author: PER CURIAM. WARNER, J.,

text:
    MILLARD MALL SERVICES, INC., a foreign profit corporation, and Sunrise Mills (MLP) Limited Partnership, a foreign profit corporation, Petitioners, v. Mary BOLDA, Respondent.
    No. 4D14-1338.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 2015.

      Robin B. Rothman, Elaine J. LaF-lamme, Andrew S. Connell, Jr., and Angela M. Swenka of Litchfield Cavo LLP, Fort Lauderdale, for petitioners.
    Mark D. Dickstein of The Dickstein Law Firm, Pembroke Pines, for respondent.
   PER CURIAM.

Plaintiff, Mary Bolda, filed an action for negligence against defendants, Millard Mall Services, Inc. and Sunrise Mills Limited Partnership, stemming from her alleged slip and fall while shopping at the Sawgrass Mills Mall in March 2011. In prosecuting her claim, plaintiff sent a subpoena duces tecum to the corporate representative of Sunrise Mills requesting various documents, including:

1) All records, incident reports or other written memoranda concerning any other substantially similar acts and/or occurrences on Defendant’s premises concerning slip and fall accidents within the last three years of March 26, 2011;
2) All documentation concerning maintenance or cleaning of the subject premises during March 2011; and
3) All documentation concerning maintenance or cleaning of the subject premises by any outside person/eor-poration/ entity during 2011.

Defendants objected to the production of these documents. At the hearing before the trial court, defendants filed affidavits stating that these documents, including their Quarterly Safety Committee Reports, were not discoverable because they included incident reports that contained photographs, discussions surrounding the incidents, and mental impressions regarding the incidents that occurred during the relevant quarter.

After reviewing the documents in camera, the trial court ordered the production of defendants’ Quarterly Safety Committee Reports from 2008 up to the date of the incident, but sustained the privilege objection concerning the incident report generated as a result of plaintiffs event. Defendants seek certiorari review of that order, and assert that the Committee Reports were not discoverable pursuant to the work product privilege. Based on our review of these materials, we agree that such items were prepared in anticipation of litigation. We grant the writ and quash the trial court’s order.

Florida Rule of Civil Procedure 1.280(b)(4) provides that a party may obtain work product, or materials “prepared in anticipation of litigation,” “only upon a showing that the party seeking discovery has need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” See generally S. Bell Tel. & Tel. Co. v. Deason, 632 So.2d 1377, 1384 (Fla.1994). To make that showing, plaintiff argued only that information about prior incidents was within the scope of discovery, and that she was unable to obtain substantially equivalent material without undue hardship. See DeBartolo-Aventura, Inc. v. Hernandez, 638 So.2d 988, 989 (Fla. 3d DCA 1994).

Pursuant to Florida Rule of Civil Procedure 1.280(b)(4), the sought-after documents are not discoverable unless the party can demonstrate a two-part showing of (1) particularized need, which includes the determination of whether the privileged documentation contains relevant information, and (2) the inability to obtain the substantial equivalent without undue hardship. It is only “upon a showing that the party seeking discovery has need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means” that the court may order the disclosure of work product. Fla. R. Civ. P. 1.280(b)(4); Surf Drugs, Inc. v. Vermette, 236 So.2d 108, 112 (Fla.1970) (“The work product of the litigant, his attorney or agent, cannot be examined, absent rare and exceptional circumstances.”).

“The rationale supporting the work product doctrine is that ‘one party is not entitled to prepare his ease through the investigative work product of his adversary where the same or similar information is available through ordinary investigative techniques and discovery procedures.’ ” Deason, 632 So.2d at 1384 (quoting Dodson v. Persell, 390 So.2d 704, 708 (Fla.1980)). If the moving party fails to show that the substantial equivalent of the material cannot be obtained by other means, the discovery will be denied. Id. at 1385.

Work-product protection extends to information gathered in anticipation of litigation by corporate non-attorney employees, including employees of a corporation’s risk management department. See, e.g, Metric Eng’g, Inc. v. Small, 861 So.2d 1248, 1250 (Fla. 1st DCA 2003); Fla. E. Coast Ry. v. Jones, 847 So.2d 1118, 1118 (Fla. 1st DCA 2003); Royal Caribbean Cruises, Ltd. v. Doe, 964 So.2d 713, 718 (Fla. 3d DCA 2007) (incident reports created by employees and filed with the risk management department to be used to defend against potential litigation are protected as work-product); see Snyder v. Vahie Rent-A-Car, 736 So.2d 780, 781 (Fla. 4th DCA 1999). Internal investigative reports are also covered by the rule. See, e.g., Fed. Exp. Corp. v. Cantway, 778 So.2d 1052, 1053 (Fla. 4th DCA 2001); Winn-Dixie Stores, Inc. v. Nakutis, 435 So.2d 307, 308 (Fla. 5th DCA 1983); Fla. Power & Light Co. v. Limeburner, 390 So.2d 133, 134 (Fla. 4th DCA 1980). A lawsuit need not be filed for information gathered in an accident investigation to qualify for work-product protection. See Royal Caribbean Cruises, Ltd., 964 So.2d at 718; Dist. Bd. of Trs. of Miami-Dade Cmty. Coll. v. Chao, 739 So.2d 105, 107 (Fla. 3d DCA 1999) (even if a specific claim has not been filed, sending documents to a risk management department anticipates litigation); City of Sarasota v. Colbert, 97 So.2d 872, 874 (Fla. 2d DCA 1957). In Chao, the report of a student’s slip and fall in a college hallway did not lose its work product character even though these reports were routed to departments other' than the risk management department, such as the security department and the custodial supervisor, in order that remedial measures could be taken. 739 So.2d at 107.

Moreover, even a report that is routinely prepared may still qualify as work product. See Sears, Roebuck & Co. v. Scott, 481 So.2d 968 (Fla. 4th DCA 1986); Sligar v. Tucker, 267 So.2d 54, 55 (Fla. 4th DCA 1972). Such reports, including those created after a slip and fall has been reported,

certainly are not prepared because of some morbid curiosity about how people fall at the market. Experience has shown all retail stores that people who fall in their stores try to be compensated for their injuries. Experience has also shown those stores that bogus or frivolous or exaggerated claims might be made. A potential defendant’s right to fully investigate and memorialize the results of the investigation should not be restricted any more than should a potential plaintiffs. Our system of advocacy and dispute settlement by trial mandates that each side should be able to use its sources of investigation without fear of having to disclose it all to its opponents. This allows for free discussion and communication during preparation for litigation. If all reports and other communications of the litigants were available to the opposition then those communications would certainly be stilted, unrevealing and thus self-defeating in their purpose.

Publix Super Mkts., Inc. v. Anderson, 92 So.3d 922, 923 (Fla. 4th DCA 2012).

In this case, plaintiff has been allowed to avail herself of the ordinary tools of discovery to obtain relevant information about the incident that she was involved in, as well as any similar prior incidents on the property. Even if some of these objected-to documents may be relevant to the issue of the regularity of these occurrences, plaintiff has had the ability to obtain substantially equivalent information through discovery directed to defendants. Those efforts have in fact enabled her to obtain a list of incidents on defendants’ premises for three years predating plaintiffs accident, including the dates, times, locations, and a detailed description of those incidents. Therefore, the requested information (or its substantial equivalent) was obtained through means other than the production of work-product materials. See Deason, 632 So.2d at 1384 (“one party is not entitled to prepare his case through the investigative work product of his adversary where the same or similar information is available through ordinary investigative techniques and discovery procedures”) (quoting Dodson v. Persell, 390 So.2d 704, 708 (Fla.1980)); Ruhland v. Gibeault, 495 So.2d 1243, 1244 (Fla. 5th DCA 1986) (“Clearly, the burden is on the party who seeks to overcome a work product objection to show a need for the documents sought and demonstrate that they are unable, without undue hardship, to obtain the equivalent by any other means.”); Intercontinental Props., Inc. v. Samy, 685 So.2d 1035, 1036 (Fla. 3d DCA 1997) (finding the law imposes a heavy burden on a party seeking to obtain work product; party is required to at least attempt to obtain the information contained in an incident report using interrogatories and depositions before the privilege can be breached).

Even if these documents might potentially lead to the discovery of relevant, admissible evidence as claimed by plaintiffs counsel, their relevance is but one factor among several to be considered. The mere fact that these documents “might yield additional information about the incident is not enough, without more, to show ‘undue hardship.’” Mt. Sinai Med. Ctr. v. Schulte, 546 So.2d 37, 38 (Fla. 3d DCA 1989); see generally DeBartolo-Aventura, 638 So.2d at 989-90; State Farm Fire & Cas. Co. v. Von Hohenberg, 595 So.2d 303, 304 (Fla. 3d DCA 1992); Dade Cnty. Pub. Health Trust v. Zaidman, 447 So.2d 282, 283 (Fla. 3d DCA 1983); Charles W. Ehrhardt, Florida Evidence § 502.9 (2010 ed.).

Defendants have met their burden, while plaintiff has not demonstrated that she is unable to obtain the substantial equivalent of the material by other means. The assertion that plaintiff needs these materials for the prosecution of her case, without more, is wholly insufficient to meet her burden. See Healthtrust, Inc.-The Hosp. Co. v. Saunders, 651 So.2d 188, 189 (Fla. 4th DCA 1995) (finding “respondents’ showing in support of requiring production of [work-product] was nothing more than unsworn argument of counsel or a bare assertion of need and undue hardship which is insufficient to satisfy the required showing”); Universal City Dev. Partners, Ltd. v. Pupillo, 54 So.3d 612, 614 (Fla. 5th DCA 2011) (finding petitioner’s argument that information about prior incidents was within the scope of discovery, that such information was known to defendant but not to him, and that he was unable to obtain substantial equivalent material without undue hardship was insufficient to overcome the work product privilege).

Because the information sought by plaintiff were documents created in the course of its investigations, and because plaintiff has not made a sufficient showing of need or undue hardship, the trial court’s order compelling disclosure was a departure from the essential requirements of law. See Avante Villa at Jacksonville Beach, Inc. v. Breidert, 958 So.2d 1031, 1032 (Fla. 1st DCA 2007). We therefore quash the trial court’s order. As á result, we find no need to address any other objections or grounds raised by defendants against the production of these documents.

