text:
    Jeffrey Michael HOWARD, Appellant, v. Basil PALMER and Groupware International, Inc., Appellees.
    No. 4D10-3258.
    District Court of Appeal of Florida, Fourth District.
    March 13, 2013.

      John Camillo, Esq. of Camillo & Snow-den, P.A., Fort Lauderdale, for appellant.
    William J. McFarlane, III, Esq. of McFarlane, Dolan & Barnett, Coral Springs, for appellees.
   PER CURIAM.

The plaintiff appeals the trial court’s denial of his motion for new trial. He primarily argues that defense counsel’s violation of an order granting a motion in limine, in combination with other improper statements by defense counsel, warrant a new trial. We agree with the plaintiffs argument and reverse for a new trial.

Defendant Palmer, an employee of defendant Groupware International, Inc., ran a stop sign and collided with the plaintiffs car. The plaintiff brought a negligence and vicarious liability action against the defendants to recover damages for his injuries.

Before trial, the plaintiff filed a motion in limine to preclude the defense from introducing evidence that he contacted an attorney on the day of the accident. That attorney referred the plaintiff to a doctor who examined and treated the plaintiff the following day. The plaintiff surmised, based on deposition testimony, that the defense would seek to introduce evidence of when he contacted an attorney by asking all of his treating doctors, including the first treating doctor, if they knew that he had an attorney before he saw the first treating doctor on the day after the accident. In support of his motion in limine, the plaintiff relied upon our decision in Watson v. Builders Square, Inc., 563 So.2d 721 (Fla. 4th DCA 1990). There, we held that a trial court abused its discretion when it admitted evidence that the injured plaintiff had seen an attorney three days after the accident. Id. at 722.

The defense agreed that it sought to introduce evidence that the plaintiff contacted an attorney on the day of the accident. According to the defense, the fact that the plaintiff contacted an attorney on the day of the accident, before he knew whether he suffered a permanent injury, created an issue as to whether he suffered a permanent injury.

After hearing arguments, the trial court granted the motion by stating “[the plaintiff’s] objection’s sustained.”

During cross-examination of one of the plaintiffs treating doctors, defense counsel asked “Did you know that before seeing [the first treating doctor] that [the plaintiff] had an attorney?” Plaintiffs counsel objected and asked to come sidebar. At sidebar, the following exchange occurred:

Plaintiffs Counsel: ... That was a motion in limine.
Defense counsel: It was not a motion in limine.
Plaintiffs counsel: You said [defense counsel] wasn’t allowed to get into when [the plaintiff] hired an attorney.
Defense counsel: That’s not my recollection of the order.
Plaintiffs counsel: That was exactly the order ... You told [defense counsel] no. There is case law on point. At this point I would like you to ... admonish [defense counsel] and I would like you to do a curative instruction....
Defense counsel: My recollection of the order was when the lawsuit was filed, that was my understanding.
Plaintiffs counsel: Then he wasn’t paying attention, Judge. We specifically addressed this. There is a Fourth District case on point.
Court: ... I went back to my desk to make sure that the case that had been given to me, when we were discussing the issue of lawsuits and attorneys.... And this case is Watson v. Builders Square. And, in fact, what it talks about is in a personal injury action, evidence that the plaintiff had seen an attorney three days after the accident was inadmissible. The case was dealing with when somebody sees an attorney. That was the issue that was discussed and I will give this jury a curative instruction.
I think this [curative instruction] says it — “The prior question was the subject of a pretrial hearing. When [the plaintiff] hired a lawyer is not a subject for your consideration. You are to disregard that question.”
Defense counsel: I apologize for my misunderstanding of the Court’s prior ruling.
Plaintiffs counsel: Judge, I hate to do this, but I need to, at least, request a mistrial at this point as much as I don’t want to, as a sanction for violating this Court’s order. You can reserve and see what the jury does. That’s within your prerogative and maybe we will deal with it post trial.
Court: What is your response to the request for mistrial?
Defense counsel: I think it’s unnecessary. I think a curative instruction is sufficient.
Court: Right now I’m going to give the curative instruction and take your motion under advisement.

After the jury returned a verdict in an amount less than the plaintiff requested, he moved for a new trial. The plaintiff argued that defense counsel’s violation of the order granting the motion in limine, in combination with other improper statements by defense counsel, was so prejudicial that it required a new trial. The trial court denied the motion.

This appeal followed. The plaintiff primarily argues that defense counsel’s violation of the order granting the motion in limine, in combination with other improper statements by defense counsel, constitutes reversible error. We review the denial of the motion for new trial for an abuse of discretion. See Philip Morris USA, Inc. v. Naugle, 103 So.3d 944, 948 (Fla. 4th DCA 2012) (citation omitted) (“In reviewing a trial court’s grant or denial of a motion for new trial, this court applies an abuse of discretion standard.”).

We agree with the plaintiff’s argument. The trial court properly granted the plaintiffs motion in limine based upon Watson. Defense counsel violated the order. The question is whether defense counsel’s violation of the order is so prejudicial that it requires a new trial. See Azriel v. La Marca, 722 So.2d 952, 953 (Fla. 3d DCA 1998) (“Because the violation of the motion in limine was so prejudicial as to deny the plaintiff a fair trial, we find that the trial court abused its discretion by denying the plaintiffs motion for new trial.”) (internal citations omitted).

Based on our review of the totality of the record, we conclude that defense counsel’s violation of the order granting the motion in limine, in combination with other improper statements by defense counsel, is so prejudicial that it requires a new trial.

First, from our review of the record, we cannot see how defense counsel “misunderstood” the trial court’s order granting the motion in limine. This is especially true because plaintiffs counsel expressly argued Watson in support of the motion in limine. Moreover, defense counsel made improper statements at other stages of the trial. During cross-examination of the same treating doctor, defense counsel asked if he saw photographs of the vehicles involved in the accident. The doctor responded yes. Defense counsel then asked: “Did you know it was [the plaintiffs] father that took those lawsuit photographs?” (emphasis added). The plaintiff objected. The trial court sustained the objection. During opening statement, defense counsel referenced the fact that defendant Groupware was a subcontractor of Comcast, a well-known national company offering cable television and internet services. Defense counsel then commented: “And at first you are going to say when you look at the evidence, Comcast has nothing to do with the case. But maybe the evidence is going to show you that Comcast is the reason for this case.” The plaintiff objected. The trial court sustained the objection.

The plaintiff did not move for a mistrial after each of these objections were sustained, thus not preserving those errors. See Grau v. Branham, 761 So.2d 375, 378 (Fla. 4th DCA 2000) (“Generally, when a court sustains a party’s objection, that party must ... move for a mistrial to preserve appellate review of that objection.”) (citation omitted). Nevertheless, “unpre-served error can be considered with the preserved error in order to evaluate whether the preserved error is harmless.” Linic v. State, 80 So.3d 382, 393 (Fla. 4th DCA 2012) (citations omitted).

Considering the cumulative effect of the two unpreserved errors with the violation of the order granting the motion in limine, as well as the strong possibility that the violation was intentional, we cannot say that the violation was harmless. See Special v. Baux, 79 So.3d 755, 771 (Fla. 4th DCA 2011) (“To avoid a new trial, the beneficiary of the error in the trial court must show on appeal that it is more likely than not that the error did not influence the trier of fact and thereby contribute to the verdict.”).

In sum, we are reminded of the words used by our sister court in Bocher v. Glass, 874 So.2d 701, 704-05 (Fla. 1st DCA 2004):

Perhaps if counsel were given free rein, he or she could build exceptional rapport with jurors, and they, in turn, would find a trial far more entertaining, far more like the television version of the lawyer’s trade. That, however, is not the function of a jury trial.... To this end, jurors in every civil trial are told by the judge:
In reaching your verdict[s], you are not to be swayed from the performance of your duty by prejudice, sympathy or any other sentiment for or against any party. Your verdict[s] must be based on the evidence that has been received and the law on which I have instructed you.
Fla. Std. Jury Instr. (Civ.) 7.1. If we are interested in the integrity of the process by which a jury determines disputed facts, including damages in personal injury cases, we must not allow this instruction to become mere window dressing for a procedure that, without proper demarcation by a trial judge, can be steered all too easily into a morass of prejudice, sympathy, bias, and emotion.

Id. at 704-05 (internal citation omitted).

Based on the foregoing, we reverse and remand for a new trial.

Reversed and remanded for a new trial.

CIKLIN, GERBER, and CONNER, JJ., concur.

      . The plaintiff also challenges the trial court’s denial of his motion for directed verdict on causation and the amount of medical charges which he incurred before trial. We affirm that denial without further discussion.

      . In reaching our decision, however, we recognize the permissibility of impeaching the credibility of a medical witness with statements from the doctor’s own records that he was referred by counsel. See Katzman v. Re-diron Fabrication, Inc., 76 So.3d 1060, 1064 (Fla. 4th DCA 2011) ("A lawyer referred the patient to the physician in anticipation of litigation and therefore the physician has injected himself into the litigation.”).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Florida, Petitioner, v. D.H., a Child, Respondent.
    No. 4D12-1520.
    District Court of Appeal of Florida, Fourth District.
    March 13, 2013.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for petitioner.
    Antony P. Ryan, Regional Counsel, and Melanie L. Casper, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for respondent.
   PER CURIAM.

An order granting a defendant’s pretrial motion in limine is not appealable under Florida Rule of Appellate Procedure 9.140, but the order is reviewable by common-law certiorari. See State v. Pettis, 520 So.2d 250 (Fla.1988); State v. Sealy Doe, 861 So.2d 530 (Fla. 4th DCA 2003). We therefore treat the state’s appeal of the order granting the motion in limine as a petition for writ of certiorari. The petition is denied.

Denied.

WARNER, STEVENSON and CIKLIN, JJ., concur.


text:
    STATE of Florida, Appellant, v. Christopher LEDLIE, Appellee.
    No. 4D12-1721.
    District Court of Appeal of Florida, Fourth District.
    March 13, 2013.
    Pamela Jo Bondi, Attorney General Tallahassee, and Jacqueline N. Brown, Assistant Attorney General, West Palm Beach, for appellant.
    Fred Haddad of Fred Haddad, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed. See Grosso v. State, 2 So.3d 362, 364 (Fla. 4th DCA 2008).

