author: PER CURIAM.

text:
    Yacenda HUDSON and Amina McNeil, and Ditech Financial LLC f/k/a Green Tree Servicing, LLC, Petitioners, v. Wilson MARIN and Paola Sibon, Respondents.
    Nos. 3D17-2754 & 3D17-2755
    District Court of Appeal of Florida, Third District.
    Opinion filed August 15, 2018
    Tromberg Law Group, P.A., and Jason Joseph (Boca Raton); Law Office of Zena X. Duncan, P.A., and Zena X. Duncan, Miami; White & Case LLP, and Raoul G. Cantero and Zachary B. Dickens, Miami; Hinshaw & Culbertson LLP, and Maureen G. Pearcy and David S. Weinstein, Coral Gables, for petitioners.
    Jacobs Legal, PLLC, and Bruce Jacobs, Miami, for respondents.
    Before ROTHENBERG, C.J., and SUAREZ and SCALES, JJ.
   PER CURIAM.

In these consolidated prohibition proceedings, petitioners Yacinda Hudson and Amina McNeil, both attorneys, each seek a writ prohibiting the trial court from conducting any further proceedings related to a November 20, 2017 trial court order directing petitioners to show cause why they should not be held in indirect criminal contempt of court for violation of a discovery order. This challenged order also appoints the respondents' counsel, attorney Bruce Jacobs, to prosecute the indirect criminal contempt proceedings on behalf of the trial court. After we consolidated the two petitions, this Court permitted the plaintiff below, Ditech Financial LLC ("Ditech"), to submit a brief in support of the two petitioners, both of whom are employed by a law firm representing Ditech in a foreclosure case against the respondents. Because, under the facts and circumstances of this case, (i) the acts cited in the show cause order do not constitute indirect criminal contempt of court so as to impose a threatened jail sentence against the petitioners, and (ii) attorney Jacobs cannot serve as the special prosecutor because he is a material witness to the underlying acts providing the basis for the lower court's show cause order, we grant the consolidated petition for writ of prohibition and issue the writ.

I. Relevant Facts and Procedural Background

On September 4, 2015, Ditech filed a foreclosure action against the respondents, defendants below, Wilson Marin and Paola Sibon. According to Ditech's verified complaint, Marin defaulted by failing to make his August 2014 mortgage payment. Attached to the verified complaint is a September 2010 loan modification agreement between Marin, as borrower, and Green Tree Servicing LLC (now known as Ditech), as lender. The September 2010 loan modification agreement changed many of the original loan terms, brought the original loan current from a prior default, extended the original loan's maturity date, waived late charges and lowered the monthly payment.

In their Answer, the respondents declared that the mortgage, note and September 2010 loan modification agreement spoke for themselves, but denied all allegations with respect thereto. The respondents also raised numerous affirmative defenses, none of which appear to be specifically directed toward the September 2010 loan modification agreement.

In February 2017, the law firm of Gladstone Law Group, P.A. filed a notice of appearance as Ditech's new counsel. The notice, which was signed by attorney Marie Fox, did not designate any particular attorney from Gladstone Law Group, P.A. as Ditech's attorney of record. Nevertheless, the record confirms that petitioner McNeil represented Ditech on behalf of Gladstone Law Group, P.A. in this matter at all times material to this case.

During discovery, on May 26, 2017, the respondents served a Notice of Taking Deposition Duces Tecum on Ditech. Therein, the respondents requested that "plaintiff's trial witness" produce the following documents for inspection:

DOCUMENTS TO BE PRODUCED
1. All trial exhibits.
2. All training manuals, training policies and/or training procedures for any training under which the witness will claim gives them sufficient knowledge to qualify as a witness under the business records exception to enter those trial exhibits into evidence.
3. All records showing when the witness received any such training, where it was presented, and who presented the training under which the witness will claim gives them sufficient knowledge to qualify as a witness under the business records exception to enter those trial exhibits into evidence.

This notice set the deposition for June 28, 2017.

On June 16, 2017, Ditech filed a motion for a protective order. In its motion, Ditech argued that all of the document requests were "irrelevant to any of the issues framed by the pleadings," stating that Ditech had standing and that the underlying loan was in default. Ditech further noted that it had already produced numerous documents to the respondents, including the September 2010 loan modification agreement between Marin and GreenTree/Ditech. As to the respondents' request for production of training manuals, Ditech specifically objected that "such request seeks to discover information which is not relevant to the subject matter of this action in that it is outside the scope of the instant lawsuit, and is not reasonably calculated to lead to the discovery of admissible evidence." Ditech's motion for protective order was set for hearing on June 27, 2017, but apparently was not heard that day.

On June 28, 2017, before Ditech's motion for a protective order was heard, the respondents' attorney, Bruce Jacobs, took the deposition of Ditech's witness, Christopher Ogden. Attorney McNeil defended the deposition. Although the loan had been modified and that modification was ratified by Marin, the defendant below, attorney Jacobs directed Ogden to answer questions about: (i) Ditech's loan boarding process between the original servicer of the instant note and mortgage (Bank United FCS) and Ditech, when Ditech began servicing the loan in April 2009; and (ii) a power point presentation that Ogden had reviewed on Ditech's loan boarding process. When the deposition became contentious over what attorney Jacobs felt were evasive answers by witness Ogden, attorney Jacobs announced, "I'm going to suspend this deposition, and I'm going to go to court and ask the judge to do something about this."

The next day, June 29, 2017, the matter of the suspended deposition and Ditech's related motion for a protective order were heard by Judge Pedro Echarte, Jr. during calendar call. There is no transcript of the hearing. The trial court, though, entered a written order denying Ditech's motion for a protective order ("the June 29, 2017 Calendar Call Order"), which states in its entirety:

Plaintiff's motion for protective order is Denied. Plaintiff's trial witness shall bring any and all training manuals and documents requested in Defendants' notice of taking deposition duces tecum. The parties shall mutually coordinate the continuation of the deposition of Plaintiff's trial witness prior to trial. Trial shall be July 28th at 10:00 am. If the parties cannot agree on a deposition time and day it shall be on Sunday, July 23, 2017 at midnight.

Over the ensuing three weeks, attorneys Jacobs and McNeil were unable to reach a mutually agreed upon time and date for the continuation of witness Ogden's deposition. While the attorneys agreed upon Friday, July 21, 2017, as the deposition date, they could not agree upon a time of day due to scheduling issues.

In the meantime, on Wednesday, July 19, 2017, prior to the continuation of Ogden's deposition, Ditech filed "Plaintiff's Motion to Seal and Bar Dissemination of Confidential Material" ("Ditech's Seal Motion"). Therein, Ditech argued that its training manuals were privileged work product not subject to disclosure, but that it was "willing to make these materials available for inspection and as the basis of the scope of the deposition of its trial witness" if the trial court entered an order sealing and barring dissemination of the training manuals to the public. After Ditech's motion came before the trial court for an ex parte hearing on Friday, July 21, 2017, the lower court entered an order stating that the motion was not an emergency, that the motion could not be considered ex parte , and that the motion should be scheduled for a hearing.

Consistent with the scheduling dictates of the June 29, 2017 Calendar Call Order, on Sunday, July 23, 2017, at midnight, attorney McNeil and witness Ogden appeared at attorney Jacobs's office for the continued deposition of Ogden. Petitioner Yacenda Hudson, another attorney from the Gladstone Law Group, P.A., was also in attendance. The record reflects that, up to this point, attorney Hudson had no involvement in this case. Given the midnight hour and location of Ogden's continued deposition, attorney Hudson accompanied attorney McNeil ostensibly out of safety concerns for Ms. McNeil.

While witness Ogden brought to the deposition the power point presentation that had been discussed during the suspended deposition so that he could be questioned about it, attorney McNeil advised that Ditech would not turn the presentation over to attorney Jacobs unless attorney Jacobs agreed not to disseminate it to the public until such time as the trial court had the opportunity to rule on Ditech's Seal Motion. Attorney Jacobs refused the request and cancelled the midnight deposition.

The next day, on July 24, 2017, the respondents filed their "Motion for Order to Show Cause why Plaintiff Should not be Sanctioned for Violating the Court's Order on Calendar Call, Fla. R. Civ. P. 1.380, and Fla. R. Jud. Admin. 2.420" ("Show Cause Motion"), which was prepared by attorney Jacobs. The Show Cause Motion was not sworn . Therein, the respondents moved for civil sanctions against Ditech for: (i) Ditech's failure to turn over the power point presentation at the cancelled, midnight deposition; and (ii) Ditech's filing Ditech's Seal Motion that the respondents characterized as a facially insufficient motion to seal the record. As sanctions, the respondents sought to prevent witness Ogden from testifying about Ditech's loan boarding process at trial and for attorney's fees. The Show Cause Motion did not seek sanctions against either of the petitioners.

Ditech filed a response to the Show Cause Motion asserting that it had a right to seek a court order limiting disclosure of the training material to attorney Jacobs only, and reiterated its stance that the training material with respect to its loan boarding process was not relevant to the instant foreclosure action. In sum, Ditech argues that, because its foreclosure action is based on Marin's alleged default under the September 2010 loan modification agreement - and not the original loan - any evidence related to Ditech's boarding process (i.e., how loan status information was transferred to Ditech from Marin's original lender) is irrelevant.

At 9:33 a.m. on November 16, 2017, Judge Echarte conducted a thirty-two minute hearing on the respondents' unverified Show Cause Motion. Only attorneys McNeil and Jacobs attended the hearing. At the start of the hearing, attorney Jacobs advised the trial court that attorney McNeil was not at fault, stating, "To be clear. Ms. McNeil and I have worked together on many cases. This was not Ms. McNeil's doing." Judge Echarte cut attorney Jacobs off mid-sentence and chastised both attorneys for being unable to reach a mutually agreeable date and time for the continued deposition of witness Ogden.

When the discussion turned to Ditech's refusal to turn over the power point presentation at the cancelled, midnight deposition, the following brief conversation occurred:

MR: JACOBS: ... I called [Ditech's counsel] multiple times. No response.
Their only answer was would you agree to a confidentiality provision. I said what is confidential about these records if the witness is every day saying I reviewed these records and this is what they say?
They're testifying to the contents of the records every day. There's not even a good faith basis to claim they're confidential. To which, I got no response, and then I show up on Saturday night. I walk into my office.
There's two lawyers, the managing partner,[ ] plus the witness and Ms. McNeil. They sit down and they say we're not giving you the records. I said why did you make me come here? We already did the deposition of the witness.
THE COURT: Listen, I reviewed your motion.
MR. JACOBS: Okay.
THE COURT: Let me hear from the Plaintiff. Who decided to not turn over the records?
MS. MCNEIL: Our office -
THE COURT: Your office doesn't make decisions. Who decided?
MS. MCNEIL: Our client, Your Honor, in discussion with their legal department.
THE COURT: Huh?
MS. MCNEIL: Our client, Green Tree slash Ditech and -
THE COURT: Give me the name of a person because I want to know who goes to jail, along with the lawyer.