Petition Granted.

DAMOORGIAN, C.J., and KLINGENSMITH, J., concur.

WARNER, J., dissents with opinion.

WARNER, J.,

dissenting.

I disagree with the majority opinion that the Quarterly Safety Reports were protected work product. These reports were used to promote safety and to determine whether proper maintenance was being done at the mall. The reports, as opposed to individual incident reports, were not made in anticipation of litigation: See, e.g., Liberty Mut. Fire Ins. Co. v. Bennett, 883 So.2d 373, 374 (Fla. 4th DCA 2004) (documents are not work product unless they are prepared when the probability of litigation is “substantial and imminent”), quashed on other grounds by Liberty Mut. Fire Ins. Co. v. Bennett, 905 So.2d 119 (Fla.2005); Allstate Indent. Co. v. Ruiz, 780 So.2d 239, 241 (Fla. 4th DCA 2001), quashed on other grounds, 899 So.2d 1121 (Fla.2005); Cotton States Mut. Ins. Co. v. Turtle Reef Assocs., Inc., 444 So.2d 595, 596 (Fla. 4th DCA 1984) (documents are work product only if they were prepared “in contemplation of litigation,” and the “[m]ere likelihood of litigation does not satisfy this qualification.”). Even the reports at issue in Publix Super Markets, Inc. v. Anderson, 92 So.3d 922, 923 (Fla. 4th DCA 2012), quoted in the majority, were incident reports about the particular slip and fall in litigation in that case. Here, there is no evidence that the quarterly reports meet this test.

Moreover, even if the quarterly reports could be considered work product, the enactment of section 768.0755, Florida Statutes, concerning premises liability for transitory foreign substances in a business establishment, should make them discoverable. Enacted at the behest of commercial interests, that statute requires an injured person to prove “that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it.” § 768.0755(1), Fla. Stat. (2010). The injured person may prove constructive knowledge with circumstantial evidence showing:

(a) The dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition; or
(b) The condition occurred with regularity and was therefore foreseeable.

Id. In this case, although the respondent requested that the mall preserve the video of the incident, which could have shown how long the dangerous condition had existed, the video was not available. Thus, respondents must show that “the condition occurred with regularity and was therefore foreseeable.” The quarterly reports could shed light on this issue, and the other information available to the respondent would not satisfy this need.

The trial court conducted an in camera inspection of these reports before ordering their production. I too have reviewed these reports. I concur with the trial court that they are discoverable and not protected by work product.

      . Production of such reports might show a plaintiff that there is no constructive knowledge case to be made and may prompt settlement or dismissal of slip and fall suits.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Sheri Lynn KELLY, Appellant, v. James SNIETKA, Appellee.
    No. 4D13-4636.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 2015.
    Craig A. Boudreau, Wellington, for appellant.
    Scott D. Glassman and Sue-Ellen Kenny of Law Office of Scott Glassman, P.A., West Palm Beach, for appellee.
   PER CURIAM.

We affirm the final judgment in this paternity and support action. We do not address the merits of the issues raised by appellant, as they either were not preserved by objections in the trial court on the grounds raised on appeal, or they lack merit. As to the father’s claim that this court lacks jurisdiction to consider the orders entered prior to the final judgment designated in the notice of appeal, Florida Rule of Appellate Procedure 9.110(h) states, “The court may review any ruling or matter occurring before filing of the notice.” (Emphasis supplied). Thus, this court has jurisdiction to consider the order vacating the prior final judgment and the motion to disqualify the trial judge, as both were issued before the final judgment which is being appealed. Although the appellee relies on Kozell v. Kozell, 142 So.3d 891 (Fla. 4th DCA 2014), Kozell is not controlling. In that case, the motion to disqualify which this court found it lacked jurisdiction to consider was filed after the denial of the motion for rehearing of the final judgment sought to be appealed. We have held that a notice of appeal of a final judgment does not bring to the appellate court orders entered after the final judgment unless those orders are also specifically appealed. See Geraci v. Kozloski, 377 So.2d 811, 812 (Fla. 4th DCA 1979).

Affirmed.

WARNER, GROSS and CIKLIN, JJ., concur.


text:
    P.C., the Father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES and Guardian Ad Litem, Appellees.
    No. 4D14-2803.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 2015.
    Denise E. Kistner of Law Offices of Denise E. Kistner, P.A., Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carolyn Schwarz, Assistant Attorney General, West Palm Beach, for appellee Department of Children and Families.
    Patricia Murphy Propheter, Sanford, for appellee Guardian ad Litem Program.
   PER CURIAM.

The father argues that the circuit court erred in terminating his parental rights to his son: (1) without competent, substantial evidence of the grounds alleged by the Department of Children and Families under sections 39.806(l)(c), 39.806(l)(e)l., and 39.806(l)(b), Florida Statutes (2012); (2) without making statutorily-required findings of fact and conclusions of law; and (3) because termination of his parental rights was not the least restrictive means to protect his son from harm.

We affirm as to the second and third arguments without discussion. On the first argument, we conclude that competent, substantial evidence did not support the grounds alleged under section 39.806(l)(b). However, we conclude that competent, substantial evidence supported the grounds alleged under sections 39.806(l)(c) and 39.806(l)(e)l., and that such evidence was sufficient to support the termination of parental rights.

Therefore, we affirm the termination of parental rights, but with instructions to the circuit court to amend the final judgment to indicate in its conclusions of law that the termination was based on the grounds alleged under sections 39.806(l)(c) and 39.806(l)(e)l., and not on the grounds alleged under section 39.806(l)(b).

Affirmed with instructions.

WARNER, CIKLIN and GERBER, JJ„ concur.


author: CONNER, J. WARNER, J.,

text:
    Doris Rich CORYA, as Trustee of the Sanders Trust, Doris Rich Corya and Paul J. Rich Sanders as Trustee of the Eleanor M. Rich Trust, Doris Rich Corya as Trustee of the John P. Corya Irrevocable Trust, and Doris Rich Corya as Trustee of the John P. Corya Revocable Trust, Appellants, v. Roy SANDERS, Appellee.
    Nos. 4D12-3067, 4D12-3926.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 2015.

      Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, for appellants.
    Susan B. Yoffee of Haile, Shaw & Pfaf-fenberger, P.A., North Palm Beach, for appellee.
   ON MOTION FOR REHEARING

CONNER, J.

We deny the Appellant’s motion for rehearing, withdraw our opinion dated November 5, 2014, and issue the following in its place:

In this case, ongoing disputes as to four family trusts make a second appearance before us. In the first appeal, we reversed the trial court’s summary judgment granting trust accountings for all four trusts. Corya v. Sanders, 76 So.3d 31 (Fla. 4th DCA 2011). We concluded the trial court erred in granting summary judgment in part because appellee Sanders did not sufficiently negate the defenses of laches, waiver, and estoppel. Id. at 34. As to two of the trusts, we also concluded that the record did not establish, for purposes of summary judgment, that the contesting beneficiary was entitled to accountings pri- or to 2007. Id. Upon remand, a nonjury trial was conducted.

In this appeal, appellants, Doris Corya and Paul J. Rich Sanders (collectively, “Corya”), as trustees, raise several arguments of trial court error. . Roy Sanders (“Sanders”), the appellee and contesting beneficiary, is Doris’s son and Paul’s brother. We agree with Corya that the trial court erred by (1) determining that the affirmative defense of statutory laches did not limit the years to which Sanders is entitled to an annual accounting for each trust; (2) incorrectly interpreting statutory provisions in deciding the starting date for each accounting; and (3) incorrectly applying case law in deciding the starting date for each accounting. For those reasons, we reverse and remand for further proceedings. Because we reverse on significant issues affecting entitlement to attorney’s fees, we also reverse and remand the trial court rulings on attorney’s fees for further consideration.

Factual Background and Trial Court Proceedings

The disputes revolve around four irrevocable family trusts. The trusts will be referred to separately as “the Sanders Trust,” “the Rich Trust,” “the John Corya Revocable Trust” (which later became irrevocable) and “the John Corya Irrevocable Trust.”

The Sanders Trust was created in 1953 by Eleanor Rich. Eleanor was Doris’s mother and Sanders’s grandmother. The trust directs that Doris is to receive ninety-four percent of the net income during her lifetime, and each of Doris’s three children is to receive two percent of the net income. Upon Doris’s death, the principal of the trust is to be distributed in equal shares to Doris’s three children. Doris has been the sole trustee from inception of the trust.

The Rich Trust is a testamentary trust created upon the death of Eleanor in 1974. The trust provides that during Doris’s lifetime, the net income is to be distributed to her, and the principal can be invaded for her benefit. The principal of the trust can also be invaded for the benefit of her three children. Upon Doris’s death, the remaining principal is to be divided into shares for each of her three children, and the trust for each child is to continue until the child has attained the age of thirty. From inception, Doris has been a co-trustee of the Rich Trust.

Doris married John Corya. In 1993, John created two trusts, one revocable, the other irrevocable. As to both, John and Doris were the initial co-trustees, and upon John’s death, Doris has been the sole trustee.

The John Corya Revocable Trust began with John as the sole beneficiary during his life. Upon his death in 1996, the trust continued as an irrevocable trust for the benefit of Doris, her three children, and two grandchildren. During Doris’s lifetime, the net income is to be distributed to her, and the principal can be invaded for her benefit. Under certain circumstances, the principal of the trust can also be invaded for the benefit of each of her three children. Upon Doris’s death, the remaining principal is to be divided between her three children and two grandchildren.

The John Corya Irrevocable Trust provides that the income is payable solely to John while he is alive and then solely to Doris while she is alive. The Irrevocable Trust allows for invasion of the principal for the benefit of John and Doris, and upon the death of both, the remaining principal is to be distributed to Doris’s three children and two grandchildren.

Only the two John Corya trusts contain provisions regarding the trustee’s duty to account to the beneficiaries.

