author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Lanell WILLIAMS-YULEE, Respondent.
    No. SC11-265.
    Supreme Court of Florida.
    May 1, 2014.

      John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, FL; Adria E. Quíntela, Staff Counsel, The Florida Bar, Sunrise, FL; and Jodi Anderson Thompson, Bar Counsel, The Florida Bar, Tampa, FL, for Complainant.
    Ernest Jay Myers, Orlando, FL, for Respondent.
    Honorable Roberto Arias, Chair, Judicial Ethics Advisory Committee, Jacksonville, FL; and James Calvin Goodlett, Staff Counsel, Judicial Ethics Advisory Committee, Tallahassee, FL, Responding with comments.
   PER CURIAM.

We have for review a referee’s report recommending that the Respondent, La-nell Williams-Yulee, be found guilty of professional misconduct. The referee recommended that the Respondent receive a public reprimand as a sanction. We have jurisdiction. See art. V, § 15, Fla. Const.

For the reasons explained below, we approve the referee’s findings of fact and recommendation that the Respondent be found guilty of violating Rule Regulating the Florida Bar 4 — 8.2(b) (Judicial and Legal Officials, Candidates for Judicial Office; Code of Judicial Conduct Applies) for personally soliciting campaign contributions in violation of Canon 7C(1) of the Florida Code of Judicial Conduct. We therefore reject the Respondent’s constitutional challenge to the ban imposed by Canon 7C(1) on a judicial candidate’s personal solicitation of campaign contributions, and hold that the Canon is constitutional because it promotes the State’s compelling interests in preserving the integrity of the judiciary and maintaining the public’s confidence in an impartial judiciary, and that it is narrowly tailored to effectuate those interests.

We disapprove the referee’s findings of fact and recommendation of guilt regarding the Respondent’s alleged violation of rules 3-4.8 (Misconduct and minor misconduct) and 4-8.4(a) (a lawyer shall not violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another). We approve the referee’s recommended sanction of a public reprimand.

FACTS

The Florida Bar filed a complaint against the Respondent, alleging that she engaged in misconduct in violation of the Rules Regulating the Florida Bar. A referee was appointed, but the proceedings were stayed pending this Court’s disposition of Inquiry Concerning a Judge, N. James Turner, No. SC09-1182, which involved the same First Amendment constitutional challenge to Canon 7C(1) that the Respondent raised before the referee and has now raised on review. Ultimately, however, this Court declined to decide the First Amendment issue in that case. See In re Turner, 76 So.3d 898, 901 (Fla.2011).

Following this Court’s resolution of Turner, the stay was lifted and the referee heard the Respondent’s motion challenging the sufficiency of the complaint on the dual bases of delay and the constitutionality of Canon 7C(1). The referee denied the Respondent’s motion. After holding hearings, the referee submitted a report to the Court, making the following factual findings and recommendations.

In September 2009, the Respondent became a candidate for County Court Judge, Group 10, Hillsborough County, Florida. On September 4, 2009, the Respondent signed a campaign fundraising letter, in which she personally solicited campaign contributions. The Respondent admitted to having reviewed and approved the letter.

At the time she signed the letter, no other candidate for the judgeship had been announced. In addition to soliciting campaign contributions, the letter stated that the Respondent served the “community as Public Defender,” though her correct title was “assistant public defender.” The letter also included a link to the Respondent’s website, which correctly referenced her work history as an assistant public defender.

The referee found “that the term public defender is widely used to refer to the specific attorney assigned to a case and not necessarily the elected public defender.” A newspaper article published on November 3, 2009, included the Respondent’s representation to a reporter that there was no incumbent in the judicial race for which the Respondent was running.

Before the referee, The Florida Bar alleged that the Respondent’s campaign manager incorrectly posted on the Respondent’s campaign website that the Respondent was “judge elect,” even though the Respondent had never been a judge and had not been elected. The referee rejected the Bar’s argument, finding “that the Respondent took reasonable action in directing the campaign manager to obtain her approval prior to making any changes to her website.” The referee also found that the Respondent “did not order, have knowledge of, or ratify the campaign manager’s actions” regarding the posting of “judge elect.”

Based upon the foregoing facts, the referee recommended that the Respondent be found guilty of violating Rules Regulating the Florida Bar 8-4.3 (Misconduct and minor misconduct), 4 — 8.2(b) (Judicial and Legal Officials, Candidates for Judicial Office; Code of Judicial Conduct Applies), and 4-8.4(a) (a lawyer shall not violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another). The referee recommended that the Respondent be found not guilty of violating rule 4 — 5.3(b) (Responsibilities Regarding Nonlawyer Assistants; Supervisory Responsibility), which the Bar alleged the Respondent had violated based on the campaign manager’s inaccurate posting on the website.

Regarding the solicitation of campaign funds in her letter signed September 4, 2009, the referee rejected the Respondent’s testimony that she understood Canon 7C(1) of the Code of Judicial Conduct would apply only if there were another candidate in the judicial race. Canon 7C(1) provides in pertinent part as follows: “A candidate ... for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds.... ” In finding that the Respondent violated Canon 7C(1), the referee stated that “[i]t is clear that the use of ‘election between competing candidates’ is used to describe the type of judicial office where the prohibition would apply.”

In addressing the Respondent’s statement to the newspaper reporter, the referee found that the Respondent misrepresented the fact that there was no incumbent in the judicial race for which she was running. Further, the referee found that the Respondent’s misrepresentation was published in a newspaper article on November 8, 2009.

With respect to discipline, the referee considered the Respondent’s personal history, finding that the Respondent was admitted to The Florida Bar in 1991 and does not have any prior disciplinary history. Additionally, the referee found no aggravating factors and found the following mitigating factors: absence of a prior disciplinary record; absence of a dishonest or selfish motive; timely good faith effort to make restitution or to rectify consequences of misconduct; and full and free disclosure to disciplinary board or cooperative attitude toward proceedings. The referee consequently recommended that the Respondent receive a public reprimand and awarded costs to The Florida Bar in the amount of $1,860.80.

ANALYSIS

The Respondent seeks review of the referee’s factual finding that she made a misrepresentation to a reporter; the referee’s recommendations of guilt as to rules 3-4.3, 4-8.2(b), and 4-8.4(a); and the referee’s recommended discipline, which calls for a public reprimand and payment of costs to The Florida Bar.

This Court’s standard of review for evaluating a referee’s factual findings is limited, and if a referee’s findings of fact are supported by competent, substantial evidence in the record, this Court will not reweigh the evidence and substitute its judgment for that of the referee. See Fla. Bar v. Frederick, 756 So.2d 79, 86 (Fla.2000). The Court has repeatedly stated that the referee’s factual findings must be sufficient under the applicable rules to support the recommendations as to guilt. See Fla. Bar v. Shoureas, 913 So.2d 554, 557-58 (Fla.2005).

Violation of Rule 4-8.2(b)

The Respondent first challenges the referee’s recommendation that she be found guilty of violating rule 4-8.2(b) (Judicial and Legal Officials, Candidates for Judicial Office; Code of Judicial Conduct Applies). With respect to this rule violation, the Respondent does not challenge the referee’s factual findings. Instead, the Respondent admits that she signed the letter soliciting campaign funds, but attempts to justify her misconduct by explaining that she signed the letter while under the impression that Canon 7C(1) did not apply to her since, at the time she signed the letter, there was no other candidate in the race.

The Respondent now understands that the prohibition against solicitation by a judicial candidate applied to her. Nevertheless, even though the Respondent admits that Canon 7C(1) applied to her, she asserts that the referee’s recommendation of guilt is incorrect because Canon 7C(1) is unconstitutional in that it limits a judicial candidate’s right to engage in free speech by prohibiting a judicial candidate from directly soliciting campaign contributions.

Canon 7C(1) provides in pertinent part as follows:

A candidate .'.. for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds, or solicit attorneys for publicly stated support, but may establish committees of responsible persons to secure and manage the expenditure of funds for the candidate’s campaign and to obtain public statements of support for his or her candidacy. Such committees are not prohibited from soliciting campaign contributions and public support from any person or corporation authorized by law.

On its face, Canon 7C(1) prohibits a judicial candidate from personally soliciting campaign contributions.

This Court recognizes that by prohibiting judicial candidates from personally soliciting campaign contributions, Canon 7C(1) clearly restricts a judicial candidate’s speech. Therefore, in order to be constitutional and not in violation of the First Amendment, Canon 7C(1) must be narrowly tailored to serve a compelling state interest. See Firestone v. News-Press Publ’g Co., 538 So.2d 457, 459 (Fla.1989) (“Restrictions on first amendment rights must be supported by a compelling, governmental interest and must be narrowly drawn to insure that there is no more infringement than is necessary.”).

As this Court has previously stated, Florida has “a compelling state interest in preserving the integrity of [its] judiciary and maintaining the public’s confidence in an impartial judiciary.” In re Kinsey, 842 So.2d 77, 87 (Fla.2003) (citing In re Code of Judicial Conduct (Canons 1, 2, & 7A(l)(b)), 603 So.2d 494, 497 (Fla.1992)). Florida is certainly not alone in this regard. Other state supreme courts to address the constitutionality of judicial ethics canons comparable to Canon 7C(1) have held that similar State interests are compelling. See Simes v. Ark. Judicial Discipline & Disability Comm’n, 368 Ark. 577, 247 S.W.3d 876, 881 (2007); In re Dunleavy, 838 A.2d 338, 351 (Me.2003); In re Fadeley, 310 Or. 548, 802 P.2d 31, 41 (1990).

