text:
    Joshua Wayne ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1970.
    District Court of Appeal of Florida, Fifth District.
    June 28, 2013.
    James S. Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Joshua Wayne Anderson seeks review of an order denying his motion to withdraw his plea. Anderson’s motion to withdraw his plea was untimely because it was filed more than thirty days after the rendition of his sentence. See Fla. R.Crim. P. 3.170.

As explained in Gafford v. State, 783 So.2d 1191 (Fla. 1st DCA 2001), the failure to timely file a motion to withdraw a plea waives appellate review of the issues related to the plea. The defendant must seek relief by filing a timely rule 3.850 motion. We, therefore, affirm the court’s order denying Anderson’s motion to withdraw his plea without prejudice to raise the volun-tariness of his plea in a timely rule 3.850 motion.

AFFIRMED without prejudice.

TORPY, LAWSON, JJ., and JACOBUS, Senior Judge, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Mark C. JOINER, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-1364.
    District Court of Appeal of Florida, Fifth District.
    June 28, 2013.

      Mark C. Joiner, Lake City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Mark Joiner’s petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the October 1, 2012 order denying Joiner’s rule 3.800(a) motion, in case no. CF94-340, in the Circuit Court in and for St. Johns County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

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


text:
    Amanda Renee CHAMBLISS, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-4112.
    District Court of Appeal of Florida, Fifth District.
    June 28, 2013.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ON CONCESSION OF ERROR

PER CURIAM.

The State concedes it was error to adjudicate the defendant, Amanda Renee Chambliss, in violation of probation for count three (DUI) because her probationary period on that count had expired before any steps were taken to revoke her probation. We therefore reverse the order adjudicating her in violation for count three and remand this case to the trial court with directions to discharge Cham-bliss on that count only. We affirm the violation of probation order as to count two, which involved the offense of driving with a suspended license causing death or serious injury.

AFFIRMED in part; REVERSED in part; REMANDED.

ORFINGER, C.J. SAWAYA J., and JACOBUS, senior judge, concur.


text:
    Bontarius MILTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-3819.
    District Court of Appeal of Florida, First District.
    July 1, 2013.

      Bontarius Milton, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the June 14, 2011, order denying motion for postconviction relief in Gadsden County Circuit Court case number 2007-0847-CF. 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. RApp. P. 9.141(c)(6)(D).

PETITION GRANTED.

PADOVANO, WETHERELL, and SWANSON, JJ., concur.


text:
    Norris B. HAWKINS, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D13-0845.
    District Court of Appeal of Florida, First District.
    July 1, 2013.
    Norris B. Hawkins, pro se, Petitioner.
    Sarah J. Rumph, General Counsel, and Mark Hiers, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

Upon consideration of respondent’s motion for remand, the petition for writ of certiorari is granted, the circuit court’s order is quashed and the cause is remand for further proceedings pursuant to Thomas v. Florida Parole Commission, 107 So.3d 517 (Fla. 1st DCA 2013).

PADOVANO, WETHERELL, and SWANSON, JJ., concur.


text:
    Ralph Monroe HAIR, Petitioner, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D13-1266.
    District Court of Appeal of Florida, First District.
    July 1, 2013.
    Ralph Monroe Hair, pro se, Petitioner.
    Jennifer Parker, General Counsel, and Barbara Debelius, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

It appears that a petition for writ of habeas corpus placed into the hands of prison officials for mailing has been lost or misplaced so that the trial court cannot rule on the pleading. Accordingly, this petition for writ of mandamus is denied without prejudice to petitioner’s right to refíle his pleading. The circuit court is requested to consider the pleading on an expedited basis. See Mills v. State, 507 So.2d 168 (Fla. 4th DCA 1987).

PADOVANO, WETHERELL, and SWANSON, JJ„ concur.


author: CRENSHAW, Judge.

text:
    Laura L. BRILHART, Appellant, v. Bryan Thomas BRILHART, on behalf of S.L.B., a minor child, Appellee.
    No. 2D12-3339.
    District Court of Appeal of Florida, Second District.
    July 3, 2013.

      Robert B. Burandt of Burandt, Adamski & Feichthaler, PL, Cape Coral, for Appellant.
    Bryan Thomas Brilhart, pro se.
   CRENSHAW, Judge.

Laura L. Brilhart appeals the trial court’s final judgment of injunction for protection against domestic violence. The injunction was issued to prevent contact between S.L.B. — Bryan Thomas Brilhart’s daughter — and her mother, Ms. Brilhart. Ms. Brilhart and Mr. Brilhart have been divorced for a number of years.

On appeal Ms. Brilhart argues that there was not competent, substantial evidence to support the trial court’s issuance of the injunction. She also argues that the trial court improperly delegated its authority to an expert witness in making the decision to issue the injunction. Because the trial court did not have competent, substantial evidence supporting the issu-anee of the injunction, we reverse the trial court’s issuance of the injunction without the necessity of considering Ms. Brilhart’s second argument.

Factual Background

This case began after Mr. Brilhart received a letter from his fourteen-year-old daughter, S.L.B., indicating that she had been the victim of abuse by her mother, Ms. Brilhart. The letter contained a number of troubling allegations, and it prompted Mr. Brilhart to file a petition for an injunction on S.L.B.’s behalf.

Pursuant to statutory requirements, a hearing was held on the petition. At the hearing, Mr. Brilhart, pro se, spoke about his concern for S.L.B., based upon the letter. Mr. Brilhart further stated that there were changes in S.L.B.’s behavior over the previous year. Mr. Brilhart also provided testimony from Dr. David G. Kelly. Dr. Kelly testified that he had spoken with S.L.B. about the letter, and based upon his meeting with S.L.B. he expressed concern for S.L.B.’s safety. S.L.B. did not testify at the hearing.

In response, Ms. Brilhart took the stand and denied abusing S.L.B. During the hearing, Ms. Brilhart objected to the fact that the entire injunction hearing was based upon hearsay. She also objected to the trial court’s acceptance of Dr. Kelly as “an expert in the field of family and marriage matters.” The trial court accepted Dr. Kelly’s testimony as expert testimony, despite the fact that Ms. Brilhart was never provided with an opportunity to properly explore the basis of Dr. Kelly’s alleged expertise.

Ultimately, the trial court issued the injunction, and this timely appeal followed.

Analysis

A trial court may issue an injunction “[u]pon notice and hearing, when it appears to the court that [a] petitioner is either the victim of domestic violence ... or has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence.” § 741.30(6)(a), Fla. Stat. (2012). A trial court’s issuance of an injunction, however, must be supported by competent, substantial evidence. See Jones v. Jones, 32 So.3d 772, 773 (Fla. 2d DCA 2010) (citing Oettmeier v. Oettmeier, 960 So.2d 902 (Fla. 2d DCA 2007)). When evaluating whether competent, substantial evidence supports a trial court’s ruling, “[l]egal sufficiency ... as opposed to evidentiary weight, is the appropriate concern of an appellate tribunal.” Tibbs v. State, 397 So.2d 1120, 1123 (Fla.1981). In this case, the trial court’s issuance of the injunction was not supported by competent, substantial evidence. The letter was never admitted into evidence, and the only evidence offered in support of the injunction was generic testimony from Mr. Bril-hart and the testimony of Dr. Kelly.

Mr. Brilhart’s testimony did not provide a sufficient evidentiary basis for the trial court to grant the injunction because Mr. Brilhart’s testimony consisted entirely of generic references to S.L.B.’s alleged hearsay statements in the letter and expressions of his subjective concern. See § 90.801(l)(c), Fla. Stat. (2012). Unsubstantiated statements by Mr. Brilhart regarding his personal fear for S.L.B. are insufficient to support the trial court’s finding that S.L.B. is a victim of domestic violence or is in reasonable fear of becoming a victim of domestic violence. See § 741.30(6)(a). Therefore, Mr. Brilhart’s testimony at the injunction hearing did not amount to competent, substantial evidence supporting the issuance of the injunction.

Additionally, Dr. Kelly’s testimony did not provide competent, substantial evidence to support issuance of the injunction because Dr. Kelly was never properly qualified as an expert and his testimony was based entirely on hearsay statements allegedly made by S.L.B. The admission of expert testimony is governed by section 90.702, which states,

[i]f scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial.

“While we must always give substantial deference to a trial judge’s decision to allow a witness to testify as an expert, it must be supported by at least some factual predicate.” Jones v. State, 408 So.2d 690, 691 (Fla. 2d DCA 1982). In Jordan v. State, 694 So.2d 708, 716-17 (Fla.1997), the Florida Supreme Court found that a witness, offered as an expert, was improperly allowed to testify. The court stated,

Brown’s area of expertise was never clearly defined by the trial judge.... Degrees in psychology and counseling do not necessarily qualify one to testify to [the evidence at issue].... The problem in this case is that Brown did not demonstrate, in the record, a sufficient study [of the area in question].

Id. at 716 (emphasis added). The same problem, regarding expert qualification, which existed in Jordan, exists in this case.

The record at issue does not identify, with sufficient specificity, the area in which Dr. Kelly was qualified to testify. The record also does not provide sufficient evidence of Dr. Kelly’s qualifications to support that he is an expert in the relevant, specific area at issue. Initially, the trial court summarily accepted Dr. Kelly as “an expert.” Later, the trial court, in an apparent attempt to remedy this error, broadly referred to Dr. Kelly “as an expert in the field of family and marriage matters.” No record evidence was provided to support the conclusion that Dr. Kelly was an expert in the relevant area of domestic violence. Therefore, it was error for the trial court to allow Dr. Kelly to testify as an expert at the injunction hearing, and the hearsay evidence he provided does not contribute to the sufficiency of evidence available to support the trial court’s issuance of the injunction.

Conclusion

For the foregoing reasons, we conclude that the trial court’s issuance of the injunction was not supported by competent, substantial evidence. Accordingly, we reverse the trial court’s issuance of the injunction.