As summarized in the first appeal:

Roy [Sanders] filed a second amended complaint seeking to compel an annual accounting of the four trusts. Doris answered, denying most material allegations and alleging various affirmative defenses, including statute of limitations, and an allegation of waiver[, laches,] and estoppel alleging that the trusts have been in existence thirty years, and by his conduct Roy should be estopped from demanding any accounting prior to 2008. After some discovery, Roy moved for summary judgment. The trial court granted the motion finding that Doris had the duty to provide Roy with periodic written accountings on all the trusts, which she failed to do. The court ordered her to provide accountings for all trusts and granted Roy’s motion for attorney’s fees, which she was not permitted to use trust funds to pay.

Corya, 76 So.3d at 33. After the nonjury trial on remand, as to all four trusts, the trial court ordered Corya to prepare ac-countings from the date she assumed duties as trustee, which was the inception of each trust. In so ruling, the trial court determined that Corya’s affirmative defense of statutory laches did not apply. The trial court also apparently interpreted statutory provisions and case law to determine the starting date for each accounting. In addition, the trial court awarded Sanders attorney’s fees, both for trial and the prior appeal. The trial court again ordered that Corya was not permitted to use trust funds to pay Sanders’s attorney’s fees, thus making her personally liable for the fees. Lastly, the trial court required Corya to reimburse the trusts for trust funds used to pay her attorney’s fees.

Legal Analysis

After a nonjury trial, review of trial court decisions based on legal questions are reviewed de novo and those based on findings of fact from disputed evidence are reviewed for competent, substantial evidence. Acoustic Innovations, Inc. v. Schafer, 976 So.2d 1139, 1143 (Fla. 4th DCA 2008); In re Estate of Sterile, 902 So.2d 915, 922 (Fla. 2d DCA 2005).

In order to explain the errors of the trial court, it is appropriate to first discuss the statutory duty imposed on trustees of irrevocable trusts to account to the beneficiaries, next discuss the application of statutory laches to the duty to account, and conclude by discussing the errors of the trial court in determining the starting dates for the accountings.

The Statutory Duty to Account Applicable to this Case

As described abovej all four trusts are irrevocable and have been in effect for decades before suit was filed. It is undisputed that before suit was filed, Corya had not prepared accountings for any of the trusts. At trial and on appeal, Corya agreed she was required to provide annual accountings to the beneficiaries as of July 1, 2007, the effective date of section 736.0813(l)(d), Florida Statutes (2007), which provides:

Duty to inform and account. — The trustee shall keep the qualified beneficiaries of the trust reasonably informed of the trust and its administration.
(1) The trustee’s duty to inform and account includes, but is not limited to, the following:
(d) A trustee of an irrevocable trust shall provide a trust accounting, as set forth in s. 736.08135, to each qualified beneficiary annually and on termination of the trust or on change of the trustee.

Corya disputed that she had a duty to give accountings to Sanders for the years preceding 2007, contending there was no statutory duty to provide accountings for the prior years.

Prior to July 1, 2007, the statute controlling the duty of a trustee of an irrevocable trust to account to beneficiaries was section 737.303, Florida Statutes (2006), repealed the same year that section 736.0813 was passed. Comparing section 736.0813 with section 737.303, it is obvious that the duty of a trustee to account for an irrevocable trust from 1974 (the year in which section 737.303 was enacted) to June 30, 2007, was virtually identical to the duty to account starting July 1, 2007. Former section 737.303, Florida Statutes (2006), imposed the following duty to account:

Duty to inform and account to beneficiaries. — The trustee shall keep the beneficiaries of the trust reasonably informed of the trust and its administration. In addition:
(3) A beneficiary is entitled to a statement of the accounts of the trust annually and on termination of the trust or change of beneficiary.

Although the current section 786.0813 limits the duty to account to “qualified beneficiaries,” the definition of “qualified beneficiaries” is virtually the same as the definition of “beneficiary” and “vested beneficiary,” as interpreted by case law, in the repealed section 737.303. See §§ 736.0103(14), Fla. Stat. (2007), 737.303(4)(b), Fla. Stat. (2002).

We thus reject Corya’s arguments that there was no statutory duty to provide Sanders with accountings prior to July 1, 2007.

Statutory Laches as a Bar to Trust Ac-countings Beyond Four Years

As to all four trusts, Corya raised the affirmative defense of laches. Regarding the Sanders Trust, the trial court explicitly ruled that “laches” did not apply, after determining that Sanders’s testimony was credible when he testified that he did not know he was entitled to an accounting until he met with a Florida attorney in April 2007. As to the other three trusts, the judgment does not explicitly state “laches” did not apply; however, the trial eourt implicitly ruled such by granting ac-countings for each trust from the inception of Corya’s duties as trustee.

The trial court noted in the final judgment that the affirmative defense of lach-es, pursuant to section 95.11(6), Florida Statutes (2008), was an issue to be tried. We have previously held that section 95.11(6), referred to as “statutory laches,” applies to an action for an accounting by a trustee. Patten v. Winderman, 965 So.2d 1222, 1225 (Fla. 4th DCA 2007). Section 95.11(6), Florida Statutes (2008), states:

(6) Laches. — Laches shall bar any action unless it is commenced within the time provided for legal actions concerning the same subject matter regardless of lack of knowledge by the person sought to be held liable that the person alleging liability would assert his or her rights and whether the person sought to be held liable is injured or prejudiced by the delay. This subsection shall not affect application of laches at an earlier time in accordance with law.

Prior to Sanders filing suit, Corya had not prepared accountings for any of the trusts. Failure to prepare an accounting is a breach of trust by a trustee. § 736.1001(1), Fla. Stat. (2008). The failure is also referred to as a breach of fiduciary duty. McCormick v. Cox, 118 So.3d 980, 986-87 (Fla. 3d DCA 2013) (holding that evidence that trustee filed no annual accounting was competent substantial evidence of a breach of fiduciary duty). A breach of trust or fiduciary duty is the equivalent of at least a negligent tort, and, under certain facts, may be an intentional tort. The breach may result in an award of damages against the trustee personally. §§ 736.1002(1), 736.1013(2), Fla. Stat. (2008). Regardless of whether the breach is deemed to be the result of negligence or an intentional act, the statute of limitations for a legal action alleging breach of trust or fiduciary duty is limited to four years. §§ 95.11(3)(a), (o), (p), Fla. Stat. (2008). Because an action for accounting seeking to enforce a breach of trust or fiduciary duty entitles a beneficiary to damages, the application of section 95.11(6) bars an action seeking an accounting from a trustee more than four years before the action is filed.

Even if the trial court’s conclusion in the judgment “that the doctrine of laches does not apply” was a reference to “common law laches,” the conclusion, grounded on the finding that “[SandersJ’s testimony [was] credible that he did not know he was entitled to an accounting until he met with a Florida, attorney in April, 2007,” was not a correct application of the defense of common law laches. The elements of common law laches are (1) “conduct on the part of the defendant ... giving rise to the situation of which complaint is made”; (2) “the plaintiff, having knowledge or notice of the defendant’s conduct, and having been afforded the opportunity to institute suit, is guilty of not asserting his rights by suit”; (3) “lack of knowledge on the part of the defendant that plaintiff will assert the right on which he bases his suit”; and (4) “injury or prejudice to the defendant in event relief is accorded to the plaintiff, or in the event suit is held not to be barred.” Van Meter v. Kelsey, 91 So.2d 327, 330-31 (Fla.1956).

Sanders does not dispute that he had actual knowledge that he was a beneficiary of all four trusts for many years before filing suit against Corya. What he claimed at trial and on appeal is that he did not have actual knowledge he was entitled to accountings for each trust until he consulted with a Florida attorney in April 2007. He presented no evidence, and the trial court made no finding, that Corya engaged in conduct that duped Sanders into thinking he was not entitled to accountings or lulled him into not taking legal action to seek accountings. As the trial court found, Corya periodically showed Sanders statements for some of the trusts and discussed the trusts with him, but he was not interested in viewing the information. His failure to know the law or consult with an attorney is not a lack of actual knowledge of the facts (no accountings given to him) upon which the claim is based. See § 95.031, Fla. Stat. (2008) (stating a cause of action accrues when the last element constituting the cause of action occurs). Knowledge of the law is not an element to be proven to establish entitlement to an accounting by a trustee. Sanders’s lack of knowledge of the law had nothing to do with his knowledge that the accountings were not being given to him each year. The law required the accountings and gave Sanders the right and opportunity to file suit. Research has not revealed a Florida case which holds that a lack of knowledge of the law is grounds to extend the period for laches or toll the running of the statute of limitations. The trust statutes afforded Sanders the right to file suit for an accounting as early as 1974. §§ 737.303, 737.201(1), Fla. Stat. (1974). There was no evidence that Sanders gave notice to Cor-ya that he wanted to assert his right to annual accountings until suit was filed in 2008. The transcript of the final hearing and closing arguments reveal that the trial court was very much concerned about the prejudice of requiring Corya to construct accountings for trusts that were decades old at the time of trial. Nonetheless, the trial court concluded laches did not apply because Sanders was not aware of the law. This was error.

We thus conclude, on the facts of this case, that statutory laches under section 95.11(6) limits the right to an accounting, where no accounting has been done, to no more than four years before filing an action for an accounting against the trustee of an irrevocable trust. Lastly, we address the starting date for the accountings when no accountings had been done.

Starting Date for an Accounting When No Accounting Has Been Done

As to each trust, the trial court ordered accountings from the inception of the trust. It appears from the judgment that the trial court accepted Sanders’s arguments that accountings from inception were appropriate based on (1) an interpretation of sections 736.0813(l)(d) and 736.08135(1), Florida Statutes (2007), and (2) misconduct by Corya as trustee, citing Mesler v. Holly, 318 So.2d 530 (Fla. 2d DCA 1975). We address each argument in turn.

Sections 736.0813(l)(d) and 736.08135(1)

At the beginning of the judgment, the trial court listed the issues to be tried. One of the issues listed was:

Whether Florida Statute Section 736.0813, formerly Florida Statute Section 733.035, limits the accountings to a period beginning on or after January 1, 2003.