STEVENSON, CIKLIN and GERBER, JJ., concur.


text:
    Mary E. GAUDETTE, Appellant, v. Joseph S. GAUDETTE, Appellee.
    No. 4D10-2910.
    District Court of Appeal of Florida, Fourth District.
    March 13, 2013.
    Douglas R. Bell of Law Offices of Bell & Bell, Fort Lauderdale, for appellant.
    Carin M. Porras of Brydger & Porras, LLP, Fort Lauderdale, for appellee.
   PER CURIAM.

Appellant, Mary Gaudette, appeals the trial court’s final judgment of dissolution of marriage. We affirm in all respects, except we reverse the trial court’s finding that “there was no evidence presented as to the cost of the Wife’s health insurance and if that cost would be affordable to the Husband with his limited income.” We are compelled to do so because there is evidence in the former husband’s financial affidavit that the monthly cost of appellant’s insurance was $195.00. Therefore, we direct the trial court to reconsider its findings in light of this record evidence.

Affirmed in part, Reversed in part, and Remanded.

STEVENSON, CIKLIN, JJ., and MORGAN, DAVID C., Associate Judge, concur.


text:
    Dadrian BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2841.
    District Court of Appeal of Florida, First District.
    Aug. 29, 2013.
    Rehearing Denied Oct. 21, 2013.
    Dadrian Brown, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    William T. MORRISON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D13-749.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2013.
    Rehearing Denied Oct. 31, 2013.
    William T. Morrison, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, William Morrison, appeals the trial court’s summary denial of his 3.850 motion for postconviction relief, in which he asserted ten grounds for relief. On appeal, he presents six issues with the trial court’s summary denial of his ten grounds. We affirm Appellant’s Issues 1 through 5 without further comment. Appellant’s Issue 6 requests this Court order the trial court accept a supplement Appellant allegedly filed to his postconviction motion which asserted an additional, eleventh ground for relief. The trial court asserts, and the trial court’s docket report confirms, it was never received. And, in his two requests to the trial court to hear his supplemental ground, Appellant never attached a copy of the alleged motion or any other material to show the trial court the supplement existed. In this Court, Appellant finally appears to have provided it by way of attachment to a motion to supplement the record on appeal; but, again, his supplement appears nowhere else. Without any evidence the trial court actually received the supplement in any way, though, we cannot find error in the trial court dismissing a request Appellant never provided it.

Accordingly, we AFFIRM as to Issues 1 through 5. We AFFIRM Issue 6 without prejudice to Appellant actually putting the supplemental before the trial court. We make no suggestion as to the merits of the supplemental ground or whether the supplement is timely; these matters are for the trial court to resolve.

VAN NORTWICK, CLARK, and OSTERHAUS, JJ, concur.


author: LOGUE, J. SCHWARTZ, Senior Judge,

text:
    Marie E. MENENDEZ, Appellant, v. WEST GABLES REHABILITATION HOSPITAL, LLC, Appellee.
    No. 3D11-2587.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 2013.
    Rehearing Denied Nov. 14, 2013.
    Silverstein, Silverstein & Silverstein, P.A., and Gregg A. Silverstein, and Darryn L. Silverstein, Aventura; The Powell Law Firm, P.A., and Brett C. Powell, P. Brandon Perkins, Palmetto Bay, and Kristen Perkins, for appellant.
    Quintairos, Prieto, Wood & Boyer, P.A., and Jeanette Bellon, Miami, and Robert J. Cousins, Ft.Lauderdale, for appellee.
    Before LAGOA and LOGUE, JJ., and SCHWARTZ, Senior Judge.
   LOGUE, J.

Marie E. Menendez sued West Gables Rehabilitation Hospital, LLC after she was injured while another person received gait training at the Hospital. After the depositions of the witnesses were taken, the Hospital moved for summary judgment. The trial court granted the motion. Menendez appealed. Because Menendez’s theories of liability depend upon the application of the “rescue doctrine,” and the rescue doctrine was not pled or argued to the trial court below, we affirm.

AMENDED COMPLAINT AND PROCEDURAL BACKGROUND

In her amended complaint, Menendez alleged that she was an invitee at the Hospital when employees of the Hospital “were in the process of gait training patients in the hallway. As one of the patients was being gait trained, said patient began to fall and in the process of the fall, caused Plaintiff, Marie E. Menendez, to fall and sustain injury.” In Count I, Men-endez alleged that the Hospital violated its duties “to warn of a dangerous condition of which it knew or should have known because it existed for a sufficient length of time before the accident” and “to keep the subject premises in a reasonably safe condition for its invitees” because it “failed to keep the hallway safe for invitees who may be in the area when the gait training is being performed by inexperienced therapists.” Menendez added that “said dangerous and negligent conditions were not apparent to Plaintiff, Marie E. Menendez.”

In Count II, Menendez alleged that the Hospital violated its “duty to perform the gait training in its hallways in a reasonably safe manner.” She further alleged that “[d]ue to the inexperience, negligent and unsafe gait training by the employee, servant, agent and/or apparent agent of Defendant, the patient began to fall and in the process of falling caused injury to Plaintiff, Marie E. Menendez.” Nowhere does the amended complaint plead the elements of the rescue doctrine or refer to a rescue.

After depositions were taken, the Hospital filed its motion for final summary judgment which the trial court granted. This appeal followed.

FACTS REFLECTED IN THE DEPOSITIONS

The depositions filed in support of the motion for summary judgment, even when viewed in a light most favorable to Menendez, tell a story at odds with the allegations in the amended complaint. According to the uncontradicted deposition testimony, the patient who fell while undergoing gaiting training was Menen-dez’s mother. In 2007, Menendez’s mother suffered a stroke. As a result, among other things, she lost the ability to walk. She was initially treated at another facility, where she first received gait training — physical therapy to help her regain the ability to walk. Later, she began to receive outpatient gait training at the Hospital.

The gait training for Menendez’s mother at the Hospital was conducted in the Hospital’s physical therapy center, not in a hallway. On the day of the accident, the mother first practiced walking using the parallel bars. She next began practicing walking with a hemi-walker in the therapy room. A hemi-walker has four legs and provides a very stable brace at hip-level. It is designed to be used on the side of the body, like a cane. The training involved the mother moving the hemi-walker forward on her left side and then stepping beside it.

The undisputed evidence indicates that the risk of falling is always present during gait training. For this reason, the patient is fitted with a gait belt, which is held by the therapist. The gait belt allows the therapist to either prevent or control a fall, depending on the circumstances. At the time of the accident giving rise to this lawsuit, the therapist was on the mother’s left side, holding the gait belt with both hands.

Menendez made a point of being present at her mother’s gait training sessions at both hospitals. Although already permanently disabled herself due to a neck injury resulting from an unrelated accident at work, Menendez voluntarily assisted in the therapy. On the day of the accident, she was stationed behind her mother and the physical therapist, guiding a wheelchair immediately behind her mother, in case her mother wanted to sit down. Menen-dez testified that she was fully aware of the risk that her mother could fall during gait training.

On the fourth step with the hemi-walker, the mother began to collapse to her right side. When the mother began to fall towards the right, the therapist had both hands on the gait belt and used it to attempt to control the fall. As her mother fell, Menendez threw herself from the safety of her location behind the wheelchair to cushion her mother’s fall. Both her mother and the wheelchair fell on top of Menendez. As a result, Menendez sustained injuries to the middle of her back.

ANALYSIS

A. Summary Judgment Standard

“Summary judgment is designed to test the sufficiency of the evidence to determine if there is sufficient evidence at issue to justify a trial or formal hearing on the issues raised in the pleadings.” The Florida Bar v. Greene, 926 So.2d 1195, 1200 (Fla.2006). It is proper only if there is no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510(c). The granting of summary judgment presents a pure issue of law that is reviewed by the District Court of Appeal de novo. Greene, 926 So.2d at 1200.

Courts must be particularly restrained in granting summary judgment in negligence cases. “In a negligence action, whether a defendant exercised reasonable care under a given set of facts is generally an issue for the jury to decide.” L.A. Fitness Int’l, LLC v. Mayer, 980 So.2d 550, 557 (Fla. 4th DCA 2008). Nevertheless, “[wjhile issues of negligence and ... [proximate] cause are ordinarily questions for the jury if reasonable men can arrive at different conclusions, they become questions of law if the facts point to but one possible conclusion.” Dampier v. Morgan Tire & Auto, LLC, 82 So.3d 204, 206 (Fla. 5th DCA 2012).

B. The Nature of Menendez’s Claims

Menendez’s complaint presents two theories of liability: premises liability and physical therapy malpractice. Under either theory, based upon the facts as revealed in the depositions, duty and proximate cause cannot be established except by the application of the rescue doctrine, which was not pled or argued below.

In this regard, the uncontroverted testimony of all witnesses, including Menendez herself, was that she was stationed at a safe distance behind a wheelchair at the moment that her mother began to fall. From this position of safety, she — in her own words — “threw” herself towards her mother. It was Menendez’s action in leaving her position of safety which subjected her to potential injury.

“While commendable, Menendez’s decision to leave the safety of her position behind the wheelchair would normally constitute an independent, intervening cause of her injury. See Goldberg v. Fla. Power & Light Co., 899 So.2d 1105, 1116 (Fla.2005) (“A negligent actor ... is not liable for damages suffered by an injured party when some separate force or action is the active and efficient intervening cause of the injury.”) (internal quotation and citation omitted). Menendez’s decision to leave a position of safety would constitute an intervening cause of her injury because Menendez’s action “supersedes the prior wrong as the proximate cause of the injury by breaking the sequence between the pri- or wrong and the injury.” Id. Florida courts have held that proximate cause can be determined as a matter of law, and summary judgment is appropriate, when the undisputed record reveals such an intervening cause. Ruiz v. Westbrooke Lake Homes, Inc., 559 So.2d 1172, 1174 (Fla. 3d DCA 1990) (“The question of proximate cause is one for the court where there is an active and efficient intervening cause.”) (citation omitted).

