text:
    N.J.D. v. MADISON COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2110782.
    Court of Civil Appeals of Alabama.
    Nov. 2, 2012.

      Marcus Helstowski of McDaniel & McDaniel, L.L.C., Huntsville, for appellant.
    Luther Strange, atty. gen., and Sharon E. Fiquette, chief legal counsel, and Kimberly J. Dobbs, asst. atty. gen., Department of Human Resources, for appellee.
   THOMPSON, Presiding Judge.

In this case, N.J.D. (“the father”) asserts that he was denied his right to due process during proceedings involving the issues of the dependency and custody of his children (“the children”).

The record indicates that the Madison County Department of Human Resources (“DHR”) first filed a petition alleging that the father’s oldest child was dependent in June 2006. A second child was born in January 2007 and, in April 2007, was also included in the dependency proceedings. After a hearing held over several days in May and July 2008, the Madison Juvenile Court found the children to be dependent and, on September 8, 2008, entered an order awarding legal and physical custody of the children to their maternal grandfather. The children’s mother and the father appealed from the juvenile court’s dependency judgment; however, the Madison Juvenile Court determined that the record created in that court was not adequate for appeal to this court, and the matter was transferred to the Madison Circuit Court (“the trial court”) for a trial de novo.

The trial court scheduled the “appeal trial” for March 23, 2009, but the matter was continued numerous times for a variety of reasons. Eventually, the trial court scheduled an “adjudicatory, disposition, and permanency hearing” for December 6 and 10, 2010. On December 2, 2010, the father filed a motion to continue the case because he was in Canada and was unable to return in time to prepare for the trial. The guardian ad litem appointed on behalf of the children opposed the continuance, and the father’s motion was denied. On December 20, 2010, the trial court dismissed the father’s appeal based on his failure to prosecute. The father filed a motion to set aside the dismissal. With the express permission of the parties, the trial court scheduled a hearing on the father’s motion for February 28, 2011. The father prevailed on his motion, and the case was reinstated.

An “adjudicatory, disposition, and permanency hearing” was begun on July 21, 2011. Based on evidence adduced during that hearing, the trial court allowed the father to retain a psychologist to evaluate the children and the father, among others, and the hearing was continued. On February 22, 2012, the trial court entered an order scheduling a “review hearing” for March 19, 2012. When the case was called on March 19, however, the trial court proceeded with a permanency hearing. The father was not present at the March 19, 2012, hearing, although he was represented by his attorney at the hearing.

At the start of the hearing, the trial court stated that it had read the report of the DHR social worker who had been handling the father’s case and asked the attorney for DHR to tell the court “what else [it] need[ed] to understand.” The attorney responded that “the real thrust of our dispute here today relates to the matter of visitation on the part of the father.” DHR’s attorney then reported that Stacy Ikard, the psychologist who had evaluated the children and the father after the July 2011 hearing, would not oppose the father’s having supervised visitation at the Family Services Center. The attorney told the trial court that there were “a number of options available for the Court” regarding visitation, including allowing the father to have supervised visitation or prohibiting him from having any visitation. DHR’s attorney went on to say that DHR was asking the trial court “to adopt a permanent plan of permanent relative placement” and to relieve DHR of protective supervision and any further involvement in this case.

The father’s attorney responded that the father was not present and that she was not prepared to consent to limited visitation without the consent of the father. Furthermore, she said, the father was not conceding that the children were, in fact, dependent. The father’s attorney told the trial court that she wanted the trial court to have the opportunity to hear what Dr. Ikard had to say about her experiences with the father and the children. When the trial court learned that Dr. Ikard was not present, it asked the father’s attorney if she wanted the court to schedule another hearing. The father’s attorney responded:

“Well, and I apologize. When I got this hearing my understanding was this was just a review. We just got the notice last week and my understanding was it was just a review opportunity. I did notify my client when we got the notice. So that may have been my fault in miscommunieation, I did not realize that we were set for additional testimony on disposition of the case.”

No testimony was taken during the March 19, 2012, hearing. After hearing the positions of the children’s guardian ad litem and the attorneys representing the children’s mother and the maternal grandfather on the issue of the father’s visitation, the trial court asked the attorney for DHR to “prepare an order consistent with [DHRj’s recommendation and continuing the prohibition against visits either by the paternal grandmother or the father.” The attorney for the children’s mother asked whether the case was now closed, and the trial court stated: “As far as I can tell.”

On March 26, 2012, the trial court entered a separate order as to each of the father’s two children stating that the matter had come before the “juvenile court” “for permanency hearing.” In the judgments, the trial court purported to find that the children “remained” dependent. We note, however, that since the matter had first been appealed to the trial court for a trial de novo, the trial court had never made a finding that the children were dependent. We note that “ ‘ “[a] trial de novo means that the slate is wiped clean and a trial in the Circuit Court is had without any consideration being given to prior proceedings in another court.” ’ ” Mahoney v. Loma Alta Prop. Owners Ass’n, Inc., 84 So.3d 907, 916 (Ala.Civ.App.2011) (quoting Ex parte Dison, 469 So.2d 662, 665 (Ala.1984) (overruled on other grounds by Ex parte City of Dothan, 501 So.2d 1136 (Ala.1986)), quoting in turn Yarbrough v. City of Birmingham, 353 So.2d 75, 78 (Ala.Crim.App.1977)). Thus, the March 26, 2012, orders were the first adjudications of the children’s dependency.

In its March 26, 2012 judgments, the trial court also found that the return of the children to the father’s home would be contrary to their best interests, and it finalized the permanent relative placement of the children. Custody of the children was awarded to their maternal grandfather, with whom the children had lived since September 15, 2008, when the juvenile court entered its judgment finding that the children were dependent. The March 26, 2012, judgment also stated that the father was prohibited from visiting with the children; however, in the judgment, the trial court left open the possibility of future visitation in the event of a material change in circumstances. The trial court also closed the file in the matter. The father filed a motion to alter, amend, or vacate the March 26, 2012, judgment, which was denied by operation of law. The father appealed.

The father contends that his right to due process was violated when the trial court set this matter for a “review hearing” on March 19, 2012, but then treated the hearing as a “permanency hearing” without the presentation of testimony or other evidence. The father also contends that the trial court further deprived him of his right to due process when it entered its judgments adopting DHR’s plan of permanent relative placement and awarding permanent custody of the children to the maternal grandfather.

“ ‘[A] parent is entitled to due process in proceedings involving the custody of a child.’ Strain v. Maloy, 83 So.3d 570, 571 (Ala.Civ.App.2011). In Strain v. Malay, supra, this court explained:
“ ‘ “In dealing with such a delicate and difficult question — the welfare of a minor child — due process of law in legal proceedings should be observed. These settled courses of procedure, as established by our law, include due notice, a hearing or opportunity to be heard before a court of competent jurisdiction.”
‘Danford [v. Dupree ], 272 Ala. [517,] 520, 132 So.2d [734,] 735-36 [(1961)]. As this court has further explained:
“ ‘ “[P]rocedural due process contemplates the basic requirements of a fair proceeding including an impartial hearing before a legally constituted court; an opportunity to present evidence and arguments; information regarding the claims of the opposing party; a reasonable opportunity to controvert the opposition’s claims; and representation by counsel if it is desired.”
‘Crews v. Houston Cnty. Dep’t of Pensions & Sec., 358 So.2d 451, 455 (Ala.Civ.App.1978) (emphasis added).’

83 So.3d at 571.”

Gilmore v. Gilmore, 103 So.3d 833, 835 (Ala.Civ.App.2010).

This court has set forth the test to be applied in determining whether parents were afforded due process in custody-modification cases:

“The Supreme Court of the United States in Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960), discussing the concept of due process, observed:
“ ‘ “Due process” is an elusive concept. Its exact boundaries are undefinable, and its content varies according to specific factual contexts.... Therefore, as a generalization, it can be said that due process embodies the differing rules of fair play, which through the years, have become associated with differing types of proceedings. Whether the Constitution requires that a particular right obtain in a specific proceeding depends upon a complexity of factors. The nature of the alleged right involved, the nature of the proceeding, and the possible burden on that proceeding, are all considerations which must be taken into account.’ 363 U.S. at 442, 80 S.Ct. at 1515.
“Thus, in deciding whether a parent has a right to due process when a party to a proceeding to determine custody of his or her minor child, the court will consider three factors: the nature of the right involved, the nature of the proceeding, and the possible burden on the proceeding.”

Thorne v. Thorne, 344 So.2d 165, 169 (Ala.Civ.App.1977).

As to the nature of the right involved, it is now well settled that “[t]he right to maintain family integrity is a fundamental right protected by the due process requirements of the Constitution.” Bowman v. State Dep’t of Human Res., 534 So.2d 304, 305 (Ala.Civ.App.1988). Furthermore, a parent has a prima facie right to the custody of his or her child. Id.; see also A.K. v. Henry Cnty. Dep’t of Human Res., 84 So.3d 68, 69 (Ala.Civ.App.2011). The United States Supreme Court has held that that prima facie right is protected by the Due Process Clause of the United States Constitution. See Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (holding that, under the Due Process Clause of the 14th Amendment, the father of illegitimate children was entitled to a hearing on his fitness as a parent before the state could take his children away from him).

The Thorne court continued its analysis of the factors to consider when determining whether a parent has been deprived of due process:

“With regard to the nature of the proceeding, the question is whether affording due process to the parent of a child in a custody proceeding interferes with the court’s responsibility to protect the welfare and best interest of the child. This requires a balancing of the right of the parent, discussed above, against the interest of the State of Alabama, since the child becomes a ward of the court, which is in turn an arm of the state. It should be kept in mind that at issue is the due process requirement of notice to the parent that his or her right to custody of the child is to be considered by the court.
“Although the state has a compelling interest in determining the best interest and welfare of a child, the interest is not compelling enough to allow the determination to be made without notice to the child’s parents. The purpose of requiring notice is to preserve the fairness of the hearing; and it is of vital importance to the child, as well as the parent, that the hearing be fair. A parent must have notice of the issues the court will decide in order to adduce evidence on those issues before the court, to give the court a basis from which a determination most beneficial to the child can be made. Otherwise, the child, rather than being helped, might even be harmed.
“In the case before us, the mother through her own testimony and that of her parents attempted to show that the children were well-off in her custody. However, had she known prior to the hearing that the court would consider her fitness for custody she could have— if she so desired — presented other witnesses and evidence to support her contention that she should retain custody of her children.
“Finally, we consider the burden requiring notice would place on the proceeding. We think such burden, if any, would be minimal. Only in rare circumstances would granting a continuance result in detriment to the child. In the few situations where it appears the actual health and physical well-being of the child are in danger, the court has authority under Ex parte White, [245 Ala. 212, 16 So.2d 500 (1944)], to make a temporary grant of custody until a final determination can be made. Thus, we conclude the parental right to due process far outweighs any burden that would be placed on the proceeding to determine that right.”

