source: Caselaw Access Project

author: PER CURIAM. QUINCE, J., dissenting.

license: Public Domain

text:
    VILLASOL COMMUNITY DEVELOPMENT DISTRICT, Petitioner, v. TC 12, LLC, Respondent.
    No. SC17-1293
    Supreme Court of Florida.
    October 4, 2018
    Scott D. Clark, Mitchell E. Albaugh, and Christopher M. Hamilton of Clark & Albaugh, LLP, Winter Park, Florida, for Petitioner
    Karen S. Cox of Bush Ross, P.A., Tampa, Florida, for Respondent
   PER CURIAM.

Villasol Community Development District seeks review of the decision of the Fifth District Court of Appeal in Villasol Community Development District v. TC 12, LLC , 226 So.3d 854 (Fla. 5th DCA 2017) (table), on the ground that it expressly and directly conflicts with Provident Management Corp. v. City of Treasure Island , 796 So.2d 481 (Fla. 2001). After careful review, we determine that review in this case has been improvidently granted. Accordingly, this case is hereby dismissed.

It is so ordered.

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

QUINCE, J., dissents with an opinion, in which PARIENTE, J., concurs.

QUINCE, J., dissenting.

The decision below expressly and directly conflicts with Provident and Parker Tampa Two, Inc. v. Somerset Development Corp. , 544 So.2d 1018, 1019 (Fla. 1989). The majority's decision to discharge jurisdiction is based on the Fifth District's limitation of its holding to "whether sovereign immunity shields [Villasol] from a claim for damages that [TC 12, LLC] allegedly suffered as a result of an injunction [Villasol] obtained." Villasol Cmty. Dev. Dist. v. TC 12, LLC , 42 Fla. L. Weekly D1038, D1038, 2017 WL 1788021 (Fla. 5th DCA 2017). Contrary to the majority's position, Provident addressed the issue of sovereign immunity.

Generally, when a wrongfully enjoined party is entitled to damages, the damages are limited to the amount of the injunction bond. Parker Tampa Two , 544 So.2d at 1019. In reviewing the certified question presented in Parker Tampa Two , this Court recognized the majority and minority views on the issue and chose to "adopt the majority view and limit liability to the bond amount where the injunction is obtained in good faith." Id. at 1020. We later considered this limitation of liability in the context of a sovereign that did not post a bond, expanding the rule adopted in Parker Tampa Two .

In Provident , this Court held that the statutory limitation of liability found in section 768.28, Florida Statutes (1989), waiving the State's sovereign immunity for tort claims, does not apply to a claim for wrongful injunction against a governmental entity that did not post an injunction bond. 796 So.2d at 488. Throughout Provident , this Court contrasted the situation in that case to the situation in which a governmental entity does post a bond, limiting liability to the amount of the bond. See id. at 485-86, 486 n.11, 488 (citing Parker Tampa Two , 544 So.2d at 1018-19 ). This Court held that governmental liability for wrongful injunction is limited to the amount of the bond "because the bond obligation is likened to a contractual obligation for which sovereign immunity has been waived." Id. at 486. This Court sought "to make explicit that ... if the full measure of damages is awarded, the wrongfully enjoined party should be entitled to recover the full measure of damages unless a bond has been posted ." Id. at 488 (emphasis added).

Because Provident directly addresses the sovereign immunity issue and Parker Tampa Two, Inc. , provides the general rule limiting damages to the amount of the bond, I would retain jurisdiction to address the express and direct conflict. Accordingly, I dissent.

PARIENTE, J., concurs.


author: PER CURIAM. CANADY, C.J., dissenting.

text:
    The FLORIDA BAR RE: ADVISORY OPINION-Shore v. Wall, et al.
    No. SC17-1510
    Supreme Court of Florida.
    October 4, 2018
    Kellie D. Scott, Chair, Jeffrey T. Picker, and William A. Spillias, Standing Committee on Unlicensed Practice of Law, Tallahassee, Florida, for Petitioner
    Kevin P. Tynan of Richardson & Tynan, P.L.C., on behalf of Jupiter Asset Recovery, LLC and Jeffrey Paine, Tamarac, Florida; Amy L. Dilday, Starlett M. Massey, and Jonathan D. Kaplan of McCumber, Daniels, Buntz, Hartig, Puig, & Ross, P.A., on behalf of Global Discoveries, Ltd., Tampa, Florida, Responding
   PER CURIAM.

James Wall filed with the Standing Committee on the Unlicensed Practice of Law (Standing Committee) a request for issuance of an advisory opinion pursuant to the procedures set forth in Rule Regulating the Florida Bar 10-9.1 and this Court's opinion in Goldberg v. Merrill Lynch Credit Corp. , 35 So.3d 905 (Fla. 2010). In the request, Wall alleged that Jeffrey Paine and his company, Jupiter Asset Recovery, LLC (collectively "JAR"), engaged in the unlicensed practice of law in connection with JAR's attempt to recover surplus funds from the Manatee County Clerk of Court's registry on Wall's behalf. The Standing Committee held a public hearing where it considered live and written testimony, see Rule Regulating the Florida Bar 10-9.1(f), and ultimately filed with this Court a proposed advisory opinion concluding that JAR's conduct, as alleged by Wall and if taken as true, would constitute the unlicensed practice of law.

