text:
    IN RE: AMENDMENTS TO RULE REGULATING THE FLORIDA BAR 4-1.19 and Florida Family Law Rule of Procedure 12.745 (Collaborative Law Process).
    No. SC16-1685
    Supreme Court of Florida.
    May 18, 2017

      Judge Laurel Moore Lee, Chair, Family Law Rules Committee, Tampa, Florida; William J. Schifino, Jr., President, The Florida Bar, Tampa, Florida; Michael J. Higer, President-elect, The Florida Bar, Miami, Florida; Michelle R. Suskauer, President-elect Desígnate, West Palm Beach, Florida; and John F. Harkness, Jr., Executive Director, Lori S. Holcomb, Director, Division of Ethics and Consumer Protection, Elizabeth Clark Tarbert, Ethics Counsel, and Krys Godwin, Staff Liaison, The Florida Bar, Tallahassee, Florida, for Petitioner
    Robert J. Merlin of Robert J. Merlin, P.A., Coral Gables, Florida; Judge Christine Greider, Chair, Steering Committee on Families and Children in the Court, Naples, Florida; Judge Rodney Smith, Chair, Committee on Alternative Dispute Resolution Rules and Policy, Miami, Florida; Susan C. Marvin, Chief, Alternative Dispute Resolution Center, Tallahassee, Florida; and Edward G. Rubinoff of Kut-ner, Rubinoff & Moss, P.A., Coconut Grove, Florida, Responding with Comments
   PER CURIAM.

This matter is before the Court for consideration of proposed amendments to the Rules Regulating the Florida Bar (Bar Rules) and the Florida Family Law Rules of Procedure (Family Law Rules), pertaining to the collaborative law process in family law cases. We have jurisdiction. See art. V, §§ 2(a), 15, Fla. Const.

BACKGROUND

In In re Amendments to the Florida Family Law Rules of Procedure, 84 So.3d 257 (Fla. 2012), this Court considered proposed amendments to the Family Law Rules addressing the collaborative law process. As. we explained in our 2012 opinion, the collaborative law process is a contractual, voluntary, and nonadvfersarial dispute resolution process, occurring between represented parties, to resolve some family law matters. Id. at 258. Although we- commended the Family Law Rules Committee (Rules Committee) for its study of the collaborative law process, we declined to adopt the proposed rule at that time in part because there was “the possibility of legislative action addressing the use of the collaborative law process in Florida.” Id.

Since our decision, in 2016, the Florida Legislature adopted the Collaborative Law Process Act. See ch. 2Q16-93, Laws of Fla, The purpose of the Act was. to create “a uniform system of practice” for a collaborative law process in family law cases to encourage “the peaceful resolution of-disputes and the early settlement of pending litigation through voluntary settlement procedures” and to preserve-the working relationship between parties to a family law dispute. See ML § 3. The Legislature also provided that the provisions of the Act would not take effect “until 30 days after the Florida Supreme Court adopts rules of procedure and professional responsibility consistent with this act." See id. §: 8.'

. Consistent .with this charge, The Florida Bar and the Rules Committee, have jointly filed a petition requesting that the Court adopt new Bar. Rule 4-1.19 (Collaborative Law Process in Family Law) and pew Family Law Rule ’ 12.745 (Collaborative Law Process). The Florida Bar Board of Governors unanimously approved .the proposed, rules for submission to file Court. The Bar and the Rules Committee published formal notice of their intent to file a petition in The Florida Bar News and directed that comments be filed with the Court; the Court received one,comment in favor of the proposed amendments. In November 2016, we issued an order requesting that the Steering Committee on Families and Children in the Court and the Supreme Court Committee on Alternative Dispute Resolution Rules and Policy also file comments addressing the proposals. The Bar and the Rules Committee were requested to file a response to these comments.

The Court heard oral argument in this matter. At oral argument, concerns were raised about the amount of costs and fees that may be incurred in this voluntary process. To address those concerns, following oral argument, we issued an order directing the Bar and the Rules Commit tee to file an amended proposal for Bar Rule 4-1.19, or other amendments to the Rules of Professional Conduct as necessary, to include provisions requiring collaborative lawyers to inform clients considering participation in the collaborative law process as to the fees or costs the client may reasonably expect to incur, including the lawyer’s fees and reasonable fees for the neutral mental health and financial professionals who would be retained to participate in the process. The Bar and the Rules Committee submitted their amended proposal that adds subdivision (a)(8) to Bar Rule 4-1.19 as well as a corresponding comment explaining the obligation to inform the client about costs and fees, including those of all professionals.

We have fully considered the joint petition, the comments and the responses, and the amended proposal. In accordance with the Act and the Legislature’s request that the Court adopt rules of procedure and professional responsibility consistent with the Act, we adopt new Bar Rule 4-1.19 and new Family Law Rule 12.745 as revised by the Bar and the Rules Committee, with some modifications. We discuss the more significant aspects of the new rules below.

AMENDMENTS

New Bar Rule 4-1.19 (Collaborative Law Process in Family Law) outlines the professional conduct required of an attorney representing a party in the collaborative law process. Subdivision (a) (Duty to Explain Process to Prospective Client) of the rule requires a lawyer to obtain a client’s informed consent to proceed in the collaborative law process; this requires the lawyer to provide the client with sufficient information about the collaborative law process. Among the eight items listed in subdivision (a), the lawyer is required to advise his or her client as to the benefits and risks associated with the collaborative law process to resolve family law matters; other alternatives to the collaborative law process; that participation in the collaborative law process is voluntary, and the client may unilaterally terminate his or her participation for any reason; and the limitations on the lawyer’s ability to represent the client in subsequent legal proceedings if the collaborative law process is terminated. We note, in particular, that lawyers have an obligation to inform their clients of the fees or costs the client may reasonably expect to incur in the collaborative law process, including the lawyer’s fee and reasonable fees for mental health and financial professionals. This obligation is codified in Bar Rule 4-1.19(a)(8) that sets forth the obligation of the lawyer to explain the “fees and costs the client can reasonably expect to incur in the collaborative law process, including the fees of the lawyers, mental health professionals, and financial professionals.”

Also Bar Rule 4-1.19, subdivision (b) (Written Agreement Required) provides that a lawyer may not represent a client in the collaborative law process unless all lawyers and clients participating in the process have signed a written agreement. Subdivision (c) (Duty to Address Domestic Violence) provides that, before a lawyer agrees to represent a client in the collaborative law process, the lawyer must reasonably inquire whether the client has a coercive or violent relationship with another party in the family law matter; the lawyer must also make reasonable efforts throughout the process to continue to assess whether a coercive or violent relationship exists. A lawyer may not represent a party in the collaborative law process if the lawyer reasonably believes the client has a history of any coercive or violent relationship with another party unless certain criteria are met.

New Family Law Rule 12.745 (Collaborative Law Process) outlines procedures for the collaborative law process, including in instances where a family law proceeding is pending before a court and the parties elect to enter into the collaborative law process. Subdivision (b) (Collaborative Law Process) describes how the collaborative law process is initiated, how it may be concluded or terminated, and how a party participating in the collaborative law process may discharge his or her attorney or how the attorney may withdraw from representation. Additionally, subdivision (d) (Alternative Dispute Resolution Permitted) of rule 12.745 provides that the rule shall not be construed to prohibit parties from using any other permissible form of alternative dispute resolution to reach a settlement on any of the issues in the collaborative law process. Indeed, collaborative law is only one of several types of alternative dispute resolution available to parties in family law cases. See, e.g., Fla. Fam. L. R. P. 12.740 (Family Mediation); 12.741 (Mediation Rules); 12.742 (Parenting Coordination). Finally, subdivision (f) (Disqualification of Collaborative Lawyer and Lawyers in Associated Law Firm) provides that a lawyer representing a party in the collaborative law process, or any lawyer working in the same law firm, is disqualified from representing the party in a court proceeding related to the collaborative matter except in specifically identified circumstances.

CONCLUSION

Accordingly, we amend the Rules Regulating the Florida Bar and the Florida Family Law Rules of Procedure as set forth in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The comments are offered for explanation only and are not adopted as an official part of the rules. The amendments shall become effective July 1, 2017, at 12:01 a.m.

It is so ordered.

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

APPENDIX

RULES REGULATING THE FLORIDA BAR

RULE 4-1.19 COLLABORATIVE LAW PROCESS IN FAMILY LAW

(a) Duty to Explain Process to Prospective Client. A lawyer must obtain the informed consent of a prospective client in a family law matter to proceed in the collaborative law process after providing the prospective client with sufficient information about the collaborative law process, including, but not limited to, the following:

(1) the benefits and risks of the collaborative law process to resolve a family law matter;

(2) the nature and scope of the matter to be resolved through the collaborative law process;

(3) the material benefits and risks of participating in the collaborative law process;

(4) alternatives to the collaborative law process;

(5) that participation in the collaborative law process is voluntary and any client may unilaterally terminate the collaborative law process for any reason;

(6) that the collaborative law process will terminate if any participating client initiates a proceeding or seeks court intervention in a pending proceeding related to the collaborative law matter after the clients have signed the collaborative law agreement;

(7) limitations on the lawyer’s participation in subsequent proceedings imposed by family law court rules on the collaborative law process; and

(8) fees and costs the client can reasonably expect to incur in the collaborative law process, including the fees of the lawyers, mental health professionals, and financial professionals.

(b) Written Agreement Required. A lawyer is prohibited from representing a client in the collaborative process in a family law matter unless all participating lawyers and clients sign a written agreement that includes:

(1) a statement of the clients’ intent to resolve a matter through the collaborative law process under these rules; ■ ■

(2) a description of the nature and scope of the matter;

(3) identification of the lawyers participating in the collaborative law process and which client(s) they represent;

(4) that the clients will make timely, full, candid and informal disclosure of information related to the collaborative matter without formal discovery and will promptly update previously disclosed information that has materially changed;

(5) that participation in the collaborative law process is voluntary and any client may unilaterally terminate the collaborative law process for any reason;

(6) that the collaborative law process will terminate if any participating client initiates a proceeding or seeks court intervention in a pending proceeding related to the collaborative law matter after the clients have signed the collaborative law agreement; and

(7) that the clients understand that their lawyers may not represent the clients or any other person before a court in a proceeding related to the collaborative law matter except as provided by court rule.

