Jeffrey T. Kuntz Redacted Application for Nomination to the

Jeffrey T. Kuntz

Redacted Application for Nomination to the Florida Supreme Court

Application

Ex. A – List of Authored Opinions

Ex. B – List of Appellate Cases

Ex. C – Articles

Ex. D – Example of Legal Writing

(Judicial Opinions)

Ex. E – Example of Legal Writing

(Appellate Briefs)

Ex. F – Lectures and Speeches

Ex. G – Form 6

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APPLICATION FOR NOMINATION TO THE FLORIDA SUPREME COURT

Instructions: Respond fully to the questions asked below. Please make all efforts to include your full

answer to each question in this document. You may attach additional pages, as necessary, however it is

discouraged. In addition to the application, you must provide a recent color photograph to help identify

yourself.

Full Name: Jeffrey Thomas Kuntz Social Security No.: _

Florida Bar No.: 26345 _ Date Admitted to Practice in Florida: 9/18/2006

1. Please state your current employer and title, including any professional position and any public

or judicial office you hold, your business address and telephone number.

Current Employer: State of Florida

Title: Appellate Judge

Business Address: Fourth District Court of Appeal

110 South Tamarind Avenue

West Palm Beach, Florida 33401

Business Telephone Number: 561-242-2058

2. Please state your current residential address, including city, county, and zip code. Indicate how

long you have resided at this location and how long you have lived in Florida. Additionally,

please provide a telephone number where you can be reached (preferably a cell phone number),

and your preferred email address.

Residential Address:

, Palm Beach County, Florida

Length of Time Residing at Residential Address:

Length of Time Residing in Florida:

Telephone Number:

Email Address:

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3. State your birthdate and place of birth.

Date of Birth:

Place of Birth: Orange County, Florida

4. Are you a registered voter in Florida (Y/N)?

Yes.

5. Please list all courts (including state bar admissions) and administrative bodies having special

admissions requirements to which you have ever been admitted to practice, giving the dates of

admission, and if applicable, state whether you have ever been suspended or resigned. Please

explain the reason for any lapse in membership.

Court or Administrative Body Date of Admission Suspended/Resigned

Florida Bar September 18, 2006 No

District of Columbia Bar February 9, 2009 No

Supreme Court of the United States June 3, 2013 No

United States Court of Appeals for the

Eleventh Circuit June 5, 2008 No


Federal Circuit June 5, 2012 No


Fourth Circuit September 19, 2014 No


Tenth Circuit January 12, 2015 No

United States District Court for the Middle

District of Florida October 19, 2006 No

United States District Court for the

Northern District of Florida October 24, 2006 No

United States District Court for the

Southern District of Florida May 2, 2007 No

United States Court of International Trade July 9, 2012 No

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6. Have you ever been known by any aliases? If so, please indicate and when you were known by

such alias.

No.

EDUCATION:

7. List in reverse chronological order each secondary school, college, university, law school or any

other institution of higher education attended and indicate for each the dates of attendance,

whether a degree was received, the date the degree was received, class standing, and graduating

GPA (if your class standing or graduating GPA is unknown, please request the same from such

school).

a. Suffolk University Law School –

Dates of Attendance: 8/2003 – 5/2006

Degree Received: J.D.

Class Rank: School does not provide class rank on transcript. Understood to be at

least in the top 25% based upon eligibility for honor society.

b. Boston College


Degree Received: B.A.

c. Tampa Preparatory School


Degree Received: High School

8. List and describe any organizations, clubs, fraternities or sororities, and extracurricular activities

you engaged in during your higher education. For each, list any positions or titles you held and

the dates of participation.

a. Suffolk University Law School –

i. Journal of High Technology Law

1. Editor-in-Chief – 6/2005 – 5/2006

2. Member – 6/2004 – 6/2005

ii. Rehnquist Inn, Phi Delta Phi (an honor society at Suffolk University Law School)

1. Member

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EMPLOYMENT:

9. List in reverse chronological order all full-time jobs or employment (including internships and

clerkships) you have held since the age of 21. Include the name and address of the employer, job

title(s) and dates of employment. For non-legal employment, please briefly describe the position

and provide a business address and telephone number.

a. State of Florida, Fourth District Court of Appeal

Job Title: Appellate Judge

Dates of Employment:

Address: 110 South Tamarind Avenue

West Palm Beach, Florida 33401

b. GrayRobinson, P.A.

Job Title: Associate/Shareholder

Dates of Employment: 8/2006 – 11/2016

Address: 401 E. Las Olas Blvd., Suite 1000

Ft. Lauderdale, Florida 33301

c. Adorno & Yoss LLP

Job Title: Summer Associate


Address: 350 East Las Olas Boulevard

Ft. Lauderdale, Florida 33301

d. City of Waltham Law Department

Job Title: Law Clerk


Address: 119 School Street

Waltham, Massachusetts 02451

e. Officer of the Attorney General for the Commonwealth of Massachusetts

Job Title: Intern


Address: One Ashburton Place

Boston, Massachusetts 02108

5

10. Describe the general nature of your current practice including any certifications which you

possess; additionally, if your practice is substantially different from your prior practice or if you

are not now practicing law, give details of prior practice. Describe your typical clients or former

clients and the problems for which they sought your services.

I am currently a judge on the Fourth District Court of Appeal. Generally, my practice at

the law firm focused on civil litigation. The majority of my civil practice occurred in the

federal and state appellate courts.

11. What percentage of your appearance in court in the last five years or in the last five years of

practice (include the dates) was:

Court Area of Practice

Federal Appellate 25 % Civil 99 %

Federal Trial 10 % Criminal %

Federal Other % Family 1 %

State Appellate 50 % Probate %

State Trial 15 % Other %

State Administrative %

State Other %

TOTAL 100 % TOTAL 100 %

If your appearance in court the last five years is substantially different from your prior practice,

please provide a brief explanation:

During the past five years my appearance in court was exclusively as a judge.

12. In your lifetime, how many (number) of the cases that you tried to verdict, judgment, or final

decision were:

Jury? 1 Non-jury? 5

Arbitration? Administrative Bodies?

Appellate? 100+ _

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13. Please list every case that you have argued (or substantially participated) in front of the United

States Supreme Court, a United States Circuit Court, the Florida Supreme Court, or a Florida

District Court of Appeal, providing the case name, jurisdiction, case number, date of argument,

and the name(s), e-mail address(es), and telephone number(s) for opposing appellate counsel. If

there is a published opinion, please also include that citation.

See Exhibit B.

14. Within the last ten years, have you ever been formally reprimanded, sanctioned, demoted,

disciplined, placed on probation, suspended, or terminated by an employer or tribunal before

which you have appeared? If so, please state the circumstances under which such action was

taken, the date(s) such action was taken, the name(s) of any persons who took such action, and

the background and resolution of such action.

No.

15. In the last ten years, have you failed to meet any deadline imposed by court order or received

notice that you have not complied with substantive requirements of any business or contractual

arrangement? If so, please explain full.

No.

16. For your last six cases, which were tried to verdict or handled on appeal, either before a jury,

judge, appellate panel, arbitration panel or any other administrative hearing officer, list the

names, e-mail addresses, and telephone numbers of the trial/appellate counsel on all sides and

court case numbers (include appellate cases). This question is optional for sitting judges who

have served five years or more.

See Exhibits B and C.

17. For your last six cases, which were either settled in mediation or settled without mediation or

trial, list the names and telephone numbers of trial counsel on all sides and court case numbers

(include appellate cases). This question is optional for sitting judges who have served five

years or more.


18. During the last five years, on average, how many times per month have you appeared in Court or

at administrative hearings? If during any period you have appeared in court with greater

frequency than during the last five years, indicate the period during which you appeared with

greater frequency and succinctly explain.

Not applicable.

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19. If Questions 16, 17, and 18 do not apply to your practice, please list your last six major

transactions or other legal matters that were resolved, listing the names, e-mail addresses, and

telephone numbers of the other party counsel.

Not applicable.

20. During the last five years, if your practice was greater than 50% personal injury, workers’

compensation or professional malpractice, what percentage of your work was in representation

of plaintiffs or defendants?

Not applicable.

21. List and describe the five most significant cases which you personally litigated giving the case

style, number, court and judge, the date of the case, the names, e-mail addresses, and telephone

numbers of the other attorneys involved, and citation to reported decisions, if any. Identify your

client and describe the nature of your participation in the case and the reason you believe it to be

significant.


22. Attach at least two, but no more than three, examples of legal writing which you personally

wrote. If you have not personally written any legal documents recently, you may attach a writing

sample for which you had substantial responsibility. Please describe your degree of involvement

in preparing the writing you attached.

See Exhibits E and E.

PRIOR JUDICIAL EXPERIENCE OR PUBLIC OFFICE

23. Have you ever held judicial office or been a candidate for judicial office? If so, state the court(s)

involved, the dates of service or dates of candidacy, and any election results.

I received my commission as a judge on the Fourth District Court of Appeal on November

21, 2016, and have held the position since that date.

24. If you have previously submitted a questionnaire or application to this or any other judicial

nominating commission, please give the name(s) of the commission, the approximate date(s) of

each submission, and indicate if your name was certified to the Governor’s Office for

consideration.

a. On August 12, 2016, I submitted an application to the Fourth District Court of Appeal

Judicial Nominating Commission. My name was certified to the Governor for

consideration.

b. On October 4, 2018, I submitted an application to the Florida Supreme Court Judicial

Nominating Commission. My name was certified to the Governor for consideration.

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c. On December 23, 2019, I submitted an application to the Florida Supreme Court Judicial

Nominating Commission. My name was not certified to the Governor for consideration.

25. List any prior quasi-judicial service, including the agency or entity, dates of service, position(s)

held, and a brief description of the issues you heard.

Not applicable.

26. If you have prior judicial or quasi-judicial experience, please list the following information:

(i) the names, phone numbers and addresses of six attorneys who appeared before you on

matters of substance;

(ii) the approximate number and nature of the cases you handled during your tenure;

(iii) the citations of any published opinions; and

(iv) descriptions of the five most significant cases you have tried or heard, identifying the

citation or style, attorneys involved, dates of the case, and the reason you believe these cases

to be significant.

See Exhibit A.

27. Provide citations and a brief summary of all of your orders or opinions where your decision was

reversed by a reviewing court or where your judgment was affirmed with significant criticism of

your substantive or procedural rulings. If any of the opinions listed were not officially reported,

attach copies of the opinions.

See Exhibit A.

28. Provide citations for significant opinions on federal or state constitutional issues, together with

the citation to appellate court rulings on such opinions. If any of the opinions listed were not

officially reported, attach copies of the opinions.

See Exhibit A.

29. Has a complaint about you ever been made to the Judicial Qualifications Commission? If so,

give the date, describe the complaint, whether or not there was a finding of probable cause,

whether or not you have appeared before the Commission, and its resolution.

No.

30. Have you ever held an attorney in contempt? If so, for each instance state the name of the

attorney, case style for the matter in question, approximate date and describe the circumstances.

Not applicable.

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31. Have you ever held or been a candidate for any other public office? If so, state the office,

location, dates of service or candidacy, and any election results.

No.

NON-LEGAL BUSINESS INVOLVEMENT

32. If you are now an officer, director, or otherwise engaged in the management of any business

enterprise, state the name of such enterprise, the nature of the business, the nature of your duties,

and whether you intend to resign such position immediately upon your appointment or election

to judicial office.

Not applicable.

33. Since being admitted to the Bar, have you ever engaged in any occupation, business or

profession other than the practice of law? If so, explain and provide dates. If you received any

compensation of any kind outside the practice of law during this time, please list the amount of

compensation received.

Not applicable.

POSSIBLE BIAS OR PREJUDICE

34. The Commission is interested in knowing if there are certain types of cases, groups of entities, or

extended relationships or associations which would limit the cases for which you could sit as the

presiding judge. Please list all types or classifications of cases or litigants for which you, as a

general proposition, believe it would be difficult for you to sit as the presiding judge. Indicate the

reason for each situation as to why you believe you might be in conflict. If you have prior

judicial experience, describe the types of cases from which you have recused yourself.

Not applicable.

PROFESSIONAL ACCOMPLISHMENTS AND OTHER ACTIVITIES

35. List the titles, publishers, and dates of any books, articles, reports, letters to the editor, editorial

pieces, or other published materials you have written or edited, including materials published

only on the Internet. Attach a copy of each listed or provide a URL at which a copy can be

accessed.

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a. Review of “Open Source Licensing: Software Freedom & Intellectual Property Law” by

Lawrence Rosen (Author, 2005, Bimonthly Review of Law Books and Journal of High

Technology Law)

b. “LLCS: NOT AS CREDITOR-RESISTANT AS THEY USED TO BE” (Co-Author,

October 2010).

36. List any reports, memoranda or policy statements you prepared or contributed to the preparation

of on behalf of any bar association, committee, conference, or organization of which you were or

are a member. Provide the name of the entity, the date published, and a summary of the

document. To the extent you have the document, please attach a copy or provide a URL at which

a copy can be accessed.

Not applicable.

37. List any speeches or talks you have delivered, including commencement speeches, remarks,

interviews, lectures, panel discussions, conferences, political speeches, and question-and-answer

sessions. Include the date and place they were delivered, the sponsor of the presentation, and a

summary of the presentation. If there are any readily available press reports, a transcript or

recording, please attach a copy or provide a URL at which a copy can be accessed.

