’s order on a motion to dismiss de novo where, as here, it concerns a question of law. Ehrlick v. State, 898 So.2d 237, 238 (Fla. 4th DCA 2005). Under section 16.56, the OSP has the authority to “investigate and prosecute” an offense enumerated in subsection 16.56(l)(a) “only when any such offense is occurring, or has occurred, in two or more judicial circuits as part of a related transaction, or when any such offense is connected with an organized criminal conspiracy affecting two or more judicial circuits.” (emphasis added). As is clear, this provision sets forth two separate theories upon which the OSP’s investigative and prosecu-torial authority may be realized, and the satisfaction of either confers the requisite authority to the OSP. The trial court focused on the second theory and found the OSP did not meet the statutory requirements under that theory. However, we conclude the OSP did meet the statutory requirements under the first theory and thus has the authority to prosecute the co-defendants for the charged offenses in Miami-Dade County.

The charging document (information) alleges multi-countg criminal activitg

The information charges the co-defendants with committing six related felony offenses “occurring in, or in connection with an organized criminal conspiracy affecting two or more judicial circuits.” Additionally, in Counts 1 and 2, the information further identifies the predicate acts the OSP is relying on in each count, some of which are alleged to have occurred in more than one Florida judicial circuit. It is clear, and the co-defendants do not dispute, that sufficient allegations of multi-county criminal activity appear on the face of the information, initially satisfying the requirements of section 16.56(l)(a), and establishing the OSP’s authority to prosecute the charged offenses in Miami-Dade County.

There is evidence to support the exercise of the OSP’s authoritg under section 16.56(1) (a)

Although the co-defendants concede that the information satisfies the statutory requirements for the exercise of the OSP’s authority to prosecute the charged offenses, the co-defendants claim: (1) there is no evidence that any of the charged offenses occurred in any county other than Miami-Dade County; and (2) there is no evidence that the organized criminal conspiracy allegedly committed by the co-defendants “affected” two or more judicial circuits. Thus, they contend the evidence does not support either theory upon which the OSP may exercise its authority under section 16.56(l)(a). We disagree.

A. The OSP satisfied its burden under the first theory

The OSP possesses the authority to prosecute the charged offenses under the first theory provided in section 16.56(l)(a) if the offenses occurred in two or more judicial circuits as part of a related transaction. As already addressed, each count alleges that the charged offense was part of a related transaction occurring in more than one Florida circuit, and there is no dispute that the charged offenses are related transactions. Additionally, Count 1 charges the co-defendants and others with racketeering (engaging in an ongoing criminal enterprise over a three-and-one-half year period), and lists as predicate acts each of the acts charged in Counts 4 (trafficking in contraband legend drugs), 5 (conspiracy to traffic in contraband legend drugs), and 6 (money laundering), and additionally lists mail fraud as a predicate act. Count 1 charges the co-defendants and others with conspiracy to commit racketeering and lists the same predicate acts in support of the charge. Count 3 charges the co-defendants and others with engaging in a systematic scheme to defraud prescription drug users over nearly a three-year period.

The co-defendants, and the trial court, however, focused on Count 4, which alleges that the co-defendants, along with the Olmedos and others, “did knowingly purchase or sell, or was in actual or constructive possession of contraband legend drugs valued at more than $25,000.” Although the case has not yet been tried, the co-defendants argue that the only evidence the State possesses in support of this charge is Bryant Olmedo’s possession and transportation of the contraband pharmaceutical drugs while riding on a bus through various Florida judicial circuits and the ultimate delivery of the pharmaceutical drugs to the co-defendants in Miami-Dade County. The co-defendants and the trial court, however, failed to consider that Count 4 is related to the other crimes charged and is but one cog in the overall scheme and criminal enterprise of the various charged and uncharged perpetrators, and that while each of the perpetrators played a different role in the criminal enterprise, they were acting in concert, one with the other. For example, in an affidavit signed by Ricardo Olmedo, he averred he located and obtained the suppliers of the contraband; his son, Bryant Olmedo, transported the contraband by bus from New Jersey through Florida and ultimately to Miami-Dade County; and the co-defendants supplied the Olmedos with customers for the contraband. In other words, the co-defendants served as the middlemen or conduits to the end-users in the criminal enterprise. Bryant Olmedo, in his affidavit, confirmed his role in the criminal enterprise and further stated that he delivered the contraband to co-defendant Tacher.