Over twenty years ago, the Oregon Supreme Court, in upholding a judicial ethics canon similar to Florida’s Canon 7C(1), stated that the compelling State interest served by the solicitation restriction

is the state’s interest in maintaining, not only the integrity of the judiciary, but also the appearance of that integrity. The persons most actively interested in judicial races, and the persons who are the most consistent contributors to judicial campaigns, are lawyers and potential litigants. The impression created when a lawyer or potential litigant, who may from time to time come before a particular judge, contributes to the campaign of that judge is always unfortunate. Although many or most lawyers may act with pure motives, viz., to ensure a qualified judiciary and to ensure vigorous public debate, the outside observer cannot but think that the lawyer or potential litigant either expects to get special treatment from the judge or, at the least, hopes to get such treatment. It follows that, if it is at all possible to do so, the spectacle of lawyers or potential litigants directly handing over money to judicial candidates should be avoided if the public is to have faith in the impartiality of its judiciary.

In re Fadeley, 802 P.2d at 41.

More recently, the Arkansas Supreme Court, in addressing the constitutionality of a judicial ethics canon comparable to Canon 7C(1), echoed the concerns articulated by the Supreme Court of Oregon, holding that Arkansas’ solicitation ban served two separate compelling State interests: (1) ensuring judicial impartiality, and (2) ensuring the public’s trust and confidence in the integrity of the judicial system by avoiding the appearance of impropriety. See Simes, 247 S.W.3d at 881-82.

As to the first State interest, ensuring judicial impartiality, the Arkansas Supreme Court stated as follows:

Certainly the state has a compelling interest in diminishing the possibility that judges, once in office, will be pressured to decide issues in favor of those who financially supported their campaign. Therefore, in addition to impartiality as it goes to bias, we conclude that the open-mindedness of judges is a sufficient compelling state interest.

Id. at 881.

With respect to the second compelling State interest, avoiding the appearance of impropriety, the Arkansas court explained as follows:

The state certainly has a compelling interest in the public’s trust and confidence in the integrity of our judicial system. Allowing a judge to personally solicit or accept campaign contributions, especially from attorneys who may practice in his or her court, not only has the possibility of making a judge feel obligated to favor certain parties in a case, it inevitably places the solicited individuals in a position to fear retaliation if they fail to financially support that candidate. Attorneys ought not feel pressured to support certain judicial candidates in order to represent their clients. In addition, the public should be protected from fearing that the integrity of the judicial system has been compromised, forcing them to search for an attorney in part based upon the criteria of which attorneys have made the obligatory contributions.

Id. at 882. These decisions illustrate that other state supreme courts that have addressed the constitutionality of judicial ethics canons similar to Florida’s Canon 7C(1) have reached the same conclusion that this Court reached in In re Kinsey, 842 So.2d at 87 — that protecting the integrity of the judiciary, as well as maintaining the public’s confidence in an impartial judiciary, represent compelling State interests capable of withstanding constitutional scrutiny.

Therefore, in light of this Court’s prior holding that Florida has a compelling interest in protecting the integrity of the judiciary and maintaining the public’s confidence in an impartial judiciary — a holding that is bolstered by the broad acceptance of comparable compelling State interests by other state supreme courts— we conclude that Canon 7C(1), which furthers these goals, serves compelling State interests. The constitutionality of Canon 7C(1) thus turns on whether the Canon is narrowly tailored to serve these compelling State interests.

The United States Supreme Court has stated that a government regulation is narrowly tailored “if it targets and eliminates no more than the exact source of the ‘evil’ it seeks to remedy.” Frisby v. Schultz, 487 U.S. 474, 485, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988). The Respondent contends that Canon 7C(1) fails to satisfy the narrowly tailored requirement, particularly in the context of a mass mailing letter. We disagree.

First, the Respondent’s argument ignores that this process includes a candidate’s direct receipt of funds. Moreover, personal solicitation of campaign funds, even by mass mailing, raises an appearance of impropriety and calls into question, in the public’s mind, the judge’s impartiality. Thus, “[t]o protect the independence of the judiciary, the right of judges to engage in political activity has been restricted.” In re Code of Judicial Conduct (Canons 1, 2, & 7A(l)(b)), 603 So.2d at 497.

Canon 7C(1), which contains provisions similar to Canons 4.1(A)(8) and 4.4 of the American Bar Association Model Code of Judicial Conduct, is designed to insulate judges from directly engaging in fundrais-ing activity by allowing the establishment of campaign committees, through which judges can raise campaign funds without direct participation. A majority of states have enacted similar provisions.

Further, every state supreme court that has examined the constitutionality of comparable state judicial ethics canons has concluded that these types of provisions are constitutional, as one of a constellation of provisions designed to ensure that judges engaged in campaign activities are able to maintain their status as fair and impartial arbiters of the law. See Simes, 247 S.W.3d at 884; In re Dunleavy, 838 A.2d at 351; In re Fadeley, 802 P.2d at 44. One such state is Oregon, which, like Florida, requires judicial candidates to establish and raise money through campaign committees rather than allowing direct solicitation.

In addressing the constitutionality of Oregon’s judicial canon, the Oregon Supreme Court reviewed why campaign committees are necessary, explaining as follows:

So long as judges are chosen by the electoral process, it will be impossible to deny lawyers and potential litigants the right to give to campaigns or to deny judges the right to seek contributions. Both activities are too important in the scheme of things to permit either to be forbidden outright. Some other, less intrusive method is needed.
[The canon] is that method. It permits the judge to obtain funds to carry out a campaign but eliminates the specter of contributions going from the hand of the contributor to the hand of the judge. The limitation on the ability to raise funds need not cause the campaign to suffer, if the judge picks good people for his or her campaign finance committee. It is true that the committee, however well suited to the task, may have trouble obtaining as much as the judge might have raised by personal buttonholing, but that is the point.

In re Fadeley, 802 P.2d at 41 (citations omitted). In addressing whether the canon was narrowly tailored, the Oregon Supreme Court explained that its canon did not sweep too broadly because under the Oregon Code of Judicial Conduct, “[solicitation of funds by a surrogate of the judge’s choice is permissible; only personal solicitation by the judge is foreclosed.” Id. at 44.

The same reasoning applies in this case. Under Canon 7C(1), the Respondent was not completely barred from soliciting campaign funds, but was simply required to utilize a separate campaign committee to engage in the task of fundraising. In other words, Canon 7C(1) is narrowly tailored because it seeks to “insulate judicial candidates from the solicitation and receipt of funds while leaving open, ample alternative means for candidates to raise the resources necessary to run their campaigns.” Simes, 247 S.W.3d at 883.

We conclude that Canon 7C(1) promotes the State’s compelling interests in preserving the integrity of the judiciary and maintaining the public’s confidence in an impartial judiciary, and that it is narrowly tailored to effectuate those interests. Therefore, we hold that Canon 7C(1) is constitutional, and we approve the referee’s recommendation that the Respondent be found guilty of violating rule 4-8.2(b).

Violation of Rules 3-4.3 and 4-8.4(a)

Next, the referee recommended that the Respondent be found guilty of violating rules 3-4.3 and 4-8.4(a) for making a misrepresentation to a reporter. We conclude that this recommendation is not supported by competent, substantial evidence in the record. See Frederick, 756 So.2d at 86.

At issue is the following sentence included in a newspaper article published on November 3, 2009: “On Tuesday, [Respondent] Williams-Yulee told a Times reporter there was no incumbent for the position she’s seeking, though County-Judge Dick Greco, Jr. currently holds it.” The Bar did not present the reporter’s testimony at the hearing, and the Respondent testified that she had told the reporter that there was an incumbent but that he had not announced his candidacy. We conclude that the statement from the newspaper article, standing alone, is insufficient evidence to support the referee’s recommendation as to guilt and, therefore, we disapprove the referee’s recommendation with respect to rules 3^1.3 and 4-8.4(a).

Discipline

The Respondent also seeks review of the referee’s recommended discipline, which calls for the Respondent to receive a public reprimand. The Respondent argues that she should not be sanctioned because she did not violate the Bar rules. In contrast, the Bar argues that the referee recommended the appropriate sanction in this ease.

In reviewing a referee’s recommended discipline, this Court’s scope of review is broader than that used to review the referee’s findings of fact because, ultimately, it is this Court’s responsibility to order the appropriate sanction. See Fla. Bar v. Anderson, 538 So.2d 852, 854 (Fla.1989); see also art. V, § 15, Fla. Const. At the same time, however, this Court will generally not second-guess the referee’s recommended discipline, as long as the recommended discipline has a reasonable basis in existing case law and the Florida Standards for Imposing Lawyer Sanctions. See Fla. Bar v. Temmer, 753 So.2d 555, 558 (Fla.1999).

The referee found that the Respondent’s conduct was negligent, as opposed to being intentional. Thus, standards that address negligence apply to this case. Standards 6.13 and 7.3, which both pertain to public reprimands, support the referee’s recommendation.

In addition, case law indicates that this Court has imposed a public reprimand in circumstances where the misconduct is neither continuous nor involves an intentional pattern of deceit. Compare Fla. Bar v. Cocalis, 959 So.2d 163, 167-68 (Fla.2007) (concluding that the respondent’s isolated misconduct warranted only a public reprimand), with Fla. Bar v. Miller, 863 So.2d 231, 235 (Fla.2003) (concluding that the respondent’s continuous and intentional pattern of deceit was more egregious than the circumstances under which the Court has approved a public reprimand), and Fla. Bar v. Forrester, 818 So.2d 477, 484 (Fla.2002) (concluding that the respondent’s conduct did not involve an isolated instance of neglect or a lapse in judgment warranting a public reprimand, but instead involved intentionally concealing an exhibit and misrepresenting its whereabouts). This Court has also imposed a public reprimand where there is an absence of prior misconduct. See, e.g., Cocalis, 959 So.2d at 168 (noting that the respondent had “no previous disciplinary record”); Fla. Bar v. Shannon, 398 So.2d 453, 454 (Fla.1981) (stating that the “Respondent has no record of past professional misconduct”).