(c) Duty to Address Domestic Violence. A lawyer must reasonably inquire whether a prospective client has a history of any coercive or violent relationship with another party in a family law matter before agreeing to represent a client in the collaborative law process and must make reasonable efforts to continue to assess whether a coercive or violent relationship exists between parties in a family law matter throughout the collaborative law process. A lawyer may not represent a client in the collaborative law process in a family law matter and must terminate the client-lawyer relationship in an existing collaborative law process in a family law matter if the lawyer reasonably believes that the lawyer’s client has a history of any coercive or violent relationship with another party in the matter unless:

(1) the client requests to begin or continue the collaborative law process; and

(2) the lawyer reasonably believes that the safety of the client can be protected during the collaborative law process.

COMMENT

The collaborative law process involves the nonadversarial resolution of disputes through voluntary settlement procedures. Florida statutes and court rules permit collaborative law to resolve disputes in family law. Lawyers engaging in the collaborative law process in family law matters must comply with legislative and court requirements regarding the process. As part of this nonadversarial and voluntary resolution of disputes, lawyers who engage in the collaborative law process in a family law matter, and any other lawyers in that lawyer’s firm, may not afterwards represent any party in any related proceeding except to request that a court approve the settlement reached during the collaborative law process or in specified emergency situations in accordance with family law court rules.

Before agreeing with the client to proceed in the collaborative law process in a family law matter, a lawyer should first consider whether a prospective client is an appropriate candidate for the collaborative law process and must provide the prospective client with sufficient information regarding the benefits and risks of the process, including the lawyer’s limitations regarding subsequent proceedings. See also rules 4-1.4 and 4-1.2. To determine whether a prospective client is a good candidate for the collaborative law process, the lawyer must inquire regarding any history of coercive or violent relationships with any other persons who would be parties to the collaborative law process in the family law matter. See also rules 4-1.1 and 4-1,2. The lawyer also must provide the prospective client with information about other reasonably available alternatives to resolve the family law matter, which may include litigation, mediation, arbitration, or expert evaluation. See also rule 4-1,4, The lawyer should assess whether the prospective client, is likely to cooperate in voluntary discovery and discuss that process with the prospective client. See rules 4-1.1 and .4-1.2. The lawyer should also advise the prospective client that the collaborative law process will terminate if any party initiates litigation or other court intervention in the matter after signing a collaborative law agreement. Id. The lawyer should discuss with the client , the fact that the collaborative law process is voluntary and any party to a collaborative law agreement may terminate the process at any time. Id. The lawyer must provide the client with information about costs .the client can reasonably expect to incioy. including fees and costs of all professionals involved. See rules 4-1.4 and 4-1.5.

An agreement between a lawyer and client to engage in the collaborative law process is a form of limited representation which must comply with all requirements of limited, scope representations, including the requirement that the client must give informed consent in writing. See rule 4-1.2(c). The agreement between lawyer and client should include the nature and scope of the matter to be resolved through the collaborative law process, the material benefits and risks to participating in the collaborative law process, and the limitations on the lawyer’s representation.

If a client agrees to participate in the collaborative law process and then terminates the process or initiates litigation regarding the dispute, the lawyer should terminate the representation. See rule 4-1.16.

FLORIDA FAMILY LAW RULES OF PROCEDURE

RULE 12.745. COLLABORATIVE LAW PROCESS

(a) Application. This rule governs all proceedings under chapter 61, part III, Florida Statutes.

(b) Collaborative Law Process.

(1)Initiating Process.

(A) A collaborative law process begins, regardless of whether a legal proceeding is pending, when the parties sign a collaborative law participation agreement.

(B) When a proceeding is pending before a court, the parties may sign a collaborative law participation agreement to seek to resolve a matter related to the proceeding. The parties shall promptly file with the court a notice of the agreement after it is signed and it shall operate as an application for a stay of the proceeding. A court in which a proceeding is stayed under this subdivision may require the parties and collaborative lawyers to provide a status report on the collaborative law process and the proceeding. The-status report may only indicate whether the process- is ongoing or concluded and no other information. The status report may not include a report, assessment, recommendation, finding, or other communication regarding a- collaborative matter. A court shall provide notice to the parties and an opportunity to be heard before dismissing a proceeding, in which a notice of collaborative process is filed, based on delay or failure to prosecute. A court may not consider a communication made in violation of this subdivision.

(2) Concluding and Terminating Process. A collaborative law process is concluded by:

(A) the resolution of a collaborative matter as evidenced by a signed record;

(B) the resolution of a part of the collaborative matter, evidenced by a signed record, in which the parties agree that the remaining parts of the matter will not be resolved in the process;

(C) a party unilaterally terminating the collaborative law process, with or without cause, by

(i) giving notice to other parties in a record that the process is ended,

(ii) beginning a contested proceeding related to a collaborative matter without the agreement of all parties, or

(iii) in a pending proceeding related to the matter:

a. initiating a pleading, motion, order to show cause, or request for a conference with the court;

b. requesting that the proceeding be put on the court’s active calendar; or .

c. taking similar action requiring notice to be sent to-the parties; or

(D) except as otherwise provided by subdivision (b)(3), a party discharging a collaborative lawyer or a .collaborative lawyer withdrawing from further representation of a party.

If a proceeding is pending before a court, the parties shall promptly file with the court notice in a record when a collaborative law process concludes. Any stay of the proceeding is lifted when the notice is filed. The notice may not specify any reason for termination of the process.

(3) Discharge or Withdrawal from Representation. A party’s collaborative lawyer shall give prompt notice to all other parties in a record of a discharge or withdrawal. If a proceeding was pending prior to the initiation of the collaborative process, the party's collaborative lawyer shall comply with the requirements of Florida Rule of Judicial Administration 2.505. Notwithstanding the discharge or withdrawal of a collaborative lawyer, a collaborative law process continues, if not later than 30 days after the date that the notice of the discharge or withdrawal of a collaborative lawyer is sent to the parties:

(A) the unrepresented party retains a successor collaborative lawyer; and

(B) in a signed record:

(i) the parties consent to continue the process by reaffirming the collaborative law participation agreement; and

(ii) the agreement is amended to identify the successor collaborative lawyer and the successor attorney signs the participation agreement.

(c) Approval of Interim Agreements. A collaborative law process does not conclude if, with the consent of the parties, a party requests a court to approve a written agreement resolving an issue in the collaborative matter while other issues remain pending.

(d) Alternative Dispute Resolution Permitted. Nothing in this rule shall be construed to prohibit the parties from using, by mutual agreement, any other permissible form of alternative dispute resolution to reach a settlement on any of the issues included in the collaborative process.

(e) Emergency Order. During a collaborative law process, a court may issue emergency orders to protect the health, safety, welfare, or interest of a party or a family or household member as defined in section 741.28, Florida Statutes.

(f) Disqualification of Collaborative Lawyer and Lawyers in Associated Law Firm.

(1) Except as otherwise provided in subdivision (f)(3), a collaborative lawyer is disqualified from appearing before a court to represent a party in a proceeding related to the collaborative matter.

(2) Except as otherwise provided in subdivisions (b)(3) and (c), a lawyer in a law firm with which the collaborative lawyer is associated is disqualified from appearing before a court to represent a party in a proceeding related to the collaborative matter if the collaborative lawyer is disqualified from doing so under subdivision (f)(1).

(3) A collaborative lawyer or a lawyer in a law firm with which the collaborative lawyer is associated may represent a par-⅛

(A) to ask a court to approve an agreement resulting from the collaborative law process; or

(B) to seek to defend an emergency order to protect the health, safety, welfare, or interest of a party, or a family or household member as defined in section 741.28, Florida Statutes, if a successor lawyer is not immediately available to represent that person, but only until the party or family or household member is represented by a successor lawyer or reasonable measures are taken to protect the health, safety, welfare, or interest of that person.

      . This comment, from Attorney Robert J. Merlin, also included minimum standards for the certification of collaborative attorneys, mental health professionals, and financial professionals, as well as standards for introductory collaborative training. We do not address those standards in this opinion as that is outside the scope of the Petition.

      . We have revised the Rules Committee's proposal throughout rule 12.745 to refer to the “court,” rather than the "tribunal."


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Anne Marie RILA, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-3917
    District Court of Appeal of Florida, Fourth District.
    [April 26, 2017]
    Andrea Montavon-McKillip of Peregrine Law, P.A., Plantation, for appellant. ■
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph D. Coronato, Jr., Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Anne Marie Rila appeals the summary denial of a rule 3.850 motion that alleged her plea was involuntary based upon mis-advice from a person posing as an immigration attorney. Because her motion states a facially sufficient claim that is not refuted by the record, we reverse and remand for further proceedings.

According to her rule 3.850 motion, Rila, a Romanian citizen, was a lawful permanent resident of the United States when she was charged with committing criminal offenses. In 2013, she entered a negotiated plea to two counts of third degree grand theft and one count of uttering a forged instrument in exchange for nine months of probation with adjudication withheld. Before entering her plea, Rila and defense counsel consulted Mathew Cruz, who pretended to be an immigration attorney. Cruz advised them that as long as the term of probation was less than one year, a plea to these charges would not result in deportation.

During the plea hearing, the trial court provided a general warning that the plea could subject her to deportation and that the court could not make any promises about whether she would be deported. Defense counsel advised the court that he had been in touch with her immigration attorney the entire time and that they were aware of the deportation consequences.