After the Standing Committee's proposed advisory opinion was filed, interested parties were permitted to file briefs in support of or in opposition to the proposed advisory opinion. See R. Regulating Fla. Bar 10-9.1(g)(3). JAR and Global Discoveries, Ltd., filed briefs in opposition to the proposed advisory opinion; the Standing Committee filed a response to the briefs. After considering the proposed opinion and the briefs of the interested parties, the Court approves the proposed advisory opinion as set forth in the appendix to this opinion.

It is so ordered.

PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA and LAWSON, JJ., concur.

CANADY, C.J., dissents with an opinion.

CANADY, C.J., dissenting.

I adhere to the view that "the Florida Constitution gives this Court no authority to issue" the advisory opinions regarding pending litigation contemplated by rule 10-9.1. Fla. Bar re Advisory Op.-Scharrer v. Fundamental Admin. Servs. , 176 So.3d 1273, 1279 (Fla. 2015) (Canady, J., dissenting). I therefore would dismiss this proceeding.

APPENDIX

THE FLORIDA BAR STANDING COMMITTEE ON THE UNLICENSED PRACTICE OF LAW

FAO # 2017-1, SHORE V. WALL, ET. AL.

PROPOSED ADVISORY OPINION

August 15, 2017

INTRODUCTION

This request for a formal advisory opinion is brought pursuant to Rule 10-9.1 of the Rules Regulating The Florida Bar and Goldberg v. Merrill Lynch Credit Corp., 35 So.3d 905 (Fla. 2010) ; (TAB A). The Petitioner, James Wall (hereinafter, "Wall"), is a defendant in an interpleader action filed by the Clerk of the Circuit Court of Manatee County (Case No. 2014 CA 3155). In Wall's Answer to Complaint For Interpleader and Objection and Defenses to Jupiter Asset Recovery, LLC's Claim to Surplus Funds, he asserted that Jupiter Asset Recovery, LLC (hereinafter, "JAR") engaged in the unlicensed practice of law. The Circuit Court, citing Goldberg , found that it did not have jurisdiction over the unlicensed practice of law claim and stayed the case pending a determination by the Supreme Court of Florida whether JAR's conduct constitutes the unlicensed practice of law (TAB A, p. 23).

Pursuant to Rule 10-9.1(f) of the Rules Regulating The Florida Bar, public notice of the hearing was provided on The Florida Bar's website, in The Florida Bar News , and in the Orlando Sentinel . The Standing Committee held a public hearing on January 26, 2017. Testifying on behalf of the petitioner were attorneys Ryan J. Hittel and Christopher M. Hittel. Testifying on behalf of JAR was attorney Kevin Tynan and Jeffrey Paine (hereinafter, "Paine"). Also testifying were attorneys Starlett Massey and Jonathan D. Kaplan (Tab B). In addition to the testimony presented at the hearing, the Standing Committee received written testimony from the Petitioners and JAR/Paine which has been filed with this Court (Tab C).

The question presented for consideration by the Standing Committee is whether a nonlawyer company is engaged in the unlicensed practice of law when it holds itself out as having special knowledge on how to recover excess proceeds from a tax deed sale held by the Clerk of Court under Chapter 197, Fla. Stat.; identifies and contacts owners of excess tax deed sale proceeds for the purpose of offering to recover the excess proceeds on their behalf from the Clerk of Court; offers the owners of excess proceeds a contingency arrangement using a purported assignment modified by an agreement to share the excess proceeds upon recovery, with the owner retaining a 60% interest in the excess proceeds; requests from the Clerk of Court the surplus funds based on the purported assignment; and files pleadings in interpleader actions to recover the surplus funds.

GOLDBERG V. MERRILL LYNCH CREDIT CORP.

In Goldberg , the petitioners filed class action lawsuits to recover document preparation fees charged by respondent Merrill Lynch for services performed by its clerical personnel in processing mortgage loans. Merrill Lynch moved to dismiss the complaints, arguing, among other things, that the circuit court lacked jurisdiction to hear any claims relating to the unlicensed practice of law. The circuit court granted the motions and dismissed the cases. The Fourth District Court of Appeal affirmed the dismissals because the respondents had not previously been prosecuted for the unlicensed practice of law by The Florida Bar or disciplined by this Court. This Court approved the Fourth District's decision to affirm the dismissals finding that:

To state a cause of action for damages under any legal theory that arises from the unauthorized practice of law, we hold that the pleading must state that this Court has ruled that the specified conduct at issue constitutes the unauthorized practice of law. (citation omitted) Stated another way, a claimant must allege as an essential element of any cause of action premised on the unlicensed practice of law that this Court has ruled the activities are the unauthorized practice of law. (citations omitted)
* * *
[A] plaintiff will not be able to state a cause of action premised on the unauthorized practice of law on a case of first impression (where this Court has not ruled on the actions at issue). In those cases, the pleading may be dismissed without prejudice or the action may be stayed until a determination from this Court pursuant to the advisory opinion procedures of rule 10-9.1 or the complaint and injunctive relief procedures of rules 10-5, 10-6, and 10-7 of the Rules Regulating The Florida Bar. (citations omitted)

Goldberg at 907-8.

In staying the Manatee County interpleader action at issue here, the circuit court cited to Goldberg , and noted that the Supreme Court of Florida has exclusive jurisdiction to determine the issue of unlicensed practice of law (TAB A, p. 23).

