text:
    Paul WRIGHT and Vanusa Wright, Appellants, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee, ON BEHALF OF the HOLDERS OF the J.P. MORGAN MORTGAGE ACQUISITION TRUST 2007-CH5 ASSET BACKED PASS-THROUGH CERTIFICATES, SERIES 2007-CH5, Estates of Stirling Lake Homeowners Association, Inc., and Ford Motor Credit Company LLC, f/k/a Ford Motor Credit Company, Appellees.
    No. 4D17-1773
    District Court of Appeal of Florida, Fourth District.
    [April 25, 2018]
    Jonathan Kline of Jonathan Kline, P.A., Weston, for appellants.
    Allison Morat of Pearson Bitman LLP, Maitland, for appellee Deutsche Bank National Trust Company, as trustee.
   Per Curiam.

Mortgagors, husband and wife, appeal from a final summary judgment of foreclosure in favor of the appellee trust company. We affirm as to all issues raised and address two: whether summary judgment was improperly entered where an IRS form indicated that the appellee had forgiven part of the principal of the loan, thus decreasing the amount due; and whether the filing of the original loan modification agreement was a condition precedent to foreclosure. Neither raised material conflicting issues of fact to prevent foreclosure, and thus, the summary judgment was properly entered.

Appellants executed a mortgage and note in favor of the original lender. The mortgage and note were assigned to the appellee, and the parties entered into a loan modification agreement. The modification agreement raised the principal balance owed on the note, and it treated $370,748.82 of the balance as non-interest bearing principal eligible for forgiveness, provided that the appellants did not "default on any new payments such that the equivalent of three full monthly payments [were] due and unpaid on the last day of any month ....". Appellants did not comply with the terms of the loan modification and failed to pay their monthly installments. After appellants defaulted on the note and mortgage, appellee sued to foreclose the mortgage and moved for summary judgment. Appellants opposed the motion, arguing that the amount due did not reflect the debt cancelled pursuant to the modification. Appellants submitted an IRS Form 1099-C, showing a cancellation of debt of $370,748.82 on behalf of the appellee's loan servicer to the appellant wife. After hearing, the court entered final summary judgment foreclosing on the mortgage.

Mortgagors argue that summary judgment was improper because the IRS Form 1099-C created a genuine issue of material fact as to the amount due and owing under the note. An entity must file a Form 1099-C with the IRS when it discharges a person's indebtedness. See 26 U.S.C. § 6050P.(a); 26 C.F.R. § 1.6050P-1(a)(1). There is a split of federal authority on whether the form is sufficient evidence of a discharge of debt. See In re Rodriguez , 555 B.R. 871, 875 (Bankr. S.D. Fla. 2016). The majority of courts have noted that the IRS Code requires a creditor to file a Form 1099-C to comply with IRS reporting requirements, even if an actual discharge of debt has not yet occurred. See 26 C.F.R. § 1.6050P-1(a)(1) (providing "a discharge of debt is deemed to have occurred ... if and only if there is an identifiable event described in paragraph (b)(2) of this section ...."); see F.D.I.C. v. Cashion , 720 F.3d 169, 178-79 (4th Cir. 2013) (finding the IRS treats the form "as a means for satisfying a reporting obligation and not as an instrument effectuating a discharge of debt or preventing a creditor from seeking payment on a debt."). However, appellee did not seek a deficiency, and appellants' personal liability was not at issue. Thus, we need not decide whether the Form 1099-C created an issue of fact as to damages in this in rem foreclosure action. Moreover, the undisputed facts show that appellants did not comply with the provisions of the loan modification required to forgive the portion of deferred principal under the agreement.

Appellants also contend that the appellee was required to file the original loan modification agreement as a condition precedent to foreclosure. Pursuant to our recent decision, Liukkonen v. Bayview Loan Servicing, LLC , No. 4D16-4193, 243 So.3d 981, ----, 2018 WL 1517240 at *2 (Fla. 4th DCA Mar. 28, 2018), we conclude that the loan modification, not itself a negotiable instrument, was admissible as a properly authenticated duplicate. The original is not required to be presented in order to secure a final judgment of foreclosure.

We therefore affirm.

Warner, Gross and Levine, JJ., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Joel THEODORE, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2180
    District Court of Appeal of Florida, Fourth District.
    [April 25, 2018]
    Joel Theodore, Perry, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Senior Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Joel Theodore appeals an order summarily denying his Florida Rule of Criminal Procedure 3.850 motion.

After receiving a notice from the state that DNA evidence in his case may have relied on improper statistical calculations, Theodore moved to withdraw his plea. He alleged in part that he would not have entered the plea and would have proceeded to trial if he had known that the DNA evidence was inaccurate.

The trial court denied the motion, concluding that Theodore failed to show prejudice and his claim was conclusively refuted by a DNA inquiry form signed by Theodore and the attorneys at the time of the plea. On the form, the defense attorney and the prosecutor confirmed that they were unaware of any physical evidence for which DNA testing could exonerate Theodore. This statement does not mean that there was no DNA evidence in his case. The form does not refute his claim that the state's DNA evidence was inaccurate and that the faulty DNA statistical calculations induced his plea.

Despite some equivocal language, Theodore's rule 3.850 motion states a facially sufficient claim that is not conclusively refuted by the attached DNA inquiry form. Accordingly, we reverse the summary denial of the motion and remand for further proceedings.

Reversed and remanded.

Damoorgian, Ciklin and Klingensmith, JJ., concur.


author: Kuntz, J.

text:
    NORTH SHORE MEDICAL CENTER, INC., a Florida corporation, Tenet Resource Pool, Gabrielle Finley-Hazle, Mark Phillips, and Yolanda Basse, Appellants, v. ACCREDITED HEALTH SOLUTIONS, INC., a Florida corporation, Appellee.
    No. 4D17-2229
    District Court of Appeal of Florida, Fourth District.
    [April 25, 2018]
    Martin B. Goldberg and Michael L. Ehren of Lash & Goldberg LLP, Miami, for appellants.
    Mark E. Buechele, Davie, for appellee.
   Kuntz, J.

The defendants appeal the circuit court's non-final order denying their motion to dismiss and compel arbitration. The court concluded Accredited Health Solutions, Inc. ("Accredited Health") and Accredited Home Health Care of Broward, Inc. ("Accredited Home") were separate corporate entities. Therefore, it reasoned that Accredited Health was not bound by an arbitration agreement in a contract between North Shore Medical Center, Inc. ("North Shore") and Accredited Home. The defendants argue the circuit court erred because Accredited Home was a predecessor entity to Accredited Health and, therefore, bound by the arbitration agreement. We agree and reverse.

Accredited Health alleged it is a "successor" to Accredited Home, the entity that signed the contract containing the arbitration clause, and stated that the business of the prior entity "was transferred to the Plaintiff ... which has continued the business of Accredited Home to the present." Accredited Health cannot escape the contract of its predecessor entity to the extent the claims at issue fall within the scope of the arbitration clause.

Thus, we must review the wording of the arbitration clause and the claims asserted by Accredited Health. In determining whether these claims fall within the scope of the arbitration agreement, we first acknowledge that we must interpret the arbitration clause broadly. Tenet Healthcare Corp. v. Maharaj , 787 So.2d 241, 243 (Fla. 4th DCA 2001) (citing Ocwen Fin. Corp. v. Holman , 769 So.2d 481, 483 (Fla. 4th DCA 2000) ). Second, we recognize that we must enforce an agreement to arbitrate when the crux of the complaint relates to the contract. Henderson v. Idowu , 828 So.2d 451, 453 (Fla. 4th DCA 2002).

With these guides in mind, we conclude Accredited Health's claims fall within the scope of the arbitration agreement. The arbitration clause at issue is broad and states that "[a]ny dispute or controversy arising under, out of or in connection with, or in relation to this Agreement, or any amendment hereof, or the breach hereof shall be determined and settled by final and binding arbitration."

As for the claims asserted, Accredited Health asserts a claim for tortious interference with a contractual relationship and a claim for violation of trade secrets. In the claim for tortious interference, Accredited Health alleged that North Shore caused third-party individuals to leave employment with Accredited Health to become directly employed by North Shore. Without more, the individual employees leaving their employment with Accredited Health for employment with North Shore may appear separate from the arbitration agreement. Yet Accredited Health alleged that North Shore used confidential information obtained as a result of the contractual relationship to employ these employees. And North Shore only learned of these employees as a result of its contract with Accredited Health. Similarly, Accredited Health asserts a claim for violation of trade secrets-the trade secret being the identity of the individual employees. Accredited Health specifically alleges North Shore misused information it obtained from Accredited Health as a result of the agreement.

The allegations in the complaint would not exist but for the contract with the arbitration clause. Therefore, the claims are subject to arbitration and the circuit court's order denying the motion to compel arbitration is reversed.

Reversed and remanded.

Taylor and Klingensmith, JJ., concur.


text:
    CUSTOM MARINE SALES, INC., a Florida Corporation, Appellant, v. BOYWIC FARMS, LTD., a Florida Limited Partnership, and Broward Realty Corporation, a Florida Corporation, Appellees.
    No. 4D17-2828
    District Court of Appeal of Florida, Fourth District.
    [April 25, 2018]
    Louis C. Arslanian, Hollywood, for appellant.
    Gale Ciceric Payne of Gale Payne & Associates, Fort Lauderdale, for appellees.
   Kuntz, J.

Custom Marine Sales, Inc. ("Custom Marine") appeals a non-final order requiring it to deposit rent payments into the court registry. It argues that the trial court erred in ordering it to deposit rent pursuant to section 83.232, Florida Statutes (2017), because there is no rent due under the applicable lease. The commercial lease agreement at issue included a provision waiving rent payments until the completion of certain improvements. Because those improvements were not completed, we reverse.