. Rila later learned that Cruz was not an attorney and his advice was wrong. In 2014, she moved, to withdraw her plea as involuntary. Fla. R. Crim. P. 3.850(a)(5). Her motion alleged that her plea subjects her to virtually automatic deportation because uttering a forged instrument is considered a crime of moral turpitude and the offense was committed within five years of admission, making her removable under 8 U.S.C. § 1227(a)(2)(A)®. She alleged that if she was correctly advised she would not have entered the plea and would havé proceeded to trial.

In support of her motion, Rila filed an affidavit from defense counsel stating: (1) he had no reason to question Cruz’s representation that he was an immigration lawyer; (2) Cruz advised them Rila would not be deportable under the terms of the plea agreement; and (3) defense counsel believed that Rila would not have entered the plea otherwise. Rila also provided evidence that Cruz was previously referred to the Florida Bar for the unauthorized practice of law.

The trial court summarily denied the rule 3.850 motion, agreeing with the state that Rila’s claim was refuted by the deportation warnings in the plea colloquy and written plea form.

A plea may be involuntary based upon affirmative misadvice about deportation consequences. Ghanavati v. State, 820 So.2d 989, 991 (Fla. 4th DCA 2002). The generic warnings Rila received about the possibility of deportation do not conclusively refute her claim that-she would not have entered the plea absent the. specific misad-vice that she received from a non-lawyer posing as an immigration attorney. See O’Neill v. State, 107 So.3d 1133 (Fla. 2d DCA 2012).

Rila’s rule 3.850 motion is facially sufficient and the record does not conclusively refute her allegations. As a result, we reverse the trial court’s summary denial-and remand for further proceedings.

Reversed and remanded.

Damoorgian, Conner and Klingensmith, JJ., concur.


author: Warner, J.

text:
    Andres MORERA, Appellant, v. WASTE MANAGEMENT INC. OF FLORIDA, a Florida corporation, Twin Lakes Land Reclamation, Inc., a Florida corporation, Waste Collection, Inc., a Florida corporation, and GL Staffing Services, Inc., a Florida corporation, Appellees.
    No. 4D14-3135
    District Court of Appeal of Florida, Fourth District.
    [May 17, 2017]

      Roy D. Wasson of Wasson <& Associates, Chartered, Frank L. Labrador and Mary Margaret Schneider of Demahy, Labrador, Drake, Victor & Cabeza, and Jose Manuel Francisco, Miami, for appellant.
    Steven H. Osber and Emily A. Thomas of Kelley, Kronenberg, P.A., Fort Lauder-dale, for appellees Waste Management Inc. of Florida and GL Staffing Services, Inc.
   ON MOTION FOB REHEARING

Warner, J.

We deny the motion for rehearing but republish the opinion to correct a clerical error.

We affirm the final summary judgment in favor of defendants/appellees Waste Management Inc. of Florida and GL Staffing Services, Inc., in a suit for personal injuries. The trial court found that Waste Management had immunity from appellant’s claims under Florida’s Worker’s Compensation Act because it was acting as appellant’s “special employer.” We conclude that final summary judgment was properly entered because the record conclusively shows that Waste Management was immune from liability pursuant to section 440.11(2), Florida Statutes (2010), as appellant was an employee of Waste Collections, a help supply services company, as defined in Standard Industry Code Industry Number 7363 of the U.S. Department of Labor Standard Classifications. Although appellant argues on appeal that he should be considered as employed by a facilities support management service, defined in a separate standard, he did not make this argument to the trial court. Therefore, it is not preserved. See Pensacola Beach Pier, Inc. v. King, 66 So.3d 321 (Fla. 1st DCA 2011).

As to GL Staffing Services, appellant had filed suit against it for intentional conduct and negligent hiring, among other claims, based upon the conduct of worker Juarez, who was operating the conveyor belt at the time appellant was injured and whom appellant claimed was employed by GL. If GL did not employ Juarez, then it had no liability to appellant. On summary judgment, the evidence presented, including wage receipts and other documents, showed that Juarez was employed by Waste Collections, thus making him a co-employee of appellant. There was no evidence presented that GL employed Juarez and was thus in any way liable. The trial court did not abuse its discretion in refusing to consider Juarez’s partially completed deposition, during which, appellant claimed, Juarez had testified he was a GL employee, not a Waste Collection employee. The deposition was cut short because of Juarez’s transportation problems, and the parties were unable to locate him to complete the deposition. The deposition was taken prior to GL becoming a party to the suit, and no party with the same interest as GL was present. To use a deposition on the authority of Florida Rule of Civil Procedure 1.330(a), the party against whom it is offered must have been “present or represented at the taking of the deposition or who had reasonable notice of it[.]” Moreover, as we read the excluded deposition, Juarez did not say that he was employed by GL, but merely that GL sent him to the job site. The conclusive evidence of wage receipts and other documents show that Juarez was employed by Waste Collection, the help services contractor, and not GL. Therefore, the trial court did not err in granting summary judgment.

Affirmed.

Gerber and Kuntz, JJ., concur.

      . Standard Industry Code Industry Number 7363 is incorporated through section 440.11(2), Florida Statutes, which provides:
      The immunity from liability described in subsection (1) shall extend to an employer and to each employee of the employer which utilizes the services of the employees of a help supply services company, as set forth in Standard Industry Code Industry Number 7363, when such employees, whether management or staff, are acting in furtherance of the employer's business. An employee so engaged by the employer shall be considered a borrowed employee of the employer, and, for the purposes of this section, shall be treated as any other employee of the employer.
      § 440.11(2), Fla. Stat.


author: LOGUE, j.

text:
    ANNEX INDUSTRIAL PARK, LLC, Appellant, v. CITY OF HIALEAH, Appellee.
    No. 3D16-1536
    District Court of Appeal of Florida, Third District.
    Opinion filed April 12, 2017.
    Armas Bertrán Pieri, and J. Alfredo De Armas, Sarah J. Marks, and Eduardo E. Bertrán, for appellant.
    Gaebé, Mullen, Antonelli & DiMatteo, and Elaine D: Walter and Mark R. Anto-nelli, for appellee.
    Before SALTER, EMAS, and LOGUE, JJ.
   LOGUE, j.

, Annex Industrial Park, LLC, appeals the trial court’s order dismissing its amended third-party complaint against the City of Hialeah and denying its ore tenus motion for leave-- to amend. We reverse.

Annex owns'a parcel of land in Hialeah, Florida, located north of Northwest 138 Street and south of Northwest 142 Street. In the underlying suit, a neighbor sued Annex for trespass. But according to Annex, it was landlocked and the only way to access its land was via the neighbor’s property, In its third-party complaint against the City, Annex alleged that it became landlocked after it deeded certain portions of the property to the City, and Miami-Dade County ’and the ■ City then demolished the bridge that Annex used to access its property. Annex alleged that it transferred the portions of its property in reliance on the City’s representations that Annex would be able to access its property by way of a new bridge and road.

The City initially moved to dismiss the lawsuit, but the parties agreed that Annex would amend the third-party complaint. Annex then filed its amended third-party complaint against the City, which included counts for negligent misrepresentation, fraudulent inducement, fraudulent misrepresentation, and inverse condemnation. The City filed a new motion to dismiss. At the hearing on the motion, Annex made an ore tenus motion to amend the amended third-party complaint. However, the trial court dismissed the amended third-party complaint with prejudice “for the reasons set forth within the [City’s] ... Motion to Dismiss,” and it denied the ore tenus motion to amend.

We review the trial court’s order denying leave to amend for abuse of discretion. Grove Isle Ass’n, Inc. v. Grove Isle Assocs., LLLP, 137 So.3d 1081, 1089 (Fla. 3d DCA 2014). As set forth in Florida Rule of Civil Procedure 1.190(a), “[l]eave of court [to amend a pleading] shall be given freely when justice so requires.” While our courts have recognized that there is no “magic number” as to the number of amendments that should be allowed, under the facts of this case, the trial court should have afforded Annex the opportunity to amend its first amended complaint, particularly in light of the fact that the complaint had been amended only once. “Leave to amend should not be denied unless the privilege has been abused or the complaint is clearly not amendable.” Osborne v. Delta Maintenance and Welding, Inc., 365 So.2d 425, 427 (Fla. 2d DCA 1978). Accordingly, we reverse the trial court’s dismissal with prejudice of the amended third-party complaint and remand with instructions that the trial court permit Annex to amend.

Reversed and remanded.

      . The motion to dismiss alleged the following bases for dismissal with prejudice: 1) failure to assert a claim for indemnity, contribution, or subrogation; 2) the Statute of Frauds; 3) failure to state a cause of action and/or statute of limitations; and 4) failure to join an indispensable party, Miami-Dade County.


author: PER CURIAM.

text:
    Alan F. COX, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-1576
    District Court of Appeal of Florida, First District.
    Opinion filed April 18, 2017

      Alan F. Cox, pro se, for Appellant.
    Pamela Jo Bondi, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Alan F. Cox, seeks review of the denial of his motion seeking jail credit pursuant to Rule 3.801, Florida Rules of Criminal Procedure, positing two grounds for reversal, one of which requires a remand to determine whether Cox’s time incarcerated in a Walton County jail is creditable to his sentence for violating probation on charges arising in Okaloosa County. We otherwise affirm.

In 2007, Cox was convicted of possession of a firearm by a felon and culpable negligence arising in Okaloosa County, and sentenced to state prison to be followed by probation. On the same day in 2010 that he was released from state prison, he purchased a riñe while on his way to report to his Okaloosa County probation officer, but was intercepted and arrested without a warrant in Walton County on a new felony charge. His probation officer, who went to the scene, effectuated a warrantless arrest on the probation violation. After federal authorities assumed prosecution and incarceration of Cox for the new charge, the state dropped prosecution of the new charge, but following completion of his federal sentence, Cox was incarcerated in state prison for the probation violation.