Unsatisfied with attorney McNeil's explanation of what transpired at the cancelled, midnight deposition and as to why the power point presentation was not turned over by Ditech, Judge Echarte commented, "Somebody made a conscious decision to violate my order. That person or persons will soon regret that decision." Then after repeatedly stating that "bad things" were about to happen, the court ordered the power point presentation be produced by noon that day.

Judge Echarte then directed attorney Jacobs to prepare an order to show cause against attorney McNeil, attorney Hudson and witness Ogden for indirect criminal contempt of court for violation of the court's June 29, 2017 Calendar Call Order. The court specifically instructed attorney Jacobs that the show cause order should "recite the facts set forth in your motion." The court then appointed attorney Jacobs to prosecute the indirect criminal contempt proceeding.

That same day, at 11:59 a.m., Ditech served its notice of compliance with the Judge Echarte's oral ruling to turn over the power point presentation by noon. Attached to the notice was a copy of the power point presentation that witness Ogden had purportedly testified to during the suspended deposition and later had brought to the cancelled, midnight deposition.

The next day, November 17, 2017, attorney Jacobs prepared and filed on behalf of the respondents a second motion for order to show cause against Ditech ("Second Show Cause Motion"). Like the first Show Cause Motion, the Second Show Cause Motion was not sworn. This time, the respondents contended that the power point presentation produced by Ditech could not possibly be the training material that witness Ogden had testified about during the suspended deposition; therefore, the respondents argued, Ditech had willfully and contumaciously ignored Judge Echarte's oral ruling - made at the November 16, 2017 hearing - to produce the material by noon that day. The respondents also claimed in their Second Show Cause Motion that "Ditech and its counsel are attempting to introduce evidence under false pretenses by improperly asking that the Court deem these documents confidential," and that witness Ogden "gave grossly inaccurate testimony about Ditech's loan boarding process."

Attorney Jacobs then prepared and submitted to the trial court a proposed order to show cause against witness Ogden and attorneys Hudson and McNeil; attached to this proposed show cause order was an unsworn document, labeled as "Exhibit A," which purported to set forth the factual basis for the order.

While Exhibit A set forth the "facts" from the respondents' Show Cause Motion, Exhibit A also contained numerous additional "facts," added by attorney Jacobs, that had not been included in the respondents' Show Cause Motion, nor even discussed at the November 16, 2017 hearing on same. Indeed, Exhibit A also included - as "facts" related to the respondents' initial Show Cause Motion - allegations that were set forth in the respondents' Second Show Cause Motion (that attorney Jacobs filed after the November 16, 2017 hearing on the respondents' first Show Cause Motion). These additional unsworn "facts" included allegations that: (i) "[t]he training manual produced on November 16, 2017, now appears to show that Ditech's standard business practice does not verify prior servicer's records for accuracy before boarding loans"; (ii) "[t]he training manual produced appears to show that Ditech's witness, Christopher Ogden ..., gave false testimony in an effort to introduce the prior servicer's records into evidence under false pretenses"; and (iii) "Ditech and its counsel improperly sought to have the records deemed confidential to avoid disclosure of the fact that its witness gave grossly inaccurate testimony about Ditech's loan boarding process in an effort to admit prior servicer's records under false pretenses." Thus, the record reflects that although the trial court appointed attorney Jacobs to serve as a special prosecutor and specifically instructed attorney Jacobs to prepare a show cause order reciting the facts set forth in his first Show Cause Motion, attorney Jacobs included additional allegations that he was requiring the petitioners to answer at the show cause hearing.

On November 20, 2017, Judge Echarte entered the proposed order prepared by attorney Jacobs, including its Exhibit A ("Show Cause Order"). The Show Cause Order named the respondents' attorney, Bruce Jacobs, as the prosecutor for the proceedings on the Show Cause Order.

After entry of the Show Cause Order, Ditech moved to disqualify Judge Echarte from the case. Judge Echarte granted the motion and the Honorable Beatrice Butchko took over the case. Pursuant to Florida Rule of Judicial Administration 2.330(h), the petitioners and witness Ogden then moved for reconsideration of the Show Cause Order. The petitioners also moved to disqualify attorney Jacobs from prosecuting the indirect criminal contempt proceeding, arguing that attorney Jacobs was a material witness to the "facts" set forth in Exhibit A, and was personally invested in the outcome of the proceedings on the Show Cause Order.

Attorney Jacobs then prepared and filed a third motion for order to show cause on behalf of the respondents ("Third Show Cause Motion"). This motion, also unsworn , sought to hold Ditech and "Ditech's Legal Department" in indirect criminal contempt based on attorney McNeil's comments during the November 16, 2017 hearing that Ditech "in discussion with their legal department" had made the decision not to turn over the power point presentation at the cancelled, midnight deposition.

On December 7 and 14, 2017, Judge Butchko held a hearing on the various pending matters before her: (i) the petitioners' and witness Ogden's rule 2.330(h) motions for reconsideration of Judge Echarte's Show Cause Order; (ii) the petitioners' motion to disqualify attorney Jacobs from prosecuting the indirect criminal contempt proceeding; (iii) the respondents' Second Show Cause Motion directed toward Ditech; and (iv) the respondents' Third Show Cause Motion directed toward Ditech and "Ditech's Legal Department." Judge Butchko granted witness Ogden's rule 2.330(h) motion for reconsideration, thus dismissing the Show Cause Order against witness Ogden; but, Judge Butchko denied the petitioners' rule 2.330(h) motion. Judge Butchko also denied the petitioners' motion to disqualify attorney Jacobs from prosecuting the indirect criminal contempt proceedings on the Show Cause Order. Following the hearings, the trial court, in summary fashion, entered three separate written orders consistent with these rulings. On January 2, 2018, the trial court entered an order staying proceedings on the Show Cause Order pending this Court's adjudication of the instant prohibition petitions filed by attorneys McNeil and Hudson. ,

II. Analysis

A. Prohibition is an Appropriate Remedy

As a threshold issue, we must first determine whether prohibition is an appropriate remedy to halt the instant indirect criminal contempt proceedings stemming from the Show Cause Order. After all, prohibition is an extraordinary, preventative remedy that is generally granted to prohibit a lower tribunal from acting in excess of its jurisdiction. Shteyn v. Grandview Palace Condo. Ass'n, 147 So.3d 675, 676 (Fla. 3d DCA 2014). Plainly, circuit courts have the "jurisdiction" to enter show cause orders and to conduct indirect criminal contempt proceedings. Indeed, Florida Rule of Criminal Procedure 3.840 expressly authorizes a Florida trial court to: (i) issue an order to show cause against a defendant on the court's own motion; (ii) order that a hearing be held on the show cause order; (iii) appoint an attorney to conduct the hearing on behalf of the court; and (iv) find the defendant in indirect criminal contempt. Plus, a defendant found in indirect criminal contempt of court may seek relief from the contempt order on direct appeal. See, e.g., J.M.P.U. v. State, 858 So.2d 389 (Fla. 3d DCA 2003) ; Kersh v. State Farm Fire & Cas. Co., 686 So.2d 782 (Fla. 3d DCA 1997). So, at least at first blush, prohibition would seem unavailable to the petitioners in this case.

Florida's appellate courts, however, have found that, in very limited circumstances , prohibition will lie to prevent a hearing from going forward on an order to show cause where the factual basis underlying the show cause order, if taken as true, could not constitute contempt of court. See Aurora Bank v. Cimbler, 166 So.3d 921, 927 n.5 (Fla. 3d DCA 2015) (concluding that prohibition would lie to prevent the trial court from going forward on a hearing for civil contempt sanctions for violation of a discovery order because, in part, "[r]efusing to comply with a nonparty mediator's discovery requests directed at privileged information is not contemptuous conduct"); Tsokos v. Sunset Cove Invs., Inc., 936 So.2d 667, 667-68 (Fla. 2d DCA 2006) (granting a writ of prohibition and quashing an order to show cause "why [the petitioners] should not be held in indirect criminal contempt for their willful disobedience and interference with the final judgment in a lawsuit to which they were not parties" because "the final judgment did not proscribe the conduct that forms the basis of the order to show cause"); Eubanks v. Agner, 636 So.2d 596, 598 (Fla. 1st DCA 1994) ("We find ... that the facts alleged in the order to show cause, if taken as true, do not and could not constitute [indirect criminal] contempt of court. Accordingly, we grant the petition for writ of prohibition and order that no further proceedings be had on the order to show cause.");

Anderson Invs. Co. v. Lynch, 540 So.2d 832, 833 (Fla. 4th DCA 1998) (granting petition for writ of prohibition to prevent a contempt proceeding from going forward based on a nonparty witness's failure to appear at a deposition because "a person who is not a party to a pending lawsuit must be served with a subpoena before being required to appear for deposition"); Allman v. Johnson, 488 So.2d 884, 885 n.3 (Fla. 5th DCA 1986) (citing State ex rel. Gary v. Davis, 83 Fla. 422, 91 So. 267 (1922) for the principle that "prohibition is available to restrain a contempt proceeding where petitioner is shown not to have violated any valid order of the trial court at the time it issued an order of contempt"); State ex. rel. Gillham v. Phillips, 193 So.2d 26, 29 (Fla. 2d DCA 1966) ("[P]rohibition is an appropriate remedy to prevent judicial action when the judge is without jurisdiction to act in a cause, and may be specifically invoked against a judge when a party is about to be cited for contempt on the basis of acts which could not constitute contempt of court."). As our sister court explained long ago, "it appears settled that prohibition can be invoked when the very basis of the contempt charge is an invalid one and the proceeding is in violation of the requirements of due process." Scussel v. Kelly, 152 So.2d 767, 780 (Fla. 2d DCA 1963), quashed on other grounds, 167 So.2d 870 (Fla. 1964).

Therefore, if we determine that this is one of those rare cases in which the underlying indirect criminal contempt charge is invalid, then prohibition is available as a remedy to the petitioners. Given the unique factual circumstances presented in this case, we conclude that the underlying Show Cause Order is invalid as to the petitioners, and therefore prohibition is an appropriate remedy in this case.