Moreover, the referee found no aggravating factors and four mitigating factors: absence of a prior disciplinary record; absence of a dishonest or selfish motive; timely good faith effort to make restitution or to rectify consequences • of misconduct; and full and free disclosure to disciplinary board or cooperative attitude toward proceedings. Based upon the facts in this case, the standards, and established case law, we conclude that the referee’s recommended sanction of a public reprimand is appropriate.

CONCLUSION

Accordingly, we approve the referee’s findings of fact and recommendation of guilt with respect to rule 4 — 8.2(b), disapprove the referee’s findings of fact and recommendation of guilt with respect to rules 3-4.3 and 4-8.4(a), and approve the referee’s recommended discipline. By publication of this opinion, Lanell Williams-Yulee is hereby publicly reprimanded.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Lanell Williams-Yulee in the amount of $1,860.30, for which sum let execution issue.

It is so ordered.

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

POLSTON, C.J., and CANADY, J., concur in part and dissent in part.

      . Canon 4.1 of the American Bar Association Model Code of Judicial Conduct states in pertinent part: "[e]xcept as permitted by law, or by Rules 4.2, 4.3, and 4.4, a judge or a judicial candidate shall not: ... personally solicit or accept campaign contributions other than through a campaign committee authorized by Rule 4.4.” A.B.A. Model Code of Judicial Conduct, Canon 4.1(A)(8).
      Further, Canon 4.4, which governs the use of campaign committees, states as follows:
      (A) A judicial candidate subject to public election may establish a campaign committee to manage and conduct a campaign for the candidate, subject to the provisions of this Code. The candidate is responsible for ensuring that his or her campaign committee complies with applicable provisions of this Code and other applicable law.
      (B) A judicial candidate subject to public election shall direct his or her campaign committee:
      (1) to solicit and accept only such campaign contributions as are reasonable, in any event not to exceed, in the aggregate, $ [insert amount] from any individual or $[insert amount] from any entity or organization;
      (2) not to solicit or accept contributions for a candidate’s current campaign more than [insert amount of time] before the applicable primary election, caucus, or general or retention election, nor more than [insert number] days after the last election in which the candidate participated; and
      (3) to comply with all applicable statutory requirements for disclosure and divestiture of campaign contributions, and to file with [name of appropriate regulatory authority] a report stating the name, address, occupation, and employer of each person who has made campaign contributions to the committee in an aggregate value exceeding $[insert amount]. The report must be filed within [insert number] days following an election, or within such other period as is provided by law.
      A.B.A. Model Code of Judicial Conduct, Canon 4.4.

      . With respect to judicial races involving either an opposed election or retention with active opposition, the majority of states require that the solicitation for judicial campaign funds be conducted through a campaign committee. See, e.g., Alaska Code of Jud. Conduct, Canon 5C(3); Ariz.Code of Jud. Conduct, Canon 4, R. 4.1(A)(6); Ark.Code of Jud. Conduct, Canon 4, R. 4.2(B)(1); Colo. Code of Jud. Conduct, Canon 4, R. 4.3(A); Conn.Code of Jud. Conduct, Canon 5A(4); Idaho Code of Jud. Conduct, Canon 5C(2); Ill.Code of Jud. Conduct, Canon 7B(2); Ind. Code of Jud. Conduct, Canon 4, R. 4.4(A); Iowa Code of Jud. Conduct, Canon 4, R. 51:4.4(A); Ky.Code of Jud. Conduct, Canon 5B(2); La. Code of Jud. Conduct, Canon 7C(2)(b); Me.Code of Jud. Conduct, Canon 5C(3); Mich.Code of Jud. Conduct, Canon 7B(2)(b); Minn.Code of Jud. Conduct, Canon 4, R. 4.4(A); Miss.Code of Jud. Conduct, Canon 5C(2); Mo.Code of Jud. Conduct, Canon 4, R. 2-4.2(B); Mont.Code of Jud. Conduct, Canon 4, R. 4.4(A); Neb.Code of Jud. Conduct, Canon 4, R. 5-304.1(A)(8); N.M.Code of Jud. Conduct, Canon 4, R. 21-404A; N.Y.Code of Jud. Conduct, Canon 5(A)(5); N.D.Code of Jud. Conduct, Canon 4, R. 4.6; Ohio Code of Jud. Conduct, Canon 4, R. 4.4(A); Okla.Code of Jud. Conduct, Canon 4, R. 4.4(A); Or.Code of Jud. Conduct, R. 4-102(D); Pa.Code of Jud. Conduct, Canon 7B(2); S.C.Code of Jud. Conduct, Canon 5C(2); Tenn.Code of Jud. Conduct, Canon 4, R. 4.4; Utah Code of Jud. Conduct, Canon 4, R. 4.2(B)(2); Vt.Code of Jud. Conduct, Canon 5C(3); Wash.Code of Jud. Conduct, Canon 4, R. 4.4; W. Va.Code of Jud. Conduct, Canon 5C(2); Wis.Code of Jud. Conduct, R. 60.06(4); Wyo.Code of Jud. Conduct, Canon 4, R. 4.2(B)(4).

      . As to the federal courts that have considered this issue — whose judges have lifetime appointments and thus do not have to engage in fundraising — the federal courts are split. Several federal courts have held that laws similar to Canon 7C(1) are constitutional. See Wersal v. Sexton, 674 F.3d 1010 (8th Cir.2012); Bauer v. Shepard, 620 F.3d 704 (7th Cir.2010); Siefert v. Alexander, 608 F.3d 974 (7th Cir.2010); Stretton v. Disciplinary Bd. of S.Ct. of Pa., 944 F.2d 137 (3d Cir.1991). Conversely, other federal courts have held that laws similar to Canon 7C(1) are unconstitutional. See Carey v. Wolnitzek, 614 F.3d 189 (6th Cir.2010); Weaver v. Bonner, 309 F.3d 1312 (11th Cir.2002).

      . Florida Standard for Imposing Lawyer Sanctions 6.13 states in pertinent part that "[pjublic reprimand is appropriate when a lawyer is negligent either in determining whether statements or documents are false....”

      . Florida Standard for Imposing Lawyer Sanctions 7.3 provides in part that "[pjublic reprimand is appropriate when a lawyer negligently engages in conduct that is a violation of a duty owed as a professional and causes injury or potential injury to ... the public, or the legal system.”


source: Caselaw Access Project

license: Public Domain

text:
    In re AMENDMENTS TO the FLORIDA SUPREME COURT APPROVED FAMILY LAW FORMS.
    No. SC13-532.
    Supreme Court of Florida.
    May 1, 2014.
    Lori M. Caldwell-Carr, Maitland, FL, and Elizabeth Ann Blackburn, Daytona Beach, FL, Co-Chairs, Family Law Section Rules Committee; Elisha D. Roy, Chair, Family Law Section, The Florida Bar, West Palm Beach, FL; Christopher M. Pratt, Palmetto, FL; and Melvyn B. Frumkes, Miami, FL, Responding with comments.
   PER CURIAM.

Previously in this case, the Court amended four Florida Supreme Court Approved Family Law Forms, forms 12.902(f)(1) and 12.902(f)(2), the marital settlement agreement forms, and forms 12.990(c)(1) and 12.990(c)(2), the final judgment of dissolution of marriage forms. These forms were amended in response to the enactment of section 732.703, Florida Statutes (2012), entitled “Effect of divorce, dissolution, or invalidity of marriage on disposition of certain assets at death.” In re Amends, to the Fla. Supreme Court Approved Family Law Forms, 122 So.3d 320 (Fla.2013). Interested parties were given an opportunity to file comments regarding the amended forms. Id. at 321.

Several comments were filed. Upon consideration of the comments, and with input from the Advisory Workgroup on the Florida Supreme Court Family Law Forms, we adopt additional amendments to the forms, as follows: (1) the phrase “deceased’s party former spouse” is changed to “deceased party’s former spouse” in each of the four forms; and (2) the references to tax “deductions” are changed to tax “exemptions” in paragraph 6 of Section IV of form 12.902(f)(1).

Accordingly, the Florida Supreme Court Approved Family Law Forms are amended, as reflected in the appendix to this opinion. The amended forms are fully engrossed and ready for use. The forms may also be accessed and downloaded from the Florida State Courts’ website at www. flcourts.org/gen_public/family/forms_ruIes/ index.shtml. By adoption of the amended forms, we express no opinion as to their correctness or applicability. The forms shall become effective immediately upon release of this opinion.

It is so ordered.

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

APPENDIX

INSTRUCTIONS FOR FLORIDA SUPREME COURT APPROVED FAMILY LAW FORM 12.902(f)(1)

MARITAL SETTLEMENT AGREEMENT FOR DISSOLUTION OF MARRIAGE WITH DEPENDENT OR MINOR CHILD(REN) (05/14)

When should this form be used?

This form should be used when a Petition for Dissolution of Marriage with Dependent or Minor Child(ren), Florida Supreme Court Approved Family Law Form 12.901(b)(1), has been filed and the parties have reached an agreement on some or all of the issues at hand.

This form should be typed or printed in black ink. Both parties must sign the agreement and have their signatures witnessed by a notary public or deputy clerk. After completing this form, you should file the original with the clerk of the circuit court in the county where the petition was filed and keep a copy for your records. You should then refer to the instructions for your petition, answer, or answer and counterpetition concerning the procedures for setting a hearing or trial (final heariny).

Where can I look for more information?

Before proceeding, you should read General Information for Self-Represented Litigants found at the beginning of these forms. The words that are in bold underline in these instructions are defined there. For further information, see chapter 61, Florida Statutes, and the instructions for the petition and/or answer that were filed in this case.

Special notes ...