Section 736.0813 incorporates by reference section 736.08135(1), Florida Statutes (2007). In reference to the John Corya Irrevocable Trust, the trial court ruled “the accounting should go back to when [Corya] became accountable, which would be the inception of the trust,” citing section 736.08135(1), Florida Statutes (2007). It appears the trial court may have implicitly reached the same conclusion as to the other three trusts.

As discussed above, section 736.0813(l)(d) provides that a beneficiary is entitled to a trust accounting “annually,” “as set forth in s. 736.08135.” Section 736.08135(1), Florida Statutes, provides:

(1) A trust accounting must be a reasonably understandable report from the date of the last accounting or, if none, from the date on which the trustee became accountable, that adequately discloses the information required in subsection (2).

(emphasis added). Because accountings had never been prepared for any of the trusts, the trial court concluded Corya was statutorily required to start the account-ings for each trust from the dates Corya became trustee, which was the inception of each trust. However, the trial court erred because, as discussed above, the trial court failed to properly apply the laches defense, which limits the duty to account to no earlier than four years prior to the date suit was filed, and because another subsection of section 736.08135, subsection (3), does not require accountings prior to January 1, 2003.

Section 736.08135(3), Florida Statutes (2007), states:

This section applies to all trust account-ings rendered for any accounting periods beginning on or after January 1, 2003.

(emphasis added). Because section 736.08135 became effective on July 1, 2007, we construe the combination of subsections (1) and (3) to be a clear legislative statement that trustees of irrevocable trusts could not be statutorily required to render accountings prior to January 1, 2003. In other words, we construe section 736.08135(3) to be consistent with statutory laches under section 95.11(6). Moreover, as to trusts existing prior to January 1, 2003, we do not construe the language, “if none, from the date on which the trustee became accountable,” as expressing a legislative intent that if an accounting had never been done, the trustee’s first accounting must go all the way back to the date the trustee assumed fiduciary duties. Instead, we construe that language as limiting the beginning period for the first accounting, in situations where an accounting had never been done or was not prepared annually, to be no earlier than January 1, 2003, . as stated in section 736.08135(3), Florida Statutes (2007).

To construe the statutory language as the trial court did would result in an impermissible statutory impairment on the obligations of contracts. When Corya accepted the duties and responsibilities of trustee, she agreed to be bound by the trust instrument either expressly, if she signed the trust document as trustee, or impliedly. She was entitled to rely on existing law and the statements in the trust documents, or lack thereof, regarding any responsibility to render accountings. The Sanders and Rich Trusts imposed no re-quireraent for the trustee to account to the beneficiaries. By imposing a statutory requirement to account annually and limiting the dates of the applicability of the statute, the legislature clearly recognized that without some limitations, the new statutory duty could impermissibly impair the contractual duty (or lack of duty) to account in existing trust documents. Art. I, 10, Fla. Const. (“No bill of attainder, ex post facto law or law impairing the obligation of contracts shall be passed.”); see also Castellano v. Cosgrove, 280 So.2d 676 (Fla.1973); Lawnwood Med. Ctr., Inc. v. Seeger, 959 So.2d 1222, 1224 (Fla. 1st DCA 2007) (explaining that an impairment occurs “when a contract is made worse or is diminished in quantity, value, excellence or strength”). Finally, if the trustee is required to account from the inception of the trust, this would negate the laches defense.

The Mesler Case

In Mesler, the appellants filed a declaratory action as to whether they had the right, as remainder beneficiaries of a trust, to obtain an accounting from the trustee, who was also the sole beneficiary of the trust until her death. Mesler, 318 So.2d at 532. The appellants also sought removal of the trustee. Id. at 531-32. After the trial court dismissed the complaint, the appellants appealed. Id. at 532. The Second District held:

We hold, therefore, that allegations that a trustee is the sole lifetime beneficiary, that she has not furnished any accounts or reports of her administration to the remaindermen and that she is not confining her invasions of principal to reasonable limits, as may be set out in the complaint, give rise to an inference of abuse of discretion by the trustee and are sufficient to require the trustee to respond. Trustees are accountable to the courts and their performance may be controlled by the courts.

Id. at 533.

The judgment in this case gave the trial court’s analysis for each trust separately. In the analysis for each trust, the trial court cited Mesler. There are clear indications in the judgment that the trial court cited Mesler as authority for requiring an accounting, in addition to any statutory requirement. However, it appears the trial court may also have cited to Mesler as authority for requiring Corya to render an accounting for each trust all the way back to the date she assumed duties as trustee. The case is not authority for requiring an accounting “from [the trust’s] inception,” as ordered in this case. More importantly, however, there was no issue of laches discussed by the court in Mesler.

Our analysis that statutory laches under section 95.11(6), Florida Statutes (2008), limits the right to an accounting when no accounting has been done is not altered by Mesler, which was decided approximately one year after section 95.11(6) became effective and statutory laches was not discussed. Clearly, Sanders had actual knowledge he had not received accountings for more than four years before he filed suit. Thus, we conclude it was error for the trial court to rely on Mesler as grounds for requiring accountings beyond four years before suit and as grounds for ordering accountings from the inception of each trust.

Conclusion

Having determined the trial court erroneously denied the defense of statutory laches, and incorrectly applied statutes and case law in determining the starting dates for accountings for each trust, we reverse and remand for further proceedings. Because we reverse on significant issues affecting the entitlement to attorney’s fees, we also reverse and remand the rulings on attorney’s fees for further consideration.

Reversed and remanded.

FORST, J., concurs.

WARNER, J.,

concurring in part and dissenting in part.

I concur in the majority opinion, except as to the two Corya trusts. Each of those trusts had a provision that required annual accountings by the trustee to be provided to “beneficiaries eligible within the period covered thereby to receive benefits from the trust which is the subject of said account.” In other words, if a beneficiary was not entitled to a distribution during the accounting period, that beneficiary was not entitled to receive or inspect the annual accounting. As to both trusts, Sanders did not prove that he was eligible to receive any benefits from the trust during any annual period. Since the trust had an express provision which did not require an accounting to Sanders, the trustee was not compelled to furnish an accounting until the enactment of section 736.0105(2)(s), Florida Statutes, in 2007. That statute provided that a trust provision could not prevail over the duty to account pursuant to section 736.0813(l)(c) and (d). As Sanders met the statutory definition of a qualified beneficiary, he was entitled to an accounting, even though the trust provided otherwise. Therefore, I would hold that the trustee had no duty to provide ac-countings prior to the effective date of the statute.

      . We amend the first two sentences in the last paragraph before the “Conclusion” section of our previous opinion and also add a footnote to that paragraph.
      After issuance of our previous opinion, Sanders moved for certification that our opinion conflicts with Taplin v. Taplin, 88 So.3d 344 (Fla. 3rd DCA 2012). We decline to certify conflict because there is no discussion of statutory laches, section 95.11(6), Florida Statutes, in Taplin. Moreover, the only mention of Taplin in the answer brief is one quotation from Taplin in footnote. In addition to not addressing the application of statutory laches to trust proceedings, Taplin addressed dismissal of a complaint at the pleading stage; it did not address the application of limitation of action statutory provisions to facts presented at an evidentiary hearing.

      . Doris is the sole trustee for three of the trusts and a co-trustee for the fourth trust. Paul, her son, is a co-trustee of the fourth trust.

      . All three of Doris's children are over thirty years old.

      . Although section 737.303 was first enacted in 1974, the version of the statute quoted was amended in 1977 to change the subsection number to (4) and to provide:
      (4) A vested beneficiary is entitled to a statement of accounts of the trust annually and upon termination of the trust or upon a change of the trustee.
      (emphasis added). In 2002, the statute was amended further to provide:
      (4)(a) A beneficiary is entitled to a trust accounting, as set forth in s. 737.3035, annually and upon termination of the trust or upon change of the trustee except as provided under paragraph (c) [describing the duty to account during the grantor’s lifetime],
      (b) For purposes of this section, the term “beneficiary” means:
      1. All current income or principal beneficiaries, whether discretionary or mandatory; and
      2. All reasonably ascertainable remainder beneficiaries who would take if all income interests immediately terminated.

      . In Corinthian Investments, Inc. v. Reeder, 555 So.2d 871, 872 (Fla. 2d DCA 1989), the Second District referred to section 95.11(6) as “statutory laches.” See also Nayee v. Nayee, 705 So.2d 961, 963-64 (Fla. 5th DCA 1998) (discussing the inapplicability of section 95.11 to actions against trustees until amended in 1974 to add section 95.11(6)).

        . From the award of attorney’s fees granted by the trial court, it is clear that Sanders is seeking'monetary awards against Corya personally. Counsel for Sanders conceded in oral argument that Sanders intends to pursue further awards of damages against Corya personally for misconduct as trustee, as established by the accountings, once all the ac-countings have been completed.

      . We recognize that section 736.1001, Florida Statutes, effective since 2006, provides for a number of remedies other than damages for a breach of trust. We do not contend that section 95.11(6) applies to such remedies. However, section 95.11(6) does apply to any action seeking monetary awards against the trustee.

      .Even though an action for an accounting is considered an equitable proceeding, it has the features of a legal action. § 736.0106, Fla. Stat. (2008) (“The common law of trusts and principles of equity supplement this code, except to the extent modified by this code or another law of this state.’’) (emphasis added). "An action for an accounting was formerly cognizable both at law and in equity.” Nayee, 705 So.2d at 963 (citing Campbell v. Knight, 92 Fla. 246, 109 So. 577 (1926)).

      9. The correct statutory references are section 736.08135(1) and section 737.3035(1) (now repealed), respectively. Section 736.08135(1) was formerly section 737.3035(1).

      . Because it was not briefed, we do not address whether the annual accountings should have been on a calendar-year basis (in which case the accounting for the initial calendar year may be' for less than a twelvemonth period, depending on what month suit was filed) or on a twelve-month basis. Section 736.0813(l)(d), which creates the statutory duty to account, simply provides account-ings must be at least annually.