C. The Rescue Doctrine

On appeal, for the first time, Menendez argues that this problem of proximate causation can be overcome by application of the rescue doctrine. This doctrine includes three elements that must be proven by a plaintiff: (1) the defendant was negligent; (2) as a result of the defendant’s negligence, the person (or property) to be rescued was in imminent peril; and (3) the rescuer acted reasonably under the circumstances. Reeves v. N. Broward Hosp. Dist., 821 So.2d 319, 321 (Fla. 4th DCA 2002). The basic precept of this doctrine “is that the person who has created a situation of peril for another will be held in law to have caused peril not only to the victim, but also to his rescuer, and thereby to have caused any injury suffered by the rescuer in the rescue attempt.” N.H. Ins. Co. v. Oliver, 730 So.2d 700, 702 (Fla. 4th DCA 1999).

In making this argument, Menendez directs our attention to Reeves. In Reeves, the court held that summary judgment was inappropriate because a material issue of fact existed under the rescue doctrine, where a visiting nurse injured herself in the course of catching a patient rolling off a bed, after the guardrail had not been put into the upright position. 821 So.2d at 321-22. The plaintiff in Reeves pled the rescue doctrine in her complaint, and thus the doctrine had been presented to the trial court in an attempt to overcome summary judgment. Id. 320-21.

Menendez, on the other hand, never pled or otherwise invoked the rescue doctrine below as a basis for imposing liability on the Hospital. Her complaint, for example, failed to allege that she sought to rescue her falling mother, but rather, as previously discussed, presented an account in which she was unwittingly walking in a hospital hallway when she was surprised and knocked over by an unknown patient falling during gait training. Cf. Zwinge v. Hettinger, 530 So.2d 318, 323 (Fla. 2d DCA 1988) (“We further observe that Zwinge pled the rescue doctrine in his complaint.”). Menendez also failed to argue the rescue doctrine below in an attempt to overcome summary judgment.

We therefore do not address whether the application of the rescue doctrine might have allowed Menendez’s claim to survive summary judgment. We are foreclosed from considering the rescue doctrine because it was never presented to the trial court. Sunset Harbour Condo. Ass’n v. Robbins, 914 So.2d 925, 928 (Fla.2005) (“In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.”) (citation omitted); Bus. Success Grp., Inc. v. Argus Trade Realty Inv., Inc., 898 So.2d 970, 972 (Fla. 3d DCA 2005) (“It is elementary that before a trial judge will be held in error, [she] must be presented with an opportunity to rule on the matter.”).

CONCLUSION

Because Menendez failed to plead or otherwise present the rescue doctrine in the proceedings below, she cannot be heard to argue it on appeal.

Affirmed.

LAGOA, J., concurs.

SCHWARTZ, Senior Judge,

dissenting.

I dissent because I disagree with the majority that the applicability of the rescue doctrine was not properly before the lower court or this one; and as a matter of substance, a jury could find that it applies to the facts of this case.

Menendez did not, as the majority holds, forgo reliance on the issue by failing specifically to plead or otherwise invoke it. This is because the rescue doctrine is simply a gloss on or an aspect of questions of legal causation and scope of duty which were raised, as in any negligence case, by the pleadings and arguments below. It provides that a violation of the defendant’s duty to another is, in a sense, extended to include a someone else engaged in a reasonable effort to save him from a danger created by the defendant’s negligence. See Reeves v. North Broward Hosp. Dist., 821 So.2d 319, 321 (Fla. 4th DCA 2002) (“The basic precept of the ‘rescue doctrine’ is that the person who has created a situation of peril for another will be held in law to have caused peril not only to the victim, but also to his rescuer, and thereby to have caused any injury suffered by the rescuer in the rescue attempt.”) (quoting N.H. Ins. Co. v. Oliver, 730 So.2d 700, 702 (Fla. 4th DCA 1999)). To put it another way, it puts the rescuer in the foreseeable zone of danger created by the defendant’s tortious acts. See McCain v. Florida Power Corp., 593 So.2d 500 (Fla.1992). Thus, the rescuer’s actions become, as a matter of law, a link in the requisite causal chain between the tort and his injuries.

No matter how characterized, however, the doctrine is properly viewed as subsumed in the allegations of the complaint and answer as to negligence, duty and causation, and therefore need not be separately pled or explicitly referred to. See Beaupre v. Pierce County, 161 Wash.2d 568, 166 P.3d 712, 715 (2007) (rejecting contention that defendant waived application of the rule barring professional rescuers from recovering under rescue doctrine by not specifically raising the claim in its answer or disclosing reliance upon it in response to discovery requests: “the professional rescue doctrine is essentially a type of implied primary assumption of risk” thus “[the defendant’s] assertion of assumption of risk in its answer was sufficient to raise the professional rescue doctrine .... ”); Fox v. Travis Realty Co., 262 Ill.App.3d 1071, 200 Ill.Dec. 199, 635 N.E.2d 538, 541 (1994) (specifically rejecting in part contention that plaintiff had waived reliance on rescue doctrine by way of failing to raise the matter in the trial court: “We reject the argument ].... [T]he concepts engendered by the rescue doctrine may still be viable to allow a rescuer to state a cause of action .... ”); see also Ryder Truck Rental, Inc. v. Korte, 357 So.2d 228, 230 (Fla. 4th DCA 1978) (“Although no longer necessary to relieve a rescuer from the absolute bar of contributory negligence, the rescue doctrine is still applicable to establish that the defendant’s negligence was the proximate cause of the plaintiffs injury.”).

I believe that the cases holding that very similar concepts need not be specifically pled or invoked are highly persuasive to this effect. See Dunn Bus Serv. v. McKinley, 130 Fla. 778, 178 So. 865, 867 (1937) (“[T]he doctrine of ‘last clear chance’ is but one of many applications of the principle of ‘proximate cause’ to the facts of the particular case are cases as they arise.... Therefore the issue of fact as to whether the defendant had the last clear chance to avoid the collision and resulting injuries in this case was within the issues raised by the pleadings.”); Miller v. Ungar, 149 Fla. 79, 5 So.2d 598, 599 (1941) (“It is the duty of the court to charge the jury on all questions of law growing out of the facts insofar as they correspond to the pleadings. We have heretofore held that special pleadings are unnecessary to invoke the doctrine of last clear chance.”); Becker v. Blum, 142 Fla. 60, 194 So. 275, 275 (1940) (“It is not necessary that the doctrine [of last clear chance] be pleaded, if the situation warrants instructions thereon.”); Tropical Exterminators, Inc. v. Murray, 171 So.2d 432, 434 (Fla. 2d DCA 1965) (finding that although defendants did not raise loss of consciousness as an affirmative defense below, it was properly raised in the answer which generally denied any negligence, and “[t]he record, especially the defendant-employee’s deposition” showed that appellee’s contention that the issue was not raised in any manner could not be sustained.). See generally S. Fla. Coastal Elec., Inc. v. Treasures on Bay II Condo. Ass’n, 89 So.3d 264, 267-68 (Fla. 3d DCA 2012) (disagreeing with dissent that agency was not raised by the pleadings and finding that the defendant “invited the agency analysis through its own vague pleading of affirmative defenses” even though there was no mention or specific reference to any type of agency theory in the pleadings); Agrofollajes, S.A. v. E.I. Du Pont De Nemours & Co., 48 So.3d 976, 996 (Fla. 3d DCA 2010) (analyzing pleadings and determining that both the claim and defense were sufficiently evident from pleadings and record, and rejecting the theory that failure to plead a specific theory barred recovery).

The trial judge stated in the order on review:

Uncontroverted facts (all depos) establish Ms. Menendez was behind her mother and the therapist as gait training proceeded. She was not in the zone of danger until she dove in to cushion her mother’s fall. While commendable, the action does not create a duty on the part of the defendant when she places herself into the zone of danger as the risk occurs. The breach alleged is failure to control the mother in gait training. The zone of danger only encompassed those exposed to risk due to a potential breach. At all times prior to the incident, Ms. Menendez (daughter) was not in the zone of danger so no breach of duty to her.

This is an excellent description of what the rescue doctrine exists to and does prevent and why it should apply here.

Viewed, as required, in the light most favorable to the plaintiff, see Conley v. Morley Realty Corp., 575 So.2d 253, 256 (Fla. 3d DCA 1991), the record amply demonstrates the applicability of the doctrine as a matter of law to the controlling facts. These are the two factors, and the only two, upon which the propriety of summary judgment is determined. See Fla. R. Civ. P. 1.510(c) (“The judgment sought shall be rendered forthwith if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.) (emphasis added); Krol v. City of Orlando, 778 So.2d 490, 492 (Fla. 5th DCA 2001) (concluding that evidence raised a disputed issue of material fact as to whether application of exception to rule of immunity was appropriate). The failure to use some magic words cannot justify the contrary result reached below. See Reeves v. North Broward Hosp. Dist., 821 So.2d 319 (Fla. 4th DCA 2002); Schwartz v. Hughes Supply, Inc., 537 So.2d 190 (Fla. 2d DCA 1989); Zwinge v. Hettinger, 530 So.2d 318 (Fla. 2d DCA 1988); Ryder Truck Rental Inc. v. Korte, 357 So.2d 228 (Fla. 4th DCA 1978); Newsome v. St. Paul Fire and Marine Ins. Co., 350 So.2d 825 (Fla. 2d DCA 1977).

I would reverse.

      . Although Count II is presented as one for "negligence,” the only negligence alleged was that the physical therapy was conducted in a negligent manner.