Reversed.

MORRIS and BLACK, JJ., Concur.

      . The court found the petition was insufficient to support granting an ex parte temporary injunction before the hearing.


author: CASANUEVA, Judge. ALTENBERND, Judge,

text:
    Daren Anthony BUSCIGLIO, Appellant/Cross-Appellee, v. Lindell Alonso BUSCIGLIO, Appellee/Cross-Appellant.
    No. 2D11-6481.
    District Court of Appeal of Florida, Second District.
    July 3, 2013.

      Virginia R. Vetter, Tampa, for Appel-lanVCross-Appellee.
    Amy D. Singer of Allen Dell, P.A., Tampa, for Appellee/Cross-Appellant.
   CASANUEVA, Judge.

In this appeal from an amended final judgment that dissolved the marriage of Daren Anthony Busciglio and Lindell Al-onso Busciglio, resolved an alimony claim, and decided issues relating to the parties’ minor children, both parties raise claims of trial court error. We conclude that only two claims raised in the cross-appeal are meritorious. We find no reversible error in the remaining points raised and will not address them.

I. Private School

Paragraph 12 of the amended final judgment orders Ms. Busciglio to “pay private school expenses for the minor children until graduation from high school, unless and until the parties agree otherwise.” This is based upon the trial court’s finding that the children attended a private school before and during the pen-dency of these proceedings. The parties agree and the record supports their agreement that this finding is factually incorrect.

The children do not attend a private school; they attend a charter school that is considered a public school. This charter school suggests that parents make a voluntary yearly contribution, and Ms. Busciglio has consistently voluntarily donated a sum certain each year. On remand, the trial court shall correct the judgment to reflect that the children’s school is a public one but may continue to require, if it sees fit, that Ms. Busciglio pay all required expenses imposed by any school that the parents choose the children to attend. The voluntary nature of a parent’s yearly contribution should remain voluntary.

II. Life Insurance

During the marriage, Ms. Busciglio maintained a life insurance policy insuring her life in the face amount of one million dollars. The final judgment mandates merely that she maintain this policy and that Mr. Busciglio and the children continue as equal beneficiaries of the policy. The order is silent as to what purpose is served by maintaining this insurance: is it to secure the payment of alimony or child support or both? Both parties agree that this order requires clarification. We do not disagree.

Sections 61.08(3) and 61.13(1), Florida Statutes (2010), respectively, authorize a trial court to protect future payments of alimony and child support by ordering a party to maintain life insurance “to the extent necessary.” In this case, the trial court ordered that Ms. Busciglio pay alimony to Mr. Busciglio because she has a far greater income than he.

In Solomon v. Solomon, 861 So.2d 1218, 1221 (Fla. 2d DCA 2003), this court stated that “[i]n the absence of special circumstances, a spouse cannot be required to maintain life insurance for the purpose of securing an alimony obligation.” Without special circumstances it is error for a trial court to require the payor spouse to maintain life insurance to secure an award of alimony. This court in Kearley v. Kearley, 745 So.2d 987, 988 (Fla. 2d DCA 1999), concluded that “sufficient findings [must be] contained in the final judgment to justify a requirement for life insurance as alimony security.” The final judgment in Kearley was deficient in that it stated merely that “the husband shall provide life insurance on his life in the amount of $93,000 as security for his alimony obligations.” Id. In Kearley, this court could not ascertain whether Ms. Kearley would be paid the entire policy proceeds in the event of Mr. Kearley’s death or only so much as to compensate her for an alimony arrearage and noted that “[e]ither arrangement may be appropriate, but those terms must be certain.” Id. The Busciglios’ final judgment is even less specific than the language in the Kear-leys’ final judgment.

“Generally, permanent periodic alimony for support is limited to the traditional requirement of termination upon the obligor’s death.” Pipitone v. Pipitone, 23 So.3d 131, 137 (Fla. 2d DCA 2009). But as Kearley pointed out, this is not always the case. In any event, if the life insurance policy the trial court ordered Ms. Busciglio to maintain is for alimony, the specific circumstances justifying it must be provided in the final judgment. We also encourage the trial court on remand to further specify whether upon Ms. Busciglio’s death Mr. Busciglio shall receive only that portion of the proceeds required to compensate him for alimony payments due but not yet paid or otherwise.

III. Conclusion

The amended final judgment is affirmed in part and reversed in part. The case is remanded for further proceedings as noted above.

ALTENBERND, J., Concurs with opinion.

DAVIS, C.J., Concurs.

ALTENBERND, Judge,

Concurring.

I fully concur in the opinion but write to recognize that this is a difficult case in which to establish alimony. The parties were married in their early twenties. The husband earned an engineering degree and, undoubtedly, helped support his wife through medical school. Now in their mid-forties, she is a successful physician and he is working in a fire department attempting to become a paramedic. Although dura-tional alimony might now be a better option in such a context involving healthy, well-educated parties, it was not available when this action was resolved. The award of more than $47,000 per year in taxable permanent alimony to the husband seems high to me, but it is not an abuse of discretion under the applicable law and the facts of this case given the disparity of income.

Twenty years ago, I first suggested that the legislature consider statutes establishing the law applicable to life insurance in divorce proceedings. Kowalczyk v. Kowalczyk, 627 So.2d 591, 591 (Fla. 2d DCA 1993) (Altenbemd, J., concurring); see also Kearley v. Kearley, 745 So.2d 987, 989 (Fla. 2d DCA 1999) (Altenbernd, J., concurring). The situation remains much the same. See generally Jani Maurer, Use and Disposition of Life Insurance in Dissolution of Marriage, 16 Barry L.Rev. 57 (Spring 2011).

Term life insurance that has already been purchased during a marriage can rather easily be used to secure unpaid child support or alimony in the event of the death of the payor ex-spouse during the first decade following the divorce. Such a requirement, however, does create a complex designation of beneficiary because a portion of the proceeds may need to be payable as support, while the remainder of the proceeds are given to a beneficiary selected by the payor ex-spouse. Even in the context of this simple use of life insurance, the price of term life insurance can become prohibitive as parties age.

Life insurance benefits that are payable to adult children or an ex-spouse when no alimony or child support is due create more difficult issues. The annual premiums paid by the payor ex-spouse are arguably alimony payments used to create a savings component. See Mallard v. Mallard, 771 So.2d 1138, 1141 (Fla.2000) (barring alimony from including a savings component). In this case, for example, if the ex-wife dies at age sixty-five, under the language of the judgment, her adult children and their father will collectively receive a million dollars largely unrelated to their needs. These payments are a disincentive for the benefiting ex-spouses to remarry and can create what is known as a “moral hazard” affecting the insurability of the payor ex-spouse. The cash surrender value of whole life insurance creates additional issues.

It has proven virtually impossible for the appellate courts to create common law rules addressing the array of issues created by life insurance provisions in final judgments of dissolution. Family law attorneys and circuit court judges need some basic, default rules that they can consistently apply in all but the most complex cases. A fair and balanced statute written by experts in the field would benefit all involved.

      . See § 61.08(7), Fla. Stat. (2010). In the 2010 version of the statute, the purpose of durational alimony was to "provide a party with economic assistance for a set period of time following a marriage of short or moderate duration." § 61.08(7), Fla. Stat. (2010) (emphasis added). The 2011 version added that the purpose of durational alimony was to provide such assistance "following a marriage of short or moderate duration or following a mairiage of long duration if there is no ongoing need for support on a permanent basis." § 61.08(7), Fla. Stat. (2011) (emphasis added). The changes made in the 2011 version of the statute "apply to all initial awards of alimony entered after July 1, 2011, and to all modifications of alimony of such awards made after July 1, 2011.” See ch. 2011-92, § 80, at 1704, Laws of Fla.


author: SALTER, J.

text:
    The WEITZ COMPANY, LLC, Appellant, v. MCW ACQUISITION, LLC, etc., Appellee.
    No. 3D12-1976.
    District Court of Appeal of Florida, Third District.
    July 3, 2013.

      Vincent F. Vacearella, Aventura, and Craig R. Lewis, Miami, for appellant.
    Lewis Brisbois Bisgaard & Smith, and Kevin M. Vannatta and Sorraya M. Solag-es, Fort Lauderdale, for appellee.
    Before SUAREZ, ROTHENBERG and SALTER, JJ.
   SALTER, J.

The Weitz Company, LLC, a general contractor, appeals a final summary judgment in favor of a waterproofing subcontractor, MCW Acquisitions, LLC. We reverse, finding that a legal issue and genuine issues of material fact precluded summary judgment.

The Project, the Subcontract, the Acquisition, and the Prior Lawsuit

Weitz was the general contractor for an assisted care living facility known as Classic Residences by Hyatt at Aventura. The original (2002) waterproofing subcontractor for the project was Metro Caulking & Waterproofing, Inc.

The assets and business of Metro Caulking were bought in March 2003 by the defendant/appellee, MCW, just as much of the relevant construction activity at the project was winding down. Under paragraph 4.E of the detailed purchase and sale agreement between Metro Caulking as seller and MCW as buyer, MCW expressly assumed Metro Caulking’s obligations under “Other Contracts” enumerated in Exhibit H to the agreement. Exhibit H was Metro Caulking’s computer printout of over 280 “open jobs” to be assumed by MCW, which included the project (Job 02069, “Classic Residence Aven-tura”).

Following the closing of the sale, MCW performed punch-list caulking and waterproofing at the project and submitted two applications for payment to Weitz. According to interrogatory answers and the daily job logs filed below, MCW personnel performed some waterproofing work at the project after the Metro Caulking-MCW sale closed. Although the Weitz-Metro Caulking subcontract prohibited an assignment of Metro Caulking’s rights to another entity without the prior written consent of Weitz, both Weitz and MCW performed the balance of their work at the project as if the requisite consent had been granted or waived.