      . Because it was not addressed in the briefs, we do not discuss the application of section 736.1008, Florida Statutes (2008), and its predecessor, section 737.307, to any alleged misconduct by Corya.


author: WARNER, J.

text:
    Edwin R. JONAS, III, Appellant, v. Linda B. JONAS, individually and as Trustee of a constructive trust; and Nancy Gold, individually, Appellees.
    No. 4D13-1438.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 2015.

      Roderick V. Hannah of Roderick V. Hannah, P.A., Hollywood, for appellant.
    Eric C. Christu of Shutts & Bowen, LLP, West Palm Beach, for appellee Linda B. Jonas.
   On Motion For Rehearing

WARNER, J.

We deny appellant’s motion for rehearing but vacate the prior opinion and issue the following corrected opinion.

Appellant challenges the trial court’s dismissal, on grounds of comity and the principle of priority, of his action collaterally attacking a domesticated foreign judgment. The court determined that these proceedings arose out of a New Jersey divorce, and taking jurisdiction would interfere with New Jersey’s exercise of jurisdiction. We affirm.

In 1997 and 1999, the appellee/former wife instituted proceedings to domesticate judgments in Florida which arose from the parties’ New Jersey divorce. Those decrees awarded the former wife judgments for unpaid alimony and child support. The New Jersey court also directed the establishment of a constructive trust to be funded with properties owned by the appellant/former husband, which it instructed the former wife to sell. In its order, the court provided that the former wife may pay the judgments from these funds if the former husband otherwise defaulted on his obligations. In the later order, the court also declined to consider the former husband’s claims to an accounting of the constructive trust on the grounds that the husband had left New Jersey and refused to appear in court. The court held that it would adjudicate those claims if the former husband would return to New Jersey to contest them.

In 2002, the former husband filed suit in Florida collaterally attacking the foreign judgment, for breach of trust, breach of fiduciary duty and negligence. He demanded an accounting of the New Jersey constructive trust, as he contended that the former wife had mismanaged the assets of the trust, and the judgments should have been paid from the constructive trust proceeds. Thus, he claimed that the judgments should be satisfied. In July 2003, the Florida court domesticated the New Jersey judgments, after earlier refusing to allow discovery involving credits to the judgment, due to the rulings of the New Jersey courts requiring the former husband to return to litigate those issues there.

Subsequently, the husband filed a second amended complaint in his collateral attack. The proceedings became complicated, and several orders of the Florida courts required the former husband to return to New Jersey to litigate the trust issues. He had filed proceedings to litigate the issue in New Jersey, but the New Jersey court denied his requests for accounting without prejudice, because he had absconded from the jurisdiction. The court ruled that if he would return to the state, those claims would be considered.

In the meantime, the former husband moved to Montana, and the former wife also domesticated the judgments in Montana. The former husband litigated the same claims in Montana as he had filed in Florida. The Montana courts declined jurisdiction, requiring the former husband to return to New Jersey, as demanded by the New Jersey courts, to litigate the matter.

Not to be deterred, the former husband continued to pursue the second amended complaint in Florida, again raising the same claims. Finally, in 2013, upon motion by the former wife, the trial court dismissed the claims based upon priority and comity.

On appeal, the former husband claims that Florida has jurisdiction to adjudicate a collateral attack on a domesticated judgment, citing to Nichols v. Nichols, 613 So.2d 137, 139 (Fla. 4th DCA 1993), which holds that a foreign judgment, domesticated in Florida, can be collaterally attacked based upon extrinsic fraud. Nichols is inapplicable. The former husband is not challenging the validity of the New Jersey judgment; he is claiming that the Florida domesticated judgment should have been satisfied through application of the funds in the constructive trust. All of his claims revolve around the management of the constructive trust by the former wife and the application of its proceeds to satisfying his obligations to her. Nichols does not control this case.

Instead, principles of comity and priority required the court to decline jurisdiction, as the trial court properly found. Proceedings involving this family began in New Jersey in the 1990s. The courts of that state assumed jurisdiction, adjudicated the alimony obligations and child support, and directed the establishment of the constructive trust which is the source of much of the litigation here. Although first ordered to appear in New Jersey in 1999, the former husband refused and left the state. When the former husband, through counsel, sought an accounting of the constructive trust, complaining that the former wife was mismanaging the funds and not using them to satisfy his obligations, the New Jersey courts determined that those claims could be considered when the former husband returned to New Jersey. These orders were appealed and affirmed by the New Jersey courts. Thus, the former husband can obtain in New Jersey the relief he seeks.

Comity requires the courts of this state to refrain from exercising jurisdiction in this case. The New Jersey courts have prior jurisdiction and have demanded that, in order to obtain relief, the former husband return to their jurisdiction, from which he absconded.

When a court is confronted with an action that would involve it in a serious interference with or usurpation of this continuing power, ‘considerations of comity and orderly administration of. justice demand that the nonrendering court should decline jurisdiction * * * and remand the parties for their relief to the rendering court, so long as it is apparent that a remedy is available there.’

Mann Mfg., Inc. v. Hortex, Inc., 439 F.2d 403, 408 (5th Cir.1971) (footnote omitted); see also Cermesoni v. Maneiro, 144 So.3d 627, 630 (Fla. 3d DCA 2014) (quoting Mann). The Montana court also followed that principle when the former husband sought the same relief there. Consistent with the Montana court, we too require the former husband to return to New Jersey to pursue his relief.

While the principle of priority also applies, as New Jersey was the first court to assert jurisdiction, see Siegel v. Siegel, 575 So.2d 1267, 1272 (Fla.1991), the usual remedy in such cases is to stay the subsequent proceeding in favor of the prior proceeding. Under the circumstances of this case, however, the court did not err in dismissing the case rather than issuing a stay. This litigation has been pending in the Florida courts for twelve years. Prior orders of the Florida trial courts have determined that New Jersey is the appropriate forum, yet the former husband has failed to litigate in that forum. The interests of judicial economy and finality require that this action in Florida come to an end. If the former husband is successful in having the judgments in New Jersey satisfied, he can file those satisfactions in Florida and the domesticated judgments •will also be satisfied.

Having been told by two states that he must pursue his claims in New Jersey, the former husband should do so. We affirm the ruling of the trial court.

TAYLOR and KLINGENSMITH, JJ., concur.

      . Order in Jonas v. Jonas, Docket No. FM-00259-89, Superior Court of New Jersey, Chancery Division, Camden County, dated May 19, 1999 (“Defendant's request that the Court order Plaintiff to give an accounting of funds held in constructive trust is denied without prejudice. In the event Defendant returns to the jurisdiction of New Jersey, appears before this Court, and is bound by the Order of this Court, the Court may order an accounting by Plaintiff of trust monies.”).

      . Also delaying further proceedings in Florida was the former husband's bankruptcy in which he filed an Adversary Complaint against his former wife making essentially the same allegations that he made in the Florida complaint. His bankruptcy petition was later dismissed. In various .orders entered in that proceeding, the bankruptcy judge refused the former husband’s requests for an accounting as to the trust assets because of the New Jersey proceedings.


text:
    Leo GREENFIELD, Appellant, v. Wynn WESTMORELAND, et al., Appellees.
    No. 3D06-2081.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 2007.
    Leo Greenfield, in proper person.
    Graham, Builder, Jones, Pratt & Marks and Howard S. Marks and Wendy Shay Temple, Winder Park, for appellees.
    Before SHEPHERD, SUAREZ and ROTHENBERG, JJ.
   PER CURIAM.

Appellees, Wynn Westmoreland, William Moon, and Gerry Christensen, have moved to strike the initial brief of Appellant, Leo Greenfield, as violative of Florida Rule of Appellate Procedure 9.210. We grant the motion to strike.

A cursory review of the initial brief reflects multiple violations of the appellate rules. The Statement of the Case and the Facts is unduly argumentative and contains matters immaterial and impertinent to the controversy between the parties. See Williams v. Winn-Dixie Stores, Inc., 548 So.2d 829 (Fla. 1st DCA 1989)(striking Williams’ initial brief because it was unduly argumentative and contained matters immaterial and impertinent to the controversy between the parties). Citations to the record are inadequate throughout the brief. See Davis v. Sails, 306 So.2d 615 (Fla. 1st DCA 1975)(striking Davis’s initial brief for failure to cite to record in accordance with Florida Rule of Appellate Procedure 9.120(b)(3)). At one point, appellant’s “statement of facts” includes a three-page recitation of purported occurrences in an apparently disputed real estate development matter without a single record citation. Florida Rule of Appellate Procedure 9.210(b)(3) does not countenance this type of conduct. In fact-intensive appeals, frequent citations to the record are required.

Although multiple issues on appeal are raised, the Table of Contents of the Brief does not list the issues or arguments on appeal or places where each may be found. See Fla. R.App. P. 9.210(b)(1). The initial brief itself likewise fails to separately set forth “[ajrgument with regard to each issue including the applicable appellate standard of review” as required by Florida Rule of Appellate Procedure 9.210(b)(5). For these and many other reasons which will be apparent to appellant after he reviews Florida Rule of Appellate Procedure 9.210, the initial brief filed by him is viola-tive of the appellate rules. As a frequent litigant before this court, we are confident the appellant in this case, albeit pro se, is capable of complying with the rules.

The motion to strike appellant’s brief is granted. Appellant shall file within ten days an amended initial brief which fully complies with Florida Rule of Appellate Procedure 9.210. Among other things, appellant shall delete all legal and rhetorical argument contained in the Statement of the Case and the Facts, specifically denominate the points on appeal in the Table of Contents and in the argument section of the brief, and make pinpoint citations to both the record on appeal and any case authority cited in support of the relief he seeks. See Williams v. Winn-Dixie Stores, Inc., 548 So.2d at 829.


text:
    Richard MANNO, Appellant, v. Joseph F. DUNN, Jr., Michael Dunn, Raymond Dunn, Richard Dunn, James Dunn, Individually, and as the Successor Trustee of the Joseph F. Dunn Revocable Living Trust, and James Dunn as Personal Representative of the Estate of Joseph F. Dunn, Sr., Lynn Dunn, The Naval Aviation Museum Foundation, Inc., a/k/a The Naval Air Museum Foundation, Inc., and University of West Florida Foundation, Inc., Appellee.
    No. 1D12-3511.
    District Court of Appeal of Florida, First District.
    Jan. 16, 2013.
    Richard Manno, pro se, Appellant.
    Jack Locklin, Jr., of Locklin & Jones, Milton (no appearance), for Appellees.
   PER CURIAM.

