author: MORRIS, Judge.

text:
    C.G., Appellant, v. J.R. and J.R., Appellees.
    No. 2D12-5089.
    District Court of Appeal of Florida, Second District.
    Jan. 31, 2014.
    Jean Marie Henne of Jean M. Henne, P.A., Winter Haven, and Robert B. Peddy, Jr., of Law Offices of Peddy, P.A., Lake-land, for Appellant.
    Brandon J. Rafool of Brandon J. Rafool, L.L.C., Winter Haven, for Appellee J.R.
    No appearance for second Appellee J.R.
   MORRIS, Judge.

C.G. appeals a final judgment entered against him in his paternity action. C.G. is the undisputed biological father of H.G.-R. However, H.G.-R.’s biological mother was married to J.R. at the time of H.G.-R.’s birth, thereby establishing J.R. as H.G.R.’s legal father. After C.G. filed a verified complaint to establish paternity, he and the biological mother entered into a paternity and timesharing agreement, which was then approved by the trial court. That agreement provided both C.G. and J.R. with visitation rights, and J.R. signed the agreement though he was not listed as a party to it. In a subsequent order vacating the agreement, the trial court found that the agreement was unenforceable because it created dual paternity which is not recognized under Florida law. And in the trial court’s final judgment denying the paternity action, the trial court determined that it was in H.G.-R.’s best interests to have J.R. remain as her legal father. We affirm as explained herein.

I. Background

J.R. and the biological mother were married in 1999 and had three children prior to H.G.-R.’s birth. C.G. was also married and had two prior children with his wife. C.G. and J.R. were business partners. In 2005, the biological mother and C.G. began an extramarital affair and the biological mother became pregnant with H.G.-R. Upon learning she was pregnant, the biological mother immediately told C.G. that the child may be his child. However, the biological mother did not immediately inform J.R. of the possible paternity issue and, therefore, J.R. assumed H.G.-R. was his biological child.

As soon as H.G.-R. was born, the biological mother permitted C.G. to have frequent visitation with the child. When the child was seven months old, the biological mother finally informed J.R. that C.G. might be the child’s biological father.

In May 2007, J.R. and the biological mother stopped permitting visitation between C.G. and H.G.-R. C.G. then filed a paternity action. C.G. did not have visitation with the child between February 1, 2008, and January 31, 2009.

In January 2009, the biological mother and J.R. separated. That same month, C.G. and the biological mother entered into a paternity, support, and other related relief agreement, wherein it was acknowledged that C.G. was the “legal, natural[,] and biological father” and that he would have “liberal and reasonable visitation” with the child. The agreement required C.G. to pay child support and half of all insurance deductibles and medical expenses not covered by the insurance policy. Although the agreement specified that it was only between C.G. and the biological mother, it contained a stipulation that: “[tjhis agreement in no way removes any parental rights of [J.R.] as to custody or visitation with [H.G.-R.], according!] to Florida State Law ... or further order of the Court.” J.R. signed the agreement after C.G. and the biological mother. The trial court entered a final order acknowledging the agreement in February 2009, although the order did not mention the clause pertaining to J.R.’s parental rights.

A dispute arose after the biological mother was arrested for drug possession and C.G. refused to return the child after lawful visitation, citing concerns about drug usage by the biological mother and J.R. Eventually, H.G.-R. was returned to the biological mother pursuant to an emergency pick up order. J.R. then filed a verified motion to set aside and/or vacate the January 2009 agreement and the February 2009 final judgment addressing that agreement.

C.G. and the biological mother subsequently entered into a “post paternity custodial residential parent, time sharing [sic] plan for minor child, support!,] and other related relief agreement.” In that agreement, the biological mother acknowledged C.G.’s parental rights while at the same time releasing J.R. “from any financial responsibilities of [H.G.-R.].” The agreement provided for equal timesharing between C.G. and- the biological mother, for child support and daycare expenses to be paid by C.G., and for C.G. to pay half of the insurance deductibles and medical expenses not covered by insurance. There was no mention of J.R.’s parental rights in this agreement, and J.R. did not sign it.

The biological mother, her boyfriend, and H.G.-R. then moved in with C.G. and his family. The biological mother filed for divorce from J.R. in June 2009, but the action was dismissed for lack of prosecution in October 2010. In the interim, the trial court adopted the rotating custody agreement entered into by C.G. and the biological mother. The trial court agreed to accept the new agreement on a temporary basis and permitted J.R. to pursue his then-pending motion to set aside and/or vacate the earlier agreement and final judgment.

In October 2009, the trial court entered an order vacating the final judgment on the original parenting, support, and time-sharing agreement and removing H.G.-R. from C.G.’s care. The basis for the trial court’s decision was that the January 2009 agreement and final judgment thereon created a “legal fiction of dual paternity” that was contrary to state law and public policy, thereby rendering it unenforceable. Subsequent to entry of the October 2009 order, the biological mother placed H.G.-R. with J.R. C.G. has not seen the child since October 2009.

In July 2011, C.G. filed a verified emergency motion for timesharing, modification of timesharing, and sole and/or shared custodial responsibility of H.G.-R. on the basis that DNA tests revealed that he was the child’s biological father and that he had been involved in the child’s life. He also noted that the biological mother was unstable and a drug user. The motion was denied, but the matter was set for trial.

In February 2012, a guardian ad litem (GAL) was appointed in the proceeding. In March 2012, she presented her written report to the court. In evaluating what was in the best interest of H.G.-R., the GAL primarily considered C.G. and J.R. as placements because the biological mother had not had any contact with the child for over two years. The GAL determined that due to the biological mother’s instability and drug use, she was not a suitable placement for the child, and between the two fathers, she concluded it was in the child’s best interest to be placed with J.R. In reaching this conclusion, the GAL faulted C.G. for allowing the biological mother to reside in his home with her then-boyfriend while she continued to abuse drugs and for using the media and street signs to publicize the custody issue. The GAL concluded that C.G. entered into the parenting, support, and timesharing agreement in order to gain an advantage in the custody battle. Regarding the fathers’ moral fitness, the GAL noted C.G.’s decision to use public forums to convey information about the issue and his interference with the biological mother’s and J.R.’s efforts to reconcile their marriage. The GAL also expressed concern that C.G. had been untruthful in regard to an alleged incident of medical neglect of the child as well as making false accusations regarding J.R.’s purported attempt to purchase drugs.

The GAL believed that J.R. was better equipped to facilitate timesharing based on C.G.’s unilateral decision to modify the timesharing agreement (i.e., when he refused to return H.G.-R. after visitation); the GAL noted that J.R. had been more cooperative with the timesharing schedule. The GAL also found that H.G.-R. was doing well in her placement with J.R. and that the child considered J.R. to be her father. H.G.-R. was closely bonded with her half-siblings, and the half-siblings were protective of her. On that basis, the GAL believed it would be detrimental to separate H.G.-R. from her half-siblings. The GAL believed that the home, school, and community record favored placement with J.R., and she credited J.R. for his influence in the child’s life. The GAL also expressed concern that the child’s placement with C.G. could be challenged in court as not permissible under Florida law. The GAL ultimately concluded that it was in H.G.-R.’s best interest to preserve the “presumption of legitimacy” that arose when she was born during an intact marriage.

Ultimately, the trial court entered a final judgment against C.G. in his paternity action. In so ruling, the trial court largely agreed with the GAL’s conclusions, noting especially H.G.-R.’s relationship with her half-siblings and C.G.’s use of public forums to publicize the matter. The trial court also found that despite C.G.’s status as the biological father, “[h]e has no significant relationship with [H.G.-R.].” The trial court found that many of the child custody factors set out in section 61.13(3), Florida Statutes (2012), favored placement with J.R. and that none favored placement with C.G. The trial court ruled that it was in H.G.-R.’s best interest for J.R. to “remain as her legitimate and legal father,” and the trial court ordered that the child’s birth certificate reflect that J.R. was the father.

II. Analysis

C.G. appeals the October 2009 order that vacated the earlier order approving the original paternity and timesharing agreement; he also appeals the final judgment denying his paternity complaint. Initially, we reject C.G.’s argument that there was insufficient evidence to support the trial court’s determination that it was in H.G.-R.’s best interest for J.R. to remain recognized as her legitimate and legal father. Instead, we conclude that based on the factors set forth in section 61.13(3), the trial court’s decision to award custody to J.R. and to deny C.G.’s paternity action was supported by competent, substantial evidence. Thus we affirm the final judgment denying C.G.’s verified complaint to determine paternity without further comment.

However, we write to explain why we also affirm the October 2009 order vacating the February 2009 order on the original paternity and support agreement. In vacating the original paternity and timesharing agreement, the trial court found that the concept of dual paternity was a “legal fiction” that was contrary to state law and public policy. The issue is whether a child can have two legally recognized fathers in addition to a mother. Because this is an issue of law, we review the trial court’s decision under a de novo standard of review. See P.G. v. E.W., 75 So.3d 777, 780 n. 1 (Fla. 2d DCA 2011).

We acknowledge two Florida cases wherein the courts determined that Florida law permits a child to have two mothers or two fathers. See Greenfield v. Daniels, 51 So.3d 421 (Fla.2010); T.M.H. v. D.M.T., 79 So.3d 787 (Fla. 5th DCA 2011), approved in part, disapproved in part, 129 So.3d 320 (Fla.2013).

In T.M.H., two women involved in a romantic relationship were involved in a custody dispute. One of the women gave birth to a child who was conceived using donor sperm and the other woman’s egg. 79 So.3d at 788-89. The two women raised the child for several years before their relationship deteriorated. Id. at 789. The Fifth District Court of Appeal was required to interpret the term “donor” as used in section 742.14, Florida Statutes (2009). Because no statutory definition was provided, the court relied on case law in holding that the woman who provided the egg to conceive the child was not considered a “donor” under section 742.14 and, therefore, that she did not surrender her parental rights to the child as would a “donor” contemplated by the statute. Id. at 791-94. The court rejected the argument that other statutory chapters applied to foreclose the parental- rights of the woman who donated her egg, finding that “[cjhapter 742, entitled ‘Determination of Parentage,’ is the statutory vehicle by which paternity is established for children born out of wedlock.” Id. at 794. The court concluded that both women had parental rights to the child. Id. at 803.