      . "[I]f it is not necessary to decide more, it is necessary not to decide more.” PDK Labs., Inc. v. U.S. D.E.A., 362 F.3d 786, 799 (D.C.Cir.2004) (Roberts, J. concurring) (recognizing the cardinal principle of judicial restraint).


text:
    BEAZLEY INSURANCE COMPANY, INC., Petitioner, v. Tapan BANERJEE and A & B Engineering, Inc., Respondents.
    No. 4D13-1019.
    District Court of Appeal of Florida, Fourth District.
    Oct. 9, 2013.
    Robert T. Chaskes and Ryan Roman of Akerman Senterfitt, Miami, for petitioner.
    Julie H. Littky-Rubin of Clark, Fountain, La Vista, Prather, Keen & Littky-Rubin, LLP, West Palm Beach, for respondent, Tapan Banerjee.
   PER CURIAM.

Respondent Tapan Banerjee commenced an automobile negligence lawsuit on December 19, 2006, against several defendants, including A & B Engineering, Inc. In February 2008, A & B applied for a professional liability insurance policy with Beazley Insurance Company, Inc.; Beaz-ley, in turn, issued a policy at the end of February, with a one-year policy period of March 4, 2008 through March 4, 2009. In April 2008, A & B provided Beazley with copies of the summons and complaint in the Banerjee action and the insurance company commenced a defense, subject to a reservation of rights. On July 22, 2008, Beazley denied coverage.

In 2012, Banerjee sought leave to add Beazley as a party defendant on a declaratory judgment claim. On July 16, 2012, the trial court granted Banerjee’s motion, thereby adding a declaratory judgment claim to the 2006 action. Beazley responded with a motion to dismiss, claiming that the declaratory judgment claim was in violation of section 627.4136(1), Florida Statutes (2012).

In September 2012, Banerjee and A & B entered into a settlement agreement providing for the entry of a final judgment against A & B for $2.75 million. That same month, Beazley removed the case to federal court, but the federal court remanded the action to state court because removal was untimely, apparently using the date that the lawsuit was filed in 2006 rather than July 16, 2012, the date Beazley became a party to it. On February 6, 2013, the circuit court denied Beazley’s motion to dismiss.

Certiorari relief may be appropriate when the effect of a court’s ruling is to defeat a litigant’s ability to remove an action to federal court. See GEICO Gen. Ins. Co. v. Harvey, 109 So.3d 236, 238 (Fla. 4th DCA 2013). In this case, there was a departure from the essential requirements of law for two reasons. First, at the time Beazley was added as a defendant to the lawsuit in July 2012, joinder was barred by section 627.4136(1), because Banerjee had not obtained a “settlement or verdict” against A & B, the insured. Second, an exception to the rule allowing joinder after “a judgment is entered or a settlement is reached” occurs where “the insurer denied coverage under the provisions of s. 627.426(2) or defended under a reservation of rights pursuant to s. 627.426(2).” § 627.4136(4), Fla. Stat. (2012). A separate action must be commenced against Beazley to litigate the issue of coverage. See DeMeo v. Frenchy’s Worldwide Helmets, Inc., 732 So.2d 12, 13-14 (Fla. 4th DCA 1999).

We therefore grant the petition for writ of certiorari, quash the order denying dismissal, and remand to the circuit court.

DAMOORGIAN, C.J., GROSS and LEVINE, JJ., concur.


author: GERBER, J.

text:
    GINO VITIELLO, M.D., P.A. and Gino Vitiello, an individual, Appellants, v. GENOVESE JOBLOVE & BATTISTA, P.A., Appellee.
    No. 4D12-4337.
    District Court of Appeal of Florida, Fourth District.
    Oct. 23, 2013.

      Craig B. Shapiro and Rodolfo Núñez of Aran, Correa, Guarch & Shapiro, P.A., Coral Gables, for appellants.
    Barry P. Gruher and Robert F. Elgidely of Genovese Joblove & Battista, P.A., Fort Lauderdale, for appellee.
   GERBER, J.

The defendants appeal from the circuit court’s order denying their motion to transfer venue from Broward County to Miami-Dade County. The defendants raise two arguments: (1) their affidavit established that venue was improper in Broward County and proper in Miami-Dade County; and (2) the plaintiff did not present any sworn evidence to rebut their affidavit. We agree with the defendants’ arguments and reverse.

The plaintiff filed a complaint against the defendants in Broward County for breach of contract and related counts arising from the defendants’ alleged non-payment for the plaintiffs legal services. The plaintiffs complaint alleged that the corporate defendant’s principal place of business was in Miami-Dade County and that the individual defendant resided in Miami-Dade County. The complaint nevertheless alleged that venue was proper in Broward County because the plaintiff performed its legal services for the corporate defendant in Broward County, albeit for a case pending in Miami-Dade County; the cause of action accrued in Broward County; and the plaintiff suffered damages in Broward County.

Attached to the plaintiffs complaint was the plaintiffs engagement letter to the defendants. The letter identified the plaintiffs office as being located in Broward County, and explained that the plaintiff would perform legal services for the defendants pertaining to the corporate defendant’s case pending in Miami-Dade County. Included with the engagement letter were the plaintiffs wiring instructions for payment to the plaintiffs bank account in Miami-Dade County. The individual defendant signed the engagement letter on behalf of both himself and the corporate defendant.

The defendants filed a motion to transfer venue from Broward County to Miami-Dade County. Attached to the motion was the defendants’ affidavit in support of the motion. The defendants’ motion and affidavit alleged that venue was improper in Broward County and proper in Miami-Dade County because: (1) the individual defendant resides in Miami-Dade County; (2) the corporate defendant’s principal place of business is in Miami-Dade County; (3) the plaintiff provided legal services for the corporate defendant’s case pending in Miami-Dade County; (4) the individual defendant conducted all negotiations with the plaintiff from Miami-Dade County; (5) the individual defendant executed the engagement letter in Miami-Dade County; and (6) the defendants were to send payment to the plaintiff’s bank in Miami-Dade County pursuant to the wiring instructions included with the plaintiff’s engagement letter.

The plaintiff did not file any sworn evidence to rebut the defendants’ affidavit. Instead, at the hearing on the defendants’ motion, the plaintiff argued that its action accrued in Broward County because the defendants sought legal representation in Broward County, the plaintiff performed its services in Broward County, and payment was due in Broward County.

Following the hearing, the circuit court entered an order denying the defendants’ motion to transfer venue. The order contains no factual findings.

This appeal followed. Because the order on appeal contains no factual findings and stated only a legal conclusion, our review is de novo. See I-Net Techs., Inc. v. Salazar, 82 So.3d 1007, 1008 (Fla. 4th DCA 2011) (“The standard of review for the denial of a motion to transfer venue is whether the trial court’s factual determinations are supported by substantial, competent evidence or are clearly erroneous. The trial court’s legal conclusions are reviewed de novo.”) (citation and quotations omitted).

The defendants raise two arguments: (1) their affidavit established that venue was improper in Broward County and proper in Miami-Dade County; and (2) the plaintiff did not present any sworn evidence to rebut their affidavit. We agree with the defendants’ two arguments.

First, the defendants’ affidavit established that venue was improper in Bro-ward County and proper in Miami-Dade County. Venue is proper where the defendant resides, or, in the case of a domestic corporation, where the corporation has, or usually keeps, an office for transaction of its customary business; where the cause of action accrued; or where the property in litigation is located. §§ 47.011 & 47.051, Fla. Stat. (2012). It is undisputed that the individual defendant resides in Miami-Dade County and that the corporate defendant has its office for transaction of its customary business in Miami-Dade County. It also is undisputed that this litigation does not involve property. Thus, the defendants had the initial burden to establish, by affidavit, that the cause of action did not accrue in Broward County, but instead accrued in Miami-Dade County. See I-Net, 82 So.3d at 1008 (“A complaint is sufficient to allege venue, unless a defendant, by affidavit, challenges venue.”) (internal citation and quotations omitted). The defendants’ affidavit met that burden. The affidavit established that the plaintiffs causes of action accrued in Miami-Dade County because the defendants were to send payment to the plaintiffs bank in Miami-Dade County pursuant to the wiring instructions included with the plaintiffs engagement letter and because the plaintiff’s principal place of business is located in Miami-Dade County. See R.C. Storage One, Inc. v. Strand Realty, Inc., 714 So.2d 634, 635 (Fla. 4th DCA 1998) (“A cause of action for money due accrues where payment is required; when an agreement is silent as to the place of payment, it is implied that payment is to be remitted where the creditor has its principal place of business.”).

Second, once the defendants met their initial burden to establish, by affidavit, that venue was proper in Miami-Dade County, the plaintiff failed to file any sworn evidence to establish that venue was proper in Broward County. See Am. Vehicle Ins. Co. v. Goheagan, 35 So.3d 1001, 1003 (Fla. 4th DCA 2010) (“Although an unsworn complaint is sufficient to allege venue, ... when a defendant challenges venue by filing an affidavit controverting the plaintiffs venue allegations, the burden shifts to the plaintiff to establish the propriety of the venue selection.”). More specifically, the plaintiff did not file any sworn evidence to support its allegation that the defendants’ payment was due in Broward County despite the plaintiffs wiring instructions to the contrary. We are unpersuaded by the plaintiffs unsworn argument that the wiring instructions did not establish where payment was required because the engagement letter did not incorporate the instructions by reference.

Based on the foregoing, we reverse the circuit court’s order denying the defendants’ motion to transfer venue from Bro-ward County to Miami-Dade County. We remand for further proceedings consistent with this opinion.

Reversed and remanded.

WARNER and CIKLIN, JJ„ concur.


text:
    Talvin THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1163.
    District Court of Appeal of Florida, Fourth District.
    Oct. 23, 2013.
    Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L. Comras, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant appeals from multiple convictions following his open plea and sentence to twenty-two years in prison, arguing that two of his convictions violate double jeopardy. We agree and reverse on this issue. Appellant also raises arguments with respect to the cross-examination of a witness at sentencing and a no contact provision in the sentencing order. We affirm these issues without further discussion.