In addition, prohibition will lie to prevent a contempt proceeding from going forward at a hearing before a judge that should be disqualified. Id. at 782 ; Castro v. Luce, 650 So.2d 1067, 1068 (Fla. 2d DCA 1995). For analogous reasons, we also conclude that prohibition is also an appropriate remedy where the attorney appointed by the trial court to serve as the special prosecutor at the contempt hearing should be disqualified.

B. No Valid Basis for Finding the Petitioners in Indirect Criminal Contempt

The respondents noticed their first Show Cause Motion - directed not toward the petitioners, but at Ditech - for hearing on November 16, 2017. At that hearing, the trial court converted what was to be a proceeding for civil sanctions against a party (Ditech) into an indirect criminal contempt proceeding to punish Ditech's attorney, Ms. McNeil, and also Ms. McNeil's law partner, Ms. Hudson. While a trial court may, on its own, issue an order requiring a person to show cause as to why the person should not be held in indirect criminal contempt, strict compliance with the requirements of rule 3.840 is mandated. See Pugliese v. Pugliese, 347 So.2d 422, 426 (Fla. 1977) ("It is possible to convert civil contempt proceedings to criminal contempt proceedings after a hearing is commenced. Such a conversion would mandate the continuation of the hearing to provide for issuance of an order to show cause that complies with [ rule 3.840 ] with fair opportunity to the respondent to prepare and be heard."); Berlow v. Berlow, 21 So.3d 81, 84 (Fla. 3d DCA 2009) (stating that the failure to strictly comply with rule 3.840 is fundamental error).

Indirect criminal contempt results from conduct outside the presence of the trial court. See Pugliese, 347 So.2d at 425 ; Berlow, 21 So.3d 81, 83 n.1. It generally may be found where there has been (i)

a violation of a clear and definitive court order, or (ii) the offending conduct was "calculated to embarrass, hinder, or obstruct the court in the administration of justice or calculated to lessen the court's authority and dignity." Eubanks, 636 So.2d at 596. For the following reasons, we conclude that the Show Cause Order fails to set forth an adequate factual basis for finding the petitioners in indirect contempt of court under either ground.

1. No Violation of a Clear and Definitive Court Order by the Petitioners

"For a person to be held in contempt of a court order, the language of the order must be clear and precise, and the behavior of the person must clearly violate the order." Paul v. Johnson, 604 So.2d 883, 884 (Fla. 5th DCA 1992) (footnotes omitted); see also Kane v. Sanders, 232 So.3d 1107, 1110-11 (Fla. 3d DCA 2017) ("To support a contempt finding, the violated court order must also clearly and definitely make the party aware of the court's command."). A finding of contempt requires "the violation of the letter of an order - not its spirit." Reder v. Miller, 102 So.3d 742, 744 (Fla. 2d DCA 2012). "A contempt cannot be based on behavior that the court order does not contain." Kane, 232 So.3d at 1111.

The Show Cause Order is premised upon the violation of a discovery order - the June 29, 2017 Calendar Call Order. That discovery order is clearly directed to the party , Ditech, providing that "[Ditech's] trial witness shall bring any and all training manuals and documents requested in [the respondents'] notice of taking deposition duces tecum." Though attorney McNeil is listed in the discovery order's service list as Ditech's attorney, the order is not directed toward her. Clearly, the discovery order is not directed toward attorney Hudson, who had no involvement in the case at the time.

At most, Ditech violated the June 29, 2017 Calendar Call Order by failing to produce the power point presentation at the cancelled, midnight deposition. The respondents have not cited, nor have we found, any cases holding a party's attorney in indirect criminal contempt for the party's violation of a discovery order under circumstances such as are present here. On the record before this Court, we can find no basis to hold attorneys McNeil and Hudson in indirect criminal contempt of court for violation of the June 29, 2017 Calendar Call Order. See Allman, 488 So.2d at 885 n.3 (recognizing that "prohibition is available to restrain a contempt proceeding where petitioner is shown not to have violated any valid order of the trial court").

2. No Evidence of Offending Conduct by Attorneys McNeil and Hudson

Though the June 29, 2017 Calendar Call Order was not directed at attorneys McNeil and Hudson, these petitioners could still be found in indirect criminal contempt if there was any evidence that the petitioners acted in a manner "to embarrass, hinder, or obstruct the court in the administration of justice or calculated to lessen the court's authority and dignity." Eubanks, 636 So.2d at 596. Ostensibly, this could possibly include evidence that the petitioners advised Ditech not to produce the power point presentation at the cancelled, midnight deposition in violation of the June 29, 2017 Calendar Call Order.

Rule 3.840 provides, in relevant part, that the "judge, on the judge's own motion or on an affidavit of any person having knowledge of the facts, may issue and sign an order directed to the defendant, stating the essential facts constituting the criminal conduct charged." Fla. R. Crim. P. 3.840(a). Thus, as relevant here, where the trial court, sua sponte , issues a show cause order, the order must be supported by either a sworn motion, a sworn affidavit, sworn testimony or other evidence that gives the judge adequate knowledge of the events in question. See Wilcoxon v. Moller, 132 So.3d 281, 287 (Fla. 4th DCA 2014) (" Rule 3.840(a) requires the court to issue an order to show cause supported by an affidavit or sworn testimony."); De Castro v. DeCastro, 957 So.2d 1258, 1260 (Fla. 3d DCA 2007) ("The trial court may issue an order to show cause for indirect criminal contempt on its own motion if the trial judge has adequate knowledge of the events in question. Where the show cause order is, however, premised upon facts outside the trial court's knowledge, the order must be based upon an affidavit or sworn testimony of an individual having personal knowledge of the essential facts."); Baker v. Green, 732 So.2d 6, 7 (Fla. 4th DCA 1999) ("In this case there was no sworn affidavit or testimony to support the trial court's issuance of the order to show cause.... Where there is no affidavit or sworn testimony to support the issuance of an order to show cause, the failure to comply with the rule is fundamental error and a contempt order arising out of that proceeding may not stand."). Against this backdrop, we review the record for either (i) any sworn evidence, or (ii) evidence known to Judge Echarte that either petitioner McNeil or Hudson advised Ditech to violate the June 29, 2017 Calendar Call Order.

a. No Sworn Motion, Sworn Affidavit or Sworn Testimony, and Exhibit A's Additional Significant Infirmity

At the November 16, 2017 hearing, Judge Echarte heard no sworn testimony and had before him only the respondents' unsworn Show Cause Motion. And, because no court reporter was present at attorney Jacobs's office on Sunday, July 23, 2017, at midnight, there is no record of what transpired when the continued deposition of witness Ogden was cancelled. Consequently, there is no sworn testimony by witness Ogden about his understanding as to why the power point presentation was not turned over that night.

While the court instructed attorney Jacobs to prepare a show cause order that "recite[s] the fact set forth in [his] motion," the Show Cause Order, prepared by attorney Jacobs and entered by the court, did not set forth any essential facts in the order itself. Rather, the factual basis for the Show Cause Order was set forth in Exhibit A, itself an unsworn attachment to the order. Because Exhibit A was unsworn, it failed to comply with rule 3.840 and, therefore, could not be considered as evidence that the petitioners advised Ditech to violate the June 29, 2017 Calendar Call Order. See Giles v. Renew, 639 So.2d 701, 702-03 (Fla. 2d DCA 1994) ("The [show cause] order the trial court entered failed to set out any facts. Although we believe that the better practice is for the trial court to set out the facts in the order itself, this court has recognized that a person's due process rights will be protected if the order expressly incorporates and attaches the sworn petition to the order in place of setting forth the facts in the order. The order in this case failed to incorporate the facts in the amended petition. Failure to comply with Rule 3.840 constitutes fundamental error.") (citation omitted) (footnote omitted). In sum, the record contains no sworn evidence that either of the petitioners advised Ditech to violate the June 29, 2017 Calendar Call Order.

Aside from being unsworn, Exhibit A to the Show Cause Order suffers from an additional, significant infirmity that we would be remiss in not discussing. Exhibit A contained additional "facts" that were taken directly from the respondents' Second (then unsworn) Show Cause Motion, that attorney Jacobs filed on November 17, 2017 - after the hearing on the respondents' initial Show Cause Motion. Exhibit A therefore contained allegations (incorporated into the Show Cause Order as "facts ") that were never presented prior to, nor considered at, the November 16, 2017 hearing. Nor were any of these additional allegations part of Judge Echarte's stated reason for issuing the Show Cause Order.

By including the allegations from the respondents' Second Show Cause Motion in the Show Cause Order, this matter morphed from a civil contempt proceeding seeking sanctions based on violation of a simple discovery order into a criminal contempt proceeding centered on then unsubstantiated claims that "Ditech and its counsel" suborned perjury of its witness with respect to its loan boarding process.

When the trial court directs trial counsel to prepare an order consistent with its oral ruling, it is expected that the attorney will comply. Attorney Jacobs's inclusion of "facts" in Exhibit A that were outside the scope of the November 16, 2017 hearing on the respondents' Show Cause Motion calls to mind the warning given by the Florida Supreme Court in Pugliese:

We emphasize that in any instance where the trial court can reasonably anticipate that conduct of such a nature is present as will invoke the criminal contempt powers of the court to punish the offender, procedural due process of law demands that the proceedings be conducted in conformity with Fla. R. Crim. P. 3.840. If the trial court is of a mind in cases such as here presented to punish rather than coerce, then counsel for an offended party should be so advised when he makes application for an order of contempt so that proper affidavit and order to show cause can be secured to comply with the requirements of the rule. It is possible to convert civil contempt proceedings after a hearing is commenced. Such a conversion would mandate the continuation of the hearing to provide for issuance of an order to show cause that complies with the rule with fair opportunity to the respondent to prepare and be heard. However, such practice flirts with procedural due process flaws. Accordingly, better practice suggests that such situations be anticipated in advance wherever possible so that the full due process safeguards required by Fla. R. Crim. P. 3.840 will be afforded.

Pugliese, 347 So.2d at 426.