On review, the Florida Supreme Court disagreed with the Fifth District that section 742.14 did not apply to the facts of the case. Further, the court concluded that section 742.14 was unconstitutional as applied to the wbman who provided the egg because it would deprive her — the biological mother — of parental rights “where she was an intended parent and actually established a parental relationship with the child.” 129 So.3d at 327, 2013 WL 5942278 at *20. In so concluding, the court noted the sanctity of the parent-child biological connection and recognized that “ ‘[w]hen an unwed [biological] father demonstrates a full commitment to the responsibilities of parenthood by com[ing] forward to participate in the rearing of his child,’ ” the father’s inchoate constitutional right develops into a fundamental right. Id. at 335, at *9 (alteration in original) (quoting Lehr v. Robertson, 463 U.S. 248, 261, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983)). The court explained that the same principle applied to the woman who provided the egg and that, therefore, the woman had a protected fundamental right to be a parent to her child. Because there had been no showing of a compelling government interest to deprive the biological mother of her fundamental right to be a parent, the statute was unconstitutional as applied.

We acknowledge the Florida Supreme Court’s emphasis on the protection of a biological parent’s right to parent their child where that parent has demonstrated “ ‘a full commitment to the responsibilities of parenthood.’ ” Id. at 335, at *9 (quoting Lehr, 463 U.S. at 261, 103 S.Ct. 2985). And it is clear that C.G. demonstrated such a commitment in this case. However, the facts in T.M.H. are not the facts in this case. The holding in T.M.H. was based on a narrow interpretation of chapter 742 as applied to the conception of a child between two unmarried women and the use of one woman’s eggs to impregnate her partner. That situation is not present in this case. And this case involves a factor that T.M.H. does not: the child was born into a legally intact marriage. Thus, T.M.H. does not control the disposition here.

Greenfield concerned a minor’s standing to maintain a wrongful death action pursuant to chapter 768, Florida Statutes. The issue in that case was framed as whether a survivor’s claim could be brought on behalf of a child who was alleged to be the decedent’s biological child but whose biological mother had been married to another man at the time of the child’s conception and birth. 51 So.3d at 422-23. The Florida Supreme Court looked at the legislative intent behind section 768.18(1), Florida Statutes (2005), and found that the legislature intended for the statute to be liberally construed to shift losses from the survivors to the wrongdoer. Id. at 426. Finding that a formal determination of paternity under chapter 742 was not required for purposes of maintaining a wrongful death action, the court ultimately held that “the biological child of a man not married to the mother may claim survivor damages in a wrongful death action so long as it is established that the decedent is the biological parent and that he acknowledged responsibility for support.” Id. at 427.

But as with T.M.H., the facts in Greenfield are not the facts of this case. This is not a wrongful death action brought pursuant to chapter 768. Rather, this is simply a case wherein the biological mother— while married to her husband — became pregnant by another man and wherein both fathers claim parental rights to the child.

The fact that C.G.’s DNA test results established that he was H.G.-R.’s biological father is “legally insignificant” for purposes of establishing parental rights. See Slowinski v. Sweeney, 117 So.3d 73, 78 (Fla. 1st DCA 2013). “The Florida Supreme Court has defined the ‘legal father’ as the man to whom the mother was married when the child was born and whose name appears on the birth certifícate.... ” Id. (citing Dep’t of Health & Rehabilitative Servs. v. Privette, 617 So.2d 305, 307 (Fla.1993)). “Florida does not recognize ‘dual fathership’ [and, therefore] [o]nly one man may be designated the child’s ‘legal father’ (with the rights and responsibilities thereof) at any given time.” Id. (citing R.H.B. v. J.B.W., 826 So.2d 346, 350 (Fla. 2d DCA 2002), and G.F.C. v. S.G., 686 So.2d 1382 (Fla. 5th DCA 1997)).

In G.F.C., the court was tasked with deciding whether a trial court properly dismissed a biological father’s petition to establish paternity where the child was born during the biological mother’s intact marriage to a man who was not the biological father. The court noted that at common law, a child born during an intact marriage was presumed to be the child of the man to whom the biological mother was married and that the common law presumption of legitimacy remained. 686 So.2d at 1384 (citing Privette, 617 So.2d at 307). The court noted that section 742.10 provided the proper procedure for determining paternity for “children bom out of wedlock ” and that section 742.011 provided that paternity proceedings could be initiated only where paternity had not already been established “by law or otherwise.” Id. at 1385 (quoting §§ 742.011, 742.10). The court explained that “[p]a-ternity would ‘otherwise’ be established when a child is born to an intact marriage and recognized by the husband and the mother as being their child.” Id. Thus, according to the court, “Chapter 742 does not afford [a biological father] the statutory right to sue for paternity [where] the child in question ... was not born ‘out of wedlock’ and the paternity of the child had been ‘otherwise’ established.” Id.

Similarly here, H.G.-R. was born during the biological mother’s intact marriage to J.R. Although the biological mother and J.R. were separated at the time of the final hearing, they were still married. And pri- or to the January 2009 agreement, the birth certificate reflected that J.R. was H.G.-R.’s father. Consequently, the child was not born out of wedlock and paternity had been otherwise established. Thus, the presumption of legitimacy applied in this case. We acknowledge that the birth certificate was amended to reflect that C.G. was H.G.-R.’s father pursuant to the January 2009 agreement. However, J.R. was not a formal party to that agreement, he was not represented by counsel during the signing of the agreement, and he was not asked whether he agreed with the terms. Rather, J.R. testified that he signed the agreement because he “felt backed into a corner” and that he believed that it was the only way he could continue to have visitation with H.G.-R.

This is not a case where either the biological father or the legal father has abandoned the child. Nor is this a case where either father failed to demonstrate a strong desire to be a part of the child’s life or even the ability to care for the child. Rather, this is one of those cases presenting the unfortunate circumstance of a child who was born into a legally intact marriage but who was conceived as the result of an extramarital affair. The consequence of that circumstance is that the third party, here C.G., has an interest in that child which is adverse to the legal father, here J.R. We are cognizant of the gravity of our decision and the legal ramification that it has on C.G.’s and H.G.-R.’s relationship. However, under the facts of this case, there is simply no support in Florida law for the proposition that H.G.R. is entitled to have two legally recognized fathers. Because similar circumstances could arise in other cases, the legislature may choose to readdress the issue of a biological father’s right to establish paternity where the child is conceived and born during an intact marriage to another man. But under the current state of the law, we are constrained to affirm the trial court’s order vacating the February 2009 order approving the original paternity and support agreement.

Affirmed.

KELLY and SLEET, JJ., Concur.

      . C.G.'s affair with the biological mother had already been discovered by J.R. prior to H.G.R.’s conception. J.R. confronted C.G. about the affair, and C.G. agreed to end it. However, the affair continued until May 2007.

      . At some later point in time, J.R. began a relationship with another woman. At the time of the March 2012 final hearing, J.R.’s girlfriend and her son were living with J.R., H.G.-R., and J.R.’s other children.

      . This was the second GAL appointed in the case. The first GAL was involved in making the recommendation about whether the DNA test should be conducted.

      . At the March 2012 final hearing, the biological mother also expressed her desire to have H.G.-R. remain with J.R.

      . In R.H.B., this court dealt with the issue of whether a biological father’s due process rights were violated when a temporary child support order was entered against him without proper notice. 826 So.2d at 347. The child in that case was conceived and born at a time when the biological mother was married to a man, P.W., who was not the biological father. Id. In fact, at the time of appeal, the biological mother and P.W. were still married and maintained a traditional family relationship. Id. On those facts, we concluded that "P.W. is the legal father of this child." Id. Although the case was decided on tire due process issue, we discussed the history of case law pertaining to "quasi-marital children,” those children who are born during an intact marriage, but who have a third-party as one of their biological parents. See id. at 348-50. We noted that the Fifth District had previously held that "there is no such thing as 'dual fathership,' ” and we explained that the common theme in the case law was that the emphasis was on the child’s best interest, especially "the child’s interest in legitimacy and stability.” Id. at 350 (citing Achumba v. Neustein, 793 So.2d 1013 (Fla. 5th DCA 2001), disapproved on other grounds by Greenfield, 51 So.3d at 422; G.F.C., 686 So.2d 1382).

      . Privette dealt with the issue of whether a putative father could be ordered to submit to a blood test for purposes of establishing his child support obligation, an issue that is not relevant to this case. However, Privette has been widely cited on the issue of the presumption of legitimacy that arises when a child is born during an intact marriage and the substantial burden that a biological father has in overcoming such a presumption. We note that chapter 742 now permits the presumption to be rebutted. See P.G., 75 So.3d at 782-83 (discussing statutory change).

      . We acknowledge that there was also record evidence that at the time of signing the agreement, J.R. agreed that he had not been coerced and that he was signing the agreement freely and voluntarily. However, this does not take away from the facts that he was not a formal party to the agreement and that he was not asked if he agreed with the terms.


source: Caselaw Access Project

author: BENTON, J.

license: Public Domain

text:
    INDEMNITY INSURANCE CORP. OF DC., Appellant, v. Leilani CAYLAO, an individual and Coast Entertainment, LLC, a Florida Company, Appellees.
    No. 1D12-5733.
    District Court of Appeal of Florida, First District.
    Feb. 4, 2014.
    Tracy L. Wenzel and Hilary D. Wilson of Heekin, Malin & Wenzel, P.A., Jacksonville, for Appellant.
    Donald Metcalf of East Coast Law Group, Jacksonville, for Appellee Leilani Caylao.
   BENTON, J.