Boywic Farms, LTD ("Boywic Farms") agreed to lease a commercial property to Custom Marine. Under paragraph 8 of the lease, Boywic Farms needed to complete improvements to the property before delivering possession. The lease included the following in its definition of "delivery": "Landlord shall be deemed to have delivered possession of the Premises to Tenant when Landlord has given Tenant ten (10) days' written notice that Landlord has substantially completed ..." the required improvements. Paragraph 8 also provides that "rent shall be waived for the period between the Effective Date and the date on which Landlord delivers possession of the Premises to Tenant."

The language of the lease agreement is clear. When the language of a contract is unambiguous, it must be enforced based on its plain language. Hahamovitch v. Hahamovitch , 174 So.3d 983, 986 (Fla. 2015). It is undisputed that Boywic Farms waived required rent payments until it completed the improvements provided for in paragraph 8 of the lease. Further, it is undisputed that it did not complete those improvements. Thus, there were no rent payments due under the lease agreement and the court erred in ordering Custom Marine to deposit payments into the court registry.

Reversed and remanded.

Ciklin and Klingensmith, JJ., concur.


author: Ciklin, J.

text:
    Robert Harold BITTLE, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-2714
    District Court of Appeal of Florida, Fourth District.
    [April 25, 2018]
    Carey Haughwout, Public Defender, and Mara C. Herbert, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R. Napodano, Assistant Attorney General, West Palm Beach, for appellee.
   Ciklin, J.

The defendant below challenges the trial court's determination that he was competent to stand trial for charges relating to a bank robbery committed in 2010. He argues the trial court erroneously relied on stale competency evaluations. Because the defendant failed to preserve this argument, we affirm.

The trial court determined the defendant was incompetent to proceed in 2013, but his competency was restored in April 2014. Defense counsel moved to again determine competency in October 2014, alleging that recent events had caused the defendant to decompensate.

The court appointed two experts, Dr. Douglas Schooler and Dr. Barbara Ann Barone, to examine the defendant. Each of the court-appointed experts evaluated the defendant on October 27, 2014 and each determined he was competent to proceed. The defendant hired two of his own experts to conduct competency evaluations, which evaluations took place on December 19, 2014 and March 13, 2015, respectively. Each defense expert concluded he was incompetent.

The required competency hearing was originally set for November 14, 2014, but was postponed numerous times, at least one time at the defendant's behest. When the hearing finally took place on July 21, 2015, both court-appointed experts testified to their opinion that the defendant was competent. Dr. Barone additionally opined that some of the defendant's impairments were feigned. The defendant called his experts to testify and they generally opined that he was incompetent due to his inability to recall and discuss all of the events surrounding the crime, which inability was related to a brain injury.

The trial court "broke the 2-2 tie" and, using the evidence presented to it, found the defendant competent to proceed. In the order finding the defendant competent, the trial court directly addressed the issue of the defendant's credibility and adopted the position of the court-appointed expert that the defendant was feigning his memory deficits. The defendant proceeded to trial and was convicted.

On appeal, the defendant challenges the court's second competency determination, contending that the nine-month-old competency evaluations on which the trial court relied were stale. Therefore, he contends, there was not competent, substantial evidence to support the court's competency determination.

We agree with the defendant insofar as he argues that the nine-month-old competency evaluations conducted by the court-appointed experts were stale, but for that matter, so were the four- and seven-month-old evaluations presented to the court by the defense. See Washington v. State , 162 So.3d 284, 289 (Fla. 4th DCA 2015) (holding competency evaluations that were six months to one year old were stale and did not constitute competent, substantial evidence of competency); In re Commitment of Reilly , 970 So.2d 453, 456 (Fla. 2d DCA 2007) (holding six-month-old evaluation "was too stale to be relevant" and "did not provide competent, substantial evidence to support the trial court's finding"); Brockman v. State , 852 So.2d 330, 333-34 (Fla. 2d DCA 2003) (noting that four- and eleven-month-old expert reports "were simply too old to be relevant to a determination of Brockman's competency to stand trial" because they "did not speak to Brockman's competence" at the time of trial).

We nevertheless conclude that there is no reversible error here. Where sufficiency of the evidence is challenged, the general rule requiring a contemporaneous objection to preserve an issue for appellate review applies. F.B. v. State , 852 So.2d 226, 229-30 (Fla. 2003). "Any technical deficiency in proof may be readily addressed by timely objection or motion, thus allowing the State to correct the error, if indeed it is correctable, before the trial concludes." Id.

Because the defendant failed to contemporaneously object to the sufficiency of the expert reports, our review is limited to fundamental error. See id. at 229. Fundamental error is error that "goes to the foundation of the case or goes to the merits of the cause of action" and "amount[s] to a denial of due process." D'Oleo-Valdez v. State , 531 So.2d 1347, 1348 (Fla. 1988) (citations omitted).

A trial court fundamentally errs if it fails to afford a defendant the process outlined in the Florida Rules of Criminal Procedure 3.210 - 3.212, which rules "protect a defendant's right not to be tried or convicted while incompetent to stand trial." See Dougherty v. State , 149 So.3d 672, 679 (Fla. 2014) ; see also Dortch v. State , Nos. 4D16-2815, 4D16-2816, 242 So.3d 431 (Fla. 4th DCA Apr. 4, 2018) ("One thing is certain: competency requires strict adherence to the Florida Rules of Criminal Procedure 3.210 - 212."). Accordingly, waiver or stipulation within competency proceedings has not precluded reversal in cases where the trial court has failed to hold an evidentiary hearing or to make an independent finding of competency. See, e.g. , Dougherty , 149 So.3d at 678 (holding defendant cannot stipulate to finding of competency because trial court must make independent determination of competency); Rumph v. State , 217 So.3d 1092, 1094-95 (Fla. 5th DCA 2017) (finding fundamental error where court accepted counsel's implicit stipulation to competency and record did not indicate that court reviewed expert reports before ruling); Raithel v. State , 226 So.3d 1028, 1032 (Fla. 4th DCA 2017) (reversing for competency hearing where defense counsel failed to request one and stating that invited error "does not apply in a competency context").

More akin to the issue at hand, however, the First District recently held that the fact that the right to a competency hearing is unwaivable "does not relieve [a defendant] of the responsibility to make evidentiary objections relating to the competency determination." Hendrix v. State , 228 So.3d 674, 676 (Fla. 1st DCA 2017). In Hendrix , the trial court accepted Hendrix's plea before pronouncing him competent to proceed. Id. at 675. At the sentencing hearing over a month later, the trial court indicated that it read the expert competency evaluations and found Hendrix was competent to proceed at the time the plea was entered. Id. On appeal, Hendrix argued the trial court could not rely on the evaluations because they were not admitted into evidence. Id. at 676. The Hendrix court noted the lack of preservation and concluded, "As long as the trial court held a competency hearing, and made an independent determination of competency, the lack of a proper foundation for the consideration of the reports is not fundamental error." Id. ; see also Merriell v. State , 169 So.3d 1287, 1288-89 (Fla. 1st DCA 2015) (affirming where court reviewed expert report and, without objection, orally declared defendant competent at a status call hearing, but remanding for entry of written nunc pro tunc order).

We, too, determine that the protections afforded to a defendant within the context of competency proceedings do not absolve a defendant from the responsibility of making appropriate evidentiary objections in the proceedings below. The trial court appropriately held a competency hearing and made an independent finding of competency. The trial court did not fundamentally err in relying on the stale reports, particularly where Bittle himself offered his own stale reports for the trial court's consideration.

Affirmed.

Warner and Klingensmith, JJ., concur.


text:
    Daniel D. LENZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-198
    District Court of Appeal of Florida, Fourth District.
    [April 25, 2018]
    Carey Haughwout, Public Defender, and Marcy K. Allen, Special Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   Ciklin, J.

After his first conviction was reversed due to the admission of improper evidence, Daniel Lenz, the defendant below, was retried and found guilty of crimes involving a child victim. He challenges his conviction and sentence of life imprisonment, raising numerous issues, two of which we find have merit. We agree with the defendant that the trial court erred in overruling a defense objection to the prosecutor's closing argument, which shifted the burden of proof to the defendant. We also find that the trial court erred in denying his peremptory strike of a prospective juror.

Improper Closing Argument

While the defendant was in jail awaiting trial, he spoke to his wife (the victim's grandmother) and their telephone conversations were recorded by jail authorities. During closing argument at trial, the prosecutor played the recording of the first phone call the defendant made to his wife, and offered the following closing argument commentary:

And sometimes silence can be deafening. And in this case in this jail call, I think his silence not to comfort her and say, hey, this is a misunderstanding, I didn't do it on purpose, I didn't have a lewd intent, something to that effect, he's silent. I can't help but wonder what has changed. Think about this. This is early on in the case, this is the first jail call. What has changed over the three years, what has changed? I'll tell you what's changed. He's had three years to think about this. He's had three years to think of his story and to explain everything away.

The prosecutor then played a portion of a recording where the defendant tells his wife he cannot talk about the case over the phone, as "[t]hat can put yourself in jeopardy." The prosecutor made the following statements in conjunction with this recorded clip:

Really? And he was innocent. Why couldn't he talk about the case? Why couldn't he get on the phone and say this is a misunderstanding, why couldn't he say I was tricked by the police, why couldn't he say PTSD kicked in, why couldn't he say all that? That wouldn't put him in jeopardy, not one bit. Not at all. He knows he's guilty, that's why he doesn't want to talk about this case.

Defense counsel objected, and argued that the statements constituted burden shifting. The trial court overruled the objection: "I mean obviously this is in evidence, but, you know, he's allowed to comment on it. I don't see how it's burden shifting. He's just pointing out that he didn't say certain things."