Thus, although it was not the role of these co-defendants to serve as the couriers from New Jersey to Miami-Dade County, it is alleged, and there are witnesses who are prepared to testify, that it was the role of these co-defendants to serve at the end of the chain as the conduit to the end-users and thus to complete the actual delivery of the contraband to the intended customers. It is also alleged as part of the predicate acts, that these co-defendants helped launder the money obtained through this criminal enterprise.

Based on these facts, we conclude there is sufficient evidence to establish the OSP’s authority under the first theory provided in section 16.56(l)(a). The information and supporting evidence reflect that these co-defendants were an integral part of the overall criminal enterprise that included the purchase of contraband pharmaceutical drugs from suppliers in New Jersey, which was transported by bus through various Florida judicial circuits by a co-perpetrator, and delivered in Miami-Dade County to the co-defendants, who sold the drugs to others and laundered the money.

B. The OSP’s burden under the second theory

In order to survive a motion to dismiss under the second theory provided in section 16.56(l)(a), the State must allege that the charged offense is “connected with an organized criminal conspiracy affecting two or more judicial circuits.” The trial court, relying on Winter, granted the co-defendants’ motion to dismiss based on its finding that the State did not meet its burden in establishing its authority under this particular theory. In Winter, the First District held that “[a]bsent some clear proof of an actual impact in other judicial circuits, the statutory requirement of ‘affecting two or more circuits’ is not satisfied.” Id. at 1116. As we have already determined that the OSP’s authority was established under the “occurring in two or more judicial circuits” test, we do not need to address nor must the State demonstrate whether the OSP established its authority under the alternative “connected with an organized conspiracy affecting two or more judicial circuits” test. Nonetheless, we address this alternate test, and we conclude the trial court erred in determining that the OSP did not establish its authority under this theory.

First, we note that Winter is clearly distinguishable. In Winter, all of the crimes charged took place only in the Second Judicial Circuit. Thus, the OSP’s authority only existed if the crimes charged were “connected with an organized criminal conspiracy affecting two or more judicial circuits.” Winter, 781 So.2d at 1115. The sole basis relied on by the State for satisfying this requirement in Winter was that the money stolen by the defendant came from a state workers’ insurance fund and the state has employees all over Florida. Based on the State’s concession that the defendant’s acts all occurred in Leon County and the fund was housed in Leon County, and the Winter court’s conclusion that there was no proof of an actual impact in other judicial circuits, the Winter court held that the statutory requirement of “affecting two or more circuits” was not satisfied. Id. at 1116.

In the instant ease, the crimes did not take place only in Miami-Dade County, and because a co-perpetrator possessed and transported contraband through several different judicial circuits and was therefore susceptible to prosecution in any of those judicial circuits in which he transported the contraband, we conclude that the “affecting two or more circuits” requirement was met. See King v. State, 790 So.2d 477, 479 (Fla. 5th DCA 2001) (concluding the OSP had the authority to prosecute burglary charges that occurred in a single judicial circuit, where the burglary was part of a business enterprise (the operation of a chop shop) that was located in another judicial circuit);. Suiero v. State, 248 So.2d 219, 224 (Fla. 4th DCA 1971) (holding that “a prosecution for a criminal conspiracy may be brought in the county where the unlawful combination is formed or in any county where the overt act is committed by any of the conspirators in furtherance of the unlawful confederacy”).