DISMISSED. See Simmons v. Agency for Health Care Admin., 950 So.2d 431 (Fla. 1st DCA 2007); Rowell v. Dept. of Law Enforcement, 700 So.2d 1242 (Fla. 2d DCA 1997); see generally Bondi v. Tucker, 93 So.3d 1106 (Fla. 1st DCA 2012).

THOMAS, CLARK, and SWANSON, JJ., concur.


text:
    Solomon ROBERTS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-1438.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 2014.
    Rehearing Denied Feb. 26, 2014.

      Solomon Roberts, in proper person.
    Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before SHEPHERD, C.J., and WELLS and EMAS, JJ.
   PER CURIAM.

Appellant, Solomon Roberts, appeals from an order denying his pro se motion to withdraw pleas entered more than thirty years ago and requests that this Court treat this appeal as a petition for writ of habeas corpus to correct a manifest injustice. We decline the request to treat the appeal as a petition for writ of habeas corpus and affirm the lower court’s order without further discussion.

ORDER TO SHOW CAUSE

Further, we note that Roberts has filed at least fourteen separate pro se appeals or original proceedings with this Court related to the lower court case numbers 82-8169; 82-9856; and 82-15413. With one exception, this Court has affirmed the lower court or otherwise denied Roberts relief on appeal. Roberts has engaged in the filing of meritless, frivolous and successive claims requiring this Court to expend precious and finite judicial resources which could otherwise be devoted to cases raising legitimate claims. Hedrick v. State, 6 So.3d 688, 691 (Fla. 4th DCA 2009) (noting, “[a] legitimate claim that may-merit relief is more likely to be overlooked if buried within a forest of frivolous claims.”).

While pro se parties must be afforded a genuine and adequate opportunity to exercise their constitutional right of access to the courts, that right is not unfettered. The right to proceed pro se may be forfeited where it is determined, after proper notice and an opportunity to be heard, that the party has abused the judicial process by the continued filing of successive or meritless collateral claims in a criminal proceeding. State v. Spencer, 751 So.2d 47 (Fla.1999). As our sister court aptly described it, there comes a point when “enough is enough.” Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995). Although termination of the right to proceed pro se will undoubtedly impose a burden on a litigant who may be unable to afford counsel, courts must strike a balance between the pro se litigant’s right to participate in the judicial process and the courts’ authority to protect the judicial process from abuse.

Therefore, Appellant Solomon Roberts is hereby directed to show cause, within thirty days from the date of this opinion, why he should not be prohibited from filing any further pro se appeals, pleadings, motions, or petitions relating to his convictions, judgments and sentences in circuit court case numbers 82-8169; 82-9856; and 82-15413. Absent a showing of good cause, we intend to direct the Clerk of the Third District Court of Appeal to refuse to accept any such papers relating to these circuit court case numbers unless they have been reviewed and signed by an attorney who is a duly licensed member of The Florida Bar in good standing.

Additionally, and absent a showing of good cause, any such further and unauthorized pro se filings by Solomon Roberts will subject him to appropriate sanctions, including the issuance of written findings forwarded to the Florida Department of Corrections for its consideration of disciplinary action, including the forfeiture of gain time. See § 944.279(1), Fla. Stat. (2012).

      . See Roberts v. State, 83 So.3d 734 (Fla. 3d DCA 2012); Roberts v. State, 13 So.3d 481 (Fla. 3d DCA 2009); Roberts v. State, 11 So.3d 959 (Fla. 3d DCA 2009); Roberts v. State, 967 So.2d 211 (Fla. 3d DCA 2007); Roberts v. State, 962 So.2d 915 (Fla. 3d DCA 2007); Roberts v. State, 939 So.2d 109 (Fla. 3d DCA 2006); Roberts v. State, 932 So.2d 206 (Fla. 3d DCA 2006); Roberts v. State, 919 So.2d 454 (Fla. 3d DCA 2005); Roberts v. State, 905 So.2d 896 (Fla. 3d DCA 2005); Roberts v. State, 768 So.2d 460 (Fla. 3d DCA 2000); Roberts v. State, 761 So.2d 1119 (Fla. 3d DCA 2000); Roberts v. State, 684 So.2d 1368 (Fla. 3d DCA 1996); Roberts v. State, 656 So.2d 1290 (Fla. 3d DCA 1995); Roberts v. State, 561 So.2d 1157 (Fla. 3d DCA 1990).

      . The singular exception is Roberts v. State, 821 So.2d 1144 (Fla. 3d DCA 2002), in which Roberts successfully argued that the trial court lacked statutory authority to retain jurisdiction over one-third of his life sentence. Although we granted this limited relief, we also denied relief on the other claims asserted in that appeal, noting "[a]ll other issues raised by Roberts are successive and have previously been denied.” Id.


author: DAVIS, Chief Judge.

text:
    Michael Anthony WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-1394.
    District Court of Appeal of Florida, Second District.
    Feb. 26, 2014.
    Howard L. Dimmig, II, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Appellant.
   DAVIS, Chief Judge.

Michael Anthony Williams challenges the convictions and sentences entered following his no contest plea to charges of dealing in stolen property and providing false information on a secondary metals recycling form. We affirm without comment. But the State correctly notes that the box checked on the plea form erroneously reflects that a guilty plea was entered. It is clear from both the transcript of the plea hearing and the written judgment that Mr. Williams entered a no contest plea. We therefore remand for the limited purpose of correcting the written plea form to reflect that a no contest plea was entered. See Floyd v. State, 929 So.2d 1191 (Fla. 4th DCA 2006).

Affirmed; remanded.

LaROSE and KHOUZAM, JJ., Concur.


text:
    Phillip Earl CRENSHAW, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0601.
    District Court of Appeal of Florida, First District.
    Feb. 26, 2014.
    Phillip Earl Crenshaw, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

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


author: MAY, J.

text:
    Alwin C. TUMBLIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4169.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2014.
    Rehearing Denied April 25, 2014.

      Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals his conviction and life sentence for first-degree murder and robbery with a deadly weapon. He argues the trial court erred in four ways: (1) admitting part of his statement; (2) finding no discovery violation; (8) overruling his objection to the prosecutor’s comment on the co-defendant’s plea; and (4) not declaring a mistrial when a juror experienced emotional difficulty during deliberations. We find no error, but write to compliment the trial court on it's handling of the juror issue.

The State charged the defendant and a co-defendant with the robbery and shooting death of the victim. Among other issues, the defendant claims the trial court erred in denying his motion for mistrial because the court’s comments to a juror during a time in which she experienced some emotional difficulty coerced her into finding him guilty. The State responds that there was no coercion, and that the trial court correctly handled the issue. We agree with the State.

“There is a tension between the trial judge’s obligation to the justice system to shepard [sic] a case to its final resolution and a defendant’s right to have a jury verdict free of that coercion which might compel a juror to ‘reach a hasty decision or to abandon a conscientious belief.’ ” Washington v. State, 758 So.2d 1148, 1154 (Fla. 4th DCA 2000) (quoting Thomas v. State, 748 So.2d 970, 976 (Fla. 1999)). To prevent coercion, “ ‘[n]othing should be said ... that would or could likely influence the decision of a single juror to abandon his conscientious belief as to the correctness of his position.’ ” Nelson v. State, 438 So.2d 1060, 1062 (Fla. 4th DCA 1983) (quoting Lee v. State, 239 So.2d 136, 139 (Fla. 1st DCA 1970)).

During jury deliberations, a juror left the jury room and appeared upset. Defense counsel objected to questioning the juror and moved for mistrial. The trial court overruled the objection and inquired as to whether the juror could continue with the deliberations. The juror first indicated that she did not know if she could continue. The judge then asked if she needed more time to think about it, and the juror responded that she could continue with deliberations. The judge did not pressure her into giving an answer; he gave the juror an opportunity to continue, which she accepted.

In this unique situation, the trial court properly determined, without influencing or pressuring the juror, that she could continue deliberating. We see no error and affirm.

Affirmed.

TAYLOR and FORST, JJ., concur.


author: CASANUEVA, Judge.

text:
    Martin EHMAN, Appellant, v. Melanie EHMAN, Appellee.
    No. 2D12-5995.
    District Court of Appeal of Florida, Second District.
    March 26, 2014.
    Rehearing Denied May 1, 2014.
    Jordan L. Wallaeh of Jordan L. Wallach, P.A., Sarasota, for Appellant.
    Michael Moran of Law Offices of Michael Moran, Sarasota, for Appellee.
   CASANUEVA, Judge.

Martin Ehman, the Husband, appeals a final judgment dissolving his marriage to Melanie Ehman, the Wife, contending that the trial court erred in four material respects. First, he argues that the trial court erred in awarding three properties to the Wife as part of the equitable distribution of marital assets, because the titled owner of the property was never made a party to the dissolution action. The next two claimed errors are that the trial court erred in failing to make the statutory findings required for an award of permanent alimony and in failing to make necessary findings regarding the value of the marital assets and debts. Finally, the Husband contends that the trial court erred in striking his pleadings and entering a default against him.

We find no reversible error in the Husband’s last three arguments. See Wilcox v. Munoz, 35 So.3d 136, 139 (Fla. 2d DCA 2010) (“[I]n cases involving equitable distribution and alimony, this court has held that the lack of a transcript precludes a party from establishing that any error in failing to make the required findings was harmful.”). Nevertheless, because we conclude that the trial court erred in awarding the three properties to the Wife, on remand the trial court will again have to address the equitable distribution of the parties’ assets and the amount of alimony awarded to the Wife.

I. PROCEDURAL HISTORY

The parties were married on October 10, 1998, and the Wife filed a petition for dissolution of marriage on January 26, 2011. When the Husband failed to file any pleading in the case for three months, the Wife filed a motion for default on April 27, 2011. Thereafter on June 7, 2011, the Husband filed a motion to set aside the default and dismiss the petition, and the trial court set aside the default on June 28, 2011.