RULE 10-9.1 OF THE RULES REGULATING THE FLORIDA BAR

In Goldberg , this Court recognized that rule 10-9.1(c) of the Rules Regulating The Florida Bar prevents a proposed formal advisory opinion from being issued "with respect to any case or controversy pending in any court or tribunal in this jurisdiction" thereby prohibiting the Standing Committee from issuing a proposed formal advisory opinion while the underlying action is stayed or dismissed without prejudice. The Court, therefore, suspended the rule in the circumstances described in Goldberg and directed The Florida Bar to propose a rule change according to the opinion. Subsequently, rule 10-9.1 was amended to add language to provide that "the [Standing Committee] shall issue a formal advisory opinion under circumstances described by the court in Harold Goldberg v. Merrill Lynch Credit Corporation , 35 So.3d 905 (Fla. 2010) when the petitioner is a party to a lawsuit and that suit has been stayed or voluntarily dismissed without prejudice." The Court, sua sponte, amended rule 10-9.1(c) in In re: Amendments to Rule Regulating The Florida Bar 10-9.1 , 176 So.3d 1273 (Mem) (Fla. 2015). Consequently, if a proper Goldberg request is brought, a proposed advisory opinion must be issued.

Because this is a case of first impression, and the circuit court stayed the action pending a determination from this Court, this was a proper Goldberg request. A public hearing was held on January 26, 2017, after which the Standing Committee voted to issue the proposed formal advisory opinion that follows.

FACTS

The factual allegations relating to Wall's claim that JAR engaged in the unlicensed practice of law are contained in paragraphs numbered 15 - 47 of Defendant, James M. Wall's Answer to Complaint for Interpleader and Objection and Defenses to Jupiter Asset Recovery, LLC's Claim to Surplus Funds (TAB A, pp. 12 - 17), Mr. Wall's April 15, 2015 statement accompanying his unlicensed practice of law complaint (TAB A, pp. 3 - 4), and the January 13, 2017, Statement of Petitioner, James M. Wall, For Hearing on Request for Goldberg Advisory Opinion (TAB C, pp. 2 - 17). Wall alleged the following operative facts which are summarized in relevant part as follows:

1. Paine/JAR contacted Wall regarding a tax deed surplus being held in the court's registry after a tax deed sale of Wall's property. (TAB A, p. 3 and p. 12, paragraph 15)

2. Paine convinced Wall to hire JAR/Paine to recover the surplus funds on his behalf (TAB A, p. 12, paragraph 16). Wall assumed he was dealing with a licensed attorney (TAB C, p. 3, paragraph 6).

3. Paine sent a notary to Wall's business with two documents to sign, an "Agreement" (TAB A, p. 5) and an "Absolute Assignment of Interest in Tax Deed Surplus Proceeds" (TAB A, p. 6). Wall signed both documents. (TAB A, p. 13, paragraphs 17 and 19)

4. Wall believed at the time he signed the Agreement and Absolute Assignment that Paine was agreeing to represent him. (TAB A, p. 4)

5. The Agreement attempts to allow JAR to file documents to recover the tax deed surplus on Wall's behalf, with 60% of the proceeds going to Wall and the remainder (minus any costs) going to JAR. (TAB A, p. 13, paragraph 18)

6. Under the Agreement, Wall purports to transfer his interest in the surplus funds to JAR so that JAR can "file all necessary documents in order to recover any and all monies available as a result of the tax deed sale." (TAB A, p. 15, paragraph 33)

7. The Agreement also states that JAR shall "make every effort to obtain any available funds through the Clerk of Court." (TAB A, p. 15, paragraph 34)

8. The essence of the Agreement is clear, JAR will file the necessary court documents to obtain payment from the Clerk of Court on a contingency basis, for a 40% fee (which would amount to a fee near $94,000). (TAB A, p. 16, paragraph 35)

9. Because JAR is not a law firm, and Paine is not an attorney, the only way JAR could file documents with the court on Wall's behalf was to come before the court as a straw-man assignee. (TAB A, p. 16, paragraph 36)

10. JAR did not disclose the Agreement when filing his proof of claim with the Clerk of Court to recover the surplus tax deed funds nor did it disclose the Agreement to the court in the interpleader action so that it would not be apparent on the face of its claim that it was representing another party. (TAB A, p. 16, paragraph 37, and TAB A, pp. 7 - 9)

11. Even though Wall signed the Absolute Assignment and Agreement he understood that JAR/Paine would receive 40% of all funds recovered in return for their work to recover the funds. (TAB A, p. 3)

12. At the time Wall signed the Absolute Assignment and Agreement, liens on the property held by the IRS and Manatee County Code Enforcement exceeded the amount of the surplus. (TAB A, p. 13, paragraph 20)

13. After the tax deed sale, the IRS lien was paid in full at the closing of the sale of another property Wall owned, and the Manatee County Code Enforcement lien was substantially reduced. The payment of the IRS lien and the reduction in the code enforcement fine resulted in the surplus funds available to the owner increasing from $0 to approximately $235,000. (TAB A, p. 13, paragraphs 21 - 23)