See Exhibit F.

38. Have you ever taught a course at an institution of higher education or a bar association? If so,

provide the course title, a description of the course subject matter, the institution at which you

taught, and the dates of teaching. If you have a syllabus for each course, please provide.

Not applicable.

39. List any fellowships, honorary degrees, academic or professional honors, honorary society

memberships, military awards, and any other special recognition for outstanding service or

achievement. Include the date received and the presenting entity or organization.

40. Do you have a Martindale-Hubbell rating? If so, what is it and when was it earned?

Not applicable.

41. List all bar associations, legal, and judicial-related committees of which you are or have been a

member. For each, please provide dates of membership or participation. Also, for each indicate

any office you have held and the dates of office.

a. American Bar Association

o Member, 2006 through 2021

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b. Broward County Bar Association

o Member, 2006-2017

c. Craig S. Barnard American Inn of Court

o Member, 2017-2019

d. Defense Research Institute

o Member, 2007-2007

e. Eleventh Circuit Court of Appeals Historical Society

o Member, September 2010 through Present

f. Federal Bar Association

o Member, May 2008-2017

g. Federalist Society

o Member, 2003 through Present

h. Florida Court’s Technology Commission

o Member, July 1, 2021 – Present

i. Florida Conference of District Court of Appeal Judges

o Member, November 21, 2016 – Present

o Officer – Treasurer/Secretary, September 1, 2018 – Present

o Education Committee – Member, September 1, 2017 – Present

o Legislative Committee – Member, September 1, 2018 – Present

j. Florida’s Judicial Ethics Advisory Committee (J.E.A.C.)

o Member, February 1, 2019 – Present

k. Florida’s Rules of Appellate Procedure Committee

o Member, July 1, 2011 – June 30, 2017

o Electronic Filing Subcommittee, Chair, July 1, 2016 – June 30, 2017

o Civil Practice Subcommittee, Chair, July 1, 2014 – June 30, 2016; Vice-Chair, July 1,

2013 – June 30, 2014

o General Practice Subcommittee, Vice-Chair, July 1, 2012 – June 30, 2013

l. Florida’s Rules of Judicial Administration Committee

o Member, July 1, 2017 – Present

o Drafting Subcommittee, Vice-Chair, July 1, 2018 – June 30, 2019

o Rule 2.420 Sub-Committee, Chair, July 1, 2019 – Present

m. Florida Supreme Court’s Appellate Case Management Change Advisory Board

o Member, June 24, 2020 – Present

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n. Florida Supreme Court’s Appellate Court Technology Committee

o Member, June 30, 2020 – Present

o. Judicial Nominating Commission, Fifteenth Judicial Circuit

o Member, November 9, 2012 – November 18, 2016

o Vice-Chair, July 1, 2015 – November 18, 2016

p. Florida Supreme Court Historical Society

o Member, March 2009 through Present

q. Forum Club of the Palm Beaches


r. Martin County Bar Association


s. Palm Beach County Bar Association

o Member, January 2011 through Present

t. Phi Delta Phi (Law School Honor Society)


u. South Palm Beach County Bar Association


v. Supreme Court of the United States Historical Society


w. Third District Court of Appeal Historical Society

o Member, 2009-2017

42. List all professional, business, fraternal, scholarly, civic, charitable, or other organizations, other

than those listed in the previous question to which you belong, or to which you have belonged

since graduating law school. For each, please provide dates of membership or participation and

indicate any office you have held and the dates of office.

a. Boca Raton Little League Board of Directors

o President, 2021 – Present

o Member, 2019 – Present

b. Florida House

o Young Ambassador's Council – Nov. 2015-Nov. 2016

c. Junior Achievement of South Florida Board of Directors

o Member, 2008-Nov. 2016

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d. Leadership Fort Lauderdale

o Member, Class 16

43. Do you now or have you ever belonged to a club or organization that in practice or policy

restricts (or restricted during the time of your membership) its membership on the basis of race,

religion (other than a church, synagogue, mosque or other religious institution), national origin,

or sex (other than an educational institution, fraternity or sorority)? If so, state the name and

nature of the club(s) or organization(s), relevant policies and practices and whether you intend to

continue as a member if you are selected to serve on the bench.

No.

44. Please describe any significant pro bono legal work you have done in the past 10 years, giving

dates of service.

Along with a colleague in private practice, we represented the interests of a party pro bono

in the Florida Supreme Court. The matter originated in the United States Bankruptcy Court

and on appeal the Eleventh Circuit certified questions to the Florida Supreme Court. See

Osborne v. Dumoulin, 55 So. 3d 577 (Fla. 2011).

Along with a colleague in private practice, we represented the interests of an individual in a

partnership disolution in a matter that was filed in the Miami-Dade Circuit Court. This

representation occurred in approximately 2014 through 2015.

45. Please describe any hobbies or other vocational interests.

When not working, I am generally spending time with and doing things with my wife and

our two boys. Additionally, I enjoy travel with my family and am very interested in both

sports and technology.

46. Please state whether you have served or currently serve in the military, including your dates of

service, branch, highest rank, and type of discharge.

No.

47. Please provide links to all social media and blog accounts you currently maintain, including, but

not limited to, Facebook, Twitter, LinkedIn, and Instagram.\

a. https://www.floridalegalblog.org/

b. https://twitter.com/FloridaLegal

c. I maintain an inactive Facebook and Instagram account that contain no posts.

https://www.floridalegalblog.org/

https://twitter.com/FloridaLegal

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FAMILY BACKGROUND

48. Please state your current marital status. If you are currently married, please list your spouse’s

name, current occupation, including employer, and the date of the marriage. If you have ever

been divorced, please state for each former spouse their name, current address, current telephone

number, the date and place of the divorce and court and case number information.

a. I am married to Kristine Kuntz. We were married on . Kristine is not

currently employed.

49. If you have children, please list their names and ages. If your children are over 18 years of age,

please list their current occupation, residential address, and a current telephone number.

a. Kuntz, Age

b. Kuntz, Age

CRIMINAL AND MISCELLANEOUS ACTIONS

50. Have you ever been convicted of a felony or misdemeanor, including adjudications of guilt

withheld? If so, please list and provide the charges, case style, date of conviction, and terms of

any sentence imposed, including whether you have completed those terms.

No.

51. Have you ever pled nolo contendere or guilty to a crime which is a felony or misdemeanor,

including adjudications of guilt withheld? If so, please list and provide the charges, case style,

date of conviction, and terms of any sentence imposed, including whether you have completed

those terms.

No.

52. Have you ever been arrested, regardless of whether charges were filed? If so, please list and

provide sufficient details surrounding the arrest, the approximate date and jurisdiction.

No.

53. Have you ever been a party to a lawsuit, either as the plaintiff, defendant, petitioner, or

respondent? If so, please supply the case style, jurisdiction/county in which the lawsuit was filed,

case number, your status in the case, and describe the nature and disposition of the matter.

a. Knize v. Weissblum, et al, Fifteenth Judicial Circuit, Case Number

502021CA009988XXXXMB: A lawsuit was filed against me, my colleagues, and the

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Court, in my capacity as a Judge on the Fourth District Court of Appeal. The lawsuit was

dismissed and an appeal is currently pending.

54. To your knowledge, has there ever been a complaint made or filed alleging malpractice as a

result of action or inaction on your part?

No.

55. To the extent you are aware, have you or your professional liability carrier ever settled a claim

against you for professional malpractice? If so, give particulars, including the name of the

client(s), approximate dates, nature of the claims, the disposition and any amounts involved.

No.

56. Has there ever been a finding of probable cause or other citation issued against you or are you

presently under investigation for a breach of ethics or unprofessional conduct by any court,

administrative agency, bar association, or other professional group. If so, provide the particulars

of each finding or investigation.

No.

57. To your knowledge, within the last ten years, have any of your current or former co-workers,

subordinates, supervisors, customers, clients, or the like, ever filed a formal complaint or

accusation of misconduct including, but not limited to, any allegations involving sexual

harassment, creating a hostile work environment or conditions, or discriminatory behavior

against you with any regulatory or investigatory agency or with your employer? If so, please

state the date of complaint or accusation, specifics surrounding the complaint or accusation, and

the resolution or disposition.

No.

58. Are you currently the subject of an investigation which could result in civil, administrative, or

criminal action against you? If yes, please state the nature of the investigation, the agency

conducting the investigation, and the expected completion date of the investigation.

No.

59. Have you ever filed a personal petition in bankruptcy or has a petition in bankruptcy been filed

against you, this includes any corporation or business entity that you were involved with? If so,

please provide the case style, case number, approximate date of disposition, and any relevant

details surrounding the bankruptcy.

No.

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60. In the past ten years, have you been subject to or threatened with eviction proceedings? If yes,

please explain.

No.

61. Please explain whether you have complied with all legally required tax return filings. To the

extent you have ever had to pay a tax penalty or a tax lien was filed against you, please explain

giving the date, the amounts, disposition, and current status.

I have complied with all legally required tax return filing dates.

HEALTH

62. Are you currently addicted to or dependent upon the use of narcotics, drugs, or alcohol?

No.

63. During the last ten years have you been hospitalized or have you consulted a professional or have

you received treatment or a diagnosis from a professional for any of the following: Kleptomania,

Pathological or Compulsive Gambling, Pedophilia, Exhibitionism or Voyeurism? If your answer

is yes, please direct each such professional, hospital and other facility to furnish the Chairperson

of the Commission any information the Commission may request with respect to any such

hospitalization, consultation, treatment or diagnosis. ["Professional" includes a Physician,

Psychiatrist, Psychologist, Psychotherapist or Mental Health Counselor.] Please describe such

treatment or diagnosis.

No.

64. In the past ten years have any of the following occurred to you which would interfere with your

ability to work in a competent and professional manner: experiencing periods of no sleep for two

or three nights, experiencing periods of hyperactivity, spending money profusely with extremely

poor judgment, suffering from extreme loss of appetite, issuing checks without sufficient funds,

defaulting on a loan, experiencing frequent mood swings, uncontrollable tiredness, falling asleep

without warning in the middle of an activity. If yes, please explain.

No.

65. Do you currently have a physical or mental impairment which in any way limits your ability or

fitness to properly exercise your duties as a member of the Judiciary in a competent and

professional manner? If yes please explain the limitation or impairment and any treatment,

program or counseling sought or prescribed.

No.

17

66. During the last ten years, have you ever been declared legally incompetent or have you or your

property been placed under any guardianship, conservatorship or committee? If yes, provide full

details as to court, date, and circumstances.

No.

67. During the last ten years, have you unlawfully used controlled substances, narcotic drugs, or

dangerous drugs as defined by Federal or State laws? If your answer is "Yes," explain in detail.

(Unlawful use includes the use of one or more drugs and/or the unlawful possession or

distribution of drugs. It does not include the use of drugs taken under supervision of a licensed

health care professional or other uses authorized by Federal or State law provisions.)

No.

68. In the past ten years, have you ever been reprimanded, demoted, disciplined, placed on

probation, suspended, cautioned, or terminated by an employer as result of your alleged

consumption of alcohol, prescription drugs, or illegal drugs? If so, please state the circumstances

under which such action was taken, the name(s) of any persons who took such action, and the

background and resolution of such action

No.

69. Have you ever refused to submit to a test to determine whether you had consumed and/or were

under the influence of alcohol or drugs? If so, please state the date you were requested to submit

to such a test, the type of test required, the name of the entity requesting that you submit to the

test, the outcome of your refusal, and the reason why you refused to submit to such a test.

No.

70. In the past ten years, have you suffered memory loss or impaired judgment for any reason? If so,

please explain in full.

No.

SUPPLEMENTAL INFORMATION

71. Describe any additional education or experiences you have which could assist you in holding

judicial office.

I hope that the Commission finds that my work ethic and genuine interest in the law make

me a good candidate to nominate to the Governor. I look forward to an opportunity to meet

18

with the Commission and answer any questions that you may have about me, my practice,

my time as a judge, and my application.

72. Explain the particular contribution you believe your selection would bring to this position and

provide any additional information you feel would be helpful to the Commission and Governor

in evaluating your application.

I appreciate the law and enjoy the opportunity to continually learn. I also bring a dedication

to the profession, hard work, and a desire to be a part of developing the law as we move

forward. Finally, I believe my temperament is appropriate for a judge and has allowed me

to fairly execute the responsibilities of the position to both the public and the law.

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REFERENCES

73. List the names, addresses, e-mail addresses and telephone numbers of ten persons who are in a

position to comment on your qualifications for a judicial position and of whom inquiry may be

made by the Commission and the Governor.

Daniel Alter

Shareholder, GrayRobinson, P.A.

Telephone: 954-761-7494

Email: [email protected]

John M. Brennan (“Jay”)

Shareholder, GrayRobinson, P.A.