On January 25, 2012, the Wife filed a motion asking the trial court to strike the Husband’s pleadings and to enter a judicial default. The motion was based on the Husband’s failure to attend a mediation and two depositions and his failure to provide a litany of documents in discovery. On April 5, 2012, the trial court denied the Wife’s motion but ordered the Husband to either produce certain documents requested in discovery within thirty days or provide written proof that he attempted to obtain the documents.

On July 30, 2012, the Wife filed another motion asking the trial court to strike the Husband’s pleadings based on his failure to provide discovery documents or proof that he requested the documents. On September 10, 2012, the trial court granted the Wife’s motion, struck the Husband’s pleadings, and entered a judicial default against him. Thereafter, a final default hearing took place on October 30, 2012, and the trial court entered the final judgment of dissolution of marriage on October 30, 2012. There is no transcript of the final default hearing.

II. EQUITABLE DISTRIBUTION OF PROPERTY

The final judgment awarded the Wife three properties that belonged to Tierra Technologies, LLC: a condominium located in Ogden, Utah; a home in Palmetto, Florida; and a mobile home which appears to be located in Bradenton, Florida. This was improper because Tierra Technologies has never been a party in the dissolution proceedings.

A similar situation arose concerning the award of a Mercedes automobile in a marital distribution scheme in Keller v. Keller, 521 So.2d 273 (Fla. 5th DCA 1988). In reviewing this award the Fifth District said:

The problem with the award of the Mercedes is that it was owned by a corporation in which the appellant owned 87% of the stock, not by the appellant himself. This corporation was not joined as a party and, thus, the trial court had no power to transfer this corporate asset.

Id. at 276 (citing Feldman v. Feldman, 390 So.2d 1231 (Fla. 3d DCA 1980)).

Here, Tierra Technologies was never brought in as a party to this dissolution proceeding, and the trial court did not have the power or authority to transfer the property of a corporation without the join-der of that entity. See Mathes v. Mathes, 91 So.3d 207, 208 (Fla. 2d DCA 2012); see also Minsky v. Minsky, 779 So.2d 375, 377 (Fla. 2d DCA 2000) (“In this dissolution action, the trial court does not have jurisdiction to adjudicate property rights of nonparties.”); cf. Austin v. Austin, 120 So.3d 669, 674 (Fla. 1st DCA 2013) (“[A] trial court has the power to value and distribute corporate stock determined to be a marital asset.” (citing Mathes, 91 So.3d at 208)). Consequently, because the trial court did not have jurisdiction over Tierra Technologies, it was error to award property owned by Tierra Technologies to the Wife as part of the equitable distribution of marital assets.

We note a procedural concern that arose in this case. Following the default against the Husband, the Wife filed a “Notice of Final Default Hearing.” This proceeding should have been treated as a nonjury trial. Florida Family Law Rule of Procedure 12.440(a) states that the trial court must enter an order setting the dissolution action for trial, even where a default has been entered against a party. Because this issue was not preserved, we do not reach it. But we note that the failure to comply with rule 12.440(a) could result in a reversal. See Merrigan v. Merrigan, 947 So.2d 668, 670 (Fla. 2d DCA 2007).

On remand, because the default was properly entered against the Husband, all well-pleaded facts are deemed admitted and relief specifically prayed for is acquiesced to. See Baricchi v. Barry, 2014 WL 185203, 39 Fla. L. Weekly D170, D171 (Fla. 2d DCA Jan. 17, 2014) (citing Longo v. Longo, 576 So.2d 402, 403 (Fla. 2d DCA 1991)). Thus, the Wife’s entitlement to equitable distribution and alimony were conceded by the Husband, but the amount of alimony and the form of equitable distribution must be determined by the trial court. See id.; cf. Ries v. Ries, 984 So.2d 612, 614 (Fla. 4th DCA 2008) (finding no abuse of discretion where trial court prohibited former husband from presenting evidence as to alimony, equitable distribution, and attorney’s fees where default had been entered and former husband failed to respond to discovery and did not file financial affidavit).

CONCLUSION

Accordingly, we reverse the award of the property titled in the name of Tierra Technologies to the Wife. Because the three properties were an essential component of the equitable distribution award, upon remand the trial court must address both alimony and equitable distribution. See Prest v. Tracy, 749 So.2d 538, 540 (Fla. 2d DCA 2000) (“Because the trial court must address the equitable distribution of property on remand and because the distribution may affect the award of permanent periodic alimony, we also reverse the award of permanent periodic alimony and remand for reconsideration by the trial court.”). We remind the trial court that it will be required to again make findings pursuant to sections 61.08(2) and 61.075(3), Florida Statutes (2011). See Turcotte v. Turcotte, 122 So.3d 954, 957 (Fla. 2d DCA 2013); Patino v. Patino, 122 So.3d 961, 963 (Fla. 4th DCA 2013). We do not set aside the trial court’s judgment dissolving the parties’ marriage.

Affirmed in part, reversed in part, and remanded with instructions.

KELLY and MORRIS, JJ., Concur.


author: COHEN, J.

text:
    Algie SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-71.
    District Court of Appeal of Florida, Fifth District.
    April 4, 2014.

      Algie Scott, Sneads, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen Corrente, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   COHEN, J.

Algie Scott appeals from an amended order summarily denying ground one of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. On appeal, he argues that the trial court lacked jurisdiction to enter the order. We agree and reverse.

In 2008, Scott was convicted of selling cocaine within 1,000 feet of a place of worship or convenience business and was sentenced as a habitual offender. Scott unsuccessfully appealed that conviction.. Subsequently, Scott filed a rule 3.850 motion for postconviction relief, alleging in ground one that his counsel was ineffective for failing to object to the State’s use of his prior felony petit theft conviction to support its request for a habitual offender sentence enhancement. The trial court summarily denied that motion and Scott appealed. In an opinion dated December 6, 2013, we reversed in part, remanding with instructions for the lower court to either attach portions of the record that conclusively refuted the claim made in ground one or conduct an evidentiary hearing on that claim. See Scott v. State, 128 So.3d 191, 192 (Fla. 5th DCA 2013). In what can only be described as a model of efficiency, the trial court, within a week of the issuance of our opinion, entered an amended order denying Scott’s claim, this time attaching portions of the record in support of the denial. Over two weeks later, on December 30, 2013, this Court issued the mandate in Scott’s case.

Scott once again appeals, raising two arguments. First, he argues that the trial court lacked jurisdiction to enter the amended order before the December 30th issuance of the mandate. Second, he submits that the portions of the record attached by the trial court did not, in fact, conclusively refute ground one of his rule 3.850 motion.

Scott’s jurisdiction argument has merit. See Smith v. State, 997 So.2d 507 (Fla. 5th DCA 2008) (holding that trial court lacked jurisdiction to enter order before mandate issued). The trial court lacked jurisdiction to enter the amended order until December 30, 2013, the date the mandate was issued. As reluctant as we are to punish efficiency, we must remand the case. Should the trial court decide to simply reissue the order, we will address Scott’s other argument at the appropriate time, assuming he chooses to appeal.

REVERSED and REMANDED.

ORFINGER and WALLIS, JJ., concur.


author: GUIDRY, Justice.

text:
    In re Justice of the Peace Stacie P. MYERS.
    No. 2014-O-1528.
    Supreme Court of Louisiana.
    Oct. 15, 2014.
    Rehearing Denied Dec. 8, 2014.
    Office of Special Counsel, Mary Frances Whitney, Michael Bewers, for Applicant.
    Justice of the Pease Stacie P. Meyers, for Respondent.
    Clare Dolores Fiasconaro, Commission Counsel.
   JUDICIARY COMMISSION OF LOUISIANA

GUIDRY, Justice.

|, This matter arises from a recommendation of the Judiciary Commission of Louisiana (“Commission”) regarding the failure of Justice of the Peace Stacie P. Myers, Point Coupee Parish, District 4, to file a sworn annual financial statement with the Louisiana Legislative Auditor in accordance with La.Rev.Stat. 24:514 for calendar years 2007, 2008, and 2009. We find the record establishes by clear and convincing evidence that Justice of the Peace Myers failed to comply with the filing requirement of La.Rev.Stat. 24:514, thereby subjecting her to discipline. After considering the facts, circumstances, and applicable law, Justice of the Peace Myers is ordered suspended without pay for twelve months, with six months deferred conditioned on her filing the requisite sworn annual financial statements for years 2007, 2008, and 2009 within three months of the date of this judgment. Justice of the Peace Myers is further ordered to reimburse and pay to the Commission $246.70 in costs.

FACTS and PROCEDURAL HISTORY

In lieu of undergoing a formal audit, La. Rev. Stat 24:514, and more specifically La. Rev.Stat. 24:513(J)(l)(c)(i)(cc), requires justices of the peace to file a sworn annual financial statement with the Louisiana Legislative Auditor by March 31st of each year for the previous calendar year. Officials who fail to file timely financial statements are notified by letter that their names have been placed |2on a noncompliance list. According to a database maintained by the Legislative Auditor, respondent failed to file her annual financial statement for the calendar years ending on December 31, 2007, December 31, 2008, and December 31, 2009. As of May 2013, when the hearing was held in this matter, respondent was still out of compliance for the years 2007, 2008, and 2009.

In November 2010, New Orleans television station WDSU-TV reported on its website that the Legislative Auditor had compiled a noncompliance list of elected officials who had failed to file the sworn annual financial statements required by Louisiana law. This list included respondent and indicated she had failed to submit financial statements for the years 2007, 2008, and 2009. In December 2010, the Chief Executive Officer of the Commission authorized the Office of Special Counsel to open a file regarding respondent based on the news report.

Respondent did not respond to inquiry letters from the Special Counsel sent in March 2011 and October 2011 regarding her failure to submit her financial statements. After providing the requisite notice of investigation to respondent, the Commission filed a Formal Charge against her in December 2012. The Formal Charge alleged that by her failure to file her sworn annual financial statements with the Legislative Auditory, and by continuing to fail to file such reports despite notice to her that she was out of compliance with her statutory duty, respondent violated Canons 1 (a judge shall uphold the integrity and independence of the judiciary) and 2A (a judge shall respect and comply with the law) of the Code of Judicial Conduct and La. Const. art. V, § 25(C). Respondent failed to file an answer to the Formal Charge.