Ross v. State, 664 So.2d 1004 (Fla. 4th DCA 1995), is also instructive. Ross challenged his convictions for conspiracy to traffic in cocaine and conspiracy to commit first degree murder, charged by indictment by the statewide grand jury. The Fourth District concluded that the murder charge should have been severed; each of the three drug transactions involved three separate conspiracies as they involved different participants, different locations, and different purposes; and although two of the drug transactions involved multi-county Florida activity to establish jurisdiction by the statewide grand jury, one did not. Id. at 1009-10. Specifically, the Fourth District concluded that statewide prosecution was proper for the transactions occurring in the first and second operations. In the first operation, the defendant obtained cocaine in Miami and brought it with him to Fort Lauderdale, where it was hidden in a car and the car 'was later driven to Canada. Id. at 1006. The second operation was planned in Fort Lauderdale, and involved the defendant and others in a smuggling scheme to import cocaine from Colombia, through the Bahamas and Nashville, to Canada. Id. at 1007. A co-perpetrator, Russell Brothers, testified that he flew three trips for Ross and on each trip he would file a flight plan indicating he would be landing at Fort Pierce, Florida, but would, instead, rendezvous off the coast with another pilot, who would land in Fort Pierce to clear customs while Brothers transported the drugs to Canada. Id. at 1007. The Fourth District concluded that the acts of meeting in Fort Lauder-dale to discuss the conspiracy and the landing of a decoy plane in Fort Pierce satisfied the jurisdictional requirements for statewide prosecution, even though no drugs were transported into or through a Florida judicial circuit. Id. at 1008.

Based on the above cited cases, we conclude the OSP established its authority to prosecute the charged crimes under the second theory provided in section 16.56(l)(a), even though it was not required to as a result of having satisfied the requirements of the first theory. The trial court, therefore, erred in dismissing the charges.

We also conclude the procedure used to attack the OSP’s authority to prosecute the charged offenses may have led the trial court to err. We suggest that such a motion be filed as a sworn motion to dismiss, similar to those filed under rule 3.190(c)(4), Florida Rules of Criminal Procedure, and stating that there are no material disputed facts and the undisputed facts do not establish the authority of the OSP to prosecute the charged offenses. Upon the filing of such a motion, the OSP may traverse or demur to the motion, and unless specifically denied by the OSP in the traverse, the factual matters alleged in the motion to dismiss shall be considered admitted. If the OSP flies a traverse that, with specificity, denies under oath the material fact or facts alleged in the sworn motion to dismiss, the motion shall be denied. If the OSP files a demur or otherwise admits the factual allegations, the trial court should conduct a hearing to address the merits of the motion. We believe this procedure will provide the trial court with a more complete recitation of the facts, better enable the trial court to make an informed decision, and provide this Court with a more complete record.

Reversed and remanded with instructions to reinstate the information.

      .The pharmaceutical drugs became illegal as a result of being stolen, procured from illegal returns, purchased from beneficiaries of welfare programs, repackaged from expired lots, illegally imported, or counterfeited.

      . Defendant Pedroso adopted the motion to dismiss.

      . Winter v. State, 781 So.2d 1111 (Fla. 1st DCA 2001).

      . We note that because the instant offenses were charged by information rather than by indictment issued by a statewide grand jury, and allegations of multi-county activity appear on the face of the information, the information does not run afoul of this Court's opinion in State v. Ostergard, 343 So.2d 874, 877 (Fla. 3d DCA 1977), which holds that absent proper jurisdictional allegations on the face of the indictments, the statewide grand jury was without authority to indict the appel-lees.


author:
RAMIREZ, J.
      SCHWARTZ, Senior Judge

text:
    D.A., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, et al., Appellees.
    No. 3D11-2540.
    District Court of Appeal of Florida, Third District.
    March 28, 2012.

      llene Herscher, Coral Gables, for appellant.
    Karla Perkins, Miami, for appellee, Department of Children and Family Services, and Hillary S. Kambour, for appellee, Guardian Ad Litem Program.
    Before RAMIREZ and SALTER, JJ., and SCHWARTZ, Senior Judge.
   RAMIREZ, J.