Indemnity Insurance Corporation of DC (Indemnity), the defendant in garnishment proceedings below, appeals a final judgment of garnishment awarding Leilani Caylao $714,116.44, the amount of the default judgment and costs award she had obtained against Coast Entertainment, LLC (Coast). We reverse and remand for further proceedings.

Ms. Caylao alleged a Coast employee injured her on August 14, 2010, in an altercation at a club Coast owned. After her counsel wrote Coast about her assault and battery claim, Coast’s insurance agent sent a copy of the claim letter to Indemnity on October 13, 2010. Coast had general liability insurance under an Indemnity policy which was in effect at the time of the incident. Between October 13, 2010 and March 8, 2011, Indemnity investigated events surrounding the incident, then notified Ms. Caylao’s attorney it had concluded that Coast had no liability and that it was denying the claim. According to Ms. Caylao’s counsel, Indemnity’s letter closed with a request that Ms. Caylao confirm in writing that she was not filing a lawsuit, but he did not do so because he had “always intended on filing a lawsuit.”

On December 29, 2011, Ms. Caylao did file suit against Coast, without notifying Indemnity or its counsel. Coast did not answer or otherwise respond to the complaint she served, and the clerk of the court entered a default against Coast on February 6, 2012. On March 2, 2012, Ms. Caylao moved for entry of a default final judgment against Coast, submitting her affidavit itemizing damages in the amount of $713,670.44. The trial court entered a default final judgment in this amount on April 10, 2012.

Initiating the proceedings which gave rise to the present appeal, Ms. Caylao then moved for a writ of garnishment against Indemnity for the amount of the judgment plus costs, a total of $714,116.44. An alternative writ issued, a copy of which Ms. Caylao (through counsel) forwarded to Indemnity, which received it on May 8, 2012. Indemnity took the position that Coast had breached policy conditions requiring Coast to notify Indemnity in the event of a lawsuit and to forward suit papers “as soon as practicable.” Indemnity asserted Coast thereby forfeited coverage, and elected not to represent Coast in an effort to set the judgment aside.

Instead, Indemnity wrote Coast saying: “As a result of your actions and inactions as outlined above, [Indemnity] is hereby expressly denying any coverage for, or duties owed in connection with the alleged incident, including but not limited to any duty to indemnify, defend or to incur any expenses as a result of the incident.” Indemnity answered Ms. Caylao’s writ on May 29, 2012, again disclaiming any obligation to Coast or Ms. Caylao, based on Coast’s breach of policy conditions. Indemnity asserted Coast’s breach of these duties caused judgment to be entered “in the amount of $714,116.44 in what was a defensible lawsuit,” and that Indemnity was “irrevocably prejudiced” on account of Coast’s breach.

The general liability conditions in the Indemnity policy insuring Coast unambiguously required Coast to notify Indemnity of any lawsuit, providing in relevant part:

SECTION IV — COMMERCIAL GENERAL LIABILITY CONDITIONS
2. Duties in The Event Of Occurrence, Offense, Claim Or Suit
a. You must see to it that we are notified as soon as practicable of an “occurrence” or an offense which may result in a claim....
b. If a claim is made or “suit” is brought against any insured, you must:
(1) Immediately record the specifics of the claim or “suit” and the date received; and
(2) Notify us as soon as practicable. You must see to it that we receive written notice of the claim or “suit” as soon as practicable.
c. You and any other involved insured must:
(1) Immediately send us copies of any demands, notices, summonses or legal papers received in connection with the claim or “suit.”...

The trial court found that Indemnity did not get timely notice of Ms. Caylao’s lawsuit, as required by the policy, and that Coast never forwarded suit papers to Indemnity.

The trial court rejected, however, Indemnity’s argument that these breaches relieved Indemnity of the obligation to pay Ms. Caylao’s judgment against Coast. The trial court reasoned that, in order to be excused from contractual obligations based on an insured’s failure to cooperate, an insurer must demonstrate that it exercised due diligence and good faith in trying to bring about the insured’s cooperation, once the insured notified it of the claim. The trial court concluded that Indemnity was “unable to show that it exercised due diligence and good faith in trying to bring about its insured’s cooperation” because the “record shows” that Indemnity “never had a confirmation that a lawsuit would not be filed and never contacted [Ms. Cay-lao], whether through her counsel or otherwise, and did not do anything else to bring about the cooperation of its insured.” On this basis, the trial court denied the motion to dissolve the writ of garnishment.

But there was no evidentiary hearing and therefore no evidentiary support for the trial court’s factual conclusions that Indemnity failed to exercise due diligence and did. nothing to bring about Coast’s cooperation. See generally Cont’l Cas. Co. v. City of Jacksonville, 550 F.Supp.2d 1312, 1340 (M.D.Fla.2007) (noting that where insurer offered to defend the City of Jacksonville subject to a reservation of rights, the insurer exercised due diligence and good faith in trying to bring about the insured’s cooperation, when it took steps to ensure the City knew it was bound by the conditions of the insurance policy, by instructing the City to notify it if a suit was filed so that' it could “re-evaluate its position and determine whether it owe[d] a duty of defense with respect to a claim”); First Am. Title Ins. Co. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 695 So.2d 475, 477 (Fla. 3d DCA 1997) (concluding that, when insurer denied the claims by asserting a policy exclusion, but also instructed the insured to notify the insurer of any lawsuit filed so that it could reevaluate its position to determine whether it owed a duty of defense based on the allegations of the complaint, the insured was not free to enter into a settlement independently without notification to or consent of the insurer, and the “insured’s failure to comply with the relevant policy provisions relieved the insurer of its obligations under the policy”).

Although Indemnity’s letter did deny coverage, it did not do so until after default judgment had already been entered against Coast. Cf. Philadelphia Indem. Ins. Co. v. Kohne, 181 Fed.Appx. 888, 892 (11th Cir.2006) (“[Ujnequivocal denials of coverage such as those [the insurer] made here forfeit an insurer’s right to invoke cooperation conditions against its insured. Had [the insurer] made some effort to ensure that [the driver] knew he was still bound by the policy’s conditions, then a question of fact might remain about whether [the insurer’s] efforts were sufficiently diligent.”).

In the present case, conditions precedent to coverage were met when Coast notified Indemnity of the occurrence and of the claim, in forwarding Ms. Caylao’s counsel’s letter. Coast’s subsequent failure to comply with the provisions of the policy requiring it to notify Indemnity that suit had been filed and to send copies of legal papers received in connection with the lawsuit was, to be sure, a breach of Coast’s obligations under its contract of insurance with Indemnity. “Cases involving an insured’s notice of occurrence, notice of claim, or notice of suit are governed by the fundamental principle of contract law that a material breach by one contracting party excuses the performance by the other party and that an immaterial breach does not.” 14 Steven Plitt Et Al, Couch on Insurance § 199.81 (3d ed. 2012). The question is whether Coast’s breach justified Indemnity’s repudiation of its obligations under the policy or whether Indemnity’s repudiation was itself a breach.

Indemnity had the burden to show that it was Coast’s breach that resulted in the existence of the judgment debt, not only when the default judgment was entered but also when Ms. Caylao sought to collect. See Ramos v. Nw. Mut. Ins. Co., 336 So.2d 71, 75 (Fla.1976); BellSouth Telecomms., Inc. v. Church & Tower of Fla., Inc., 930 So.2d 668, 671 (Fla. 3d DCA 2006) (“[A]n insured’s violation of a notice requirement [by failing to timely notify the insurer of the lawsuit] does not relieve the insurer of its contractual obligation to defend when no prejudice is shown.”); Nationwide Mut. Fire Ins. Co. v. Beville, 825 So.2d 999, 1003-04 (Fla. 4th DCA 2002) (stating that while it “is true the policy notice provision requires that in the event of suit the insured must provide the carrier with written notice ‘as soon as practicable,’ ” the insured’s violation of the notice provision by failing to send the suit papers to the carrier for six months did not allow the carrier to avoid liability for the expenses of defense during that period in part because it was “clear that the carrier can point to no prejudice from the insured’s failure to send the suit papers earlier”).

Coast’s allowing entry of judgment against it in the amount of $713,670.44, without notifying Indemnity of a defensible suit, would materially prejudice Indemnity, and preclude recovery against Indemnity, unless Indemnity unjustifiably refused to file and pursue a viable motion to set the judgment against Coast aside. But Indemnity (which had a contractual right to Coast’s cooperation in filing such a motion) had an obligation to file a motion to set aside the judgment, if the original lawsuit was defensible, and grounds to set aside the judgment existed. In that event, Coast’s breach would not have excused or discharged performance by Indemnity, to and including filing a motion on behalf of Coast to set aside Ms. Caylao’s judgment against Coast. See, e.g., Allstate Floridian Ins. Co. v. Farmer, 104 So.3d 1242, 1250 (Fla. 5th DCA 2012) (concluding that because the jury found the insurer was not prejudiced by the insured’s failure to submit a sworn proof of loss form, “there was no material breach of the contract”); Burgess v. Am. Fid. Fire Ins. Co., 107 Mich. App. 625, 310 N.W.2d 23, 25 (1981) (“To have been deprived of an opportunity to defend, in the case at bar, may or may not have prejudiced the rights of the insurance carrier.... [Sjuch prejudice does not become material where the carrier, upon notice, does not act or properly act to protect its interest and/or that of its insured.”); 13 Steven Plitt, supra § 193:70 (noting that “prejudice in the context of liability insurance most often turns on the degree to which the insurer has been hampered in preparing and/or conducting a defense of the insured, or the related issue of negotiating and settling with the third-party claimant” and liability insurers have failed to prove they were prejudiced by lack of timely notice where the “insurer could set aside the default judgment and had significant postjudgement [sic] control over proceedings”). If Ms. Caylao cannot show on remand that grounds existed to set the judgment against Coast aside, she cannot prevail.