Thorne, 344 So.2d at 170-71 (emphasis added).

The rationale applied in Thorne also applies in this case. There is no dispute that the nature of the right involved here is the father’s right to custody of his children or, barring custody, his right to visit with his children.

The next factor — the nature of the proceeding — is the linchpin of the father’s argument. In Gilmore, supra, this court reversed what the trial court purported to be a final judgment on the merits of a custody-modification case after a hearing, which included the presentation of testimony and documentary evidence, was held on the issue of pendente lite custody only. We noted that, although the parties had appropriate notice of the claims each was asserting, the order scheduling the only hearing in the case was filed the day after the modification petition was filed, and it “gave no indication that the trial court intended that that hearing would be a final hearing on the merits.” Gilmore, 103 So.3d at 833. Additionally, the court reporter’s notations on the transcript for the hearing, held on February 2, 2012, indicated that it was a hearing on the mother’s motion for pendente lite custody. In reversing the “final judgment,” this court explained:

“[T]here was no indication in the record that the trial court intended to consider the parties’ claims seeking a final custody determination at the February 2, 2012, hearing. Accordingly, we conclude that the trial court erred to reversal in entering a judgment on the merits without affording the parties an opportunity to fully litigate the action on the merits.”

Id. at 836.

The Alabama Juvenile Justice Act, § 12-15-101 et seq., Ala.Code 1975 (“the Act”), provides for three types of hearings in dependency cases. The Act defines an adjudicatory hearing as “a hearing at which evidence is presented for a juvenile court to determine if a child is dependent.” § 12-15-310(a), Ala.Code 1975. As mentioned, although this case has been pending before the trial court for years, the March 26, 2012, judgment marked the first time the trial court had found the children to be dependent.

Once a court makes a finding of dependency, it may proceed to make a disposition of the case. A court may immediately proceed to the disposition of a case in the absence of objection showing good cause, or it may delay the disposition for a separate hearing. § 12-15-311, Ala.Code 1975. That statute further provides, in pertinent part:

“(b) In dispositional hearings, all relevant and material evidence helpful in determining the best interests of the child, including verbal and written reports, may be received by the juvenile court even though not admissible in the adjudicatory hearing. The parties or their counsel shall be afforded an opportunity to examine and controvert written reports so received and to cross-examine individuals making reports.
“(c) On its own motion or that of a 'party, the juvenile court may continue the dispositional hearing pursuant to this section for a reasonable period to receive reports and other evidence bearing on the disposition .... ”

§ 12-15-311(b) and (c) (emphasis added).

Once a child has been removed from the parent’s home, the trial court is required to hold periodic review hearings to ensure that “reasonable efforts are being made to finalize the existing permanency plan.” § 12-15-312(a)(3), Ala.Code 1975.

In the instant case, the evidence is undisputed that the father received notice that a review hearing would be held on March 19, 2012. At the hearing, the trial court heard the arguments of the attorneys representing the various parties on the issue of the father’s visitation. The trial court received no evidence regarding the psychologist’s evaluation of the children and the father, which was the basis for the trial court’s decision to continue the July 2011 hearing. During the March 19, 2012, hearing, DHR’s attorney, who said that he had only recently become involved in the case, mentioned that DHR recommended that the placement of the children with their maternal grandfather be made permanent. In reviewing the transcript of the March 19, 2012, hearing, we note that the attorneys for the other parties involved in this matter did not discuss the merits of DHR’s recommendation. After the hearing, the trial court entered a judgment— prepared by the attorney for DHR at the trial court’s request — in which it adopted DHR’s recommendation of permanent relative placement and closed the case file. The judgment indicated that it was entered after a permanency hearing on March 19, 2012.

Furthermore, as the father’s attorney pointed out, in past notices of hearings scheduled in this case, the trial court had stated whether the hearings were adjudicatory, dispositional, or for some other purpose, so when the notice of this hearing stated that it was to be a review hearing, she relied on that statement. We find no evidence indicating that the father or his attorney were attempting to prolong the litigation or had any other improper purpose in them failure to have witnesses present and prepared to testify as to the psychologist’s evaluation of the father and the children. The father’s attorney came to the hearing prepared for a review hearing and not for a final dispositional hearing for which she had no notice. Thus, we conclude that, because the father was not notified of the nature of the proceedings, he was effectively denied the opportunity to present the evidence of the psychologist’s findings. The trial court’s finding of the need for the evaluations of the father and the children was the reason for the continuance of the previous hearing in the first place. It defeats the notion of fair play to prevent the father from presenting to the trial court the results of those evaluations. Accordingly, we conclude that, in failing to notify the father of the nature of the proceedings, the trial court deprived the father of his right to due process.

The third factor in the Thorne analysis requires us to weigh the burden on the proceeding that would result if the trial court provided notice to the father that the hearing would be a final hearing in the case determining whether the relative placement would be permanent and not simply a “review” hearing. As in Thorne, we conclude that the burden of providing notice to the father of the true nature of the proceeding would be minimal. The children are already in the custody of the maternal grandfather and have been for several years. Although we are aware that this case has been protracted, we cannot say that the father’s conduct at the March 19, 2012, hearing is to blame for delaying a final resolution. Consideration of this factor weighs in favor of the father.

For the reasons set forth above, we conclude that the judgment adopting DHR’s permanency plan, permanently placing the children in the maternal grandfather’s custody and closing the case, was entered in a manner that was inconsistent with due process. Accordingly, we reverse the judgment and remand this cause to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.


source: Caselaw Access Project

author: MOORE, Judge. THOMPSON,

license: Public Domain

text:
    Kelly Driskell YAUN v. Thomas Leo HEALEY III.
    2110821.
    Court of Civil Appeals of Alabama.
    Nov. 2, 2012.
    Kelly D. Yaun, pro se.
    Submitted on appellant’s brief only.
   MOORE, Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(F), Ala. R.App. P.; Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992); Robbins v. Payne, 84 So.3d 136, 140 (Ala.Civ.App.2011); Springer v. Damrich, 993 So.2d 481, 489 (Ala.Civ.App.2008); Deines v. Deines, 424 So.2d 1334, 1335 (Ala.Civ.App.1983).

PITTMAN, BRYAN, and THOMAS, JJ., concur.

THOMPSON, P.J., concurs in part and dissents in part, with writing.

THOMPSON,

Presiding Judge, concurring in part and dissenting in part.

I dissent as to the amount Kelly Driskell Yaun was ordered to pay toward the attorney fee incurred by Thomas Leo Healey III. Otherwise, I agree that the remainder of the judgment is due to be affirmed.


author: WINDOM, Presiding Judge.

text:
    James Lee STEWART v. STATE of Alabama.
    CR-11-1494.
    Court of Criminal Appeals of Alabama.
    Nov. 2, 2012.
    Arthur P. Clarke, Mobile, for appellant.
    Luther Strange, atty. gen., and P. David Bjurberg, asst. atty. gen., for appellee.
   WINDOM, Presiding Judge.

James Lee Stewart appeals his guilty-plea convictions for first-degree assault, see § 13A-6-20, Ala.Code 1975, and first-degree burglary, see § 13A-7-5, Ala.Code 1975, and his resulting sentences of 20 years in prison for the assault conviction and 25 years in prison for the burglary conviction.

On March 15, 2012, Stewart, who was represented by counsel, entered a blind guilty plea to first-degree assault and first-degree burglary. On April 11, 2012, Stewart filed a pro se motion to withdraw his guilty plea. In his motion, Stewart alleged, among other things, that counsel entered the plea without his permission, that counsel failed to inform him what a blind plea entails, and that counsel failed to discuss with him the constitutional rights he would be waiving by pleading guilty. According to Stewart’s motion, counsel also failed to appear on a court date when a possible plea agreement was discussed. In sum, Stewart asserted that counsel’s performance was deficient and that, but for counsel’s deficient performance, he would not have pleaded guilty. See generally, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The circuit court held a hearing on Stewart’s motion to withdraw his guilty plea. During the hearing, Stewart was not represented by counsel, and the record does not reflect that Stewart waived his right to counsel. After the hearing, the circuit court denied Stewart’s motion.

On appeal, Stewart argues that he was denied his Sixth Amendment right to counsel during the hearing on his motion to withdraw his guilty plea. The State, relying on the Alabama Supreme Court’s recent decision in Ex parte Pritchett, [Ms. 1100465, Sept. 7, 2012] - So.3d - (Ala.2012), asserts that this cause must be remanded for the circuit court to conduct a hearing to determine whether Stewart knowingly and voluntarily waived his right to counsel.

In Ex parte Pritchett, — So.3d at —, the Alabama Supreme Court held that proceedings relating to a defendant’s motion to withdraw his guilty plea are a critical stage; therefore, the defendant is entitled to counsel. Thus, a circuit court may not, consistent with the Sixth Amendment to the Constitution of the United States, conduct a hearing on a defendant’s motion to withdraw his guilty plea unless counsel is provided or the defendant validly waives his right to counsel. Id. at —. Here, Stewart was not represented by counsel at the hearing on his motion to withdraw his guilty plea, and the record does not reflect that he waived his right to counsel.

Thus, in accordance with the Alabama Supreme Court’s holding in Ex parte Pritchett, — So.3d at —, the judgment of the circuit court is reversed and Stewart’s case is remanded to the circuit court to conduct a hearing on Stewart’s motion to withdraw his guilty plea. During that hearing, Stewart is to be represented by counsel unless the circuit court determines that Stewart has knowingly, intelligently, and voluntarily waived his right to counsel.

REVERSED AND REMANDED.

WELCH, KELLUM, BURKE, and JOINER, JJ., concur.


author: KELLUM, Judge.

text:
    James Darnell HUMPHREY v. STATE of Alabama.
    CR-11-1406.
    Court of Criminal Appeals of Alabama.
    Nov. 2, 2012.