In 2006, the developer/owner sued Weitz and others in federal court in Miami claiming defective construction and design of the project. Weitz filed a third-party claim against Metro Caulking in the lawsuit. MCW was not joined as a defendant or third-party defendant in the action. An affidavit submitted on behalf of Weitz in the circuit court stated that remedial work for the defective waterproofing and caulking cost in excess of $4.8 million.

The developer/owner’s federal lawsuit against Weitz and Metro Caulking was settled in 2010. As part of the settlement, Weitz, Metro Caulking, and Metro Caulking’s insurer entered into a detailed settlement agreement with incorporated releases. MCW was not a party to the agreement. The release provisions in-eluded a carveout for any claims Weitz had or might have had against MCW:

Notwithstanding the above or anything in this Agreement to the contrary, Weitz does not release any Claims it had, has or may have against [MCW], including but not limited to, Claims for negligence, breach of contract, contribution and/or indemnification or any other cause of action related to or arising out of or in connection with work performed by [MCW] at the Project as a subcontractor in its own right, as a successor entity to Metro, or pursuant to any agreement between [MCW] and [Metro Caulking],

Five months later, Weitz filed a circuit court lawsuit against MCW asserting claims for breach of the subcontract assumed by MCW, breach of MCW’s indemnity obligations, negligence in the performance of its work, common law indemnity for the damages paid by Weitz to the owner, and breach of MCW’s warranty obligations to Weitz. After various pretrial proceedings and discovery, MCW moved for summary judgment. MCW argued that it was undisputed that: (1) Metro Caulking, not MCW, performed the waterproofing work that was alleged by the owner and Weitz to have been defective; (2) any work performed by MCW after assuming Metro Caulking’s open contracts was incidental “punch-list” work that was not implicated in the leaks and construction or design defects; and (8) Weitz was not entitled to claim third-party beneficiary rights under the Metro Caulking-MCW asset purchase agreement.

In opposition to MCW’s motion, Weitz filed a summary of undisputed material facts and applicable documents, together with the affidavit of a former Weitz vice president who had been in charge of Weitz’s subcontracts and work on the project. The former vice president stated under oath that: MCW “continued to perform punch list and warranty work” at the project for several years after the March 2003 purchase of assets by MCW; MCW “billed Weitz for the completion of the [Metro Caulking] subcontract,”; MCW executed and delivered a partial lien waiver to Weitz with respect to its post-purchase work on the project; and the federal lawsuit by the owner/developer claimed “damages incurred, in part, as a result of [Metro Caulking’s] and MCW’s work at the project.”

The circuit court granted MCW’s motion for summary judgment. Weitz’s motion for reconsideration was denied, a final summary judgment was entered, and this appeal followed.

Analysis

Under Florida Rule of Civil Procedure 1.510(c) and Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000), MCW was entitled to summary judgment only if the pleadings, affidavits, depositions, discovery responses, and other evidence in the record establish that there is no genuine issue of material fact, and that the movant is entitled to such a judgment as a matter of law. Our review is de novo.

We reverse for two independently sufficient reasons. Under the March 2003 purchase agreement, Metro Caulking expressly assigned to MCW all rights of MCW under the Weitz-Metro Caulking subcontract, and MCW expressly assumed all of the obligations and liabilities of Metro Caulking under that contract “arising after the closing date.” And because the affidavit of Weitz’s former vice president and other summary judgment evidence dispute MCW’s claim that all the defective work was completed by Metro Caulking before the closing of the purchase agreement, a genuine issue of material fact also precluded summary judgment.

A. Assignment and Assumption

MCW argues that Weitz was not a party to, or third-party beneficiary of, the Metro Caulking-MCW purchase agreement provisions whereby MCW expressly assumed Metro Caulking’s liabilities to Weitz. MCW’s argument is based in part on the undisputed fact that Weitz never approved Metro Caulking’s assignment of its contract with Weitz to MCW in the purchase agreement, and the waterproofing subcontract expressly precluded assignment without Weitz’s prior written consent.

The argument fails because the enforcement of the anti-assignment provision is a matter within Weitz’s discretion, not MCW’s. MCW and Metro Caulking either ignored the anti-assignment provision or assumed (correctly) that Weitz would not refuse to consent to the assignment and assumption. After the Metro Caulking-MCW purchase agreement was closed, both Weitz and MCW continued to proceed as contractor and subcontractor on the job. MCW submitted a lien waiver, applications for payment, and a warranty in conformance with the assigned subcontract. MCW’s forces performed post-closing work on the job. Such conduct establishes consent, or the waiver of the right to withhold consent, to the assignment, and in any event the assignee is estopped to contest the validity of its own action. Horatio Enters., Inc. v. Rabin, 566 So.2d 73 (Fla. 3d DCA 1990); In re Marineland Ocean Resorts, Inc., 242 B.R. 748, 757 (Bankr.M.D.Fla.1999).

MCW next argues that Weitz may not enforce MCW’s written agreement with Metro Caulking that MCW would assume and perform Metro Caulking’s liabilities to Weitz. This argument is unavailing because of the express language in the subcontract assumed by MCW, which obligated Metro Caulking and its successors and assigns to fully perform all covenants of the subcontract documents. MCW sought and obtained assignment of Metro Caulking’s rights relating to the Classic Residences project. The quid pro quo was MCW’s express assumption of Metro Caulking’s post-closing liabilities associated with the project. The tail goes with the hide.

B. Scope of Work

MCWs evidence that its post-closing work on the project was de minimis may carry the day at trial, but on this record the scope of that work is in dispute. The causation possibilities inherent in water leaks in South Florida structures generally, and in this project in particular, are fact-intensive. Whether the leaks occurred as a result of faulty design or specifications, whether the waterproofing materials were defective or inappropriate for this application, and whether the leaks were a result of pre-closing work by Metro Caulking’s forces or post-closing work by MCW’s forces, are disputed factual issues on this record. Because there is not a “complete absence of evidence to support the plaintiffs claims,” the final summary judgment must be reversed. Laschke v. Brown & Williamson Tobacco Corp., 766 So.2d 1076, 1077 (Fla. 2d DCA 2000).

Conclusion

MCW assumed Metro Caulking’s obligations to Weitz, and MCW performed waterproofing work after the assumption of those obligations that Weitz alleges was within the scope of the owner’s claims against Weitz for defective work. While we express no opinion regarding the merits of Weitz’s claims against MCW, we conclude that MCW did not carry its burden under the exacting standards applicable to summary judgments.

Reversed and remanded for further proceedings.

      . Metro Caulking also assigned to MCW all of Metro Caulking's rights under the "Other Contracts.”

      . Section 11.3 of the standard terms and conditions in the subcontract.

      . Exhibit B to Weitz's complaint below is a written warranty on the letterhead of MCW provided pursuant to the terms of the subcontract and dated approximately seven months after MCW assumed the contractual obligations of Metro Caulking.

      . Weitz-Metro Caulking subcontract, section 11.7. These included the obligation to remedy or repair defective work identified after the Metro Caulking/MCW closing, because the pertinent post-closing warranty and breach claims "arose” after closing.


author: NORTHCUTT, Judge.

text:
    Ronald WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-4374.
    District Court of Appeal of Florida, Second District.
    July 3, 2013.
   NORTHCUTT, Judge.

Ronald Williams appeals the summary denial of his motion for jail credit, which the postconviction court treated as a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). Because Williams’ claim was supported by the record, we reverse and remand for the postconviction court to grant his motion and award the additional jail credit.

After being released on bond in circuit court case number 05-20231, Williams was arrested on January 29, 2006, and charged in circuit court case number 06-1955. Williams remained in the county jail for 279 days until he was sentenced in both cases on November 3, 2006, to drug offender probation. Williams later admitted to violating his probation, and the court sentenced him to concurrent terms of imprisonment in both cases. Williams was given credit for the 279 days he spent in county jail between his January 29 arrest and the original sentencing on November 3, but only in case number 06-1955.

In his motion, Williams asserted that he is entitled to the same jail credit in case number 05-20231. The postconviction court cited Keene v. State, 500 So.2d 592, 594 (Fla. 2d DCA 1986), and denied this claim on the ground that “a defendant is only entitled to credit against each sentence for the time spent in jail for the charge which led to that sentence.” The court reasoned that Williams was not entitled to the additional credit in case number 05-20231 because his bond in that case was not revoked until his original sentencing on November 3, 2006. This conclusion was not supported by the record.

We directed the clerk of circuit court to supplement the record on appeal with a copy of the notice to appear in case number 06-1955, which was filed on January 30, 2006, the day following Williams’ arrest in that case, and a copy of Williams’ motion for bond reduction, which his attorney filed on February 10, 2006. The notice to appear reflected that Williams’ bond in case number 06-1955 was set at $1120. The motion for bond reduction listed both case numbers and reported that Williams was being held on a $4240 bond for the charges associated with both cases. The fact that Williams’ attorney filed a motion for bond reduction in both cases soon after Williams was arrested on January 29, 2006, combined with the fact that the motion described a higher bond than had been set in case number 06-1955 alone, demonstrates that Williams’ bond had been revoked in case number 05-20231. See Solis v. State, 38 So.3d 230, 231 (Fla. 2d DCA 2010) (“The fact that Solis’s counsel filed a motion for pretrial release after the date Solis elaim[ed] his bond was revoked suggests that his bond was, in fact, revoked.”).

As this court has noted, the Keene analysis

is applicable when a defendant is arrested on various dates for various charges; in that situation, the defendant will receive presentence credit relevant to each charge even though concurrent sentences are ultimately imposed in all cases on the same date.... “Of course if [the defendant] was in jail at the same time for more than one crime, he will receive credit for that time against the sentences for each of those crimes.”