With this form you must also file a Child Support Guidelines Worksheet, Florida Family Law Rules of Procedure Form 12.902(e), if not already filed.

This form does not act to transfer title to the property. Such transfer must be done by deed or supplemental final judgment.

Remember, a person who is NOT an attorney is called a nonlawyer. If a nonlawyer helps you fill out these forms, that person must give you a copy of a Disclosure from Nonlawyer, Florida Family Law Rules of Procedure Form 12.900(a), before he or she helps you. A nonlawyer helping you fill out these forms also must put his or her name, address, and telephone number on the bottom of the last page of every form he or she helps you complete.

INSTRUCTIONS FOR FLORIDA SUPREME COURT APPROVED FAMILY LAW FORM 12.902(f)(2)

MARITAL SETTLEMENT AGREEMENT FOR DISSOLUTION OF MARRIAGE WITH PROPERTY BUT NO DEPENDENT OR MINOR CHILD(REN) (05/14)

When should this form be used?

This form should be used when a Petition for Dissolution of Marriage with Property but no Dependent or Minor Child(ren), Florida Supreme Court Approved Family Law Form 12.901(b)(2), has been filed and the parties have reached an agreement on some or all of the issues at hand.

This form should be typed or printed in black ink. Both parties must sign the agreement and have their signatures witnessed by a notary public or deputy clerk. After completing this form, you should file the original with the clerk of the circuit court in the county where the petition was filed and keep a copy for your records.

You should then refer to the instructions for your petition, answer, or answer and counterpetition concerning the procedures for setting a hearing or trial (final hearing ).

Where can I look for more information?

Before proceeding, you should read General Information for Self-Represented Litigants found at the beginning of these forms. The words that are in bold underline in these instructions are defined there. For further information, see chapter 61, Florida Statutes, and the instructions for the petition and/or answer that were filed in this case.

Special notes ...

This form does not act to transfer title to the property. Such transfer must be done by deed or supplemental final judgment.

Remember, a person who is NOT an attorney is called a nonlawyer. If a nonlawyer helps you fill out these forms, that person must give you a copy of a Disclosure from Nonlawyer, Florida Family Law Rules of Procedure Form 12.900(a), before he or she helps you. A nonlawyer helping you fill out these forms also must put his or her name, address, and telephone number on the bottom of the last page of every form he or she helps you complete.

      . We have jurisdiction. See art. V, § 2(a), Fla. Const.


author: ALTENBERND, Judge.

text:
    The LEILA CORPORATION OF ST. PETE, a Florida corporation; Susan J. Agia, individually and as trustee of the Susan J. Agia Living Trust; and Dr. Raymond Agia, Appellants/Cross-Appellees, v. Fareed OSSI and Ossi Consulting Engineers, Inc., a Florida corporation; and Ossi Construction, Inc., a Florida corporation, Appellees/Cross-Appellants.
    No. 2D12-6105.
    District Court of Appeal of Florida, Second District.
    Jan. 17, 2014.
    Rehearing Denied March 5, 2014.

      Arnold D. Levine and Robert H. Mackenzie of Arnold D. Levine & Associates, P.A., Tampa, for Appellants/Cross-Appel-lees.
    Stuart Jay Levine and Heather A. De-Grave of Walters, Levine, Klingensmith & Thomison, P.A., Tampa, for Appel-lees/Cross-Appellants.
   ALTENBERND, Judge.

The Appellants, the Leña Corporation of St. Pete; Susan J. Agia, individually and as trustee of the Susan J. Agia Living Trust; and Dr. Raymond Agia, appeal a final judgment, which the Appellees, Far-eed Ossi; Ossi Consulting Engineering, Inc.; and Ossi Construction, Inc., also appeal. The trial court entered a final judgment on numerous claims and counterclaims. It denied relief to all parties seeking affirmative relief on a theory that all claims were barred by the doctrine of unclean hands. We conclude that the trial court erred in deciding that the claims were all barred by this doctrine. We doubt that any of the claims are barred by this doctrine. Accordingly, we reverse the judgment on appeal and remand for further proceedings.

I. THE CONDOMINIUM DEVELOPMENT AND RESULTING LAWSUIT

The facts in this case are quite complex. The explanation of the facts in this opinion is intended to explain our holding; it may exclude details that would be important to the trial court in ultimately deciding the various claims on remand.

In 1976, Dr. Agia purchased undeveloped land in St. Pete Beach, Florida. In 1993, he transferred this land to an irrevocable trust, the beneficiaries of which were his two daughters. His wife Susan Agia was the trustee of this irrevocable trust. Despite this transfer, it appears that Dr. Agia may have maintained practical, if not legal, control over this property and over the decisions to develop the property.

Fareed Ossi worked with Dr. Agia beginning in the 1990s to develop this property. This working relationship was . not adequately documented by written employment contracts or partnership agreements. Mr. Ossi prepared plans for a condominium development known as the Cabrillo Condominiums. Some of this work was performed by his corporation, Ossi Consulting Engineers, Inc.

In 2005, the Leila Corporation was formed to be the owner and developer of this property. The corporation purchased the land from the irrevocable trust for $5,850,000. Some of the money to purchase the land was borrowed from a bank by the Leila Corporation. The corporation apparently also gave a promissory note in the amount of $2,850,000 to the irrevocable trust to purchase the land. This loan was guaranteed by Mr. Ossi.

Dr. Agia had no ownership interest in the Leila Corporation. As a legal matter, it would appear that he had had no ownership of any part of this development after he transferred the land to the irrevocable trust in 1993. The Leila Corporation, as a stock corporation, was seventy-five percent owned by Susan Agia and twenty-five percent owned by Mr. Ossi. The two shareholders entered into a written shareholders’ agreement. Mr. Ossi was president of the corporation and contributed an initial $125,000 to its capital. Susan Agia contributed $375,000 to its capital. Thus, their initial capital contributions aligned with their equity ownership in the corporation.

The Leila Corporation entered into a construction contract with Ossi Construction, Inc., which was owned by Robert Ossi, the son of Fareed Ossi, to construct the condominiums. That work was performed primarily in 2005 and 2006.

During the construction of the condominium, there allegedly was a need for additional capital contributions. Mr. Ossi did not or could not make his contributions, and Mrs. Agia advanced money in addition to her own contributions to cover the shortfall. When the units were ready to be sold, allegedly Dr. Agia and his wife purchased one of the units for fair market value and the other units were available for sale to the public. The timing of the completion of this condominium development unfortunately coalesced with a downturn in the real estate market. The result was a long list of disputes between and among these parties. Because Dr. Agia and Fareed Ossi seemingly had strong influence over their respective families, the litigation took on the appearance of a family feud between the Agías and the Ossis.

Without attempting to describe every claim in the lawsuit, Fareed Ossi sued to dissolve the corporation and obtain an accounting. He also sought damages of more than $500,000 from Dr. Agia and his wife. Ossi Consulting Engineers sought $322,050 from Dr. Agia for services allegedly rendered on an oral contract to provide construction administration services. Susan Agia sought damages against Far-eed Ossi for the capital contributions that she made on his behalf. The Leila Corporation sought damages from Fareed Ossi both in his capacity as an officer of the corporation and for alleged professional negligence. The Leila Corporation also sought damages from Ossi Consulting Engineers for breach of the oral contract for construction administration and for professional negligence. Finally, Ossi Construction sued the Leila Corporation for the unpaid balance of the construction contract, and the Leila Corporation counterclaimed for damages arising from construction defects. By our count there were seven different legal parties seeking relief for, against, or among one another. Although the interests of each party seem distinct to this court and this dispute probably could have been severed into several separate lawsuits, it was tried with one law firm representing the parties associated with the Agia family and another law firm representing the parties associated with the Ossi family.

At the end of the nonjury trial, the trial court entered a final judgment denying relief to every party seeking relief based on a determination that all claims were barred by the doctrine of unclean hands arising from actions taken by Dr. Agia in connection with an automobile accident.

II. THE AUTOMOBILE ACCIDENT

In 2004, Dr. Agia was in an automobile accident. He apparently was at fault in the accident and someone died. He was concerned that his insurance coverage was inadequate and that he might have personal liability for the accident. He was sued as a result of the accident, but our record contains no information about the outcome of that case. Because of his concern, Dr. Agia was hesitant to have assets in his name alone that could be used to satisfy a judgment. Apparently, the decision to have the stock in the Leila Corporation owned by Susan Agia was influenced by Dr. Agia’s concerns.

At the time the corporation was created, Dr. Agia had not been sued for the accident. It was only a possibility that a judgment might eventually be entered against him. No asset owned by Dr. Agia that could have been used to satisfy any future judgment was placed into the corporation. We do not know whether Dr. Agia owned the car involved in the accident, but if he owned it jointly with his wife, the stock of the Leila Corporation actually created an easy asset against which to collect a judgment.

Even if the corporate structure was created to permit Susan Agia to use funds in a jointly owned bank account to fund the construction of the condominiums, that plan would not appear to defraud creditors or to be unlawful in any manner.

III. THE DOCTRINE OF UNCLEAN HANDS CANNOT BAR ALL CLAIMS

We note that the doctrine of unclean hands was not raised as a defense to all claims, although it was raised in a generic fashion as a defense to a portion of the claims. The trial court seems to have gravitated toward this defense for all claims due to the amalgamated fashion in which the case was tried.

As explained in the preceding section, the steps taken by Dr. Agia do not seem to fall within any recognized concept of unclean hands. “It is a fundamental principle of equity that no one shall be permitted to profit from his own fraud or wrongdoing, and that one who seeks the aid of equity must do so with clean hands.” Yost v. Rieve Enters., Inc., 461 So.2d 178, 184 (Fla. 1st DCA 1984). “Unclean hands may be asserted by a defendant who claims that the plaintiff acted toward a third party with unclean hands with respect to the matter in litigation.” Quality Roof Servs., Inc. v. Intervest Nat’l Bank, 21 So.3d 883, 885 (Fla. 4th DCA 2009).