Telephone: 407-244-5676


Dorian Damoorgian

Judge, Fourth District Court of Appeal

Telephone: 561-242-2033


Joseph E. diGenova

Founding Partner, diGenova & Toensing, LLP

Telephone: 202-841-2767


Barbara Lagoa

Judge, United States Court of Appeals for the

Eleventh Circuit

Contact Information on request or from the

Florida Bar

Spencer D. Levine

Judge, Fourth District Court of Appeal

Telephone: 561-242-2038


Anuraag H. Singhal (“Raag”)

Judge, United States District Court for the

Southern District of Florida

Contact Information on request or from the

Florida Bar

Gregor J. Schwinghammer (“Greg”)

Shareholder, Gunster

Telephone: 561-650-0595


Victoria Toensing

Founding Partner, diGenova & Toensing, LLP

Telephone: 202-255-8863


Dan Traver

Judge, Fifth District Court of Appeal

Telephone: 407-257-3894


https://www.gray-robinson.com/attorneys-professionals/daniel-alter

http://www.gray-robinson.com/attorneys-professionals/john-m-brennan

mailto:[email protected]

https://www.4dca.org/Judges/Judge-Dorian-K.-Damoorgian


https://www.digenovatoensing.com/attorneybiosjd.htm


https://www.ca11.uscourts.gov/hon-barbara-lagoa

https://www.floridabar.org/directories/find-mbr/profile/?num=966990

https://www.4dca.org/Judges/Chief-Judge-Spencer-D.-Levine


https://www.flsd.uscourts.gov/district-judges

https://www.floridabar.org/mybarprofile/816094

https://gunster.com/staff/attorneys/gregor-j-schwinghammer-jr/


https://www.digenovatoensing.com/attorneybiosvt.htm


https://www.5dca.org/Judges/Judge-Dan-Traver


20

CERTIFICATE

I have read the foregoing questions carefully and have answered them truthfully, fully

and completely. I hereby waive notice by and authorize The Florida Bar or any of its

committees, educational and other institutions, the Judicial Qualifications Commission,

the Florida Board of Bar Examiners or any judicial or professional disciplinary or

supervisory body or commission, any references furnished by me, employers, business

and professional associates, all governmental agencies and instrumentalities and all

consumer and credit reporting agencies to release to the respective Judicial Nominating

Commission and Office of the Governor any information, files, records or credit reports

requested by the commission in connection with any consideration of me as possible

nominee for appointment to judicial office. Information relating to any Florida Bar

disciplinary proceedings is to be made available in accordance with Rule 3-7.1(l), Rules

Regulating The Florida Bar. I recognize and agree that, pursuant to the Florida

Constitution and the Uniform Rules of this commission, the contents of this

questionnaire and other information received from or concerning me, and all interviews

and proceedings of the commission, except for deliberations by the commission, shall

be open to the public.

Further, I stipulate I have read and understand the requirements of the Florida Code of

Judicial Conduct.

Dated this day of ________________________, 20__________ .

Printed Name Signature

(Pursuant to Section 119.071(4)(d)(1), F.S.), . . . The home addresses and telephone

numbers of justices of the Supreme Court, district court of appeal judges, circuit court

judges, and county court judges; the home addresses, telephone numbers, and places

of employment of the spouses and children of justices and judges; and the names and

locations of schools and day care facilities attended by the children of justices and

judges are exempt from the provisions of subsection (1), dealing with public records.

JTK

Jeffrey T. Kuntz

JTK

27th

JTK

May

JTK

22

JTK

.

JTK

21

FINANCIAL HISTORY

1. State the amount of gross income you have earned, or losses you have incurred (before

deducting expenses and taxes) from the practice of law for the preceding three-year period.

This income figure should be stated on a year to year basis and include year to date

information, and salary, if the nature of your employment is in a legal field.

Current Year-To-Date: _$80,043.75__________

Last Three Years: $183,373.02 $167,945.94__ $166,766.88____

2. State the amount of net income you have earned, or losses you have incurred (after

deducting expenses but not taxes) from the practice of law for the preceding three-year

period. This income figure should be stated on a year to year basis and include year to date

information, and salary, if the nature of your employment is in a legal field.

Current Year-To-Date: _$80,043.75______

Last Three Years: $183,373.02 $167,945.94__$166,766.88____

3. State the gross amount of income or loses incurred (before deducting expenses or taxes)

you have earned in the preceding three years on a year by year basis from all sources other

than the practice of law, and generally describe the source of such income or losses.

Current Year-To-Date: ______TBD (investments)_________

Last Three Years: $68,000 (investments) $35,000 (investments) $20,000

(investments)

4. State the amount you have earned in the preceding three years on a year by year basis from

all sources other than the practice of law, and generally describe the source of such income

or losses.



(investments)

5. State the amount of net income you have earned or losses incurred (after deducting

expenses) from all sources other than the practice of law for the preceding three-year period

on a year by year basis, and generally describe the sources of such income or losses.



(investments)

15

FORM 6

FULL AND PUBLIC

DISCLOSURE OF

FINANCIAL INTEREST

PART A – NET WORTH

Please enter the value of your net worth as of December 31 or a more current date. [Note: Net worth is not calculated by subtracting your reported liabilities from your reported assets, so please see the instructions on page 3.]

My net worth as of , 20 was $ .

PART B - ASSETS

HOUSEHOLD GOODS AND PERSONAL EFFECTS:

Household goods and personal effects may be reported in a lump sum if their aggregate value exceeds $1,000. This category includes any of the following, if not held for investment purposes; jewelry; collections of stamps, guns, and numismatic items; art objects; household equipment and furnishings; clothing; other household items; and vehicles for personal use.

The aggregate value of my household goods and personal effects (described above) is $

ASSETS INDIVIDUALLY VALUED AT OVER $1,000:

DESCRIPTION OF ASSET (specific description is required – see instructions p. 3) VALUE OF ASSET

PART C - LIABILITIES

LIABILITIES IN EXCESS OF $1,000 (See instructions on page 4): NAME AND ADDRESS OF CREDITOR

AMOUNT OF LIABILITY

JOINT AND SEVERAL LIABILITIES NOT REPORTED ABOVE: NAME AND ADDRESS OF CREDITOR

AMOUNT OF LIABILITY

JTK

See Exhibit “G”

JTK

See Exhibit “G”

JTK

See Exhibit “G”

16

PART D - INCOME

You may EITHER (1) file a complete copy of your latest federal income tax return, including all W2’s, schedules, and attachments, OR (2) file a sworn statement identifying each separate source and amount of income which exceeds $1,000 including secondary sources of income, by completing the remainder of Part D, below.

I elect to file a copy of my latest federal income tax return and all W2’s, schedules, and attachments.

(if you check this box and attach a copy of your latest tax return, you need not complete the remainder of Part D.]

PRIMARY SOURCE OF INCOME (See instructions on page 5):

NAME OF SOURCE OF INCOME EXCEEDING $1,000

ADDRESS OF SOURCE OF INCOME AMOUNT

SECONDARY SOURCES OF INCOME [Major customers, clients, etc., of businesses owned by reporting person—see instructions on page 6]

NAME OF BUSINESS ENTITY

NAME OF MAJOR SOURCES OF BUSINESS’ INCOME

ADDRESS OF SOURCE

PRINCIPAL BUSINESS ACTIVITY OF SOURCE

PART E – INTERESTS IN SPECIFIC BUSINESS [Instructions on page 7]

BUSINESS ENTITY #1 BUSINESS ENTITY #2 BUSINESS ENTITY #3

NAME OF BUSINESS ENTTITY

ADDRESS OF BUSINESS ENTITY

PRINCIPAL BUSINESS ACTIVITY

POSITION HELD WITH ENTITY

I OWN MORE THAN A 5% INTEREST IN THE BUSINESS

NATURE OF MY

OWNERSHIP INTEREST

IF ANY OF PARTS A THROUGH E ARE CONTINUED ON A SEPARATE SHEET, PLEASE CHECK HERE

OATH

I, the person whose name appears at the beginning of this form, do depose on oath or affirmation and say that the information disclosed on this form and any attachments hereto is true, accurate, and complete.

STATE OF FLORIDA

COUNTY OF

Sworn to (or affirmed) and subscribed before me this day of , 20 by

(Signature of Notary Public—State of Florida)

(Print, Type, or Stamp Commissioned Name of Notary Public)

Personally Known OR Produced Identification

SIGNATURE Type of Identification Produced

JTK

See Exhibit “G”

JTK

See Exhibit “G”

JUDICIAL APPLICATION DATA RECORD

(Please Type or Print)

Date:

JNC Submitting To:

Name (please print):

Current Occupation:

Telephone Number: Attorney No.:

Gender (check one): Male Female

Ethnic Origin (check one): White, non-Hispanic

Hispanic

Black

American Indian/Alaskan Native

Asian/Pacific Islander

County of Residence:

The judicial application shall include a separate page asking applicants to identify their race,

ethnicity and gender. Completion of this page shall be optional, and the page shall include an

explanation that the information is requested for data collection purposes in order to assess and

promote diversity in the judiciary. The chair of the Commission shall forward all such completed

pages, along with the names of the nominees to the JNC Coordinator in the Governor’s Office

(pursuant to JNC Uniform Rule of Procedure).

JTK

May 27, 2022

JTK

Florida Supreme Court

JTK

Jeffrey T. Kuntz

JTK

Appellate Judge

JTK

26345

JTK

954-790-7573

JTK

Palm Beach

JTK

FLORIDA DEPARTMENT OF LAW ENFORCEMENT

DISCLOSURE PURSUANT TO THE

FAIR CREDIT REPORTING ACT (FCRA)

The Florida Department of Law Enforcement (FDLE) may obtain one or more consumer reports,

including but not limited to credit reports, about you, for employment purposes as defined by the

Fair Credit Reporting Act, including for determinations related to initial employment,

reassignment, promotion, or other employment-related actions.

CONSUMER'S AUTHORIZATION FOR

FDLE TO OBTAIN CONSUMER REPORT(S)

I have read and understand the above Disclosure. I authorize the Florida Department of Law

Enforcement (FDLE) to obtain one or more consumer reports on me, for employment purposes, as

described in the above Disclosure.

Printed Name of Applicant

Signature of Applicant

Date:

JTK

JTK

Jeffrey T. Kuntz

JTK

May 27, 2022

JEFFREY T. KUNTZ

Fourth District Court of Appeal

110 S. Tamarind Avenue

West Palm Beach, Florida 33401-4610

Exhibit A – List of Authored Opinion

Contents Representative Opinions ........................................................................................................................... 2

Majority Opinions (Unanimous) ............................................................................................................... 5

Majority Opinions (Non-Unanimous) ..................................................................................................... 38

Concurring Opinions ............................................................................................................................... 40

Opinions Concurring in Result Only ...................................................................................................... 41

Dissenting Opinions ................................................................................................................................ 42

Judicial Ethics Advisory Commission (J.E.A.C.) Opinions ................................................................... 43

Note: This addendum includes all elaborated opinions that identify me as the author. It does not include

the following: (i) opinions I wrote that did not identify me as the author; (ii) per curiam affirmances

without elaboration where I was the primary assigned judge; and (iii) opinions in any matter, with or

without elaboration, where I was on the panel but not the author of the decision.

Breakdown of Written Opinions

Type Number of Opinions

Majority Opinions (Unanimous) 193

Majority Opinion (Per Curiam) Not Included

Majority Opinions (Non-Unanimous) 8

Concurring Opinions 5

Opinions Concurring in Result Only 2

Dissenting Opinions 4

Total Opinions (Excluding J.E.A.C.)

2121

J.E.A.C. Opinions 78

Total Opinions (Including J.E.A.C.) 290

1 This total includes four opinions in en banc cases: (i) two en banc opinions for a unanimous court; (ii) one en banc

opinion for a non-unanimous court; and (iii) one dissent in an en banc case.

Jeffrey T. Kuntz, Addendum, Page 2 of 43

Representative Opinions

• Johnson v. State, 268 So. 3d 729 (Fla. 4th DCA 2018)

The defendant argued the trial court failed to conduct a proper Melbourne/Batson inquiry after counsel

objected to the state’s use of a peremptory challenge. The majority reversed. In dissent, I concluded

that the defendant waived his challenge to the peremptory strike when he failed to object to the state’s

proffered nondiscriminatory reason for striking the juror. I wrote:

The decision of the majority is yet another cut—one that further separates the procedure carried

out in the trial courts from the purpose explicitly stated in Batson and Melbourne. In this district,

we will now presume that the defendant rejects the state’s stated nondiscriminatory basis for the

strike. The Melbourne inquiry moves further from the goal of eliminating discrimination. Instead,

the goal has become the process; the sideshow becoming part of the main event.

The Florida Supreme Court quashed the opinion written by the majority and remanded the case. State

v. Johnson, 295 So. 3d 710 (Fla. 2020).

• Philadelphia Fin. Mgmt. of San Francisco, LLC v. DJSP Enterprises, Inc., 227 So. 3d 612 (Fla. 4th

DCA 2017)

Writing for the court, the opinion affirmed the circuit court’s application of res judicata. The opinion

also addressed whether state or federal preclusion principles apply, concluding:

Thus, this court’s prior decisions looked to the federal preclusion standard when we could, in fact

we should, have looked to our own. Because we need not cede our state laws and rules to the

federal system when not compelled to do so, in the appropriate case—one where the correct

application of Semtek impacts the result—we may need to determine whether our language should

be refined to more accurately reflect the Supreme Court’s holding.

• Fox v. Fox, 262 So. 3d 789 (Fla. 4th DCA 2018)

The en banc majority wrote that “[t]he effect of a trial court's failure to make statutorily-required

findings in an alimony award is the focus of this appeal.” In dissent, I wrote that “[a]fter agreeing

there is no fundamental error, and without explanation, the majority states that the Court will adhere

to our prior precedent that does not require a party to raise the issue.” I disagreed, and wrote that

In almost every situation, we require parties to first raise issues before the circuit court to preserve

the issues for appeal, and we should not treat the situation here differently. Thus, to preserve the

issue for purposes of appeal, generally a party must first challenge in the circuit court a purported

lack of adequate findings to support an award in a dissolution case. The party can raise the issue

in a motion for rehearing or through other means authorized by the rules.4 Raising it on appeal in

the first instance should not be permitted.