Gonzalez v. State, 17 So.3d 1277, 1278 (Fla. 2d DCA 2009) (quoting Keene, 500 So.2d at 594). Because the record supports Williams’ assertion that he was entitled to credit in both cases for the time he spent in jail from January 29, 2006, to November 3, 2006, we reverse and remand for the postconviction court to grant his motion and award him an additional 279 days of jail credit in case number 05-20231.

Reversed and remanded with directions.

KHOUZAM and BLACK, JJ., Concur.


author: ROTHENBERG, J.

text:
    C.H., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2895.
    District Court of Appeal of Florida, Third District.
    July 3, 2013.

      Carlos J. Martinez, Public Defender, and Susan Lerner and Daniel Tibbitt, Assistant Public Defenders, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Brent J. Kelleher, Assistant Attorney General, Miami, for appellee.
    Before SHEPHERD, C.J., and ROTHENBERG and SALTER, JJ.
   ROTHENBERG, J.

C.H., a juvenile, appeals from a judgment finding him delinquent of trespassing upon school grounds while under suspension, but withholding adjudication and sentencing him to a judicial warning. Finding no abuse of discretion, see Torres v. State, 42 So.3d 910, 912 (Fla. 2d DCA 2010) (holding that the abuse of discretion standard of review is to be applied in determining whether a trial court conducted an adequate Nelson inquiry), we affirm.

The sole issue on appeal is whether the trial court conducted a sufficient Nelson inquiry after C.H., who was being represented by court-appointed counsel, requested that the trial court provide him with “a new lawyer.” Pursuant to Nelson, 274 So.2d at 258-59, the trial court is required to take the following steps when faced with such a request.

1) The trial court should address the defendant to ascertain whether his or her request to discharge court-appointed counsel is unequivocal.
2) If the trial court determines that the defendant’s request is equivocal, no further inquiry is necessary.
3) However, if the trial court determines that the defendant’s request to discharge court-appointed counsel is unequivocal, the trial court has a duty to conduct a preliminary inquiry to ascertain the defendant’s reason(s) for the request. See Jackson v. State, 33 So.3d 833, 835 (Fla. 2d DCA 2010) (“When faced with a motion to dismiss appointed counsel, the court has a duty to ascertain from the defendant whether the request is unequivocal and to explore the reasons behind the request; this is a preliminary Nelson inquiry.”).
4) If the defendant’s complaint is generalized dissatisfaction with his or her appointed counsel, then no further inquiry is necessary. See Laramee v. State, 90 So.3d 341, 344 (Fla. 5th DCA 2012) (“[T]o trigger a [Nelson ] hearing, a defendant must do more than merely express general dissatisfaction with his or her attorney. A Nelson hearing is required only when the defendant makes a ‘clear and unequivocal’ statement that he wishes to discharge appointed counsel, the discharge request is based on a claim of incompetence, and the alleged ineffectiveness arises from counsel’s current representation.”) (citations omitted).
5) However, if the defendant’s request to discharge court-appointed counsel is based on a claim of incompetency of counsel (ineffective assistance of counsel), the trial court is required to make a more complete inquiry of the defendant and of his or her court-appointed counsel to determine if there is a reasonable basis to believe counsel is not providing effective assistance to the defendant.
6) If the trial court determines that there is a reasonable basis to believe that court-appointed counsel is providing ineffective assistance, the trial court shall make the findings on the record, grant the defendant’s request to discharge court-appointed counsel, appoint substitute counsel, and allow the newly appointed counsel to have an adequate time to prepare his or her defense.
7) However, if the trial court determines that there is no reasonable basis to believe that court-appointed counsel is providing ineffective assistance, the trial court shall make such a finding on the record and inform the defendant that if court-appointed counsel is discharged, the State is not required to appoint substitute counsel.
8) If the defendant continues to express a desire to discharge his or her court-appointed counsel and to represent himself or herself, a Faretta inquiry must be made. See Davila v. State, 829 So.2d 995, 996 (Fla. 3d DCA 2002) (“If court-appointed counsel is found to be rendering effective assistance, and the defendant insists that he still wants to discharge him or her, a Faretta hearing is in order.”) (footnote omitted).

In the instant case, a review of the record reflects that C.H. made an unequivocal request to discharge his court-appointed counsel. Thereafter, the trial court conducted the requisite preliminary Nelson inquiry to ascertain C.H.’s reason(s) for the request. The preliminary inquiry revealed that C.H.’s request was not based on an assertion of court-appointed counsel’s incompetency. Rather, C.H.’s request was based on his belief that he did not “see eye to eye” with his court-appointed counsel because counsel informed C.H. of the State’s plea offer, suggested to C.H. that he should accept the plea, and after C.H. told counsel that he wanted a trial, appointed counsel reiterated her belief that C.H. should accept the plea offer. As a result of this interaction between C.H. and his court-appointed counsel, C.H. did not feel comfortable with his court-appointed counsel representing him at trial.

As the record demonstrates, the preliminary Nelson inquiry revealed that C.H.’s grievances were nothing more than his frustration over counsel’s recommendation that C.H. should accept the State’s plea offer, see Cottle v. State, 733 So.2d 963, 966 (Fla.1999) (“[D]efense attorneys have the duty to inform their clients of plea offers.”), and not based on counsel’s incompetence, the trial court did not abuse its discretion by failing to conduct a full Nelson inquiry. See Montgomery v. State, 811 So.2d 726, 726 (Fla. 3d DCA 2002) (“Trial courts are under no obligation to conduct a Nelson inquiry where a defendant makes no allegation of incompetence of counsel and the defendant’s grievances were an expression of frustration over his lawyer’s recommendation to accept a plea bargain. The circumstances that surround Montgomery’s statement indicate that he and his defense counsel disagreed on whether Montgomery should accept the plea offer.”) (citation omitted); Merelus v. State, 735 So.2d 552, 552-53 (Fla. 3d DCA 1999) (holding that trial court was not required to conduct a full Nelson inquiry where defendant’s frustration with court-appointed counsel was because counsel “strongly recommended” that defendant accept the State’s plea offer); see also Smith v. State, 641 So.2d 1319, 1321 (Fla.1994) (“A trial court must conduct [a Nelson] inquiry only if a defendant questions an attorney’s competence.”); Wilson v. State, 889 So.2d 114, 118 (Fla. 4th DCA 2004) (“[A] Nelson hearing is necessary only where a defendant has specifically expressed ‘formal allegations’ about an attorney’s competence that the trial court must explore. To trigger a Nelson hearing, a defendant must raise specific allegations of attorney incompetence sufficient to warrant the inquiry[.]”).

A review of the record also reflects that the trial court’s preliminary Nelson inquiry was sufficient. After the trial court determined that C.H.’s request to discharge his court-appointed counsel was unequivocal, the trial court properly ascertained the reasons for the request, which were not based on counsel’s incompetence. See Laramee v. State, 90 So.3d 341, 344 (Fla. 5th DCA 2012). Based on the nature of C.H.’s objection to his court-appointed counsel, the trial court was not required to inquire further or to appoint substitute counsel. Accordingly, we affirm.

Affirmed.

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973). In Hardwick v. State, 521 So.2d 1071, 1074-75 (Fla.1988), the Florida Supreme Court adopted the procedure set forth by the Fourth District Court of Appeal in Nelson when addressing a criminal defendant's request to discharge court-appointed counsel and to appoint new counsel.

        . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (establishing the standard for self-representation by a criminal defendant).

      . As we find that the trial court did not abuse its discretion, we do not need to address C.H.’s assertion that failure to conduct a proper Nelson inquiry is per se reversible error. Nonetheless, we disagree with C.H.’s assertion because the trial court conducted a preliminary Nelson inquiry. See Torres, 42 So.3d at 912 ("Generally, the trial court’s ruling may also be reviewed to determine whether the error was harmless. However, a court’s failure to conduct any preliminary Nelson hearing is per se error such that a harmless error test does not apply.”); Jackson, 33 So.3d at 836 ("[WJhile the failure to conduct an adequate Nelson inquiry is subject to an abuse of discretion standard and, presumably, a harmless error analysis, the failure to conduct any inquiry is per se error.”).


text:
    Alejandro “Alex” OMES, Appellant, v. ULTRA ENTERPRISES, INC., et al., Appellees.
    No. 3D12-814.
    District Court of Appeal of Florida, Third District.
    July 3, 2013.
    Brett C. Powell and P. Brandon Perkins, Palmetto Bay, for appellant.
    Damian & Valori, and Peter F. Valori and Russell Landy, Miami, for appellees.
    Before SUAREZ, ROTHENBERG and SALTER, JJ.
   SALTER, J.

Alejandro Ornes, holding various positions and minority ownership interests in eight entities associated with the “Ultra Music Festival” and its precursors, appeals a final judgment denying him further access and documents relating to the finances of the entities. Finding no error in the trial court’s determinations that the appellees complied with the pertinent statutory obligations, we affirm.

The Complaint and Proceedings Below

Omes filed a two-count complaint claiming unlawful denial of access to corporate books and records under section 607.1602, Florida Statutes (2011), and unlawful denial of access to limited liability company (LLC) records under section 608.4101, Florida Statutes (2011). He initially sued five Florida corporations and three Florida LLCs, but this appeal involves only four of those defendants: Ultra Enterprises, Inc., a for-profit corporation; Ultra for Life, Inc., a corporation not for profit; Festival Productions MXT, LLC; and Ticket Junkie, LLC. The complaint included a demand for attorney’s fees and costs incurred in enforcing the statutory rights of access and inspection, but did not include derivative or direct claims against the defendants for misapplication of funds or other alleged wrongdoing.

By agreement between the parties, the trial court granted a motion by Omes for the appointment of a comptroller, an independent certified public accountant, to manage the production and copying of records provided by the Ultra defendants. The order and the requested documents were to remain confidential to protect proprietary and trade secret information of the entities. The court-appointed comptroller requested various records from the Ultra entities, and when certain documents were not produced, the trial court directed that they be produced.