The pleadings contain no allegations, by any of the parties, that this corporate structure was in any way used with the intent of defrauding creditors. Nonetheless, the trial court determined that the parties participated in a plot to hide Dr. Agía s assets from a potential judgment creditor. The court deemed the plan “conceived in fraud” and dismissed all claims on the authority of Whitelock v. Geiger, 368 So.2d 372 (Fla. 3d DCA 1979). In Whitelock, contracting parties admitted to devising, participating in, or carrying out a fraudulent scheme intended to defraud creditors. Id. at 374. Here, despite the lack of similar evidence or party allegations of fraud, the court sua sponte found applicable the doctrine of unclean hands and determined that the parties “should be left to settle their dispute without the aid of the court.” The competent, substantial evidence presented at the nonjury trial does not support the findings necessary for this legal conclusion.

From a legal perspective, Dr. Agia actually has a very limited role in this lawsuit. He may be serving as an agent of one or more of the other parties, but he has no ownership interest in the development. The occurrence of the automobile accident, for example, should have no relevance to the claims between the Leila Corporation and Ossi Construction.

On remand, we leave it to the discretion of the trial court as to whether it can resolve these various claims on the current record or whether it needs any additional proceedings. Although the claims were tried in this collective fashion, given that none of the legal theories seem to involve all of the parties, it might be helpful for the trial court to create separate final judgments to resolve claims only between or among the parties affected by the particular claims.

Reversed and remanded.

DAVIS, C.J., and WALLACE, J., Concur.


author: KLINGENSMITH, J.

text:
    PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY, Appellant, v. Peter R. GENOVESE, M.D., Appellee.
    No. 4D12-444.
    District Court of Appeal of Florida, Fourth District.
    Feb. 26, 2014.

      John E. Meagher, Jeffrey M. Landau and Stephen T. Maher of Shutts & Bowen LLP, Miami, for appellant.
    Philip M. Burlington and Nichole J. Se-gal of Burlington & Rockenbach, P.A., West Palm Beach, Gary Rosen of Becker & Poliakoff, P.A., Fort Lauderdale, and Richard M. Benrubi of Liggio Benrubi, P.A., West Palm Beach, for appellee.
   KLINGENSMITH, J.

Appellant, Provident Life and Accident Insurance Company (“Provident”), appeals a final judgment entered after a jury trial, which determined an onset date of disability for Dr. Peter Genovese (“Genovese”). This date differed from the onset date established by a special interrogatory jury verdict in an earlier trial between the same parties. The question presented is whether that finding triggered collateral estoppel, thus preventing Genovese from re-litigating the onset date of disability as established in the earlier trial. We find that it does, and reverse. This court will not address the remaining points on appeal as this decision renders them moot.

Genovese obtained a disability policy from Provident that provided for both total and residual disability benefits. Under the terms of the policy, Genovese was entitled to receive lifetime benefits if he became “totally disabled” prior to his sixtieth birthday on November 19, 1997. However, if Genovese became totally disabled on or after his sixtieth birthday, he would be entitled to benefits only until age sixty-five. On November 12, 1997, Genovese submitted a claim for total disability benefits pursuant to his policy. As part of his claim, Genovese furnished Provident with an attending physician’s statement indicating that Genovese’s occupational restrictions and limitations began on November 14, 1997. In his answers to a supplementary statement of claim, Genovese indicated that he was hospitalized on December 8, 1997 and was unable to perform any of his duties at the clinic where he worked.

Almost two years later, Provident filed a declaratory judgment action (“Genovese I”) asserting that a “bona fide dispute” had arisen as to whether Genovese was totally disabled pursuant to the terms and conditions of his policy. Provident asked the court to decide whether Genovese was entitled to total or residual disability benefits, or whether he should return to Provident all benefits “paid to him with reservation of rights, together with unpaid premiums and interest thereon.” Ge-novese then filed a counterclaim against Provident alleging breach of contract based upon Provident’s denial of benefits.

During its rebuttal closing argument at trial, Provident argued that Genovese’s date of disability was December 8, 1997. At the jury charge conference, Provident’s counsel argued that the verdict form should include questions that asked whether Genovese was totally disabled, and, if so, the date on which they find he became totally disabled. Although Genovese argued that establishing a beginning date of disability was not necessary, the court stated that “the jury has to determine based on the facts when [Genovese’s] total disability began.” Soon after, counsel for Genovese suggested the following: “Maybe we can ask the jury a second question. If you find that Doctor Ge-novese was disabled, please tell us on what date he was unable to perform his substantial and material duties of his occupation and leave it to them.” Provident suggested a slight change to the wording of the second question, and Genovese’s counsel responded, “That’s cool, I can live with it. I can live with it.”

The final version of the verdict form read as follows:

We, the jury, return the following Verdict:
1. Was the Defendant/Counter-Plaintiff Peter R. Genovese, M.D., totally disabled and therefore unable to perform the material and substantial duties of his occupation due to sickness?
_YES_NO
If answer to Question # 1 is “No”, your verdict is for the PlaintiffiCoun-ter-Defendant, Provident Life and Accident Insurance Company. You should not proceed further except to date and sign this Verdict Form and return it to the courtroom. If you[r] answer to Question #1 is “Yes,” please answer Question # 2.

2. What is the date that Defendant/Counter-Plaintiff Peter R. Genovese, M.D., became totally disabled and therefore unable to perform the material and substantial duties of his occupation due to sickness?

(Emphasis added). Ultimately, the jury found Genovese was totally disabled and assigned the date of disability as December 8, 1997, a date after his sixtieth birthday. Genovese’s post-trial motion to strike this finding from the verdict form was denied, and a final judgment was entered. This judgment did not include the jury’s finding regarding the onset date. Provident paid the judgment and provided Genovese with total disability benefits until his sixty-fifth birthday, advising Genovese that his benefits would be terminated at that time based upon the date of disability determined by the jury in Genovese I.

On November 22, 2002, Genovese filed the action from which this appeal arises; namely, a breach of contract related to Provident’s termination of Genovese’s benefits at age sixty-five (“Genovese II”). Provident raised collateral estoppel as an affirmative defense based upon the jury’s finding in Genovese I of the onset date of Genovese’s disability. Provident also filed a motion for summary judgment on Ge-novese’s breach of contract claim, arguing that the doctrine of collateral estoppel barred Genovese from re-litigating the question of when his disability commenced. In response, Genovese filed a cross-motion for summary judgment, arguing that collateral estoppel did not apply, because the issue of when he became totally disabled was not part of the prior action. In support, Genovese contended that in Genovese I, the date of disability was not framed as an issue in the pleadings, and there was no evidence offered on the issue at trial. After a hearing was held on the motions, the trial judge denied Provident’s motion and granted Genovese’s cross-motion. As a result, the case proceeded to trial where Provident’s motion for directed verdict based on collateral estoppel was also denied. The jury in Genovese II ultimately found, by special interrogatory verdict, that Genovese became totally disabled on November 14,1997.

The doctrine of collateral estop-pel — which is also known as issue preclusion and estoppel by judgment — bars re-litigation of identical issues between identical parties in two proceedings. Topps v. State, 865 So.2d 1253, 1255 (Fla.2004). The doctrine is intended to prevent repetitious litigation of what is essentially the same dispute. Zimmerman v. Fla., Office of Ins. Regulation, 944 So.2d 1163, 1166 (Fla. 4th DCA 2006). For the doctrine to apply, the following elements must be met: (1) an identical issue must be presented in a prior proceeding; (2) the issue must have been a critical and necessary part of the prior determination; (3) there must have been a full and fair opportunity to litigate the issue; (4) the parties in the two proceedings must be identical; and (5) the issues must have been actually litigated. Atria v. Hodor, 790 So.2d 1229, 1230 (Fla. 4th DCA 2001).

Here, there is no question the parties involved in Genovese I and Genovese II are identical. However, Genovese argues his claim in Genovese II was not barred by collateral estoppel because the issue of the onset date of disability was not presented in the first trial, it was not a critical and necessary part of the prior determination, he did not have a full and fair opportunity to litigate it, and it was not actually litigated in Genovese I. We disagree.

The issues in Genovese II involved what date Genovese became totally disabled, and whether that date entitled him to lifetime benefits. In Genovese I, the parties stipulated that the sole issue to be litigated was whether or not Genovese was “totally disabled.” For that purpose, the trial judge in Genovese I noted that the case required a finding about the onset date of Genovese’s disability. Therefore, the identical factual issue was presented in both cases. Although that evidence was presented in Genovese I to substantiate a different claim than that ultimately presented in Genovese II, the jury’s determination of that factual issue meant it was actually adjudicated and became binding on the parties. See, e.g., Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006); see also Rice-Lamar v. City of Fort Lauderdale, 853 So.2d 1125, 1131 (Fla. 4th DCA 2003) (issue preclusion “does not require prior litigation of an entire claim, only a particular issue”); Club & Cmty. Consulting Corp. v. Brown, 728 So.2d 822, 824 (Fla. 4th DCA 1999) (“The application of collateral estoppel does not require that the entire claim have been previously litigated, only that an issue have been litigated.”).