We are compelled to once again remind prosecutors and defendants alike that improper closing argument has no place in the lexicon of criminal court trials and is, with a nominal amount of reflection and trial preparation, easy to avoid. We once again provide a refresher. We first recognize that "[i]t is within the court's discretion to control the comments made to a jury, and a court's ruling will be sustained on review absent an abuse of discretion." Salazar v. State , 991 So.2d 364, 377 (Fla. 2008) (citation omitted). A burden-shifting comment is reviewed for harmless error. See Paul v. State , 980 So.2d 1282, 1283 (Fla. 4th DCA 2008). "It is well settled that due process requires the state to prove every element of a crime beyond a reasonable doubt." Warmington v. State , 149 So.3d 648, 652 (Fla. 2014) (citation omitted). "For that reason, it is error for a prosecutor to make statements that shift the burden of proof and invite the jury to convict the defendant for some reason other than that the State has proved its case beyond a reasonable doubt." Id. (citation omitted). Thus, "the state cannot comment on a defendant's failure to produce evidence to refute an element of the crime, because doing so could erroneously lead the jury to believe that the defendant carried the burden of introducing evidence." Id. (citation omitted). "Comments on silence may also equate to burden-shifting comments[.]" Gleason v. State , 188 So.3d 35, 38 (Fla. 4th DCA 2016).

The Fifth District summarized the types of comments our courts have held improperly shift the burden of proof to the defendant:

[T]elling the jurors that if they believed the police officers instead of the defendant, then they should find the defendant guilty; informing the jurors that the defendant did not have tests performed on evidence found at the scene, such as hair and blood samples, to determine that the evidence did not come from him; commenting on the failure of the defendant to call witnesses; arguing that the defendant's request for a jury instruction regarding self defense is an admission by the defendant that he is guilty; and misadvising the jurors that they have to believe the testimony of the defendant over that of the police officers to have a reasonable doubt.
What each of these examples has in common ... is the prosecutor's invitation to convict the defendant for a specific reason other than the state's proof of the elements of the crime beyond a reasonable doubt ....

Rivera v. State , 840 So.2d 284, 288 (Fla. 5th DCA 2003) (footnotes omitted).

Our courts have also opined that an argument emphasizing a defendant's failure to proclaim his innocence is the equivalent of a burden-shifting argument. See Fowler v. State , 67 So.3d 1073, 1074 (Fla. 1st DCA 2011) (finding that trial court should have granted evidentiary hearing on defendant's post-conviction claim of ineffective assistance of counsel, which related to prosecutor's argument that defendant should have proclaimed his innocence to the police, as the argument "improperly shifted the burden of proof to the defendant"); Sackett v. State , 764 So.2d 719, 722-23 (Fla. 2d DCA 2000) (finding trial court erred in allowing prosecutor to argue that defendant did not tell officers investigating a domestic violence accusation that his accuser was drunk and making up allegations, as "the prosecutor's statement was the equivalent of arguing to the jury that Sackett should have proclaimed his innocence to the officers," and "[s]uch an argument improperly shifts the burden of proof").

Opinions of this court provide guidance, although we have frequently framed the issue as a comment on silence. In Cowan v. State , 3 So.3d 446, 447 (Fla. 4th DCA 2009), the defendant and his codefendant were arrested and placed in a police car. The codefendant asked the defendant if he thought they had been caught for home invasion. Id. According to the prosecutor, the defendant's mouth moved as if he was answering the question. Id. But the defendant testified at trial that he was not involved in the burglary and that he did not respond to his codefendant's question. Id. On cross-examination, over objection, the prosecutor asked the defendant why he hadn't responded by asking the codefendant "What are you talking about, what burglary?" Id. In closing argument, the prosecutor told the jury that a reasonable person would have asked the codefendant, "What are you talking about?" Id. at 448. On appeal from his conviction, the defendant argued that the questioning and argument violated his right against self-incrimination. Id. This court found that any voluntary inculpatory statements the defendant made were admissible, but that the "[p]ost-arrest, custodial silence of the defendant is simply inadmissible as evidence of guilt and is not a proper subject of argument." Id. at 449. This court also recognized that "[t]he prosecution is not permitted to comment upon a defendant's failure to offer ... an exculpatory statement prior to trial, since this would amount to a comment upon the defendant's right to remain silent." Id. at 450 (emphasis omitted) (citation omitted). We found that the questions and argument were fairly susceptible of being taken as a comment on silence, and it reversed for a new trial. Id. at 451.

In Rao v. State , 52 So.3d 40, 42 (Fla. 4th DCA 2010), the defendant telephoned his mother and advised her of his arrest but told her there was nothing for her to say because he had never spoken "about it" to his mother. Id. During trial, the prosecutor pointed out that the defendant did not say to his mother, "I don't know what I'm doing here, I have no idea what I'm doing here," and he "never said he did not do it." Id. at 44-45. On appeal, this court found the case comparable to Cowan , and once again held that the prosecutor's comments "on the defendant's failure to explain his circumstances to his mother constituted an impermissible comment on silence." Id. at 45. However, this court found the error was not preserved and not fundamental error, and that if it had been preserved it was harmless. Id. at 45-46.

The state cites Wray v. State , 639 So.2d 621 (Fla. 4th DCA 1994), and Ivey v. State , 586 So.2d 1230 (Fla. 1st DCA 1991), for the proposition that the prosecutor's argument was not an impermissible comment on silence where the defendant did not exercise his right to remain silent. Those cases are patently distinguishable, as they involved 1) statements made to law enforcement after Miranda was waived, and 2) the prosecutor's comments on inconsistencies in a defendant's statement to police and a defendant's testimony at trial regarding the incident. See Wray , 639 So.2d at 622-23 ; Ivey , 586 So.2d at 1233-34. Here, the objection was based on the prosecutor's comments on the defendant's silence during a telephone conversation with his wife. During that phone call, the defendant did not address the substance of the allegations or offer any reason for the conduct alleged. Instead, he told his wife that he could not speak about the allegations.

In the instant case, the defense lodged a "burden-shifting" objection rather than a "comment on post-arrest silence" objection, but this court has recognized that, generally, this is a distinction without a difference. Gleason , 188 So.3d at 38.

We find that the prosecutor's argument was both an impermissible comment on silence and a burden-shifting comment, with either one being egregious and obviously improper.

We must point out that the first conviction in this case was reversed and also based on the admission of yet another portion of the recorded jail phone calls where the defendant and his wife discussed retaining an attorney, which we held to be a clearly improper attempt to focus the jury on another impermissible factor: the defendant's exercise of his right to counsel. See Lenz v. State , 183 So.3d 1239, 1241 (Fla. 4th DCA 2016).

Erroneous Jury Selection

We must also reverse based on the trial court's mistaken analysis related to the state's challenge of a peremptory strike of a juror by the defense. The defense sought to exercise a backstrike on T.C., a woman. The prosecutor asked for a gender-neutral reason, and defense counsel stated that the woman's juror information questionnaire provided that she was the parent of a teenager and that she coaches flag football. The prosecutor stated, "I believe that's the most disingenuous reason ever given. Flag football coach doesn't mean anything." The trial court stated that there was no evidence that T.C. works with children: "[T]he problem is ... it could be men. I have friends who are men who play flag football." Based on this exchange, the trial court found defense counsel's proffered reason was pretextual. The court then noted that the proposed jury at that point was composed of all men, but defense counsel pointed out that there was one woman on the proposed jury.

On appeal, the defendant contends that the trial court erred in finding his proffered gender-neutral reason was pretextual. We agree.

"[T]he Equal Protection Clause prohibits discrimination in jury selection on the basis of gender[.]" J.E.B. v. Alabama ex rel. T.B. , 511 U.S. 127, 146, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994). The defendant's argument relates to the genuineness of a proffered reason for a peremptory strike-the third step of the three-step procedure that applies when a party objects to the exercise of a peremptory strike on the ground that it was made on a discriminatory basis. See Melbourne v. State , 679 So.2d 759, 764 (Fla. 1996). The Supreme Court of Florida has elaborated on this third step:

Melbourne teaches that to assess genuineness, the trial court must consider all relevant circumstances surrounding the strike in determining whether the proffered reason for the strike is genuine. Melbourne , 679 So.2d at 764 n.8. This Court explained in Murray v. State , 3 So.3d 1108 (Fla. 2009), that
[i]n determining whether or not a proffered race-neutral reason for a peremptory strike is a pretext, the court should focus on the genuineness of the race-neutral explanation as opposed to its reasonableness.
In making a genuineness determination, the court may consider all relevant circumstances surrounding the strike. "Relevant circumstances may include-but are not limited to-the following: the racial make-up of the venire; prior strikes exercised against the same racial group; a strike based on a reason equally applicable to an unchallenged juror; or singling the juror out for special treatment." [ Melbourne , 679 So.2d at 764 n.8 ] (citing State v. Slappy , 522 So.2d 18 (Fla. 1988) ); see also Booker v. State , 773 So.2d 1079, 1088 (Fla. 2000) ("[W]e provided a nonexclusive list of factors a trial court may consider in determining whether the reason given for exercising a peremptory challenge is genuine ...." (citing Melbourne , 679 So.2d at 764 n.8 ) ).
Murray , 3 So.3d at 1120 (citations omitted).
The proper test under Melbourne requires the trial court's decision on the ultimate issue of pretext to turn on a judicial assessment of the credibility of the proffered reasons and the attorney or party proffering them, both of which "must be weighed in light of the circumstances of the case and the total course of the voir dire in question, as reflected in the record." Slappy , 522 So.2d at 22 ; see also Melbourne , 679 So.2d at 764 ; Young v. State , 744 So.2d 1077, 1082 (Fla. 4th DCA 1999) ("[I]dentifying the true nature of an attorney's motive behind a peremptory strike turns primarily on an assessment of the attorney's credibility.")