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• G.A.Q.L. v. State, 257 So. 3d 1058 (Fla. 4th DCA 2018)

The circuit court granted the state’s motion and compelled a minor to provide the passcode to his iPhone.

The majority opinion quashed the circuit court’s order. Concurring in result only, I wrote that the

majority correctly concluded the minor could not be compelled to orally speak to a detective. But I

disagreed with the majority that the foregone conclusion doctrine could apply in the circumstance, and

wrote (internal citations omitted):

The foregone conclusion exception is a judicially created exception. It is not found within the

Fifth Amendment. . . [H]ere, the State sought to compel the oral production of the requested

information. The foregone conclusion exception has not been applied to oral testimony, and for

good reason . . . Requiring the accused to orally communicate to the government information

maintained only in his mind would certainly compel oral testimony. So, in my view, the basis for

granting the petition is not that the State failed to satisfy the requirements of the foregone

conclusion exception. Rather, the petition should be granted because the foregone conclusion

exception is inapplicable to the compelled oral testimony sought in this case.

• McGraw v. State, 245 So. 3d 760 (Fla. 4th DCA 2018)

The defendant appealed an order denying his motion to suppress the results of a warrantless blood draw.

Writing for the majority, I concluded that a warrantless blood draw does not violate the Fourth

Amendment. The opinion examines the U.S. Supreme Court’s opinions in Birchfield and McNeely, and

opinions from approximately twenty state courts applying those two decisions. The opinion concluded

by rejecting the Fourth Amendment challenge, stating that “[b]ecause Florida’s law does not impose

criminal penalties, the statute does not violate the Fourth Amendment. And, with an unconscious

defendant, the less intrusive alternative of a breath test is not available. In effect, the blood test is the

only option.”

During the pendency of an appeal to the Florida Supreme Court, the United States Supreme Court issued

a decision on the same issue and reaching the same conclusion. Mitchell v. Wisconsin, 139 S. Ct. 2525

(2019). The Florida Supreme Court vacated the decision for further consideration based on Mitchell.

McGraw v. State, 289 So. 3d 836 (Fla. 2019). Our decision on remand is reported at McGraw v. State,

299 So. 3d 12 (Fla. 4th DCA 2020)

• Kunz v. Sch. Bd. of Palm Beach County, 237 So. 3d 1026 (Fla. 4th DCA 2018)

A parent filed a lawsuit against the school board arguing that class sizes in the district violate the Florida

Constitution. In my opinion for the court, I wrote:

Essentially, W.K. asks this court to reach inside a system established by the legislature and direct

the process be conducted in a different manner. That we cannot do. . . .

It is not for the courts to question whether the manner in which the legislative or executive branch

carries out these requirements is wise. Nor could we mandate the amendment be carried out in any

particular manner. Such decisions are best left to the legislative or executive branch of our

government, comprised of persons who must answer to their constituents. There is no place for

the courts in such disputes, especially on an individual classroom basis and outside the process

established to handle this exact issue.

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• R.N. v. State, 257 So. 3d 507 (Fla. 4th DCA 2018)

This case presented an issue of statutory interpretation and the opinion considered various canons of

statutory construction. The statute at issue applies to any person that “... intentionally or

knowingly maliciously harasses, teases, interferes with, or attempts to interfere with a police dog ....” §

843.19(4), Fla. Stat.

The opinion concluded the word maliciously modified each word in the statutory phrase. So the state

was required to prove a defendant not only interfered with a police dog, but did so maliciously. In the

trial court the state did not argue the juvenile maliciously interfered with the police dog. As a result,

the adjudication of delinquency was reversed.

• Stuart v. Ryan, 232 So. 3d 418 (Fla. 4th DCA 2017)

The case considered exemptions to Florida’s constitutional homestead protection. The opinion

explained that “[w]e are required to liberally apply the homestead exemption and strictly construe

the exceptions. Therefore, the availability of exceptions not found in the constitution is

questionable.” And “both the legislature and the courts are powerless to create exceptions to

Florida’s homestead exemption not found in our constitution.”

The opinion acknowledged that “it is true that. . . our supreme court created a fourth exception for

alimony creditors.” As a result, “we would limit the exceptions to the constitutional homestead

exemption to those specifically stated in the Florida Constitution and, because we are compelled to

do so, those specifically recognized by the Florida Supreme Court.”

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Majority Opinions (Unanimous)

1. Abidoshi v. Abidoshi, 326 So. 3d 81 (Fla. 4th DCA 2021)

• Opinion by Kuntz, J.; Damoorgian and Artau, JJ., concur.

• Counsel for Appellant: David M. Scott of the Law Office of David Scott, P.A., Fort Lauderdale.

• Counsel for Appellee: Yosef Kudan and Alan Jay Braverman of Stok Kon + Braverman, Fort Lauderdale.

2. Abt v. Metro Motors Ventures, Inc., 252 So. 3d 263 (Fla. 4th DCA 2018)

• Opinion by Kuntz, J.; Taylor and May, JJ., concur.

• Counsel for Appellant: Julie H. Littky-Rubin of Clark, Fountain, La Vista, Prather, Keen & Littky-Rubin,

LLP, West Palm Beach, and Bradford L. Jefferson of Bradford L. Jefferson, P.A., Fort Pierce.

• Counsel for Appellee: Alfred R. Bell, Jr., and Sean J. Greene of Steinger, Iscoe & Greene, P.A., Port St.

Lucie.

3. Amelio v. State, 253 So. 3d 1150 (Fla. 4th DCA 2018)

• Opinion by Kuntz, J.; May and Ciklin, JJ., concur.

• Counsel for Appellant: Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender,

West Palm Beach.

• Counsel for Appellee: Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant

Attorney General, West Palm Beach.

4. B.A. Mortgage, LLC v. Baigorria, 4D19-3504, 2020 WL 3982824 (Fla. 4th DCA July 15, 2020)

• Opinion by Kuntz, J.; Gross, J., and Curley, Joe, Associate Judge, concur.

• Counsel for Appellant: Arnaldo Velez of Arnaldo Velez, P.A., Coral Gables.

• Counsel for Appellee: Bruce K. Herman of The Herman Law Group, P.A., Fort Lauderdale.

5. B.W. v. State, 4D19-1524, 2020 WL 6603545 (Fla. 4th DCA Nov. 12, 2020)

• Opinion by Kuntz, J.; Ciklin and Forst, JJ.

• Counsel for Appellant: Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender,

West Palm Beach.

• Counsel for Appellee: Ashley Moody, Attorney General, Tallahassee, and Jonathan P. Picard, Assistant


6. Bailey v. Bailey, 310 So. 3d 103 (Fla. 4th DCA 2021)

• Opinion by Kuntz, J.; May and Forst, JJ.

• Counsel for Appellant: Anthony M. Barbuto of Barbuto Law Firm, P.A., Wellington.

• Counsel for Appellee Carolyn Bailey: Caryn A. Stevens and Gina M. Szapucki of Ward, Damon, Posner,

Pheterson & Bleau, West Palm Beach.

• Counsel for Appellee Bailey’s Botanical Art: Preston J. Fields, Sr., of Preston J. Fields, P.A., Palm Beach

Gardens.

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7. Bank of New York as Tr. for Noteholders CWABS Inc. Assetbacked Notes, Series 2006-SD4006-SD4

v. Calloway, 300 So. 3d 220 (Fla. 4th DCA 2020)

• Opinion by Kuntz, J.; Warner and Damoorgian, JJ., concur.

• Counsel for Appellant: Brian A. Wahl of Bradley Arant Boult Cummings LLP, Birmingham, Alabama.

• Counsel for Appellee: Geoffrey E. Sherman and Roy D. Oppenheim of Oppenheim Pilelsky, P.A., Weston.

8. Bethel v. State, 249 So. 3d 1263 (Fla. 4th DCA 2018)

• Opinion by Kuntz, J.; Forst and Klingensmith, JJ., concur.

• Counsel for Appellant: Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West

Palm Beach.

• Counsel for Appellee: Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant


9. Brussot v. Brussot, 214 So. 3d 796 (Fla. 4th DCA 2017)

• Opinion by Kuntz, J.; Ciklin, CJ., and Gross, J., concur.

• Counsel for Appellant: Larry R. Fleurantin of Fleurantin, Francois & Antonin, P.A., North Miami Beach,

and Parnel D. Auguste of Bernard & Auguste, P.A., Delray Beach.

• Counsel for Appellee: Troy William Klein, West Palm Beach.

10. Campbell v. State, 287 So. 3d 629 (Fla. 4th DCA 2020)

• Opinion by Kuntz, J.; Conner and Gross, JJ., concur.

• Counsel for Appellant: Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public

Defender, West Palm Beach.

• Counsel for Appellee: Ashley B. Moody, Attorney General, Tallahassee, and Alexandra A. Folley, Assistant


11. Canidate v. State, 238 So. 3d 412 (Fla. 4th DCA 2018)

• Opinion by Kuntz, J.; Gerber, CJ., and Gross, J., concur.

• Counsel for Appellant: Andrew B. Greenlee of Andrew B. Greenlee, P.A., Sanford, and Greg Rosenfeld of

the Law Offices of Greg Rosenfeld, P.A., West Palm Beach.

• Counsel for Appellee: Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph D. Coronato, Jr.,

Assistant Attorney General, West Palm Beach.

12. Carlos v. Carlos, 322 So. 3d 1176 (Fla. 4th DCA 2021)

• Opinion by Kuntz, J.; Damoorgian, J., and Fahnestock, Fabienne E., Associate Judge, concur.

• Counsel for Appellant: Jafari Alex Carlos, Port St. Lucie.

• Counsel for Appellee: No appearance.

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13. Casiano v. State, 280 So. 3d 105 (Fla. 4th DCA 2019)

• Opinion by Kuntz, J.; Levine, C.J., and Damoorgian, J., concur.



• Counsel for Appellee: Ashley Moody, Attorney General, Tallahassee, and Rachael Kaiman, Assistant


14. Cataldo v. State, 257 So. 3d 1092 (Fla. 4th DCA 2018)

• Opinion by Kuntz, J.; Taylor and Conner, JJ., concur.



• Counsel for Appellee: Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly T. Acuña, Assistant


15. Certified Priority Restoration v. Universal Ins. Co. of N. Am., 322 So. 3d 1178 (Fla. 4th DCA 2021)


• Counsel for Appellant: Kristin E. Marrero and Karla Lockwood of The Mineo Salcedo Law Firm, P.A.,

Davie.

• Counsel for Appellee: Thomas A. Valdez and Vilma Martinez of Quintairos, Prieto, Wood & Boyer, P.A.,

Tampa.

16. Certified Priority Restoration v. Universal Ins. Co. of N. Am., 326 So. 3d 1135 (Fla. 4th DCA 2021)


• Counsel for Appellant: Gray R. Proctor of Kramer, Greene, Zuckerman, Green & Buchsbaum, P.A.,

Hollywood.

• Counsel for Appellee: Thomas A. Valdez and Vilma Martinez of Quintairos, Prieto, Wood & Boyer, P.A..

17. Chetu, Inc. v. KO Gaming, Inc., 261 So. 3d 605 (Fla. 4th DCA 2019)

• Opinion by Kuntz, J.; Damoorgian and Forst, JJ., concur.

• Counsel for Appellant: Paul D. Turner, Benjamin L. Reiss, and Joey M. Lampert of Perlman, Bajandas,

Yevoli & Albright, Fort Lauderdale.


18. City of Cooper City v. Joliff, 227 So. 3d 633 (Fla. 4th DCA 2017)

• Opinion by Kuntz, J.; Gerber, CJ., and Gross, J., concur.

• Counsel for Appellant: Edward G. Guedes and Adam A. Schwartzbaum of Weiss Serota Helfman Cole &

Bierman, P.L., Coral Gables, Jamie A. Cole and Matthew H. Mandel of Weiss Serota Helfman Cole &

Bierman, P.L., Fort Lauderdale.

• Counsel for Appellee: Christopher J. Lynch of Christopher J. Lynch, P.A., Coral Gables, and David Frankel, P.A., Fort Lauderdale.

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19. City of Fort Lauderdale v. Nichols, 246 So. 3d 391 (Fla. 4th DCA 2018)


• Counsel for Appellant: Scott C. Cochran and W. Tucker Craig of Billing, Cochran, Lyles, Mauro & Ramsey,

P.A., Fort Lauderdale.

• Counsel for Appellee: Brian M. Silverio of Silverio & Hall, P.A., Naples.

20. Cleveland Clinic Fla. v. Children’s Cancer Caring Ctr., Inc., 274 So. 3d 1102 (Fla. 4th DCA 2019)

• Opinion by Kuntz, J.; May and Klingensmith, JJ., concur.

• Counsel for Appellant: Ronald Rosengarten of Greenberg Traurig, P.A., Miami.

• Counsel for Appellee: Myles G. Cypen of Myles G. Cypen, P.A., Fort Lauderdale.

21. Cook v. McMillan, 4D19-3825, 2020 WL 3833415 (Fla. 4th DCA July 8, 2020)


• Counsel for Appellant: Steve Cook, Fort Lauderdale, pro se, and S. Andrew Foster of The Foster Firm,

Cooper City.