Appellant argues that his convictions for domestic battery by strangulation and felony battery arising out of the same event against a single victim violate double jeopardy. “A defendant who enters a general or open plea does not waive double jeopardy claims.” Demps v. State, 965 So.2d 1242, 1243 (Fla. 4th DCA 2007). A conviction that violates double jeopardy constitutes fundamental error that may be raised for the first time on appeal. Kilmartin v. State, 848 So.2d 1222, 1224 (Fla. 1st DCA 2008). Section 775.021(4)(b)2., Florida Statutes, precludes separate convictions and sentences where the “[o]f-fenses ... are degrees of the same offense as provided by statute.”

The Fifth District recently addressed this issue in Ramirez v. State, 113 So.3d 105, 108 (Fla. 5th DCA 2013), and held that double jeopardy “precludes convictions for both felony battery (one prior) and domestic battery by strangulation arising out of the same event because they are both aggravated forms of simple battery.” The court reasoned that section 784.03, Florida Statutes, “establishes the crime of battery, and then enhances the degree of that crime if, as here, the defendant has a prior battery conviction.” Id. Similarly, “simple battery is [a] category one lesser included offense of domestic battery by strangulation.” Id. at 109. The same rationale applies to the instant case. Accordingly, we vacate appellant’s conviction for felony battery, affirm his other convictions, and remand for resen-tencing.

Affirmed in part, reversed in part, and remanded.

TAYLOR, LEVINE and KLINGENSMITH, JJ., concur.


text:
    M.J.F., Petitioner, v. J.V.R. and Guardian Ad Litem Program, Respondents.
    No. 1D13-5110.
    District Court of Appeal of Florida, First District.
    Oct. 24, 2013.
    Michael J. Furry, pro se, Petitioner.
    Sandra Carroll, Guardian ad Litem Program, Milton; and Craig A. Vigodsky, Pensacola, for Respondents.
   PER CURIAM.

The emergency petition for writ of prohibition is denied on the merits.

THOMAS, ROBERTS, and CLARK, JJ., concur.


author: DAVIS, Chief Judge.

text:
    Heather Ann WORTHINGTON, Appellant, v. Timothy Gail WORTHINGTON, Appellee.
    No. 2D12-1361.
    District Court of Appeal of Florida, Second District.
    Oct. 30, 2013.

      David L. Hurvitz of Law Office of Hur-vitz & Feasley, P.A., Tampa, for Appellant.
    Karen M. Glover, Palm Harbor, for Ap-pellee.
   DAVIS, Chief Judge.

Heather Ann Worthington, the Former Wife, challenges the trial court’s order amending or modifying the final judgment of dissolution of marriage and the order denying her motion for rehearing. We reverse the portion of the order modifying the timesharing arrangement because it exceeds the scope of the relief requested in the motions that were noticed for and addressed at the hearing below.

After the parties’ marriage was dissolved, the Former Husband filed a motion seeking modification of the timesharing agreement. He then filed motions for contempt and for clarification of the timeshar-ing agreement. The latter two motions were noticed for hearing. Following this hearing, the trial court entered an order modifying timesharing.

The order on appeal provides for six hours of visitation to the Former Husband every Monday and Friday, as well as weekend visitation every other weekend. It additionally schedules holiday visitation for the 2011-12 season. The Former Wife claims that the trial court procedurally erred in entering the modification order by granting relief beyond that requested in the Former Husband’s motions. She also correctly notes that the notice of hearing she received does not indicate that any modification issue was set for hearing on that day.

“In modification proceedings, as in other civil matters, courts are not authorized to award relief not requested in the pleadings. To grant unrequested relief is an abuse of discretion and reversible error.” Abbott v. Abbott, 98 So.3d 616, 617-18 (Fla. 2d DCA 2012) (citations omitted) (internal quotation marks omitted). Additionally, a court should not grant such relief absent proper notice to the parties. Sinton v. Sinton, 749 So.2d 532, 533 (Fla. 2d DCA 1999). Although we are without the benefit of a transcript of the hearing, it is clear from the record that the modified visitation times are not part of the relief requested in the Former Husband’s motions for clarification and contempt. And the Former Husband’s modification petition that was not noticed for the hearing also fails to seek the specific timesharing modifications that were entered by the trial court in the order on appeal.

Because it is clear from the face of the record that the trial court abused its discretion by granting relief that was not requested, we reverse that portion of the order modifying the timesharing arrangement and remand for further proceedings consistent with this opinion. We recognize that in addition to the substantive arguments the parties may raise before the trial court on remand, both parties had other motions related to contempt, requests for modification, relocation, paternity, and mediation pending in the trial court at the time of this appeal. The status of those proceedings is impossible to ascertain from the limited record before this court, and we leave any determinations regarding their impact on the scope of the proceedings on remand to the trial court.

Affirmed in part, reversed in part, and remanded.

KHOUZAM and SLEET, JJ„ Concur.

      . We affirm the remaining portions of the order, including the portion relating to the holiday visitation schedule, without further comment. That portion of the order is a part of the relief requested in the motion for clarification that was noticed for hearing. Additionally, the 2011-12 holiday season has passed, and no future holiday times are addressed in the order, mooting any related arguments on appeal.


author: SHEPHERD, C.J.

text:
    MERRIMAN INVESTMENTS, LLC, etc., Appellant, v. Therese UJOWUNDU, et al., Appellees.
    No. 3D12-0996.
    District Court of Appeal of Florida, Third District.
    Oct. 30, 2013.

      Hayt, Hayt & Landau and Leslie Mark Schneider, for appellant.
    Erigene Belony, for appellees.
    Before SHEPHERD, C.J., and ROTHENBERG and SALTER, JJ.
   SHEPHERD, C.J.

Merriman Investments, LLC, appeals from an order dissolving a writ of garnishment. We reverse.

Therese Ujowundu, along with her nephew, Patrick Ujowundu, obtained a loan from Bank of America to finance the purchase of an automobile. They subsequently defaulted on the loan, and the automobile was repossessed and sold, leaving a deficiency balance due. The bank obtained a judgment for $25,799.80 plus post-judgment interest against the Ujo-wundus. Thereafter, the debt was assigned to Merriman. In an attempt to collect on the judgment, Merriman served a writ of garnishment on Ms. Ujowundu’s employer, Baptist Hospital. Baptist answered, acknowledging Ms. Ujowundu’s employment and her bi-weekly salary of $819.28.

Ms. Ujowundu moved to dissolve the writ on the ground the wages she earns at Baptist do not belong to her. Ms. Ujo-wundu alleged she is a member of the Religious Order of The Daughters of Mary Mother of Mercy (the Order), and the services she performs at the hospital are performed as an agent of the Order. In an affidavit attached to the motion, Ms. Ujowundu declared that, pursuant to her vow of poverty, she has renounced all earnings, and she pays her wages directly to the Order. Based solely on Ms. Ujo-wundu’s affirmations, the trial court dissolved the garnishment writ. In so doing, we conclude the trial court erred.

We review this issue de novo because we are interpreting Florida’s statutory garnishment law. Arnold, Matheny and Eagan, P.A. v. First Am. Holdings, Inc., 982 So.2d 628, 682 (Fla.2008). Florida law recognizes creditors are entitled to garnish a debtor’s wages to recover unpaid judgments. See § 77.01, Fla. Stat. (2011) (“Every person or entity who has sued to recover a debt or has recovered judgment in any court against any person or entity has a right to a writ of garnishment ... to subject any debt due to defendant by a third person .... ”); § 77.0305, Fla. Stat. (2011) (“[I]f salary or wages are to be garnished to satisfy a judgment, the court shall issue a continuing writ of garnishment to the judgment debtor’s employer which provides for the periodic payment of a portion of the salary or wages of the judgment debtor as the salary or wages become due until the judgment is satisfied or until otherwise provided by court order.”).

Once issued, the trial court may consider a request to dissolve the writ under certain circumstances. Depending on the circumstance, the request to dissolve may be made in either of two ways: (1) on motion of the debtor challenging the truth of the allegations in the creditor’s petition for the writ, see § 77.07, Fla. Stat. (2001); or (2) on an affidavit of a third party claiming the garnished property belongs to the third party and not the debt- or. See § 77.16, Fla. Stat. (2001). Either method requires a trial of the issues. §§ 77.07, 77.16. In this case, Ms. Ujowun-du moved to dissolve the garnishment on behalf of the Order, without the latter filing an affidavit or in any other way intervening to assert its interest in Ms. Ujowundu’s wages. Ms. Ujowundu lacks standing to assert the Order’s claim to the garnished wages. See Alterra Healthcare Corp. v. Estate of Shelley, 827 So.2d 936, 941 (Fla.2002) (citing Powers v. Ohio, 499 U.S. 400, 410, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991)) (“[A] litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties.”). Accordingly, the writ of garnishment could not be dissolved under section 77.16.

Next, we consider Ms. Ujowundu’s section 77.07 challenge to the veracity of the allegations in the petition for garnishment, namely, that the wages paid by Baptist are her property. On a motion to dissolve, the petitioner must prove the grounds upon which the writ was issued, including the debtor’s ownership of the garnished property. See § 77.07(1); Doug Sears Consulting, Inc. v. ATS Servs., Inc., 752 So.2d 668, 669 (Fla. 1st DCA 2000). Thus, Merriman had the initial burden of proving the wages paid to Ms. Ujowundu belonged to her. Merriman met this burden through Baptist’s answer, which acknowledged paying Ms. Ujowundu directly as its employee and made no mention of any agreement with the Order to employ appellee. Ms. Ujowundu then interposed, via her own affidavit, an agency-principal relationship between herself and the Order in an attempt to disprove her control over the wages she receives from Baptist.

Generally, the existence of an agency relationship is decided by the trier of facts. Villazon v. Prudential Health Care Plan, Inc., 843 So.2d 842, 853 (Fla.2003). The burden of proving the relationship is on the party who asserts it. Regions Bank v. Maroone Chevrolet, L.L.C., 118 So.3d 251, 255 (Fla. 3d DCA 2013). To establish an agency-principal relationship, a party must show: “(1) acknowledgement by principal that agent will act for him, (2) the agent’s acceptance of undertaking, and (3) control by the principal over actions of the agent.” Goldschmidt v. Holman, 571 So.2d 422, 424 n. 5 (Fla.1990).