D.A. (the Father) appeals from a dependency adjudication with respect to his minor child, R.A. We affirm the supplemental dependency adjudication order entered below.

R.A. came to the attention of the Department of Children and Family Services (DCF), on March 2, 2011, when her parents checked themselves into a residential drug rehabilitation facility and left R.A. with a friend who runs a halfway house. R.A.’s parents have mental health and substance abuse problems. After their discharge from the rehabilitation facility on March 8, 2011, a DCF investigator went to the halfway house, but could not find the parents. She was told they were in their North Miami Beach home. However, the address given to the investigator turned out to be to a vacant home. As a result of a subsequent telephone conversation, the father brought the child to DCF the next day.

Thereafter, DCF petitioned to shelter the child due to the parents’ mental health and substance abuse problems. The mother admitted to cocaine use, but the father denied having any mental health or substance abuse issues. However, on March 14, 2011, the father readmitted himself to the treatment facility with depression and suicidal thoughts.

On March 25, 2011, DCF petitioned to declare R.A. dependent because of risk of prospective harm. The mother consented to the adjudication of dependency, and, on April 20, 2011, the trial court entered an order finding R.A. dependent as to the mother. The father challenged the dependency and the case proceeded to an adjudicatory hearing.

At the hearing, the trial court heard from Miami-Dade and Broward County DCF investigators, a mental health counselor, a psychiatrist, and the father. The mental health counselor testified that the father admitted to a twenty-year history of substance abuse. Both the counselor and the psychiatrist stated that the father reported he was diagnosed with bipolar disorder and cocaine dependence. Although prescribed medication for his mental health disorder, the father did not take the medication and instead relied on cocaine. The father claimed that when he checked into the treatment facility it was for depression and that facility personnel added the suicidal ideations to his record to ensure Medicare payment. He also testified that when he used cocaine he left R.A. with the mother. The trial court found, by a preponderance of the evidence, that the father’s untreated problems placed R.A. in substantial risk of imminent abuse, abandonment, or neglect, as defined in Chapter 39 of the Florida Statutes.

On appeal, the father contends that the trial court’s finding that the child was in substantial risk of imminent abuse, abandonment or neglect was not supported by competent and substantial evidence. DCF filed a confession of error based on P.S. v. Department of Children and Families, 4 So.3d 719 (Fla. 5th DCA 2009). Conversely, the Guardian ad Litem Program asserts that the trial court’s supplemental adjudication of dependency is correct. We agree with the Guardian ad Litem Program.

Turning first to the sufficiency of the dependency adjudication, it is well settled that, in a dependency proceeding, the allegations contained in the dependency petition must be established by a preponderance of the evidence. M.F. v. Fla. Dep’t of Children & Families, 770 So.2d 1189, 1192 (Fla.2000). Moreover, unless there is abuse of discretion, a trial court’s determination of dependency is a mixed question of law and fact, which will be upheld on appeal if the trial court applied the correct law and its ruling is supported by competent substantial evidence. Id.; A.B. v. Fla. Dep’t of Children & Family Servs., 901 So.2d 324, 326 (Fla. 3d DCA 2005).

Section 39.01(15)(a),(f), Florida Statutes (2011), defines a dependent child as one who “is found by the court: (a) To have been abandoned, abused, or neglected by the child’s parent or parents or legal custodians; ... or (f) To be at substantial risk of imminent abuse, abandonment, or neglect by the parent or parents or legal custodians.” Prospective risk of abuse, abandonment, or neglect may be found where a parent has an untreated mental health disorder or a chronic substance abuse problem which may cause the parent to act in a manner that harms the child. See, e.g., J.B. v. Dep’t of Children & Family Servs., 40 So.3d 917 (Fla. 2d DCA 2010) (substance abuse); B.C. v. Dep’t of Children & Families, 846 So.2d 1273 (Fla. 4th DCA 2003) (substance abuse); E.M.A. v. Dep’t of Children & Families, 795 So.2d 183 (Fla. 1st DCA 2001) (mental health disorder); Richmond v. Dep’t of Health & Rehab. Servs., 658 So.2d 176 (Fla. 5th DCA 1995) (mental health disorder).