14. JAR seeks to recover 40% of this $235,000. (TAB A, p. 13, paragraph 24)

15. Paine drafted a letter for Wall's signature to the attorney for the Clerk of Court in the interpleader action (TAB A, p. 10). The letter, which Wall did not sign, includes the following language: "I understand that Jupiter has filed an Answer and Cross Claim in this matter which protects my interest in these funds[ ]" and "Please consider this letter as notice that I shall not file a responsive pleading in this case and I consent to a default against me in this case." (TAB A, p.10 and p. 16, paragraphs 38 - 40)

DISCUSSION

As this Court noted in The Florida Bar re: Advisory Opinion - Scharrer v. Fundamental Administrative Services , 176 So.3d 1273, 1278 (Fla. 2015), it is not the Standing Committee's role to sit as the trier of facts or to decide disputed facts:

Although we recognize that the Standing Committee does not sit as a trier of fact, and it is not the Committee's role to decide disputed issues of fact, our decision in Goldberg does authorize the Standing Committee to determine whether the specific facts as alleged in a petition for an advisory opinion, if those facts are taken as true, would constitute the unlicensed or unauthorized practice of law.

Thus, in reviewing the alleged facts the Standing Committee takes as true those facts, and applies existing case law to the facts to determine whether the activity in question constitutes the unlicensed practice of law.

Essentially, Wall alleged that JAR/Paine: (1) held himself out as an attorney and as having special knowledge on how to recover excess proceeds from a tax deed sale, (2) represented him in the interpleader action, and (3) prepared legal documents for him which affected his important legal rights.

Holding Out

Allegations regarding Paine holding himself out as an attorney are contained within paragraphs 2 and 4 above, and paragraph 43 of Wall's Interpleader Answer (TAB A, p. 17), which states that:

Mr. Paine also holds himself out to be an attorney on his website, despite not being licensed to practice law in Florida. See Composite Exhibit 'E', attached (Google search showing title of jupiterassetrecovery.com to be "Jupiter Asset Recovery | Jeffrey Paine Attorney"; Source code of jupiterassetrecovery.com containing the page title "Jupiter Asset Recovery | Jeffrey Paine Attorney".)

Taken as true, these allegations raise unlicensed practice of law concerns because it constitutes the unlicensed practice of law for nonlawyers to hold themselves out as lawyers. The Florida Bar v. Warren , 655 So.2d 1131 (Fla. 1995). As this Court found in The Florida Bar v. Gordon , 661 So.2d 295 (Fla. 1995), it constitutes the unlicensed practice of law for nonlawyers to "impliedly or expressly, personally or by use of advertisement, hold[ ] themselves out as lawyers and authorized to practice law in Florida and describing themselves as lawyers, attorneys, attorneys at law, esquire, counselor, counsel, or any other title that is designed to lead a member of the public into believing that respondents are licensed to practice law in Florida and able to render assistance with legal matters."

By contacting owners of excess tax deed sale proceeds for the purpose of offering to recover the excess proceeds on their behalf from the Clerk of Court, JAR/Paine is implicitly holding out as having special knowledge on how to recover the excess proceeds. This raises unlicensed practice of law concerns because it constitutes the unlicensed practice of law for a nonlawyer to hold himself out as having special knowledge or expertise in legal areas. The Florida Bar v. Davide , 702 So.2d 184 (Fla. 1997) (nonlawyer engaged in unlicensed practice of law and enjoined from advertising that his or her company specializes in legal areas or that gives the public the expectation that the company has expertise in the field of law, and that describes legal procedures).

Representation in Interpleader Action

The gravamen of the allegations in paragraphs 3 - 15 above are that JAR/Paine had Wall execute both an Absolute Assignment and an Agreement to assist Wall in obtaining the tax deed surplus from the Clerk and the court. However, JAR/Paine only filed the Absolute Assignment with the Clerk and the court in the interpleader action, so that it would appear to the Clerk and court that Wall assigned his interest in the tax deed surplus to JAR/Paine. The Absolute Assignment provides "This Agreement is complete, in and of itself, representing the entire agreement between all Parties hereto[.]" However, the Agreement, executed contemporaneously with the Absolute Assignment, indicates that there was not an absolute or complete assignment. The Agreement, which mandates that JAR make every effort to obtain the surplus funds, provides that Wall will receive 60% of the surplus funds recovered by JAR. The remaining 40% would go to JAR. The effect of this Agreement, which was not disclosed to the Clerk or the court, is that any action that JAR took with the Clerk or the court in the interpleader action to obtain the tax deed surplus it took not only on its own behalf, but on behalf of Wall as well. Before Wall filed his Answer in the interpleader action, JAR/Paine prepared and sent him a letter to sign and send to the Clerk's attorney, wherein Wall asserts his understanding that JAR filed an Answer and Cross Claim which protects his interest in the surplus funds and that he would not be filing a responsive pleading in the interpleader case and that he consents to a default judgment against him. Wall did not sign this letter.