Thereafter, the trial court conducted hearings to assess the Ultra entities’ compliance with the corporate and LLC records statutes. The court determined that no further records were required to be produced to Omes and entered a final judgment to that effect, and this appeal followed.

Analysis

The legal issue for decision below and here is whether a corporation or LLC that fails to maintain an accounting record specified to be accessible to shareholders (principally, in this case, a statement of annual cash flows) can be ordered to either (a) prepare and provide such a record, or (b) produce those “source” or original accounting records that would be necessary to produce the statement. As support for this argument, Omes relies upon Nu Med Home Health Care, Inc. v. Hospital Staffing Services, Inc., 664 So.2d 353 (Fla. 4th DCA 1995). In that case, a corporation maintained a shareholder list that included so-called “street name” information rather than “beneficial owner” information. The appellants in the case, dissident shareholders planning a written solicitation to all shareholders, argued that the corporation was obligated to provide the requesting shareholders with the more direct beneficial owner contact list. The Corporation itself maintained that the “street name” list was sufficient, and that the nominees holding record ownership would, in turn, send solicitations to the beneficial owners. The court held that the corporation was not required to obtain and produce a beneficial owner list if it did not already have such a list.

Nu Med actually supports the Ultra entities’ position here. The case holds, and we agree, that the corporation is not obligated to produce a corporate record that it does not have at the time the request is made, and that it is not required to prepare the requested record from documents that it might obtain from others. Ornes argues, however, that the analysis is different here because of the requirement in section 607.1620(1) that the corporate entities include a “statement of cash flows for that year” in the annual financial statements to be provided to shareholders. In such a case, we agree that the corporation must provide access to its existing records that would be used to prepare the statement of cash flows. The trial court found, and we agree, that the Ultra entities provided such access.

A more pertinent case, cited by neither side in their briefs, is Computer Solutions, Inc. v. Gnaizda, 633 So.2d 1100 (Fla. 3d DCA 1994). In that case, a Florida corporation responded to a shareholder request for financial statements by providing unaudited statements.

On the advice of his accountant [the shareholder] made a request for additional corporate documents relating to the company’s financial position and the unaudited financial statements. The demand for inspection included a request for supporting documentation from various accounting records and additional documentation reflecting [the corporation’s] intangible assets and contingent liabilities. [The corporation] did not produce these documents.
[The shareholder] filed a motion supported by the affidavit of his accountant seeking enforcement of his rights to inspect [the corporation’s] books. See § 607.1602, Fla. Stat. (1991). The affidavit of [the shareholder’s] accountant set forth with particularity the documents requested and the reason for the request. The trial court granted the motion for expedited inspection of the corporate records for most of the categories requested by [the shareholder]. The court denied a general request for the inspection of all other corporate records.

Id. at 1101 (footnote omitted).

In Computer Solutions, the corporation sought certiorari because it claimed the additional records sought by its shareholder and his accountant were beyond the scope of section 607.1602. We denied the petition for certiorari, concluding that the trial court had examined the requests, granted some, and denied others as over-broad. And that is essentially what happened in the case at hand. The comptroller (an independent CPA) and the trial court considered the sufficiency of the records produced by the Ultra entities in lieu of a cash flow statement. The trial court ultimately concluded that the entities had complied with the applicable statutes. On this record, substantial competent evidence supported the trial court’s final judgment.

Conclusion

The statutory inspection rights of shareholders are not tantamount to a free-ranging bill of discovery for corporate financial records, nor do they obligate a corporation to prepare a record that does not exist. The procedure utilized in the circuit court afforded Omes ample access to records for the purposes of valuation expressed in his requests for corporate information. Tellingly, the exhibits attached to the Complaint disclose that Omes’ sweeping allegations against new management and the Ultra entities’ operations involve much more than a simple request for corporate financial statements. Pre-filing discovery (to attempt to find or substantiate shareholder claims for a later lawsuit) is not part of the letter or spirit of the records inspection statutes.

Affirmed.

      . Access to the records of a corporation not for profit, though similar to that afforded regarding a corporation, is governed by section 617.1602, Florida Statutes (2011), rather than section 607.1602.

      . We have also considered other issues — the Ultra entities' argument that we lack jurisdiction, and Omes’s arguments that documents produced by the Ultra Entities, such as tax returns, were insufficient — but have found each such argument unpersuasive.

      . § 607.1620(1), Fla. Stat. (2011).

      . In the case of a corporate cash flow statement, such original records would include records of income and disbursements, primarily cash transactions, financial institution ledgers and statements, and credit card payments. Omes has referred to those records as “underlying raw financial data.”

      . The shareholder’s lawsuit in Computer Solutions included substantive claims against the corporation in addition to the enforcement of statutory rights to inspect and copy financial records, so the order granting access to certain additional records (and denying access to others) was interlocutory rather than final.


author: SUAREZ, J.

text:
    JP MORGAN HOME FINANCE, LLC, Appellant, v. Martha VALENCIA, et al., Appellee.
    No. 3D12-2014.
    District Court of Appeal of Florida, Third District.
    July 3, 2013.
    Wargo & French and Susan Capote and Matthew McGuane, Miami, for appellant.
    Martha Valencia, in proper person.
    Before SUAREZ, SALTER and FERNANDEZ, JJ.
   SUAREZ, J.

JP Morgan Home Finance, LLC, (“JP Morgan”), appeals the entry of an order of dismissal for lack of prosecution, as well as an order denying its motion to vacate the dismissal order. On April 16, 2012, the trial court entered a notice of lack of prosecution in the underlying mortgage foreclosure suit pursuant to Florida Rule of Civil Procedure 1.420(e). The docket re-fleets that JP Morgan then filed a motion to substitute the party plaintiff, which was granted by order of the court. On May 16, 2012, thirty days after the notice was issued, JP Morgan filed a showing of good cause as to why the action should not be dismissed for lack of prosecution. JP Morgan’s counsel then attended the hearing on the court’s motion to dismiss on June 28, 2012. However, an order of dismissal was entered that same day. This order was followed by an ancillary order stating the trial court would consider JP Morgan’s motion to vacate dismissal if it filed a notice of readiness for trial or noticed a summary judgment hearing within ten days. JP Morgan has timely appealed these orders.

The Florida Supreme Court has held that under the 2006 amendments to Rule 1.420(e) any filing of record within the sixty-day grace period precludes dismissal. Chemrock Corp. v. Tampa Elec. Co., 71 So.3d 786, 792 (Fla.2011). The record reflects that JP Morgan made multiple filings within the relevant sixty-day period, including a showing of good cause. There is no transcript of the June 28 hearing and no other record evidence to explain the trial court’s reasoning for entering the order of dismissal or the ancillary order. Moreover, the appellee has failed to file an answer brief or memorandum of points. However, the conditions imposed in the ancillary order suggest the trial court sought to encourage active record activity and hasten resolution on the merits. The supreme court has expressly rejected this distinction between active and passive record activity, stating:

By creation of the sixty-day grace period, it was not our intention to create a situation in which the plaintiff or the trial court must again guess at what type of record activity will be required. ... [T]he bright-line interpretation ..., under which any filing of record is sufficient to preclude dismissal, applies....

Id. The trial court erred by dismissing the action where the plaintiff made a timely filing of record.

REVERSED and REMANDED with instructions to vacate the order of dismissal and reinstate the action.

      . Rule 1.420(e) states:
      In all actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 10 months, and no order staying the action has been issued nor stipulation for stay approved by the court, any interested person, whether a party to the action or not, the court, or the clerk of the court may serve notice to all parties that no such activity has occurred. If no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice, and if no stay was issued or approved prior to the expiration of the 60-day period, the action shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.
      Fla. R. Civ. P. 1.420(e) (2011) (emphasis added).


author: SHEPHERD, J.

text:
    Percy ASTETE, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION, et al., Appellees.
    No. 3D12-1712.
    District Court of Appeal of Florida, Third District.
    July 3, 2013.

      Percy Astete, in proper person.
    Amanda L. Neff, Senior Attorney, Tallahassee, for appellee, Reemployment Assistance Appeals Commission.
    Before SHEPHERD, C.J., and ROTHENBERG and SALTER, JJ.
   SHEPHERD, J.

We reverse the Reemployment Assistance Appeals Commission’s order denying benefits to Percy Astete, and remand for reinstatement of the Referee’s order. See Anderson v. Unemployment Appeals Comm’n, 822 So.2d 563, 567 (Fla. 5th DCA 2002) (stating “where there is competent, substantial evidence to support the referee’s findings of fact, the commission may not reweigh the evidence and substitute its findings of fact for those of the referee”); Orange Bank v. Unemployment Appeals Comm’n, 611 So.2d 107, 108 (Fla. 5th DCA 1992) (“While the commission has the authority to reverse the findings and conclusions of the appeals referee, the commission may only do so where there is no substantial, competent evidence to support the referee’s decision”); accord Barreto v. Taco Bell Corp., 661 So.2d 874 (Fla. 3d DCA 1995).

Reversed and remanded.


text:
    Richard CLAIRE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1670.
    District Court of Appeal of Florida, Third District.
    July 3, 2013.
    Carlos J. Martinez, Public Defender, and Shanon Healy, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before CORTINAS, EMAS and LOGUE, JJ.
   ON CONFESSION OF ERROR

PER CURIAM.

Upon the State’s proper confession of error, and our own review of the record, we reverse the trial court’s written order of revocation of probation and remand with directions that the trial court enter an order of revocation that conforms to the trial court’s oral pronouncement as set forth in the transcript of the probation violation hearing.

Reversed and remanded with directions.