Here, there was competent and substantial evidence that the father’s mental health and substance abuse problems posed a prospective risk of harm to R.A. The evidence revealed that the father admitted having a twenty-year old substance abuse problem which led to at least two recent admissions to a treatment facility. Expert testimony also established that the father suffers from bipolar disorder, for which he has chosen not to take prescribed medication. The mental health counselor and the father’s psychiatrist opined that the father’s problems affected his decision making and daily activities. The father’s untreated mental disorder and use of drugs has led to poor decision-making in the past, including leaving the child in a halfway house. Thus, we conclude that the trial court’s finding of risk of imminent abuse or neglect is supported by competent, substantial evidence.

Furthermore, we reject DCF’s confession of error based on the Fifth District’s holding in P.S. that section 39.507(7) of the Florida Statutes prohibits a supplemental adjudication of dependency based on prospective abuse or neglect. In P.S., as here, the mother consented to DCF’s petition for dependency and the trial court entered an order adjudicating the children dependent. The father, however, challenged the dependency and the trial court held an evidentiary hearing and entered a second adjudicatory order. P.S., 4 So.3d at 720. On appeal, the Fifth District held that at a subsequent evidentiary hearing of a second parent, actual harm and not a risk of harm must be found. Id. at 721. We disagree.

As with any case of statutory construction, the court must begin with the actual language of the statute. Borden v. East-European Ins. Co., 921 So.2d 587, 595 (Fla.2006). Where the statute’s language is clear or unambiguous, courts should give such language its plain meaning. See Polite v. State, 973 So.2d 1107, 1111 (Fla.2007). Florida courts “are ‘without power to construe an unambiguous statute in a way which would extend, modify or limit its express terms or its reasonable and obvious implications, and to do so would be an abrogation of legislative power.’ ” McLaughlin v. State, 721 So.2d 1170, 1172 (Fla.1998) (quoting Holly v. Auld, 450 So.2d 217, 219 (Fla.1984)). Further, all parts of a statute should be read together to provide the whole legislative intent. Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992).

Section 39.507(7), Florida Statutes (2011), provides that:

(a) For as long as a court maintains jurisdiction over a dependency case, only one order adjudicating each child in the case dependent shall be entered. This order establishes the legal status of the child for purposes of proceedings under this chapter and may be based on the conduct of one parent, both parents, or a legal custodian.
(b) However, the court must determine whether each parent or legal custodian identified in the case abused, abandoned, or neglected the child in a subsequent evidentiary hearing. If the evidentiary hearing is conducted subsequent to the adjudication of the child, the court shall supplement the adjudicatory order, disposition order, and the case plan, as necessary. With the exception of proceedings pursuant to s. 39.811, the child’s dependency status may not be retried or readjudicated.

For several reasons, we reject the Fifth District’s conclusion that the plain language of the statute dictates a finding of actual abuse, abandonment, or neglect at a subsequent adjudicatory hearing. First, the court’s interpretation adds the word “actual” which is not in the statute. This violates the rule that a court may not extend the express terms of a statute. The court’s interpretation also disregards Chapter 39’s statutory definitions which incorporate prospective risk of harm as a ground to determine that a child is dependent.

Moreover, requiring a finding of actual harm as to the second parent hinders, rather than advances, the purpose behind the statutory prohibition against more than one dependency adjudication. Subsection 39.507(7) was added to Chapter 39 to remedy “unnecessary delays in placement and permancy” which were occurring in dependency cases involving separate adjudications as to each parent. See Fla. H.R. Staff Analysis on HB 7077, at 1. Thus, the purpose behind the amendment was to allow a child to be adjudicated dependent in an expeditious manner. Once the child is found to be dependent as to one parent, an evidentiary hearing, where case plans and supplemental findings as to the other parent can be determined, can later be held without it affecting the status of the child.