      Christmas Y. Green, Selma, for appellant.
    Luther Strange, atty. gen., and P. David Bjurberg, asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, James Darnell Humphrey, pleaded guilty to one count of robbery in the first degree, see § 13A-8-41, Ala.Code 1975, and one count of robbery in the third degree, see § 13A-8-43. The Madison Circuit Court sentenced Humphrey to 20 years’ imprisonment for the first-degree-robbery conviction and to 10 years’ imprisonment for the third-degree-robbery conviction, those sentences to be served concurrently. The circuit court further ordered Humphrey to pay $1,000 in fines, $200 to the crime victims compensation fund, $4,625 in restitution, and court costs.

On January 9, 2012, the circuit court conducted a guilty-plea colloquy with Humphrey. During the colloquy, Humphrey was informed of the constitutional rights he was waiving by pleading guilty and the range of punishment for the offenses to which he was pleading guilty. The circuit court then asked Humphrey if he was pleading guilty because he was, in fact, guilty. Humphrey initially stated, “no.” (R. 12.) The circuit court refused to accept the pleas but allowed Humphrey to confer further with his counsel. Following a short break, Humphrey returned and told the court that he was pleading guilty because he was guilty. The circuit court then accepted Humphrey’s guilty pleas. On May 24, 2012, the circuit court denied Humphrey’s request for probation and sentenced him as provided in the plea agreements.

On June 7, 2012, Humphrey filed a pro se motion to withdraw his guilty pleas. In support of that motion, Humphrey claimed that he did not fully understand the pleas and that defense counsel did not fully explain the plea agreements. On that same date Humphrey filed a notice of appeal. On June 8, 2012, the circuit court denied Humphrey’s motion to withdraw his guilty pleas. Humphrey’s trial counsel moved to withdraw from his representation of Humphrey on June 19, 2012. However, before withdrawing, counsel filed a docketing statement with this Court on Humphrey’s behalf. This appeal followed.

The dispositive issues raised by Humphrey on appeal is whether the circuit court violated his Sixth Amendment right to counsel when the circuit court ruled on his pro se motion to withdraw his guilty pleas without first informing Humphrey of his right to counsel to assist in the preparation of that motion and without ascertaining if Humphrey had knowingly and intelligently waived his right to the assistance of counsel.

The Sixth Amendment right to counsel “attaches at the initiation of adversary judicial proceedings, and extends to every critical stage of the proceedings .... A critical stage is any stage where a substantial right of an accused may be affected ... and can arise in pre-trial as well as post-trial proceedings.” Berry v. State, 630 So.2d 127, 129 (Ala.Crim.App.1993) (internal citations omitted). “A motion to withdraw a guilty plea is a critical stage in a criminal proceeding requiring representation of counsel or a valid waiver of the right to counsel.” Berry, 630 So.2d at 129.

In Ex parte Pritchett, [Ms. 1100465, September 7, 2012] — So.3d — (Ala.2012), the Alabama Supreme Court recently discussed a case that is factually indistinguishable from Humphrey’s. The facts in Pritchett were as follows:

“[c]ounsel in [Pritchett’s] case was appointed for [Pritchett], and at no point before the filing and adjudication of the motion to withdraw the guilty plea did counsel formally withdraw. Nonetheless, Pritchett filed a motion to withdraw his guilty plea that, in this case, we know was handwritten and that explicitly stated that it was being filed as a ‘pro se’ motion. Furthermore, we also know that, in this case, the ground for relief asserted in this motion was that counsel who had represented the defendant before the filing of the motion allegedly had been inadequate and ineffective. As in Berry, although Pritchett nominally had counsel of record at the time he filed his motion, it was clear that the motion was prepared and relief was sought by Pritchett without the involvement of that counsel.”

— So.3d at —. The Supreme Court held that Pritchett was required to have the assistance of counsel — or to have validly waived such assistance — during the proceedings surrounding the motion to withdraw his guilty plea because Pritchett’s motion to withdraw his guilty plea was a critical stage in the judicial proceedings. Id. Therefore, the Supreme Court reversed Pritchett’s conviction and ordered “a hearing on Pritchett’s motion to withdraw his guilty plea in which Pritchett is represented by counsel or in which the trial court determines that Pritchett has knowingly, intelligently, and voluntarily waived his right to counsel.” Pritchett, — So.3d at —.

Here, just as in Pritchett, Humphrey filed a pro se motion to withdraw his guilty pleas. The motion was filed before Humphrey’s appointed counsel had withdrawn from his representation of Humphrey. The record does not expressly indicate that Humphrey waived his right to the assistance of counsel, nor does the record indicate that the circuit court made any inquiry into whether Humphrey had waived his right to counsel knowingly, intelligently and voluntarily. The State concedes in its brief that “there is no principled way to distinguish this case from Pritchett” (State’s brief, p. 7.) Based on the Supreme Court’s decision in Pritchett, the judgment of the circuit court is reversed and Humphrey’s case is remanded to the circuit court to conduct a hearing on Humphrey’s motion to withdraw his guilty pleas in which Humphrey is represented by counsel or to determine that Humphrey has knowingly, intelligently and voluntarily waived his right to counsel.

REVERSED AND REMANDED.

WINDOM, P.J., and WELCH, BURKE, and JOINER, JJ., concur.


author: LABARGA, J. PARIENTE, J., POLSTON, C.J., CANADY, J.,

text:
    TIARA CONDOMINIUM ASSOCIATION, INC., etc., Appellant, v. MARSH & MCLENNAN COMPANIES, INC., etc., et al., Appellees.
    No. SC10-1022.
    Supreme Court of Florida.
    March 7, 2013.
    Mark L. McAlpine of McAlpine & Associates, P.C., Auburn Hills, MI, for Appellant.
    Mitchell J. Auslander and Christopher J. St. Jeanos of Willkie, Farr & Gallagher, LLP, New York, NY, for Appellees.
   LABARGA, J.

This case is before the Court for review of a question of Florida law certified by the United States Court of Appeals for the Eleventh Circuit that is determinative of a cause pending in that court and for which there appears to be no controlling precedent. We have jurisdiction. See art. V, § 3(b)(6), Fla. Const. In Tiara Condominium Ass’n, Inc. v. Marsh & McLennan Co., Inc., 607 F.3d 742, 749 (11th Cir.2010), the Eleventh Circuit certified the following question to this Court:

DOES AN INSURANCE BROKER PROVIDE A “PROFESSIONAL SERVICE” SUCH THAT THE INSURANCE BROKER IS UNABLE TO SUCCESSFULLY ASSERT THE ECONOMIC LOSS RULE AS A BAR TO TORT CLAIMS SEEKING ECONOMIC DAMAGES THAT ARISE FROM THE CONTRACTUAL RELATIONSHIP BETWEEN THE INSURANCE BROKER AND THE INSURED?

Because the question as certified by the Eleventh Circuit is premised on the continued applicability of the economic loss rule in cases involving contractual privity, we restate the certified question as follows:

DOES THE ECONOMIC LOSS RULE BAR AN INSURED’S SUIT AGAINST AN INSURANCE BROKER WHERE THE PARTIES ARE IN CONTRACTUAL PRIVITY WITH ONE ANOTHER AND THE DAMAGES SOUGHT ARE SOLELY FOR ECONOMIC LOSSES?

We answer this question in the negative and hold that the application of the economic loss rule is limited to products liability cases. Therefore, we recede from prior case law to the extent that it is inconsistent with this holding. We begin by discussing the facts and procedural background of this case. We then turn to our analysis.

FACTS AND PROCEDURAL BACKGROUND

The facts of this case are set forth in the Eleventh Circuit Court of Appeals’ opinion in Tiara Condominium Ass’n, Inc. v. Marsh & McLennan Co., Inc., 607 F.3d 742 (11th Cir.2010). We summarize the facts here. Tiara Condominium Association (Tiara) retained Marsh & McLen-nan (Marsh) as its insurance broker. One of Marsh’s responsibilities was to secure condominium insurance coverage. Marsh secured windstorm coverage through Citizens Property Insurance Corporation (Citizens), which issued a policy that contained a loss limit in an amount close to $50 million. In September 2004, Tiara’s condominium sustained significant damage caused by hurricanes Frances and Jeanne. Tiara began the process of loss remediation. After being assured by Marsh that the loss limits coverage was per occurrence (meaning that Tiara would be entitled to almost $100 million rather than coverage in the aggregate, which would be half of that amount), Tiara proceeded with more expensive remediation efforts. However, when Tiara sought payment from Citizens, Citizens claimed that the loss limit was $50 million in the aggregate, not per occurrence. Eventually, Tiara and Citizens settled for approximately $89 million, but that amount was less than the more than $100 million spent by Tiara.

In October 2007, Tiara filed suit against Marsh, alleging (1) breach of contract, (2) negligent misrepresentation, (3) breach of the implied covenant of good faith and fair dealing, (4) negligence, and (5) breach of fiduciary duty. The trial court granted summary judgment in favor of Marsh on all claims and Tiara appealed to the Eleventh Circuit. The appeals court concluded that summary judgment was proper as to the breach of contract, negligent misrepresentation, and breach of implied covenant of good faith and fair dealing claims. However, the appeals court did not affirm the summary judgment granted by the trial court on the negligence and breach of fiduciary duty claims, which were based on Tiara’s allegations that Marsh was either negligent or breached its fiduciary duty by failing to advise Tiara of its complete insurance needs and by failing to advise Tiara of its belief that Tiara was underin-sured. As to these two claims, the appeals court certified a question to this Court to determine whether the economic loss rule prohibits recovery, or whether an insurance broker falls within the professional services exception that would allow Tiara to proceed with the claims. We turn now to a discussion of the economic loss rule.