In cases involving an agent’s wages, federal taxation cases provide some guidance. There, it is generally accepted “that where an agent earns income on behalf of the principal within the scope of the agency and remits the income to the principal according to the agency relationship, the income is the principal’s and not the agent’s.” Fogarty v. U.S., 780 F.2d 1005, 1008 (Fed.Cir.1986). If a member of a religious order earns income as an agent of and on behalf of the order, and gives that money to the order pursuant to his vow of poverty, that sum becomes income to the order and the individual is not taxed on it. Conversely, if a member of a religious order earns income in his individual capacity and gives the money to the order pursuant to his vow of poverty, that sum is income to him and is subject to federal income tax. See, e.g., Page v. Comm’r, 823 F.2d 1263 (8th Cir.1987); Fogarty, 780 F.2d at 1005. Because of the potential for fraud, the courts require proof of an actual agency. See Mone v. Comm’r, 774 F.2d 570, 573 (2d Cir.1985) (“To prove assignment of income on an agency theory ... [taxpayers] must show that a contractual relationship existed between their secular employers and their religious order, and that the religious order controlled or restricted the taxpayers’ use of the money purportedly turned over to the order.”).

In this case, there is no evidence of the Order’s acknowledgement that Ms. Ujo-wundu acted as its agent or that it controlled the actions of Ms. Ujowundu. Additionally, there was no evidence of a contractual agreement between Baptist Hospital and the Order regarding Ms. Ujowundu’s employment. Therefore, because Ms. Ujowundu failed to prove an agency relationship exists, the trial court erred in dissolving the writ of garnishment.

Accordingly, we reverse the order dissolving the writ of garnishment, and remand for further proceedings.

Reversed.


text:
    Jill D. MARLOWE, Former Wife, Appellant, v. Wally R. MARLOWE, Former Husband, Appellee.
    No. 1D12-3964.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2013.

      John Booth of Walborsky & Bradley, and R. Brook Davis, Pensacola, for Appellant.
    Ross A. Keene of Beroset & Keene, Pensacola, for Appellee.
   PER CURIAM.

Jill D. Marlowe, the former wife, appeals a final judgment modifying child support which reduced the amount of child support payments owed to her by Wally R. Marlowe, the former husband, appellee, retroactive to the date of the original filing. The former wife argues that: (1) the trial court improperly imputed minimum wage income to her; (2) the Final Judgment violates section 61.30(7), Florida Statutes (2012); (3) the revised child support calculations are erroneous; and (4) it is an error to use alleged past overpayments in child support to set off alimony arrearages or future child support payments. Because the trial court failed to support its imputation of income to the wife with any factual findings and erred in the computation of the former husband’s child support payments, we reverse and remand for further proceedings.

Florida courts have consistently held that the imputation of income must be supported by factual findings as to the “probable and potential earnings level, source of imputed and actual income, and adjustments to income.” Harrell v. Harrell, 947 So.2d 638, 639 (Fla. 4th DCA 2007). Particularized findings relating to the current job market, the party’s most recent work history, occupational qualifications, and the prevailing earnings level in the local community are all required to support an imputation of income. Rabbath v. Farid, 4 So.3d 778, 782 (Fla. 1st DCA 2009). Here, the trial court does not provide any factual basis for its conclusion that the former wife was voluntarily underemployed. Nor does the trial court provide any support for its determination that the former wife should be working 40 hours a week. The record is undisputed that the former wife is a homemaker with limited work experience, no marketable skills, and no resume. In fact, evidence shows that former wife was forced to leave her minimum wage job as a teacher’s assistant because of child care issues with her youngest of seven children of this marriage. Without any factual findings, the imputation of income must be reversed and remanded.

We also agree with the former wife that the trial court’s retroactive child support calculations are erroneous. The child support worksheets in the record reflect that the former husband paid his alimony every month from November 2009 through May 2012 when, in actuality, he did not. An audit performed by the Escambia County Clerk reflected that the former husband’s alimony payments were over $12,000 in arrearage. Because the court ignored the unpaid alimony payments, there was an erroneous $600 reduction in the former husband’s income and a $600 increase in the former wife’s income. See Swor v. Swor, 56 So.3d 825, 826 (Fla. 2d DCA 2011).

We find no abuse of discretion, however, in the trial court’s termination of child support upon a child reaching the age of 18, instead of upon high school graduation. Further, set offs against support obligations are permitted “in those limited circumstances where that party can show ‘compelling equitable criteria and considerations’ justifying such set off.” Waldman v. Waldman, 612 So.2d 703, 704 (Fla. 3d DCA 1993) (quoting Chappell v. Chappell, 253 So.2d 281, 287 (Fla. 4th DCA 1971)). We find that equitable circumstances exist warranting the trial court’s ruling because, if the alimony arrearage was not set off against the child support “overpayment” by virtue of the retroactive reduction, the former wife would have an even greater financial burden owed to the former husband. Therefore, even though the trial court’s calculation of retroactive child support is remanded for recalculation, to the extent the child support calculations are retroactively reduced, they can be set off by the alimony arrearage. On remand, the trial court should cap the amount to be deducted from the former husband’s future child support obligations as offset for his retroactive child support overpay-ments. This is to ensure that the children’s continuing support needs will be met, while simultaneously amortizing the sum of child support overpayments owed to the former husband.

REVERSED and REMANDED for further proceedings consistent with this opinion.

WOLF, VAN NORTWICK, and WETHERELL, JJ., concur.


text:
    James F. LONGWELL, IV, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-5970.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2013.
    Nancy A. Daniels, Public Defender, and Robert S. Friedman, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

James Franklin Longwell, IV, appellant, was convicted on several charges stemming from an altercation with his former wife, Jessica A. Longwell. On appeal, Mr. Longwell challenges his conviction for tampering with a victim or witness, arguing that the trial court erred by not granting his motion for judgment of acquittal as to that charge. As explained below, we agree and reverse.

At trial, Ms. Longwell testified that on November 28, 2011, she and Mr. Longwell had communicated with each other and arranged a meeting, both to discuss child support payments and to allow Mr. Long-well to visit his daughter, who was in Ms. Longwell’s custody. Ms. Longwell testified that when she and Mr. Longwell met on that date, an argument ensued that resulted in a physical altercation. Ms. Longwell stated that her cellular phone had been broken during the altercation, but that she believed it was because she had dropped it. Ms. Longwell testified that she was aware that her current testimony regarding her cellular phone was contrary to the initial written statement she gave to the police, and which was entered in evidence, where she said that Mr. Longwell took her cell phone and smashed it on the ground. Ms. Longwell testified that she did not call 911.

At the close of the State’s case-in-chief, defense counsel moved for judgment of acquittal, asserting that there was insuffi-dent evidence to show that Mr. Longwell tampered with the victim. The trial court denied the motion and Mr. Longwell was ultimately found guilty of all three charges, including tampering with a victim or witness. This appeal followed.

A judgment of acquittal is not proper if the State has produced competent, substantial evidence to support every element of the crime. Bussell v. State, 66 So.3d 1059, 1061 (Fla. 1st DCA 2011); Gay v. State, 607 So.2d 454, 457 (Fla. 1st DCA 1992). Furthermore, “[i]t is the trial judge’s proper task to review the evidence to determine the presence or absence of competent evidence from which the jury could infer guilt to the exclusion of all other inferences.” Beasley v. State, 774 So.2d 649, 658 (Fla.2000), (emphasis in original), reh’g denied, (quoting State v. Law, 559 So.2d 187, 189 (Fla.1989)).

Under Florida law, tampering with a witness, victim, or informant occurs when:

(1) A person who knowingly uses intimidation or physical force, or threatens another person, or attempts to do so, or engages in misleading conduct toward another person, or offers pecuniary benefit or gain to another person, with intent to cause or induce any person to:
(e) Hinder, delay, or prevent the communication to a law enforcement officer or judge of information relating to the commission or possible commission of an offense or a violation of a condition of probation, parole, or release pending a judicial proceeding....

§ 914.22(l)(e), Fla. Stat. (2011).

Based on our review of the record, we conclude that no evidence was presented establishing that Ms. Longwell was attempting to contact law enforcement during the altercation with Mr. Longwell. The State accurately and candidly indicated that the evidence presented did not establish a prima facie case of guilt as to the tampering charge. Because Ms. Long-well denies calling 911, and because no witness testified that Ms. Longwell was attempting to contact law enforcement during the altercation, there is insufficient evidence as to an essential element of the crime.

Accordingly, we REVERSE the adjudication as to the tampering with a victim or witness violation, and remand for further proceedings consistent with this opinion.

VAN NORTWTCK, ROWE, and MARSTILLER, JJ., concur.


text:
    Kenneth SERMONS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3092.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2013.
    Kenneth Sermons, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on or about October 16, 2012, in Madison County Circuit Court case number 09-33-CF, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent him in the belated appeal authorized by this opinion.

LEWIS, C.J, ROWE and MAKAR, JJ„ concur.


author: ALTENBERND, Judge.

text:
    Tina ZAFFUTO, as Personal Representative of the Estate of Robert T. Zaffuto, Deceased, Petitioner, v. ST. JOSEPH’S HOSPITAL, Respondent.
    No. 2D13-456.
    District Court of Appeal of Florida, Second District.
    Nov. 1, 2013.
    Ralph L. Gonzalez and C. Steven Yerrid of The Yerrid Law Firm, Tampa, for Petitioner.

      Jessica Cochran and Mark E. McLaughlin of Beytin, McLaughlin, McLaughlin, O’Hara & Bolin, P.A., Tampa, appearing amicus curiae, for nonparties, James Han-ner, M.D., and S.D.I. Diagnostic Imaging.
    No appearance for Respondent.
   ALTENBERND, Judge.