A hearing officer was appointed to conduct proceedings in this matter pursuant to Supreme Court Rule XXIII, § 29. The hearing officer convened a | shearing on May 6, 2013. Though she was personally served with a subpoena for her presence at the hearing, respondent did not attend the hearing and was not represented by counsel. She was, however, reached by telephone shortly before the start of the hearing, at which time she stated that she would not be present “because of transportation issues.” The hearing then proceeded without respondent.

Following the hearing, the hearing officer filed findings of fact and conclusions of law with the Commission. Thereafter, the Commission established a briefing schedule, as required by Supreme Court Rule XXIII, § 29, and ordered respondent to appear on September 20, 2013, for questioning by the Commissioners. Respondent did not file a brief and she failed to appear before the Commission as ordered. On July 16, 2014, the Commission filed its recommendation in this court, finding that the Formal Charge was proven by clear and convincing evidence and recommending that respondent be suspended without pay for six months.

DISCUSSION

This court is vested with exclusive original jurisdiction in judicial disciplinary proceedings by La. Const. art. 5, § 25(C), which provides, in pertinent part:

On recommendation of the judiciary commission, the supreme court may censure, suspend with or without salary, remove from office, or retire involuntarily a judge for willful misconduct relating to his official duty, willful and persistent failure to perform his duty, persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute, conduct while in office which would constitute a felony, or conviction of a felony.

This court makes determinations of fact based on the evidence in the record and is not bound by, nor required to give any weight to, the findings and | recommendations of the Judiciary Commission. In re: Quirk, 97-1143 pp. 3-4 (La.12/12/97), 705 So.2d 172, 176.

In addition to the substantive grounds for disciplinary action listed in the Louisiana Constitution, this court, in accordance with its supervisory authority over all lower courts, has adopted the Code of Judicial Conduct, effective January 1, 1976, and amended July 8, 1996. The Code of Judicial Conduct is binding on all judges, including justices of the peace, and violations of the Canons contained therein may serve as a basis for the disciplinary action provided for by La. Const. art. V, § 25(C). In re: Quirk, 97-1143 at 4, 705 So.2d at 176.

Adopting the findings of fact and conclusions of fact and law set forth by the Commission, we find the record establishes by clear and convincing evidence that Justice of the Peace Myers failed to comply with the filing requirement of La.Rev.Stat. 24:514, thereby violating the Code of Judicial Conduct and subjecting her to discipline under La. Const. art. V, § 25(C). By failing to file her financial statements with the Legislative Auditor for the years 2007, 2008, and 2009, respondent failed to personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved, in violation of Canon 1 of the Code of Judicial Conduct. In order to “personally observe high standards of conduct,” a judicial officer must at the very least comply with the law. The Louisiana Legislature has mandated that all justices of the peace, in lieu of undergoing an audit, submit financial statements to the Legislative Auditor. La. Rev. Stats. 24:513 and 514. The purpose for submitting financial statements is to ensure the integrity and protect the independence of justices of the peace in their handling of public funds. Thus, respondent failed to personally observe high standards of conduct by failing to follow a law designed to uphold the integrity and independence of her judicial office. In addition, respondent’s non-compliance was | Bdocumented by the Legislative Auditor and publicized by WDSU-TV in a report on its website.

Respondent also failed to respect and comply with the law and acted in a manner that does not promote public confidence in the integrity and impartiality of the judiciary, in violation of Canon 2A. More specifically, the negative publicity generated did not “promote public confidence in the integrity and impartiality of the judiciary” and thus constitutes a clear violation of Canon 2A.

Likewise, by failing to file her financial statements as required by law for three consecutive years, respondent’s conduct rises to the level of willful misconduct relating to her official duty and willful and persistent failure to perform her duty, in violation of La. Const. art. V, § 25(C). Respondent’s official duty, as set by La. Rev.Stat. 24:513 and 514, includes filling out an annual financial statement and returning it to the Legislative Auditor prior to March 31st every year. Respondent failed to do so for the years 2007, 2008, and 2009, thereby creating the potential for serious harm to the public. Although there has been no allegation respondent has engaged in financial fraud or misconduct, the financial statement requirement exists to ensure transparency and completeness in accounting for public funds. Failure to complete the financial statements and properly file them creates the opportunity for negligence or even fraud and, at the very least, erodes confidence in public officials. Moreover, respondent has a history of failing to comply with the requirements of her office. Her history of willful and knowing noncompliance with the financial disclosure requirements of Supreme Court Rule XXXIX shows that her failure to file her financial statement as required by the | ^Legislative Auditor is not just a matter of forgetfulness or confusion; rather, it shows a pattern of misconduct which is both willful and persistent.

In recommending discipline, the Commission looked to the factors set forth by this court in In re: Chaisson, 549 So.2d 259 (La.1989). We agree with and adopt the Commission’s reasoning. Respondent’s failure to file her sworn annual financial statements with the Legislative Auditor for 2007, 2008, and 2009 cannot be deemed an isolated event; rather, the acts of misconduct occurred repeatedly and constituted a willful and persistent pattern of misconduct. This pattern is further evidenced by the fact that respondent has twice been fined by this court for willfully and knowingly failing to comply with the financial disclosure requirements of Supreme Court Rule XXXIX for calendar years 2009 and 2010.

Although respondent’s misconduct did not occur in the courtroom, it occurred in her official capacity as a justice of the peace for District 4 of Pointe Coupee Parish. Additionally, there is ample evidence respondent is aware of her misconduct, having received numerous notifications; however, she does not recognize the seriousness of her misconduct and has made absolutely no effort to change her conduct.

|7We agree with the Commission that respondent has shown an appalling level of indifference to the Judiciary Commission in its investigation and prosecution of this case. Respondent failed to respond to the Special Counsel’s initial inquiry letters. She failed to file an answer to the Formal Charge. She failed to obey a duly issued and served subpoena to appear at the hearing before the Hearing Officer. She failed to file a post-hearing brief with the Commission, although she was given the opportunity to do so. Finally, respondent ignored the order of the Commission requiring her to appear before the Commissioners for questioning. Despite Commission proceedings, respondent continued to fail to file sworn financial statements for 2007, 2008, and 2009 and remained on the Legislative Auditor’s noncompliance list through at least May 8, 2013.

Respondent has shown a flagrant disregard for the law, her duty to file her annual financial statements, and the orders of the Commission. Although she filed a financial statement with the Legislative Auditor for 2010, she did not file her 2012 report, which was due in March 2013, shortly after she was served with the Formal Charge in this case in January 2013.

Respondent has held her judicial office continuously since December 31, 2002; therefore, at the time this matter arose, in November 2010, respondent was not a new justice of the peace and should have been very familiar with her ethical obligations pursuant to the Code of Judicial Conduct and the Louisiana Constitution. Unfortunately, this justice of the peace has been the subject of prior complaints. See Note 1, supra.

As discussed in greater detail above, we find respondent’s actions have harmed the integrity of and respect for the judiciary. There can be little doubt that the failure of a justice of the peace to comply with laws intended to ensure the transparency and completeness in accounting for public funds creates the ^opportunity for negligence, or even fraud, and at a minimum erodes confidence in public officials. Finally, there is no indication respondent exploited her position to satisfy her personal desires, save for her desire not to be bothered with completing the minimal paperwork required to comply with the law. Nevertheless, in the absence of respondent filing the financial statements, we cannot say for certain whether she is exploiting her position to satisfy her personal desires.

Although the Commission recommended a six-month suspension without pay, as well as the payment of hard costs of $246.70, we find respondent’s conduct merits a lengthier suspension of twelve months without pay. However, we will defer six months of that suspension bn the condition that respondent file her delinquent financial statements within three months of the date of this judgment. Should respondent fail to file the financial statements as ordered, the remainder of the suspension shall become executory. Respondent is further ordered to reimburse and pay all hard costs to the Commission.

DECREE

Upon review of the findings and recommendation of the Judiciary Commission, and considering the record filed herein, we conclude Justice of the Peace Stacie P. Myers’s conduct violated Canons 1 and 2(A) of the Code of Judicial Conduct, subjecting her to discipline pursuant to Art. V, Sect. 25(C) of the Louisiana Constitution. Accordingly, Justice of the Peace Myers is ordered suspended from judicial office without pay for twelve months, with six months deferred conditioned on her filing the requisite sworn annual financial statements for years 2007, 2008, and 2009 within three months of the date of this judgment. Justice of the Peace Myers is further ordered to reimburse and pay to the Commission $246.70 in costs.

      . On October 25, 2011, this court imposed a $500 civil penalty upon respondent for her willful and knowing violation of the financial disclosure requirements of Supreme Court Rule XXXIX for calendar year 2009. In re: Myers, 11-0874 (La.10/25/11), 74 So.3d 672 (“Myers I”). On December 4, 2012, this court imposed a $1,500 civil penalty upon respondent for her willful and knowing violation of the financial disclosure requirements of Rule XXXIX for calendar year 2010. In re: Myers, 12-1500 (La.12/4/12), 105 So.3d 679 (“Myers II ").

      . In Chaisson, this court, citing Matter of Deming, 108 Wash.2d 82, 736 P.2d 639, 659 (1987), set forth a non-exclusive list of factors a court may consider in imposing discipline on a judge:
      (a) whether the misconduct is an isolated instance or evidenced a pattern of conduct; (b) the nature, extent and frequency of occurrence of the acts of misconduct; (c) whether the misconduct occurred in or out of the courtroom; (d) whether the misconduct occurred in the judge's official capacity or in his private life; (e) whether the judge has acknowledged or recognized that the acts occurred; (0 whether the judge has evidenced an effort to change or modify his conduct; (g) the length of service on the bench; (h) whether there have been prior complaints about this judge; (i) the effect the misconduct has upon the integrity of and respect for the judiciary; and (j) the extent to which the judge exploited his position to satisfy his personal desires.