Taken as true, the allegations in paragraphs 3 - 15 above raise unlicensed practice of law concerns because it constitutes the unlicensed practice of law for a nonlawyer to represent another in court. As this Court stated, axiomatically, "It is generally understood that the performance of services in representing another before the courts is the practice of law." See The Florida Bar v. Smania , 701 So. 2d 835 (Fla. 1997) (nonlawyer enjoined from appearing in court on behalf of others other than as a witness); The Florida Bar v. Eubanks , 752 So.2d 540 (Fla. 1999) (nonlawyer engaged in unlicensed practice of law and enjoined from appearing in any Florida court, directly or indirectly, as a spokesperson or representative for litigants in any court proceeding); The Florida Bar v. Snapp , 472 So.2d 459 (Fla. 1985) (nonlawyer engaged in unlicensed practice of law and enjoined from representing an individual other than himself in court proceedings); The Florida Bar v. Strickland , 468 So.2d 983 (Fla. 1985) (nonlawyer engaged in the unlicensed practice of law and enjoined from appearing in Florida courts on behalf of a party in family law matters); The Florida Bar v. Rich , 481 So.2d 1221 (Fla. 1986) (nonlawyer engaged in unlicensed practice of law and enjoined from representing others in court in eviction and criminal matters).

Here, JAR/Paine was representing Wall because Wall still had an interest in the litigation. This was not a situation where Wall signed over all of his interests in the proceeds of the sale to JAR/Paine so that JAR/Paine became the party to the action. Instead, JAR/Paine offered Wall a contingency fee agreement where Wall retained an interest in the proceeds of the sale as he stood to gain 60% from any recovery. Wall was, therefore, a party to the action and was being represented by JAR. By so representing Wall, JAR/Paine engaged in the unlicensed practice of law.

Preparation of Documents Affecting Legal Rights

Taken as true, the allegations in paragraphs 9 and 15 above raise unlicensed practice of law concerns because it constitutes the unlicensed practice of law for a nonlawyer to prepare a document for another which affects their important legal rights. The Florida Bar v. Sperry , 140 So.2d 587, 591 (Fla. 1962), judg. vacated on other grounds , 373 U.S. 379, 83 S.Ct. 1322, 10 L.Ed.2d 428 (1963) ; The Florida Bar v. Gordon , 661 So.2d 295 (Fla. 1995) (nonlawyer engaged in unlicensed practice of law and enjoined from allowing members of the public to rely on respondents to properly prepare legal forms or legal documents affecting an individual's legal rights); The Florida Bar v. Eidson , 703 So.2d 442 (Fla. 1997) (nonlawyer enjoined from preparing and filing legal documents on behalf of another); The Florida Bar v. Williams , 388 So.2d 564 (Fla. 1980) (nonlawyer enjoined from assisting customers in preparing documents or forms necessary for submission to any court or governmental agency); The Florida Bar v. Miravalle , 761 So.2d 1049, 1051 (Fla. 2000) ("This Court has repeatedly held that the preparation of legal documents by a nonlawyer for another person to a greater extent than typing or writing information provided by the customer on a form constitutes the unlicensed practice of law." (citations omitted) ). Both the letter to the Clerk's attorney consenting to a default judgment and the answer filed by JAR/Paine in the interpleader action would certainly affect Mr. Wall's important legal rights by requesting from the Clerk of Court surplus funds.

Further, taken as true, the above allegations raise unlicensed practice of law concerns to the extent Wall relied on JAR/Paine to file with the Clerk and court the necessary documents to obtain the surplus tax deed funds. As this Court noted in The Florida Bar v. Brumbaugh , 355 So.2d 1186, 1193-4 (Fla. 1978), "it is clear that her clients placed some reliance upon her to properly prepare the necessary legal forms for their dissolution proceedings. To this extent we believe that Ms. Brumbaugh overstepped proper bounds and engaged in the unauthorized practice of law." See also The Florida Bar v. Williams , 388 So.2d 564 (Fla. 1980) (nonlawyer enjoined from allowing members of the public to rely on her to properly prepare legal forms or legal documents affecting a customer's legal rights).

PUBLIC HARM

Separate from the unlicensed practice of law issue, the Standing Committee was also concerned that JAR/Paine's business model of only filing the Absolute Assignment with the Clerk and court, and not also disclosing the contemporaneously executed Agreement, when attempting to recover the tax deed surplus was, at a minimum, misleading, and perhaps, a fraud on the court, because the true relationship between JAR/Paine and its customers is not disclosed to the Clerk and court. Without knowledge of the Agreement, the court would have no way of knowing about the unlicensed practice of law occurring before it. If an attorney filed misleading documents with a court that hid his or her true relationship with the client, the attorney would be subject to discipline for lack of candor toward the tribunal. Just as lawyers must avoid conduct that undermines the integrity of the adjudicative process, this Court must ensure that nonlawyers do not undermine the integrity of the adjudicative process. As this Court noted in The Florida Bar v. Moses , 380 So.2d 412, 417 (Fla. 1980), "the single most important concern in the Court's defining and regulating the practice of law is the protection of the public from incompetent, unethical, or irresponsible representation."

The Standing Committee had similar concerns about the language in the Absolute Assignment, which provides that "This Agreement is complete, in and of itself, representing the entire agreement between all Parties hereto." The statement was patently false. The Absolute Assignment did not represent the entire agreement between JAR/Paine and Wall; there was also the contemporaneously executed Agreement between the parties. It was this Agreement which resulted in JAR/Paine's improper representation of Wall before the Clerk and the court in the interpleader action. The Standing Committee felt that this patently false language in the Absolute Assignment was, at a minimum, misleading, and perhaps a fraud on the court, and warrants the public's protection by this Court.