Hayes v. State , 94 So.3d 452, 462 (Fla. 2012) (alterations in original).

Aside from the factors recited in Hayes , the trial court may consider any relevant factor, including the "failure to examine the juror or perfunctory examination, assuming neither the trial court nor opposing counsel had questioned the juror." State v. Slappy , 522 So.2d 18, 22 (Fla. 1988), receded from on other grounds , Melbourne , 679 So.2d at 765. And "while the constitution does not require that the explanation be reasonable, reasonableness is one factor that a court may consider in assessing genuineness." Siegel v. State , 68 So.3d 281, 286 (Fla. 4th DCA 2011).

In the instant case, it is not apparent from the transcript that the trial court considered the fundamentally core issue of whether defense counsel's belief that T.C. coached youth flag football and that she was a parent to a teenager was genuine. Instead, the court focused on defense counsel's failure to make sure that T.C. coached children rather than adults. The court found that defense counsel's reason was based on "an assumption" not supported by the record. But the record did support defense counsel's concern, as T.C. indicated that she was the parent of a teenager and coached flag football. The court's focus should have been on the genuineness of counsel's belief, not the reasonableness of an assumption. See Wimberly v. State , 118 So.3d 816, 822 (Fla. 4th DCA 2012) (finding that where prospective juror indicated initially that she didn't understand the word "insanity," but later stated that she understood the term, the state was still "entitled to maintain" its genuine belief that she did not understand). Even if reasonableness was a dispositive factor, defense counsel's belief that T.C. coached youth flag football was a reasonable belief, given that she was the parent of a teenager and the commonly-known fact that youth sports leagues utilize coaches, many of whom are parents.

Further, the record reveals that the trial court's consideration of the relevant factor of the gender makeup of the jury was superficial. The trial court first observed that the potential jury at that point was "all males," but this observation was incorrect, as pointed out to the court by defense counsel. The court failed to consider why the group of six potential jurors was primarily male, i.e., which strikes led to the resulting jury. Specifically, the defendant was on trial for crimes against a young child, the other women who were struck by defense counsel had young children, and defense counsel did not strike two female prospective jurors who did not have minor children or currently work with children. We find that the trial court's failure to engage in a meaningful genuineness analysis necessarily amounts to reversible error.

Based on the foregoing, we reverse and remand for a new trial. We find the remaining issues raised by the defendant to be without merit, unpreserved, or moot.

Reversed and remanded for new trial.

Levine and Klingensmith, JJ., concur.

      Even though the prosecutor had earlier made similar improper arguments without objection, those arguments do not render the challenged argument harmless. Rather, the unobjected to improper argument bolsters the defendant's position that the preserved error was harmful. See Ruiz v. State , 743 So.2d 1, 7 (Fla. 1999) ("When the properly preserved comments are combined with additional acts of prosecutorial overreaching set forth below, we find that the integrity of the judicial process has been compromised and the resulting convictions and sentences irreparably tainted.").

      While a different judge presided over the first trial, the same individual acted as prosecutor in both the first and second trials.

      In Melbourne , the court fashioned the following three-step procedure for addressing challenges to peremptory strikes:
      A party objecting to the other side's use of a peremptory challenge on racial grounds must: a) make a timely objection on that basis, b) show that the venireperson is a member of a distinct racial group, and c) request that the court ask the striking party its reason for the strike. If these initial requirements are met (step 1), the court must ask the proponent of the strike to explain the reason for the strike.
      At this point, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If the explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained (step 3).
      Melbourne , 679 So.2d at 764 (footnotes omitted).

      The prosecutor exercised a peremptory strike on one of those women.


author: Gross, J.

text:
    Ivette SMULDERS FOR 129-31 HARRISON STREET, LLC and John E. Murphy, Appellants, v. THIRTY-THREE SIXTY CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 4D17-1138
    District Court of Appeal of Florida, Fourth District.
    [April 25, 2018]
    Joseph S. Kashi of Joseph S. Kashi, P.A., Plantation, and Anthony J. Titone of Law Office of Anthony J. Titone, P.A., Coral Springs, for appellants.
    Kathryn L. Ender and Maria D. Vera of Cole, Scott & Kissane, P.A., Miami, for appellee.
   Gross, J.

The circuit court determined that this case was moot because it could not grant relief if the plaintiffs prevailed. We reverse because we hold that, if appellants prove that a violation of the declaration of condominium occurred, the issue of their entitlement to a refund of a special assessment remains.

Appellants Ivette Smulders and John Murphy own units in the condominium operated by the Thirty-Three Sixty Condominium Association, Inc. They brought suit for injunctive and declaratory relief to challenge the Board of Directors' approval of a special assessment of $350,000 for maintenance and renovation of condominium lobbies, contending that the Board had acted contrary to the declaration of condominium.

Because the Association had commenced the renovation project, appellants sought a temporary injunction to halt the project. The circuit court denied temporary relief. After this ruling, appellants apparently paid the assessment, a prudent act that avoided a lien foreclosure lawsuit under section 718.116, Florida Statutes (2017).

Both sides moved for summary judgment. One of the Association's grounds was that, as of the date of the motion, the project had been completed and all unit owners, including appellants, had paid their share of the special assessment. Thus, the Association argued that there was "no bona fide, actual, present need for a declaration as prayed for in [appellants'] Amended Complaint." The Association further argued that "the scant ultimate facts alleged by [appellants] in support of their claim regarding an alleged 'bona fide adverse interest between the parties concerning a power, privilege, immunity or right of the [appellants]' have been rendered moot by appellants' admissions that they have 'paid the assessment.' "

At the summary judgment hearing, the trial court opined that the issue was moot, asking the parties:

THE COURT: What are you going to ask me [to] enjoin? The project that you're disputing has been completed, hasn't it?
APPELLANTS: Well, it has, and we tried to stop it.

The judge then asked if appellants wanted him to have the Association rip out the renovations, to which appellants' counsel responded in part:

Well, I think there should be some affirmative injunctive relief that the Court can frame to at the very least, these gentlemen are entitled to their assessments back, okay, because they're paying for an illegal undertaking and I think the court in its power, something that the court can consider, that they restore the lobby as much as possible to the way they were before.

The trial court again stated, "I don't think there's anything to enjoin right now. It's over." Concerning mootness, counsel for the Association added:

[T]he prayers for relief show that there is-this is even more moot because when he's asking the Court to enjoin the association from collecting assessments, which is done and paid. Enjoin the defendant from moving forward with the lobby, they call it alterations, but it's done.

The trial court granted summary judgment for the Association and entered a final judgment. Having orally ruled on the ground of mootness, there is no indication that the court addressed appellants' claim on the merits.

As the Fifth District has written,

A case is rendered moot when it no longer presents an actual controversy or when the issues have ceased to exist because they have been "so fully resolved that a judicial determination can have no actual effect."
At least three instances have been recognized by Florida courts in which a moot case will not be dismissed: 1) when the issues are of great public importance; 2) when the issues are likely to recur; and 3) when collateral legal consequences flow from the issues to be resolved that may affect the rights of a party.

Mazer v. Orange County , 811 So.2d 857, 859 (Fla. 5th DCA 2002) (internal citations omitted).

To say that this case is moot is contrary to the system of self-government created by the Condominium Act. Section 718.303(1), Florida Statutes (2017), implements checks and balances on the power of associations and their boards of directors by permitting a unit owner to bring "[a]ctions for damages or for injunctive relief, or both, for failure to comply" with the provisions of Chapter 718, "the declaration, the documents creating the association, and the association bylaws." Nothing is more central to condominium governance than the manner in which a board raises money from unit owners and then spends it. Given the glacial pace of litigation, a board would almost always be able to pass a special assessment, collect it, and spend it on a project before a challenge to the assessment came to trial. If the spending of an assessment always rendered moot a challenge to its legality, then the self-governance contemplated by the Condominium Act would be severely undermined;

a board would have little check on its handling of money.

As appellants' counsel argued below, the case is not moot because there remains the issue of appellants' entitlement to reimbursement of the assessment they paid if they prove a violation of the declaration of condominium. Although not directly relevant on the issue of mootness, if appellants prevail below, there is the issue of their entitlement to recover such "additional amounts as determined by the court to be necessary to reimburse [appellants] for his or her share of assessments levied by the association to fund its expenses of the litigation;" and there is also the issue of attorney's fees to the "prevailing party." § 718.303(1), Fla. Stat. (2017).

Our holding that this case is not moot should not be read to mean that we disagree with the trial court's determination that an injunction ordering the lobby work undone is an inappropriate remedy in this case.

Reversed and remanded for further proceedings.

Warner and Levine, JJ., concur.

      We are aware of no provision of the Condominium Act, Chapter 718, Florida Statutes (2017), or the underlying condominium documents in this case, that would allow a unit owner to deposit a disputed assessment with the registry of the court. Compare § 83.60(2), Florida Statutes (2017) (allowing a tenant to post rent into the registry of the court pending final judgment in an eviction case).

      We question whether final judgment should have been entered, since dismissal is the appropriate disposition when a case is moot. See Breslof v. The Pines of Delray North Assoc., Inc. , 583 So.2d 810, 811 (Fla. 4th DCA 1991).

      In the amended complaint, a return of appellants' payment falls under either "such other relief as the Court deems necessary and proper under the circumstances" or "any such other further ancillary relief as the Court deems appropriate."


author: Forst, J.

text:
    Moses MITCHELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1225
    District Court of Appeal of Florida, Fourth District.
    [April 25, 2018]
    Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman, Assistant Attorney General, West Palm Beach, for appellee.
   Forst, J.