An issue is a critical and necessary part of the prior proceeding where its determination is essential to the ultimate decision. See Porter v. Saddlebrook Resorts, Inc., 679 So.2d 1212, 1215 (Fla. 2d DCA 1996). In the instant case, it appears that the trial court believed that the determination of an onset date was essential to the jury’s decision, and ordered a special interrogatory be presented to the jury to make that factual finding. Unfortunately, the entire transcript from Genovese I was not presented to this court to enable a thorough review. In the absence of a transcript of the proceedings, a reviewing court cannot disrupt a trial court’s factual findings, and is therefore limited to reviewing errors that are apparent on the face of the orders, pleadings, and other documents properly filed as part of the record on appeal. See, e.g., Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979). When deciding what facts have been litigated and adjudicated in pri- or proceedings, courts often look to the verdict forms to help decide the issue. See Acadia Partners, L.P. v. Tompkins, 673 So.2d 487, 488-89 (Fla. 5th DCA 1996); Seaboard Coast Line R.R. Co. v. Indus. Contracting Co., 260 So.2d 860, 864-65 (Fla. 4th DCA 1972). Therefore, the trial court’s submission of the issue by special interrogatory verdict to the jury is a prima facie indication that it was a critical and necessary part of Genovese I. This is further supported by the court’s denial of Genovese’s post-trial motion to strike that finding.

Both parties also had a full and fair opportunity to litigate the onset date in Genovese I, and the record shows it was actually litigated. Determining a date of onset was a subject of the parties’ pretrial motions and hearings before the court, the charge conference, closing arguments, and post-trial motions. From the record, it does not appear that this issue was introduced late in the proceedings as a surprise to Genovese.

Genovese argues further that a full and fair opportunity to litigate the onset date did not exist since he could not appeal from the judgment entered in Ge-novese I because he was the prevailing party and the onset date was not specifically included in the judgment. However, the judgment signed by the court in Genovese I was proposed to the court by Genovese, not Provident. A party cannot successfully complain about an error for which he or she is responsible, or of rulings that he or she has invited the trial court to make. See Gupton v. Village Key & Saw Shop, Inc., 656 So.2d 475, 478 (Fla.1995); see also Held v. Held, 617 So.2d 358, 359-60 (Fla. 4th DCA 1993). As the judgment entered in Genovese II clearly demonstrates, had either party wanted the onset date included in the final judgment for the purposes of perfecting an appeal, they had the opportunity to submit such a proposed judgment to the court, or to request that language be added into the final judgment before its entry. Ge-novese’s perceived inability to appeal from the Genovese I final judgment due to this omission was a foreseeable potential outcome of counsel’s strategy in drafting the form of the judgment, and not a result of any error by the trial court. See Taylor v. Bateman, 927 So.2d 1024, 1026 (Fla. 4th DCA 2006). Because the trial court signed the proposed judgment prepared by Genovese in Genovese I, his inability to appeal that judgment or any findings of fact was entirely within his control.

Accordingly, we reverse the trial court’s denial of Provident’s motion for directed verdict and remand for entry of a directed verdict in favor of Provident in accordance with this opinion.

Reversed and Remanded.

STEVENSON and CIKLIN, JJ., concur.

      . The judge who denied Provident's motion and granted Genovese’s cross-motion was not the same judge who tried Genovese I.

      . Although the December 8, 1997 onset date was not specifically included in the form of the final judgment entered in Genovese I, the November 14, 1997 onset date was included in the Genovese II judgment.


text:
    Ana VIVAS, et al., Appellants, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee.
    No. 3D13-465.
    District Court of Appeal of Florida, Third District.
    March 5, 2014.
    Rehearing Denied May 15, 2014.
    Alvarez, Carbonell, Feltman & DaSilva, P.L., and Paul B. Feltman, for appellants.
    Traub Lieberman Straus & Shrewsber-ry LLP, and Scot E. Samis, for appellee.
    Before ROTHENBERG, LOGUE, and SCALES, JJ.
   PER CURIAM.

Because we agree with the trial court that the insurer did not wrongfully cause the insureds to resort to litigation, we affirm the trial court’s denial of attorney’s fees and costs. See generally Beverly v. State Farm Fla. Ins. Co., 50 So.3d 628, 633 (Fla. 2d DCA 2010) (quoting Clifton v. United Cas. Ins. Co. of Am., 31 So.3d 826, 829 (Fla. 2d DCA 2010)) (“[A]n insurer’s post-suit payment of additional policy proceeds entitles the insured to section 627.428 attorney’s fees where the insurer ‘wrongfully caus[ed] its insured to resort to litigation in order to resolve a conflict with its insurer when it was within the company’s power to resolve it.’ ”).


text:
    Louis A. WINGARD, III, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1031.
    District Court of Appeal of Florida, First District.
    March 26, 2014.
    Rehearing Denied May 21, 2014.
    Louis A. Wingard, III, 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.

ROWE, MARSTILLER, and RAY, JJ„ concur.


author: OSTERHAUS, J.

text:
    ALACHUA COUNTY SCHOOL BOARD/Florida School Boards Insurance Trust, Appellant, v. OFFICE OF the STATE of Florida, CHIEF FINANCIAL OFFICER FOR the DEPARTMENT OF FINANCIAL SERVICES, DIVISION OF WORKER’S COMPENSATION, Appellee.
    No. 1D13-1841.
    District Court of Appeal of Florida, First District.
    March 27, 2014.
    Rehearing Denied May 8, 2014.

      M. Kemmerly Thomas of McConnaugh-hay, Duffy, Coonrod, Pope & Weaver, P.A., Tallahassee, for Appellant.
    Cynthia L. Jakeman, Assistant General Counsel, Division of Legal Services, Tallahassee, for Appellee.
   OSTERHAUS, J.

The Alachua County School Board (School Board) challenges a final order of the Department of Financial Services (DFS) imposing a $200 workers’ compensation-related administrative penalty. The School Board argues, among other things, that DFS lacked jurisdiction to impose the penalty without first referring its case to a judge of compensation claims (JCC) pursuant to section 440.021 of the Florida Statutes. We disagree and affirm the final order.

I.

The parties stipulated to the facts in the administrative proceeding below. In short, DFS audited the School Board’s workers’ compensation claims-handling practices for a multiyear period and found 177 “late payments.” DFS issued a final audit report and assessed penalties totaling $15,300, which the School Board paid. But the School Board reserved the ability to challenge two of the late payments relating to a teacher (hereafter referred to as S.L) who had received temporary total disability (TTD) benefits related to a knee surgery. The two disputed late payments accounted for just $200 of the total penalty paid by the School Board ($100 per infraction).

The School Board filed a petition requesting Administrative Procedure Act-based review in accordance with § 440.525(3). Its petition conceded that “[DFS] has jurisdiction over the parties and subject matter of this Petition.” The discovery process fleshed out the facts which were stipulated to by the parties. Together they moved for and received an order relinquishing jurisdiction back to DFS. A department hearing officer conducted an informal hearing addressing both the School Board’s jurisdictional argument and DFS’s late-payment determination. And later, DFS entered a final order rejecting the School Board’s arguments and ordered it to pay the $200 penalty forthwith. DFS noticed the School Board’s right to appeal to this court per § 120.68, which it did in a timely fashion.

II.

A.

We affirm the final order without additional comment with respect to the two late TTD benefit payments identified in DFS’s audit report. The harder issue in this case is jurisdictional, involving the parties’ competing views of whether the statutory scheme permits DFS to impose penalties without a referral to the JCC.

As a threshold matter, neither party disputes DFS’s basic authority under chapter 440 to audit and impose penalties on carriers and claims-handling entities that do not comply with Florida’s workers’ compensation laws. Section 440.20(8)(b), is clear, for instance, that DFS:

shall monitor, audit, and investigate the performance of carriers. The office shall require that all compensation benefits are timely paid in accordance with this section. The office shall impose penalties for late payments of compensation that are below a minimum 95 percent timely payment performance standard.

See also § 440.525, Fla. Stat. (allowing audits of claims handling entities).

The parties disagree, however, on the applicable process when penalties are disputed. According to the School Board, DFS lacked jurisdiction to issue the Final Order in this case because § 440.021 requires matters involving disputed penalties to be referred to the JCC. DFS counters that its audits do not consist of adjudications of employee benefits claims as would fall under the jurisdiction of a JCC. But, rather, § 440.525(2) authorizes DFS to audit claims-handling entities like the School Board, and impose penalties where chapter 440’s requirements are not met. DFS argues that it followed the correct § 440.525(3)-based process here by serving a written audit report of the violations and providing the School Board with APA-based review.

B.

We review statutory interpretation issues de novo and interpret unambiguous statutes according to their plain and obvious meaning. See, e.g., Murray v. Mariner Health, 994 So.2d 1051, 1056-57 (Fla.2008). When faced with two different, but applicable statutes, “courts must favor a construction that gives effect to both statutes rather than construe one statute as being meaningless or repealed by implication.” Butler v. State, 838 So.2d 554, 555-56 (Fla.2003) (citations omitted). “ ‘The rule of construction ... is that if the courts can by any fair, strict or liberal construction find for the two provisions a reasonable field of operation, without destroying their evident intent and meaning, preserving the force of both, and construing them together in harmony with the whole course of legislation, it is their duty to do so.’” Fuller v. Dep’t of Educ., 927 So.2d 28, 32 (Fla. 1st DCA 2006) (quoting City of St. Petersburg v. Pinellas County Power Co., 87 Fla. 315, 100 So. 509, 510 (1924)).

In this case, we conclude that the two applicable statutes can be read together to make available both a DFS audit report-focused review process as contemplated in § 440.525(3) (an APA-based process) and a § 440.021 review process before the JCC for resolving narrower disputes involving only the amount of the penalty or interest assessment, given the ultimate results of the audit report or the APA-based review of same. Parsing the statutes, the Legislature in § 440.525, subsection 3, allows for an APA-based review of “the results of [DFS’s] examination or investigation.” The process described in subsection 3 certainly encompasses challenges to the findings in an audit report, whereas this subsection wholly omits any reference to penalties per se, or avenues by which a carrier or claims handling entity can challenge penalty amounts ultimately assessed by DFS.