Finally, the Fifth District’s reading of the statute calls for application of two different standards as to each parent for no apparent rationale. The second parent, who in most cases will be the more fractious, arbitrarily will receive the benefit of holding DCF to a higher level of proof. This will frustrate the very purpose underlying Chapter 39, that of providing acceptable procedures by which DCF lawfully can respond to reports of child abuse, abandonment, or neglect in the most efficient and effective manner to ensure the health and safety of children.

In summary, we conclude there was sufficient evidence here to support the trial court’s finding that R.A is at a substantial risk of abuse, abandonment, or neglect, and that harm is likely to occur if she is placed with her father. Further, we decline to accept the DCF’s confession of error, as we disagree with the Fifth District Court of Appeal’s interpretation of Section 39.507(7). Accordingly affirm the trial court’s order of supplemental findings for dependency.

Affirmed.

SALTER, J., concurs.

SCHWARTZ, Senior Judge

(dissenting).

Although the issue is very close and the opinion of the Court is very persuasive, I come down on the side of agreement with P.S. v. Dep’t of Children & Families, 4 So.3d 719 (Fla. 5th DCA 2009), particularly as explicated by the Fifth District in the later decision of D.G. v. Dep’t of Children & Families, 80 So.3d 1063 (Fla. 5th DCA 2012).

      . D.G. v. Department of Children and Families, 80 So.3d 1063 (Fla. 5th DCA 2012), is factually distinguishable.


author: GERBER, J.

text:
    Christy CARONE, Appellant, v. MILLENNIUM SETTLEMENTS, INC. and Cambridge Galaher Settlements and Insurance Services, Inc., a foreign for profit corporation, Appellees.
    No. 4D11-3334.
    District Court of Appeal of Florida, Fourth District.
    March 28, 2012.

      Marc A. Silverman of Frank, Weinberg & Black, P.L., Plantation, for appellant.
    No appearance for appellees.
   GERBER, J.

The defendant appeals from the circuit court’s order denying her motion to quash service and service of process. She argues that the record contains no competent, substantial evidence to justify the court’s denial of her motion. We agree with the defendant and reverse.

In the return of service, the process server stated that he obtained substitute service on the defendant by serving her father at her home. The process server further stated in the return of service that the defendant’s father resided at the home.

The defendant filed a motion to quash service and service of process. The motion argued that the defendant’s father did not reside at her home. The motion included the defendant’s affidavit attesting to that fact. According to the motion, service was invalid pursuant to section 48.031(l)(a), Florida Statutes (2010), which states, in pertinent part:

Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper or by leaving the copies at his or her usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents.

(emphasis added).

The circuit court conducted an eviden-tiary hearing on the motion. The defendant’s father and the process server testified. The court’s order provided the following “complete summary of the undisputed, relevant evidence presented at the hearing”:

A. The Father testified that, throughout the year 2010, he owned and resided at a condominium located at [address deleted here] (the “Father’s Condominium”);
B. A certified copy of the warranty deed through which the Father obtained title to the condominium was admitted into evidence, as were copies of a driver’s license, U.S. Postal Service form, and Florida homestead exemption form reflecting the Father’s address during the year 2010 as being the condominium;
C. The Father testified that no one else resided at the Father’s Condominium during 2010;
D. The Father testified that he occasionally spends the night at the residence of the Movant located at [address deleted here] (the “Movant’s Residence”) when she travels, for the purpose of earing for the Movant’s minor child;
E. The Father testified that, on average, he spends the night at the Mov-ant’s Residence less than one or two days per month, and that he does not maintain clothes or personal items there;
F. The Father testified that he spent the night at the Movant’s Residence the night before he was provided with court papers by the Plaintiffs process server, that the process server never asked whether the Father resided at the Mov-ant’s residence, and that he never advised the process server that he resided at the Movant’s residence;
G. The Father testified that he believes that he spent less than ten nights at the Movant’s Residence in total during the past year;
H. The process server testified that he had no specific recollection of serving court papers upon the Father, but that it is his practice when attempting substituted service to inquire of recipients whether they reside with the parties to be served; and
I. The process server authenticated the affidavit of service.