At issue is Cox’s motion seeking jail credit against his Okaloosa County sentence for his time spent in Walton County jail after his warrantless arrest while on probation until his transfer to federal custody, which the trial court denied. Because Okaloosa County had filed a detainer after Cox’s warrantless arrest and served him with a paper warrant when he returned to Okaloosa County, the trial court determined that it was at that later time when Cox’s jail sentence began. On this point, Williams v. State, 4 So.3d 728 (Fla. 5th DCA 2009), is instructive. There, like here, the defendant was on probation in one county, Marion County, when she was arrested in another, Seminole County, for committing a new law offense. Upon returning to Marion County to answer to the probation violation, she sought jail credit for the time spent in jail in Seminole County. The trial court denied the motion, finding the appellant had not actually been arrested until after being returned to Marion County pursuant to a paper warrant served at that time. The Fifth District reversed, highlighting that the appellant had actually been arrested in Seminole County via a warrantless arrest for the Marion County probation violation, which the trial court may have overlooked. Id. at 729-30; see also Parsons v. State, 16 So.3d 317, 317 (Fla. 2d DCA 2009) (reversing denial of motion for jail credit where record did not conclusively refute the appellant’s claim that he did not receive all the credit he was due from the date of his warrantless arrest in county of new law offense); Svenson v. State, 16 So.3d 1019, 1019 (Fla. 5th DCA 2009) (reversing and remanding for trial court to attach records that conclusively refuted the appellant’s claim that he did not receive all the jail credit for the period of time he spent in a Seminole County jail before being transferred to Orange County for sentencing in a VOP proceeding); Perez v. State, 8 So.3d 1152 (Fla. 5th DCA 2009) (same).

Collectively, these cases illustrate that a warrantless arrest for a violation of probation may entitle a defendant to jail credit in the violation of probation case even if the defendant is arrested in a different county on a new law offense and held in that county’s jail. Because the trial court appears to have overlooked this legal point, we reverse the denial of Cox’s second claim and remand for the trial court to reconsider the matter.

AFFIRMED in part, REVERSED AND REMANDED in part.

MAKAR, KELSEY, and WINSOR, JJ., CONCUR.

      . Marion County's records indicate that on remand the trial court awarded Williams the credit she sought.


author: Gerber, J.

text:
    F.F., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-3254
    District Court of Appeal of Florida, Fourth District.
    April 19, 2017

      Carey Haughwout, Public Defender, and Virginia Murphy, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   Gerber, J.

The juvenile appeals from the circuit court’s finding of guilt for which the court withheld an adjudication of delinquency. The juvenile argues the court erred in two respects: (1) by denying the juvenile’s motion for judgment of dismissal based on insufficient evidence; and (2) by assessing a teen court cost where state law does not permit a court to assess that cost when adjudication is withheld in a juvenile case.

On the first argument, we affirm without further discussion. On the second argument, we reverse. Section 938.19, Florida Statutes (2015), states, in pertinent part:

(1) ... [I]n each county in which a teen court has been created, the board of county commissioners may adopt a mandatory court cost to be assessed in specific cases by incorporating by reference the provisions of this section in a county ordinance....
(2) A sum of up to $3 shall be assessed as a court cost in the circuit and county court in the county against each person who pleads guilty or nolo contendere to, or is convicted of, regardless of adjudication, or adjudicated delinquent for a violation of a criminal law, a delinquent act, or a municipal or county ordinance, or who pays a fine or civil penalty for any violation of chapter 316....

(emphasis added).

Broward County has created a teen court, for which a $2 teen court cost may be assessed under section 938.19’s authority. However, applying section 938.19(2)’s plain language, because the circuit court did not adjudicate the juvenile as delinquent, the court could not assess the teen court cost upon the juvenile. Cf. P.R. v. State, 183 So.3d 1163, 1165 (Fla. 4th DCA 2016) (“[Cjase law establishes that statutory reference to a juvenile who has been adjudicated delinquent does not encompass a juvenile for whom adjudication has been withheld.”) (citations omitted); R.F. v. State, 42 So.3d 333, 335 (Fla. 2d DCA 2010) (‘We note that effective July 1, 2007, the legislature amended section 939.185 to apply specifically to an adjudication of delinquency. However, the amended statute does not provide for the imposition of the cost when the court withholds adjudication of delinquency.”) (internal citation omitted).

The state argues that the court could assess the teen court cost upon the juvenile pursuant to the Broward County ordinance which, according to the state, authorizes the assessment of a teen court cost upon juveniles whose adjudications are withheld. The Broward County ordinance states, in pertinent part:

A sum of Two Dollars ($2.00) shall be assessed as a court cost in' the Circuit and County Court in Broward County against each person (i) who is convicted of, or pleads guilty or nolo contendere (no contest) to, violation of a criminal law, a delinquent act, or a municipal or county ordinance, regardless of whether adjudication is withheld-, (ii) who pays a fine or civil penalty for any violation of Chapter 316, Florida Statutes, the Florida Uniform Traffic Control Law; or (iii) who is adjudicated delinquent.

Broward Cnty. Ord. No. 2013-20, § 1, 4-9-13, Sec. 10-5 (emphasis added).

We disagree with the state’s argument. Although the Broward County ordinance's organized differently than section 938.19(2), we interpret the plain meaning of both section 938.19(2) and the Broward County ordinance to mean the same thing—a court cannot assess the teen court cost upon a juvenile unless the , court has adjudicated the juvenile as delinquent.

Even if the state’s argument is correct that the Broward County ordinance authorizes the assessment of the teen court cost upon a juvenile whose adjudication of delinquency is withheld, we would be compelled to reverse the assessment of the teen court cost. In Thomas v. State, 614 So.2d 468 (Fla. 1993), our supreme court held: “While a municipality may provide a penalty less severe than that imposed by a state statute, an ordinance penalty may not exceed the penalty imposed by the state.” Id. at 470 (emphasis added; citation omitted). Thus, if the Bro-ward County ordinance authorizes the assessment of the teen court cost upon a juvenile whose adjudication of delinquency is withheld, such a penalty would exceed the penalty imposed by section 938.19(2), which requires an adjudication of delinquency.

Based on the foregoing, we affirm the circuit court’s finding of guilt and withhold of adjudication of delinquency, but reverse the assessment of the teen court cost. We remand for the court to correct its disposition order accordingly.

Affirmed in part, reversed in part, and remanded for correction of disposition order.

Taylor and Klingensmith, JJ., concur.


author: LAMBERT, J.

text:
    Anderson Paul HARRIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-1310
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 21, 2017

      James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Anderson Paul Harris, Cocoa, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Nora Hutchinson Hall, Assistant Attorney General, Daytona Beach, for Appellee.
   LAMBERT, J.

Anderson Paul- Harris appeals from an order revoking his probation and the resulting judgment and sentence imposed following a bench trial. We affirm the revocation of probation without further comment. However, we reverse the sentence because the trial court erred by sentencing Harris to a greater term of incarceration than the suspended portion of his original true split sentence.

In October 2008, Harris pleaded guilty to burglary of a dwelling and was sentenced to serve 132.3 months in prison, with the last 48 months of his sentence suspended on the condition that Harris successfully complete 48 months of probation. Harris served the incarcerative portion of this original sentence and was released, but he was later alleged to have violated his probation. Harris denied the allegations, but following a non-jury trial, the court found that Harris had willfully and materially violated his probation. The court thereafter revoked Harris’s probation and sentenced him to serve 180 months in prison.

Harris argues on appeal that because his original sentence in 2008 was a “true split sentence,” the trial court was precluded from later sentencing him to more than the remaining balance of the suspended portion of the original sentence. We agree with Harris that his original sentence was a “true split sentence,” which the Florida Supreme Court has explained “is a prison term of a number of years with part of that prison term suspended, contingent upon completion on probation of the suspended term of years.” Gibson v. Fla. Dep’t of Corr., 885 So.2d 376, 381 (Fla. 2004) (quoting Eldridge v. Moore, 760 So.2d 888, 889 n.1 (Fla. 2000)).

Harris is also correct that once the trial court decided to revoke his probation, it was limited to sentencing Harris only up to the full original sentence of incarceration (132.3 months). See Boone v. State, 967 So.2d 999, 1001 (Fla. 5th DCA 2007) (“[WJhen a sentencing court imposes a true split sentence, the judge has effectively sentenced the defendant in advance for a probation violation and is not later permitted to change his or her mind. Upon revocation of probation, the court may not order the defendant incarcerated for a period exceeding the suspended portion because to do so would be a violation of the double jeopardy clause.” (alteration in original) (quoting Mack v. State, 823 So.2d 746, 748 n.3 (Fla. 2002).)).

Accordingly, we affirm the order revoking probation, reverse the sentence, and remand for resentencing for a term that does not exceed the original 132.3 months’ imprisonment, with credit for prison and jail time previously served. See Bracero v. State, 14 So.3d 1058, 1059-60 (Fla. 2d DCA 2009) (citing Pressly v. Tadlock, 968 So.2d 1057, 1058 (Fla. 2d DCA 2007)). If Harris qualifies, counsel shall be appointed to represent Harris at the resentencing.

AFFIRMED in part; REVERSED in part; and REMANDED for resentencing.

SAWAYA and ORFINGER, JJ„ concur.


text:
    Eric MUNOZ, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-154
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 21, 2017
    Rehearing and Rehearing En Banc Denied May 24, 2017
    Eric Munoz, Crawfordville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Samuel A. Perrone, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Eric Munoz (the defendant) files a petition, alleging ineffective assistance of appellate counsel. Because the defendant’s sentence is illegal and appellate counsel was ineffective for failing to file a motion challenging the sentence, pursuant to Florida Rule of Criminal Procedure 3.800(b), we grant the petition, in part.

The defendant was convicted and sentenced on multiple counts of delivery of cocaine within 1000 feet of a school and delivery of cannabis within 1000 feet of a school. The court imposed a general sentence of fifteen years in the Department of Corrections followed by ten years’ probation on all counts.