But Indemnity’s duty to defend Coast extended to moving to set aside Ms. Cay-lao’s judgment against Coast, if that was feasible. Compare Alabama Farm Bureau Mut. Cas. Ins. Co. v. Harris, 197 So.2d 567, 570 (Fla. 3d DCA 1967) (concluding that where the insurer was properly notified of the accident and had the opportunity to make an -investigation, the breach, if any, based on the insurer’s not receiving notice of the suit until after entry of default “was not material and did not foreclose any rights” of the insurer when the injured party’s lawyer offered to have the default set aside if the insurer would defend and the insurer refused the offer). Cf. Thomas v. W. World Ins. Co., 343 So.2d 1298, 1303 (Fla. 2d DCA 1977) (noting “it is black-letter contract law that a party suffering a breach is obligated to take all reasonable means to protect himself and mitigate his damages”).

Because the trial court took no evidence regarding whether Indemnity was under an obligation to file and pursue a motion to set aside the default judgment, we reverse for an evidentiary hearing on the question. See Thyssen, Inc. v. NOBILITY MV, 421 F.3d 295, 303 (5th Cir.2005) (noting that “entry of a default judgment is a strong starting basis for a claim of prejudice,” the “insurer’s loss of opportunity to litigate the action weighs in favor of finding prejudice,” and “[i]f damages have been tried and found, this also weighs in favor of prejudice,” and that while “[n]o case has required procedural exhaustion by an insurer, such as appealing the default judgment or seeking to have it set aside, before a showing of prejudice can be made,” this “might weigh in favor of lack of prejudice”).

Reversed and remanded.

LEWIS, C.J. and WETHERELL, J., concur.

      . In an affidavit, Scott Wessing, Vice President of Claims for Indemnity, averred that during the investigation period, Indemnity spoke with Ms. Caylao's attorney, its insured, Coast employees, and independent witnesses, and also obtained "police reports and the like.”

      . The complaint also named as a defendant the Coast employee who allegedly battered Ms. Caylao. When the employee filed an answer denying the allegations, he was voluntarily dismissed from the action.

      . Ms. Caylao’s affidavit indicated total medical expenses incurred were $20,852.64 (with no supporting documentation). She stated that her future medical treatment based on "ongoing restrictions, pain and discomfort” would be $5,000 per year (with no supporting medical evidence and no description of medical problems). She stated her life expectancy was 45.72 years according to the Social Security Administration’s Actuarial Life Table. She therefore calculated her "lifetime medical expenses” would total $228,600 ($5,000 per year multiplied by 45.72 years, with no reduction to present value). She stated she had suffered past noneconomic damages of $15,000 and that she reasonably expected future noneconomic damages of $450,000.

      .The writ issued on April 17, 2012. As Indemnity's putative appointed agent, the Florida Secretary of State accepted the writ on April 24, 2012.

      . Mr. Wessing’s affidavit supports the trial court's finding that Indemnity had no notice of Ms. Caylao’s suit until her counsel forwarded the writ of garnishment. This fact does not seem to be in dispute. Indemnity cannot be said to have disavowed its obligation to defend Coast, in the event Ms. Caylao filed suit, simply because it concluded, after a five-month investigation, that Coast was not liable for the damages she claimed. Neither Coast nor Ms. Caylao alleges that Indemnity took any action that would give Coast reason to believe it had been released from its obligation to notify Indemnity in the event of suit.

      . See, e.g., Scottsdale Ins. Co. v. Bieber & Assocs., Inc., 105 Fed.Appx. 340, 343-44 (3d Cir.2004) ("[T]he plain language of the policy!] contains no language to indicate that compliance with subsection 'a' releases an insured from the duty to comply with subsection ‘b’. Similarly, although the insured’s duties to the insurer are the same whether a claim is brought or suit is filed, use of the disjunctive alone cannot fairly be read as a release from any future duty to provide notice of a lawsuit where notice of a claim has already been given. This reading of the policy is bolstered by subsection 'c' ... which specifically and unequivocally imposes a duty on the insured to assist the insurer by "[i]m-mediately sending] ... copies of any demands, notices, summonses or legal papers received in connection with the claim or 'suit'.... Continuing notice requirements such as the one reflected in subsections ‘a’ and 'b' acknowledge the fact that, however involved the insurer becomes in defending a claim, the insured remains the party with primary access to the information necessary to do so at each of the three relevant stages. Because the insured is the party in the best position to know when legal action has been taken against it, notifying the insurer of such action is similar in importance to but functionally different from providing notice of an occurrence or claim.... Rather than focusing on [the insurer's] activities before the suit was filed, the court should have determined whether [the insurer] had actual or constructive knowledge of the lawsuit after it had been filed, and whether, therefore, [the insurer] was actually prejudiced by any failure of [the insured] to provide notice in accordance with the policy.”).

      . In contrast, if an insured breaches the policy requirement to provide notice of a claim altogether, prejudice to the insurer is presumed; but the presumption may be rebutted by the insured (or a party standing in the shoes of the insured) showing the insurer was not prejudiced by failure to comply with the condition. See Bankers Ins. Co. v. Macias, 475 So.2d 1216, 1218 (Fla.1985) (“The burden should be on the insured to show lack of prejudice where the insurer has been deprived of the opportunity to investigate the facts and to examine the insured.”). Here indemnity does not dispute that it received notice of Ms. Caylao’s claim and was able to conduct a five-month investigation.

      . See 23 Williston on Contracts § 63:3 (4th ed. 2013) ("Whether a breach is material and important is a question of degree, which must be answered by weighing the consequences of the breach in light of the actual custom of persons in the performance of contracts similar to the one involved in the particular case.”).


text:
    Gregory ANDREWS, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-0355.
    District Court of Appeal of Florida, First District.
    Feb. 4, 2014.

      Nancy A. Daniels, Public Defender, and Courtenay H. Miller, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

Gregory Andrews, who the state alleged was born on January 11, 1963, appeals his conviction for solicitation of a child under the age of sixteen (J.M.) to commit a lewd or lascivious act in violation of section 800.04(6)(a) and (b), Florida Statutes (2012), arguing that the evidence was insufficient to prove the crime. We affirm.

The jury heard evidence of a sleepover at J.M.’s (female) friend’s house (just across the street from her own home) which coincided with an adult party, during which J.M.’s friend’s mother passed out in her bedroom. It was then that appellant called J.M. into the bathroom opening off the bedroom, shutting and locking the door behind her. Inside and alone with J.M., he told her that she was “fine” (and that her mother was “gorgeous”). J.M. testified that that made her uncomfortable, and they both left the bathroom.

Not long afterwards, however, Mr. Andrews asked J.M. to go into the bathroom with him a second time. She complied, she testified, because she thought she would be sent home otherwise. Again alone with her in the bathroom, he asked her for a “favor,” and she agreed before hearing the specifics. She explained, “[I]n the back of my mind I didn’t want to say no because if I refused to something I would feel like he would have the chance to either rape me or kill me.”

The favor he requested was that she use her cellular telephone, which was also a camera, to take a nude photograph of herself “right there,” in exchange for $250. Throughout this encounter, he was “looking [her] up and down” and rubbing her leg. When J.M. said she did not have her phone on her person, he told her to go get it. She then left the bathroom, grabbed the phone, ran home and recounted events to her mother, who called the police.

Appellant argues that taking a nude photograph, particularly if the photographer is also the subject, need not be a lewd or lascivious act. Evidence that he requested a nude photograph, he maintains, was insufficient to prove solicitation of a lewd or lascivious act or any other violation of law. He contends, in short, that there existed insufficient evidence for the jury to conclude that he acted with lewd or lascivious intent.

As pointed out in Chesebrough v. State, 255 So.2d 675, 677-78 (Fla.1971), the Legislature has not defined the terms “lewd” and “lascivious.” But “[gjenerally speaking, [ ] these words, when used in a statute to define an offense, usually have the same meaning, that is, an unlawful indulgence in lust, eager for sexual indulgence.” Id. at 678. See Pamblanco v. State, 111 So.3d 249, 251 (Fla. 5th DCA 2013) (apparently adopting state’s argument that “solicitation, like attempt, is a crime which focuses on the defendant’s intent”); State v. Brabson, 7 So.3d 1119, 1124 (Fla. 2d DCA 2008) (stating that our “Supreme Court’s holding in Schmitt[ v. State, 590 So.2d 404 (Fla.1991) ] appears to be entirely consistent with the ... view that the lewdness requirement may be satisfied by the defendant’s intent”). Which acts or conduct is lewd or lascivious is a factual issue to be decided on a case-by-case basis. See Chesebrough, at 679.

Appellant’s reliance on Lockwood v. State, 588 So.2d 57 (Fla. 4th DCA 1991) is unavailing. That case involved section 827.071(5), Florida Statutes (1989), which prohibited possession of a motion picture depicting sexual conduct by a child, the term “sexual conduct” being specifically defined in section 827.071(1)(g). The Lockwood court concluded that footage of a 16-year-old girl, recorded by a camera hidden in her bathroom, did not meet the statutory definition, as a matter of law, holding that the child’s “undressing, showering, toweling herself dry, and performing other acts of feminine hygiene” did not amount to “sexual conduct” within the meaning of section 827.071(l)(g). Id. at 57-58.

We accept the premise that not all nude photographs are lewd and lascivious, and that some may indeed enjoy First Amendment protection. See Osborne v. Ohio, 495 U.S. 103, 112, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990) (“We have stated that depictions of nudity, without more, constitute protected expression.”); New York v. Ferber, 458 U.S. 747, 773, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) (hypothesizing that protected depictions of child nudity could be found in materials “ranging from medical textbooks to pictorials in the National Geographic”); Erznoznik v. City of Jacksonville, 422 U.S. 205, 213, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975) (“Clearly all nudity cannot be deemed obscene even as to minors.”); Schmitt v. State, 590 So.2d 404, 409 (Fla.1991) (“[T]he law is now well settled that simple non-obscene nudity in photographs or films is a protected form of expression under the first amendment.”) (footnote omitted).