Conversely, § 440.525, subsection Jp, and § 440.021, when read together, provide for a different review process related to penalty assessments. See n. 1, 2 supra. When an audited entity challenges the penalty assessment itself — the amount of the penalty — referral is required to a JCC. Different from the audit report merits phase prescribed by § 440.525(3) (an APA-based process), penalty phase review before a JCC narrowly concerns the issue of whether DFS’s “penalty or interest” assessment calculation comports with legal requirements. See §§ 440.525(4), 440.021, Fla. Stat.

C.

Applied to this case, the School Board has received the APA-based review called for by the statutes insofar as, besides its jurisdictional argument, it challenged only the underlying merits of DFS’s findings. The School Board asked for and received review of DFS’s late-payment determination under chapter 120 in accordance with § 440.525(3). And DFS later issued a final appealable order to the School Board with notice of its right to appeal, which has occurred here. The School Board has never specifically challenged the penalty assessment per se — the $200 penalty calculated by DFS. Rather the School Board stipulated that it “does not dispute the calculation of the total penalty amount assuming that the Department is determined to have subject matter jurisdiction over the issues presented and has accurately identified the alleged late payments to S.L.”

Because this matter involves no objection to the means by which the penalty amount was calculated or the appropriateness of such penalty in light of the violations found to exist through the APA-based review, referral to the JCC was not required. (Whereas if the $200 penalty assessment was itself disputed, arguably miscalculated, etc., then referral to the JCC would have been called for pursuant to § 440.021.)

III.

For the foregoing reasons, we conclude that DFS had subject matter jurisdiction to enter the final order. The final order is

AFFIRMED.

CLARK and MAKAR, JJ., concur.

      . Section 440.021 states in relevant part:
      In all instances in which the department institutes action to collect a penalty or interest which may be due pursuant to this chapter, the penalty or interest shall be assessed without hearing, and the party against which such penalty or interest is assessed shall be given written notice of such assessment and shall have the right to protest within 20 days of such notice. Upon receipt of a timely notice of protest and after such investigation as may be necessary, the department shall, if it agrees with such protest, notify the protesting party that the assessment has been revoked. If the department does not agree with the protest, it shall refer the matter to the judge of compensation claims for determination pursuant to s. 440.25(2)-(5). Such action of the department is exempt from the provisions of chapter 120.

      (Emphasis added).

      . Section 440.525 states, in relevant part:
      (3) ... The results of an examination or investigation [by DFS] shall be provided to the carrier, third-party administrator, servicing agent, or other claims-handling entity in a written report setting forth the basis for any violations that are asserted. Such report is agency action for purposes of chapter 120, and the aggrieved party may request a proceeding under s. 120.57 with regard to the findings and conclusion of the report.

      (4) If [DFS] finds that violations of this chapter have occurred, [it] may impose an administrative penalty upon the offending entity or entities. For each offending entity, such penalties shall not exceed .... [DFS] shall adopt penalty guidelines by rule to set penalties under this chapter.
      (Emphasis added)

      . This Court views it as an "obligation" to adopt an interpretation that "harmonizes two related, if conflicting, statutes while giving effect to both." Fuller, 927 So.2d at 32. And where one statute is passed sooner in time, "the legislature is presumed to pass subsequent enactments with full awareness of all prior enactments and an intent that they remain in force.” Id. (citing Palm Harbor Special Fire Control Dist. v. Kelly, 516 So.2d 249, 250 (Fla.1987)).


author: FERNANDEZ, J.

text:
    ESTATE OF James P. MAHER, III, Appellant, v. Olga Valerievna IGLIKOVA, Appellee.
    No. 3D13-467.
    District Court of Appeal of Florida, Third District.
    April 9, 2014.
    Golden & Cowan, P.A., and William H. Glasko, Miami, for appellant.
    Phillips Lanier, and Emily Joyce Phillips, Miami, for appellee.

      Before WELLS, ROTHENBERG and FERNANDEZ, JJ.
   FERNANDEZ, J.

Lyudmila Taran, guardian of her son, P.M., a minor and beneficiary of the Estate of James P. Maher, III, appeals the trial court’s denial of her motion for summary judgment, wherein the trial court found that A.M.I., appellee Olga Valeriev-na Iglikova’s daughter, is a pretermitted child. We reverse because A.M.I. does not qualify as a pretermitted child because she was born before the execution of the decedent’s will.

This case arises out of the probate of the estate of James P. Maher, III, who disappeared in 2004. On August 3, 2009, the trial court entered an order on Petition for Order Declaring Death of Missing Person and a presumptive Death Certificate. Maher’s last will and testament dated July 11, 2001 was admitted to probate on December 1, 2009.

The decedent fathered two children during his lifetime: P.M., the decedent’s son, of whom Taran is the legal guardian, born April 29, 1999; and A.M.I., Iglikova’s daughter, born on December 15, 2000. The decedent did not become aware of A.M.I.’s existence until either June or July of 2002. A paternity test conducted in either late 2002 or early 2003 confirmed the decedent’s paternity of A.M.I. The decedent thereafter made monthly child support payments to Iglikova for the benefit of A.M.I. These payments continued until the filing of the Petition for Administration on December 1, 2009. On August 10, 2005, a court order from the Commonwealth of Massachusetts directed that A.M.I.’s birth certificate be amended to reflect the decedent as the father.

On July 13, 2010, Iglikova filed a Petition to Determine Status as a Pretermitted Child, Challenge Construction of Will and Determine Beneficiaries. Taran filed a motion for summary judgment, asserting that A.M.I. was not a pretermitted child under section 732.302, Florida Statutes (2010), because she was (1) not omitted from the will, as she was included in a class gift for “children surviving [the decedent],” and (2) she was not born or adopted after the decedent executed the will. The trial court subsequently denied Taran’s motion for summary judgment and found A.M.I. to be a pretermitted child under the statute. The trial court subsequently denied Taran’s motion for summary judgment and found A.M.I. to be a pretermitted child under the statute.

We review the trial court’s denial of summary judgment de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law. Id. Statutory interpretation is a question of law subject to de novo review. GTC, Inc. v. Edgar, 967 So.2d 781, 785 (Fla.2007). When “the language of the statute is clear and unambiguous, and conveys a clear and definite meaning, there is no occasion to resort to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Id.

There are three elements that must be satisfied for a child to be pretermitted. The child must be: (1) omitted from the will, (2) born or adopted after the making of the will, and (3) have not received a part of the testator’s property equivalent to a child’s part by way of advancement. § 732.302, Fla. Stat. (2010). Section 732.302 specifically provides:

When a testator omits to provide by will for any of his or her children born or adopted after making the will and the child has not received a part of the testator’s property equivalent to a child’s part by way of advancement, the child shall receive a share of the estate equal in value to that which the child would have received if the testator had died intestate, unless:
(1) It appears from the will that the omission was intentional; or
(2) The testator had one or more children when the will was executed and devised substantially all the estate to the other parent of the pretermitted child and that other parent survived the testator and is entitled to take under the will. The share of the estate that is assigned to the pretermitted child shall be obtained in accordance with s. 733.805.

Additionally, a child legitimized by a determination of paternity after the execution of a will is not a pretermitted child. J.E.W. v. Estate of Doe, 443 So.2d 249 (Fla. 1st DCA 1983).

Taran argues that A.M.I. is not a pretermitted child because she benefits from the will in that she shares in a class gift for “children” surviving the decedent, and she was born after the execution of the will. We agree.

Although not specifically named, A.M.I. is not “omitted” from the will because she stands to inherit from the will in the form of a class gift as a child of the decedent. Section 732.302 does not speak to the sufficiency or to the amount of the child’s beneficial interest. It only states that the child must be “omitted” to be pretermit-ted.

Furthermore, under the plain and obvious meaning of the statute, A.M.I. is not a pretermitted child because she was born before the execution of the decedent’s will. Iglikova argues that an adjudication of paternity should be equated with an adoption that took place after the execution of the will. We decline to adopt such a rationale, as the two are distinct. “ ‘Adoption’ means the act of creating the legal relationship between parent and child where it did not exist.” § 63.032(3), Fla. Stat. (2010). However, adjudication of paternity merely acknowledges an existing relationship. See e.g. Guerrero v. Staglish, 400 So.2d 190,191 (Fla. 3d DCA 1981). In addition, it is not within the purview of this Court to expand the meaning of the statute when its language is clear and unambiguous. Accordingly, we hold that the trial court erred when it denied Taran’s motion for summary judgment and determined A.M.I. is a pretermitted child.

Reversed and remanded for further proceedings consistent with this opinion.


text:
    Korzan D. DUNKLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-2593.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2014.
    Korzan D. Dunkley, Raiford, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Monique Rolla, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Appellant, Korzan Dunkley a/k/a Korian Dunkley, timely appeals the denial of a petition for writ of habeas corpus. Appellant has filed successive post-conviction challenges to his sentence and untimely challenges to his convictions. The claims raised in this appeal are without merit. See Clark v. State, 72 So.3d 222 (Fla. 2d DCA 2011); Mann v. State, 851 So.2d 901 (Fla. 3d DCA 2003); Swain v. State, 744 So.2d 474 (Fla. 2d DCA 1999); Robinson v. State, 393 So.2d 33, 34 (Fla. 1st DCA 1981). Appellant is cautioned that filing of frivolous pleadings may result in the sanction of no longer accepting his pro se filings and may result in referral to the Department of Corrections for disciplinary procedures. See § 944.279, Fla. Stat. (2013); State v. Spencer, 751 So.2d 47 (Fla.1999).

Affirmed.