The defendant filed this petition which included allegations that appellate counsel was ineffective for failing to: 1) preserve and argue an illegal general sentence, and 2) argue that certain of the sentences exceed the statutory maximum. The State properly concedes that the defendant was entitled to receive relief on both claims.

The sentence on all the counts is an illegal general sentence. See Inclima v. State, 570 So.2d 1034 (Fla. 5th DCA 1990) (finding sentence of twelve years’ incarceration followed by eight years’ probation to be a prohibited general sentence and in excess of statutory maximum where total time exceeded statutory maximum where counts involved combination of first and second-degree felonies).

In addition, the general sentence is illegal for the delivery of cannabis convictions, as it exceeds the statutory maximum. A sentence in which the incarcera-tive portion and the probationary portion, when combined, exceed the statutory maximum is an illegal sentence. Wiskusky v. State, 707 So.2d 1187 (Fla. 2d DCA 1998). The three counts of delivery of cannabis within 1000 feet of a school are second-degree felonies punishable by up to fifteen years in prison. §§ 775.082(3)(c), 893.13(1)(c)2, Fla. Stat. (2013). Accordingly, we grant the petition in part and remand for resentencing. We deny the defendant’s other claims for relief.

DENIED in part; GRANTED in part; REMANDED for resentencing.

PALMER, EVANDER, and EDWARDS,JJ., concur.


author: SALTER, J.

text:
    MIAMI HERALD MEDIA COMPANY and WPLG, Inc., Petitioners, v. In Re: STATE of Florida vs. Kaheem Arbelo, et al., Respondents.
    No. 3D17-79
    District Court of Appeal of Florida, Third District.
    Opinion filed April 26, 2017.

      Holland & Knight LLP, and Sanford L. Bohrer and Scott D. Ponce; Mitrani Ry-nor, et al., and Karen Williams Kammer, P.A., for petitioners.
    Pamela Jo Bondi, Attorney General and Jonathan Tanoos, Assistant Attorney General, for respondent State of Florida; Scott W. Sakin (Fort Lauderdale), for respondent Desiray Strickland; Eugene Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, and Philip L. Reizenstein, Assistant Regional Counsel, for respondent Kaheem Arbelo; Lane Abraham, for respondent Joseph Cabrera; Carlos J. Martinez, Public Defender, and John Eddy Morrison, Assistant Public Defender, for respondent Jonathan Lucas.
    Before LAGOA, SALTER and LOGUE, JJ.
   SALTER, J.

Two media intervenors, Miami Herald Media Co. and WPLG, Inc., petition for expedited review of four trial court orders denying access to certain records and to one forthcoming pretrial hearing in a high-profile murder case. We deny the petition on the merits, finding that the trial judge’s orders were entered only after she carefully considered the record and applicable law. The trial court granted many of the requests for records made by the media intervenors, but it is not our role or right to re-weigh the trial court’s assessment of the facts underlying her conclusion that restrictions on access to other pretrial discovery and to an Arthur hearing are necessary in this case to prevent substantial prejudice to the defendants.

I. Standard of Review

This case is governed by Florida Rule of Appellate Procedure 9.100(d). Our standard of review is the standard we apply regarding original petitions for certio-rari. Florida Freedom Newspapers, Inc. v. McCrary, 520 So.2d 32, 33 (Fla. 1988) (affirming district court order, which reviewed the media petition under the certio-rari standard of review); Lake v. State, 193 So.3d 932, 933 (Fla. 4th DCA 2016) (denying a petition for review of a pretrial order refusing to close court proceedings because the court did not depart from the essential requirements of law); Times Publ’g Co. v. State, 903 So.2d 322, 327 (Fla. 2d DCA 2005) (trial court order denying public access to discovery materials relating to a criminal prosecution reviewed for a departure from the essential requirements of law).

With respect to the trial court’s findings of fact in ruling on the petitioners’ motions for media access, we will defer to the findings if supported by competent, substantial evidence. The specific findings that closure is essential to preserve the defendants’ rights, and that no reasonable alternatives exist, must be articulated in a written ruling or in “the transcripts of discussions held on the relevant closure issues.” Morris Publ’g Grp., LLC v. State, 136 So.3d 770, 775 n. 4 (Fla. 1st DCA 2014).

II. Analysis

A. Balancing Rights Today: Social Media vs. Press and Television

The media intervenors’ motions in the trial court required a balancing of the defendants’ due process right to a fair trial in Miami-Dade County, where the charged offenses allegedly were committed, Art. I, § 16(a), Fla. Const. (1968), and the rights of the public and media to access records under Chapter 119, Florida Statutes (2016), and to observe in-court proceedings under Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980); Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979).

These competing rights were addressed by the Supreme Court of Florida in Miami Herald Publishing Co. v. Lewis, 426 So.2d 1 (Fla. 1982). Lewis adopted a “three-pronged test” in assessing such cases, and it carefully differentiated between pretrial proceedings in criminal cases and the actual trials of such cases. Importantly, the present case involves demands for information revealing the substance of a confession (exempt from disclosure under section 119.071(2)(e), Florida Statutes (2016), as specifically found by the trial court) and for other pretrial discovery materials. See Lewis, 426 So.2d at 5. The orders below and the petition here do not require us to address the higher constitutional rights of access to the courtroom and case-related records applicable to a trial.

The “three-pronged test” established in Lewis and applicable to a “closure of a pretrial hearing” considers whether:

1. Closure is necessary to prevent a serious and imminent threat to the administration of justice;
2. No alternatives are available, other than change of venue, which would protect a defendant’s right to a fair trial; and
3. Closure would be effective in protecting the rights of the accused, without being broader than necessary to accomplish this purpose.

Id. at 3.

The trial court received evidence and argument on each of these prongs, and rendered findings on them on the record and in her orders. A critical finding, supported by the record in the case, is her determination regarding the likelihood of prejudicial pretrial publicity:

This Court finds that the instant case has attracted extraordinary media interest and that the Defendants’ rights to receive a fair trial by jury, uninfluenced by matters or persons outside the courtroom, necessitate for this Court to deny access to the Media, of certain portions of discovery, at this time. Additionally, the denial of access in this case is not absolute, but only temporary. Once the danger of prejudice has dissipated, discovery material will be made available.

First Interim Order (Nov. 8, 2016), p. 3.

“Extraordinary media interest” today is a far cry from pretrial publicity as it existed at the time of Lewis, Richmond Newspapers, Inc., and Gannett Co. Social media and the dissemination of inflammatory images and incidents at the speed of light (“going viral” rather than reaching an audience in a 24-hour news cycle) have grown exponentially. “This level of media saturation exposes a larger number of prospective jurors to potentially prejudicial information about more upcoming trials than ever before in history, making it more difficult to select impartial jurors for trial and to maintain their impartiality during trial.”

The media intervenors’ motions and briefs understate the horrific allegations that have already been disclosed and have apparently honed the media’s appetite for more. The allegations include claims that a student in a federal job training program used a machete to kill the teenaged victim (also a student in the program); that other students in the training program participated in the homicide; and that two of the student participants had sex next to the grave in which they buried the victim. The State has filed a notice of intention to seek the death penalty against one of the defendants.

The arrest reports and video released of one defendant, Ms. Strickland, circulated via traditional media and social media, appearing extensively in Miami-Dade County, in out-of-state tabloids, in El Salvador, and in Europe. When the trial court released videotape of Ms. Strickland’s statement in its entirety in the First Interim Order—based on a determination that it was not a confession and did not contain information revealing the substance of a confession—the record reflected, and the trial court found, that “widespread adverse publicity immediately resulted from its release, in local as well as numerous internet websites.”

The case law on pretrial publicity often addresses such publicity in connection with a motion to change venue. In doing so, the Supreme Court of Florida has held that “pretrial publicity must be examined with attention to a number of circumstances, including (1) when the publicity occurred in relation to the time of the crime and the trial; (2) whether the publicity was made up of factual or inflammatory stories; (3) whether the publicity favored the prosecution’s side of the story; (4) the size of the community exposed to the publicity; and (5) whether the defendant exhausted all of his peremptory challenges in seating the jury.” State v. Knight, 866 So.2d 1195, 1209 (Fla. 2003) (citations omitted). Excluding element (5), because the case at hand involves pretrial issues rather than consideration at or after trial, element (1) is concerning because each iteration of publicity occurs closer to the ultimate trial of the case. Element (2) is particularly concerning, because (and as the trial court found), the images and video are unquestionably “inflammatory.” As to element (3), the images and information clearly favor the prosecution, because the pretrial release of purported videotaped confessions could cause prospective venire persons to prejudge guilt—and yet part or all of the videotapes might later be excluded for reasons not yet presented to, or ruled upon, by the trial court. As to element (4), the size of Miami-Dade County (a population of approximately 2.6 million residents, though the jury pool is obviously a subset of that number) may mitigate some of the concerns regarding the effects of pretrial publicity, but the parties have provided no evidence relating to the effects of social media on this factor.

A recent law review article, however, has surveyed empirical studies which have found that:

[Cjertain types of pretrial publicity have a statistically significant prejudicial effect on juries. Examples include the following: information regarding a prior criminal record of the accused, a confession of the accused (even if retracted), results of tests implicating the accused, inadmissible incriminating evidence, and statements regarding the character of the accused. Such information has a cumulative effect: the more of it an individual receives, the more likely she is to adjudge the accused guilty.

Tarkington, supra note 5, at 1917-18 (internal footnotes omitted).

Such studies also conclude that “emotional pretrial publicity (meaning publicity arousing public passion but with no incul-patory information, such as graphic crime scene pictures) has strong prejudicial effects even when completely irrelevant to determining the guilt of the accused.” Id. (internal footnotes omitted). The record in the present case includes precisely such “emotional” or “graphic” but irrelevant information and images. The speed of dissemination and the high percentage of likely jurors with access to social media and the internet also support the trial judge’s concern.