ANALYSIS

Origin and Development of the Economic Loss Rule

“The exact origin of the economic loss rule is subject to some debate and its application and parameters are somewhat ill-defined.” Moransais v. Heathman, 744 So.2d 973, 979 (Fla.1999). In its simplest form, we noted, the rule appeared initially in both state and federal courts in products liability type cases. Id. at 979. A historical review of the doctrine reveals that it was introduced to address attempts to apply tort remedies to traditional contract law damages. In Casa Clara Condominium Ass’n, Inc. v. Charley Toppino and Sons, Inc., 620 So.2d 1244 (Fla.1993), we recognized the economic loss rule as “the fundamental boundary between contract law, which is designed to enforce the expectancy interests of the parties, and tort law, which imposes a duty of reasonable care and thereby encourages citizens to avoid causing physical harm to others.” Id. at 1246 (quoting Sidney R. Barrett, Jr., Recovery of Economic Loss in Tort for Construction Defects: A Critical Analysis, 40 S.C.L.Rev. 891, 894 (1989)). We have defined economic loss as “damages for inadequate value, costs of repair and replacement of the defective product, or consequent loss of profits — without any claim of personal injury or damage to other property.” Casa Clara, 620 So.2d at 1246 (quoting Note, Economic Loss in Products Liability Jurisprudence, 66 Colum.L.Rev. 917, 918 (1966)). We further explained that economic loss

includes “the diminution in the value of the product because it is inferior in quality and does not work for the general purposes for which it was manufactured and sold.” Comment, Manufacturers’ Liability to Remote Purchasers for “Economic Loss” Damages-Tort or Contract?, 114 U. Pa. L.Rev. 539, 541 (1966). In other words, economic losses are “disappointed economic expectations,” which are protected by contract law, rather than tort law. Sensenbrenner v. Rust, Orling & Neale Architects, Inc., 236 Va. 419, 374 S.E.2d 55, 58 (1988); Stuart v. Coldwell Banker Commercial Group, Inc., 109 Wash.2d 406, 745 P.2d 1284 (1987).

Casa Clara, 620 So.2d at 1246.

Simply put, the economic loss rule is a judicially created doctrine that sets forth the circumstances under which a tort action is prohibited if the only damages suffered are economic losses. Indem. Ins. Co. of N. Am. v. Am. Aviation, Inc., 891 So.2d 532, 536 (Fla.2004). The rule has its roots in the products liability arena, and was primarily intended to limit actions in the products liability context.

Despite its underpinnings in the products liability context, the economic loss rule has also been applied to circumstances when the parties are in contractual privity and one party seeks to recover damages in tort for matters arising from the contract.

Contractual Privity Economic Loss Rule

“The prohibition against tort actions to recover solely economic damages for those in contractual privity is designed to prevent parties to a contract from circumventing the allocation of losses set forth in the contract by bringing an action for economic loss in tort.” Am. Aviation, 891 So.2d at 536 (citing Ginsberg v. Lennar Fla. Holdings, Inc., 645 So.2d 490, 494 (Fla. 3d DCA 1994) (“Where damages sought in tort are the same as those for breach of contract a plaintiff may not circumvent the contractual relationship by bringing an action in tort.”). When the parties are in privity, contract principles are generally more appropriate for determining remedies for consequential damages that the parties have, or could have, addressed through their contractual agreement. Accordingly, courts have held that a tort action is barred where a defendant has not committed a breach of duty apart from a breach of contract. Am. Aviation, 891 So.2d at 536-37); Weimar v. Yacht Club Point Estates, Inc., 223 So.2d 100, 103 (Fla. 4th DCA 1969) (“[N]o cause of action in tort can arise from a breach of a duty existing by virtue of contract.”).

The contractual privity application of the economic loss rule is best exemplified by our decision in AFM Corp. v. Southern Bell Telephone & Telegraph Co., 515 So.2d 180 (Fla.1987). There, AFM entered into an agreement with Southern Bell that included placing AFM’s advertising in the yellow pages. See id. at 180. However, Southern Bell listed an incorrect phone number for AFM, causing AFM economic damages. See id. In asserting a claim for economic losses, AFM chose to proceed solely on a negligence theory in the trial court below rather than base its theory of recovery on any agreement between the parties. See id. at 181. In determining that AFM could not recover economic losses based on a tort theory, this Court noted that AFM’s contract with Southern Bell “defined the limitation of liability through bargaining, risk acceptance, and compensation.” Id. Because AFM had not proved that Southern Bell committed a tort independent of the breach of contract, this Court concluded that AFM had no basis for recovery in negligence. See id.

Subsequently, in American Aviation, we recognized that despite the general prohibition against a recovery in tort for economic damages for parties in privity of contract, we have allowed it in torts committed independently of the contract breach, such as fraud in the inducement. See 891 So.2d at 537. For example, in HTP, Ltd. v. Lineas Aereas Costarricenses, S.A., 685 So.2d 1238 (Fla.1996), we stated:

The economic loss rule has not eliminated causes of action based upon torts independent of the contractual breach even though there exists a breach of contract action. Where a contract exists, a tort action will lie for either intentional or negligent acts considered to be independent from the acts that breached the contract. Fraudulent inducement is an independent tort in that it requires proof of facts separate and distinct from the breach of contract.

Am. Aviation, 891 So.2d at 587 (quoting HTP, Ltd., 685 So.2d at 1239 (citations omitted)). See also PK Ventures, Inc. v. Raymond James & Assocs., 690 So.2d 1296 (Fla.1997) (economic loss rule did not preclude a cause of action by the buyer of commercial property against the seller’s broker for negligent misrepresentation).

Another situation in which this Court has determined that public policy dictates that liability not be limited to the terms of the contract involves cases such as those alleging neglect in providing professional services. See, e.g., Moransais, 744 So.2d at 983 (“While provisions of a contract may impact a legal dispute, including an action for professional services, the mere existence of such a contract should not serve per se to bar an action for professional malpractice.”).

Products Liability Economic Loss Rule

Although the economic loss rule has, over time, been extended to the contractual privity context, the roots of the rule may be found in the products liability context. The products liability economic loss rule developed to protect manufacturers from liability for economic damages caused by a defective product beyond those damages provided by warranty law. Am. Aviation, 891 So.2d at 537-38. As the theory of strict liability replaced the theory of implied warranties with regard to actions based on defective products that resulted in personal injury, the issue arose as to whether the courts should permit a cause of action in tort by one who suffered purely economic loss due to a defective product. Id. at 539. For those who were in contractual privity, actions based on breach of warranty continued as the viable method if the only damages were economic in nature. Id. But for those who were not in contractual privity and who sustained economic losses as a result of defective products, the question became what theory of recovery would be proper. Id.

The development of Florida’s products liability economic loss rule can be traced to two cases: Seely v. White Motor Co., 63 Cal.2d 9, 45 Cal.Rptr. 17, 403 P.2d 145, 149 (1965), and East River Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 871, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986). In Seely, the California Supreme Court held that the doctrine of strict liability in tort had not supplanted causes of action for breach of express warranty. The court was confronted with a situation in which a plaintiff sought recovery for economic loss resulting from his purchase of a truck that failed to perform according to expectations. See id., 45 Cal.Rptr. 17, 403 P.2d at 149. The California Supreme Court agreed with the trial court that the defendant could recover the money he paid on the purchase price of the truck and for his lost profits on the basis of breach of express warranty, see id., 45 Cal.Rptr. 17, 403 P.2d at 148, but rejected the argument that warranty law had been superseded by the doctrine of strict liability. See id., 45 Cal.Rptr. 17, 403 P.2d at 149. The court concluded that the strict liability doctrine was not intended to undermine the warranty provisions of sales or contract law, but was designed to govern the wholly separate and distinct problem of physical injuries caused by defective products. See id., 45 Cal.Rptr. 17, 403 P.2d at 149-50.

The California Supreme Court recognized that the rules of warranty continued to function well in a commercial setting, allowing the manufacturer to determine the quality of the product and the scope of its liability if the product failed to perform. The court reasoned that a manufacturer’s liability under that theory would extend to all subsequent purchasers regardless of whether the manufacturer’s promise regarding the fitness of the product was ever communicated to those purchasers. If the manufacturer were strictly liable for economic losses resulting from the failure of its product to perform as promised by the warranty, it would be liable not only to the initial purchaser, but to every consumer who subsequently obtained possession of the product. See id., 45 Cal.Rptr. 17, 403 P.2d at 150.

In East River, the United States Supreme Court adopted the reasoning in Seely when it considered the issue of economic loss resulting from defective products in the context of admiralty. According to the Supreme Court, when the damage is to the product itself, “the injury suffered — the failure of the product to function properly — is the essence of a warranty action, through which a contracting party can seek to recoup the benefit of its bargain.” Id. East River, 476 U.S. at 868, 106 S.Ct. 2295 (emphasis supplied). The Court stated:

Contract law, and the law of warranty in particular, is well suited to commercial controversies of the sort involved in this case because the parties may set the terms of their own agreements. The manufacturer can restrict its liability, within limits, by disclaiming warranties or limiting remedies. In exchange, the purchaser pays less for the product.

Id. at 872-73, 106 S.Ct. 2295 (emphasis supplied) (footnote and citation omitted). Recognizing that extending strict products liability to cover economic damage would result in “contract law ... drown[ing] in a sea of tort,” id. at 866, 106 S.Ct. 2295, the Supreme Court held that “a manufacturer in a commercial relationship has no duty under either a negligence or strict products-liability theory to prevent a product from injuring itself.” Id. at 871, 106 S.Ct. 2295. Thus, from the outset, the focus of the economic loss rule was directed to damages resulting from defects in the product itself.

Relying on the reasoning in Seely and East River, this Court adopted the products liability economic loss rule, precluding recovery of economic damages in tort where there is no property damage or personal injury, in Florida Power & Light Co. v. Westinghouse Elec. Corp., 510 So.2d 899 (Fla.1987), our seminal case on the applicability of the economic loss rule. Florida Power & Light (FPL) entered into contracts with Westinghouse in which Westinghouse agreed to design, manufacture, and furnish two nuclear steam supply systems, including six steam generators. FPL discovered leaks in all six generators. FPL brought suit, alleging that Westinghouse was liable for breach of express warranties in the contracts and for negligence, and sought damages for the cost of repair, revision, and inspection of the steam generators. Id. at 900.

In determining whether Florida law permitted FPL to recover the economic losses in tort without a claim for personal injury or separate property damage, this Court considered the policy issues supporting the application of a rule that limits tort recovery for economic losses when a product damages itself. Id. Concluding that warranty law was more appropriate than tort law for resolving economic losses in this context, the Court adopted the holding in East River that “a manufacturer in a commercial relationship has no duty under either a negligence or strict products liability theory to prevent a product from injuring itself.” Florida Power, 510 So.2d at 901 (quoting East River, 476 U.S. at 871, 106 S.Ct. 2295). Thus, as we reaffirmed in American Aviation:

The economic loss rule adopted in Florida Power represents this Court’s pronouncement that, notwithstanding the theory of strict liability adopted in West, [] strict liability has not replaced warranty law as the remedy for frustrated economic expectations in the sale of goods. In exchange for eliminating the privity requirements of warranty law and expanding the tort liability for manufacturers of defective products which cause personal injury, we expressly limited tort liability with respect to defective products to injury caused to persons or damage caused to property other than the defective product itself.