Appellant Moses Mitchell was convicted of burglary with assault or battery while in possession of a firearm and two counts of robbery with a firearm. We affirm on all issues raised on appeal. We write only to address Appellant's argument that the trial court's failure to explicitly articulate what standard it applied when reviewing the evidence with respect to his motion for a new trial was reversible error.

Background

After a guilty verdict, Appellant filed a timely motion for new trial. He asserted that the verdicts were contrary to the weight of the evidence and specifically requested the trial court to "assess the verdict in light of the weight and credibility of the evidence." The trial court denied the motion, verbally stating, "[a]ll right, I'll note your motion and objections and at this time I'll deny your motion for a new trial or your motion to dismiss." The judge then entered a written order, merely stating, "[t]he motion is denied." Appellant made no objection that the trial court had not articulated the legal standard it applied in reviewing the evidence.

Analysis

"Ordinarily, a trial court's ruling on a [Florida Rule of Criminal Procedure] 3.600(a)(2) motion for new trial is subject to review under an abuse of discretion standard. But where a trial court's ruling is based on the application of an incorrect legal standard, the ruling is subject to de novo review." Velloso v. State , 117 So.3d 903, 905 (Fla. 4th DCA 2013) (quoting Ferebee v. State , 967 So.2d 1071, 1073 (Fla. 2d DCA 2007) ).

Trial courts will be reversed on appeal for incorrectly applying the standard for motions for judgment of acquittal when deciding motions for a new trial. See, e.g. , Palmer v. State , 196 So.3d 1289, 1289 (Fla. 1st DCA 2016) ; Ferebee , 967 So.2d at 1073 ; Spear v. State , 860 So.2d 1080, 1080 (Fla. 1st DCA 2003) ; Moore v. State , 800 So.2d 747, 749-50 (Fla. 5th DCA 2001). Motions for judgment of acquittal are decided under the sufficiency of the evidence standard, which "examines whether the evidence presented is legally adequate to permit a conviction." Velloso , 117 So.3d at 905 ; see also Fla. R. Crim. P. 3.380(a). Motions for a new trial are assessed under the weight of the evidence standard, which "evaluates whether a greater amount of credible evidence supports an acquittal." Velloso , 117 So.3d at 905 ; see also Fla. R. Crim. P. 3.600(a)(2). We reversed the trial court in Velloso because it applied the sufficiency of the evidence standard when deciding a motion for new trial. Velloso , 117 So.3d at 905-06.

Here, in his motion for new trial, Appellant argued that the verdict was contrary to the law and the weight of the evidence. The trial court asked defense counsel if he wanted to add anything to the motion. Counsel stated that he was specific in this argument in the motion and would rely on the written motion. The trial court noted the motion and summarily denied it, without specifying the standard it was applying. Appellant lodged no objection nor request for clarification . Thus, to the extent there is an issue for review, it was not preserved. "The requirement of a contemporaneous objection is based on practical necessity and basic fairness in the operation of a judicial system. It places the trial judge on notice that error may have been committed, and provides [the judge] an opportunity to correct it at an early stage of the proceedings." Castor v. State , 365 So.2d 701, 703 (Fla. 1978).

In light of Appellant's failure to preserve this issue, our review is limited to determining whether the trial court's failure to explicitly recite the standard of review constitutes fundamental error. In addition to Velloso (where the trial court articulated the wrong standard), Appellant relies upon two cases cited in Velloso for his argument that remand is required for the trial court to reconsider the motion for new trial. In Geibel v. State , the court remanded because it was "unable to establish whether [the trial court] applied the correct standard from [the trial court's]

oral pronouncement, particularly in light of [the trial court's] comment that [it] found no 'legal basis' to support the motion." 817 So. 2d 1042, 1045 (Fla. 2d DCA 2002). In Lee v. State , 117 So.3d 848 (Fla. 5th DCA 2013), the court remanded because "it is unclear whether or not the trial judge applied the correct standard in denying the motion for new trial [and] the State agrees that because the record on the issue is ambiguous, a new hearing on [the] motion is appropriate." Id. at 850.

Here, the trial court did not make any eyebrow-raising comment as in Velloso or Geibel , nor does the State agree with Appellant that there is an "ambiguous" record on this issue. Appellant provided the trial court with the correct standard of review in his motion, and neither the State nor the trial court took exception to that standard. The trial court then noted Appellant's motion and ruled, orally and in a written order, that it was denying the motion.

"There exists in law as in equity a presumption of the correctness of the rulings of the trial court and a person resorting to an appellate court is charged with the responsibility of making error clearly to appear." Watson v. State , 142 Fla. 218, 194 So. 640, 642 (1940) ; see also E & I, Inc. v. Excavators, Inc. , 697 So.2d 545, 547 (Fla. 4th DCA 1997) ("The appellant has the burden of making 'any reversible error clearly, definitely, and fully appear.' " (quoting Strate v. Strate , 328 So.2d 29, 30 (Fla. 3d DCA 1976) ) ). Appellant has failed to meet this burden in the instant case.

Conclusion

We discern no fundamental error nor need to remand this matter to make explicit a ruling that has already implicitly applied the correct standard of review. On the merits of the denial of a new trial, we find no abuse of discretion. Moreover, as stated above, we also affirm the trial court on all other issues raised in the appeal.

Affirmed .

Ciklin and Conner, JJ., concur.

      "In deciding a motion for new trial which asserts that the verdict is contrary to the weight of the evidence, 'the trial court acts as a safety valve by granting a new trial where "the evidence is technically sufficient to prove the criminal charge but the weight of the evidence does not appear to support the jury verdict." ' " Moore , 800 So.2d at 749 (quoting State v. Hart , 632 So.2d 134, 135 (Fla. 4th DCA 1994) ); see also Tibbs v. State , 397 So.2d 1120, 1123 n.9 (Fla. 1981) ("Rule 3.600(a)(2) thus enables the trial judge to weigh the evidence and determine the credibility of witnesses so as to act, in effect, as an additional juror.").


text:
    Marsha Antonia SEALY, Appellant, v. Trevor SEALY, Appellee.
    No. 4D17-1631
    District Court of Appeal of Florida, Fourth District.
    [May 16, 2018]
    John F. Schutz of John F. Schutz, PL, West Palm Beach, for appellant.
    Trevor Sealy, Fort Lauderdale, pro se.
   Per Curiam.

Former Wife appeals an order directing her and Former Husband to evenly split the proceeds of the sale of their marital home. We have de novo review, as this case involves the interpretation of a contract. See Klinow v. Island Court at Boca W. Prop. Owners' Ass'n , 64 So.3d 177, 180 (Fla. 4th DCA 2011). Because the trial court's remedy exceeds the remedy provided for in the parties' mediated settlement agreement, we reverse. See Chambliss v. Benedikter , 941 So.2d 589, 591 (Fla. 4th DCA 2006) (although generally a court is empowered to fashion a remedy that balances equities between parties, it has no authority to vary the explicit terms of a contract).

The mediated settlement agreement indicates that, should Former Wife fail to refinance the mortgage within six months of the dissolution of marriage, Former Husband has the right "to have the house sold or to refinance the house in his own name and buy the wife out of the home for 50% of the equity." The trial court correctly noted that this provision governs the instant dispute. However, it erred in determining that Former Husband would be entitled to 50% of the proceeds of a forced sale of the home, as the 50% language in the contract applies only to the refinance option in which Former Husband refinances the house in his own name and buys out Former Wife's interest in the house.

We therefore affirm the trial court insofar as it forced a sale of the marital home. However, we reverse its grant of 50% of the sale proceeds to Former Husband and remand for evidentiary proceedings as required to determine entitlement to the sale proceeds under the mediated settlement agreement governing the parties' divorce.

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

Levine, Conner and Forst, JJ., concur.


text:
    JD RESTORATION INC., Appellant, v. UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY, Appellee.
    No. 4D17-2415
    District Court of Appeal of Florida, Fourth District.
    [May 16, 2018]
    Gray Proctor of Fox & Loquasto, P.A., Richmond, Virginia, and Mordechai L. Breier of Consumer Law Office, P.A., North Miami Beach, for appellant.
    Sara M. Sandler and John P. Joy of Walton Lantaff Schroder & Carson, Fort Lauderdale, for appellee.
   Per Curiam.

Affirmed. See Quiroga v. Citizens Prop. Ins. Corp. , 34 So.3d 101 (Fla. 3d DCA 2010).

Damoorgian, Forst and Klingensmith, JJ., concur.


text:
    Jennifer DAVIS, Appellant, v. Courtney DAVIS, Appellee.
    No. 4D17-1644
    District Court of Appeal of Florida, Fourth District.
    [May 16, 2018]
    Stephanie L. Serafin and Jane Kreusler-Walsh of the Law Office of Kreusler-Walsh Vargas & Serafin, P.A., West Palm Beach, and Robin J. Scher of the Law Offices of Robin J. Scher, P.A., North Palm Beach, for appellant.
    No appearance by appellee.
   Kuntz, J.

The Former Wife appeals the final judgment of dissolution of marriage. We agree with her that the court erred by failing to make findings as to: (i) whether the timesharing plan was in the best interest of the children; (ii) the paternity of two children; and (iii) alimony and distribution of the Former Husband's automobile business. We reverse.

Background

The Former Husband filed a petition for dissolution of marriage stating that "[t]here are no joint assets or ties" and claiming there were two children common to both parties. The Former Wife responded, requested alimony, and indicated that the court should determine how the assets and liabilities should be distributed. Specifically, the Former Wife indicated that she should be awarded an interest in the Former Husband's property because she put the money into a business, FAS Tech Automotive Repair & Service LLC, and because she worked doing paperwork for that business. Further, she claimed that the Former Husband removed her name from the business without her knowledge. The Former Husband denied these assertions.