B. Courtroom Closure for the Arthur Hearings

The seven-page Closure Order (January 3, 2017) and the hearing on the defendants’ closure motions carefully addressed the three-pronged test established in Lewis. The court correctly observed at the outset that evidence presented by the State during the Arthur hearing “may include previously precluded evidence that has been sealed by this Court’s previous Interim Orders.” The media intervenors’ petition asserts that the trial court ordered closure for the hearing “[without citation to any supporting authority, record evidence, empirical studies, or expert witness testimony,” but that characterization is belied by the record.

First, the trial judge reviewed many of the videos, images, and documents in contention, not once, but twice. Because she directed the release of several videotapes with specific redactions of portions held exempt under section 119.071(2)(e), she ordered the State to provide the redacted materials to the Court for a further in camera review to be certain that her instructions had been followed; only then did she approve the release of the items.

Second, the trial judge’s four orders— three interim orders on discovery, and a separate order regarding closure for the Arthur hearing—are hardly “without citation to any supporting authority.” The First Interim Order, for example, addresses section 119.071(2)(e), the Lewis case, and Times Publishing Co. v. State. The Closure Order discusses the burden on the State and the type of evidence that might be presented during the Arthur hearing, and assesses the balancing required under each of the three prongs of Lewis. The trial judge found that “confessions or admissions by a defendant are blatantly prejudicial information of the type readers or viewers could not reasonably be expected to shut from sight,” citing Skilling v. United States, 561 U.S. 358, 382-83, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010). She considered and rejected as distinguishable (and non-binding) three circuit court opinions provided by the petitioners.

Finally, as to evidentiary support, the closure order correctly observes that the court had before it “evidence of extensive local, national and international print and broadcast media coverage of the instant case.” The media petitioners did not- question or object to the sensational print and online stories and images from Florida, England, Ireland, Iceland, El Salvador and other sources as submitted by the respondents. These, materials support the court’s finding that “there has been extensive and pervasive local,- national and international print, broadcast and media coverage of this case. The extensive -and pervasive -media coverage also exists worldwide through the internet.”

Nor does Lewis oí any other Florida case suggest that a trial court must consider expert testimony or empirical studies before (1) concluding that closure of a pretrial hearing is necessary to prevent a serious and imminent threat to the administration of justice, (2) evaluating the availability of alternatives to closure (other than a change of venue), or (3) considering limitations to the breadth of the closure order. The Closure Order is a temporary ruling subject to reconsideration as tó subsequent hearings and the trial itself. The Closure Order carefully summarized the evidence, applicable legal authorities, and legal reasoning' behind the court’s ruling on the petitioners’ motions for access, and the court did not depart from the essential requirements of law.

C. The Three Orders Regarding Discovery Materials -

The petitioners havé. ignored the trial court’s rulings in their' favor with respect to most of their requests. Regarding crime scene photographs, in the Third Interim Order the court ordered the release of 602 of 658 photographs, with only 56 to be placed under seal. Of the six videotaped statements addressed in the Second Interim Order, only two were to remain fully sealed. Four of the videotapes were directed to be redacted in part, with the balance of those videotapes to be provided to the petitioners after the court reviewed the redacted copies. Of 29 categories of discovery recapped and ruled upon in the Third Interim Order, all of the items in 13 of the categories were directed to be released to the petitioners; many of the items in seven other categories were directed to be released to the petitioners; and all items in only eight of the categories were ordered to remain under seal (in five of those categories, sealed only “until time of trial”). The trial court’s attention to each individual discovery item, and the redaction of only limited sections of the videotapes, reflects careful adherence to the demands of Lewis, section 119.071(2)(e), and the other authorities considered in the First Interim Order.

Following our review of the petitioners’ requests, the records themselves, and the trial court’s analysis, we find no departure from the essential requirements of law. We thus deny the petition as to the three orders regarding the discovery materials.

III. Conclusion

The brief for one of the respondents characterizes the facts of the underlying murder as “tabloid-ready,” and that has been proven by the excerpts of publicity placed into the record by the defendants/respondents. A Miami Herald online article about the case reports that “[t]he arrest report reads like a scene from the classic novel Lord of the Flies,” and refers again to the “bloody scene.” These circutn-stances could not be ignored as the trial court reviewed inflammatory images and sought to assure the respondents’ constitutional right to a fair trial in Miami-Dade County.

Petition denied.

      . State v. Arthur, 390 So.2d 717 (Fla. 1980). An Arthur hearing requires the State to present evidence that the proof is evident, or presumption great, of a defendant's guilt in order to support pretrial detention of the defendant. Pertinent to the present case, such evidence at the pretrial Arthur hearing may include (for example) alleged videotaped confessions or statements of the defendants, videotaped statements by witnesses, investigative reports, and crime scene evidence.

      . All of the authorities in this paragraph were addressed by the trial court in the "First Interim Order on Defendants’ Joint Motion to Preclude Public Access to Discovery,” and that order was also referred to in the Third Interim Order challenged in the petition.

      . Nicole L. Waters, Paula Hannaford-Agor, Jurors 24/7: the Impact of New Media on Jurors, Public Perceptions of the Jury System, and the American Criminal Justice System, National Center for State Courts, (2012) at 1, http://www.ncsc-iurystudies.org/=/media/ Microsites/Files/CJS/WhatWeDo/Jurors-24-7-RBV011S12.ashx (last visited April 12, 2017).

      . Order on Defendants’ Motion to Close Courtroom for Arthur Hearings, Jan. 3, 2017, at 5 ("Closure Order”).

      . Margaret Tarkington, Lost in Compromise: Free Speech, Criminal Justice, and Attorney Pretrial Publicity, 66 U, Fla. L. Rev. 1873 (2014) ("Tarkington”), Although the article addresses the limitations on pretrial publicity by attorneys, it surveys research, empirical studies, and meta-analytic reviews regarding the effects of negative pretrial publicity on juries.

      . Petition at 1.

      . First Interim Order at 4.

      . 827 So.2d 1040 (Fla. 2d DCA 2002).

      . State v. Lopez, 44 Med. L. Rptr. 1664, 2016 WL 3943779 (Fla. 17th Cir. Ct. 2016); State v. Montes, 42 Med. L. Rptr. 2140 (Fla. 17th Cir. Ct. 2014); and Florida v. Wuornos, 19 Med. L. Rptr. 1993 (Fla. 7th Cir. Ct. 1991).

      . Items in the remaining category (number 9) were purported downloads from a cellular phone that could not be retrieved by the court’s information technology resources, as of the time the Third Interim Order was entered. The court denied the motion for release as to that category without prejudice due to the technical problems.


author:
LEWIS, J.
      WOLF, J.,

text:
    U’Dreka ANDREWS, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D16-733
    District Court of Appeal of Florida, First District.
    Opinion filed May 2, 2017.

      Michael Ufferman, Michael Ufferman Law Firm, P.A., Tallahasee; Crystal Mcbee Frusciante, Sunrise, for Petitioner.
    Roseanne Eckert, FIU College of Law, Miami, for Amicus Curiae Florida Juvenile Resentencing and Review Project; Whitney Untiedt, Akerman, LLP, Miami, for Amicus Curiae Florida Association of Criminal Defense Lawyers, in support of Petitioner.
    Pamela Jo Bondi, Attorney General, Charmaine M. Millsaps, Senior Assistant Attorney General, and Robert J. Morris, III, Assistant Attorney General, Tallahassee, for Respondent.
   LEWIS, J.

Petitioner, U’Dreka Andrews, petitions this Gourt for certiorari review of the trial court’s order denying her “Motion for Leave to Submit Requests for Appointment of Experts and Costs Ex Parte and Under Seal and to Require the Justice Administrative Commission to File Any Responses to Such Motions Without Service to the State and Under Seal Where Such Responses Contain Substantive Information Pertaining to Ms. Andrews’ Defense.” We deny the petition because Petitioner failed to establish that the trial court departed from the essential requirements of the law. In light of the important policy issue, however, we certify a question of great public importance.

In her motion, Petitioner alleged that she was convicted of first-degree felony murder, burglary, and robbery based on offenses she committed at the age of seventeen and she was sentenced to life imprisonment without the possibility of parole for the murder. The Florida Supreme Court recently held that Petitioner is entitled to resentencing in conformance with Chapter 2014-220, Laws of Florida, the relevant provisions of which have been codified in sections 775.082, 921.1401, and 921.1402, Florida Statutes (2014). Petitioner has been found indigent and is represented by private counsel pro bono in the Miller resentencing proceeding.' In order to avoid revealing privileged information or work product to the State Attorney’s Office, Petitioner requested permission to file all her motions for appointed experts and miscellaneous costs ex parte and under seal, with service to the Justice Administrative Commission (“JAC”) and notice to the. State Attorney’s Office, and requested that the JAC be required to file all responses that may reveal substantive content relevant to her defense without service to the State and under seal. Petitioner also relied on the rights to effective assistance of counsel, due process, and equal protection, and she argued that she should not be prejudiced because she is represented by pro bono counsel and is indigent for costs and is entitled to the same due process and equal protection rights as similarly-situated defendants who are represented by private counsel or the Public Defender’s Office and would not be required to divulge details to the prosecution regarding the hiring of experts. Following a hearing, the trial court entered an order denying Petitioner’s motion. This petition for writ of certiorari followed.