CONCLUSION

It is the opinion of the Standing Committee on the Unlicensed Practice of Law that a nonlawyer company is engaged in the unlicensed practice of law when it holds itself out as having special knowledge on how to recover excess proceeds from a tax deed sale held by the Clerk of Court under Chapter 197, Fla. Stat.; identifies and contacts owners of excess tax deed sale proceeds for the purpose of offering to recover the excess proceeds on their behalf from the Clerk of Court; offers the owners of excess proceeds a contingency arrangement using a purported assignment modified by an agreement to share the excess proceeds upon recovery, with the owner retaining a 60% interest in the excess proceeds; requests from the Clerk of Court the surplus funds based on the purported assignment; and files pleadings in interpleader actions to recover the surplus funds.

The Standing Committee is not sitting as the trier of fact in this matter. Should this Court adopt the Standing Committee's proposed formal advisory opinion, it would establish the precedent required by Goldberg and be the standard to be applied by the trier of fact in ultimately deciding whether the defendants engaged in the unlicensed practice of law.

Respectfully Submitted,

/s/ Kellie D. Scott by Jeffrey T. Picker

Kellie D. Scott, Chair

Standing Committee on Unlicensed Practice of Law

The Florida Bar

651 E. Jefferson Street

Tallahassee, Florida 32399-2300

(850) 561-5840

Fla. Bar No. 432600

Primary Email: upl@flabar.org

/s/ Jeffrey T. Picker

Jeffrey T. Picker

Fla. Bar No. 12793

/s/ William A. Spillias

William A. Spillias

Fla. Bar No. 909769

The Florida Bar

651 East Jefferson Street

Tallahassee, Florida 32399-2300

(850) 561-5840

Primary Email: jpicker@flabar.org

Secondary Email: upl@flabar.org

      We have jurisdiction. See art. V, § 15, Fla. Const.; R. Regulating Fla. Bar 10-9.1(g).

      References in the Appendix to TABS A, B, and C, are to the attachments to the proposed advisory opinion originally filed by the Standing Committee in this case on August 15, 2017.

      Petitioner filed an unlicensed practice of law complaint/request for formal advisory opinion, which was originally investigated by the local circuit committee under Rules 10-5 and 10-6 of the R. Regulating Fla. Bar. Finding that respondent, Jeffrey Paine, and his company, Jupiter Asset Recovery, LLC, engaged in the unlicensed practice of law, the circuit committee offered respondent a cease and desist affidavit, which he refused to sign. Because there is no Florida case law on point, the local circuit committee closed its investigation and forwarded the request for formal advisory opinion to the Standing Committee on the Unlicensed Practice of Law (hereinafter, "Standing Committee").

      Consistent with Goldberg , the amendment deleted the requirement for a "voluntary" dismissal.

      Footnote 3 of Goldberg provides "To be clear, the Florida Bar shall issue a formal advisory opinion upon request of a party in the circumstances described herein." 35 So.3d at 908.

      The Florida Bar v. Sperry , 140 So.2d 587, 591 (Fla. 1962), judg. vacated on other grounds , 373 U.S. 379, 83 S.Ct. 1322, 10 L.Ed.2d 428 (1963).


author: QUINCE, J. POLSTON, J., dissenting. LAWSON, J., dissenting.

text:
    Robert R. MILLER, Petitioner, v. STATE of Florida, Respondent.
    No. SC17-1598
    Supreme Court of Florida.
    October 4, 2018
    Andy Thomas, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Second Judicial Circuit, Tallahassee, Florida, for Petitioner
    Pamela Jo Bondi, Attorney General, Trisha M. Pate and Kaitlin R. Weiss, Assistant Attorneys General, Tallahassee, Florida, for Respondent
   QUINCE, J.

Robert R. Miller seeks review of the decision of the First District Court of Appeal in Miller v. State , 224 So.3d 851 (Fla. 1st DCA 2017). The district court certified that its decision is in direct conflict with the decision of the Fifth District Court of Appeal in Torres-Rios v. State , 205 So.3d 883 (Fla. 5th DCA 2016). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

FACTS

Miller was convicted for the kidnapping with a firearm and aggravated battery of Steven Cooley as well as of possession of a firearm by a convicted felon. At sentencing, Miller was determined to be a habitual felony offender ("HFO"). The State argued that the mandatory sentences had to run consecutively under the statute and caselaw. Defense counsel argued that because there was only one victim, the mandatory minimums were not required to run consecutively and requested that they run concurrently. The trial judge agreed with the State that he had no discretion and sentenced Miller to twenty years' incarceration as an HFO on the kidnapping conviction, with a mandatory minimum of ten years, to ten years' incarceration, with a mandatory minimum of ten years as an HFO on the aggravated battery conviction, and to five years' incarceration, with a mandatory minimum of three years as an HFO on the possession conviction. The sentences, including the mandatory minimums, were all consecutive.

Miller appealed his consecutive sentences to the First District, which affirmed. Miller v. State , 151 So.3d 566 (Fla. 1st DCA 2014) (citing Walton v. State , 106 So.3d 522 (Fla. 1st DCA 2013), quashed , 208 So.3d 60 (Fla. 2016) ). On appeal, this Court quashed the First District's decision and remanded the case for reconsideration in light of this Court's decisions in Walton and Williams v. State , 186 So.3d 989 (Fla. 2016). Miller v. State , 42 Fla. L. Weekly S680, 2017 WL 2302346 at *1 (Fla. May 26, 2017).