But the precise photograph Mr. Andrews envisioned is beside the point under section 800.04. In the present case, “the totality of the circumstances was such that the jury could properly have concluded that defendant’s conduct violated the statute.” Egal v. State, 469 So.2d 196, 198 (Fla. 2d DCA 1985). Contrast Payne v. State, 463 So.2d 271, 271-272 (Fla. 2d DCA 1984) (holding the act of urinating in public does not by itself constitute a lewd or lascivious act). We reject appellant’s contention that the state had to prove that the nude photo he asked for would be pornographic, in order to prove that his asking J.M. to disrobe for him in the bathroom was unlawful under section 800.04(6)(a) & (b), Florida Statutes (2012).

Uncomfortable after the first bathroom encounter, she testified, because a man was saying “a whole bunch of stuff’ to her that, she said she felt, should have been directed to “a grown woman,” J.M.’s testimony painted a picture for the jury. The jury evidently credited her testimony that Mr. Andrews asked her to take a nude photograph on the spot, in the bathroom that only the two of them shared, while rubbing her leg and looking her “up and down.” He might as well have said, “Take your clothes off.”

In the circumstances, appellant’s proposition allowed the jury to find, as they did, lewd and lascivious intent, in no way dependent on any imagined image. Using their “common sense in deciding which is the best evidence, and which evidence should not be relied upon in considering” its verdict, Fla. Std. Jury Instr. (Crim.) 3.9, the jury was entitled to conclude, based on the evidence adduced, that Mr. Andrews had more than photography in mind.

Affirmed.

LEWIS, C.J. and SWANSON, J„ concur.

      . She testified she had seen a knife in the back pocket of his pants.

      . Appellant contended in his initial brief that "[i]n order to establish a picture of a nude minor to be unlawful, the state would have to prove it contained an actual lewd exhibition of genitals.”


author: PER CURIAM.

text:
    Robert Michael ARDIS, Petitioner, v. Sarah Harper ARDIS, Respondent.
    No. 1D13-5509.
    District Court of Appeal of Florida, First District.
    Feb. 4, 2014.

      Robert Michael Ardis, pro se, Petitioner.
    No appearance for Respondent.
   ORDER IMPOSING SANCTIONS

PER CURIAM.

The issue before this court is whether to impose sanctions against Robert Michael Ardis (“Ardis”), a pro se litigant, for abuse of the legal process. See Fla. R. App. P. 9.410 (providing that courts may impose sanctions for the filing of any proceeding, motion, brief, or other paper that is frivolous or in bad faith). Due to his incessant meritless filings in this court, Ardis was directed to show cause why he should not be barred from future pro se appearances in this court. Ardis filed a response to the order to show cause.

After reviewing Ardis’s response, we conclude that Ardis has failed to set forth a legal basis that would preclude the imposition of sanctions. Ardis has engaged in a pattern of filing voluminous, repetitive and meritless pleadings, motions or other requests for relief in this court. Upon an exhaustive review of Ardis’s numerous filings in this court, we conclude that Ardis has abused the processes of the court. Accordingly, in order to preserve the right of access to the courts for all litigants in this district and to promote the interests of justice, we hereby prohibit Ardis from proceeding pro se in any matter before this court.

Analysis

Courts may, upon a demonstration of egregious abuse of judicial process, restrict parties from filing pro se pleadings with the court. State v. Spencer, 751 So.2d 47, 47 (Fla.1999). “It is well-settled that courts have the inherent authority and duty to limit abuses of judicial process by pro se litigants.” Golden v. Buss, 60 So.3d 461 (Fla. 1st DCA 2011); see Jackson v. Fla. Dep’t of Corr., 790 So.2d 398, 400 (Fla.2001) (noting that the supreme court has inherent power to regulate and sanction a disruptive litigant); McCut-cheon v. State, 44 So.3d 156, 162 (Fla. 4th DCA 2010) (concluding that the litigant’s appeals were frivolous, malicious, and not filed in good faith).

This court does not impose sanctions against pro se litigants lightly. However, a citizen abuses the right to pro se access by filing repetitious and frivolous pleadings, thereby diminishing the ability of the courts to devote their finite resources to the consideration of legitimate claims. See Rivera v. State, 728 So.2d 1165, 1165 (Fla.1998); Attwood v. Singletary, 661 So.2d 1216, 1216 (Fla.1995). In the majority of cases where this court has imposed sanctions against a pro se party, the litigant has made frivolous and repeated challenges to the same criminal judgment and sentence. However, this court has also imposed sanctions in cases involving parole revocation, probate actions, civil matters and workers’ compensation claims, where pro se litigants have demonstrated a pattern of filing baseless papers, pleadings and actions in this court.

The petitioner in this case, Robert Michael Ardis, has filed numerous pro se petitions and appeals with regard to several underlying cases pending in the circuit court in and for Escambia County: one case involves an injunction against domestic violence, another concerns Ardis’s termination of employment by Pensacola State College, and another involves a dissolution-of-marriage action. Ardis has not been successful in obtaining relief in any case or petition that he has presented to this court. However, it is not only the volume of cases filed, but Ardis’s excessive and frivolous motion practice in the pending cases which has become a burden on this court.

For example, after the appeal concerning Ardis’s termination from employment from Pensacola State College, case number 1D12-2638, was affirmed without comment in Ardis v. Pensacola State College, 109 So.3d 782 (Fla. 1st DCA 2013) (table), Ardis filed multiple unauthorized motions. This court directed that Ardis not file any further pleadings unless directed to do so, in order for this court to sort out all of his post-opinion filings. When Ardis continued filing motions in violation of this court’s prior order, this court issued a show cause order on sanctions. This court struck several post-opinion filings as a sanction for his excessive and frivolous motion practice in that case and cautioned him against any further motion filings related to that case. Seven months later and after the term of court had ended, Ardis filed an untimely motion to recall mandate. The court issued an opinion imposing sanctions to prohibit Ardis from filing any further pro se filings in that case and in any other case related to his termination from employment at Pensacola State College. See Ardis v. Pensacola State College, 128 So.3d 260 (Fla. 1st DCA 2013).

In the case involving Ardis’s dissolution of marriage, Ardis v. Ardis, case number 1D12-5472, Ardis filed eight successive motions to stay a non-final order on appeal. Each motion for stay was denied, yet Ardis continued to file motions for stay of the same order. Upon the filing of the seventh motion to stay, the court issued a show cause order on sanctions. The order was discharged, but Ardis was warned that sanctions could be imposed if he continued to engage in excessive motion practice. Five days later, Ardis filed an eighth motion for a stay. Another show cause order on sanctions issued, and Ardis was warned that he could be barred from proceeding pro se if he continued to file frivolous motions in that case.

In Ardis v. Ardis, case number 1D13-4489, Ardis filed a pro se petition for writ of habeas corpus to challenge his detention based on a finding of criminal contempt in his dissolution action. Because Ardis was represented by counsel in an appeal from the order on criminal contempt pending in Ardis v. Ardis, case number 1D13-4463, this court dismissed the pro se petition as unauthorized pursuant to Logan v. State, 846 So.2d 472 (Fla.2003) (holding that generally, a criminal defendant has no right to partially represent himself and, at the same time, be partially represented by counsel). In addition, based on Ardis’s unsuccessful requests for relief in multiple cases in this court, his excessive motion practice and his failure to heed prior cautions about his frivolous pro se filings, this court directed Ardis to show cause why he should not be prohibited from future pro se filings. See Spencer, 751 So.2d at 48 (recognizing the potential for abuse of the right to pro se access to the courts, but declaring it is important for courts to first provide notice and an opportunity to respond before issuing sanctions against a litigant). Ardis then filed a motion to disqualify all 15 members of this court based on prior adverse rulings. It is well-established that adverse judicial rulings may not serve as a basis for disqualification. See Jackson v. State, 599 So.2d 103, 107 (Fla.1992); Gilliam v. State, 582 So.2d 610, 611 (Fla.1991); Tafero v. State, 403 So.2d 355, 361 (Fla.1981); Dep’t of Agric. & Consumer Serv. v. Broward County, 810 So.2d 1056 (Fla. 1st DCA 2002). The show cause order on sanctions is pending in that case.

In Ardis v. Ardis, case number 1D13-2177, Ardis sought a writ of prohibition to review an order which denied a motion to disqualify the successor judge in his dissolution action. Ardis had filed multiple motions to disqualify the original trial judge. When the original trial judge granted Ar-dis’s fifth motion to disqualify, a successor judge was appointed. Ardis then filed multiple motions to disqualify the successor judge. The petition was denied on the merits without comment.

In Ardis v. Ardis, case number 1D13-4293, Ardis filed a pro se petition for writ of prohibition in the dissolution action to review an order which denied a motion to disqualify the successor judge. That petition was dismissed for failure to comply with an order of this court.

The petition at issue in this case sought a writ of prohibition to review an order which denied Ardis’s twelfth motion to disqualify the successor judge. In the petition, Ardis repeatedly expresses his hatred for the successor judge and complains that the trial judge has not granted the relief sought by Ardis. The fact that a judge has made prior adverse rulings against a litigant is not a legally sufficient basis to support disqualification. See, e.g., Chamberlain v. State, 881 So.2d 1087 (Fla.2004). Likewise, the fact that a judge may have familiarity with the parties and evidence from earlier proceedings does not warrant disqualification. See K.H. v. State, Dep’t of Health & Rehab. Servs., 527 So.2d 230 (Fla. 1st DCA 1988). Moreover, the fact that a judge has previously heard the evidence and may have formed an opinion based on that evidence generally does not establish a legally sufficient basis for disqualification. See, e.g., Williams v. State, 987 So.2d 1 (Fla.2008).