To obtain a writ of certiorari, a petitioner must show that the challenged order constitutes a departure from the essential requirements of law, which results iii’material injury that cannot be'remedied on appeal. Suarez v. Steward Enters., 164 So.3d 132, 134 (Fla. 1st DCA 2015). “[C]er-tiorari relief is an ‘extremely rare’ remedy that will 'be provided in ‘very few cases.’ ” Bd. of Trs. of Internal Improvement Tr. Fund v. Am. Educ. Enters., LLC, 99 So.3d 460, 455 (Fla. 2012) (quoting Martin-Johnson, Inc, v. Savage, 509 So.2d 1097 (Fla. 1987)). A ruling departs from the essential requirements of the law when it constitutes a violation of a clearly established principle of law resulting in a miscarriage of justice. State, Dep’t of Revenue ex rel. Carnley v. Lynch, 53 So.3d 1154, 1156 (Fla. 1st DCA 2011). Clearly established law may derive from controlling case law, rules of court, statutes, or constitutional law. Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla. 2003). “[Cjertiorari jurisdiction cannot be used to create new law where the decision below recognizes the correct general law and applies the correct law to a new set of facts to which it has not been previously applied.” Nader v. Fla. Dep’t of Highway Safety & Motor Vehicles, 87 So.3d 712, 723 (Fla. 2012).

Petitioner asserts that authority for the procedure she seeks is found in' Florida Rule of Judicial Administration 2.420, which governs “public access to and protection of judicial branch records” and provides in part that “[t]he following records of the judicial branch shall be confidential:”

[c] (9) Any court record determined to be confidential in case decision or court rule on the grounds that
(A) confidentiality is required to
(i) prevent a serious and imminent threat to the fair, impartial, and orderly administration of justice;
(vii) comply with established public policy set forth in the Florida or United States Constitution or statutes or Florida rules or case law[.]

Petitioner argues that the denial of her petition will result in the violation of her rights to due process, fundamental fairness, equal protection, and effective assistance of counsel under the United States and Florida Constitutions, as well as the attorney-client privilege and the work-product doctrine. Petitioner primarily relies on Ake v. Oklahoma, 470 U.S. 68, 106 S.Ct. 1087, 84 L.Ed.2d 68 (1985), and State v. Hamilton, 448 So.2d 1007 (Fla. 1984), in support of her position. However, in Ake, the United States Supreme Court held:

[W]hen a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.

470 U.S. at 74, 83, 106 S.Ct. 1087. The Court reasoned in part:

[The State] must take steps to assure that the defendant has a fair opportunity to present his defense. This elementary principle, grounded in significant part on the Fourteenth Amendment’s due process guarantee of fundamental fairness, derives from the belief that justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake.

Id. at 76, 105 S.Ct. 1087. The Court further held that' because the State relied on the aggravating, factor. of future dangerousness at the appellant’s capital sentencing, he was entitled to the assistance of a psychiatrist on that issue and the denial of that assistance deprived him of due process. Id. at 86-87, 105 S.Ct. 1087.

In Hamilton, the Florida Supreme Court was faced with the following certified question:

When an appointed counsel informs the court, as provided in Florida Rule of Criminal Procedure 3.216(a), that he has reason to believe his indigent client is incompetent to stand trial or was insane at the time of the offense, does the trial court have any discretion as to any matter of law or fact the determination of which would entitle the State to be given notice and an opportunity to be heard before the court appoints an expert to examine the accused and to assist his appointed counsel?

448 So.2d at 1008. The Court answered the question in the negative upon “finding that any inquiry of defense counsel by the court as to the basis for counsel’s request for appointment of an expert would improperly invade the attorney-client confidential relationship.” Id. The trial court denied the insolvent defendant’s motion for appointment Of a psychiatric expert pursuant to Florida Rule of Criminal Procedure 3.216(a) on the ground that defense counsel refused to communicate to both the court and the prosecutor the underlying basis for the motion. H. The Florida Supreme Court explained that rule 3.216(a) clearly states that when a court-appointed counsel for an indigent defendant indicates a belief that the defendant may be incompetent to stand trial or may have been insane at the time of the offense, the threshold requirements are satisfied and the court has no discretion in appointing an expert, and the rule provides that once an expert is appointed, all matters related to the expert are. confidential. Id. The Court further reasoned:

The rule is designed to give an indigent defendant the same protection as afforded to a solvent defendant. Further, and as important, in many instances the basis for the request for such an expert is founded on communications between the appointed lawyer and his client. Any inquiry into those communications would clearly violate the basic attorney-client privilege. Any inquiry into counsel’s basis to believe that his indigent client is incompetent to stand trial or was insane at the time of the offense also impermis-sibly subjects the indigent defendant to an adversary proceeding concerning issues which may be litigated in the trial of the cause. No solvent defendant would be subjected to this type of inquiry or proceeding.

Id. at 1008-09.

Unlike in Ake, Petitioner was not denied expert assistance, and Ake did not hold that an indigent defendant is entitled to obtain expert assistance ex parte as Petitioner seeks in our case. While Hamilton addressed whether a defendant is entitled to an ex parte proceeding to obtain expert assistance, that case involved—and the supreme court’s holding was based on—rule 3.216(a), which is inapplicable to our case. Cf. Fla. R. Crim. P. 3.220(m) (governing in camera and ex parte proceedings); § 27.5304(3), Fla. Stat. (2016) (stating that the “[t]he court retains primary authority and responsibility for determining the reasonableness of all billings for attorney fees, costs, and related expenses, subject to statutory limitations”). In fact, Petitioner cites no Florida case law, Florida statute, or Florida rule of court that requires motions for appointment of experts and costs to be conducted on an ex parte basis under the facts of this case and our independent research disclosed none. As such, while we find Petitioner’s argument persuasive, we are constrained to deny her petition in light of our limited standard of review because the trial court’s order does not violate a clearly established principle of law. See Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla. 2000) (stating that without controlling precedent, the Court could not conclude that the courts violated a clearly established principle of law and at worst misapplied the correct law); State, Dep’t of Highway Safety & Motor Vehicles v. Edenfield, 58 So.3d 904, 907 (Fla. 1st DCA 2011) (denying the certiorari petition upon concluding that “[wjhile the circuit court has misread our decision in Lee to require the live appearance of a witness in an administrative proceeding regarding a license suspension when a party requests the live appearance, this misreading does not constitute a violation of a clearly established principle of law. Indeed, there is no clear controlling precedent for the issue raised here”); Wolf Creek Land Dev., Inc. v. Masterpiece Homes, Inc., 942 So.2d 995, 997 (Fla. 5th DCA 2006) (“The statutory issue raised by Wolf Creek in the present case is certainly debatable, but there appears to be no case law on the matter that has been pointed out by either side or that has been disclosed by our own independent research. As the order is not the subject of a dearly established principle of law, certiorari is not available to review it.”).

We, therefore, certify the following question as one of great public importance:

WHETHER AN INDIGENT DEFENDANT WHO IS REPRESENTED BY PRIVATE COUNSEL PRO BONO IS ENTITLED TO FILE MOTIONS PERTAINING TO THE APPOINTMENT AND COSTS OF EXPERTS, MITIGATION SPECIALISTS, AND INVESTIGATORS EX PARTE AND UNDER SEAL, WITH SERVICE TO THE JUSTICE ADMINISTRATIVE COMMISSION AND NOTICE TO THE STATE ATTORNEY’S OFFICE, AND TO HAVE ANY HEARING ON SUCH MOTIONS EX PARTE, WITH ONLY THE DEFENDANT AND THE COMMISSION PRESENT.

DENIED. QUESTION CERTIFIED AS ONE OF GREAT PUBLIC IMPORTANCE.

WETHERELL, J., CONCURS; WOLF, J„ CONCURS IN PART AND DISSENTS IN PART WITH OPINION.

WOLF, J.,

concurring in part and dissenting in part.

I concur in the majority’s certification of the question of great public importance. I dissent, however, from that portion of the opinion that determined the trial court’s order denying the ex parte proceeding did not constitute a departure from the essential requirements of law. An indigent defendant who is represented by private counsel pro bono is entitled to an ex parte proceeding concerning the entitlement to hire expert witnesses and investigators.

To obtain certiorari relief, a petitioner must demonstrate “ ‘(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.’ ” Citizens Prop. Ins. Corp. v. San Perdido Ass’n, Inc., 104 So.3d 344, 351 (Fla. 2012) (quoting Williams v. Oken, 62 So.3d 1129, 1132-33 (Fla. 2011)).

In other words, before certiorari can be used to review non-final orders, the appellate court must focus on the threshold jurisdictional question: whether there is a material injury that cannot be corrected on appeal, otherwise termed as irreparable harm. Assuming this requirement is met, the court must then determine whether the decision below departed from the essential requirements of law....

Id. at 351 (internal citations omitted) (emphasis added).

Thus, an appellate court does not reach the departure element until irreparable harm is demonstrated. Here, I believe petitioner has demonstrated the threshold requirement of irreparable harm. While the majority opinion does not specifically mention irreparable harm, it has in fact decided this issue by reaching the merits of the claim. This reading is consistent with the fact that irreparable harm is not seriously in dispute in this case. The improper disclosure of defense strategies and potential expert witnesses by allowing the State to attend the hearing requesting authorization to hire these witnesses is classic “cat out of the bag” material. Revealing such material has always been determined to meet the test of irreparable harm. See Lender Processing Servs., Inc. v. Arch Ins. Co., 183 So.3d 1052, 1058 (Fla. 1st DCA 2015).

I would also find that a departure from the essential requirements of law has been demonstrated. The majority enumerates the correct principle of law for establishing a departure from the essential requirements of law and I will repeat it here: a ruling departs from the essential requirements of law when it constitutes a violation of a clearly established principle of law resulting in a miscarriage of justice. State Dep’t of Revenue ex rel., Carnley v. Lynch, 53 So.3d 1154, 1156 (Fla. 1st DCA 2011).

I also do not dispute the general principle that normally to demonstrate a clearly established principle of law, the petitioner must demonstrate existing precedent on the issue. However, unlike the majority, I stress that as stated by the Florida Supreme Court, clearly established principles of law derive not only from controlling case law but also from constitutional law. Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla. 2003). None of the cases cited by the majority denying certiorari relief involve a departure from a clearly established and essential constitutional principle. This case involves a departure from such a principle, which is that equal protection mandates that we do not treat two equally situated criminal defendants differently, especially when there is no rational basis for doing so.