      . We note that Michael Mervine, the assistant attorney general in the instant case, filed the confession of error before Appellant even filed his initial brief. We commend this display of initiative by Mr. Mervine and the Office of the Attorney General.


text:
    Marlena BLANCO, Appellant, v. MONIQUE & ME, INC. d/b/a Culinary Specialty Food and CWF Warehouse, LLC, Appellees.
    No. 3D12-2887.
    District Court of Appeal of Florida, Third District.
    July 3, 2013.
    Remer & Georges-Pierre and Carlo D. Marichal and Anthony M. Georges-Pierre, Miami, for appellant.
    Weiss Serota Helfman Pastoriza Cole & Boniske and Brett J. Schneider and Eric P. Hockman; Sheppard, Mullin, Richter & Hampton and Jonathan Stoler and Eric Raphan, New York, for appellees.
    Before SHEPHERD, C.J., and WELLS and SUAREZ, JJ.
   SUAREZ, J.

Marlena Blanco seeks to reverse the trial court’s order granting the appellee-defendants’, Monique & Me, Inc., d/b/a Culinary Specialty Food and CWF Warehouse, LLC, motion to dismiss with prejudice. Blanco brought an action against her employers under the Florida Civil Rights Act (FCRA), sections 760.01-11, 509.092, Florida Statutes (2010), after her termination, alleging employment discrimination based on pregnancy. Because the State of Florida has not chosen to include a prohibition against pregnancy-based discrimination under the FCRA, we reluctantly affirm, following this Court’s precedent in Delva v. Continental Group, Inc., 96 So.3d 956 (Fla. 3d DCA 2012), review granted, No. SC12-2315 (Fla. May 2, 2013).

Affirmed.

SHEPHERD, C.J., concurs.

WELLS, J., concurs in results only.


text:
    JP MORGAN CHASE BANK, N.A., Appellant, v. Robert E. GARCIA, et al., Appellees.
    Nos. 3D12-2011, 3D12-2007.
    District Court of Appeal of Florida, Third District.
    July 3, 2013.
    Gray Robinson, P.A., and Thomas H. Loffredo and Jeffrey T. Kuntz, Fort Laud-erdale, for appellant.
    Louis K. Nicholas II; Aubrey G. Rudd; Kevin D. Dennis; Nelson C. Keshen; Carlton Fields and Jason J. Quintero, Tampa, for appellees.
    Before SUAREZ, ROTHENBERG and SALTER, JJ.
   CONFESSION OF ERROR

PER CURIAM.

Based on Appellee Ocean Bank’s commendable confession of error in these consolidated appeals, we reverse the Order Denying Chase Home Finance LLC s Motion to Vacate Certificate of Title, Certificate of Sale and the Amended Final Judgment of Foreclosure, entered in the case Ocean Bank v. U.S. Properties, Inc., Case No. 09-78870 (CA23), and remand with instruction to the trial court to grant the Motion to Vacate, and to vacate the challenged Amended Final Judgment of Foreclosure, Certificate of Sale, and Certificate of Title, as to Chase only and on Unit 2071 only. We also reverse the Final Summary Judgment and Order Dismissing Case and Discharging Notice of Lis Pendens entered in the case Chase Home Finance, LLC v. Robert E. Garcia, Case No. 09-90127 (CA23), and remand the case for further proceedings.

Reversed and remanded.


author: SCHWARTZ, Senior Judge.

text:
    I.D., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 3D13-376.
    District Court of Appeal of Florida, Third District.
    July 3, 2013.
    Steven Grossbard, for appellant.
    Karla Perkins, Appellate Counsel, Department of Children and Families; Hillary Kambour, Appellate Counsel, Guardian Ad Litem Program, for appellee.
    Before ROTHENBERG and SALTER, JJ., and SCHWARTZ, Senior Judge.
   On Confession of Error

SCHWARTZ, Senior Judge.

Pursuant to the Department’s admirable and well-taken confession of error, the supplemental adjudication of dependency of the subject child as to the appellant mother is reversed and the cause is remanded for further proceedings. As the Department admits, “it appears that the heart of the matter was the Appellant/Mother I.D.’s lack of financial resources. See Brown v. Feaver, 726 So.2d 322 (Fla. 3d DCA 1999).”

Reversed and remanded.


text:
    Ana LOPEZ, Appellant, v. U.S. BANK, N.A., as Trustee for JP Morgan Mortgage Trust 2006-A2, Appellee.
    No. 3D13-458.
    District Court of Appeal of Florida, Third District.
    July 3, 2013.
    Christopher H. Saia, for appellant.
    Carlton Fields and Michael K. Winston, Dean A. Morande and Donna L. Eng, West Palm Beach, for appellee.

      Before WELLS, SUAREZ and LAGOA, JJ.
   CONFESSION OF ERROR

PER CURIAM.

Ana Lopez (“Lopez”) appeals from a final judgment entered in favor of U.S. Bank, N.A., as Trustee for JP Morgan Chase Mortgage Trust (“U.S.Bank”). Because this case was tried before it was “at issue,” in contravention of Florida Rule of Civil Procedure 1.440, we reverse.

I. FACTUAL AND PROCEDURAL HISTORY

On its own motion, the trial court issued an order setting trial for February 8, 2013. On that date, Lopez’s counsel objected to the case proceeding to trial, arguing that Lopez served her answer and affirmative defenses on January 21, 2013, which was less than the twenty days after service of the last pleading required by Florida Rule of Civil Procedure 1.440 for an action to be “at issue.” Indeed, the record shows that U.S. Bank’s counsel agreed with Lopez’s counsel on this point, and also brought the matter to the trial court’s attention. Nonetheless, the trial court conducted a trial on that date, and entered final judgment in favor of U.S. Bank.

II. ANALYSIS

On appeal, U.S. Bank properly concedes that the final judgment must be reversed as the case was not “at issue” pursuant to Rule 1.440 until twenty days after service of Lopez’s answer and affirmative defenses. Moreover, U.S. Bank had not waived its right to serve motions directed at Lopez’s answer and affirmative defenses by filing a notice of trial. See Fla. R. Civ. P. 1.440(a).

Because “[fjailure to adhere strictly to the mandates of Rule 1.440 is reversible error,” Precision Constructors, Inc. v. Valtec Constr. Corp., 825 So.2d 1062, 1063 (Fla. 3d DCA 2002), we reverse the final judgment in favor of U.S. Bank and remand for a new trial.

REVERSED AND REMANDED.

      . The relevant portion of the Rule states:
      Rule 1.440. Setting Action for Trial
      (a) When at Issue. An action is at issue after any motions directed to the last pleading served have been disposed of or, if no such motions are served, 20 days after service of the last pleading. The party entitled to serve motions directed to the last pleading may waive the right to do so by filing a notice for trial at any time after the last pleading is served. The existence of cross-claims among the parties shall not prevent the court from setting the action for trial on the issues raised by the complaint, answer, and any answer to a counterclaim.


text:
    David J. ROSENBERG, Appellant, v. METROWEST MASTER ASS’N, INC., et al., Appellees.
    No. 5D12-4062.
    District Court of Appeal of Florida, Fifth District.
    July 5, 2013.

      Derek B. Brett and R. Paul Roecker of The Tate Firm, PLLC, Orlando, for Appellant.
    John W. Foster, Sr., and Joe L. Fore, Jr., of Baker & Hostetler, LLP, Orlando, for Appellee.
   PER CURIAM.

David J. Rosenberg appeals from the final judgment awarding attorney’s fees to MetroWest Master Association, Inc. (“the Master Association”). On appeal, Rosenberg argues that the trial court erred in finding he was a “member” of the Master Association within the meaning of sections 720.301(10) and 720.305(1), Florida Statutes (2009). We disagree and affirm.

The Master Association is a mixed-use development comprised of several subdivisions, each having a separate community association. One of the Master Association’s governing documents, the Declaration of Protective Covenants and Restrictions (“the Declaration”), provides that the various community associations are “members” of the Master Association, while owners of property subject to the jurisdiction of a community association are not “members” of the Master Association. The Declaration further defines the term “owner” as “a record owner of fee simple title to any Property Unit located within METROWEST.... ” Rosenberg is an “owner” within the meaning of the Declaration and a member of Palma Vista Community Association (“Palma Vista”). Pal-ma Vista, in turn, is a “member” of the Master Association.

In July 2009, Rosenberg, along with two other plaintiffs who are not parties to this appeal, brought suit against the Master Association, alleging, in relevant part, that the Master Association had failed to comply with certain provisions of chapter 720, Florida Statutes, that govern the transition of control of homeowners’ associations from developers to association members. After a hearing, the trial court entered final summary judgment in favor of the Master Association. The Master Association thereafter moved for prevailing-party attorney’s fees pursuant to section 720.305(1), Florida Statutes.

Rosenberg contested the Master Association’s entitlement to the fees. Following a hearing, the trial court granted the Master Association’s request for attorney’s fees and costs. Our review of the final judgment is de novo. See T &W Developers, Inc. v. Salmonsen, 31 So.3d 298, 301 (Fla. 5th DCA 2010) (stating that entitlement to attorney’s fees based on the interpretation of a statute or contract is reviewed de novo).

Chapter 720, Florida Statutes, was enacted “to provide procedures for operating homeowners’ associations” and “to protect the rights of association members without unduly impairing the ability of such associations to perform their functions.” § 720.302(1), Fla. Stat. (2009). Section 720.305(1) provides a cause of action for a “member” of a homeowners’ association to redress the association’s failure or refusal to comply with the provisions of chapter 720. That section further provides that the prevailing party in such litigation is entitled to recover attorney’s fees and costs. Id. Section 720.301(10) defines the term “member” to include “any person or entity obligated by the governing documents to pay an assessment or amenity fee.”

On appeal, Rosenberg argues that he is not liable for the Master Association’s attorney’s fees because he does not fall within the statutory definition of “member,” as he pays assessments to Pal-ma Vista, not the Master Association. We disagree. Several provisions of the Deelaration require “owners,” such as Rosenberg, to pay assessments to the Master Association. Thus, the trial court properly concluded that Rosenberg is a “member” within the meaning of section 720.301(10) because he is obligated by the Master Association’s governing documents to pay assessments. The fact that Rosenberg actually pays assessments to his community association is not dispositive because he is ultimately obligated to pay them to the Master Association.