Normally, whether a motion to disqualify the trial judge is legally suffi-dent requires a determination as to whether the alleged facts would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial. See Fla. R. Jud. Admin. 2.330(d)(1); Zuchel v. State, 824 So.2d 1044, 1046 (Fla. 4th DCA 2002). In determining the legal sufficiency of such a motion, the court must also determine if the facts alleged, which must be taken as true, would prompt a reasonably prudent person to fear that he or she could not receive a fair and impartial trial. See Hayslip v. Douglas, 400 So.2d 553, 556 (Fla. 4th DCA 1981). However, a successive motion to disqualify a trial judge is evaluated under a higher standard. Florida Rule of Judicial Administration 2.330(g) provides:

If a judge has been previously disqualified on motion for alleged prejudice or partiality under subdivision (d)(1), a successor judge shall not be disqualified based on a successive motion by the same party unless the successor judge rules that he or she is in fact not fair or impartial in the case. Such a successor judge may rule on the truth of the facts alleged in support of the motion.

The Florida Supreme Court has held that a “more stringent” standard of review applies when evaluating an order denying a successive motion: “whether the record clearly refutes the successor judge’s decision to deny the motion.” Kokal v. State, 901 So.2d 766, 774 (Fla.2005). The denial of a motion to disqualify a successor judge is reviewed for abuse of discretion, see King v. State, 840 So.2d 1047, 1049 (Fla. 2003), and should only be disturbed if “the record clearly refutes the successor judge’s decision to deny the motion.” Pinfield v. State, 710 So.2d 201, 202 (Fla. 5th DCA 1998); see also Quince v. State, 732 So.2d 1059, 1062 (Fla.1999) (“A court’s ruling on a discretionary matter will be sustained unless no reasonable person would take the view adopted by the court.”). Ar-dis’s motion to disqualify the original trial judge having been granted, the denial of Ardis’s motion to disqualify the successor judge is reviewed by the higher standard. Ardis failed to meet that standard and we denied the petition for writ of prohibition on the merits.

Based on Ardis’s unsuccessful requests for relief in multiple cases in this court, his relentless motion practice and his blatant disregard for the previous admonitions from this court concerning his meritless pro se filings, this court directed Ardis to show cause why he should not be prohibited from future pro se filings. In response, Ardis filed a pleading entitled “Motion of Disgust and Similar Sentiments of Loathing” expressing his displeasure with the rulings of this court. The pleading was treated as a motion for rehearing and denied.

Ardis then filed a response to the show cause order; however, the response does not provide a legal basis to prohibit the imposition of sanctions. Based on our review of Ardis’s appearances before this court, we find that the incessant stream of repetitious and meritless filings by Ardis constitutes an abuse of process and impose an unreasonable burden on the limited resources of this court. We conclude that sanctions are appropriate in accordance with Florida Rule of Appellate Procedure 9.410 and this court’s authority to control its docket. See May v. Barthet, 934 So.2d 1184 (Fla.2006); Lee v. Fla. Dep’t of Corr., 873 So.2d 489 (Fla. 1st DCA 2004). Accordingly, we hold that Robert Michael Ardis is barred from proceeding pro se in any case before this court. The Clerk of the Court is directed not to accept any future filings from Ardis unless they are signed by a member in good standing of The Florida Bar. Ardis shall have thirty days from date of this order to secure the services of counsel, who shall file a notice of appearance, in any other active case before this court where Ardis is currently representing himself. If Ardis fails to secure counsel or if no notice of appearance of counsel is filed within thirty days, the Clerk is directed to dismiss the case.

PETITION DENIED; SANCTIONS IMPOSED.

PADOVANO, ROWE and OSTERHAUS, JJ., concur.

      . See e.g., Baldwin v. State, 104 So.3d 390 (Fla. 1st DCA 2013); Williams v. State, 102 So.3d 669 (Fla. 1st DCA 2012); Ward v. State, 75 So.3d 348 (Fla. 1st DCA 2011); Obojes v. State, 946 So.2d 602 (Fla. 1st DCA 2006).

      . Van Zant v. Fla. Parole Comm'n, 94 So.3d 622 (Fla. 1st DCA 2012).

      . Pflaum v. Pflaum, 974 So.2d 579 (Fla. 1st DCA 2008).

      . Johnson v. Wilbur, 981 So.2d 479 (Fla. 1st DCA 2008).

      . Winford v. Pella Window and Doors, case number 1D13-2847 (September 24, 2013, order imposing sanctions); Glindmeier v. Kaebel Wholesales, case number ID11-5488 (August 7, 2012, order imposing sanctions).

      . In case number ID 10-0014, an appeal from an injunction against domestic violence was affirmed. In case number 1D10-0030, an appeal from an injunction against domestic violence was dismissed for failure to file the initial brief. In case number 1D12-2638, an appeal in the employment case was affirmed without comment. In case numbers ID 12-3242, 1D12-4545 and 1D13-2177, petitions for writs of prohibition in the dissolution action were denied. In case number ID 12-4547, an appeal in the dissolution action was voluntarily dismissed after a show cause order on jurisdiction issued. In case numbers . 1D12-4884 and 1D12-4885, appeals in the dissolution action were dismissed by this court for lack of jurisdiction. In case number 1D12-5472, an appeal in the dissolution action was affirmed without comment. In case number ID 12-5473, an appeal in the dissolution action was dismissed when Ardis failed to file a response to a show cause order on jurisdiction. In case numbers 1D13-1167, 1D13-1168 and 1D13-1169, voluntary dismissals were filed in appeals from the dissolution action. In case number 1D13-4293, a petition for writ of prohibition in the dissolution action was dismissed for failure to comply with an order of this court. In case number 1D13-4489, a petition for writ of habeas corpus was dismissed as unauthorized.

      . In a motion to recall mandate filed in case number 1D12-5472, the non-final appeal in which Ardis had filed eight motions for stay, Ardis attached a pleading he had filed in the U.S. Court of Appeals for the Eleventh Circuit in which he stated that he had been "incensed” by this court’s show cause order on sanctions in this case and, in response, he filed the motion to disqualify all of the judges of this court.

      . In the petition filed in case number ID 13-4293, Ardis expresses contempt for the successor judge, accusing the successor judge of being abusive, spiteful, unethical, vindictive and practicing a "perversion of justice.” Ar-dis also contends that "the office of the state attorney is abusing its authority and being biased toward [Ardis].” Further, Ardis states that he has "made no secret of his disgust and loathing” for counsel for the former wife.

      . In the petition filed in this case, Ardis repeatedly expresses that he "hate[s]” the successor judge, and refers to the successor judge as a "jerk,” a “little tyrant,” and a "dishonorable man.”

      . In that pleading, Ardis asserts his "disgust and loathing” for this court, refers to this court’s decision in the employment cases as "asinine," expresses his belief that he is being "screwed over,” and states that this court is "cowardly,” "an unethical crock,” and has a "blatant pro se bias.”


text:
    Tom SCARBOROUGH, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-0327.
    District Court of Appeal of Florida, First District.
    Feb. 4, 2014.

      Nancy A. Daniels, Public Defender, Steven Seliger, Assistant Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela. Jo Bondi, Attorney General, Lauren L. Brudnicki, Assistant Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appel-lee.
   BENTON, J.

Adjudicated guilty of five offenses related to producing and trafficking in methamphetamine, Tom Scarborough argues two points on direct appeal. As to the contention that the trial court erred in denying his motion to suppress, we affirm without further discussion. But we agree the evidence was insufficient to support the conviction under section 893.149, Florida Statutes (2010), for unlawful possession of acetone for the purpose of manufacturing methamphetamine. Accordingly, we reverse that one conviction and the sentence imposed for it.

“We review de novo the trial court’s denial of a motion for [judgment of acquittal], to determine solely whether the evidence is legally sufficient.” Robinson v. State, 936 So.2d 1164, 1166 (Fla. 1st DCA 2006) (citing Pagan v. State, 830 So.2d 792, 803 (Fla.2002); Jones v. State, 790 So.2d 1194, 1196 (Fla. 1st DCA 2001) (en banc)). “The legal test for determining whether a JOA should be granted is ‘whether after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on appeal, there is substantial, competent evidence to support the verdict and judgment.’ ” Id. (quoting Tibbs v. State, 397 So.2d 1120, 1123 (Fla.1981)). In the present case, the state had the burden of proving, inter alia, that Mr. Scarborough possessed acetone at the time and place alleged. See § 893.149, Fla. Stat. (2010).

The only evidence regarding Mr. Scarborough’s possession of acetone was the testimony of a law enforcement officer that “there was a container in the kitchen that it was used in.” This testimony establishes only that a container was present. The state did not prove what, if anything, was in the container. This testimony was not, therefore, sufficient evidence on which the jury could find, beyond a reasonable doubt, that Mr. Scarborough possessed acetone on the date charged in the information. We reverse the denial of the motion for judgment of acquittal on the charge of unlawful possession of acetone for the purpose of manufacturing methamphetamine and reverse the conviction and sentence for that offense. The judgment of guilt and attendant sentences on the other four charges are affirmed.

Affirmed in part and reversed in part.

LEWIS, C.J. and SWANSON, J., concur.


author: WOLF, J.

text:
    Dustin ELSBERRY, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-6093.
    District Court of Appeal of Florida, First District.
    Feb. 4, 2014.
    Nancy A. Daniels, Public Defender, and Megan Long, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant was convicted and sentenced for using a computer service to solicit a person believed to be a child to engage in unlawful sexual conduct, and for thereafter traveling for the purpose of engaging in unlawful sexual conduct with a person believed to be a child. See § 847.0135(3)(a), (4)(a), Fla. Stat. (2011). Appellant raises three issues on appeal. We affirm as to all issues and briefly discuss one.