In the instant case, petitioner demonstrated that:

(1) Non-indigent and, more importantly, other indigent defendants represented by public defenders can obtain expert witnesses and investigative support without revealing their thought processes in front of the prosecuting authority;
(2) These types of witnesses and investigations are essential, if not critical, in representing a defendant on resentenc-ing pursuant to section 942.1401(2), Florida Statutes (2016); and
(3) There is no rational basis for the state attorney to be present at these hearings. The State acknowledged that its only interest in being present at these hearings was financial. These financial interests are more properly represented by the Judicial Administration Commission at an ex parte hearing. See, e.g., State v. Nolasco, 803 So.2d 757 (Fla. 3d DCA 2001). In fact, the state attorney did not oppose defense counsel’s request for an ex parte hearing in this case.

Thus, petitioner has demonstrated a departure from the essential requirements of the equal protection clauses of the United States and Florida Constitutions entitling her to certiorari relief.

I would also find that petitioner’s request is supported by the reasoning, if not the holdings, of Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), and State v. Hamilton, 448 So.2d 1007 (Fla. 1984), as well as the explicit holdings in United States v. Abreu, 202 F.3d 386, 387-91 (1st Cir. 2000), and Ex parte Moody, 684 So.2d 114, 120-21 (Ala. 1996). Thus, I would grant the petition for writ of certio-rari.

      . Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).


author: SILBERMAN, Judge.

text:
    ALS MAXIM I LLC, Appellant, v. Alexander KATSENKO, Appellee.
    Case No. 2D15-5153
    District Court of Appeal of Florida, Second District.
    Opinion filed May 3, 2017

      David Rosenberg and Robert R, Edwards of Robertson Anschutz & Schneid, P.L., Boca Raton for Appellant.
    Gregg Horowitz of Sarasota- for Appel-lee.
   SILBERMAN, Judge.

ALS Maxim I LLC (ALS Maxim) appeals a final order dismissing its foreclosure action against Alexander Katsenko after the trial court granted Katsenko’s motion for summary judgment. Because Katsenko is not entitled to summary judgment as a matter of law, we reverse and remand for further proceedings.

Plaintiff BankUnited, FSB, filed this foreclosure proceeding in 2009 and alleged that it owned and held the promissory note. On July 30, 2010, the Plaintiff filed a notice of filing the original note and mortgage. Since then, substitutions of the Plaintiff have been made, and ALS Maxim was substituted as the Plaintiff by order rendered April 16,2015.

On June 7, 2015, Katsenko filed'a motion for summary judgment on the basis that the purported original note filed on July 30, 2010, was in fact a copy and not the original. Affidavits filed in support reflect that Katsenko signed the note in blue ink and that the filed note shows black ink. Katsenko asserted that “the Plaintiff s, predecessor in interest’s claim that the original note is in the Court file is false,” Katsenko asserted that ALS Maxim must tender the original note to the trial court or seek to reestablish-the lost note.! Kat-senko claimed that he :was entitled to “judgment in his favor as Plaintiff does not possess the original promissory note and lacks standing to foreclose.”

At most,- the summary judgment evidence showed that the purported original note filed in 2010 was a copy rather than the original. And ALS Maxim’s counsel advised the court that if the note was a copy it should be able to amend to add a count to reestablish a lost note. However, the trial court granted summary judgment in favor of Katsenko. In its motion for rehearing ALS Maxim argued that if the filed note was a copy, ALS Maxim was not required to provide the original note until trial and that it might find the original before trial or reestablish the lost note. After the trial court denied the motion for rehearing, ALS Maxim timely filed its notice of appeal.

We employ a de novo standard on our review of a trial court order granting summary judgment. Olivera v. Bank of Am., N.A., 141 So.3d 770, 773 (Fla. 2d DCA 2014). Summary judgment is appropriate “only if there is no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law,” Reed v. Schutz Litig. LLC, 117 So.3d 486, 488 (Fla. 2d DCA 2013) (quoting MarElia v. Yanchuck, Berman, Wadley & Zervos, P.A., 966 So.2d 30, 33 (Fla. 2d DCA 2007)). The movant “has the burden to establish irrefutably that the nonmoving party cannot prevail were a trial to be held;” Land Dev. Servs., Inc. v. Gulf, View Townhomes, LLC, 75 So.3d 865, 868 (Fla. 2d DCA 2011).

In a foreclosure action the promissory note must be removed from the stream of commerce because the note is a negotiable instrument. Heller v. Bank of Am., NA, 209 So.3d 641, 644, (Fla. 2d DCA 2017); Perry v. Fairbanks Capital Corp., 888 So.2d 725, 727 (Fla. 5th DCA 2004). A plaintiff must surrender the original promissory note to the court or court clerk or provide a satisfactory reason for .the failure to do so before the trial court can issue a final judgment. See Colson v. State Farm Bank, F.S.B., 183 So.3d 1038, 1039 n.1 (Fla. 2d DCA 2015); Deutsche Bank Nat’l Trust Co. v. Huber, 137 So.3d 562, 564 (Fla. 4th DCA 2014).

When a defendant seeks summary judgment, as in the present case, “the court is not called upon to determine whether the plaintiff can actually prove its cause of action.” Land Dev. Servs., 75 So.3d at 869. Rather, the defendant must establish a negative, that the plaintiff “could never prove its case—not that it had not already done so.” Id. In Land Development, this court determined that the defendant’s “bare assertion that the original note was not ‘in evidence’ at the time of the hearing was legally insufficient to meet its burden to prove that Land Development could not prevail were a trial to be held.” Id. Therefore, this court concluded that the trial court erred in granting summary judgment in the defendant’s favor based on the original note’s absence from the court file. Id.

Even if Katsenko established at the summary judgment hearing that a copy of the note, rather than the original, had been filed, he failed to establish that he was entitled to judgment as a matter of law because he did not prove that ALS Maxim could not prevail at trial. See id. In other words, Katsenko failed to prove that ALS Maxim would be unable to produce the original note for trial. Therefore, we reverse the order that grants summary judgment and dismisses the action and remand for further proceedings.

Reversed and remanded.

SLEET and LUCAS, JJ., Concur.


text:
    Pedro J. GARCIA, etc., et al., Appellants, v. DADELAND STATION ASSOCIATES, LTD., Appellee.
    No. 3D16-1698
    District Court of Appeal of Florida, Third District.
    Opinion filed May 3, 2017.

      Abigail Price-Williams, Miami-Dade County Attorney, and Jorge Martinez-Es-teve and Bruce Libhaber and Daija Page Lifshitz, Assistant County Attorneys, for appellants.
    Kopelowitz Ostrow, and Julie Feigeles and John J. Shahady (Fort Lauderdale), for appellee.
    The Levy Law Firm and Loren E. Levy and Jon F. Morris, for The Property Appraisers’ Association of Florida, Inc., as amicus curiae.
    Before LAGOA, SALTER and FERNANDEZ, JJ.
   SALTER, J.

Miami-Dade County, its Property Appraiser, and its Tax Collector (collectively, the “County”), appeal an adverse final summary judgment in favor of Dadeland Station Associates, Ltd. (“Dadeland Station”) regarding the County’s property tax assessment of the land (“Land”) leased by Dadeland Station from the County in 1994. We affirm the trial court’s determination that the County improperly assessed and collected property taxes from Dadeland Station on the Land based on the County’s flawed extrapolation from controlling precedent.

Dadeland Station constructed substantial buildings and other improvements on the Land leased from the County, but those improvements have continuously been separately assessed and taxed by the County. In the present case, the County apparently sought to modify well-settled law by asserting a claim that Dadeland Station was the “equitable owner” of the Land beneath the improvements, such that Dadeland Station should be taxed on the Land as well as the improvements.

From 1994 until 2014, the Land was assessed in the County’s name and was immune from property tax. In 2014, however, the Supreme Court of Florida issued its opinion in Accardo v. Brown, 139 So.3d 848 (Fla. 2014). Accardo held that a lessee is considered the equitable owner of land held pursuant to a “perpetually renewable” lease, because the lessee’s interest under such a lease “is not materially different from the interest of a lessee under a lease for a term of years providing the right for the lessee to obtain title for nominal consideration upon the termination of the lease.” Id. at 856. Concluding that the Accardo decision broadly expanded the reach of “equitable ownership,” the County issued an assessment to Dadeland Station for 2015 property taxes on the Land. Dadeland Station paid the taxes under protest and filed a suit to recover the payment under section 194.171, Florida Statutes (2015).

The County’s interpretation overreached. Accardo did not expand “equitable ownership” in terms that would apply to Dadeland Station’s 90-year lease of the Land. That lease did not include a nominal purchase option or perpetual rights of renewal. After Accardo, a circuit court in Escambia County found equitable ownership by a lessee under a 99-year lease that included a .right to negotiate a renewal on terms mutually agreeable to the parties, but the First District reversed that decision:

¡This is not a case entailing the taxation .of land where the lessee has the right to the perpetual renewal of its lease, the lessee has the right to purchase the property for nominal consideration at the end of the lease, the lessor holds legal title merely as security, or the lessee otherwise has perpetual dominion over the property.

Island Resorts Invs., Inc. v. Jones, 189 So.3d 917, 922 (Fla. 1st DCA), review denied, SC16-1007, 2016 WL 3961178 (Fla. July 21, 2016).

Dadeland Station’s lease of the Land also lacks the indicia of equitable ownership described in Island Resorts Investments, ' Inc, and Accardo. The trial court correctly entered a final summary judgment in favor of Dadeland Station.

Affirmed.

      , Dadeland Station also made a claim that section 5.01 of the lease obligated the County to bear any real estate taxes "assessed, levied, confirmed, imposed upon or becoming a lien upon any part of the Land,” and that no change in the Florida Constitution or statutes had occurred to alter that provision. That claim, count II of Dadeland Station’s complaint, was dismissed as moot as part of the final summary judgment.