Tina Zaffuto, as personal representative of the estate of Robert T. Zaffuto, is attempting to appeal an order that denied a motion to amend the plaintiffs complaint “with prejudice.” It appears that everyone involved in this case in the trial court had the best of intentions, but the resulting order is extraordinarily unusual and must be quashed.

Ms. Zaffuto filed a wrongful death action alleging theories of medical negligence against several defendants, including St. Joseph’s Hospital (St. Joseph’s). After the case had been pending approximately one year, she sought to add two more defendants to the suit. Accordingly, she filed a motion to amend the complaint to add James Hanner, M.D., and S.D.I. Diagnostic Imaging (S.D.I.) as defendants.

In response to this motion, the law firm that is representing Dr. Hanner and S.D.I. in this proceeding filed a notice of appearance in the trial court on behalf of them as “potential defendants.” It filed a memorandum in opposition to the motion, arguing that the statute of limitations had run as to these two potential defendants and, thus, there was no reason to litigate the claims against them.

The trial court conducted a hearing on the motion to amend, which was attended by the attorneys for the “potential defendants.” The trial court was apparently convinced that the statute of limitations would bar any claims against the two “potential defendants.” Accordingly, it denied the motion to amend. Counsel for the “potential defendants” assisted in the preparation of the order, which denied the motion to amend “with prejudice” as to the claims against the “potential defendants.”

Ms. Zaffuto appealed the trial court’s ruling, assuming that a denial “with prejudice” was a final order. She listed the “potential defendants” as appellees. Ms. Zaffuto’s attorney briefed the case and the attorneys for the “potential defendants” filed an answer brief. The attorneys all assumed this was a proper final appeal. When the matter was set for oral argument, this court realized that the case was procedurally irregular.

Simply stated, Florida Rule of Civil Procedure 1.210(a) does not recognize any category known as “potential defendant.” The fact that a proposal to amend a complaint, if granted and served upon a person, creates an “interest adverse to the plaintiff’ does not make the person a party prior to the amendment. See Fla. R. Civ. P. 1.210(a). Likewise, a “potential defendant” does not become a “potential appel-lee” when a notice of appeal is filed, much less an actual appellee. As a result, we have concluded that this proceeding cannot be a direct appeal but must be treated as a petition for writ of certiorari. See Fla. R. App. P. 9.040(c); Hohl v. Croom Motorcross, Inc., 358 So.2d 241, 242 (Fla. 2d DCA 1978) (converting interlocutory appeal from order denying motion to file amended complaint into petition for writ of certiorari in wrongful death action). We have concluded that the only category that we can use to describe Dr. Hanner and S.D.I. is amicus curiae. Although St. Joseph’s appears to have little interest in the issue raised in this proceeding, we list St. Joseph’s as the respondent in this action because it appears to be the only remaining party in the trial court. See Fla. R. App. P. 9.020(g)(4), 9.100(b).

From a review of the transcript of the hearing on the motion to amend, it is clear that everyone wished to reach the merits of the statute of limitations defense. Procedurally if the parties and the trial court had deemed the proposed amendment filed and served and had likewise deemed the statute of limitations defense as raised in answers by Dr. Hanner and S.D.I., then the trial court could have granted a motion dismissing the amended complaint with prejudice. That order would have been an appealable final order. Unfortunately, that is not the procedure that was taken.

We conclude that the trial court did not have jurisdiction over Dr. Hanner and S.D.I., as parties, and did not have subject matter jurisdiction over any claim between Ms. Zaffuto and these two “proposed defendants.” Accordingly, it lacked the power to resolve the claim on the merits, and it departed from the essential requirements of the law when it disposed of that claim “with prejudice.”

Recognizing that the parties proceeded as they did in the trial court in an attempt to streamline the issue for the court and to avoid unnecessary expense of litigation, we are reluctant to penalize them for their professionalism. There is no question that the attorney for the proposed defendants did not prepare this order to trick Ms. Zaffuto’s attorney or to obtain any benefit from a “gotcha.” Accordingly, we quash the order that is pending in this original proceeding. However, if the parties can jointly stipulate to any necessary facts and obtain an order deeming the complaint filed, answered, and dismissed on the ground of statute of limitations, we would welcome a timely motion for rehearing that asks this court to accept the new order as the order on appeal and to return this proceeding to its original status as a direct appeal. We remind the attorneys and the trial court that an original proceeding in this court does not divest the trial court of jurisdiction, and we expressly authorize it to enter any appropriate order during our period of rehearing.

CASANUEVA and BLACK, JJ., . Concur.

      . Ms. Zaffuto subsequently settled claims with all remaining defendants except St. Joseph's.


text:
    In re Charles D. JONES.
    No. 2013-B-1112.
    Supreme Court of Louisiana.
    Sept. 13, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

11 This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Charles D. Jones, an attorney licensed to practice law in Louisiana but currently on interim suspension based upon his conviction of a serious crime. In re: Jones, 10-2047 (La.9/20/10), 44 So.3d 262.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent’s prior disciplinary history. Respondent was admitted to the practice of law in Louisiana in 1975. Since that time, respondent has been admonished or privately reprimanded on eight occasions for neglecting legal matters, failing to communicate with clients, failing to refund unearned fees, and failing to cooperate in disciplinary investigations. All of these proceedings occurred between 1988 and 1991.

Additionally, this court has considered two disciplinary matters involving respondent. In the first case, respondent neglected the legal matters of seven clients, failed to timely refund unearned fees, and failed to cooperate in disciplinary investigations. For this misconduct, we suspended respondent from the practice of law for a period of six months. Louisiana State Bar Ass’n v. Jones, 570 So.2d 1161 (La.1990) (“Jones I”). In the second case, respondent was | ¡.suspended from the practice of law for one year and one day, with six months and one day deferred, followed by a period of probation with conditions. In re: Confidential Party C.D.J., 608 So.2d 159 (La.1992) (“Jones II”).

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

UNDERLYING FACTS AND PROCEDURAL HISTORY

In April 2009, in the disciplinary board’s docket number 09-DB-023, the ODC filed formal charges against respondent arising out of two client matters. Respondent answered the formal charges, admitting some misconduct and denying other misconduct. The matter then proceeded to a formal hearing on the merits, conducted by the hearing committee over two days in February 2010.

In September 2010, the ODC filed a second set of formal charges against respondent in 10-DB-055, alleging that he had been convicted of the criminal offense of tax evasion and making and filing a false tax return. Respondent answered the formal charges and admitted his criminal conviction. This matter was submitted to a separate hearing committee solely on documentary evidence.

Thereafter, the two sets of formal charges were consolidated by order of the disciplinary board. The board subsequently filed in this court a single recommendation of discipline encompassing both sets of formal charges.

09-DB-023

Count I — The Williams Matter

In March 2002, respondent filed an employment discrimination suit on behalf of Letrina Williams in the action entitled Letrina Williams v. Atrium Hotel & Conference Center, et al., No. 02-0409 on the docket of the United States District Court for the Western District of Louisiana, Monroe Division. Respondent |Rdid not name the proper party defendant, and in March 2005, he filed an amended complaint substituting Prism Hotels in place of Atrium Hotel and Conference Center. Under the Federal Rules of Civil Procedure, respondent was required to perfect service on Prism Hotels within 120 days of filing the amended complaint, or by July 2, 2005; however, he failed to do so.

In May 2005, the federal district court issued a scheduling order setting a pretrial conference on January 5, 2006. Respondent was required to submit his proposed pre-trial order and pre-trial submissions by January 3, 2006, but he failed to timely submit any of the required documents. On January 4, 2006, respondent filed a motion to continue the January 5th pre-trial conference based upon his failure to serve Prism Hotels. The court denied the motion and required respondent to attend the pre-trial conference, noting that respondent “has had over one year to perfect service on the proper defendant.” When respondent nonetheless failed to appear at the pre-trial conference, the federal court ordered him to show cause why sanctions should not be imposed. On February 1, 2006, respondent was sanctioned $500 for failing to comply with the scheduling order.

Meanwhile, on January 26, 2006, Ms. Williams’ lawsuit was dismissed due to respondent’s failure to prosecute and serve Prism Hotels, the sole remaining defendant. On January 27, 2006, a return of service on Prism Hotels was filed into the court record. Upon learning of the dismissal of her suit from the clerk’s office, Ms. Williams filed a complaint against respondent with the ODC in April 2006.

On December 30, 2006, respondent filed a Motion and Order for Relief from Judgment seeking to reinstate Ms. Williams’ lawsuit. In support, respondent claimed that his failure to prosecute and serve Prism Hotels resulted from difficulty in determining and locating the proper defendant. Respondent also asserted that |4the demands of his work as a state legislator made it difficult for him to comply with court deadlines and to prosecute pending cases. In February 2007, the federal court denied respondent’s motion, finding that it was untimely because it was not filed until more than eleven months after service was effectuated on Prism Hotels. Moreover, the court reasoned that even if the motion had been timely filed, respondent was required to serve Prism Hotels by July 2, 2005, and his asserted difficulty in locating and serving the defendant was insufficient to excuse his failure to make service until January 2006.

The ODC alleged respondent violated the following provisions of the Rules of Professional Conduct: Rules 1.1(a) (failure to provide competent representation to a client), 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 3.2 (failure to make reasonable efforts to expedite litigation consistent with the interests of the client), 3.4(c) (knowing disobedience of an obligation under the rules of a tribunal), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

In his answer to the formal charges, respondent acknowledged that “a lack of diligence, promptness and a failure to expedite litigation may have caused or contributed to the dismissal of the underlying litigation.” However, respondent denied that he knowingly disobeyed an obligation under the rules of a tribunal or that his conduct was dishonest or prejudicial to the administration of justice. He also denied that Ms. Williams suffered significant harm as a result of his admitted misconduct.

| sCount II — The Nation Matter

Respondent represented Lee Dell Nation, Jr. in the criminal case captioned United States v. Nation, No. 02-30043 on the docket of the United States District Court for the Western District of Louisiana, Monroe Division. Mr. Nation pleaded guilty to a narcotics charge in 2003 and was subsequently sentenced to serve 235 months in prison. In March 2005, respondent filed on Mr. Nation’s behalf a Motion to Review, Modify and Reduce Sentence pursuant to 28 U.S.C. § 2255 (hereinafter referred to as a “2255 motion”). This motion was dismissed without prejudice because Mr. Nation’s appeal of his sentence was then still pending.