• Counsel for Appellee: Jason E. Slatkin of Slatkin & Reynolds, P.A., Fort Lauderdale.

22. Corp. Creations Enterprises LLC v. Brian R. Fons Attorney at Law P.C., 225 So. 3d 296 (Fla. 4th

DCA 2017)


• Counsel for Appellant: Stephanie L. Serafin, Jane Kreusler–Walsh, and Rebecca Mercier Vargas of Law

Office of Kreusler–Walsh, Compiani & Vargas, P.A., West Palm Beach, and H. James Montalvo of Law

Offices of H. James Montalvo, P.A., Miami.

• Counsel for Appellee: Dave K. Roy of Roy & Associates, P.A. (withdrawn as counsel after filing brief), West

Palm Beach, and Brian R. Fons, Austin, Texas, pro se.

23. Corp. Creations Int’l, Inc. v. Marriott Int’l, Inc., 276 So. 3d 36 (Fla. 4th DCA 2019)

• Opinion by Kuntz, J.; Warner and Forst, JJ., concur.

• Counsel for Appellant: Albert L. Frevola, Jr., of The Frevola Law Firm, PLLC, Pompano Beach.

• Counsel for Appellee: Jennifer N. Hernandez and Wilfredo A. Rodriguez of Avila Rodriguez, Hernandez

Mena & Ferri, LLP, Coral Gables.

24. County of Cumberland, New Jersey v. Kwap, 220 So. 3d 1207 (Fla. 4th DCA 2017)

• Opinion by Kuntz, J.; Warner and Levine, JJ., concur.

• Counsel for Appellant: Scott L. Mendlestein of Falk, Waas, Hernandez, Cortina, Solomon & Bonner, P.A.,

Coral Gables.

• Counsel for Appellee: Scott J. Edwards, of Scott J. Edwards, P.A., Boca Raton.

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25. Cove & Deerfield Beach, LLC v. R Fast, Inc., 4D20-1782, 2020 WL 6937858 (Fla. 4th DCA Nov.

25, 2020)

• Opinion by Kuntz, J.; Warner and Gross, JJ., concur.

• Counsel for Appellant: Evan B. Berger of Becker & Poliakoff, P.A., Fort Lauderdale.

• Counsel for Appellee: Robert P. Bissonnette of Robert P. Bissonnette, P.A., Fort Lauderdale.

26. Custom Marine Sales, Inc. v. Boywic Farms, Ltd., 245 So. 3d 791 (Fla. 4th DCA 2018)

• Opinion by Kuntz, J.; Ciklin and Klingensmith, JJ., concur.

• Counsel for Appellant: Louis C. Arslanian, Hollywood.

• Counsel for Appellee: Gale Ciceric Payne of Gale Payne & Associates, Fort Lauderdale.

27. D.B. v. State, 222 So. 3d 627 (Fla. 4th DCA 2017)

• Opinion by Kuntz, J.; Gross and Conner, JJ., concur.

• Counsel for Appellant: Carey Haughwout, Public Defender, and Erika Follmer, Assistant Public Defender,

West Palm Beach.



28. D.S. v. State, 267 So. 3d 414 (Fla. 4th DCA 2019)

• Opinion by Kuntz, J.; Geber, C.J., and Ciklin, J., concur.

• Counsel for Appellant: Carey Haughwout, Public Defender, and Virginia Murphy, Assistant Public Defender,

West Palm Beach.

• Counsel for Appellee: Ashley B. Moody, Attorney General, Tallahassee, and Alexandra A. Folley, Assistant


29. Dania Beach Boat Club Condo. Assoc. v. Forcier, 4D18-3511, 2020 WL 698656 (Fla. 4th DCA

Feb. 12, 2020)

• Opinion by Kuntz, J., Ciklin and Conner, JJ., concur.

• Counsel for Appellant: Joseph P. Klock, Jr. of Rasco Klock Perez Nieto, Coral Gables.

• Counsel for Appellee: David A. Wallace and Morgan R. Bentley of Bentley & Bruning, P.A., Sarasota, and

Albert A. Sanchez of Sanchez Law, PLLC, Sarasota.

30. Daniel v. State, 47 Fla. L. Weekly D706, 4D21-1968, 2022 WL 852310 (Fla. 4th DCA Mar. 23,

2022)

• Opinion by Kuntz, J.; Conner, C.J., and Artau, J., concur.

• Counsel for Appellant: Tavaris C. Daniel, Indiantown.

• Counsel for Appellee: Ashley Moody, Attorney General, Tallahassee, and Kimberly T. Acuña, Assistant


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31. Daniello v. Settle, 47 Fla. L. Weekly D528, 4D20-2732, 2022 WL 610226 (Fla. 4th DCA Mar. 2,

2022)

• Opinion by Kuntz, J.; Gross and Forst, J., concur.

• Counsel for Appellant: Ryan C. Shrouder of Spink, Shrouder & Karns, P.A., Cooper City.

• Counsel for Appellee: William A. Fleck of Jupiter Legal Advocates, Palm Beach Gardens.

32. Davis v. Davis, 245 So. 3d 810 (Fla. 4th DCA 2018)

• Opinion by Kuntz, J., Gross and Taylor, JJ., concur.

• Counsel for Appellant: Stephanie L. Serafin and Jane Kreusler–Walsh of the Law Office of Kreusler–Walsh

Vargas & Serafin, P.A., West Palm Beach, and Robin J. Scher of the Law Offices of Robin J. Scher, P.A.,

North Palm Beach.


33. Davis v. State, 219 So. 3d 863 (Fla. 4th DCA 2017)


• Counsel for Appellant: Carey Haughwout, Public Defender, and J. Woodson Isom, Assistant Public


• Counsel for Appellee: Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez–Orosa, Senior


34. Davis v. State, 287 So. 3d 586 (Fla. 4th DCA 2019)

• Opinion by Kuntz, J.; Warner and Ciklin, JJ., concur.

• Counsel for Appellant: Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant Public



35. Dean v. State, 4D20-2706, 2022 WL 1099532 (Fla. 4th DCA Apr. 13, 2022)

• Opinion by Kuntz, J.; Klingensmith and Artau, JJ., concur.



• Counsel for Appellee: Ashley Moody, Attorney General, Tallahassee, and Jessica L. Underwood and Jessenia

J. Concepcion, Assistant Attorney Generals, West Palm Beach.

36. Delopa v. State, 251 So. 3d 934 (Fla. 4th DCA 2018)


• Counsel for Appellant: Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender,

West Palm Beach.

• Counsel for Appellee: Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant


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37. Desai v. Lawnwood Med. Ctr., Inc., 219 So. 3d 869 (Fla. 4th DCA 2017), review granted, SC17-

1493, 2018 WL 2073259 (Fla. Jan. 29, 2018), review discharged, 260 So. 3d 218 (Fla. 2018)


• Counsel for Appellant: Richard H. Levenstein and Abby M. Spears of Kramer, Sopko & Levenstein, P.A.,

Stuart.

• Counsel for Appellee: Thomas E. Warner, Dean A. Morande and Michael D. Sloan of Carlton Fields Jorden

Burt, P.A., West Palm Beach.

• Counsel for Amicus Curiae: Glenn J. Webber of Glenn J. Webber, P.A., Stuart, for Amicus Curiae

Association of American Physicians & Surgeons. Mary K. Thomas of Florida Medical Association,

Tallahassee, Jon N. Ekdahl and Leonard A. Nelson of American Medical Association, Chicago, IL, for

Amicus Curiae American Medical Association. Martin B. Goldberg and Jason A. Coe of Lash & Goldberg

LLP, Miami for Amicus Curiae 41 Florida Hospital Facilities.

38. Dodge v. People’s Tr. Ins. Co., 321 So. 3d 831 (Fla. 4th DCA 2021)

• Opinion by Kuntz, J.; May and Gerber, JJ., concur.

• Counsel for Appellant: Mark A. Nation of The Nation Law Firm, LLP, Longwood.

• Counsel for Appellee: Mark D. Tinker of Cole, Scott & Kissane, P.A., Tampa, and Brett Frankel, Jonathan

Sabghir, and Jake A. Tover, Deerfield Beach.

39. Dyck-O’Neal, Inc. v. Martin, 207 So. 3d 898 (Fla. 4th DCA 2017)


• Counsel for Appellant: Susan M. Morrison of the Law Offices of Susan B. Morrison, P.A., Tampa.

• Counsel for Appellee: Frederick Charles Sake, Miami.

40. Element Fin. Corp. v. Marcinkoski Gradall, Inc., 215 So. 3d 1252 (Fla. 4th DCA 2017), review

granted SC17-1084, 2017 WL 4512129 (Fla. Oct. 10, 2017), dismissed SC17-1084, 2018 WL

1151571 (Fla. Mar. 2, 2018)

• Opinion by Kuntz, J.; Warner and Gerber, JJ., concur.

• Counsel for Appellant: Eric B. Zwiebel of Emanuel & Zwiebel, PLLC, Plantation.

• Counsel for Appellee: Peter M. Feaman and Nancy Guffey of Peter M. Feaman, P.A., Boynton Beach, for

appellee Marcinkoski Gradall, Inc. and Ray A. Marcinkoski. Noah Tennyson and Gregory L. Scott of Nason,

Yeager, Gerson, White & Lioce, P.A., Palm Beach Gardens, for appellee KFIR Baranes and The Best Floor

Care, Inc.

41. Exantus v. State, 248 So. 3d 1200 (Fla. 4th DCA 2018)

• Opinion by Kuntz, J.; Gross and Taylor, JJ., concur.

• Counsel for Appellant: Carey Haughwout, Public Defender, and Melanie L. Casper, Special Assistant Public

Defender, Boca Raton.

• Counsel for Appellee: Pamela Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman, Assistant


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42. Fernalld v. ABB, Inc., 315 So. 3d 1221 (Fla. 4th DCA Mar. 10, 2021)

• Opinion by Kuntz, J.; Gerber and Forst, JJ., concur.

• Counsel for Appellant: Chris Kleppin of The Kleppin Firm, P.A., Plantation.

• Counsel for Appellee: Anisley Tarragona of BT Law Group, PLLC, Miami, and Pedro J. Torres-Diaz of

Jackson Lewis P.C., Miami.

43. Finest Known LLC v. Weiss Research, Inc., 241 So. 3d 203 (Fla. 4th DCA 2018)

• Opinion by Kuntz, J.; Gross and Forst, JJ., concur.

• Counsel for Appellant: Brian M. Becher of Frank Weinberg Black, P.L., Boca Raton.

• Counsel for Appellee: Jack J. Aiello, G. Joseph Curley, Michael W. Marcil and John W. Terwilleger of

Gunster, Yoakley & Stewart, P.A., West Palm Beach.

44. Fletcher v. McCulloch, 333 So. 3d 1143 (Fla. 4th DCA 2022)

• Opinion by Kuntz, J.; May and Damoorgian, JJ., concur.

• Counsel for Appellant: Carlton Pierce of Carlton Pierce, P.A., West Palm Beach.


45. Frank v. Frank, 253 So. 3d 12 (Fla. 4th DCA 2018)


• Counsel for Appellant: Matthew Jay Lane of Matthew Lane & Associates, P.A., Lake Park, and James L.

Green of the Law Office of James L. Green, P.A., Jupiter.

• Counsel for Appellee: Eddie Stephens and Caryn A. Stevens of Ward, Damon, Posner, Pheterson & Bleau,

P.L., West Palm Beach.

46. Franklin v. State, 321 So. 3d 256 (Fla. 4th DCA 2021)

• Opinion by Kuntz, J.; Ciklin and Artau, JJ., concur.

• Counsel for Appellant: Carey Haughwout, Public Defender, and Ikram Ally, Assistant Public Defender, West

Palm Beach.

• Counsel for Appellee: Ashley Moody, Attorney General, Tallahassee, and Anesha Worthy, Assistant


47. Gabriji, LLC v. Hollywood E., LLC, 45 Fla. L. Weekly D2251, 4D19-3495, 2020 WL 5808367 (Fla.

4th DCA Sept. 30, 2020)

• Opinion by Kuntz, J.; Levine, C.J., and Shepherd, Caroline, Associate Judge, concur.

• Counsel for Appellant: George Harder of Harder Law, Lutz.

• Counsel for Appellee: Brigid F. Cech Samole of Greenberg Traurig, P.A., Miami.

48. Gardner v. Standard Fire Ins. Co., 231 So. 3d 1 (Fla. 4th DCA 2017)

• Opinion by Kuntz, J.; Gross and Levine, JJ., concur.

• Counsel for Appellant: Shelly J. Stirrat of Appellate Services, PLLC, West Palm Beach, and Jack M. Sobel

of Schwed, Adams, Sobel & McGinley, PA, Palm Beach Gardens.

• Counsel for Appellee: Gabriel C. Dobrin of Law Offices of James W. Kehoe, III, Fort Lauderdale.

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49. GEICO Gen. Ins. Co. v. Hallandale Beach Orthopedics, Inc., 324 So. 3d 527 (Fla. 4th DCA 2021)


• Counsel for Appellant: Michael A. Rosenberg, Peter D. Weinstein, and Adrianna de la Cruz-Muñoz of Cole,

Scott & Kissane, P.A., Plantation.