Hence, not only is Exhibit A inadequate because it is unsworn, the inclusion by attorney Jacobs in the Show Cause Order of those "facts" in Exhibit A that were neither contained in the Show Cause Motion nor discussed at the hearing on same, significantly undermines the validity of the Show Cause Order in this case.

b. No Other Evidence that the Trial Judge had Adequate Knowledge of the Events in Question

Absent a sworn motion, sworn affidavit or sworn testimony, rule 3.840 requires that an order to show cause be supported by some other evidence of which the trial judge has adequate knowledge. Wilcoxon, 132 So.3d at 287 ; DeCastro, 957 So.2d at 1260 ; Baker, 732 So.2d at 7. In this matter, because there was no sworn evidence, the trial court presumably derived any knowledge as to why the power point presentation was not produced solely from the two attorneys who attended the November 16, 2017 hearing - attorneys McNeil and Jacobs. As discussed below, nothing from that November 16, 2017 hearing could have provided the trial court with any knowledge - much less "adequate knowledge" - that either of the petitioners had advised Ditech not to produce the power point presentation.

i. Knowledge Derived from Attorney McNeil

We note, preliminarily, some potential constitutional considerations on questions asked to, and answers provided from, attorney McNeil. "Because a criminal contempt proceeding is punitive in nature, potential criminal contemnors are entitled to the same constitutional due process protections afforded criminal defendants in a more typical criminal proceeding." De Castro, 957 So.2d at 1260. "Among these constitutional safeguards are the right to be represented by counsel, ... and the privilege against self incrimination." Pompey v. Cochran, 685 So.2d 1007, 1013 (Fla. 4th DCA 1997).

The November 16, 2017 hearing transcript reflects that when Judge Echarte asked attorney McNeil, "who decided not to turn over the records," the court had not yet decided to convert the hearing on the respondents' Show Cause Motion for civil sanctions against Ditech into an indirect criminal contempt proceeding against attorney McNeil and her colleague. This remained the case after attorney McNeil informed the court that it was Ditech "in discussion with their legal department" that had decided not to produce the power point presentation at the midnight deposition - as evidenced by Judge Echarte's comments, "Somebody made a conscious decision to violate my order. That person or persons will soon regret that decision."

It was not until the discussion turned to the alternate ground for the respondents' Show Cause Motion - Ditech's filing Ditech's Seal Motion after the lower court had already denied Ditech's prior motion for a protective order - that Judge Echarte first suggested that "bad things" were going to happen to attorney McNeil because the power point presentation was not produced at the midnight deposition. Immediately upon ordering that Ditech produce the material by noon that day, the trial court directed attorney Jacobs to prepare an order to show cause against the petitioners and witness Ogden for indirect criminal contempt. The trial court then cautioned Ms. McNeil that she had the right not to incriminate herself, as well as the right to an attorney.

Attorney McNeil argues the trial court violated her right to counsel and her right against self-incrimination at the November 16, 2017 hearing by questioning Ms. McNeil before warning her that she was facing indirect criminal contempt charges. Because attorney McNeil did not make any self-incriminating statements to the lower court that could support a finding of indirect criminal contempt of court against her in this proceeding, we need not reach this question because the error, if any, was harmless. Deviney v. State, 112 So.3d 57, 79 (Fla. 2013) ("Miranda violations are subject to a harmless error analysis.").

As for what transpired at the November 16, 2017 hearing, nothing in the short hearing transcript remotely suggests that attorney McNeil was responsible for the power point presentation not being produced at the cancelled, midnight deposition. Attorney McNeil never stated to the court that she had advised Ditech not to produce the power point presentation, nor did she ever imply it to the court. Attorney Jacobs even defended attorney McNeil at the hearing, representing that "[t]his was not Ms. McNeil's doing." From attorney McNeil, the trial court could not have derived any knowledge that attorney McNeil had advised Ditech not to produce the power point presentation.

ii. Knowledge Derived from Attorney Jacobs

This leaves us with attorney Jacobs. Attorney Jacobs implied at the hearing that attorney Hudson - who had no prior involvement in the case, and who had ostensibly attended the midnight deposition out of safety concerns for her colleague - was somehow responsible for Ditech's refusal to turn over the power point presentation. Attorney Jacobs gave no basis for his reasoning, which, on this record, we find amounts to mere speculation.

Furthermore, as mentioned earlier, as for whether attorney McNeil advised Ditech not to produce the power point presentation, attorney Jacobs expressly stated at the November 16, 2017 hearing that attorney McNeil had no culpability: "This was not Ms. McNeil's doing."

At most, the hearing transcript reflects that someone within Ditech's own legal department advised Ditech not to produce the power point presentation at the cancelled, midnight deposition. This evidence, even if taken as true, cannot constitute indirect criminal contempt by the petitioners . See Eubanks, 636 So.2d at 598.

In sum, we have exhaustively reviewed the record below in this case, and can find no evidence, sworn or otherwise, that either of the petitioners violated, or advised Ditech to violate, the June 29, 2017 Calendar Call Order; we are simply unable to unearth any basis for a finding of indirect criminal contempt against either of the petitioners. Therefore, under the very limited circumstances presented in this case, the Show Cause Order is invalid as to the petitioners and, therefore, the remedy of prohibition is available to them. See Aurora Bank, 166 So.3d at 927 n.5 ; Tsokos, 936 So.2d at 667-68 ; Eubanks, 636 So.2d at 598 ; Anderson Invs. Co., 540 So.2d at 833 ; Allman, 488 So.2d at 885 n.3 ; State ex. rel. Gillham, 193 So.2d at 29 ; Scussel, 152 So.2d at 780.

C. Attorney Jacobs is a Material Witness to the Contempt Proceeding

Normally, having concluded that the petitioners are entitled to prohibition, we would not reach the issue of whether attorney Jacobs should be disqualified as the special prosecutor to assist the court in the indirect criminal contempt proceedings. Given, however, the paucity of case law on this discrete issue - coupled with the understanding that the respondents' Second and Third Show Cause Motions remain pending in this case - we think it appropriate to provide guidance to the bench and bar as to whether a lawyer, who is also a material witness in an indirect criminal contempt proceeding, may also serve as the special prosecutor in the proceeding.

To assist a trial court in conducting an indirect criminal contempt proceeding, rule 3.840 authorizes the trial court to appoint "the prosecuting attorney" or an "attorney appointed for that purpose." See Fla. R. Crim. P. 3.840(d). This authorization is not, however, without limitation. As the Fourth District has recognized, there are circumstances where trial counsel is incapable of assisting the trial court in the manner contemplated by rule 3.840(d) :

In many criminal contempt cases where the attorney for the moving party is appointed to "assist" the court under Rule 3.840(b) [sic], the attorney's involvement amounts to nothing more than calling witnesses, conducting examinations, and making argument at a contempt hearing; such involvement assists a judge who might otherwise handle the hearing "without assistance of counsel," and be in the difficult position of both a "quasi" prosecutor and judge, a situation sanctioned by contempt jurisprudence. Fla. R. Crim. P. 3.840(b) [sic]. When conducted in this way, the contempt proceeding is similar to other problem-solving exercises where the primary issues are how to rectify violations of a court order and how to secure future compliance with it.
There is a great difference between an "appointed" prosecutor who develops facts to support a finding and one who misuses the appointment for injustice and oppression.

Gordon v. State, 967 So.2d 357, 358 (Fla. 4th DCA 2007).

Here, as in Gordon, it is readily apparent that the attorney appointed to assist the trial court in conducting the indirect criminal contempt proceedings would do much more than call witnesses, conduct examinations, and make argument at the hearing. Because no court reporter was present at attorney Jacobs's office on Sunday, July 23, 2017, at midnight, only those persons in attendance know precisely what transpired when attorney Jacobs called off the continued deposition of witness Ogden for Ditech's conditioning of its production of the power point presentation. As attorney Jacobs is obviously one of those persons, he is a material witness to those events.

We believe Rule Regulating the Florida Bar 4-3.7's general prohibition against a lawyer acting as an advocate at a trial in which the lawyer will be a witness will, under ordinary circumstances, prevent a lawyer who is a material witness to events forming the very core of an indirect criminal contempt proceeding from also assisting the trial court as the prosecutor in those same proceedings. Further, because Florida's courts have consistently held that prohibition is an appropriate remedy to prevent a contempt hearing from proceeding before a judge who should be disqualified, we similarly conclude that prohibition will lie to prevent a lawyer who is a material witness to events forming the core of an indirect criminal contempt proceeding from also serving as the prosecutor in those same proceedings. That is especially true in the instant case where attorney Jacobs is not only a material witness; he is also the individual who has made the allegations that are contained in the Show Cause Order, and he has further demonstrated that he does not feel constrained by the trial court's directives in prosecuting this matter.

III. Conclusion

The Show Cause Order fails to set forth an adequate factual basis for finding the petitioners in indirect criminal contempt of court. The petitioners did not violate any provision of the June 29, 2017 Calendar Call Order, which was directed at Ditech, and not the petitioners. No sworn motion, sworn affidavit or sworn testimony was provided in support of the Show Cause Order. Exhibit A, the only attachment to the Show Cause Order, is unsworn and, therefore, the order fails to comply with rule 3.840 ; plus, the Show Cause Order is infirm because its Exhibit A contains factual findings that were neither contained in the respondents' Show Cause Motion nor discussed at the hearing on same. The November 16, 2017 hearing transcript reveals, at most, that someone within Ditech's own legal department - and not either of the petitioners - advised Ditech not to produce the power point presentation at the cancelled, midnight deposition in possible violation of the June 29, 2017 Calendar Call Order. In sum, the record is devoid of any contemptuous conduct by the petitioners.

Moreover, because attorney Jacobs is a material witness to the underlying acts providing the factual basis for the Show Cause Order, he should have been disqualified from serving as the special prosecutor at the indirect criminal contempt proceeding.

This Court is mindful that prohibition is an extraordinary remedy that should be employed cautiously, in narrow circumstances, and in emergency situations. English v. McCrary, 348 So.2d 293, 296 (Fla. 1977). We find this to be such a case. Indeed, what began as a routine mortgage foreclosure action based on the borrower's alleged default of a September 2010 loan modification agreement has seemingly devolved into a heated dispute over the legitimacy of Ditech's loan boarding process based on Ditech's alleged violation of a simple discovery order to produce training material upon which Ditech argues it will not even rely at trial. The petitioners find themselves caught in the middle of this dispute, facing indirect criminal contempt sanctions (and even jail time), despite there being no evidence that the petitioners are at all responsible for violating the discovery order. Accordingly, we grant the consolidated petitions for writ of prohibition, issue the writ, and order that no further proceedings be had on the Show Cause Order.

Prohibition granted; writ issued.

      The petitioners also sought, in the alternative, issuance of a writ of certiorari. We need not, and therefore do not, reach the issue of whether certiorari is an appropriate remedy in this matter.

      At the time, Ditech was represented by a different law firm.