Am. Aviation, 891 So.2d at 541. We also noted that “the products liability economic loss rule articulated in Seely and East River, and adopted by this Court in Florida Power, applies even in the absence of privity of contract.” Id. (citing Airport Rent-A-Car, Inc. v. Prevost Car, Inc., 660 So.2d 628, 631 (Fla.1995) (holding cause of action for negligence against manufacturer of defective buses was barred by the economic loss rule notwithstanding absence of privity)); see also Casa Clara, 620 So.2d at 1248 (holding cause of action against manufacturer of defective concrete was barred by the economic loss rule notwithstanding absence of privity).

Simply stated, “[t]he essence of the early holdings discussing the rule is to prohibit a party from suing in tort for purely economic losses to a product or object provided to another for consideration, the rationale being that in those cases ‘contract principles [are] more appropriate than tort principles for resolving economic loss without an accompanying physical injury or property damage.’” Moransais, 744 So.2d at 980 (citing Florida Power, 510 So.2d at 902). Such was the reasoning in East River, Seely, and ultimately, Florida Power.

An examination of the application of the economic loss rule in Florida from its inception to our ruling in Florida Poiver, reveals that this Court adhered strictly to the reasoning of East River and Seely. Subsequent to our ruling in Florida Power, however, we issued a number of rulings which, as aptly stated in Moransais, “appeared to expand the application of the rule beyond its principled origins and have contributed to applications of the rule by trial and appellate courts to situations well beyond our original intent.” Moransais, 744 So.2d at 980. For example, in AFM, as previously discussed, we extended the economic loss rule to preclude a negligence claim arising from breach of a service contract in a nonprofessional service context. See AFM, 515 So.2d at 181. We also noted in Moransais, that “[w]hile we continue to believe the outcome of [AFM ] is sound, we may have been unnecessarily over-expansive in our reliance on the economic loss rule as opposed to fundamental contractual principles.” Moransais, 744 So.2d at 981.

In Casa Clara, we held that the economic loss rule barred a cause of action in tort for providing defective concrete where there was no personal injury or damage to property other than to the product itself. Casa Clara, 620 So.2d at 1248. In Airport Rent-A-Car, we followed the reasoning in Casa Clara in holding the economic loss rule barred a cause of action for negligence against the manufacturer of defective buses where the only damage alleged was to the buses themselves. Airport Rent-A-Car, 660 So.2d at 630-31.

In American Aviation, in recognizing our history of unprincipled extension of the rule, we concluded that the economic loss rule should be expressly limited to the original rationale and intent of Seely, East River, and Florida Power, and held that a manufacturer or distributor in a commercial relationship has no duty beyond that arising from its contract to prevent a product from malfunctioning or damaging itself. Am. Aviation, 891 So.2d at 542. “In other words, we reaffirm our recognition of the products liability economic loss rule.” Id. at 543. Despite this recognition, we expressly noted that the “other property” exception to the products liability economic loss rule remained viable. Id. In addition to the “other property” exception, we also reaffirmed that in cases involving either privity of contract or products liability, the other exceptions to the economic loss rule that we have developed, such as for professional malpractice, fraudulent inducement, and negligent misrepresentation, or free-standing statutory causes of action still apply. Am. Aviation, 891 So.2d at 543. We expressly emphasized, “[t]hese exceptions remain untouched by our ruling today.” See id.

Thus, despite our effort to roll back the economic loss rule to its products liability roots, we left untouched a number of exceptions which continue to extend the application of the rule beyond our original limited intent.

A Legacy of Unprincipled Expansion

For some time, as reflected by the foregoing discussion, this Court has been concerned with what it perceived as an over-expansion of the economic loss rule. We began expressing this concern in Moran-sais, where we noted our refusal to extend its application to actions based on fraudulent inducement and negligent representation cases. Id. at 981 (citing PK Ventures (negligent misrepresentation); HTP (fraudulent inducement)). We observed,

the [economic loss] rule was primarily intended to limit actions in the product liability context, and its application should generally be limited to those contexts or situations where the policy considerations are substantially identical to those underlying the product liability-type analysis. We hesitate to speculate further on situations not actually before us. The rule, in any case, should not be invoked to bar well-established causes of actions in tort, such as professional malpractice.

Moransais, 744 So.2d at 983 (footnote omitted). Five years later, in American Aviation, we reaffirmed our concern with the over-expansion of the rule and again noted that the economic loss rule should be expressly limited. We emphasized this concern with the following statement:

Several justices on this Court have supported expressly limiting the economic loss rule to its principled origins. In Moransais, Justice Wells stated “directly that it is [his] view that the economic loss rule should' be limited to cases involving a product which damages itself by reason of a defect in the product.” Moransais, 744 So.2d at 984 (Wells, J., concurring). Two justices subsequently joined Justice Wells when he reiterated this position in Comptech International, Inc. v. Milam Commerce Park, Ltd., 753 So.2d 1219 (Fla.1999). See id. at 1227 (Wells, J., concurring with an opinion in which Justices Lewis and Pariente joined).

Am. Aviation, 891 So.2d at 542. Thus, in Moransais, Comptech, and American Aviation, this Court clearly expressed its desire to return the economic loss rule to its intended purpose — to limit actions in the products liability context. In each instance, however, we left intact a number of exceptions that continue the rule’s unprincipled expansion. We simply did not go far enough.

Having reviewed the origin and original purpose of the economic loss rule, and what has been described as the unprincipled extension of the rule, we now take this final step and hold that the economic loss rule applies only in the products liability context. We thus recede from our prior rulings to the extent that they have applied the economic loss rule to cases other than products liability. The Court will depart from precedent as it does here “when such departure is ‘necessary to vindicate other principles of law or to remedy continued injustice.’ ” Allstate Indem. Co. v. Ruiz, 899 So.2d 1121, 1131 (Fla.2005) (quoting Haag v. State, 591 So.2d 614, 618 (Fla.1992)). Stare decisis will also yield when an established rule has proven unacceptable or unworkable in practice. See Westgate Miami Beach, Ltd. v. Newport Operating Corp., 55 So.3d 567, 574 (Fla.2010). Our experience with the economic loss rule over time, which led to the creation of the exceptions to the rule, now demonstrates that expansion of the rule beyond its origins was unwise and unworkable in practice. Thus, today we return the economic loss rule to its origin in products liability.

CONCLUSION

Because we now limit the application of the economic loss rule to cases involving products liability, it is not necessary for us to decide whether the economic loss rule exception for professionals applies to insurance brokers. Based on the foregoing, we answer the rephrased certified question in the negative and hold that the application of the economic loss rule is limited to products liability cases. Having answered the rephrased certified question, we return this case to the Eleventh Circuit Court of Appeals.

It is so ordered.

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

PARIENTE, J., concurs with an opinion, in which LEWIS and LABARGA, JJ., concur.

POLSTON, C.J., dissents with an opinion, in which CANADY, J., concurs.

CANADY, J., dissents with an opinion, in which POLSTON, C.J., concurs.

PARIENTE, J.,

concurring.

I concur with the majority’s principled conclusion that the economic loss rule is limited to the products liability context. I write to address Justice Canady’s assertion in dissent that the Court’s decision represents a “dramatic unsettling of Florida law,” dissenting op. at 413 (Canady, J.), and to explain that the majority’s conclusion is fully consistent with the development of this Court’s jurisprudence on the applicability of the economic loss rule in Florida.

The majority’s conclusion that the economic loss rule is limited to the products liability context is not a departure from precedent, but instead simply represents the culmination of the Court’s measured articulation of the economic loss rule’s original intent. This view has been expressed various times, starting in Moransais v. Heathman, 744 So.2d 973 (Fla.1999), where Justice Wells stated his belief that “the economic loss rule should be limited to cases involving a product which damages itself by reason of a defect in the product” and that some of the Court’s prior decisions had produced “confusion as to the rule’s applicability.” Id. at 984 (Wells, J., concurring). Justice Wells, joined by Justice Lewis and myself, similarly explained in Comptech International, Inc. v. Milam Commerce Park, Ltd., 753 So.2d 1219, 1227 (Fla.1999) (Wells, J., concurring), that “in order to clarify the application of the economic loss rule,” the Court should “expressly state that its application is limited to product claims.” Today, the Court has done so. This decision provides clear guidance to the lower courts as to the meaning of the economic loss rule in Florida and is both doctrinally principled and consistent with the trajectory of our prior precedent.

Our decision is neither a monumental upsetting of Florida law nor an expansion of tort law at the expense of contract principles. To the contrary, the majority merely clarifies that the economic loss rule was always intended to apply only to products liability cases. See Indem. Ins. Co. of N. Am. v. Am. Aviation, Inc., 891 So.2d 532, 541 (Fla.2004) (“In exchange for eliminating the privity requirements of warranty law and expanding the tort liability for manufacturers of defective products which cause personal injury [by adopting strict products liability], we expressly limited tort liability with respect to defective products to injury caused to persons or damage caused to property other than the defective product itself.”). This is because the rule itself acts merely as a specific articulation of the proper approach for those products liability cases in which contract principles, rather than tort principles, are best suited for resolving the claim. See Fla. Power & Light Co. v. Westinghouse Elec. Corp., 510 So.2d 899, 901-02 (Fla.1987) (citing with approval several district courts of appeal cases holding that strict liability applies only where the plaintiff has suffered personal injury or damage to other property and explaining that “contract principles [are] more appropriate than tort principles for resolving economic loss without an accompanying physical injury or property damage”).