Appellant asserts that his convictions for both charges arising out of the same criminal transaction violate double jeopardy. This court previously held that separate convictions for use of a computer service to solicit someone believed to be the parent of a child to engage in unlawful sexual conduct with the child, and thereafter traveling for the purpose of engaging in unlawful sexual conduct with the child, as prohibited by subsections 847.0135(3)(b) and (4)(b), did not violate double jeopardy. See State v. Murphy, 124 So.3d 323, 330-31 (Fla. 1st DCA 2013). We find no meaningful distinction for the purpose of double jeopardy analysis between violations of those subsections and the subsections for which appellant was convicted. We, therefore, find Murphy to be controlling. We do, however, certify conflict with the decisions of Hartley v. State, 129 So.3d 486 (Fla. 4th DCA 2014), and Pinder v. State, 128 So.3d 141 (Fla. 5th DCA 2013).

AFFIRMED.

VAN NORTWICK and CLARK, JJ., concur.


text:
    Billy Joe HOLTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4108.
    District Court of Appeal of Florida, First District.
    Feb. 4, 2014.
    Michael J. Minerva and Seth E. Miller of Innocence Project of Florida, Inc., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jay Kubica, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Billy Joe Holton, who was convicted of burglary with an assault, aggravated assault, sexual battery, kidnapping, and robbery with a deadly weapon, appeals the trial court’s order summarily denying his Motion for Post-Conviction Relief and to Vacate Judgment and Sentence filed pursuant to Florida Rule of Criminal Procedure 3.850, arguing in part that the record does not conclusively refute his claim that the newly discovered DNA evidence that is a match to his co-defendant would probably produce an acquittal on retrial. We agree and, therefore, reverse and remand for an evidentia-ry hearing. See McLin v. State, 827 So.2d 948, 955-57 (Fla.2002) (explaining that in order to affirm a trial court’s summary denial of a rule 3.850 motion based on a newly discovered evidence claim, the claim must either be facially invalid or conclusively refuted by the record, and noting that “ordinarily an evidentiary hearing is required for the trial court to properly determine ... whether the newly discovered evidence is of ‘such nature that it would probably produce an acquittal on retrial’ ”); Brantley v. State, 912 So.2d 342, 343 (Fla. 3d DCA 2005) (reversing the summary denial of a rule 3.850 motion and remanding the case for an evidentiary hearing because “we are obligated to reverse ‘unless the record shows conclusively that the appellant is entitled to no relief ”) (emphasis omitted).

REVERSED and REMANDED for an evidentiary hearing.

LEWIS, C.J., PADOVANO and SWANSON, JJ., concur.


text:
    Telron GILBERT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5575.
    District Court of Appeal of Florida, First District.
    Feb. 4, 2014.
    Telron Gilbert, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the October 27, 2011, order which denied a motion to withdraw plea. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

CLARK, WETHERELL, and RAY, JJ., concur.


author: PER CURIAM. JOHNSON, C.J. WEIMER, J.,

text:
    In re Frederick A. STOLZLE, Jr.
    No. 2013-B-1176.
    Supreme Court of Louisiana.
    Oct. 15, 2013.
    Rehearing Denied Nov. 15, 2013.

      Office of Disciplinary Counsel, Charles Bennett Plattsmier, Chief Disciplinary Counsel, Gregory Lynn Tweed, Deputy Disciplinary Counsel, for Applicant.
    Frederick Andrew Stolzle, Jr., Baton Rouge, for Respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

h This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Frederick A. Stolzle, Jr., an attorney licensed to practice law in Louisiana but currently on interim suspension based upon a joint petition filed by the parties filed in April 2009. In re: Stolzle, 09-0934 (La.4/29/09), 7 So.3d 660.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent’s prior disciplinary history. Respondent was admitted to the practice of law in Louisiana in 1978. In December 1995, respondent was admonished for mishandling his client trust account by commingling personal funds with client funds. In May 2001, respondent was admonished for failing to pay the fees of an expert witness in a legal matter. In 2008, this court accepted a petition for consent discipline and suspended respondent from the practice of law for thirty days, fully deferred, for failing to timely pay a third-party medical provider. In re: Stolzle, 08-1023 (La.6/6/08), 987 So.2d 248.

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

| ^UNDERLYING FACTS

The underlying facts of this matter are not in dispute, having been stipulated to by the parties.

Count I — The Marijuana Possession Matter

In November 2008, respondent was arrested on charges of possession of marijuana and possession of a firearm with a controlled dangerous substance after a deputy constable from the Baton Rouge City Constable’s Office arrived at his place of residence to execute an order of eviction. Although the criminal charges were ultimately dropped, respondent admits that he was intentionally in possession of twelve grams of marijuana at the time of his arrest and that the marijuana was intended for his own personal use.

The ODC alleged respondent’s conduct violated Rule 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer) of the Rules of Professional Conduct.

Count II — The Cuddihy Matter

Geraldine Cuddihy retained respondent to represent her in a personal injury matter arising out of an automobile accident. Ms. Cuddihy’s claim settled in July 2004 and the settlement proceeds were disbursed. Because Ms. Cuddihy was still receiving medical treatment at the time, respondent held $5,000 in previously paid medical payments coverage in his trust account while he attempted to negotiate a reduction of the subrogation claim with Ms. Cuddihy’s insurer. Thereafter, Ms. Cuddihy fired respondent and obtained new counsel. Although the insurer ultimately waived its subrogation claim, respondent did not immediately refund the | .¡proceeds to Ms. Cuddihy, despite her repeated demands. Respondent admits that he knowingly converted these client funds to his own use. In March 2013, respondent made full restitution to Ms. Cuddihy.

The ODC alleged respondent’s conduct violated Rules 1.15(a) (safekeeping property of clients or third persons) and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct.

Count III — The Pinkney Matter

In 2008, Kaisha Pinkney hired respondent to represent her in a personal injury matter. Respondent failed to diligently pursue the claim and allowed the claim to prescribe. Respondent also failed to communicate with Ms. Pinkney concerning the status of her case, including the fact that the claim had prescribed.

The ODC alleged respondent’s conduct violated Rules 1.2 (scope of the representation), 1.8 (failure to act with reasonable diligence and promptness in representing a client), and 1.4 (failure to communicate with a client) of the Rules of Professional Conduct.

Count IV — The Rogers Matter

William Rogers hired respondent to represent him in a personal injury matter. Respondent failed to diligently pursue the claim and allowed the claim to prescribe. Respondent also failed to communicate with Mr. Rogers concerning the status of his case, including the fact that the claim had prescribed.

The ODC alleged respondent’s conduct violated Rules 1.2,1.3, and 1.4 of the Rules of Professional Conduct.

^DISCIPLINARY PROCEEDINGS

In December 2011, the ODC filed four counts of formal charges against respondent, as set forth above. Respondent answered the formal charges and generally admitted the factual allegations set forth therein.

In April 2012, respondent and the ODC entered into a joint stipulation of facts and rule violations. In this document, respondent stipulated to the facts as alleged by the ODC and admitted that he violated the Rules of Professional Conduct as charged. The parties stipulated that respondent acted intentionally in Count I and knowingly in Counts II, III, and IV. The parties stipulated to the following aggravating factors: a prior disciplinary record, multiple offenses, vulnerability of the victim, and substantial experience in the practice of law (admitted 1978). The parties stipulated to the following mitigating factors: a cooperative attitude toward the disciplinary proceedings and remorse.

Hearing Committee Report

The hearing committee conducted a hearing which was limited to the issue of mitigation. After considering the evidence and testimony presented at the hearing, the hearing committee accepted the joint stipulation of facts and rule violations filed by the parties and made the following additional factual findings:

At the hearing, Respondent did not deny the charges, although he offered several explanations as to why the conduct occurred. Prior to November 21, 2008, Mr. Stolzle testified he suffered debilitating back injuries that caused significant pain, and subsequently resulted in his having great difficulty walking. His physical situation impacted his ability to focus, and thus, his earning capacity, which led him to the temptation to take his client’s funds. His use of marijuana and failure to act with due diligence and to communicate with his clients was also the result of his physical difficulties, according to Mr. Stolzle.

IsThe committee determined that respondent violated duties owed to his client, the public, the legal system, and the legal profession. He acted intentionally and with total disregard for his obligations to his clients and his profession. While having great empathy for respondent and the issues regarding his health, the committee did not excuse his conduct insofar as his duty to his clients was concerned. Also, as a Louisiana licensed attorney, respondent knew the possession of marijuana was a violation of the law that he was sworn to uphold.

The committee did not refer to the aggravating factors found in the ABA’s Standards for Imposing Lawyer Sanctions, but instead recognized the following “significant aggravating circumstances”: deliberate violation of the laws of the State of Louisiana, conversion of client funds, failure to act with diligence, and failure to reasonably communicate with clients. In mitigation, the committee recognized respondent’s “health condition and his cooperation with ODC.”

After further considering the court’s pri- or jurisprudence involving similar misconduct and the aggravating circumstances of this case, the committee recommended that respondent be disbarred.

The ODC filed a limited objection to the hearing committee’s report, asserting that it was unclear whether the committee gave full effect to the joint stipulation of facts and rule violations. Respondent argued that the sanction of disbarment recommended by the committee was too harsh.

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee’s factual findings do not appear to be manifestly erroneous, as they are supported by uncontroverted testimony and the joint stipulation of facts and rule violations. | fiHowever, the board disagreed with the committee’s conclusion that respondent’s conduct was intentional in all counts since the parties previously stipulated that his conduct was intentional only in Count I and knowing in the remaining counts.

The board determined that respondent violated duties owed to his client, the public, the legal system, and the legal profession. Respondent’s conduct was knowing in part and intentional in part, and he caused actual harm to Ms. Cuddihy by depriving her of $5,000 for a lengthy period of time. Citing the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the applicable baseline sanction in this matter is disbarment.