      Attorney McNeil is listed as Ditech's counsel in the order's service list.

      There is no transcript of these events because the court reporter who had been hired to transcribe the deposition had not yet arrived at attorney Jacob's office when these discussions occurred.

      The record reflects that Jacobs is referring to attorney Hudson as the "managing partner." In the consolidated petition, attorney Hudson maintains that she is not a managing partner at the Gladstone Law Group, P.A., which has since changed its name to Tromberg Law Group, P.A.

      At no point during this abrupt November 16, 2017 hearing did attorney McNeil state, or even suggest, that either she or attorney Hudson had advised Ditech not to produce the power point presentation at the cancelled, midnight deposition.

      While it is upon this Show Cause Order that the instant consolidated petitions seek to prohibit further proceedings, we include, infra , much of the post-Show Cause Order procedural occurrences to help inform our issuance of the instant writ.

      Rule 2.330(h) authorizes the reconsideration of prior factual and legal rulings made by a disqualified judge so long as such reconsideration motion is filed within twenty days of the disqualification order.

      The day prior to the December 14, 2017 hearing, the respondents amended their Second and Third Show Cause Motions to add a sworn, verification by attorney Jacobs.

      The December 14, 2017 hearing transcript reflects that the trial court also stayed any ruling on the respondent's Second and Third (now verified) Show Cause Motions pending the outcome of this consolidated petition.

      The trial court docket reflects that, while the consolidated petitions have been pending before this Court, Judge Butchko recused herself from this case. The case was then reassigned to the Honorable Abby Cynamon, who also recused herself from this case. The case is currently assigned to a fourth trial court judge, the Honorable Jacqueline Hogan Scola. After oral argument before the panel of this Court, the respondents also sought the recusal of two panel members: Chief Judge Rothenberg and Judge Suarez; both of these judges denied the respondents' recusal motion.

      The petitioners and Ditech argue that, because the June 29, 2017 Calendar Call Order instructed Ditech's witness to "bring" the power point presentation to the continued deposition, as opposed to turning it over, no violation of the discovery order occurred in this case. We find this argument highly questionable, given that Ditech subsequently filed Ditech's Seal Motion, and that attorney McNeil conceded at the November 16, 2017 hearing that it was Ditech's understanding that the June 29, 2017 Calendar Call Order required that the power point presentation be produced. Given our resolution of this matter on other grounds, though, we need not, and therefore do not, reach this issue. This argument may be more appropriate for proceedings on Ditech's Second and Third Show Cause Motions that are directed toward Ditech and "Ditech's Legal Department."

      Because the respondents' initial Show Cause Motion was not sworn, it also would have failed to comply with rule 3.840 had it been attached to the Show Cause Order.

      In its brief, Ditech reiterates its long held position that it has no intention of relying upon any information about its loan boarding process at trial because the underlying foreclosure action is based on Marin's alleged default of the September 2010 loan modification agreement. See, footnote 5, supra . Therefore, Ditech argues essentially that both it and the petitioners now face being found in indirect criminal contempt for Ditech's failure to timely comply with a court order to produce an irrelevant document.

      These circumstances again call to mind the Florida Supreme Court's warning in Pugliese of the due process pitfalls that can arise where, as here, a civil contempt proceeding converts into a criminal contempt proceeding mid-hearing.

      The respondents do not address the propriety of attorney Jacobs serving as the special prosecutor at the indirect criminal contempt hearing in their consolidated response to the consolidated petition. At oral argument, however, attorney Jacobs conceded that he is a material witness to the events in question.

      Scussel, 152 So.2d at 780 ; Castro, 650 So.2d at 1068.


source: Caselaw Access Project

author: LAGOA, J.

license: Public Domain

text:
    911 DRY SOLUTIONS, INC., etc., Petitioner, v. FLORIDA FAMILY INSURANCE COMPANY, Respondent.
    No. 3D18-487
    District Court of Appeal of Florida, Third District.
    Opinion filed August 22, 2018.
    Font & Nelson, PLLC, and Jose P. Font and Adam Friedman (Fort Lauderdale), for petitioner.
    Butler Weihmuller Katz Craig LLP, and Anthony J. Russo and Mihaela Cabulea (Tampa), for respondent.
    Before ROTHENBERG, C.J., and LAGOA and LOGUE, JJ.
   LAGOA, J.

Petitioner, 911 Dry Solutions, Inc. ("Petitioner"), seeks a writ of certiorari to quash the order of the Circuit Court Appellate Division granting Respondent, Florida Family Insurance Company's ("Respondent"), motion to dismiss the appeal for lack of jurisdiction. We deny the petition.

I. FACTUAL AND PROCEDURAL BACKGROUND

Juliet Elliston and Andrew Elliston (the "Insureds") purchased an insurance policy from Respondent for coverage on a property located in Miami. After the Insureds' property sustained a covered loss as a result of water damage, the Insureds contracted with Petitioner to provide water restoration services to attempt to mitigate damages, and assigned to Petitioner all insurance rights, benefits, and proceeds under the policy. After completing its work, Petitioner submitted to Respondent an invoice totaling $9,529.27 for services rendered. Respondent then secured a comparative estimate of the invoice valued at $2,484.42. Respondent paid the undisputed amount of $2,484.42 and demanded appraisal from both Petitioner and the Insureds to resolve the difference.

Petitioner subsequently filed an action against Respondent in county court, seeking a declaration that it was not subject to the policy's appraisal provision. Respondent filed a Motion to Dismiss or, in the Alternative, Motion to Compel Appraisal and Stay Proceedings. The county court compelled appraisal and stayed the proceedings pending the appraisal's completion. Petitioner appealed the county court's order to the Circuit Court Appellate Division. In response, Respondent moved to dismiss the appeal for lack of jurisdiction. The Appellate Division granted that motion without prejudice "until such time as an appealable order had been entered." This timely petition followed.

II. STANDARD OF REVIEW

"The standard governing the disposition of a petition for second-tier certiorari in a district court is narrow: '[T]he district court must determine whether the decision of the circuit court ... is a departure from the essential requirements of law resulting in a miscarriage of justice.' " A district court's analysis of whether a circuit court's decision constitutes a departure from the essential requirements of the law is limited to whether the parties were afforded procedural due process and whether the circuit court applied the correct law.

DMB Inv. Tr. v. Islamorada, Village of Islands, 225 So.3d 312, 316 (Fla. 3d DCA 2017) (alteration in original) (citations omitted) (quoting Dep't of Highway Safety & Motor Vehicles v. Fernandez, 114 So.3d 266, 269-70 (Fla. 3d DCA 2013) ).

III. ANALYSIS

On appeal, Petitioner argues that the circuit court departed from the essential requirements of the law in dismissing its appeal for lack of jurisdiction. Petitioner raises two arguments. First, Petitioner argues that Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv) permits an immediate appeal of a county court's non-final order determining a right to appraisal. Second, Petitioner argues, in the alternative, that the county court's order was a final order entitling Petitioner to an immediate appeal. We find both arguments without merit and address each argument separately.

With regard to the first argument, Florida Rule of Appellate Procedure 9.130 governs review of non-final orders and specified final orders. Rule 9.130(a)(1) provides that "[t]his rule applies to appeals to the district courts of appeal of the non-final orders authorized herein and to appeals to the circuit court of non-final orders when provided by general law ." (emphasis added). Rule 9.130(a)(3) applies only to "[a]ppeals to the district courts of appeal of non-final orders." In 2000, the Florida Supreme Court amended rule 9.130"to reflect that the appellate jurisdiction of circuit courts is prescribed by general law and not by this rule, as clarified in Blore v. Fierro, 636 So.2d 1329 (Fla. 1994)." See Amendments to Fla. Rules of Appellate Procedure, 780 So.2d 834, 863 (Fla. 2000). In Blore, the Florida Supreme Court stated:

It is important to note that, while this Court is given exclusive rule making authority over interlocutory appeals to the district courts of appeal , the Constitution does not provide this Court with such authority for appeals from the county court to the circuit court . The authority for appeals to the circuit court is established solely by general law as enacted by the legislature.

636 So.2d at 1331 (emphasis in original). In the instant case, the county court order compelled appraisal and stayed the proceedings. The Florida Legislature has not enacted a statute authorizing the circuit court to hear an appeal of such an order from the county court. Because the cases Petitioner relies upon involve either an earlier version of Rule 9.130 or a direct appeal from a circuit court to a district court, we find those cases inapplicable.

Petitioner alternatively argues that the county court order is a final order, entitling it to a direct appeal. An order granting appraisal, however, is generally recognized as a non-final order. See, e.g., Fla. Ins. Guar. v. Sill, 154 So.3d 422, 423 (Fla. 5th DCA 2014). Petitioner nonetheless contends that the county court's order ended all judicial labor. A reading of that order, however, shows that the county court did not grant Respondent's motion to dismiss, but rather ordered an appraisal and stayed the underlying declaratory judgment proceedings pending completion of the appraisal.

Accordingly, because the Circuit Court Appellate Division applied the correct law and Petitioner does not dispute that it was afforded procedural due process by the Circuit Court Appellate Division, we deny the petition for certiorari.

Petition denied.

      In contrast, Rule 9.130(a)(3)(C)(iv) authorizes a district court of appeal to hear an appeal from a circuit court's non-final order that determines "the entitlement of a party ... to an appraisal under an insurance policy."


text:
    CITIZENS PROPERTY INSURANCE CORPORATION, Appellant, v. Agosta LAGUERRE, Appellee.
    No. 3D15-2411
    District Court of Appeal of Florida, Third District.
    Opinion filed August 22, 2018
    Link & Rockenbach, PA, and Kara Berard Rockenbach and Rachel J. Glasser (West Palm Beach); Hudson & Calleja, LLC, and Alexis Ann Calleja, for appellant.
    Alvarez, Feltman & DaSilva, PL., and Paul B. Feltman, for appellee.
    Before LAGOA, SALTER, and EMAS, JJ.
   LAGOA, J.

Citizens Property Insurance Corporation ("Citizens") appeals from an Order on Plaintiff's Motion to Determine Amount of Fees and Costs and for Lodestar Multiplier awarding Agosta Laguerre ("Laguerre") $120,250.00 in attorney's fees. As discussed below, based on Joyce v. Federated National Insurance Co., 228 So.3d 1122 (Fla. 2017), we conclude that the trial court did not abuse its discretion in awarding Laguerre a contingency fee multiplier, and we affirm.