The majority’s conclusion that the economic loss rule is limited to the products liability context does not undermine Florida’s contract law or provide for an expansion in viable tort claims. Basic common law principles already restrict the remedies available to parties who have specifically negotiated for those remedies, and, contrary to the assertions raised in dissent, our clarification of the economic loss rule’s applicability does nothing to alter these common law concepts. For example, in order to bring a valid tort claim, a party still must demonstrate that all of the required elements for the cause of action are satisfied, including that the tort is independent of any breach of contract claim. See Lewis v. Guthartz, 428 So.2d 222, 224 (Fla.1982) (holding that there must be a tort “distinguishable from or independent of [the] breach of contract” in order for a party to bring a valid claim in tort based on a breach in a contractual relationship); Elec. Sec. Sys. Corp. v. S. Bell Tel. & Tel. Co., 482 So.2d 518, 519 (Fla. 3d DCA 1986) (“[A] breach of contract, alone, cannot constitute a cause of action in tort.... It is only when the breach of contract is attended by some additional conduct which amounts to an independent tort that such breach can constitute negligence.” (citations omitted)).

While the contractual privity form of the economic loss rule has provided a simple way to dismiss tort claims interconnected with breach of contract claims, it is neither a necessary nor a principled mechanism for doing so. Rather, these claims should be considered and dismissed as appropriate based on basic contractual principles— a proposition we reaffirmed in American Aviation, where we stated that “when the parties have negotiated remedies for nonperformance pursuant to a contract, one party may not seek to obtain a better bargain than it made by turning a breach of contract into a tort for economic loss.” Am. Aviation, 891 So.2d at 542. The majority’s decision does not change this statement of law, but merely explains that it is common law principles of contract, rather than the economic loss rule, that produce this result.

The economic loss rule is not a longstanding common law rule that has always existed in our jurisprudence to define the parameters of cognizable contract and tort causes of action, but is instead a doctrine that arose in the torts context to serve a specific purpose — to curb potentially unbounded liability following the adoption of strict products liability. Indeed, we explicitly noted in American Aviation that “[t]he economic loss rule adopted in Florida Power represents this Court’s pronouncement that, notwithstanding the theory of strict liability adopted in West [v. Caterpillar Tractor Co., 336 So.2d 80, 92 (Fla.1976) ], strict liability has not replaced warranty law as the remedy for frustrated economic expectations in the sale of goods.” Am. Aviation, 891 So.2d at 541. Accordingly, I believe that limiting the rule to the specific context from which it developed is principled because it prevents unnecessary complexity in the law and restricts the rule’s application to its “genuine, but limited, value in our damages law.” Id. at 542 (quoting Moransais, 744 So.2d at 983). In other words, as we first recognized in Moransais, “fundamental contractual principles” already properly delineate the general boundary between contract law and tort law. Moransais, 744 So.2d at 981. Application of the economic loss rule to serve this function outside the products liability context simply allows for the possibility of confusion, overuse, and the restriction of well-established common law remedies.

Indeed, this is exactly what has happened since we first adopted the economic loss rule in Florida. Over time, the rule has been inadvertently extended to cover situations outside the context of products liability. See id. at 980 (“Unfortunately, however, our subsequent holdings have appeared to expand the application of the rule beyond its principled origins and have contributed to applications of the rule by trial and appellate courts to situations well beyond our original intent.”). Not only has this proved unworkable, as the majority aptly notes, but it is outside the original intent of the rule and, indeed, of our prior decisions. In my view, Justice Canady’s assertion in dissent that the majority’s conclusion “repudiates our case law,” dissenting op. at 411 (Canady, J.), is not borne out by a close examination of the history of our economic loss rule cases.

We have repeatedly explained that the expansion of the economic loss rule beyond products liability to cover situations in which the parties are in privity of contract is best illustrated by AFM Corp. v. Southern Bell Telephone & Telegraph Co., 515 So.2d 180, 181 (Fla.1987), where the Court held that there was “no basis for recovery in negligence” since the plaintiff could not prove that “a tort independent of the breach [of contract] itself was committed.” The Court subsequently indicated, however, that its decision in AFM “may have been unnecessarily over-expansive” in its “reliance on the economic loss rule as opposed to fundamental contractual principles.” Moransais, 744 So.2d at 981. In 2004, we receded from AFM “to the extent that it relied on the principles adopted by this Court in Florida Power.” Am. Aviation, 891 So.2d at 542. Therefore, since we essentially receded in American Aviation from this overexpansion of the rule, we need not specifically overrule any case today in order to explicitly clarify that the economic loss rule applies only to products liability cases.

Justice Canady points most recently to Curd v. Mosaic Fertilizer, LLC, 39 So.3d 1216 (Fla.2010), and American Aviation, as indicating that the contractual privity application of the economic loss rule is settled Florida law. While those two cases did list this application of the rule in reviewing its history, the contractual privity use of the economic loss rule was not at issue in either of those cases. See Curd, 39 So.3d at 1223; Am. Aviation, 891 So.2d at 541. Curd simply restated general language from American Aviation, and American Aviation used AFM, from which it later partially receded, to illustrate how the contractual privity form of the rule has been applied.

In the aftermath of American Aviation, which clearly stated an intent to “expressly limit[ ]” the economic loss rule, American Aviation, 891 So.2d at 542, it was no longer clear whether our decisions permitted application of the rule to situations involving contractual privity. We now eliminate once and for all any confusion in the application of the economic loss rule remaining since Moransais and clearly espouse Justice Wells’ view that “the economic loss rule should be limited to cases involving a product which damages itself by reason of a defect in the product.” Moransais, 744 So.2d at 984 (Wells, J., concurring). Far from upsetting firmly established principles, therefore, our decision resolves any ambiguity remaining from this line of cases and restores the economic loss rule to its principled roots. I concur fully in the majority’s well-reasoned decision.

LEWIS and LABARGA, JJ., concur.

POLSTON, C.J.,

dissenting.

The Eleventh Circuit certified the following question:

Does an insurance broker provide a “professional service” such that the insurance broker is unable to successfully assert the economic loss rule as a bar to tort claims seeking economic damages that arise from the contractual relationship between the insurance broker and the insured?

No. This Court’s controlling precedent clearly answers the certified question in the negative. But without justification, the majority greatly expands the use of tort law at a cost to Florida’s contract law. Now, there are tort claims and remedies available to contracting parties in addition to the contractual remedies which, because of the economic loss rule, were previously the only remedies available.

As noted in Indemnity Insurance Co. of North America v. American Aviation, Inc., 891 So.2d 532, 537 (Fla.2004), tort claims involving professional services are not barred by the economic loss rule. But this Court in Pierce v. AALL Insurance Inc., 531 So.2d 84 (Fla.1988), held that insurance agents are not considered “professional” for purposes of the professional malpractice statute of limitations. Pierce’s rationale concerning insurance agents applies with equal force to insurance brokers and requires the response to the Eleventh Circuit that insurance brokers do not provide professional services that would bar a defense under the economic loss rule. That response is equally dictated by this Court’s decision in Garden v. Frier, 602 So.2d 1273, 1275 (Fla.1992), when we further reduced the definition of a “professional” under the professional malpractice statute to those “voeation[s] requiring at a minimum a four-year college degree before licensing is possible in Florida.” It is undisputed by the parties that a four-year college degree is not necessary to become licensed as an insurance broker.

Instead of simply answering the certified question that our cases clearly control, the majority obliterates the use of the doctrine when the parties are in contractual privity, greatly expanding tort claims and remedies available without deference to contract claims. Florida’s contract law is seriously undermined by this decision.

Accordingly, I respectfully dissent.

CANADY, J., concurs.

CANADY, J.,

dissenting.

For many years, this Court has recognized the vital role of the economic loss rule in maintaining the boundary between tort law and contract law. With today’s decision, the majority repudiates our case law and sets a new course for the expansion of tort law at the expense of contract law. I agree with Chief Justice Polston’s view that “Florida’s contract law is seriously undermined by this decision,” dissenting op. at 411 (Polston, C.J.), and I accordingly dissent.

Just two years ago, in Curd v. Mosaic Fertilizer, LLC, 39 So.3d 1216, 1223 (Fla.2010), the same majority that decides today’s case joined in an opinion stating the general principle that “the economic loss rule in Florida is applicable” not only in the products liability context but also “where the parties are in contractual privity and one party seeks to recover damages in tort for matters arising out of the contract.” The majority in Curd simply restated Florida law.

In Indemnity Insurance Co. of North America v. American Aviation, Inc., 891 So.2d 532, 536 (Fla.2004), we explained that the general “prohibition against tort actions to recover solely economic damages for those in contractual privity is designed to prevent parties to a contract from circumventing the allocation of losses set forth in the contract by bringing an action for economic loss in tort.” We recognized the rationale for the economic loss rule:

Underlying this rule is the assumption that the parties to a contract have allocated the economic risks of nonperformance through the bargaining process. A party to a contract who attempts to circumvent the contractual agreement by making a claim for economic loss in tort is, in effect, seeking to obtain a better bargain than originally made. Thus, when the parties are in privity, contract principles are generally more appropriate for determining remedies for consequential damages that the parties have, or could have, addressed through their contractual agreement. Accordingly, courts have held that a tort action is barred where a defendant has not committed a breach of duty apart from a breach of contract.

Id. at 536-37.

The holding in American Aviation was based on the negative answer to this Court’s rephrased certified question: “Whether the economic loss doctrine bars a negligence action to recover purely economic loss in a case where the defendant is neither a manufacturer nor distributor of a product and there is no privity of contract.” Id. at 534 (emphasis added). By rephrasing the certified question in this manner, this Court emphasized the significance of the existence of privity of contract in determining whether the economic loss rule should be applied to bar a negligence action. This Court held as follows: “Because the defendant in this case is neither a manufacturer nor distributor of a product, and the parties are not in privity of contract, this negligence action is not barred by the economic loss rule.” Id. (emphasis added).

Both Curd and American Aviation merely rearticulated the point we had made earlier in Casa Clara Condominium Ass’n, Inc. v. Charley Toppino & Sons, Inc., 620 So.2d 1244, 1246 (Fla.1993), concerning the boundary between tort law and contract law:

[E]conomic losses are disappointed economic expectations, which are protected by contract law, rather than tort law. This is the basic difference between contract law, which protects expectations, and tort law, which is determined by the duty owed to an injured party. For recovery in tort there must be a showing of harm above and beyond disappointed expectations. A buyer’s desire to enjoy the benefit of his bargain is not an interest that tort law traditionally protects.