The court held an evidentiary hearing at which counsel for the Former Husband stated, "Your Honor, I believe there are no assets or liabilities for equitable distribution. The only issue pending before the Court would be timesharing and parental responsibility." The Former Husband then testified regarding custody of the two children, however, did not testify about assets.

The Former Wife disputed the issue of assets. She stated she had helped him with the paperwork in his business, and her name was removed from the business without permission. Regarding the two children, the Former Wife testified that she did not object to the Former Husband having custody for short periods of time but, in the past, she had difficulty with the Former Husband returning the children to her.

At the hearing's conclusion, the court granted the dissolution and instructed the Former Husband's counsel to "prepare a final judgment in that regard." The court then noted that the children belonged in Palm Beach County. Subsequently, the court issued the written Final Judgment, finding that there were no assets nor any requests for alimony. The Final Judgment required the Former Wife to return the minor children to the Former Husband in Palm Beach County but no parenting plan was attached.

The Former Wife sent a letter to the court stating that she had returned to Palm Beach County and requesting a timesharing hearing. Two days later, the court entered an amended final judgment. The amended final judgment provided that there would be shared parental responsibility, with the children spending every other weekend with the mother.

The Former Wife filed a motion for rehearing raising arguments now raised on appeal. After the court denied the motion for rehearing, the Former Wife appealed.

Analysis

The Former Wife raises multiple arguments on appeal. First, she argues the court failed to make findings as to whether the timesharing plan was in the best interest of the children. Second, she argues the court failed to make any findings regarding her other two children-one who was born during the marriage while the Former Husband was incarcerated and the other who was conceived after the parties separated but born prior to the dissolution. Third, the Former Wife challenges the court's findings, or lack of findings, regarding distribution of assets and alimony. We address each argument below.

1. Best Interest of the Children

First, the Former Wife argues that the trial court did not make any findings as to the children's best interest.

Section 61.13(3), Florida Statutes (2016), provides that the "[d]etermination of the best interests of the child shall be made by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family." The statute includes a non-exhaustive list of twenty factors that may be considered. Id. When making a determination of the best interest of the children, the court need not independently address each of the listed factors, but the court must make a finding that the timesharing schedule is in the best interest of the children. Winters v. Brown , 51 So.3d 656, 658 (Fla. 4th DCA 2011).

Here, the transcript of the evidentiary hearing shows that the court heard testimony regarding various factors that would prove relevant under the statute. However, the court never made any findings on the record or in its written order as to the children's best interest in living with the Former Husband. Therefore, we must reverse. See Clark v. Clark , 825 So.2d 1016, 1017 (Fla. 1st DCA 2002).

2. The Two Additional Children

Next, the Former Wife argues that the final judgment is deficient because it did not make any findings about her two additional children-one who was born during the marriage and the other who was born during the marriage but during separation.

The Former Husband and Former Wife agree that the first child is not the Former Husband's biological child. Additionally, there is nothing in the record to refute the Former Husband's assertions that the second child was conceived after separation but prior to the dissolution. But, the court did not make any findings as to either child.

In Daniel v. Daniel , 695 So.2d 1253, 1254 (Fla. 1997), our supreme court approved a decision which held, in relevant part, that "a husband ... who is not the natural or adoptive parent of a child, and has not otherwise contracted for the child's care and support, has no duty to pay child support upon the dissolution of the marriage." That holding was based upon the "well-settled rule of law in this state that a person has no legal duty to provide support for a minor child who is neither his natural nor his adopted child and for whose care and support he has not contracted." Id. (internal quotation omitted).

Here, the court failed to make any finding regarding these two children. On remand the court must make a finding as to whether or not the Former Husband has a duty to pay support. If the court determines the exception discussed in Daniel does not apply, the court must consider support and timesharing for these two children.

3. Equitable Distribution and Alimony

In his petition for dissolution, the Former Husband indicated that there were no marital assets or liabilities. However, the Former Wife responded and disputed this assertion, arguing that she deserved an interest in the Former Husband's automotive business. Later, at the evidentiary hearing, the Former Wife again stated that she disputed the assertion by counsel for the Former Husband that there were no marital assets. Notwithstanding her written and oral objections, the court did not make a finding as to whether the automobile business was a marital asset.

Section 61.075(7), Florida Statutes (2016), governs the equitable distribution of marital assets and liabilities. And, in absence of a valid separation agreement or a date within that agreement, the "cutoff date" for determining whether something is a marital asset, is the date of the filing of the petition for dissolution. Id. Furthermore, "[a]ll assets acquired and liabilities incurred by either spouse subsequent to the date of the marriage and not specifically established as nonmarital assets or liabilities are presumed to be marital assets and liabilities." Id. § 61.075(8). The presumption is rebutted "by a showing that the assets and liabilities are nonmarital assets and liabilities." Id. The court failed to make a finding as to whether the automotive business was a marital asset or, alternatively, that the presumption was rebutted and the asset was nonmarital.

Similarly, the Former Wife argues the court erred when it concluded alimony was not an issue in the case. In her counter-petition, the Former Wife requested spousal support in the amount of $500.00. On remand the court shall make a finding regarding alimony.

Conclusion

The court erred by failing to make a written or oral finding regarding: the best interests of the two children agreed to be the biological children of the Former Wife and Husband; the two other children; and equitable distribution of the automotive business and alimony. Thus, the final judgment is reversed and the case remanded for further proceedings.

Reversed and remanded.

Gross and Taylor, JJ., concur.

      As part of this argument, the Former Wife also argues the final judgment was inconsistent with the court's oral rulings regarding timesharing. We disagree because the final judgment accurately reflected the court's oral pronouncements.

      Again, the court's conclusion was induced by counsel for the Former Husband who informed the court that there were no assets to be distributed and that alimony was not an issue.


author: SALTER, J.

text:
    David CANTA and Corazon Canta, Petitioners, v. PHILIP MORRIS USA, INC. and R.J. Reynolds Tobacco Co., Respondents.
    No. 3D17-1959
    District Court of Appeal of Florida, Third District.
    Opinion filed December 27, 2017
    The Ferraro Law Firm and James L. Ferraro and Juan P. Bauta, II, for petitioners.
    Arnold & Porter Kaye Scholer and Frances Daphne O'Connor and Geoffrey J. Michael, (Washington, D.C.), for respondent Philip Morris USA, Inc.; Carlton Fields Jorden Burt and Jeffrey A. Cohen, Benjamine Reid and Douglas J. Chumbley ; Jones Day and Jason T. Burnette (Atlanta, GA), for respondent R.J. Reynolds Tobacco Company.
    Before SALTER, EMAS and LOGUE, JJ.
   SALTER, J.

David and Corazon Canta, plaintiffs in an Engle-progeny tobacco case, petition for a writ of certiorari quashing a trial court order disqualifying their counsel. Concluding that the Cantas have not shown a departure by the trial court from the essential requirements of law-in this case, the provisions of applicable Rules Regulating The Florida Bar-we deny the petition.

I. Facts and Procedural History

A. The Alleged Conflict; Early Disqualification Motions

The Cantas retained The Ferraro Law Firm ("Ferraro Firm") to represent them regarding their claims for injuries and damages from smoking cigarettes manufactured by the defendants/respondents, Philip Morris USA, Inc. ("PM") and R.J. Reynolds Tobacco Co. ("RJR"). The Cantas' lawsuit against PM and RJR commenced in 2007.

In 2015, the Ferraro Firm hired attorney Paulo Lima, who had previously been employed as an associate attorney at the New York and Miami offices of Hunton &

Williams, LLP ("Hunton Firm"). Importantly, Lima worked for the Hunton Firm from 2005 through his 2015 departure, and during that period he performed legal work on behalf of PM, a client of the Hunton Firm. Lima's legal work, detailed in his timekeeping records, included legal research and drafting memoranda to assist PM in the defense of other Engle-progeny tobacco cases. As part of that work, Lima had access to PM's litigation databases and confidential PM documents, and he attended meetings regarding PM's legal strategy and defenses in tobacco cases. Ultimately, the time records disclosed almost 375 hours billed by Lima to PM regarding Engle-progeny cases, and over 1500 billable hours on PM matters in total.

After Lima joined the Ferraro Firm in May 2015, he immediately began to represent clients of that firm in pending Engle-progeny cases, including several appeals in this Court. In his deposition taken in connection with another Engle-progeny case, Lima testified that "one of the things I discussed with Mr. Ferraro here when I was discussing my employment," was that Lima would handle Engle-progeny cases. Lima went on to testify, however, and to substantiate in an affidavit, that (a) no one at the Ferraro Firm ever asked him to disclose any confidential information belonging to PM or RJR, and (b) at no time did Lima ever discuss any confidential information pertaining to PM or RJR with any employee or member of the Ferraro Firm.

In March 2016, PM and RJR began seeking the disqualification of the Ferraro Firm in pending Engle-progeny cases throughout Florida. The initial motions lacked significant details that were later obtained by PM and incorporated in subsequent motions in other cases. While several of the initial motions were denied (and petitions for certiorari directed at the denial orders were denied without elaboration), subsequent motions for disqualification of the Ferraro Firm in other pending Engle-progeny cases were granted. It is noteworthy, however, that the unsuccessful March 2016 motions to disqualify placed the Ferraro Firm on notice that Lima's former client, PM, claimed Lima had worked on confidential, Engle-related legal issues and strategy. Nonetheless, Lima continued to work on Engle-progeny cases after the Ferraro Firm became aware of Lima's work at PM and PM's objections.