I. FACTUAL AND PROCEDURAL HISTORY

Following Hurricane Wilma, Laguerre made an insurance claim for wind damage to her insurer, Citizens. Citizens investigated the claim and paid Laguerre $8,400.77 in December 2005. On March 3, 2010, Tony Quintana ("Quintana") of Claimserve, Co. ("Claimserve"), sent a letter to Citizens stating that he had been retained by Laguerre and that she demanded appraisal of the claim under the terms of Laguerre's insurance policy. Quintana attached an appraisal estimate prepared by Claimserve in the amount of $60,256.79. Citizens sent Laguerre two requests for information to which it claims Laguerre did not respond. On May 12, 2010, Laguerre retained the law firm of Alvarez, Carbonell & Gomez, PL, to represent Laguerre in her claim. Citizens sent a letter to Laguerre on July 9, 2010, stating that it would close Laguerre's claim if it did not receive a response from Laguerre within fourteen days. Citizens then closed the claim on July 27, 2010.

Laguerre filed suit against Citizens on September 20, 2010, alleging that Citizens had materially breached the insurance policy by failing to participate in the appraisal process. After Citizens filed its answer and affirmative defenses, it filed a motion for summary judgment on December 20, 2010, to which Laguerre filed a memorandum in opposition. After a hearing, the trial court denied Citizens' motion for summary judgment on May 10, 2011. On July 24, 2012, Citizens filed a proposal for settlement to Laguerre in the amount of $2,000.

Following the depositions of Laguerre and Quintana, Citizens filed a renewed motion for summary judgment on August 30, 2012. Laguerre filed a response to the motion. The trial court denied Citizens' renewed motion for summary judgment on April 8, 2013.

On May 16, 2013, Laguerre filed a motion to compel appraisal and abate the action. After a hearing, the trial court granted the motion and the matter proceeded to appraisal. The appraisal umpire ultimately issued an award in the amount of $27,367.63 on February 17, 2014.

Citizens agreed that Laguerre was entitled to attorney's fees under section 627.428, Florida Statutes (2014), and on August 13, 2014, the trial court held a fee hearing on the issue of the lodestar amount and whether a multiplier was justified. At the fee hearing, Laguerre presented the expert testimony of Roniel Rodriguez ("Rodriguez"). Rodriguez testified that these types of cases, which he described as first-party, late notice cases, "have become very, very difficult." Rodriguez testified that:

The difficulty with these cases is disparity between the insureds and the insurance companies. Insurance companies have a lot of funds. They're able to hire very, very skilled lawyers, like the lawyers we have in the room today, to challenge every aspect of the case. They have the ability to appeal every component of the case and a decision they don't find favorable, which makes it very difficult for insureds. Insureds have a difficult time finding qualified and capable lawyers because of the risk that's involved. These cases take a lot of time to mature. Here, we have a case from 2010 and we're now in 2014 and we've now come to a resolution, meaning the cost that's incurred by Plaintiff's counsel handling these cases on a contingency is a huge risk.

(emphasis added). He also testified as to the complexity of this type of case: "So there is not a resolution, which makes the complexity of the case significant in finding adequate counsel." Rodriguez opined that a 1.6 or 1.7 multiplier would be appropriate in "this type of case." Citizens cross-examined Rodriguez only with regard to his testimony on the reasonableness of the hourly rate sought by Laguerre's attorney.

Citizens presented the testimony of its fee expert, Dawn Jayma. She testified that Laguerre's attorneys "have thousands and thousands of these cases" and that the case was a run-of-the-mill property case, was not complex, as it concerned standard defenses, and thus did not warrant a multiplier. She also testified that neither Laguerre nor an expert presented any evidence "that the client themselves called around town and couldn't find somebody to take their case."

Following the fee hearing, the trial court entered an Order on Plaintiff's Motion to Determine Amount of Fees and Costs and for Lodestar Multiplier (the "fee order") on September 15, 2015. The trial court applied an hourly rate of $325.00 and found that the reasonable number of hours expended in the matter was 185 hours, resulting in a lodestar amount of $60,125.00. The trial court also applied a 2.0 multiplier based on its findings that:

1) "[t]he relevant market requires a fee multiplier to obtain competent counsel";
2) "Plaintiff's counsel faces a substantial risk of nonpayment";
3) "[t]he likelihood of success at the outset of the case, including compensation of Defendant's valuation of the claim in the Proposal for Settlement of $2,000.00 inclusive of attorney's fees and costs served to the Plaintiff in this action"; and,
4) "[t]he novelty and difficulty of the question involved in this matter and the results obtained."

The trial court further stated it "considered all of the relevant factors set forth in the Rules Regulating Florida Bar 4-1.5 and the Supreme Court's Opinions in Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985) and Standard Guar. Ins. Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990)." After applying the 2.0 multiplier to the lodestar amount, the trial court awarded Laguerre $120,250.00 in attorney's fees.

On September 30, 2015, Citizens filed a motion for rehearing relying upon State Farm Florida Ins. Co. v. Alvarez, 175 So.3d 352 (Fla. 3d DCA 2015), which this Court issued one day after the trial court entered the fee order. Relevant here, Citizens argued that under Alvarez, no multiplier was warranted because there was no evidence presented at the fee hearing that Laguerre had difficulty obtaining counsel, the results obtained did not warrant a multiplier, and a multiplier cannot be based on the complexity of the issues. The trial court subsequently conducted a hearing on the motion for rehearing. At the hearing, the trial court stated that there was "no testimony [at the fee hearing] to the contrary" of Rodriguez's testimony that "this lady would have had a hard time finding a lawyer because of the problematic nature of winning these cases." The trial court upheld its multiplier award, stating:

And that's why I did what I did, because there was no evidence to counter that, there was no cross-examination. Nobody asked Mr. Rodriguez: Mr. Rodriguez, why are you saying that this lady could have not found - -

The trial court entered an order on rehearing denying Citizens' request to vacate the multiplier and reduce the lodestar. This appeal ensued.

II. STANDARD OF REVIEW

We review an order applying a multiplier to an award of attorney's fees for an abuse of discretion. Sunshine State Ins. Co. v. Davide, 117 So.3d 1142, 1144 (Fla. 3d DCA 2013). "When a cause is tried without a jury, the trial judge's findings of fact are clothed with a presumption of correctness on appeal, and these findings will not be disturbed unless the appellant can demonstrate that they are clearly erroneous." Id.

III. ANALYSIS

On appeal, Citizens seeks reversal of the trial court's award of a 2.0 contingency fee multiplier in its calculation of reasonable attorney's fees. Specifically, Citizens contends that the multiplier was not warranted because: (1) there was no evidence Laguerre had difficulty obtaining competent counsel; (2) the results obtained do not warrant a multiplier; and (3) the complexity of the issues in the case cannot be a basis for awarding a multiplier. In support of its arguments, Citizens primarily relies upon this Court's decision in State Farm Florida Insurance Co. v. Alvarez, 175 So.3d 352 (Fla. 3d DCA 2015), which reversed the award of a contingency fee multiplier. Id. at 357. In Alvarez, this Court held that a trial court may apply a contingency fee multiplier "only in 'rare' and 'exceptional' circumstances." Id. at 358 (quoting Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 554, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010) ).

After hearing oral argument, we held the instant case in abeyance pending the Florida Supreme Court's review of the Fifth District Court of Appeal's decision in Federated National Insurance Co. v. Joyce, 179 So.3d 492 (Fla. 5th DCA 2015) (" Joyce I"). In Joyce I, the Fifth District Court of Appeal relied upon this Court's decision in Alvarez and held that contingency fee multipliers are only available in "rare" and "exceptional" circumstances. The Florida Supreme Court in Joyce v. Federated National Insurance Co., 228 So.3d 1122, 1131-32 (Fla. 2017) (" Joyce II"), subsequently rejected the requirement that an award of a contingency fee multiplier is proper only in "rare" and "exceptional" circumstances, and reaffirmed the principles established in Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), and Standard Guarantee Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990). Based on the Florida Supreme Court's decision in Joyce II, we conclude that Citizens can no longer rely on Alvarez's holding that a contingency fee multiplier can only apply in "rare" and "exceptional" cases and that we are limited to the factors laid out in Rowe, Quanstrom, and Joyce II. Thus, for the reasons discussed below, we affirm the trial court's award of the multiplier.

A. The Current State of Law on Contingency Fee Multipliers in Florida

First, we address the Florida Supreme Court's jurisprudence on contingency fee multipliers. The Florida Supreme Court first adopted the federal lodestar approach for computing reasonable attorney's fees in Rowe, 472 So.2d at 1146. In adopting this approach, the Florida Supreme Court set forth the following factors for a trial court to determine whether an award of attorney's fees is reasonable:

(1) The time and labor required, the novelty and difficulty of the question involved, and the skill requisite to perform the legal service properly.
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
(3) The fee customarily charged in the locality for similar legal services.
(4) The amount involved and the results obtained.
(5) The time limitations imposed by the client or by the circumstances.
(6) The nature and length of the professional relationship with the client.
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services.
(8) Whether the fee is fixed or contingent.

Id. at 1150. Under Rowe, the trial court must first determine "the number of hours reasonably expended on the litigation" and then multiply those hours by the "reasonable hourly rate" in order to arrive at the lodestar figure. Id. at 1150-51. "Once the court arrives at the lodestar figure, it may add or subtract from the fee based upon a 'contingency risk' factor and the 'results obtained.' " See id. at 1151.

The Florida Supreme Court later reexamined Rowe in Quanstrom. In Quanstrom, the Florida Supreme Court reaffirmed "the lodestar approach as the basic starting point" for determining reasonable attorney's fees in tort and contracts cases, 555 So.2d at 833, but held that a trial court, in determining whether to award a multiplier in tort and contract cases, must consider:

(1) whether the relevant market requires a contingency fee multiplier to obtain competent counsel; (2) whether the attorney was able to mitigate the risk of nonpayment in any way; and (3) whether any of the factors set forth in Rowe are applicable, especially, the amount involved, the results obtained, and the type of fee arrangement between the attorney and his client.

Id. at 834 ; see also State Farm Fire & Cas. Co. v. Palma, 555 So.2d 836, 838 (Fla. 1990) (applying these factors in affirming a contingency fee multiplier in a case decided the same day as Quanstrom ). Quanstrom further emphasized that "[e]vidence of these factors must be presented to justify the utilization of a multiplier." 555 So.2d at 834.