On remand from this Court for reconsideration pursuant to Walton , the First District determined that this Court "did not explicitly discuss a case factually similar to this one, in which appellant committed two gun-related offenses ... but appellant's crimes involved only one victim who sustained only one physical injury." Miller , 224 So.3d at 852. The district court therefore reversed and remanded for the trial court to consider "whether, in its discretion, it wishes for appellant to serve his minimum mandatory sentences concurrently or consecutively." Id. Miller now seeks this Court's review.

DISCUSSION

Because our caselaw reflects that the crimes stemming from a single criminal episode involving a single victim or a single injury may not be sentenced consecutively, we quash the decision of the First District and remand with instructions to remand to the trial court to enter concurrent sentences.

This Court has long held that, where there is a single victim, "consecutive sentencing of mandatory minimum imprisonment terms for multiple firearm offenses is impermissible if the offenses arose from the same criminal episode." Williams , 186 So.3d at 993 (citing State v. Sousa , 903 So.2d 923, 927 (Fla. 2005) ; Palmer v. State , 438 So.2d 1, 4 (Fla. 1983) ; Perreault v. State , 853 So.2d 604, 606 (Fla. 5th DCA 2003) ). Where, during a single criminal episode, there are multiple victims or multiple injuries to a single victim, consecutive sentences are permitted at the discretion of the trial judge. See Sousa , 903 So.2d at 925-26 ; State v. Christian , 692 So.2d 889, 890-91 (Fla. 1997) ; State v. Thomas , 487 So.2d 1043, 1044-45 (Fla. 1986). Where there are not multiple victims or multiple injuries to a single victim and the defendant does not fire the gun, consecutive sentences are impermissible. Christian , 692 So.2d at 890.

In 1997, we considered the application of section 775.087(2)(a), Florida Statutes (1993), where a defendant fired multiple gun shots at multiple victims during a single criminal episode, concluding:

As a general rule, for offenses arising from a single episode, stacking is permissible where the violations of the mandatory minimum statutes cause injury to multiple victims, or multiple injuries to one victim. The injuries bifurcate the crimes for stacking purposes. The stacking of firearm mandatory minimum terms thus is permissible where the defendant shoots at multiple victims, and impermissible where the defendant does not fire the weapon.

Christian , 692 So.2d at 890-91. In other words, we determined that consecutive sentences are permissible when a single criminal episode involves either multiple victims or multiple injuries to one victim.

In Williams v. State , 186 So.3d 989 (Fla. 2016), we considered the application of section 775.087(2)(d), Florida Statutes (2008), where a defendant fired shots into the air at four victims in a single episode. As with the defendant in Christian , consecutive sentences were permissible because there were multiple victims and the gun was fired. However, we clarified that the statute did not mandate, only permitted, consecutive sentences in that case because they occurred during a single criminal episode. Specifically, we held "that, under the plain language of section 775.087(2)(d), consecutive mandatory minimum sentences are not required, but are permissible, if the sentences arise from a single criminal episode." Id. at 994.

Together, these cases state that section 775.087(2)(d), Florida Statutes (2014), mandates consecutive sentences for specified crimes committed in separate criminal episodes and permits consecutive sentences at judicial discretion for specified crimes committed in a single criminal episode with either multiple victims or injuries. Section 775.087(2)(d) neither mandates nor permits consecutive sentences for crimes committed in a single criminal episode with a single victim or injury in which a firearm is not discharged.

Miller was charged with multiple offenses stemming from a single criminal episode involving a single victim in which the gun was not discharged. Under these facts, consecutive sentences are impermissible. Accordingly, we quash the decision in Miller and approve the decision in Torres-Rios and remand to the First District for proceedings consistent with this decision.

It is so ordered.

PARIENTE, LEWIS, and LABARGA, JJ., concur.

POLSTON, J., dissents with an opinion.

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

POLSTON, J., dissenting.

For the reasons I have explained in my dissent in Williams v. State , 186 So.3d 989, 996 (Fla. 2016) (Polston, J., dissenting), I have concluded that "[t]he plain language of section 775.087(2)(d) mandates consecutive sentencing." Therefore, I would deny Miller relief, and I respectfully dissent.

LAWSON, J., dissenting.

This case presents an issue of statutory construction. For the reasons explained by Justice Canady in Walton v. State , 208 So.3d 60, 68-70 (Fla. 2016) (Canady, J., dissenting), and Williams v. State , 186 So.3d 989, 995-96 (Fla. 2016) (Canady, J., concurring in result), I conclude that section 775.087(2)(d), Florida Statutes, neither mandates nor prohibits consecutive sentences for crimes committed in a single criminal episode with a single victim or injury. Accordingly, I would affirm the result reached by the First District below.

CANADY, C.J., concurs.

      The First District asserted that we have not addressed a case factually similar to this one. Miller , 224 So.3d at 852. This reading of our decision in Williams ignores the precedent on which Williams relied. This Court does not reverse itself sub silentio and the cases upon which Williams relied are still good law.


author: PER CURIAM.

text:
    Bryan Fredrick JENNINGS, Appellant, v. STATE of Florida, Appellee.
    No. SC17-500
    Supreme Court of Florida.
    October 4, 2018
    Martin J. McClain of McClain & McDermott, P.A., Wilton Manors, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Doris Meacham, Assistant Attorney General, Daytona Beach, Florida, for Appellee
   PER CURIAM.