Next, Rosenberg argues that, in determining whether he was liable for attorney’s fees under section 720.305(1), the trial court should have applied the definition of “member” found in the Master Association’s governing documents rather than the statutory definition of “member.” Rosenberg relies on section 720.302(2), which provides that the provisions of chapter 720 may not impair contract rights that preexisted the effective date of the statute.Rosenberg argues that because the Master Association was created before the effective date of chapter 720, the definition of “member” set forth in the Declaration controls over the statutory definition. This argument, however, lacks merit because application of the statutory definition of “member” does not impair any of Rosenberg’s contract rights under the Declaration; rather, it expanded his rights by giving him standing to sue the Master Association for alleged violations of chapter 720. See Lawnwood Med. Ctr., Inc. v. Seeger, 959 So.2d 1222, 1224 (Fla. 1st DCA 2007) (stating that a legislative act impairs a contract when the contract “is made worse or is diminished in quantity, value, excellence or strength.”); But cf. Coral Lakes Cmty. Ass’n v. Busey Bank, N.A., 30 So.3d 579, 583-84 (Fla. 2d DCA 2010) (holding that section 720.3085, which makes purchasers at foreclosure liable for unpaid assessments, could not apply because section was enacted after declaration providing that successors in title were not liable for assessments went into effect, and application of the statute would thus impair vested contract rights).

We further conclude that Rosenberg is estopped from denying liability for the attorney’s fees because, by bringing suit, he held himself out to be a “member” of the Master Association with standing to sue under section 720.305(1). See United Contractors, Inc. v. United Constr. Corp., 187 So.2d 695, 701-02 (Fla. 2d DCA 1966) (explaining that doctrine of equitable es-toppel precludes a party from maintaining a position inconsistent with a position previously asserted where inconsistency would cause substantial injury to opposing party). Rosenberg cannot now change his position in order to avoid liability for attorney’s fees.

We find Rosenberg’s remaining arguments to be without merit. Accordingly, we affirm.

AFFIRMED.

SAWAYA, COHEN and BERGER, JJ., concur.

      . In pertinent part, section 720.305(1) provides:
      Each member ... and each association, are governed by, and must comply with, [chapter 720], the governing documents of the community, and the rules of the associa-
      tion. Actions at law or in equity, or both, to redress alleged failure or refusal to comply with these provisions may be brought ... by any member against:
      (a) The association....

        . The Master Association was incorporated in February 1986, while chapter 720 became effective on October 1, 1992. See Ch. 92-49, §§ 33-38, at 486-89, Laws of Fla.

      . Under the Declaration's definition of "member,” Rosenberg is not a "member" of the Master Association because he is subject to the jurisdiction of his community association.


text:
    Franciousha RIGELL, Appellant, v. DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D13-2229.
    District Court of Appeal of Florida, First District.
    July 5, 2013.
    Franciousha Rigell, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee; Jennifer Parker, General Counsel, Florida Department of Corrections, Tallahassee (no appearances), for Appellee.
   PER CURIAM.

DISMISSED. Cf. Banks v. State, 916 So.2d 35 (Fla. 1st DCA 2005) (holding that interlocutory indigency/lien order is not appealable, and that review is properly sought upon entry of a final order disposing of the substance of the proceedings).

LEWIS, C.J., ROBERTS, and ROWE, JJ., concur.


text:
    Travis JONES, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-0277.
    District Court of Appeal of Florida, First District.
    July 5, 2013.
    Travis Jones, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED without prejudice to the appellant’s right to file a petition for a belated appeal.

LEWIS, C.J., ROBERTS, and ROWE, JJ., concur.


text:
    Jimmy RALEY, Petitioner, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D13-0055.
    District Court of Appeal of Florida, First District.
    July 5, 2013.
    Jimmy Raley, pro se, Petitioner.
    Jennifer Parker, General Counsel, and Beverly Brewster, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is denied on the merits.

THOMAS, ROWE, and SWANSON, JJ„ concur.


author: WELLS, Judge.

text:
    Excellus O. HYLAND, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1839.
    District Court of Appeal of Florida, Third District.
    July 10, 2013.
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nicholas A. Merlin, Assistant Attorney General, for appellee.
    Before WELLS and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.
   ON MOTION FOR CLARIFICATION

WELLS, Judge.

The appellee has filed a motion for clarification in connection with the opinion issued by this Court on June 19, 2013. We grant clarification, withdraw our previous opinion, and substitute this corrected opinion in its stead.

CONFESSION OF ERROR

Excellus 0. Hyland appeals from an order denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The defendant asserted that his sentence should be vacated because the State erroneously included subsequent crimes as prior offenses in calculating his scoresheet. The State conceded the defendant was correct as to the miscalculations, but argued the circumstances surrounding his conviction were aggravating factors that could be taken into account to impose an upward departure at resentencing. Rather than conduct a new sentencing hearing, the trial court entered the order on appeal, accepting the State’s position, and denying defendant’s Rule 3.800 motion. Here, the defendant argues the trial court erred in resentenc-ing him without conducting a full sentencing hearing.

We agree. As set out in Mullins v. State, 997 So.2d 443, 445 (Fla. 3d DCA 2008):

A defendant will receive a new sentencing hearing if the resentencing involves additional consideration or sentencing discretion, not if the act to be done is ministerial in nature, such as striking an improper portion of the sentence. Griffin v. State, 517 So.2d 669 (Fla.1987); McGough v. State, 876 So.2d 26 (Fla. 1st DCA 2004). Although striking the violent career criminal designation is a ministerial act, here the entire fifteen year sentence must be vacated, and Mullins must be resentenced with an entire new written sentence. See Tumblin v. State, 965 So.2d 354 (Fla. 4th DCA 2007); State v. Arduengo, 609 So.2d 651 (Fla. 2d DCA 1992). This new written sentence will involve sentencing discretion, and as such, requires a new hearing.
Additionally:
[T]he pronouncement of sentence upon a criminal defendant is a critical stage of the proceedings to which all due process guarantees attach, whether the sentence is the immediate result of adjudication of guilt or, as here, the sentence is the result of an order directing the trial court to re-sentence the defendant.
Griffin, 517 So.2d at 670. Consequently, the defendant has the right to be present and have assistance of counsel at the new sentencing hearing. Id. Tumblin, 965 So.2d at 354.

Accordingly, based on the State’s proper confession of error, we reverse Hyland’s sentence and remand to the trial court with directions to conduct a new sentencing hearing with Hyland present and with the assistance of counsel.


text:
    Andrew Scott FULKERSON, Petitioner, v. BRADFORD COUNTY PUBLIC LIBRARY, and Bradford County Sheriff's Dept., Respondents.
    No. 1D13-2889.
    District Court of Appeal of Florida, First District.
    July 15, 2013.
    Andrew Scott Fulkerson, pro se, Petitioner.
    No appearance for Respondents.
   PER CURIAM.

DISMISSED.

WOLF, ROBERTS, and RAY, JJ„ concur.


text:
    T.J.S., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-5803.
    District Court of Appeal of Florida, First District.
    July 17, 2013.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, for Appellee.
   PER CURIAM.

AFFIRMED. A.L.B. v. State, 23 So.3d 190 (Fla. 1st DCA 2009).

THOMAS, ROWE, and SWANSON, JJ., concur.


text:
    Carl LEGGETT, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-740.
    District Court of Appeal of Florida, Third District.
    July 24, 2013.
    Carlos J. Martinez, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before SUAREZ, EMAS and FERNANDEZ, JJ.
   ON MOTION FOR REHEARING OR CLARIFICATION

PER CURIAM.

We grant the State of Florida’s motion for rehearing, withdraw our former opinion of May 29, 2013, and substitute the following in its place.

ON REMAND FROM THE SUPREME COURT OF FLORIDA

This matter is before us on remand from the Supreme Court of Florida following its decision in Leggett v. State, 103 So.3d 131 (Fla.2012), quashing our decision in Leggett v. State, 34 So.3d 51 (Fla. 3d DCA 2010). In compliance with the Florida Supreme Court’s mandate, we grant Carl Leggett, Jr.’s petition for writ of habeas corpus and remand with directions that Leggett’s conviction for second degree murder be reversed and a new trial granted, following the holdings set forth in State v. Montgomery, 39 So.3d 252 (Fla.2010).

Petition granted; reversed and remanded for new trial.


text:
    In re Frank T. FRADELLA.
    No. 2013-B-0461.
    Supreme Court of Louisiana.
    April 26, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

_JjThis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Frank T. Fradella, an attorney licensed to practice law in Louisiana.

FORMAL CHARGES

In 2005 and 2006, several insurance companies, namely Mothe Life, Lafourche Life, Dixie Life, and Evangeline Life (hereinafter collectively referred to as the “companies”), which share common ownership and management, made nine loans to Robert and Nicole Armbruster and a limited liability company that they owned. When the loans went into default, the companies engaged respondent to enforce their rights under the mortgages securing these loans, including foreclosure of the properties affected by the mortgages.

In connection with the foreclosure, respondent billed the companies for costs and fees totaling $17,550, which was thereafter advanced to him. Prior to his filing any petitions or making any deposits, respondent’s services were terminated. He was asked to refund the cost and expense deposits, to no avail, although his final billing totaled only $8,418.

During his first sworn statement, taken in January 2011, respondent acknowledged his receipt of the $17,550. According to respondent, he may have earned $7,000 to $7,500 for the work that he did, but he also admitted that he was |Boverpaid, that he likely owed a refund to the companies, that he remained in possession of disputed funds, and that he had not taken any steps to arbitrate the issue.

During his second sworn statement, taken in May 2011, respondent produced a deposit slip reflecting that the advanced funds were deposited into his operating account, rather than his trust account.