In addition to the factors stipulated to by the parties, the board found the following aggravating factors are present: a dishonest or selfish motive and illegal conduct, including that involving the use of controlled substances. The board adopted the following mitigating factors: physical disability and a cooperative attitude toward the proceedings.

In determining an appropriate sanction, the board cited Louisiana State Bar Ass’n v. Hinrichs, 486 So.2d 116 (La.1986), which sets forth general guidelines for evaluating disciplinary cases involving conversion and commingling of funds entrusted to a lawyer. The board also cited In re: Denhollem, 03-0935 (La.6/6/03), 849 So.2d 488, in which the court disbarred an attorney who endorsed seven checks payable to his law firm on behalf of its clients and converted the funds totaling $17,135.97 to his own use. When confronted by one of the firm’s partners, Denhollem made full restitution to the clients whose funds were converted. In imposing disbarment, the court found that Denhollem had acted in bad faith and caused actual damage to the clients and to the law firm. The court also considered several aggravating factors, including a dishonest or selfish motive, a pattern of misconduct, multiple offenses, and substantial experience in the practice of law.

7Considering Hinrichs and Denhollem, and the aggravating factors present, the board determined that the sanction recommended by the committee is appropriate. Accordingly, the board recommended respondent be disbarred. The board also recommended that respondent be assessed with the costs and expenses of this proceeding.

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

DISCUSSION

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

The record of this matter supports the stipulated facts. Based on the parties’ stipulations and the other evidence in the record, respondent has neglected legal matters, failed to communicate with his clients, converted client funds, and failed to properly terminate the representation of his clients. He also committed a criminal offense by possessing marijuana. Based on this misconduct, respondent has violated Rules 1.2, 1.3, 1.4, 1.15(a), 8.4(b), and 8.4(c) of the Rules of Professional Conduct, as stipulated to by the parties.

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

Respondent knowingly and intentionally violated duties owed to his client, the public, the legal system, and the legal profession. His misconduct caused actual harm. The baseline sanction for this type of misconduct is disbarment. The record supports the aggravating and mitigating factors as stipulated to by the parties. In addition, the mitigating factors of personal and emotional problems and physical disability are also present.

In Louisiana State Bar Ass’n v. Hinrichs, 486 So.2d 116 (La.1986), we set forth guidelines for imposing discipline in a conversion case:

In a typical case of disbarment for violation of DR 9-102 [now Rule 1.15], one or more of the following elements are usually present: the lawyer acts in bad faith and intends a result inconsistent with his client’s interest; the lawyer commits forgery or other fraudulent acts in connection with the violation; the magnitude or the duration of the deprivation is extensive; the magnitude of the damage or risk of damage, expense and inconvenience caused the client is great; the lawyer either fails to make full restitution or does so tardily after extended pressure of disciplinary or legal proceedings.
A three year suspension from practice typically results in cases involving similar but less aggravated factors. In such cases the lawyer is guilty of at least a high degree of negligence in causing his client’s funds to be withdrawn or retained in violation of the disciplinary rule. He usually does not commit other fraudulent acts in connection therewith. The attorney usually benefits from |flthe infraction but, in contrast with disbarment cases, the client may not be greatly harmed or exposed to great risk of harm. The attorney fully reimburses or pays his client the funds due without the necessity of extensive disciplinary or legal proceedings.
A suspension from practice of eighteen months or two years will typically result where the facts are appropriate for a three-year suspension, except that there are significant mitigating circumstances; or where the facts are appropriate for a one-year suspension, except that there are significant aggravating circumstances.
A suspension from practice of one year or less will typically result where the negligence in withdrawing or retaining client funds is not gross or of a high degree. No other fraudulent acts are committed in connection with the violation of the disciplinary rule. There is no serious harm or threat of harm to the client. Full restitution is made promptly, usually before any legal proceeding or disciplinary complaint is made.

Applying the criteria in Hinrichs to the instant matter, we note that Ms. Cuddihy was harmed for an extended period of time due to respondent’s failure to refund the $5,000 he received on her behalf in 2004. Although the record shows that respondent eventually made full restitution to Ms. Cuddihy, he did not do so until 2013, shortly after this matter was argued to the disciplinary board. This lengthy delay caused Ms. Cuddihy great expense and inconvenience. Based on these facts and considering that there are substantial aggravating circumstances present, a sanction on the higher end of the Hinrichs range is warranted.

Accordingly, we will adopt the disciplinary board’s recommendation and disbar respondent, retroactive to the date of his interim suspension.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Frederick A. Stolzle, Jr., Louisiana Bar Roll number 12497, be and he hereby is disbarred, retroactive to April 29, 2009, the date of his interim 110suspension. His name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10. 1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

JOHNSON, Chief Justice, dissents and would suspend three years.

WEIMER, Justice, dissents and assigns reasons.

JOHNSON, C.J.

dissents.

|H respectfully dissent. I would suspend respondent for three years.

WEIMER, J.,

dissenting.

| ¶Although I have immense respect for the dedication of everyone who volunteers and works within the attorney disciplinary system, I respectfully dissent from the sanction of disbarment. While there is no excuse for the respondent’s misconduct, the record nevertheless establishes that this case could have been, and should have been, resolved by consent discipline with a three-year suspension. According to the Office of Disciplinary Counsel (ODC), the respondent “has always professed a desire to resolve these matters through a three year suspension.” Instead, this matter has consumed the resources of the disciplinary and judicial system for years, all for a very similar outcome.

Three procedural aspects of this record, from an early stage, pointed to a consent resolution. First, the respondent jointly petitioned for an interim suspension in April 2009. Second, the respondent stipulated to his misconduct. Third, the only factual issues for the disciplinary system’s evaluation at that point were the respondent’s case in mitigation.

Given this procedural posture, the ODC’s prosecutorial role shifted. Respondent’s stipulations relieved ODC of the burden of proving misconduct and the knowing and intentional aspects of the misconduct. The ODC then stood as a challenger to aspects of the respondent’s case in mitigation.

1 ^However, certain mitigating aspects were already firmly established. Indeed, ODC stipulated to respondent’s cooperation with the disciplinary system and to his remorse. Furthermore, the record shows that respondent’s debilitating back injuries, including partial severance of his spinal cord, and his obvious mobility impairments, aligned with the time frame of his misconduct.

The misconduct the ODC emphasizes most to this court is the respondent’s conversion of $5,000. The respondent had set aside that sum from a settlement in the Cuddihy matter to pay a health insurer’s subrogation claim. Although the health insurer later fully waived the subrogation claim, the respondent did not promptly release the $5,000 to his former client.

Any conversion of client funds is ultimately inexcusable, requiring the disciplinary system (with most cases advancing to this court), to decide upon a sanction. However, the facts of this conversion hardly line up with the factors for imposing the sanction of disbarment for conversion as described in Louisiana State Bar Ass’n v. Hinrichs, 486 So.2d 116 (La.1986). Notably, in distinguishing when disbarment is appropriate from when a three-year suspension is appropriate, this court previously explained: “in contrast with disbarment cases, the client may not be greatly harmed or exposed to great risk of harm.” Id. at 123. From the facts presented, Ms. Cuddihy had no expectation that she would receive the $5,000. Her expectation was just the opposite, ie., that her health insurer would claim reimbursement for most, if not all, of what the health insurer had paid in treatment for her personal injury. The health insurer’s waiver of its reimbursement claim was an unexpected bonus.

| oAccording to the ODC, until respondent made restitution, Ms. Cuddihy experienced an “inconvenience” at being deprived of the funds that she likely never expected her health insurer would release. The situation the ODC describes stands in sharp contrast to the situation in Hinnchs, where we found a three-year suspension would have been appropriate for the following injury to. a client: “The client was seriously injured in his day-to-day living and in his dealings with creditors. Hin-richs fully repaid his client, with damages, but only after several months had elapsed, a civil suit had been filed, a complaint lodged with the bar association, and a complaint made to the district attorney’s office.” Id.

Not only do the standards this court has previously announced call for imposing a three-year suspension here, but returning to the procedural posture of this case, practical timing considerations also underscore the appropriateness of seeking a three year-suspension. At present, the respondent has been on interim suspension for over four years. With the disbarment the majority imposes, the respondent will be eligible to petition for readmission after five years have elapsed from his interim suspension. Sup.Ct. Rule XIX, § 24(A). Sanctioning respondent with a three-year suspension would have resulted in the suspension running retroactive from the date of interim suspension. See In re Miller, 2009-2680, p. 13 (La.5/21/10), 34 So.3d 839, 847 n. 9. But effectively, because over four years have elapsed from his interim suspension, if given a three-year suspension, the respondent would have served a longer period of suspension from the practice of law before he could petition for reinstatement than the period formally called for in such a sanction.

Given the unique facts of the conversion in this case, which are far different from those described as meriting disbarment in Hinrichs, and given that the mitigating factors of profound physical disability, cooperation, and remorse were well 14established, the three-year consent discipline should have been submitted to this court. Instead, even under the disbarment sanction the majority imposes today, the respondent is only about six months away from the time at which he is eligible to petition for readmission. Thus, the resources of the disciplinary system, including this court, have all been pressed into full service to yield an additional sanction of six months.

      . See In re: Tony, 10-0837 (La. 10/19/10), 48 So.3d 1038, in which we held that "[i]n a disciplinary proceeding, the parties are free to enter into ... stipulations, and effect must be given to them unless they are withdrawn."

      . The formal charges allege similar misconduct by respondent in connection with a second personal injury case he handled for Mr. Rogers, but that portion of the formal charges is no longer at issue.

      . In its conclusion, the committee added that respondent "has no history of prior violations." However, respondent has stipulated to, and the record supports, three instances of prior discipline, as previously noted.

      . The board also recommended that respondent be required to pay restitution to Ms. Cuddihy. However, as previously noted, respondent paid full restitution in that matter in March 2013.

      . As the majority points out, although tardily made, respondent did make full restitution, with interest, to his former client.