In July 2005, the United States Fifth Circuit Court of Appeals affirmed Mr. Nation’s conviction and sentence. Although respondent had agreed to re-file the 2255 motion in the event of an adverse ruling by the court of appeals, he failed to do so by October 4, 2006, as required by statute. Nevertheless, in response to repeated inquiries from Mr. Nation and several of his family members regarding the filing, respondent and his assistant represented that a new 2255 motion had been timely filed. Respondent did not check Mr. Nation’s file or the court docket to ensure this representation was accurate.

In January 2007, when Mr. Nation still had not received a copy of the 2255 motion from respondent, he requested that a family member contact the clerk of court’s office regarding the matter. It was at this point that Mr. Nation learned no new 2255 motion had been filed on his behalf. He then prepared and filed a pro se motion requesting equitable tolling of the one-year limitations period on the ground that respondent failed to timely file the 2255 motion as he had agreed to do and made misrepresentations regarding same. In February 2007, after learning of Mr. Nation’s pro se filing, respondent filed on behalf of Mr. Nation a Motion to Re-Urge Motion to Review, Modify and Reduce Sentence in which he acknowledged that he told Mr. Nation the new 2255 motion would be filed in | ^October 2006. Respondent also indicated that the motion had been drafted but was inadvertently not filed with the court.

Mr. Nation’s motion was referred to a federal magistrate judge for an evidentiary hearing. Following the hearing, the magistrate judge recommended that Mr. Nation be afforded equitable tolling of the limitations period for filing his 2255 motion. In her written reasons, the magistrate judge concluded that respondent had “intentionally and repeatedly misrepresented” to Mr. Nation and his family that the 2255 motion had been timely filed “without making any effort whatsoever to confirm the veracity of [these] statements.” The magistrate judge further observed that Mr. Nation, who was diligent in the pursuit of his rights under § 2255, reasonably relied on these misrepresentations, and was therefore entitled to equitable relief. The federal district judge approved and adopted the magistrate judge’s findings and granted Mr. Nation’s motion by order dated July 18, 2007.

The ODC alleged respondent violated the following provisions of the Rules of Professional Conduct: Rules 1.1(a), 1.3, 1.4, 5.3 (responsibilities regarding non-lawyer assistants), 8.4(c), and 8.4(d).

In his answer to the formal charges, respondent acknowledged that “he and his staff committed errors” in handling Mr. Nation’s 2255 motion, and that “a lack of diligence and promptness may have caused said untimely filing.” Respondent also admitted that he “did not properly communicate accurate information to the client and his family in connection with the 2255 motion, due to error,” and that he had failed to properly supervise his non-lawyer staff. However, respondent denied that his conduct was dishonest or prejudicial to the administration of justice. He 17also denied that Mr. Nation suffered significant harm as a result of his admitted misconduct.

Hearing Committee Report

As previously indicated, this matter proceeded to a formal hearing on the merits conducted in February 2010. After considering the testimony and evidence presented at the hearing, the hearing committee made detailed factual findings consistent with the underlying facts set forth above. Based upon these findings, and considering respondent’s acknowl-edgement of certain rule violations alleged in the formal charges, the committee determined respondent violated Rules 1.1(a), 1.3, 1.4, 3.2, and 3.4(c) in the Williams matter and Rules 1.1(a), 1.3, 1.4, and 5.3 in the Nation matter. The committee found no clear and convincing evidence that respondent violated Rule 8.4(c) as charged in both Counts I and II. The committee did not specifically address the alleged violation of Rule 8.4(d), other than to note respondent’s denial that his conduct violated the rule.

The committee determined respondent’s conduct in the Williams matter was not intentional, but fell “somewhere between gross negligence and knowingly committed.” Respondent acted negligently in the Nation matter. The committee found the baseline sanction for respondent’s misconduct ranges from reprimand to suspension.

In aggravation, the committee found the following factors: a prior disciplinary record, a pattern of misconduct, and substantial experience in the practice of law. The committee found the following mitigating factors are present: absence of a dishonest or selfish motive, timely good faith effort to rectify the consequences of the misconduct (as to the Nation matter only), full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, and remoteness of prior offenses. The committee also noted in [ 8mitigation that since 2008, respondent has taken a number of remedial measures to ensure the efficient management of his law office.

Under these circumstances, the committee recommended respondent be suspended from the practice of law for two years, with twenty-one months deferred, followed by a two-year period of probation with conditions.

The ODC filed an objection to the hearing committee’s determination that respondent did not violate Rule 8.4(c), and to the leniency of the sanction proposed by the committee.

10-DB-055

In January 2008, a federal grand jury indicted respondent on one felony count of tax evasion, a violation of 26 U.S.C. § 7201, and two felony counts of making and subscribing a false tax return, a violation of 26 U.S.C. § 7206(1). The indictment alleged that respondent submitted tax returns for 1999 and 2000 in which he purposely under-reported his income. He was also accused of an intricate scheme in which he allegedly converted more than $750,000 in legal fees into cashier’s checks and cash and then bought property and a certificate of deposit in order to avoid paying a substantial amount of income tax. Following a six-day jury trial in August 2010, respondent was found guilty on all counts. He was subsequently sentenced to serve 27 months in prison and was ordered to pay $305,174.05 in restitution to the Internal Revenue Service.

The ODC alleged respondent violated the following provisions of the Rules of Professional Conduct: Rules 8.4(b) (commission of a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer) and 8.4(c).

| ^Hearing Committee Report

As previously indicated, no formal hearing was held in 10-DB-055, but rather, the parties consented to submit the matter to the hearing committee solely on documentary evidence.

In its report, the committee found that, based upon his criminal conviction, respondent violated the Rules of Professional Conduct as charged in the formal charges. The committee recommended respondent be disbarred.

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

09-DB-023 & 10-DB-055

Disciplinary Board Recommendation

After reviewing the record, the disciplinary board determined that the factual findings of the hearing committees are not manifestly erroneous. Based on these findings, the board determined that respondent violated the Rules of Professional Conduct as set forth in the formal charges, except that he did not violate Rule 8.4(c) as charged in Counts I and II of 09-DB-023.

With respect to 09-DB-023, the board determined respondent violated duties owed to his client and the legal system. His actions were at least grossly negligent and perhaps even knowing, and they caused actual harm to his client and the legal system. In 10-DB-055, respondent intentionally violated duties owed to the public by failing to maintain the high standards of personal integrity upon which the public relies. His criminal conduct serves to undermine the public’s confidence in the legal profession and the integrity of officers of the court.

In mitigation, the board found the absence of a dishonest or selfish motive (as to 09-DB-023 only), timely good faith effort to rectify the consequences of the misconduct, full and free disclosure to the disciplinary board and a cooperative | inattitude toward the proceedings, imposition of other penalties or sanctions (as to 10-DB-055 only), and remoteness of prior offenses. The board found the following aggravating factors are present: a prior disciplinary record, a dishonest or selfish motive (as to 10-DB-055 only), a pattern of misconduct, and substantial experience in the practice of law.

Citing the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the applicable baseline sanction in 09-DB-023 is suspension and in 10-DB-055 is disbarment. Relying on the prior jurisprudence of this court, the board concluded that the appropriate sanction for the “misconduct in both matters combined” is disbarment. Accordingly, the board recommended respondent be disbarred.

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

DISCUSSION

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

In this consolidated matter, the record reflects that respondent failed to provide competent representation to two clients. He neglected their legal matters and failed to communicate with them in a reasonable manner. Respondent also h, failed to fulfill his obligations to a federal court and failed to adequately supervise the actions of his non-lawyer staff. Moreover, respondent was convicted of tax evasion and two counts of making and subscribing a false tax return. This conduct violated the Rules of Professional Conduct as found by the disciplinary board.

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

Taking all of respondent’s misconduct together, the applicable baseline sanction is clearly disbarment. Respondent acted knowingly in the first set of formal charges, and he acted intentionally in the second set of formal charges. Respondent’s conduct caused actual harm to his clients, the public, and the legal system. The record supports the aggravating and mitigating factors found by the board.

Under the circumstances, and particularly considering the pattern of respondent’s misconduct, we find no reason to deviate downward from the baseline sanction of disbarment. Accordingly, we conclude the board’s recommendation is appropriate, and we will order that respondent be disbarred.

DECREE

Upon review of the findings and recommendations of the hearing committees and the disciplinary board, and considering the record, it is ordered [12that Charles D. Jones, Louisiana Bar Roll number 7476, be and he hereby is disbarred, retroactive to September 20, 2010, the date of his interim suspension. His name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . The order imposing the $500 sanction against respondent also referred to two other cases pending before the federal court wherein respondent had been required to show cause why he should not be sanctioned for failing to comply with a scheduling order.

      . Ms. Williams subsequently filed a legal malpractice suit against respondent. In January 2010, the parties reached a confidential settlement agreement.

      . In subsequent proceedings in the criminal case, Mr. Nation’s term of imprisonment was reduced to 188 months based upon amendments to the federal sentencing guidelines.

      . Respondent’s conviction and sentence were affirmed in an unpublished opinion of the United States Fifth Circuit Court of Appeals dated January 25, 2012.


text:
    In re Daniel SCARBOROUGH.
    No. 2013-OB-2307.
    Supreme Court of Louisiana.
    Oct. 2, 2013.
   ORDER

| Considering the Petition for Transfer to Disability Inactive Status filed by the Office of Disciplinary Counsel,

IT IS ORDERED that Daniel Scarborough, IV, Louisiana Bar Roll number 20363, be and he hereby is transferred to disability inactive status. All disciplinary proceedings against respondent shall be deferred until such time as he resumes active status.

Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

FOR THE COURT:

/s/ Greg G. Guidry Justice, Supreme Court of Louisiana