We have for review Bryan Fredrick Jennings' appeal of the postconviction court's order denying Jennings' motion filed pursuant to Florida Rule of Criminal Procedure 3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.

Jennings' motion sought relief pursuant to the United States Supreme Court's decision in Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and our decision on remand in Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). This Court stayed Jennings' appeal pending the disposition of Hitchcock v. State , 226 So.3d 216 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017). After this Court decided Hitchcock , Jennings responded to this Court's order to show cause arguing why it should not be dispositive in this case. After reviewing Jennings' response to the order to show cause, as well as the State's arguments in reply, we ordered full briefing on Jennings' claim that he was denied due process by the substitution of judges, without notice, between the time when the postconviction court denied his rule 3.851 motion and when the court heard his motion for rehearing.

The crimes underlying Jennings' convictions and sentence of death, at issue in this case, have been summarized as follows:

In the early morning hours of May 11, 1979, Rebecca Kunash was asleep in her bed. A nightlight had been left on in her room and her parents were asleep in another part of the house. The Defendant went to her window and saw Rebecca asleep. He forcibly removed the screen, opened the window, and climbed into her bedroom. He put his hand over her mouth, took her to his car and proceeded to an area near the Girard Street Canal on Merritt Island. He raped Rebecca, severely bruising and lacerating her vaginal area, using such force that he bruised his penis. In the course of events, he lifted Rebecca by her legs, brought her back over his head, and swung her like a sledge hammer onto the ground fracturing her skull and causing extensive damage to her brain. While she was still alive, Defendant took her into the canal and held her head under the water until she drowned. At the time of her death, Rebecca Kunash was six (6) years of age.

Jennings v. State (Jennings V ), 512 So. 2d 169, 175-76 (Fla. 1987) (quoting sentencing order), cert. denied , 484 U.S. 1079, 108 S.Ct. 1061, 98 L.Ed.2d 1023 (1988) ; see Jennings v. State (Jennings I ), 413 So.2d 24, 25 (Fla. 1982). Jennings was convicted of first-degree murder and sentenced to death following a jury's recommendation for death by a vote of eleven to one. Jennings V , 512 So.2d at 173. His sentence of death became final in 1988. Jennings , 484 U.S. 1079, 108 S.Ct. 1061, 98 L.Ed.2d 1023. Thus, Hurst does not apply retroactively to Jennings' sentence of death. See Hitchcock , 226 So.3d at 217. Accordingly, we affirm the postconviction court's denial of Jennings' motion.

We further conclude that Jennings is not entitled to relief on his claim that he was denied due process by the substitution of judges on his case between the denial of his motion for postconviction relief and his motion for rehearing. This Court has explained that "[t]he essence of due process is that fair notice and a reasonable opportunity to be heard must be given to interested parties before judgment is rendered." Scull v. State , 569 So.2d 1251, 1252 (Fla. 1990) ; see Huff v. State , 622 So.2d 982, 983 (Fla. 1993).

Despite the change in judges, Jennings was given a meaningful opportunity to be heard before his motion for rehearing was denied. See Huff , 622 So.2d at 983. Jennings was also given a meaningful opportunity to raise objections on rehearing. In fact, the new judge, Judge Mahl, reviewed the entire case, as Jennings acknowledges, before denying Jennings' motion for rehearing. See id. ; see also Glock v. Moore , 776 So.2d 243, 249 (Fla. 2001) (The defendant's "ability to raise objections negated any due process concerns."). Likewise, Jennings does not allege "any impropriety or appearance of impropriety by" Judge Mahl on rehearing. Marek v. State , 14 So.3d 985, 1002 (Fla. 2009).

CONCLUSION

For the reasons explained above, we affirm the postconviction court's order denying Jennings' successive motion for postconviction relief.

It is so ordered.

LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur.

CANADY, C.J., concurs in result.

PARIENTE, J., concurs in result with an opinion.

PARIENTE, J., concurring in result.

I agree that Jennings' right to due process was not violated by the reassignment of judges, without notice, between the denial of his motion for postconviction relief and his motion for rehearing. I concur in result only as to the Hurst -related issue. While I recognize that this Court's opinion in Hitchcock v. State , 226 So.3d 216 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), is now final, as I explained in my dissenting opinion in Hitchcock , I would apply Hurst retroactively to Jennings' sentence of death. See Hitchcock , 226 So.3d at 220-23 (Pariente, J., dissenting); see also Asay v. State (Asay V ), 210 So. 3d 1, 32-37 (Fla. 2016) (Pariente, J., concurring in part and dissenting in part), cert. denied , --- U.S. ----, 138 S.Ct. 41, 198 L.Ed.2d 769 (2017). Applying Hurst to Jennings' case, I would grant a new penalty phase based on the jury's nonunanimous recommendation for death by a vote of eleven to one. Per curiam op. at 2.

      The Court having carefully considered all arguments raised by Jennings, we caution that any rehearing motion containing reargument of Hurst -related claims will be stricken.

      Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017) ; see Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016).