(Citations omitted) (internal quotation marks omitted). And Casa Clara itself echoed the reasoning of Florida Power & Light Co. v. Westinghouse Electric Corp., 510 So.2d 899 (Fla.1987), that “contract principles [are] more appropriate than tort principles for [resolving] economic loss without an accompanying physical injury or property damage.” Casa Clara, 620 So.2d at 1247 (quoting Florida Power, 510 So.2d at 902).

In Florida Power, 510 So.2d at 902, we rejected the invitation — in the products liability context — “to intrude into the parties’ allocation of risk by imposing a tort duty and corresponding cost burden on the public.” In AFM Corp. v. Southern Bell Telephone & Telegraph Co., 515 So.2d 180, 180 (Fla.1987), we then applied the reasoning of Florida Power to bar a claim for economic losses in tort by a purchaser of services where there was no claim for personal injury or property damage.

Our cases thus have repeatedly recognized the economic loss rule as a rule that prevents contract law from “drown[ing] in a sea of tort.” Casa Clara, 620 So.2d at 1247 (quoting East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 866, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986)). The basis for this rationale— which the Court has repeatedly elaborated — is not limited to the products liability context. The application of the economic loss rule in the context of other relationships based on contract is not “unprincipled.” Majority op. at 406-07. The goal of preventing contract law from drowning in a sea of tort is as compelling in the broader context of contract-based relationships as it is in the product liability context. The majority articulates no explanation of why the economic loss rule is appropriately applied in the products liability context but is unworkable or unwise in that broader context.

The best the majority offers is some turgid and obscure dicta from Moransais v. Heathman, 744 So.2d 973 (Fla.1999), and criticism of the exceptions from the economic loss rule recognized in our case law. The fact that the economic loss rule is subject to certain recognized exceptions — exceptions that are based on specific policy considerations — does not undermine the integrity of the general rule or obliterate the purpose on which it is based. On the contrary, the exceptions are predicated on the validity of the general rule. In short, the majority has failed to justify this dramatic unsettling of Florida law.

The concurring opinion likewise fails to provide any reasoning to support the limitation on the scope of the economic loss rule imposed by today’s decision. Totally absent from the concurrence is any discussion of how the rationale we have articulated for the economic loss rule can be reconciled with limiting the operation of the rule to products liability cases. Like the majority opinion, the concurring opinion effectively dismisses the reasoning in this Court’s prior decisions as irrelevant.

The concurrence correctly recognizes that a minority of this Court has previously expressed the view concerning the limited scope of the economic loss rule that is today adopted by the Court. But a minority of the Court does not articulate the law of Florida. Nothing in those prior minority views provides a principled basis for rejecting the general application of the rationale articulated in our prior decisions.

The concurrence also relies on this Court’s statements in American Aviation concerning our holding in AFM. But the concurrence’s reliance on American Aviation to support departing from our precedent in AFM is unwarranted. I readily concede that confusion arose from this Court’s declaration that it was receding from AFM “to the extent that it relied on the principles adopted” in Westinghouse Electric. Am. Aviation, 891 So.2d at 542. This statement is problematic for two salient reasons.

First, and most important, American Aviation itself predicated its holding and its formulation of the rephrased certified question on the significance of the existence of privity of contract. At the outset of the opinion, this Court stated: “We conclude that the ‘economic loss doctrine’ ... bars a negligence action to recover solely economic damages only in circumstances where the parties are either in contractual privity or the defendant is a manufacturer or distributor of a product, and no established exception to the application of the rule applies.” 891 So.2d at 534 (emphasis added). To the extent that the subsequent statement concerning AFM is understood to suggest a repudiation of the “contractual privity economic loss rule,” 891 So.2d at 537, the majority’s opinion in American Aviation is self-repudiating and irredeemably incoherent.

Second, as the concurrence correctly observes, the facts in American Aviation did not involve a contractual relationship between the parties. Accordingly, American Aviation did not present a proper occasion for the Court to repudiate a prior holding, such as AFM, that specifically addressed the application of the economic loss rule to facts based on the existence of a contractual relationship. If the statement in American Aviation concerning AFM is anything, it is dicta.

With today’s decision, we face the prospect of every breach of contract claim being accompanied by a tort claim. I strongly dissent from this decision. Based on the precedents explained in Chief Justice Polston’s dissent, I would conclude that an insurance broker does not provide a professional service and thus is not precluded from asserting the economic loss rule as a bar to tort claims. I therefore would answer the certified question in the negative.

POLSTON, C.J., concurs.

      . The Eleventh Circuit concluded that Marsh correctly interpreted the policy as containing a per-occurrence limit of liability. See Tiara, 607 F.3d at 747.

      . We later receded from AFM to the extent that it was unnecessarily expansive in its reliance on the economic loss rule as opposed to fundamental contractual principles. See American Aviation, 891 So.2d at 542.

      . In Moransais, in describing our refusal to apply our past liberal application of the economic loss rule in PK Ventures and HTP, Ltd., we made the following observation: "More recently this Court has recognized the danger in an unprincipled extension of the rule, and we have declined to extend the economic loss rule to actions based on fraudulent inducement and negligent misrepresentation." 744 So.2d at 981.

      . In West v. Caterpillar Tractor Co., 336 So.2d 80, 92 (Fla.1976), we adopted the theory of strict products liability in Florida.

      . Our opinion, however, was not unanimous, especially as to our characterization of "other property.” We stated that tort law was designed to protect the interest of society as a whole by imposing a duty of reasonable care to prevent property damage or physical harm to others, whereas contract law operates to protect the economic expectations of the contracting parties when a "product” is the object of the contract. Casa Clara, 620 So.2d at 1246.

      . See Moransais, 744 So.2d at 983.

      . See HTP, Ltd.., 685 So.2d at 1239.

      . See PK Ventures, 690 So.2d at 1297.

      . See Comptech Int'l, Inc. v. Milam Commerce Park, Ltd., 753 So.2d 1219, 1221 (Fla.1999)

      . The following examples illustrate the type of cases that are now overruled by the majority’s opinion and will make available a wide arsenal of tort claims previously barred by the economic loss rule. See, e.g., Geico Cas. Co. v. Arce, 333 Fed.Appx. 396, 398 (11th Cir.2009) (applying Florida law and barring civil conspiracy claim alleging failure to abide by contractual duty to defend); Mount Sinai Med. Ctr. of Greater Miami, Inc. v. Heidrick & Struggles, Inc., 188 Fed.Appx. 966, 969 (11th Cir.2006) (applying Florida law and barring fraudulent misrepresentation claims alleging failure to provide correct information under the terms of a CEO search contract); Royal Surplus Lines Ins. Co. v. Coachman Indus., 184 Fed.Appx. 894, 902 (11th Cir.2006) (applying Florida law and barring insurer’s tort actions alleging insured's failure to provide information under the terms of a cooperation clause); Cessna Aircraft Co. v. Avior Techs., Inc., 990 So.2d 532, 538 (Fla. 3d DCA 2008) (barring negligence claim against aircraft repair company for failed contracted-for repairs to aircraft); Taylor v. Maness, 941 So.2d 559, 564 (Fla. 3d DCA 2006) (barring cause of action alleging fraudulent failure to perform under the contract and sell real property to plaintiffs); Straub Capital Corp. v. L. Frank Chopin, P.A., 724 So.2d 577, 579 (Fla. 4th DCA 1998) (barring action alleging negligent misrepresentation by a landlord after he failed to timely build and provide space to tenants under the terms of their contract); Smith v. Bd. of Regents ex rel. Florida A & M Univ., 701 So.2d 348, 349 (Fla. 1st DCA 1997) (barring cause of action brought by university professor alleging negligence by the Board of Regents and his bank in potentially breaching their duties under employment and deposit contracts); Hotels of Key Largo v. RHI Hotels, 694 So.2d 74, 77 (Fla. 3d DCA 1997) (barring action alleging fraudulent failure to adequately provide increased reservations and hotel management services under the contract).

      . The services of Marsh & McLennan Companies certainly appear professional to me under the rationale given by Justice McDonald in his dissenting opinion in Pierce: "If the act is one which involves giving advice, using superior knowledge and training of a technical nature, or imparting instruction and recommendations in the learned arts then the act is one of a professional.” 531 So.2d at 88 (McDonald, J., dissenting) (quoting Pierce, 513 So.2d at 161). But this definition was expressly rejected by the Court in Pierce.

      . The Restatement (Third) of Torts: Liability for Economic Harm (Tentative Draft No. 1) § 3 (April 4, 2012) states the general rule that "there is no liability in tort for economic loss caused by negligence in the performance or negotiation of a contract between the parties.” The comments explaining this rule observe that "[i]f two parties have a contract, the argument for limiting tort claims between them is most powerful.” Id. at cmt. a. The comments explain the rationale for the rule:
      When a dispute arises, the rule protects the bargain the parties have made against disruption by a tort suit. Seen from an earlier point in the life of a transaction, the rule allows parties to make dependable allocations of financial risk without fear that tort law will be used to undo them later. Viewed in the long run, the rule prevents the erosion of contract doctrines by the use of tort law to work around them. The rule also reduces the confusion that can result when a party brings suit on the same facts under contract and tort theories that are largely redundant in practical effect.

        Id. at cmt. b.


author: PER CURIAM.

text:
    Inquiry Concerning a Judge, No. 10-265 re Timothy R. SHEA.
    No. SC11-1067.
    Supreme Court of Florida.
    March 14, 2013.

      Miles Ambrose McGrane, III, Chair of McGrane Nosich & Ganz, P.A., Coral Gables, FL, Judge Thomas Brent Freeman, Chair, Hearing Panel, Tallahassee, FL, Michael Louis Schneider, General Counsel, Brooke S. Kennerly, Executive Director, Tallahassee, FL, John R. Beranek of Aus-ley & McMullen, Tallahassee, FL and David Bill Rothman of Rothman & Associates, P.A., Miami, FL, for Florida Judicial Qualifications Commission, Petitioner.
    Kirk Nathaniel Kirkeonnell of Snure & Ponall, P.A., Winter Park, FL and Warren W. Lindsey of Law Office of Warren W. Lindsey, P.A., Winter Park, FL, for Judge Shea, Respondent.
   PER CURIAM.

In this case, we review the Second Findings and Recommendation of Discipline of the Florida Judicial Qualifications Commission (JQC) that recommends Judge R. Timothy Shea receive the sanction of a public reprimand with the additional requirement that Judge Shea send letters of apology to those individuals indentified in the notice of amended formal charges and continue to obtain mental health treatment as recommended by his doctor and family therapist. We have jurisdiction. See art. V, § 12, Fla. Const. For the reasons that follow, we approve the JQC’s findings and recommended discipline.