In the following years, this Court has applied the principles in Rowe and Quanstrom to uphold the award of contingency fee multipliers where the multiplier is supported by competent, substantial evidence in the record. See, e.g., Citizens Prop. Ins. Corp. v. Pulloquinga, 183 So.3d 1134, 1137-38 (Fla. 3d DCA 2015) ; TRG Columbus Dev. Venture, Ltd. v. Sifontes, 163 So.3d 548, 553 (Fla. 3d DCA 2015) ; Davide, 117 So.3d at 1145-46 ; Mercury Cas. Co. v. Flores, 905 So.2d 179, 180-81 (Fla. 3d DCA 2005). In Alvarez, however, this Court reversed an award of a multiplier, finding that "[t]he application of a multiplier is the exception, not the rule," and that " 'there is a "strong presumption" that the lodestar figure is reasonable,' ... overcome only in 'rare' and 'exceptional' circumstances.' " 175 So.3d at 357-58 (quoting Perdue, 559 U.S. at 554, 130 S.Ct. 1662 ). In reaching that conclusion, this Court relied on United States Supreme Court jurisprudence subsequent to the Florida Supreme Court's adoption of the federal lodestar approach in Rowe.

In clarifying its jurisprudence on contingency fee multipliers in Joyce II, the Florida Supreme Court rejected limiting the use of multipliers to rare and exceptional circumstances, disapproving of Alvarez"to the extent it is inconsistent with [ Joyce II ]." See 228 So.3d at 1135. In Joyce II, after the insurer denied coverage of a claim based on alleged material misrepresentations, the insureds "hired an attorney on a contingency fee basis because they could not afford an attorney at an hourly rate" and sued the insurer. Id. at 1123. After the insurer settled the claim with the insureds, the parties stipulated that the insureds were entitled to reasonable attorney's fees pursuant to section 627.428, Florida Statutes (2014). Joyce II, 228 So.3d at 1123. The trial court held a fee hearing, where it heard testimony from the insureds' attorney and fee expert and the insurance company's fee expert. Id. at 1124. After the hearing, the trial court applied the Quanstrom factors and awarded the insureds' attorney the lodestar amount as well as a contingency fee multiplier of 2.0. See id. The Fifth District reversed the trial court's award of the contingency fee multiplier, "concluding that the federal lodestar approach includes 'a "strong presumption" that the lodestar represents the "reasonable fee," ' " and that, based on Alvarez, which cited to the United States Supreme Court case of Perdue v. Kenny A ex rel. Winn, 559 U.S. 542, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010), the multiplier may be "used only in 'rare' and 'exceptional' circumstances," and finally, that the case "was not complex" and the insureds "had no trouble in finding and attorney to represent them." Id. at 1125 (quoting Joyce I, 179 So.3d at 493-94 ).

The Florida Supreme Court quashed the Fifth District's decision, concluding that its precedent had "never limited the use of contingency fee multipliers to only 'rare' and 'exceptional' circumstances." See id. at 1131-32. The Florida Supreme Court stated that "the purpose of section 627.428 is to 'discourage insurance companies from contesting valid claims, and to reimburse insureds for their attorney's fees incurred when they must enforce in court their contract with the insurance company.' " Id. at 1132 (quoting Bell v. U.S.B. Acquisition Co. Inc., 734 So.2d 403, 410 n.10 (Fla. 1999) ). Although Rowe introduced the lodestar to Florida jurisprudence by adopting the federal lodestar standard, the Florida Supreme Court in Joyce II expressly declined to adopt the United States Supreme Court's rationale for that Court's subsequent rejection of contingency fee multipliers as first articulated in Burlington v. Dague, 505 U.S. 557, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992).

In Dague, the United States Supreme Court limited the use of the contingency fee multiplier, reasoning that " '[t]he consequence of awarding contingency enhancement ... would be to provide attorneys with the same incentive to bring relatively meritless claims as relatively meritorious ones.' " Id. at 563, 112 S.Ct. 2638. In rejecting the developments in federal lodestar jurisprudence regarding contingency fee multipliers, the Florida Supreme Court stated:

To the contrary, the contingency fee multiplier provides trial courts with the flexibility to ensure that lawyers, who take a difficult case on a contingency fee basis, are adequately compensated. We also do not agree that the contingency fee multiplier encourages 'nonmeritorious claims' and would, instead, posit that solely because a case is 'difficult' or 'complicated' does not mean that the case is nonmeritorious.

Joyce II, 228 So.3d at 1132. The Florida Supreme Court further observed that "the insured's attorney bears the risk of never being compensated for the number of hours spent litigating the case. This risk, among other factors, is what entitles the attorney to seek, and the trial court to consider, the application of a contingency fee multiplier." Id. at 1133.

The Florida Supreme Court further stated that a fee multiplier "is properly analyzed through the same lens as the attorney when making the decision to take the case," as it "is intended to incentivize the attorney to take a potentially difficult or complex case." Id. Thus, under Quanstrom, as applied by Joyce II, it is improper for a "trial court [to] analyze the complexity of the case though [sic] the benefit of hindsight by looking at the actual outcome of the case." Id. at 1134. Turning to Quanstrom's relevant market factor, the Florida Supreme Court also clarified that the test is to "look[ ] at the relevant market itself," not the plaintiff's "actual experience in the market." Id. The Florida Supreme Court noted the rationale of the relevant market factor is "to assess, not just whether there are attorneys in any given area, but specifically whether there are attorneys in the relevant market who both have the skills to handle the case effectively and who would have taken the case absent the availability of a contingency fee multiplier." Id. at 1135. In quashing the decision of the Fifth District Court of Appeal in Joyce II, the Florida Supreme Court held that the contingency fee multiplier of 2.0 awarded by the trial court was based on competent, substantial evidence and further held that the Fifth District erred "in applying a 'rare' and 'exceptional' requirement." Id.

B. This Case

Applying the principles above, we now turn to the case at hand. Citizens challenges the award of the 2.0 contingency fee multiplier on several grounds. First, Citizens argues that the relevant market does not necessitate the award of a multiplier. With regard to Quanstrom's relevant market factor, Joyce II explained that trial courts must analyze this factor in order to assess "specifically whether there are attorneys in the relevant market who both have the skills to handle the case effectively and who would have taken the case absent the availability of a contingency fee multiplier." Id. The Florida Supreme Court has made it clear that trial courts must consider "the relevant market itself," rather than the attorney's client's "actual experience in the market." Id. at 1134. Here, Laguerre's expert, Rodriguez, testified:

The difficulty with these cases is disparity between the insureds and the insurance companies. Insurance companies have a lot of funds. They're able to hire very, very skilled lawyers, like the lawyers we have in the room today, to challenge every aspect of the case. They have the ability to appeal every component of the case and a decision they don't find favorable, which makes it very difficult for insureds. Insureds have a difficult time finding qualified and capable lawyers because of the risk that's involved. These cases take a lot of time to mature. Here, we have a case from 2010 and we're now in 2014 and we've now come to a resolution, meaning the cost that's incurred by Plaintiff's counsel handling these cases on a contingency is a huge risk.
They have to hire experts. There's a lot of time involved. There's personnel involved. If they don't prevail, it's a loss. The Plaintiff's counsel eats those costs. Even if they do prevail, there's a huge amount of risk because there's a possibility of an appeal. A lot of these cases get appealed. Even after a jury verdict, they get appealed. Even after a resolution in settlement, there's disputes. So there is not a resolution, which makes the complexity of the case significant in finding adequate counsel. The only reason I bring that up is the possibility of a multiplier.

(emphasis added). Notably, Citizens chose not to cross-examine Rodriguez concerning the application of a fee multiplier and did not present any non-expert evidence nor relevant expert testimony that competent attorneys would have taken the case without a multiplier. Instead, as to this issue, Citizens' expert witness testified that Laguerre had not presented any evidence that she had difficulty finding a lawyer to represent her. Although we find that the testimony supporting the trial court's conclusion was minimal, a trial court generally may rely on "expert testimony that a party would have difficulty securing counsel without the opportunity for a multiplier" in support of the imposition of the multiplier. Massie v. Progressive Express Inv. Co., 25 So.3d 584, 585 (Fla. 1st DCA 2009) ; see also Sunshine State Ins. Co. v. Davide, 117 So.3d 1142, 1145 (Fla. 3d DCA 2013) (stating that under an abuse of discretion standard of review, where "there is evidence in the record presented by the experts to support the trial court's conclusion" concerning the application of a multiplier, "we must affirm the order of the trial court if reasonable people could differ as to the propriety of the action taken"). Thus, given the nature of the testimony presented at the fee hearing and although we may have reached a different conclusion had a different standard of review applied here, we must therefore find that the trial court did not abuse its discretion in finding that "[t]he relevant market require[d] a fee multiplier to obtain competent counsel."

Citizens also argues that the trial court abused its discretion in its application of the third Quanstrom factor, specifically the finding that the results obtained in the instant case warranted a multiplier. Citizens contends that the "relatively small recovery" does not justify the imposition of a multiplier, especially where Citizens made offers to settle Laguerre's claim prior to her filing suit. We find this argument unpersuasive in light of Joyce II. Citizens' proposal for settlement filed during the case offered to settle Laguerre's claim for $2,000, a sum inclusive of attorney's fees, costs, and prejudgment interest. Ultimately, the appraisal umpire issued an award in the amount of $27,367.63, less the prior payment to Laguerre. Citizens' argument that a multiplier is not warranted because Laguerre would have obtained some recovery had she settled the claim based on their pre-suit offers is not supported by evidence of the amount of these offers in the record or by case law subsequent to Quanstrom. Indeed, in Joyce II, the Florida Supreme Court held that the trial court correctly analyzed the "outcome" of that case when it found that "[a]lthough the amount involved [$23,500] 'was not exceptionally large,' it was material to the Joyces and the results favored the Joyces." 228 So.3d at 1125. Therefore, the trial court did not abuse its discretion in finding the results obtained in this case warranted a multiplier.