Three months later, in June 2016, a trial court in the Orange County Circuit Court granted PM's motion to disqualify Lima and the Ferraro Firm in an Engle-progeny case styled Hall v. R.J. Reynolds Tobacco Co., No. 2014-CA-005690-O. Lima and the Ferraro Firm did not seek appellate review of that decision, which included detailed findings of the work done by Lima for PM as reflected on his time records. That court found that, among other things, Lima "researched cigarette design defect issues raised in Engle and the law of alternative causation, both of which are litigated in Engle progeny cases to this day, including ... many Ferraro cases." The court also determined that "The affidavit of Kimberly Harlowe submitted by [PM] and not contested by the Ferraro Firm establishes that Mr. Lima had access to, and did access, [PM's] litigation databases and reviewed internal [PM] documents, including highly confidential and privileged documents."

B. Caro

In December 2016, a Florida appellate court reached the same conclusion as the trial court in Hall, quashing a Broward County Circuit Court order denying PM's motion to disqualify Lima and the Ferraro Firm in another Engle-progeny case. Philip Morris USA Inc. v. Caro, 207 So.3d 944 (Fla. 4th DCA 2016). In Caro, the Fourth District rigorously analyzed the "two-prong test for determining whether disqualification is warranted," id. at 948, and applied the test to Lima's work for PM and his move to the Ferraro Firm.

Applying Rule Regulating The Florida Bar 4-1.9(a) and the first prong of that test, the court agreed with the trial court's analysis that there had been an attorney-client relationship between Lima and PM, creating an "irrefutable presumption that confidences were disclosed during the relationship." Id. (quoting State Farm Mut. Auto. Ins. Co. v. K.A.W., 575 So.2d 630, 633 (Fla. 1991) ). As to the second prong, however-whether the matter in which Lima or the Ferraro Firm represented Caro regarding claims against PM "is the same or substantially related" to the matter in which Lima represented PM-the Fourth District disagreed with the trial court:

We disagree with the trial court's conclusion that Lima's work for PM was not substantially related to the issues in Caro's lawsuit against PM in which Lima is now Caro's counsel. In so ruling, the trial court departed from the essential requirements of law. While there are some issues relating to Caro's case, and indeed in every plaintiff's case involving Engle litigation, that are unique to, and distinct from, defense matters on which Lima previously worked, we cannot conclude that Lima's extensive prior representation of PM in defending and strategizing about Engle progeny cases was not substantially related to at least some of the issues here. As PM has argued, each Engle progeny case includes a plaintiff's expert witness who testifies about the defendant company's conduct relating to concealment of information about the health risks of smoking and defective design of cigarettes. This expert testimony is said to vary little from case to case. This reaches beyond a unique plaintiff's issue.

Id. at 949.

Concluding that PM's petition for certiorari should be granted, the Fourth District granted the petition, quashed the order denying PM's motion for disqualification, and directed the trial court to grant the motion. Caro moved for rehearing en banc, which was denied in January 2017.

C. This Case, and Lima's Termination of Employment

On March 1, 2017, citing Caro and other authorities, PM moved to disqualify Lima and the Ferraro Firm from further representation in the present case. The following day, RJR filed a similar motion, incorporating PM's recitation of the facts and law, but adding that RJR had a joint defense agreement with PM. RJR's motion attached an affidavit stating that, while employed at the Hunton Firm, Lima had access to confidential information about RJR and its defense of Engle-progeny lawsuits through a jointly-maintained tobacco litigation database.

Effective the next day, March 3, 2017, the Ferraro Firm terminated Lima's employment with the law firm. In its opposition to the PM and RJR motions for disqualification in this case (Canta ) and other then-pending cases, the Ferraro Firm relied upon the previously-described affidavits of Lima and every lawyer in the Ferraro Firm disclaiming knowledge or discussion regarding any confidences of PM or RJR. The Ferraro Firm's opposition to disqualification in this case, filed March 6, 2017, also contended that the termination of Lima's employment mooted the disqualification motions and changed the analysis relied upon by the Fourth District months earlier in Caro.

In April 2017, the circuit court in Gadsden County, Florida, entered an order in another Engle-progeny case, Russ v. R.J. Reynolds Tobacco Co., No. 15000042 CA, granting PM's motion to disqualify Lima and the Ferraro Firm from the representation of the plaintiff in that case. Addressing Lima's departure from the Ferraro Firm, that court concluded that "the moment Mr. Lima joined the firm, [the Ferraro Firm] was eligible to be disqualified from representing [the plaintiff] in this case. ... Mr. Lima's subsequent departure from [the Ferraro Firm] does not attenuate the taint which inured at the moment Mr. Lima became associated with [the Ferraro Firm]." The order of disqualification also concluded that "the credibility of the judicial system itself is also a worthy consideration, albeit not the only one."

When the PM and RJR motions for disqualification were heard by the trial court in the present case, the Ferraro Firm, on behalf of its clients, argued that the imputed disqualification of all lawyers in the firm ( R. Regulating Fla. Bar 4-1.10(a) ) ended when Lima separated from the firm, and that any "irrefutable presumption" of conflict applicable to Lima's PM or RJR's confidences in a "substantially related matter" ( R. Regulating Fla. Bar 4-1.10(b) ) was abrogated as a matter of law by Lima's departure. After that event, the Ferraro Firm maintained, the firm's representation of the Cantas should be evaluated under Rule Regulating Florida Bar 4-1.10(c) :

(c) Representing Interests Adverse to Clients of Formerly Associated Lawyer. When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer unless:
(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and
(2) any lawyer remaining in the firm has information protected by rules 4-1.6 and 4-1.9(b) and (c) that is material to the matter.

In June 2017, the trial court conducted an evidentiary hearing on the PM and RJR motions for disqualification of Lima and the Ferraro Firm. In a detailed 18-page order entered after the hearing, the trial court concluded that (a) Caro was controlling authority, as this Court had not rendered a controlling decision on the disqualification issues, and (b) Lima's departure did not change the analysis set forth in Caro. Based on those conclusions, the trial court granted the PM and RJR motions for disqualification. The trial court observed that Rule 4-1.10"does not provide an express mechanism for curing that conflict," and that constructing the Rule as contended by the Ferraro Firm "would create adverse incentives by allowing law firms seeking an improper edge to hire conflicted attorneys, litigate disqualification, and then simply fire the conflicted attorneys after a court finds a conflict and imputes it to the law firm."

The Cantas' petition for certiorari followed.

II. Analysis

A. Petitioners' Burden

Certiorari "is the proper method to obtain review of a disqualification order because denying a party counsel of his or her choice is a material injury without appellate remedy." Event Firm, LLC v. Augustin, 985 So.2d 1174, 1175 (Fla. 3d DCA 2008). But in addition to the "material injury without appellate remedy," the Cantas and the Ferraro Firm also have the burden of demonstrating a departure from the essential requirements of the law by the trial court. Coral Gables Chiropractic PLLC v. United Auto. Ins. Co., 199 So.3d 292, 294 (Fla. 3d DCA 2016) ; Steinberg v. Marlin, 201 So.3d 129 (Fla. 3d DCA 2015).

B. Issue Presented; Rule 4-1.10(c)

The narrow question before the trial court, and now us, is whether the imputed conflict in existence in this case from Lima's employment by the Ferraro Firm in mid-2015, through the Ferraro Firm's explicit notification of that conflict when the first PM Engle-related motions for disqualification were filed in March 2016, through the granting of such a motion in Hall in June 2016, through the appellate ruling requiring disqualification in Caro, and through March 2, 2017 (the last day of Lima's employment with the Ferraro Firm), has been cured by Lima's dissociation. Neither Rule 4-1.10 nor any reported Florida appellate opinion addresses that particular "midstream" sequence of events.

Rule 4-1.10(c), relied upon by the Cantas and the Ferraro Firm, addresses a scenario in which a lawyer formerly associated with a law firm leaves the firm and "thereafter" the firm represents "a person with interests materially adverse to those of a client represented by the formerly associated lawyer." The use of the word "thereafter" may signify a new, post-dissociation representation, but does it apply to a lawsuit filed and prosecuted for a significant time before the dissociation, i.e., while a motion for disqualification would have been well taken?

The trial court's order applied the reasoning in Caro and concluded that the Ferraro Firm's conflict "cannot be 'unimputed' after the fact by the termination of Lima." The court turned to the analogous situation in which a law firm delays in enacting a so-called "Chinese wall" to screen or quarantine individual lawyers with a conflict. In doing so, the trial court acknowledged that Florida law does not recognize the concept of screening as an exception to the imputation of conflicts to all the lawyers in a firm, but noted that the American Bar Association Model Rules and other jurisdictions have authorized such a procedure. The court determined that in those cases, "setting up a Chinese wall retroactively is insufficient to cure a previously identified conflict," citing LaSalle Nat'l Bank v. Lake Cty., 703 F.2d 252, 259 (7th Cir. 1983).

The trial court also found a New York opinion helpful:

[T]o rebut the presumption, the screening measures must have been established from the first moment the conflicted attorney transferred to the firm or, at a minimum, when the firm first received actual notice of the conflict. See Marshall v. State of New York Div. of State Police, 952 F.Supp. 103, 111 (N.D.N.Y.1997) ("a screening device implemented only after a disqualified lawyer has been with a firm will not provide adequate protection of confidences"); [In re ] Del-Val Financial [Corp. Securities Litigation ], 158 F.R.D. [270] at 274-75 [ (S.D.N.Y. 1994) ] (presumption rebutted partly on ground that the screening device was implemented immediately upon discovery of the conflict).
* * *
Timing also militates against upholding the efficacy of the screening measures adopted by [the law firm sought to be disqualified]. The record shows that the firm did not formally implement the screen until March 9, 2001, almost two months after [the new, conflicted lawyer] joined the firm and well after the time the firm had actual notice of the conflict. A screening device implemented only after a disqualified lawyer has joined the firm, in an instance where the firm knew of the problem at the time of her arrival, further diminishes the possibility that screening remedies the conflict present this case.