I. BACKGROUND

Judge Shea of the Ninth Judicial Circuit took office in January 2007. In September 2010, the Investigative Panel of the JQC determined that there was probable cause to instigate formal proceedings against Judge Shea. After an investigation, Judge Shea and the JQC entered into a stipulation pursuant to rule 6(j) of the Florida Judicial Qualifications Commission Rules, in which Judge Shea agreed to not contest the factual allegations against him or the JQC’s findings and recommendations. On June 1, 2011, the JQC filed in this Court its original Findings and Recommendation of Discipline and a copy of the original stipulation. The stipulation set forth that in a number of instances between January 2007 and July 2010, Judge Shea exhibited a pattern of rude and intemperate behavior, and in its recommendation, the JQC proposed that Judge Shea be sanctioned by public reprimand.

In October 2011, this Court issued an order rejecting the parties’ stipulation and disapproving the proposed sanction of a public reprimand. This Court explained that it would impose a sixty-day suspension without pay and administer a public reprimand. This Court further directed that it would require Judge Shea to write and mail letters of apology to those individuals identified in the stipulation and to continue mental health counseling for his temper. This Court’s order gave the parties the option to accept the Court’s suggested discipline or to proceed to a hearing before the JQC. Judge Shea and the JQC did not agree to a revised consent judgment consistent with this Court’s enhanced sanctions, and thus, the JQC withdrew its Findings and Recommendation of Discipline and the stipulation.

Thereafter, the JQC hired a special counsel to further investigate the charges against Judge Shea and to submit a report to the JQC. After reviewing the special counsel’s report and additional evidence, the Investigative Panel of the JQC determined that probable cause did not exist to proceed on six of the original eleven allegations in the notice of formal charges. Accordingly, in December 2012, the Investigative Panel served Judge Shea with a notice of amended formal charges.

The Investigative Panel and Judge Shea then entered into a second stipulation, in which Judge Shea admitted to the factual allegations in the notice of amended formal charges. Specifically, Judge Shea does not contest the following allegations as set out in the notice of amended formal charges and the second stipulation:

[1.] In the summer of 2007, Assistant State Attorney Sarah Freeman was sitting in the jury box with two other attorneys making notes on her pretrial docket while [Judge Shea addressed] a matter that was not hers. When [Judge Shea] observed her shake her head, [Judge Shea] got up out of [his] seat, stood behind [his] chair and screamed loudly at her for what [he] perceived as disrespectful conduct.
[2.] In 2007, during an off-the-record sidebar argument by Assistant State Attorney Camelia Coward regarding a plea to the bench, [Judge Shea] remarked to the opposing attorney, “Do you know what I do when my wife and I disagree? I just let her talk.” [Judge Shea] continued, “I find that it is best just to let her talk until she’s finished.” [Judge Shea] then indicated that, once she is finished, you can do what you want anyway.
[3.] On August 18, 2009, in State [v.] Habeych, Case No. 48-2008-CF-12888-0, [Judge Shea] sentenced Mr. Habeych without his attorney present. This was done over his objection. Mr. Habeych was charged with Trafficking in Hydro-morphone, which carries a minimum mandatory sentence. [Judge Shea] imposed the mandatory minimum sentence. [Judge Shea] then told [Mr. Habeych’s] father that if he had any questions that he could go upstairs to the courtroom where the defense lawyer was appearing before another judge.
[4.] In State v. Bullock, Case No. 48-2009-CF-8037-0, [Judge Shea] granted a Judgment of Acquittal on one of the counts of an Information alleging Possession of a Firearm by a Convicted Felon. That count had been severed for a separate trial from another count of the Information charging the defendant with Grand Theft of a Motor Vehicle. At the subsequent trial call, on April 12, 2010, when Assistant State Attorney Stephen Brown announced his intention to proceed on the remaining count, [Judge Shea] mistakenly believed the State did not have a good faith basis to proceed on that charge. [Judge Shea] became visibly angry and reprimanded the attorney in open court by saying his duty was to act in an ethical manner and to follow his oath as an attorney rather than merely follow office policy guidelines of the State Attorney’s Office. [Judge Shea] then ordered him into the jury room where [Judge Shea] continued to berate his ethics. To [Judge Shea’s] credit, when [Judge Shea] realized [his] mistake, [Judge Shea] then apologized.
[5.] These repeated actions constitute conduct unbecoming a judicial officer and lack the dignity appropriate to judicial office, with the effect of bringing the judiciary into disrepute.

[Second] Stipulation at 3-4, Inquiry Concerning a Judge, Timothy R. Shea, No. 10-265, SC11-1067 (Fla. filed Dec. 11, 2012).

As to mitigating factors, the second stipulation explains that while Judge Shea apologizes for his misconduct and realizes that “he is the only one to blame,” the Investigative Panel acknowledged that— based on the trial transcripts — “it was patently obvious Judge Shea’s intemperate conduct frequently followed inappropriate or unprofessional conduct from lawyers, some of whom may have been seeking to aggravate Judge Shea and cause him to lose his temper.” Id. at 4. The second stipulation further notes in mitigation that beginning in early 2007, Judge Shea experienced a particularly stressful time in his personal life stemming from a family member’s mental illness and that, since the time of his misconduct, Judge Shea has sought professional treatment and counseling for his temper, sought the advice and counsel of experienced and respected judges in his circuit, and according to a colleague, improved his courtroom behavior, becoming less emotional and more deliberative on the bench. Id. at 4-5.

Based on the facts set out in the second stipulation, the JQC filed a Second Findings and Recommendation of Discipline. Without identifying which canons of the Code of Judicial Conduct Judge Shea violated, the JQC determined that Judge Shea “engaged in inappropriate behavior in court and that such conduct is unbecoming a member of the judiciary, brings the judiciary into disrepute, and could have the effect of impairing citizens’ confidence in [Judge Shea] as a judge and in the integrity of the judicial system.” Second Findings and Recommendation of Discipline at 1, Inquiry Concerning a Judge, Timothy R. Shea, No. 10-265, No. SC11-1067 (Fla. filed Dec. 11, 2012). The JQC recommended, however, that Judge Shea not be suspended for his misconduct. The JQC reasoned that due to the significant mitigating factors in this case, particularly the “substantial positive efforts voluntarily taken by Judge Shea to remedy his behavior,” id. at 3, a public reprimand accompanied by letters of apology and continuing mental health treatment would be the appropriate sanction.

II. ANALYSIS

Article V, section 12 of the Florida Constitution provides that in the case of judicial misconduct, this Court “may accept, reject, or modify in whole or in part the findings, conclusions, and recommendations of the [JQC] and it may order that the justice or judge be subjected to appropriate discipline.” Art. V, § 12(c)(1), Fla. Const. (2012). “This Court reviews the findings of the JQC to determine whether the alleged violations are supported by clear and convincing evidence, and reviews the recommended discipline to determine whether it should be approved.” In re Woodard, 919 So.2d 389, 390 (Fla.2006). Where a judge stipulates to the JQC’s findings of fact, “no additional proof is necessary to support the JQC’s factual findings.” Id. at 390-91. In all judicial discipline cases, however, “the ultimate power and responsibility in making a determination to discipline a judge rests with this Court.” In re Renke, 933 So.2d 482, 493 (Fla.2006) (citing In re Angel, 867 So.2d 379, 382 (Fla.2004)). In this case, we approve the JQC’s findings and recommended discipline.

We approve the JQC’s determination that Judge Shea engaged in inappropriate behavior that was unbecoming a member of the judiciary. Canon 1 of the Code of Judicial Conduct directs: “A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary may be preserved.” Similarly, Canon 3(B)(4) requires a judge to be at all times “patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity.”

On the occasions detailed in the second stipulation, Judge Shea’s behavior did not meet the high standard of conduct expected of Florida’s judges. Judge Shea’s intemperate courtroom behavior not only damaged public confidence in him as a judicial officer but struck “at the very roots of an effective judiciary, for those who are served by the coui'ts will not have confidence in and respect for the courts’ judgments if judges engage in this egregious conduct.” In re Schapiro, 845 So.2d 170, 174 (Fla.2003). Due to the demands of his or her position of trust and responsibility, a judge may not act in a manner unbecoming a member of the judiciary— even if provoked by the unprofessional behavior of those appearing before the judge. “The disparity in power between a judge and a litigant requires that a judge treat a litigant with courtesy, patience, and understanding.” In re Eastmoore, 504 So.2d 756, 758 (Fla.1987).

Both the severity of Judge Shea’s misconduct and the mitigating factors in his case are comparable to the misconduct and mitigation considered by this Court in Schapiro. Judge Schapiro admitted that that he engaged in a pattern of misconduct in violation of several canons of the Code of Judicial Conduct. Like Judge Shea, Judge Schapiro repeatedly lost his temper and made demeaning comments to counsel in open court before the public. Also, as in the instant case, some of Judge Schapi-ro’s intemperate comments had sexist overtones. In re Schapiro, 845 So.2d at 171-73. This Court refrained from suspending Judge Schapiro — instead administering a public reprimand and requiring letters of apology — due only to the mitigating evidence that Judge Schapiro voluntarily underwent behavioral therapy and committed to continuing treatment. Id. at 174.

Here, too, were it not for the mitigating circumstances surrounding Judge Shea’s misconduct, particularly his self-initiated participation in anger management therapy and his appeals for guidance from more experienced members of the judiciary, this Court would more severely sanction Judge Shea. But in view of the smaller number of infractions as clarified by the second stipulation and Judge Shea’s successful and ongoing efforts to manage his temper and foster professionalism, we approve the recommendation of a public reprimand, to be administered by this Court at a future date. We further direct Judge Shea to— within thirty days of the filing of this opinion — write and mail personal letters of apology to those individuals identified in the second stipulation and to continue mental health treatment as recommended by his doctor and family therapist.

III. CONCLUSION

In summary, we approve the JQC’s findings and recommendation of a public reprimand, letters of apology, and continued mental health treatment. We order that Judge Shea appear before this Court for the administration of a public reprimand at a time to be set by the Clerk of this Court. See In re Frank, 753 So.2d 1228, 1242 (Fla.2000).

It is so ordered.

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