Finally, Citizens argues that the trial court abused its discretion both in considering the complexity of the case and in finding that the complexity of the instant case warrants application of a multiplier. As an initial matter, Joyce II makes clear that a trial court does not err in considering the complexity and difficulty of a case in analyzing whether a multiplier is appropriate. See id. at 1134-35. Turning to whether the complexity of the instant case warrants a contingency fee multiplier, we again note that a contingency fee multiplier analysis "is properly analyzed through the same lens as the attorney when making the decision to take the case." Id. at 1133. For this reason, the fact, in hindsight, that this case ultimately consisted of two summary judgment proceedings and minimal discovery and did not proceed to trial is not determinative on this issue. Laguerre's expert, Rodriguez, testified at the fee hearing that these types of cases "have become very, very difficult," as insurance companies view them as "late notice type of case[s]" that "take a lot of time to mature." He further testified that the length of these cases creates a huge risk for an insured's attorney to handle on a contingency basis, as the attorney "eats those [litigation] costs" throughout the case. Indeed, this case commenced in September 2010 and did not reach resolution until February 2014, and the trial court found that the reasonable number of hours spent by Laguerre's attorneys on the case was 185, a figure that Citizens does not dispute on appeal. Cf. id. at 1134 (affirming the trial court's award of a multiplier where litigation spanned "several months" and the "Joyces' attorney spent more than 100 hours working on the case"). In support of Citizens' position on this issue, Citizens' expert, Jayma, testified that Laguerre's case was a run-of-the-mill property case and not complex, as it concerned standard defenses. While competing testimony therefore existed, we cannot find that the trial court abused its discretion in reaching its conclusion on this final issue as its conclusion was supported by competent, substantial evidence. See Sunshine State Ins. Co., 117 So.3d at 1145.

IV. CONCLUSION

Because there is competent, substantial evidence in the record to support the award of a contingency fee multiplier under the principles of Rowe, Quanstrom, and Joyce II, we find that the trial court did not abuse its discretion in awarding the 2.0 contingency fee multiplier to Laguerre and thus affirm the trial court's order.

Affirmed.

      Citizens does not challenge the award of the lodestar amount to Laguerre's counsel on appeal.

      These eight criteria are now similarly embodied in Florida Bar Rule 4-1.5.

      In a similar manner, the United States Supreme Court disapproved of non-multiplier, lodestar enhancements except in "rare circumstances" in Perdue v. Kenny A ex rel. Winn, 559 U.S. 542, 553-54, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010), the case relied upon by this Court in Alvarez. See 175 So.3d at 357-58.

      For example, in Joyce II, the insureds' expert testified "that a contingency fee multiplier was necessary to obtain competent counsel based on the expert having 'interviewed attorneys that accept claims against insurance companies where claims have been denied.' " 228 So.3d at 1124. While the dissent in Joyce II noted the infirmities in this evidentiary basis, see id. at 1140-41 (Canady, J., dissenting), the majority nonetheless concluded that it was sufficient. In this case, Laguerre's expert testimony did not meet even that threshold, and our conclusion in this case might have been different had Citizens elicited information through cross-examination of Laguerre's expert witness or presented a different quantum of evidence relating to the relevant market during its own presentation.


author: SALTER, J.

text:
    PEOPLE'S TRUST INSURANCE COMPANY, Appellant, v. Guillermo ACOSTA and Laura E. Pirela, Appellees.
    No. 3D17-2811
    District Court of Appeal of Florida, Third District.
    Opinion filed October 10, 2018
    White & Case and Raoul G. Cantero, III and Ryan A. Ulloa ; Jonathan Sabghir and Brett R. Frankel (Deerfield Beach), for appellant.
    Mintz Truppman, P.A., and Timothy H. Crutchfield and Adrian Neiman Arkin, Miami, for appellees.
    Before ROTHENBERG, C.J., and SALTER, and LOGUE, JJ.
   SALTER, J.

People's Trust Insurance Company ("Insurer") appeals from a non-final order denying its motion for a temporary injunction compelling the defendants below, appellees here (the "Insureds"), to execute a work authorization and submit to an appraisal of their residential water damage claim. We affirm.

Claim, Policy Provision, and Lawsuit

In October 2016, the Insureds reported a claim arising out of water damage in their home. The Insurer inspected the property and notified that it was exercising its contractual right under the homeowner's policy ("Policy") to repair the damage. The pertinent Policy provision specified:

If a peril causing a loss and related damage are covered (other than sinkhole loss) and repairs are necessary to protect covered property from further damage, [the Insureds] must notify [the Insurer] before authorizing or commencing repairs so [the Insurer], at [its] option, may select Rapid Response Team, LLC™ to make the covered Reasonable Repairs.
...
If [the Insureds] and [the Insurer] fail to agree on the amount of loss, which includes the scope of repairs, either may demand an appraisal as to the amount of loss and the scope of repairs.
...
The scope of repairs shall establish the work to be performed and completed by Rapid Response Team, LLC™. Such repair is in lieu of issuing any loss payment to [the Insureds] that otherwise would be due under the policy.

The Policy also required the Insureds to "execute all work authorizations to allow contractors and related parties entry to the property." After notifying the Insureds that the Insurer was exercising its contractual right to repair, the Insurer provided the Insureds a written proposal for the scope of repairs.

Through their designated public adjuster and claims agent, the Insureds disputed the "scope, pricing and methodology of [the Insurer's] proposed repair," and advised the Insurer that appraisal was "not possible due to lack of financial resources." Thereafter, the Insureds decided to execute a work authorization form, though making certain additional "minor" requests, to allow the Insurer to proceed with the repairs.

These requests, itemized by the public adjuster, included: (1) a request for payment of 20% of the amounts payable by the Insurer's designated repair contractor, or inclusion as a co-payee on any drafts payable to that contractor; (2) designation of the Insureds' mortgage lender as a co-payee on any such payments; (3) evidence that the repair contractor has a "payment and performance bond from a Class A surety" with an additional obligee rider in favor of the mortgage lender; and (4) consent by the contractor to allow a film crew hired by the public adjuster "to video the entire repair process."

The Insurer's counsel promptly responded to the public adjuster's requests with: (1) a refusal to pay the public adjuster, or add the adjuster as a co-payee on any check paid to the Insurer's designated repair contractor, inasmuch as the Policy contained no such requirement; (2) a refusal to add the Insureds' mortgage lender as a co-payee on any payment to the contractor, for the same reason; (3) an offer to allow the Insureds to inspect the contractor's bond at a meeting intended to commence the repair work, though declining to provide any obligee rider (as the public adjuster had no authority from the lender to request such a rider); and (4) an assent to allow filming so long as the process complied with applicable law and would not interfere with the repair process.

The following day, the Insurer issued a reservation of rights letter to the Insureds based on their failure to provide a signed work authorization to the contractor to commence repairs and "because there is a question as to whether coverage applies to this loss," based on the Insureds' non-compliance with their post-loss obligations under the Policy. The Insureds provided a marked-up, signed version of the Insurer's form of work authorization with material alterations to the Insurer's form.

Some ten days later, the Insurer filed its complaint for (1) temporary injunctive relief or, alternatively, specific performance of the Policy terms for repair by the Insurer's contractor, (2) declaratory relief regarding the Policy terms, and (3) an action for "anticipatory breach and repudiation of the election-to-repair" terms within the Policy. The Insureds opposed the motion for a temporary mandatory injunction, and the trial court denied the motion. This appeal from that non-final order followed.

Analysis

The trial court's denial of the motion for an injunction was based on a review of the pleadings and the court's determination that the Insurer had failed to plead irreparable harm. The court did not conduct an evidentiary hearing, concluding that the pleadings established the existence of the Insurer's adequate remedies at law. Our review is thus de novo. Telemundo Media, LLC v. Mintz, 194 So.3d 434, 435 (Fla. 3d DCA 2016).

Irreparable harm and the unavailability of an adequate remedy are essential elements of action for a temporary injunction; the absence of these elements (or any of the other required elements) requires that the motion be denied. Genchi v. Lower Fla. Keys Hosp. Dist., 45 So.3d 915, 919 (Fla. 3d DCA 2010).

The Insurer contends that irreparable harm in such a case has been established in this Court's decisions in Hernandez v. Florida Peninsula Insurance Co., 211 So.3d 1126 (Fla. 3d DCA 2017), and Fernandez-Andrew v. Florida Peninsula Insurance Co., 208 So.3d 835 (Fla. 3d DCA 2017). We join the trial court in disagreeing with that contention.

In each of those cases, the insureds filed a lawsuit against their insurer for declaratory relief and breach of contract. The insureds' homeowners' policies contained election-to-repair clauses similar to those at issue here. There, as here, the insureds did not sign the work authorization forms proffered by the insurer's designated contractor. In each case, the insurer moved to abate the lawsuit unless and until the insureds complied with the election-to-repair requirements. The insurer agreed that the action could proceed after the insurer's designated contractor completed the required repairs. The trial court agreed with the insurer in each case and entered an order of abatement. The insureds sought certiorari in this Court to quash the orders.

In Hernandez and Fernandez-Andrew, the insureds argued that abatement was tantamount to the dismissal of their actions for declaratory relief and breach of contract damages. This Court denied the petitions, concluding that the insureds had failed to show irreparable harm and the absence of an adequate remedy at law in each case. Those cases did not approve temporary injunctions against the insureds to enforce the election-to-repair provisions.

The Insurer in the present case also argued that the trial court was denying the Insurer a critical form of relief that it had specifically bargained for in the Policy. We disagree, concluding that the availability of abatement, declaratory relief, and money damages after the completion of repairs (should the repairs prove insufficient or defective) adequately protect the Insurer.

Affirmed.

      The order of denial was without prejudice, as the parties planned to consolidate the Insurer's lawsuit with a second lawsuit brought by the Insureds. The Policy also provides that a dispute over the scope of work to be performed under the election-to-repair would be resolved by appraisal. As the enforcement of this clause was not raised below, we do not address it here.

      In Hernandez, for example, the insurer "acknowledged that if the [insureds] believe that 'the property isn't put back into to its pre-loss condition,' the [insureds] would then have a 'proper cause of action' against [the insurer]." 211 So.3d at 1128.

      The election-to-repair provision is contained in an endorsement, and the Insureds obtained a premium discount for accepting the endorsement.


text:
    Kevin D. HARVEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1590
    District Court of Appeal of Florida, Third District.
    Opinion filed August 29, 2018.
    Kevin D. Harvey, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Marek v. State, 14 So.3d 985, 990 (Fla. 2009) (holding: "To obtain a new trial based on newly discovered evidence, a defendant must meet two requirements. First, the evidence must not have been known by the trial court, the party, or counsel at the time of trial, and it must appear that the defendant or defense counsel could not have known of it by the use of diligence. Second, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial. See Jones v. State, 709 So.2d 512, 521 (Fla.1998) ( Jones II ). Newly discovered evidence satisfies the second prong of the Jones II test if it 'weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability.' Jones II, 709 So.2d at 526 (quoting Jones v. State, 678 So.2d 309, 315 (Fla.1996) ). If the defendant is seeking to vacate a sentence, the second prong requires that the newly discovered evidence would probably yield a less severe sentence. See Jones v. State, 591 So.2d 911, 915 (Fla.1991) ( Jones I )").