• Counsel for Appellee: David B. Pakula of David B. Pakula, P.A., Pembroke Pines, and Gary Marks of Marks

& Fleischer, Fort Lauderdale.

50. Gibson v. Siskind, 330 So. 3d 560 (Fla. 4th DCA 2021)

• Opinion by Kuntz, J.; Conner, C.J., and Forst, J., concur.

• Counsel for Appellant: Robert Gibson, Lake Worth.

• Counsel for Appellee: Jeffrey M. Siskind of Siskind Legal, PLLC, Wellington.

51. Gillette v. Gillette, 226 So. 3d 958 (Fla. 4th DCA 2017)

• Opinion by Kuntz, J.; Gerber, C.J., and Gross, J., concur.

• Counsel for Appellant: Martin L. Haines, III of Brinkley Morgan, Lake Park.

• Counsel for Appellee: Troy William Klein of Law Office of Troy W. Klein, P.A., West Palm Beach.

52. Goldman v. United Services Auto. Ass’n, 244 So. 3d 310 (Fla. 4th DCA 2018)


• Counsel for Appellant: Daniel L. Monfiston of The Monfiston Firm, P.A., Miami.

• Counsel for Appellee: Paige B. Segrera, Michael Simon and Jennifer V. Ortega of Simon, Reed & Salazar,

P.A., Miami.

53. Gooden v. People’s Tr. Ins. Co., 47 Fla. L. Weekly D749, 4D20-2760, 2022 WL 945507 (Fla. 4th

DCA Mar. 30, 2022)


• Counsel for Appellant: Samuel Alexander of Alexander Appellate Law P.A., DeLand.

• Counsel for Appellee: Joshua S. Beck of Beck Law, P.A., Boca Raton, and Brett R. Frankel, Jonathan

Sabghir, and Robert B. Gertzman of People's Trust Insurance Company, Deerfield Beach.

54. Granger v. State, 252 So. 3d 769 (Fla. 4th DCA 2018)

• Opinion by Kuntz, J.; Ciklin and Conner, JJ., concur.

• Counsel for Appellant: Brandon Roshawn S. Granger, Cross City, pro se.

• Counsel for Appellee: Pamela Jo Bondi, Attorney General, Tallahassee, and Deborah Koenig, Assistant


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55. GSK Hollywood Dev. Group, LLC v. City of Hollywood, 246 So. 3d 501 (Fla. 4th DCA 2018)

• Opinion by Kuntz, J.; Warner and Conner, JJ., concur.

• Counsel for Appellant: Harvey W. Gurland, Jr., Scott H. Marder and Lida Rodriguez–Taseff of Duane Morris

LLP, Miami.

• Counsel for Appellee: Laura K. Wendell, Daniel L. Abbott and Adam A. Schwartzbaum of Weiss Serota

Helfman Cole & Bierman, P.L., Fort Lauderdale.

56. Gulfstream Park Racing Ass’n, Inc. v. Volin, 326 So. 3d 1124 (Fla. 4th DCA 2021)

• Opinion by Kuntz, J.; Levine, C.J., and Artau, J., concur.

• Counsel for Appellant: Hinda Klein of Conroy Simberg, Hollywood.

• Counsel for Appellee: Dan Cytryn, Edgar Velazquez, and Daniel Schwarz of the Law Offices of Cytryn &

Velazquez, P.A., Coral Springs.

57. H.K. v. Dep’t of Children & Families, 277 So. 3d 1055 (Fla. 4th DCA 2019)

• Opinion by Kuntz, J.; Levine, C.J., and Gerber, J., concur.

• Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant Regional Counsel, Office of Criminal

Conflict and Civil Regional Counsel, Fourth District, West Palm Beach

• Counsel for Appellee Guardian ad Litem: Thomasina F. Moore, Statewide Director of Appeals, and Laura J.

Lee, Senior Attorney, of Florida Statewide Guardian ad Litem Office, Tallahassee, for appellee Guardian ad

Litem.

• Counsel for Appellee Department of Children & Families: Ashley Moody, Attorney General, Tallahassee,

and Carolyn Schwarz, Assistant Attorney General, Fort Lauderdale.

58. Haspel v. State, 247 So. 3d 4 (Fla. 4th DCA 2018)

• Opinion by Kuntz, J.; Warner and Levine, JJ., concur.

• Counsel for Appellant: Michael Haspel, Bowling Green, pro se.


59. Haver v. City of W. Palm Beach, Inc., 4D19-1537, 2020 WL 3067760 (Fla. 4th DCA June 10, 2020)

• Opinion by Kuntz, J.; Warner and Klingensmith, JJ., concur.

• Counsel for Appellant: Peter M. Haver, West Palm Beach.

• Counsel for Appellee: K. Denise Haire, Assistant City Attorney, West Palm Beach.

60. Haugabook v. Jeffcoat-Hultberg, 219 So. 3d 65 (Fla. 4th DCA 2016)

• Opinion by Kuntz, J.; Ciklin, C.J., and May, J., concur.

• Counsel for Appellant: Andrea J. White of Florida Rural Legal Services, Inc., Fort Pierce.

• Counsel for Appellee: Melissa Jeffcoat–Hultberg, Adairsville, Georgia, pro se.

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61. Hawks v. State, 226 So. 3d 892 (Fla. 4th DCA 2017)

• Opinion by Kuntz, J.; Taylor and Damoorgian, JJ., concur.


West Palm Beach.

• Counsel for Appellee: Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph D. Coronato, Jr.,


62. Home Ally Financial, LLC v. Rosen, 279 So. 3d 186 (Fla. 4th DCA 2019)

• Opinion by Kuntz, J.; Levine, C.J., and Gerber, J., concur.

• Counsel for Appellant: Mark A. Levy of Brinkley Morgan, Fort Lauderdale.

• Counsel for Appellee: Jonathan Kline of Jonathan Kline, P.A., Weston.

63. Hoti v. U.S. Bank, N.A., 45 Fla. L. Weekly D1113, 4D20-289, 2020 WL 2666802 (Fla. 4th DCA

May 6, 2020)

• Opinion by Kuntz, J.; Warner and Klingensmith, J., concur.

• Counsel for Appellant: Arthur J. Morburger, Miami.

• Counsel for Appellee: Adam G. Schwartz of Fox McCluskey Bush Robison, PLLC, Stuart.

64. In re Williams, 47 Fla. L. Weekly D700, 4D21-1749, 2022 WL 852308 (Fla. 4th DCA Mar. 23,

2022)


• Counsel for Appellant: Tasha M. Simmonds of Tasha Simmonds, P.A., Fort Lauderdale.

• Counsel for Appellee: None.

65. Interest of M.R., 327 So. 3d 848 (Fla. 4th DCA 2021)

• Opinion by Kuntz, J.; Levine and Klingensmith, JJ., concur.

• Counsel for Denise E. Kistner, V.R., and V.R.: Denise E. Kistner of the Law Offices of Denise E. Kistner,

P.A., Fort Lauderdale.

• Counsel for Appellee Guardian ad Litem: Thomasina F. Moore, Statewide Director of Appeals, and Samantha

C. Valley, Senior Attorney, Statewide Guardian ad Litem Office, Tallahassee.

• Counsel for Appellee Department of Children and Families: Ashley Moody, Attorney General, Tallahassee,

and Carolyn Schwartz, Assistant Attorney General, Children's Legal Services, Fort Lauderdale

• Counsel for Appellee M.R., E.R., N.J.R., and P.R: David J. Glantz of Broward Lawyers Care, pro bono

project of Legal Aid Service of Broward County, Weston.

66. J.G. v. State, 213 So. 3d 936 (Fla. 4th DCA 2017)


• Counsel for Appellant: Carey Haughwout, Public Defender, and Virginia Murphy, Assistant Public Defender, West Palm Beach.

• Counsel for Appellee: Pamela Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman, Assistant


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67. James v. State, 258 So. 3d 468 (Fla. 4th DCA 2018)



Palm Beach.

• Counsel for Appellee: Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Senior


68. Jenkins v. State, 4D19-392, 2020 WL 1933229 (Fla. 4th DCA Apr. 22, 2020)


• Counsel for Appellant: Carey Haughwout, Public Defender, and Scott Thomas Pribble, Assistant Public


• Counsel for Appellee: Ashley Moody, Attorney General, Tallahassee, and Melynda Melear, Senior Assistant


69. Jooste v. Jooste, 273 So. 3d 6 (Fla. 4th DCA 2019)

• Opinion by Kuntz, J.; Gerber, C.J., and Ciklin, J., concur.

• Counsel for Appellant: Brittani S. Gross, Doreen Inkeles and Charles D. Jamieson of The Law Firm of

Charles D. Jamieson, P.A., West Palm Beach.

• Counsel for Appellee: Cash A. Eaton of Sasser, Cestero & Sasser, P.A., West Palm Beach.

70. Julien v. United Prop. & Cas. Ins. Co., 311 So. 3d 875 (Fla. 4th DCA 2021)

• Opinion by Kuntz, J.; Gross, J., and Curley, G. Joseph, Associate Judge, concur.

• Counsel for Appellant: George A. Vaka and Nancy A. Lauten of Vaka Law Group, P.L., Tampa, and Kelly

L. Kubiak of Merlin Law Group, Tampa.

• Counsel for Appellee: Ezequiel Lugo and Chris W. Altenbernd of Banker Lopez Gassler, P.A., Tampa.

71. K.D. v. State, 4D19-2196, 2020 WL 4668066 (Fla. 4th DCA Aug. 12, 2020)


• Counsel for Appellant: Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender,

West Palm Beach.

• Counsel for Appellee: Ashley Moody, Attorney General, Tallahassee, and Anesha Worthy, Assistant


72. Kaplan v. Epstein, 219 So. 3d 932 (Fla. 4th DCA 2017)


• Counsel for Appellant: Lida Rodriguez–Taseff and Gutman Skrande of Duane Morris LLP, Miami.

• Counsel for Appellee: Michael S. Singer of Comiter Singer Baseman & Braun, LLC, Palm Beach Gardens,

and Robert J. Hauser of Pankauski Hauser PLLC, West Palm Beach.

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73. Keller v. Lawnwood Med. Ctr., Inc., 219 So. 3d 879 (Fla. 4th DCA 2017), review stayed, SC17-

1497 (Fla. Jan. 29, 2018)

• Opinion by Kuntz, J.; Ciklin, C.J., and Gross, J., concur.

• Counsel for Appellant: Richard H. Levenstein and Abby M. Spears of Kramer, Sopko & Levenstein, P.A.,

Stuart.

• Counsel for Appellee: Thomas E. Warner, Dean A. Morande and Michael D. Sloan of Carlton Fields Jorden

Burt, P.A., West Palm Beach.

74. Kiefer v. Sunset Beach Investments, LLC, 207 So. 3d 1008 (Fla. 4th DCA 2017)


• Counsel for Appellant: Jon D. Derrevere and Shirley Jean McEachern of Derrevere Hawkes Black & Cozad,

West Palm Beach.

• Counsel for Appellee: Evan H. Frederick and Benjamin A. Webster, West Palm Beach.

75. Kriebel v. Piedrahita, 219 So. 3d 867 (Fla. 4th DCA 2017)


• Counsel for Appellant: Michael J. Alman and Jamie D. Alman of Greenspoon Marder, P.A., Fort Lauderdale.


76. Kushch v. Tower Hill Signature Ins. Co., 320 So. 3d 775 (Fla. 4th DCA Apr. 7, 2021)

• Opinion by Kuntz, J.; Ciklin and Gerber, JJ.

• Counsel for Appellant: Jose P. Font and Sonya P. Randolph of Font & Nelson, PLLC, Fort Lauderdale.

• Counsel for Appellee: Kara Rockenbach Link and Daniel M. Schwarz of Link & Rockenbach, PA, West

Palm Beach.

77. Kunz v. Sch. Bd. of Palm Beach County, 237 So. 3d 1026 (Fla. 4th DCA 2018)

• Opinion by Kuntz, J.; Warner and Conner, JJ., concur.

• Counsel for Appellant: Paul Kunz, Boca Raton.

• Counsel for Appellee: Sean Fahey and Shawntoyia N. Bernard, West Palm Beach.

78. Lakeview Loan Servicing, LLC v. Walcott-Barr, 307 So. 3d 705 (Fla. 4th DCA 2020)

• Opinion by Kuntz, J.; Forst, J., concurs; Gross, J., specially concurs with opinion.

• Counsel for Appellant: Paul J. McCord of Deluca Law Group, PLLC, Fort Lauderdale.

• Counsel for Appellee: Malcolm E. Harrison and Michelle Moore, Wellington.

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79. Langel v. State, 4D19-2198, 2020 WL 3564688 (Fla. 4th DCA July 1, 2020)


• Counsel for Appellant: Paul Morris of Law Offices of Paul Morris, P.A., Miami, and Robert J. Watson of

Robert J. Watson, P.A., Stuart.

• Counsel for Appellee: Ashley Moody, Attorney General, Tallahassee, and Richard Valuntas, Assistant


80. Lannquist v. Munyon, 4D19-2722, 2020 WL 6937859 (Fla. 4th DCA Nov. 25, 2020)

• Opinion by Kuntz, J.; Ciklin and Forst, JJ., concur.

• Counsel for Appellant: Thomas J. Ali of Jupiter Legal Advocates, Palm Beach Gardens.

• Counsel for Appellee: Timothy M. Chiasson, Jonnie M. Jennings, and Daniel C. Perri of Perri & Jennings,

Shalimar.