DISCIPLINARY PROCEEDINGS

In February 2012, the ODC filed one count of formal charges against respondent, alleging that his conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.5 (failure to refund an unearned fee), 1.5(f)(4) (advance deposit for costs and expenses must be placed in the lawyer’s trust account), 1.5(f)(5) (failure to hold disputed funds in trust), 1.15(a) (safekeeping property of clients or third persons), 1.15(c) (when a lawyer is in possession of property in which both the lawyer and another person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance of their interests), and 1.15(d) (failure to timely remit funds to a client or third person).

Respondent was served with the formal charges via certified mail but failed to answer. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(8). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

IsHearing Committee Report

After considering the ODC’s deemed admitted submission, the hearing committee made factual findings consistent with the deemed admitted factual allegations of the formal charges. Based on those facts, the committee determined respondent violated the Rules of Professional Conduct as charged.

The committee further determined that respondent violated duties owed to his client. Given that no corrective action was taken even after he acknowledged that monies were owed, respondent acted intentionally and caused harm to his client.

In aggravation, the committee recognized that respondent has a prior disciplinary record. In mitigation, the committee noted that respondent’s personal struggles may have affected his judgment in the matter, but declined to find that his problems were sufficient to excuse his actions.

Based on the totality of the record, and in light of “the guidelines established,” the committee recommended that respondent be suspended from the practice of law for three years. The committee also strongly recommended that prior to the filing of any petition for reinstatement, respondent be required to satisfy his obligations to his former clients. Finally, the committee recommended that respondent be assessed with all costs and expenses of these proceedings.

Neither respondent nor the ODC filed an objection to the hearing committee’s report and recommendation.

| ¿Disciplinary Board Recommendation

After reviewing the record, the disciplinary board adopted the deemed admitted factual allegations of the formal charges as the factual findings. The board also found respondent violated the Rules of Professional Conduct as alleged in the formal charges, except to the extent that the committee’s findings appear to conclude that all provisions under Rule 1.5 were violated. The board found that only subsections (f)(4) and (f)(5) of Rule 1.5 are relevant in this matter.

In addition, the board noted that the ODC had alleged violations of Rules 8.4(a)(violation of the Rules of Professional Conduct) and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) in its deemed admitted submission. Because the formal charges provided a detailed account of underlying facts that would give respondent fair and adequate notice of the nature of the professional violations alleged by the ODC, the board found a violation of Rule 8.4(a). However, the board declined to find a violation of Rule 8.4(c), noting that nothing in the formal charges would put respondent on notice of this allegation. Moreover, the record contains insufficient evidence to establish that respondent intended to deceive or defraud his client. There is no evidence of bank statements or account balances to substantiate the claim that respondent intentionally spent the funds that were advanced for costs and expenses. Rather, the record demonstrates that respondent believed he earned the advancement for legal services he rendered in preparation for the foreclosures, in addition to handling other client matters.

The board determined respondent violated duties owed to his client. He knowingly deposited funds advanced for costs and expenses into his operating account rather than his client trust account and failed to return the unused/unearned | sportion or, alternatively, submit the matter to arbitration. His conduct caused actual harm. Based on the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the baseline sanction is suspension.

The board found the following aggravating factors present: a prior disciplinary record, refusal to acknowledge the wrongful nature of the conduct, substantial experience in the practice of law (admitted 1988), and indifference to making restitution. The board found the mitigating factor of personal or emotional problems present.

After considering the court’s prior jurisprudence involving similar misconduct, the board determined that a more lenient but nevertheless substantial suspension than the three years as recommended by the committee is appropriate, and recommended that respondent be suspended from the practice of law for two years. The board also recommended that respondent be required to submit the matter to the LSBA’s Fee Dispute Resolution Program, and that he be assessed with the costs and expenses of this proceeding.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

| ^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.

In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, § 11(E)(3). Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted. However, the language of § 11(E)(3) does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In re: Donnan, 01-3058 (La.1/10/03), 838 So.2d 715.

The record in this deemed admitted matter supports a finding that respondent failed to deposit fee and expense advancements into his client trust account and failed to return the unearned and unused portions to his client, even after a dispute arose and respondent acknowledged that he may owe his client a refund. Based on these facts, respondent has violated the Rules of Professional Conduct as found by the disciplinary board.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the 17profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987).

The record supports a finding that respondent knowingly violated duties owed to his client, and that his conduct caused harm to his client. Under the ABA’s Standards for Imposing Lawyer Sanctions, suspension is the baseline sanction for this type of knowing misconduct. We agree with the aggravating and mitigating factors found by the board.

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 the 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 |8other 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.

Hinrichs, 486 So.2d at 122-123 (citations omitted).

The deemed admitted facts in this case establish that respondent received $17,550 in advance costs and fees from his client. Upon receipt, he deposited the funds into his operating account, rather than a client trust account. Although respondent maintains that he earned a substantial portion of the advancement, his services were terminated prior to his filing of any petitions or making any deposits, and there is no indication that he has refunded the unused/unearned portion.

While it appears that this case falls on the higher end of the Hinrichs range, ie., a three-year suspension, the board found this sanction to be somewhat harsh. We agree. A recent case involving similar misconduct is In re: Torry, 10-0837 (La.10/19/10), 48 So.3d 1038. In Torry, an attorney failed to promptly refund unearned fees in three legal matters, failed to place client and disputed funds in a trust account, and failed to fully cooperate with the ODC in one investigation. The disciplinary board found that the attorney’s misconduct was knowing and caused actual harm to his clients by depriving them of funds for a lengthy period of time. For this misconduct, we suspended the attorney from the practice of law for one year, with all but thirty days deferred, followed by a one-year period of unsupervised probation with conditions.

Based on the jurisprudence cited by the board, as well as Torry, we will accept the disciplinary board’s recommendation and suspend respondent from the practice of law for two years.

lc,DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Frank T. Fradel-la, Louisiana Bar Roll number 18896, be and he hereby is suspended from the practice of law for two years. It is further ordered that respondent resolve the fee dispute with his client through the Louisiana State Bar Association’s Lawyer Fee Dispute Resolution Program. 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.

      . In 2006, respondent was admonished by the disciplinary board for violating Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 8.4(a)(violation of the Rules of Professional Conduct), and 8.4(c)(engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct.

      . Respondent’s father died in February 2010, at which time he moved his elderly mother into his home to care for her. In addition, respondent’s sister-in-law died of cancer in April 2010, leaving respondent's brother to raise the couple's young twin boys.

      . Subsection (f)(5) of Rule 1.5 specifically references an attorney’s duty to refund an unearned fee. As such, it would have been more appropriate for the ODC to allege a violation of Rule 1.5(f)(5) with respect to respondent’s failure to refund an unearned fee.

      . In his answer to the complaint, respondent, through his attorney, stated that he has always been willing to reconcile the funds that were paid to him and raised the prospect of utilizing the Louisiana State Bar Association's ("LSBA") Fee Dispute Resolution Program. However, during his sworn statement, respondent admitted that he had not filed a fee dispute form with the LSBA.

      . The board did not cite any cases that were directly on point, but determined that the sanction recommended by the committee is harsh in light of the court’s jurisprudence in In re: Cucci, 11-2202 (La.3/13/12), 85 So.3d 62, and In re: Jones, 11-1038 (La.1/24/12), 85 So.3d 15. In Cucci, a case involving nine counts of misconduct, the court imposed a three-year suspension upon an attorney for making dishonest or misleading statements to his clients by guaranteeing a particular outcome in their cases, failing to disburse client funds, failing to refund unearned fees and charging excessive fees, failing to provide his clients with requested accountings, and failing to cooperate with the ODC in several investigations. In Jones, the court imposed a three-year suspension, with one year deferred, upon an attorney who was retained to open a succession, but was terminated prior to the filing of any pleadings, and failed to refund the $10,000 fee advancement.


text:
    In re Frank J. FERRARA, Jr.
    No. 2013-B-0722.
    Supreme Court of Louisiana.
    April 26, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

hThe Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent drafted an affidavit at the request of his criminal defense client in which the victim in the underlying criminal proceeding agreed to drop the criminal charges in exchange for the payment of money. Thereafter, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Frank J. Ferrara, Jr., Louisiana Bar Roll number 5539, be suspended from the practice of law for a period of one year and one day.

IT IS FURTHER ORDERED that 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.


text:
    Maurice Joseph BECNEL (a/k/a Joseph Maurice Becnel) v. AMERICAN MOTORISTS INSURANCE COMPANY, et al.
    No. 2013-CC-1113.
    Supreme Court of Louisiana.
    May 17, 2013.
   In re General Electric Company; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. F, No. 2012-6486; to the Court of Appeal, Fourth Circuit, No. 2013-C-0644.

Stay denied, writ denied.

VICTORY, J., would grant.


text:
    STATE ex rel. Eddie FOREMAN, Jr. v. STATE of Louisiana.
    No. 2013-KH-0965.
    Supreme Court of Louisiana.
    May 20, 2013.
   In re Foreman Jr., Eddie; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. L, No. 65,685.

Relator represents that the district court has failed to act timely on an application for post-conviction relief and motion to recuse trial judge with petition and order for judge ad hoc to try motion to recuse filed on or about November 7, 2012. If relator’s representation is correct, the district court is ordered to consider and act on the applications. If relator’s representation is incorrect, the district court is ordered to accept, file and act upon the pleading which is herewith transferred to the district court. The district court is ordered to provide this Court with a copy of its judgment.


text:
    Derrick Marcus TOWNSEND v. Ashley Anne GRAVES.
    No. 2013-CJ-0975.
    Supreme Court of Louisiana.
    May 22, 2013.
   In re Townsend, Derrick Marcus;— Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. B, No. 106,362; to the Court of Appeal, First Circuit, No. 2013 CW 0536.

Denied.