Mitchell v. Metro. Life Ins. Co., Inc., 2002 WL 441194, at *9-10 (S.D.N.Y. Mar. 21, 2002).

The trial court next addressed the two Florida cases relied upon by the Cantas and the Ferraro Firm interpreting Rule 4-1.10(c) after a law firm terminates a conflicted lawyer: Nissan Motor Corp. v. Orozco, 595 So.2d 240 (Fla. 4th DCA 1992), and State Farm Mutual Automobile Insurance Co. v. Kugler, 2012 WL 12868733 (S.D. Fla. June 11, 2012). Although the courts in those cases held that disqualification was not required, the trial court in the present case found the Nissan Motor Corp. and State Farm cases to be distinguishable:

Neither case involved a situation where an appellate court had already imputed a conflict to the law firm, or where a conflicted lawyer had continued working on the matter while his law firm litigated disqualification (and, indeed, even after the law firm had been disqualified by at least one trial court). Moreover, in both cases, the law firms terminated the conflicted lawyer immediately upon learning of a potential conflict. [Original emphasis].

Order Granting Defs.' Mot. to Disqualify, Canta v. R.J. Reynolds Tobacco Co., No. 07-46972-CA-22, 2017 WL 4239017 (Fla. 11th Jud. Cir. 2017), at 14.

The trial court's order concluded by addressing the policies underlying Rule 4-1.10 :

The Court recognizes that disqualification is an extraordinary and harsh remedy which should be used sparingly. However, law firms must bear some responsibility to determine the conflicts of new hires in advance and take proactive steps to prevent such problems. See Koulisis v. Rivers, 730 So.2d 289, 292 (Fla. 4th DCA 1999) (placing the evidentiary burden "before the law firm that could have best avoided the ethical problem by more carefully screening a hiring decision").
* * *
"When defendants no longer have absolute faith that all confidential communication with counsel will remain forever inviolate, no candid communication will transpire, and the guarantee of effective assistance of counsel will become meaningless. This is too high a cost for society to bear." Castro v. State, 597 So.2d 259, 260 (Fla. 1992) (citation omitted)(emphasis added). The circumstances here, including the fact that Lima continued to brief and argue appeals on Engle-progeny cases for a full year after the motions were filed (and the Firm was put on notice of the potential for disqualification), tip the balance in favor of disqualification. [Original emphasis].

Order, supra, at 15-17.

C. The Preamble to the Rules

We can add little to the well-reasoned and detailed order entered by the trial court following the evidentiary hearing. But consistent with that order, we observe first that this District has followed Koulisis for the proposition that the allocation of the burden of proof to the allegedly-conflicted law firm following a showing that the newly associated attorney acquired confidential information during his prior representation, as occurred here, "acknowledges the difficulty of proving what someone knows and places the procedural hurdle before the law firm that could have best avoided the ethical problem." Gaton v. Health Coal., Inc., 745 So.2d 510, 511 (Fla. 3d DCA 1999).

We also turn to the preamble to Chapter 4, "Rules of Professional Conduct," directed to all of the Rules discussed in this opinion. The preamble is titled, "A Lawyer's Responsibilities." Within that preamble we find these passages that should guide all lawyers, but seem particularly pertinent in the case of both (1) a lawyer "switching sides" in civil litigation who has acquired confidential information from a former client before joining a new firm that has a public record of pursuing a specific category of claims against that former client, and (2) a new firm which must know, or surely should know, that the new lawyer was with a firm that represented that former client for a course of years, and personally worked on that specific category of cases before the switch.

The preamble explains that "Within the framework of these rules ... many difficult issues of professional discretion can arise. These issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the rules. ... The rules do not, however, exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules." Although we reiterate that Florida has not accepted a so-called "Chinese wall" or "screening" process as a cure-all for lawyers who move to a new law firm with client confidences that might otherwise support disqualification in an existing or new representation by the new firm, the preamble's definition of "screening" is informative: " 'Screening' denotes the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these rules or other law."

Not only did the Ferraro Firm fail to initiate an inquiry and a screening process when Lima joined the firm in 2015, there is no indication that the firm removed Lima from work on Engle-progeny cases for a year after PM detailed the kinds of client confidences Lima's work had included before he switched sides. The preamble states that, "In order to be effective, screening measures must be implemented as soon as practicable after a lawyer or law firm knows or reasonably should know that there is a need for screening."

Neither Rule 4-1.10(c) nor the comments to the Rule directly address the firm's ability to continue in a matter "representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer" after the formerly associated lawyer has been terminated precisely because his presence resulted in disqualification in other "substantially related" matters. "Unimputing" a conflict seems as implausible as unringing a bell, unscrambling an omelette, or pushing toothpaste back into the tube.

D. The Restatement (Third) of the Law Governing Lawyers

The petition argues that we should recognize and give effect to section 124, "Removing Imputation," of the Restatement (Third) of the Law Governing Lawyers (2000). Section 124(1) provides that the imputation of prior client confidences (obtained at a prior firm by a "personally prohibited lawyer") "does not restrict an affiliated lawyer when the affiliation between the affiliated lawyer and the personally prohibited lawyer that required the imputation has been terminated, and no material confidential information of the client, relevant to the matter, has been communicated by the personally prohibited lawyer to the affiliated lawyer or that lawyer's firm." At first reading, that language seems to "remove" the imputed conflict when the "personally prohibited lawyer" (Lima, in this case) "has been terminated."

On a closer reading of comment c. to section 124, however, and an illustration provided within that comment, it seems clear that imputation is removed as to prospective or new representations following the termination of the personally prohibited lawyer:

c. Imputation after the termination of an affiliation.
c.(i). Personally prohibited lawyer terminates the affiliation. During the time that a personally prohibited lawyer is associated with another lawyer, law firm, or other organization to which prohibition is imputed under § 123, the lawyer could reveal confidential information to any lawyer within the organization. Accordingly, imputed prohibition of all lawyers in the firm is appropriately required by § 123. However, after the personally prohibited lawyer has left the firm, an irrebuttable presumption of continued sharing of client confidences or continued disloyalty induced by the affiliation is no longer justified.
* * *
Illustration:
1. Lawyer A is a partner in ABC law firm, and Lawyer B formerly was a partner. Client X has sought to retain Lawyer A to file suit on behalf of X against Y. Before joining the ABC firm, Lawyer B had represented Y at an earlier stage of the current dispute. Lawyer B has now resigned from the ABC firm, disclosed no confidential information about Y relevant to the matter to other lawyers in ABC, left no files at ABC that relate to the proposed suit, and will not share in fees derived by the ABC firm from the representation of X. The limitation governing B, resulting from the pro posed representation being substantially related to the prior representation of Y by B (see § 132), is no longer imputed to A. Hence A may represent Client X against Y. (Emphasis provided).

The use of the term "proposed" representation conveys the important limitation on "removing" the imputation-once the "personally prohibited lawyer" has been terminated, a proposed new representation may be taken on by the formerly affiliated, remaining lawyers at the firm if the other conditions in section 123 are met. The provision does not address the continuance of an attorney-client relationship that already existed when the "personally prohibited lawyer" joined the firm, and following an extensive period of imputation that would have, pre-termination, warranted disqualification of the firm.

III. Conclusion

Reviewing a record that is devoid of any proactive effort by the Ferraro Firm to thoroughly and expeditiously investigate any possible conflicts with PM or RJR based on Lima's prior work, at the outset of their association, or even ten months later when PM and RJR detailed in writing the existence and nature of the conflict, we agree with the trial court that "law firms must bear some responsibility to determine the conflicts of new hires in advance and take proactive steps to prevent such problems." Order, supra, at 15.

Following our thorough review of the record below, the trial court's order, the briefs and authorities cited by the parties, and oral argument by counsel, we do not find a departure from the essential requirements of law.

Petition denied.

      Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006).

      Jacobson v. Philip Morris USA, Inc., No. 08-1195-CA-20 (Fla. 11th Cir. Ct. filed Jan. 10, 2008).

      Rule Regulating The Florida Bar 4-1.10(a) imputed any disqualification of Lima, while with the Ferraro Firm, to all other lawyers in that law firm.

      The plaintiffs petitioned for certiorari and quashal of the disqualification order in the First District. The petition is pending; Russ v. Philp Morris USA, Inc., No. 1D17-1847.

      By then, Lima and the Ferraro Firm had been disqualified by trial courts in the Ninth Circuit (Hall ) and in two other pending Engle-progeny cases in the Second Circuit (Russ ) and Seventeenth Circuit (Balaban v. Philip Morris USA, Inc., No. 14-14204(05)). The latter two decisions also relied upon the Fourth District decision in Caro as the only then-reported appellate decision in Florida and thus as binding authority. Pardo v. State, 596 So.2d 665, 666 (Fla. 1992).

      Although the PM and RJR motions sought, and the trial court granted, disqualification of Lima as well as the Ferraro Firm, Lima's departure from the firm mooted the issue as to him individually. The Cantas' petition is only directed to the disqualification of the Ferraro Firm.

      As noted by the trial court in its order, however, U.S. Bankruptcy Judge Thomas E. Baynes, Jr., considered the question in a conflict/disqualification opinion. "There does not appear to be any authority to cure a conflict that has arisen under Rule 4-1.10(b), by terminating association with a tainted lawyer." Harpley v. Ducane Indus. (In re Outdoor Prods. Corp.), 183 B.R. 645, 650 n.7 (Bankr. M.D. Fla. 1995).

      Florida courts have regularly turned to the Restatement (Third) for guidance in cases involving the professional obligations of lawyers and law firms.