81. LE-1 v. Trower, 320 So. 3d 176 (Fla. 4th DCA 2021)

• Opinion by Kuntz, J.; Ciklin and Forst, JJ., concur.

• Counsel for Appellant: John A. Turner and Andrea Cox of Saul Ewing Arnstein & Lehr LLP, West Palm

Beach.

• Counsel for Appellee: Jane Kreusler-Walsh, Rebecca M. Vargas, and Stephanie L. Serafin of Kreusler-

Walsh, Vargas & Serafin, P.A., West Palm Beach, and David M. Garten of Law Office of David M. Garten,

West Palm Beach.

82. Levandoski v. State, 217 So. 3d 215 (Fla. 4th DCA 2017), approved, 245 So. 3d 643 (Fla. 2018)


• Counsel for Appellant: Joshua LeRoy of LeRoy Law, P.A., West Palm Beach.

• Counsel for Appellee: Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey, Assistant


83. Long v. State, 268 So. 3d 813 (Fla. 4th DCA 2019)

• Opinion by Kuntz, J.; Gerber, C.J., and Taylor, J., concur.



• Counsel for Appellee: Ashley B. Moody, Attorney General, Tallahassee, and Marc B. Hernandez, Assistant


84. Long v. State, 4D17-3261, 2020 WL 4198055 (Fla. 4th DCA July 22, 2020)

• Opinion by Kuntz, J.; Ciklin and Gerber, JJ., concur.



• Counsel for Appellee: Ashley Moody, Attorney General, Tallahassee, and Marc B. Hernandez, Assistant


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http://www.floridasupremecourt.org/decisions/2018/sc17-962.pdf

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85. Lopez v. Hus, 290 So. 3d 119 (Fla. 4th DCA 2020)


• Counsel for Appellant: Keith D. Silverstein of Keith D. Silverstein, P.A., Miami.

• Counsel for Appellee: Arie Mrejen of Arie Mrejen, P.A., Aventura.

86. Lord v. Lord, 220 So. 3d 575 (Fla. 4th DCA 2017)


• Counsel for Appellant: Craig A. Boudreau, West Palm Beach.

• Counsel for Appellee: Kenneth D. Lemoine of Kenneth D. Lemoine, P.A., West Palm Beach.

87. Lubitz v. Schenden, 308 So. 3d 180 (Fla. 4th DCA 2020)

• Opinion by Kuntz, J.; Gross and May, JJ., concur.

• Counsel for Appellant: John D. Boykin of Ciklin Lubitz, West Palm Beach.

• Counsel for Appellee: Joel M. Weissman and Sarah A. Vitulli of Joel M. Weissman, P.A., West Palm Beach.

88. Machin v. State, 4D17-2787, 2019 WL 5406675 (Fla. 4th DCA Oct. 23, 2019)


• Counsel for Appellant: Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public


• Counsel for Appellee: Ashley Brooke Moody, Attorney General, Tallahassee, and Richard Valuntas,


89. Machin v. State, 266 So. 3d 197 (Fla. 4th DCA 2019)






90. Maldonado v. State, 278 So. 3d 708 (Fla. 4th DCA 2019)


• Counsel for Appellant: Counsel for Appellant: Carey Haughwout, Public Defender, and Peggy Natale,

Assistant Public Defender, West Palm Beach.

• Counsel for Appellee: Ashley Moody, Attorney General, Tallahassee, and Deborah Koenig, Assistant


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91. Maldonado v. State, 278 So. 3d 872 (Fla. 4th DCA 2019)


• Counsel for Appellant: Counsel for Appellant: Carey Haughwout, Public Defender, and Peggy Natale,

Assistant Public Defender, West Palm Beach.

• Counsel for Appellee: Ashley Moody, Attorney General, Tallahassee, and Deborah Koenig, Assistant


92. Manzaro v. D’Alessandro, 229 So. 3d 843 (Fla. 4th DCA 2017)


• Counsel for Appellant: Guillermo J. Farinas, Palm Beach.

• Counsel for Appellee: Megan K. Wells of Wells Law Firm, LLC, Miami Lakes.

93. Martin v. Eldemire-Martin, 4D19-3398, 2020 WL 6603547 (Fla. 4th DCA Nov. 12, 2020)


• Counsel for Appellant: George Odom, Jr. of Dixon & Odom, Fort Lauderdale, and Valerie Small-Williams

of the Law Office of Valerie Small-Williams, Fort Lauderdale.

• Counsel for Appellee: No appearance for appellee.

94. Martin Mem’l Health Sys., Inc. v. Gorham, 4D21-2949, 2022 WL 1160668 (Fla. 4th DCA Apr. 20,

2022)

• Opinion by Kuntz, J.; May and Gerber, JJ., concur.

• Counsel for Petitioner: Michael R. D’Lugo of Wicker Smith O'Hara McCoy & Ford, P.A., Orlando.

• Counsel for Respondent: Daniel S. Rosenbaum, Steven R. Braten and Dina L. Rosenbaum of Rosenbaum

PLLC, West Palm Beach.

95. Martinec v. Early Bird International, Inc., 262 So. 3d 205 (Fla. 4th DCA 2018)


• Counsel for Appellant: James A. Bonfiglio of the Law Offices of James A. Bonfiglio, P.A., Boynton Beach.

• Counsel for Appellee: Amy L. Fischer and F. Malcolm Cunningham, Jr., of The Cunningham Law Firm,

P.A., West Palm Beach.

96. Martinez v. State, 265 So. 3d 704 (Fla. 4th DCA 2019)



Palm Beach.

• Counsel for Appellee: Ashley B. Moody, Attorney General, Tallahassee, and Anesha Worthy, Assistant


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97. McGraw v. State, 299 So. 3d 12 (Fla. 4th DCA 2020)

• Opinion by Kuntz, J.; Gross and Gerber, JJ., concur.



• Counsel for Appellee: Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant


98. McKinley v. State, 261 So. 3d 599 (Fla. 4th DCA 2019)


• Counsel for Appellant: Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public


• Counsel for Appellee: Ashley Brooke Moody, Attorney General, Tallahassee, and Melanie Dale Surber,

Senior Assistant Attorney General, West Palm Beach.

99. Meldrum v. Bergamo-Meldrum, 281 So. 3d 504 (Fla. 4th DCA 2019)

• Opinion by Kuntz, J.; Warner and Damorgian, JJ., concur.

• Counsel for Appellant: Daniel A. Bushell of Bushell Law, P.A., Fort Lauderdale, and Justin C. Carlin of The

Carlin Law Firm, PLLC, Fort Lauderdale.

• Counsel for Appellee: Matthew S. Nugent and Adam M. Zborowski of Nugent Zborowski, North Palm

Beach.

100. Mendez-Martinez v. State, 232 So. 3d 5 (Fla. 4th DCA 2017)

• Opinion by Kuntz, J.; Levine and Forst, JJ., concur.

• Counsel for Appellant: Carey Haughwout, Public Defender, and Jessica A. De Vera, Assistant Public


• Counsel for Appellee: Pamela Jo Bondi, Attorney General, Tallahassee, and Jessenia J. Concepcion,


101. Ming v. NS FOA, LLC, et al, 291 So. 3d 144 (Fla. 4th DCA 2020)

• Opinion by Kuntz, J.; Warner and Ciklin, JJ., concur.

• Counsel for Appellant: Michael A. Tessitore and Jason P. Del Rosso of Moran Kidd Lyons Johnson Garcia,

P.A., Orlando.

• Counsel for Appellee: Michael J. Pugh and Jason M. Pugh of Pugh Law Office P.A., Orlando.

102. Molina v. Valenzuela, 252 So. 3d 772 (Fla. 4th DCA 2018)


• Counsel for Appellant: William M. Layton of Harvey Waddell & Layton, Lake Worth.



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103. Moncadagonzalez v. State, 316 So. 3d 361 (Fla. 4th DCA 2021)


• Counsel for Appellant: Carey Haughwout, Public Defender, and Mara C. Herbert, Assistant Public Defender,

West Palm Beach.

• Counsel for Appellee: Ashley Moody, Attorney General, Tallahassee, and Alexandra A. Folley, Assistant


104. Morris v. MGZ Properties, LLC, 251 So. 3d 929 (Fla. 4th DCA 2018)

• Opinion by Kuntz, J.; Damoorgian and Levine, J., concur.

• Counsel for Appellant: Carol A. Gart of Carol A. Gart P.A., Boca Raton.

• Counsel for Appellee: Ronald M. Gaché and Scott A. Simon of Shapiro, Fishman & Gaché, LLP, Boca Raton.

105. Morris v. State, 212 So. 3d 383 (Fla. 4th DCA 2017) (en banc)

• Opinion by Kuntz, J.; Ciklin, C.J., Warner, Gross, Taylor, May, Damoorgian, Gerber, Levine, Conner, Forst,

and Klingensmith, JJ., concur.



• Counsel for Appellee: Pamela Jo Bondi, Attorney General, Tallahassee, and Anesha Worthy, Assistant


106. Mulvey v. Stephens, 250 So. 3d 106 (Fla. 4th DCA 2018)


• Counsel for Appellant: Joshua D. Ferraro of Lesser, Lesser, Landy & Smith, West Palm Beach.

• Counsel for Appellee: Virginia P. Sherlock and Howard K. Heims of Littman, Sherlock & Heims, P.A.,

Stuart.

107. N. Shore Med. Ctr., Inc. v. Accredited Health Sols., Inc., 245 So. 3d 789 (Fla. 4th DCA 2018)

• Opinion by Kuntz, J.; Taylor and Klingensmith, JJ., concur.

• Counsel for Appellant: Martin B. Goldberg and Michael L. Ehren of Lash & Goldberg LLP, Miami.

• Counsel for Appellee: Mark E. Buechele, Davie.

108. N.S. v. State, 227 So. 3d 132 (Fla. 4th DCA 2017)



West Palm Beach.

• Counsel for Appellee: Pamela Jo Bondi, Attorney General, Tallahassee, Mark J. Hamel and Matthew Steven

Ocksrider, Assistant Attorney General, West Palm Beach.

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109. Nacius v. One W. Bank, FSB, 211 So. 3d 152 (Fla. 4th DCA 2017)

• Opinion by Kuntz, J.; Conner and Klingensmith, JJ., concur.

• Counsel for Appellant: Melina M. Nacius and Aurilien Nacius, Boynton Beach, pro se.

• Counsel for Appellee: Michael Eisenband and Nicole Topper of Blank Rome LLP, Fort Lauderdale.

110. Nat’l Millwork, Inc. v. ANF Group, Inc., 253 So. 3d 1261 (Fla. 4th DCA 2018)

• Opinion by Kuntz, J.; May and Forst, JJ., concur.

• Counsel for Appellant: Marshall A. Adams and Jarad A. Gibson of Lubell & Rosen, LLC, Fort Lauderdale.

• Counsel for Appellee: Laura A. Baker and Ira L. Libanoff of Ferencik Libanoff Brandt Bustamante &

Goldstein, P.A., Fort Lauderdale.

111. Nationstar Mortgage LLC v. Glass, 219 So. 3d 896 (Fla. 4th DCA 2017) (en banc), jurisdiction

discharged, SC17-1387, 268 So. 3d 676 (Fla. 2019)

• Opinion by Kuntz, J.; Ciklin, C.J., Warner, Gross, Taylor, May, Damoorgian, Gerber, Levine, Conner, Forst,

and Klingensmith, JJ., concur.

• Counsel for Appellant: Marc James Ayers of Bradley Arant Boult Cummings LLP, Birmingham, AL.

• Counsel for Appellee: Amy L. Fischer and F. Malcolm Cunningham, Jr. of The Cunningham Law Firm, P.A.,

West Palm Beach.

112. Niagara Indus., Inc. v. Giaquinto Elec. LLC, 238 So. 3d 840 (Fla. 4th DCA 2018)


• Counsel for Appellant: Diane H. Tutt, Thomas J. McCausland, and Evan Roberts of Conroy Simberg,

Hollywood.

• Counsel for Appellee: Daniel M. Schwarz of Cole, Scott & Kissane, P.A., Plantation, for Respondent H20

Plumbing Services, Inc. Glen R. Goldsmith of Glen R. Goldsmith, P.A., Miami, for Respondent Giaquinto

Electric, LLC. Armando P. Rubio of Fields Howell LLP, Miami, for Respondent Guardian American

Properties, LLC.

113. Office of Attorney Gen., Dep’t of Legal Affairs v. Nationwide Pools, Inc., 270 So. 3d 406 (Fla. 4th

DCA 2019)


• Counsel for Appellant: Ashley B. Moody, Attorney General, Tallahassee, Amit Agarwal, Solicitor General,

Office of the Attorney General, Tallahassee, and Sarah L. Shullman, Bureau Chief, Office of the Attorney

General, West Palm Beach

• Counsel for Appellee: Claudia T. Pastorius of Claudia T. Pastorius, P.A., Melbourne, Crane A. Johnstone of

Johnstone Law, P.A., Fort Lauderdale, and Robyn L. Sztyndor, Fort Lauderdale.

114. OIL, LLC v. Stamax Corp., 220 So. 3d 1198 (Fla. 4th DCA 2017)


• Counsel for Appellant: Jason T. Forman of the Law Offices of Jason T. Forman, P.A., Fort Lauderdale.