Based on the foregoing evidence, the circuit court determined that the defendant’s father was residing at the defendant’s home at the time of service for the purposes of section 48.031(l)(a). The court provided no explanation for its determination.

This appeal followed. The defendant argues that she presented clear and convincing evidence that her father was not residing at her home and that the plaintiffs failed to rebut this evidence. Therefore, she argues, the record contains no competent, substantial evidence to justify the court’s denial of her motion. Our review is de novo. See Hernandez v. State Farm Mut. Auto. Ins. Co., 32 So.3d 695, 698 (Fla. 4th DCA 2010) (“A trial court’s ruling on a motion to quash service of process consists of a question of law subject to a de novo standard of review.”).

We agree with the defendant. “The burden of proving proper service of process falls upon the party invoking the court’s jurisdiction, and the return of service is evidence of whether service was validly made.” Bank of Am., N.A. v. Bornstein, 39 So.3d 500, 503 (Fla. 4th DCA 2010) (citation and internal quotations omitted). “If the return is regular on its face, then the service of process is presumed to be valid and the party challenging service has the burden of overcoming that presumption by clear and convincing evidence.” Id.

Here, the return of service was regular on its face, and thus service of process is presumed to be valid. However, the defendant met her burden of overcoming that presumption by clear and convincing evidence. The circuit court found the father’s testimony to be undisputed that: (1) he did not reside in the defendant’s home; and (2) he did not tell the process server that he resided in the defendant’s home. The plaintiffs did not rebut that testimony with any competent, substantial evidence. The only evidence which the plaintiffs submitted was the process server’s testimony that “he had no specific recollection of serving court papers upon the Father, but that it is his practice when attempting substituted service to inquire of recipients whether they reside with the parties to be served.” We conclude that the process server’s “practice” does not constitute competent, substantial evidence to rebut the father’s testimony. To rebut the father’s testimony, the process server had to testify credibly that the father stated he resided at the defendant’s home or the plaintiffs had to submit other evidence credibly proving that the father resided at the defendant’s home.

Based on the foregoing, we are required to reverse the circuit court’s order denying the defendant’s motion to quash service and service of process. See Johnston v. Hudlett, 32 So.3d 700, 705 (Fla. 4th DCA 2010) (“All requirements for substituted service must be strictly complied with or service is rendered void.”). We remand for the plaintiffs to be afforded another opportunity to serve the defendant pursuant to Florida Rule of Civil Procedure 1.070.

Reversed and remanded.

CIKLIN and LEVINE, JJ., concur.


text:
    Uriah Alfred ROSE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-432.
    District Court of Appeal of Florida, Third District.
    March 28, 2012.
    Uriah Alfred Rose, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD and EMAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Adams v. State, 76 So.3d 367 (Fla. 3d DCA 2011); see also Little v. State, 77 So.3d 722 (Fla. 3d DCA 2011).


text:
    Elier DIAZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-436.
    District Court of Appeal of Florida, Third District.
    March 28, 2012.
    Elier Diaz, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and RAMIREZ and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Little v. State, 77 So.3d 722 (Fla. 3d DCA 2011); Adams v. State, 76 So.3d 367 (Fla. 3d DCA 2011) (holding that section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional); see also Flagg v. State, 74 So.3d 138, 141 (Fla. 1st DCA 2011) (citing State v. Adkins, 71 So.3d 184 (Fla. 2d DCA 2011) [review granted, 71 So.3d 117 (Fla. 2011) ], and acknowledging “uncertainty caused by Shelton [v. Secretary, Department of Corrections, 802 F.Supp.2d 1289 (M.D.Fla.2011) ]” but reaffirming its view that section 893.13 is constitutional).