WARNER, STEVENSON and CIKLIN, JJ„ concur.


text:
    Chad RAGER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3704
    District Court of Appeal of Florida, First District.
    April 11, 2014.
    Rehearing Denied May 23, 2014.
    Petition Alleging Ineffective Assistance of Appellate Counsel-Original Jurisdiction. Chad Rager, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Jay Paul Kubica, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

ROBERTS, WETHERELL, and OSTERHAUS, JJ„ concur.


author: SUAREZ, J.

text:
    Nakavius L. PAUL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-406.
    District Court of Appeal of Florida, Third District.
    April 16, 2014.
    Rehearing Denied May 15, 2014.
    Carlos J. Martinez, Public Defender, and David S. Molansky, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Linda Katz, Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA, and LOGUE, JJ.
   SUAREZ, J.

Defendant Nakavius Paul appeals his conviction and sentence. We affirm finding that there is no merit to the first issue raised on appeal and as to the second issue we find that none of the unobjected-to comments made in closing argument by the prosecution rise to the level of fundamental error. Merck v. State, 975 So.2d 1054, 1061 (Fla.2007) (“Unobjected-to comments are grounds for reversal only if they rise to the level of fundamental error.”).

Affirmed.


text:
    Javier Belmontes LOPEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3247.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2014.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING AND CLARIFICATION

PER CURIAM.

We grant appellant’s motion for rehearing and clarification of this court’s March 5, 2014 opinion and substitute the following in its place.

The defendant appealed from a conviction and sentence for attempted second degree murder with a firearm as a lesser included offense of attempted first degree murder with a firearm. This court affirmed. Lopez v. State, 55 So.3d 707 (Fla. 4th DCA 2011). Our affirmance was based on our opinion in Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010) (“Williams I”). Williams I held that the giving of the standard jury instruction on attempted voluntary manslaughter was not fundamental error in a prosecution for attempted first degree murder in which the defendant was convicted of the lesser included offense of attempted second degree murder.

The defendant petitioned for review in the Florida Supreme Court. While the petition was pending, the Florida Supreme Court quashed this court’s opinion in Williams I. Williams v. State, 123 So.3d 23, 30 (Fla.2013) (“Williams II”). The Court held:

[A] trial court commits fundamental error in giving the standard jury instruction on attempted manslaughter by act where the defendant is convicted of a crime no more than one step removed from the improperly instructed offense.

Id. at 27. The Court then, by order, accepted jurisdiction of this case, quashed this court’s opinion, and remanded for reconsideration upon application of its opinion in Williams II. See Lopez v. State, No. SC11-502, 2014 WL 980154 (Fla. Jan. 24, 2014).

In light of Williams II, we hold that the trial court committed fundamental error in giving the standard jury instruction on attempted manslaughter by act. We reverse and remand for a new trial on the charge of attempted second degree murder with a firearm. The trial court also should consider a revised scoresheet and resen-tence on any remaining counts if the outcome of the proceedings on remand would result in a recalculated sentencing score-sheet.

Reversed and remanded for proceedings consistent with this opinion.

CIKLIN, FORST and KLINGENSMITH, JJ„ concur.


text:
    Kawuan L. DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3260.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2014.
    Antony P. Ryan, Regional Counsel, and Randall Berman and Louis G. Carres, Special Assistant Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING AND CLARIFICATION

PER CURIAM.

We grant appellant’s motion for rehearing and clarification of this court’s February 26, 2014 opinion. We substitute the following opinion.

The defendant appealed from a conviction and sentence for attempted second degree murder with a firearm as a lesser included offense of attempted first degree murder with a firearm. This court affirmed. Davis v. State, 69 So.3d 1021, 1022 (Fla. 4th DCA 2011). Our affirmance was based on our opinion in Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010) (“Williams I ”). Williams I held that the giving of the standard jury instruction on attempted voluntary manslaughter was not fundamental error in a prosecution for attempted first degree murder in which the defendant was convicted of the lesser included offense of attempted second degree murder. Id. at 74-75.

The defendant petitioned for review in the Florida Supreme Court. While the petition was pending, the Florida Supreme Court quashed this court’s opinion in Williams I. Williams v. State, 123 So.3d 23, 30 (Fla.2013) (“Williams II”). The Court held:

[A] trial court commits fundamental error in giving the standard jury instruction on attempted manslaughter by act where the defendant is convicted of a crime no more than one step removed from the improperly instructed offense.

Id. at 27. The Court then, by order, accepted jurisdiction of this case, quashed this court’s opinion in this case, and remanded for reconsideration upon application of its opinion in Williams II. Davis v. State, 134 So.3d 446 (Fla.2014).

In light of Williams II, we hold that the trial court committed fundamental error in giving the standard jury instruction on attempted manslaughter by act. We reverse and remand for a new trial on the charge of attempted second degree murder with a firearm. The trial court also should consider a revised scoresheet and resen-tence the defendant on the remaining counts if the outcome of the proceedings on remand would result in a recalculated sentencing scoresheet.

Reversed and remanded for proceedings consistent with this opinion.

STEVENSON, TAYLOR and GERBER, JJ., concur.


author: SCALES, J.

text:
    Gabriel ABELLA, Appellant, v. MONTENAY POWER CORP., et al., Appellees.
    No. 3D13-270.
    District Court of Appeal of Florida, Third District.
    April 16, 2014.
    Jeffrey A. Nussbaum, P.A., and Jeffrey A. Nussbaum (Davie); Nancy Little Hoff-mann, P.A., and Nancy Little Hoffmann (Ft. Lauderdale), for appellant.
    Hinshaw & Culbertson LLP, and James H. Wyman, for appellees.
    Before ROTHENBERG, EMAS and SCALES, JJ.
   SCALES, J.

Plaintiff, Appellant below, appeals a final summary judgment entered on behalf of all three defendants, Montenay Power Corp., Miami-Dade County, and Hank Clements.

Because no genuine issue of disputed fact exists that Montenay Power Corp. and Hank Clements are entitled to workers’ compensation immunity, we affirm the trial court’s summary judgment for these two defendants.

While, on remand, Miami-Dade County may also be entitled to workers’ compensation immunity, the contract between Miami-Dade County and Florida Power & Light, which may establish that Miami-Dade County was the “statutory employer” of Plaintiff, was not part of the summary judgment evidence before the trial court. Therefore, the trial court’s entry of summary judgment for Miami-Dade County was premature.

We therefore affirm the final summary judgment for Montenay Power Corp. and Hank Clements, but reverse the final summary judgment for Miami-Dade County and remand for proceedings consistent herewith.

      . Yero v. Miami-Dade Cnty., 838 So.2d 686 (Fla. 3d DCA 2003).


text:
    LMG NW 173 DR LLC, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., Appellee.
    No. 3D13-321.
    District Court of Appeal of Florida, Third District.
    April 16, 2014.
    Max A. Goldfarb, for appellant.
    Carlton Fields Jordan Burt and Jessica Zagier Wallace and Michael K. Winston and Dean A. Morande (West Palm Beach), for appellee.
    Before WELLS, LAGOA and EMAS, JJ.
   PER CURIAM.

Affirmed. Applegate v. Barnett Bank, 377 So.2d 1150 (Fla.1979); Abujasen v. Dreke, 118 So.3d 235 (Fla. 3d DCA 2013).


author: ROTHENBERG, J.

text:
    Janet RODRIGUEZ and Francisca Rodriguez, Appellants, v. ALS COMMERCIAL FUNDING, LLC, Appellee.
    No. 3D13-772.
    District Court of Appeal of Florida, Third District.
    April 16, 2014.
    Janet Rodriguez and Francisca Rodriguez, in proper persons.
    Amster Law Firm, P.A., and Gabriel Itskovich (Dania Beach), for appellee.
    Before ROTHENBERG, FERNANDEZ, and SCALES, JJ.
   ROTHENBERG, J.

Janet Rodriguez (“Janet”) and Francisca Rodriguez (“Francisca”) (collectively, “the Rodriguezes”), appeal a final judgment of foreclosure on the basis that they did not receive notice of the final hearing. We reverse and remand for further proceedings.

ALS Commercial Funding, LLC (“ALS”), filed a commercial foreclosure action against the Rodriguezes. During the pendency of the action, the Rodriguezes filed a notice of change of address, requesting that all correspondence be sent to their new address. Thereafter, ALS filed a notice of hearing notifying the Rodri-guezes that ALS’s motion for summary final judgment of foreclosure would be heard on February 19, 2013. The mailing list attached to the notice of hearing indicates that the notice was mailed to both Janet and Francisca at their former address. The Rodriguezes did not attend the hearing and, following the hearing, the trial court entered a final judgment of foreclosure in favor of ALS and against the Rodriguezes.

As the record before this Court indicates that the notice of hearing was mailed to the Rodriguezes’ former address, we must reverse the final judgment of foreclosure and remand for further proceedings. See Greisel v. Gregg, 733 So.2d 1119, 1121 (Fla. 5th DCA 1999) (“A final judgment is void where the notice of hearing that re-suited in the judgment was sent to an incorrect address and, as a result, the defendant failed to receive notice.”); Watson v. Watson, 583 So.2d 410, 411 (Fla. 4th DCA 1991) (“It is well settled that a judgment entered without notice to a party is void.”); Shields v. Flinn, 528 So.2d 967, 968 (Fla. 3d DCA 1988) (“A judgment entered without notice to a party is void.”); see also Jade Winds Ass’n v. Citibank, N.A., 63 So.3d 819, 822 (Fla. 3d DCA 2011) (“A basic element of procedural due process is notice and an opportunity to be heard”). On remand, the Rodriguezes are permitted to address with the trial court any issues relating to the receiver.

Reversed and remanded.


text:
    David Reinoso RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-385.
    District Court of Appeal of Florida, Fifth District.
    April 22, 2014.
    Robert I. Mandell of Mandell Law, P.A., Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Wilson, 128 So.3d 946 (Fla. 5th DCA 2013).

EVANDER, COHEN and WALLIS, JJ., concur.