• Counsel for Appellee: Brady J. Cobb and Dylan M. Fulop, of Cobb Eddy PLLC, Fort Lauderdale.

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115. Oliver v. Winn-Dixie Stores, Inc., 4D19-291, 2020 WL 813378 (Fla. 4th DCA Feb. 19, 2020)


• Counsel for Appellant: Robin F. Hazel of Hazel Law, P.A., Hollywood.

• Counsel for Appellee: Wesley L. Catri of Catri, Holton, Kessler & Kessler, P.A., Fort Lauderdale.

116. Pagliaro v. Pagliaro, 264 So. 3d 196 (Fla. 4th DCA 2019)


• Counsel for Appellant: Christopher R. Jette of Goldstein & Jette, P.A., West Palm Beach.


117. Palomino v. State, 270 So. 3d 432 (Fla. 4th DCA 2019)

• Opinion by Kuntz, J.; Ciklin and Klingensmith, JJ., concur.

• Counsel for Appellant: Carey Haughwout, Public Defender, and Logan T. Mohs, Assistant Public Defender,

West Palm Beach.

• Counsel for Appellee: Ashley B. Moody, Attorney General, Tallahassee, and Deborah Koenig, Assistant


118. Pansky v. Pansky, 259 So. 3d 872 (Fla. 4th DCA 2018)


• Counsel for Appellant: Troy William Klein, West Palm Beach.

• Counsel for Appellee: Barry S. Franklin of Barry S. Franklin & Associates, P.A., Aventura.

119. People’s Tr. Ins. Co. v. Slavin, 47 Fla. L. Weekly D809, 4D21-3025, 2022 WL 1021043 (Fla. 4th

DCA Apr. 6, 2022)

• Opinion by Kuntz, J.; May and Forst, JJ., concur.

• Counsel for Appellant: Patrick M. Chidnese of Bickford & Chidnese, LLP, Tampa.


120. Perera v. Diolife, 274 So. 3d 1119 (Fla. 4th DCA 2019)


• Counsel for Appellant: J. David Huskey, Jr. of McGee & Huskey, P.A., Fort Lauderdale.

• Counsel for Appellee: Lida Rodriguez-Taseff and Elan A. Gershoni of DLA Piper LLP, Miami.

121. Performance Air Mech., Inc. v. Miller Constr. Services, Inc., 4D20-41, 2020 WL 3564609 (Fla. 4th

DCA July 1, 2020)

• Opinion by Kuntz, J.; Levine, C.J., and Conner, J., concur.

• Counsel for Appellant: Michael A. Rosenberg and Peter D. Weinstein of Cole, Scott & Kissane, P.A.,

Plantation.


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122. Perlmutter v. Olympus Insurance Co., 264 So. 3d 997 (Fla. 4th DCA 2019)


• Counsel for Appellant: Joel L. Roth, Sagi Shaked and Loretta Guevara of Shaked Law Firm, P.A., Aventura.

• Counsel for Appellee: Marc J. Gutterman and Seth J. Feintuch of Gutterman Trial Group, Fort Lauderdale.

123. Perry v. State, 263 So. 3d 86 (Fla. 4th DCA 2019)

• Opinion by Kuntz, J.; Gerber, C.J., and Forst, J., concur.



• Counsel for Appellee: Ashley B. Moody, Attorney General, Tallahassee, and Luke R. Napodano, Assistant


124. Philadelphia Fin. Mgmt. of San Francisco, LLC v. DJSP Enterprises, Inc., 227 So. 3d 612 (Fla. 4th

DCA 2017)


• Counsel for Appellant: Daniel M. Cohen, Matthew E. Miller, and Jonathan W. Cuneo of Cuneo Gilbert &

LaDuca, LLP, Washington, DC; Charles J. LaDuca of Cuneo Gilbert & LaDuca, LLP, Bethesda, MD; Scott

R. Shepherd and Nathan Zipperian of Shepherd, Finkelman, Miller & Shah, LLP, Weston; David M. Marek

of Liddle & Robinson, L.L.P., New York, NY; Joseph E. White, III and Lester R. Hooker of Saxena White,

P.A., Boca Raton; Richard S. Wayne and Thomas P. Glass of Strauss & Troy, LPA, Cincinnati, OH; and

Jeffrey P. Harris of Statman Harris & Eyrich, LLC, Cincinnati, OH,

• Counsel for Appellee: Sharon Kegerreis and Lara O’Donnell Grillo of Berger Singerman LLP, Miami, for

appellee DJSP Enterprises, Inc. Spencer A. Tew and Jeffrey A. Tew of Rennert Vogel Mandler & Rodriguez,

P.A., Miami, for appellee David J. Stern. Dennis A. Nowak and Caitlin M. Trowbridge of Rumberger, Kirk

& Caldwell, Miami, for appellee Kumar Gursahaney.

125. Philip Morris USA, Inc. v. Naugle, 47 Fla. L. Weekly D530, 4D20-953 and 4D20-1287, 2022 WL

610114 (Fla. 4th DCA Mar. 2, 2022)


• Counsel for Appellant: Geoffrey J. Michael of Arnold & Porter Kaye Scholer LLP, Washington, DC, and

Andrew S. Brenner and Ryan B. Witte of Boies, Schiller & Flexner, LLP, Miami.

• Counsel for Appellee: Kara Rockenbach Link and Daniel M. Schwarz of Link & Rockenbach, PA, West

Palm Beach, and John Uustal of Kelley Uustal, PLLC, Fort Lauderdale.

126. Plaza La Mer, Inc. v. Delray Prop. Investments, Inc., 275 So. 3d 640 (Fla. 4th DCA 2019)


• Counsel for Appellant: Robert J. Hauser of Pankauski Hauser PLLC, West Palm Beach, and Robert A.

Sweetapple of Sweetapple, Broeker & Varkas, P.L., Boca Raton.

• Counsel for Appellee: Stephen A. Mendelsohn of Greenberg Traurig, P.A., Boca Raton, and Elliot H.

Scherker and Brigid F. Cech Samole of Greenberg Traurig, P.A., Miami.

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127. Postma v. Baker, 276 So. 3d 828 (Fla. 4th DCA 2019)


• Counsel for Appellant: John J. Shahady of Shahady & Wurtenberger P.A., Fort Lauderdale

• Counsel for Appellee: Eric J. Horbey of Lazer, Aptheker, Rosella & Yedid, P.C., West Palm Beach

128. Puhl v. Puhl, 260 So. 3d 323 (Fla. 4th DCA 2018)


• Counsel for Appellant: Chet E. Weinbaum, Fort Pierce.


129. R.J. Reynolds Tobacco Co. v. Mahfuz, 324 So. 3d 495 (Fla. 4th DCA 2021)

• Opinion by Kuntz, J.; Artau, J., concurs; Gross, J., concurs specially with opinion.

• Counsel for Appellant R.J. Reynolds Tobacco Company: Val Leppert and William L. Durham II, of King &

Spalding LLP, Atlanta, Georgia.

• Counsel for Appellant Philip Morris USA Inc.: Geoffrey J. Michael of Arnold & Porter Kaye Scholer LLP,

Washington, D.C., and Jennifer M. Voss of Shook, Hardy & Bacon L.L.P., Tampa.

• Counsel for Appellee: Shea T. Moxon and Celene H. Humphries of Brannock Humphries & Berman, Tampa,

and Scott Schlesinger, Steven Hammer, Jonathan R. Gdanski and Brittany C. Barron of Schlesinger Law

Offices, P.A., Fort Lauderdale.

130. R.N. v. State, 257 So. 3d 507 (Fla. 4th DCA 2018)


• Counsel for Appellant: Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant Regional

Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach.

• Counsel for Appellee: Pamela Jo Bondi, Attorney General, Tallahassee, and Deborah Koenig, Assistant


131. Radice v. State, 271 So. 3d 1007 (Fla. 4th DCA 2019)

• Opinion by Kuntz, J.; Gerber, C.J., and Conner, J., concur.

• Counsel for Appellant: Jason T. Forman of the Law Offices of Jason T. Forman, P.A., Fort Lauderdale.

• Counsel for Appellee: Ashley B. Moody, Attorney General, Tallahassee, and Allan R. Geesey, Assistant


132. Ramos v. State, 264 So. 3d 180 (Fla. 4th DCA Jan. 23, 2019)


• Counsel for Appellant: Carey Haughwout, Public Defender, and Jessica A. De Vera, Assistant Public


• Counsel for Appellee: Ashley Brooke Moody, Attorney General, Tallahassee and Melanie Dale Surber, Senior Assistant Attorney General, West Palm Beach.

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133. Ramsay v. State, 291 So. 3d 963 (Fla. 4th DCA 2020)


• Counsel for Appellant: Jonathan S. Friedman of Jonathan S. Friedman, P.A., Fort Lauderdale.

• Counsel for Appellee: Ashley Moody, Attorney General, Tallahassee and Jessenia J. Concepcion, Assistant


134. Rasor v. Estate of Rasor, 47 Fla. L. Weekly D759, 4D20-1489, 2022 WL 945667 (Fla. 4th DCA

Mar. 30, 2022)


• Counsel for Appellant: Carolyn B. Brombacher of Tripp Scott, P.A., Fort Lauderdale.

• Counsel for Appellee: Michele M. Thomas of Adrian Philip Thomas, P.A., Fort Lauderdale.

135. Rivas v. Bank of New York Mellon, 233 So. 3d 1155 (Fla. 4th DCA 2018)


• Counsel for Appellant: Armando Rivas, Boynton Beach, pro se.

• Counsel for Appellee: Nancy M. Wallace of Akerman LLP, Tallahassee, William P. Heller of Akerman LLP,

Fort Lauderdale, and Adam G. Schwartz of Akerman LLP, West Palm Beach.

136. Robinson v. State, 278 So. 3d 702 (Fla. 4th DCA 2019)

• Opinion by Kuntz, J.; Gerber and Conner, JJ., concur.

• Counsel for Appellant: Clay Robinson, Miami, pro se.

• Counsel for Appellee: Ashley Brooke Moody, Attorney General, Tallahassee and Matthew Steven Ocksrider,


137. Roebuck v. State, 313 So. 3d 1174 (Fla. 4th DCA Mar. 3, 2021)


• Counsel for Appellant: Carey Haughwout, Public Defender, and Robert Porter, Assistant Public Defender,

West Palm Beach.

• Counsel for Appellee: Ashley Moody, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant


138. Rolls-Royce, PLC v. Spirit Airlines, Inc., 239 So. 3d 709 (Fla. 4th DCA 2018)

• Opinion by Kuntz, J.; Taylor and Levine, JJ., concur.

• Counsel for Appellant: Stephanie G. Kolman, J. Thompson Thornton, and Clayton W. Thornton of Clyde &

Co US, LLP, Miami.

• Counsel for Appellee: Eric D. Griffin, Jr. and Juan R. Serrano of Griffin & Serrano, P.A., Fort Lauderdale.

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139. Rosario v. State, 260 So. 3d 335 (Fla. 4th DCA 2018)




• Counsel for Appellee: Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant


140. Roundtree v. State, 217 So. 3d 1051 (Fla. 4th DCA 2017)


• Counsel for Appellant: Jonathan R. Kaplan, of Jonathan R. Kaplan, LLC, Special Assistant Regional

Counsel, West Palm Beach.

• Counsel for Appellee: Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Senior


141. Roundtree v. State, 219 So. 3d 896 (Fla. 4th DCA 2017)



West Palm Beach.

• Counsel for Appellee: Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey, Assistant


142. S. Florida Fair & Palm Beach County Expositions, Inc. v. Joseph, 256 So. 3d 875 (Fla. 4th DCA

2018)


• Counsel for Appellant: Matthew J. Conigliaro of Carlton Fields Jorden Burt, P.A., Tampa, and M. Derek

Harris of Carlton Fields Jorden Burt, P.A., West Palm Beach.

• Counsel for Appellee: Marwan E. Porter of The Porter Law Firm, LLC, Stuart.

143. Sch. Bd. of Palm Beach Cnty. v. Edwards, 327 So. 3d 1251 (Fla. 4th DCA 2021)


• Counsel for Appellant: Sean Fahey, Office of General Counsel, West Palm Beach.

• Counsel for Appellee: Julie H. Littky-Rubin of Clark, Fountain, La Vista, Prather & Littky-Rubin, LLP, West

Palm Beach.

144. Scofield v. State, 317 So. 3d 130 (Fla. 4th DCA 2021)


• Counsel for Appellant: Carey Haughwout, Public Defender, and Robert Porter, Assistant Public Defender,

West Palm Beach.

• Counsel for Appellee: Ashley Moody, Attorney General, Tallahassee, and Rachael Kaiman, Assistant


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145. Seligsohn v. Seligsohn, 259 So. 3d 874 (Fla. 4th DCA 2018)


• Counsel for Appellant: Craig A. Boudreau, West Palm Beach.

• Counsel for Appellee: Sandor F. Genet of Sandor F. Genet & Associates, P.A., North Miami Beach.

146. Shea v. State, 330 So. 3d 968 (Fla. 4th DCA 2021)



West Palm Beach.

• Counsel for Appellee: Ashley Moody, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant


147. Shivers v. State, 308 So. 3d 176 (Fla. 4th DCA 2020)




• Counsel for Appellee: Ashley Moody, Attorney General, Tallahassee, and Alexandra A. Folley, Assistant


148. Sierra v. U.S. Bank Tr., N.A., as Tr. for LSF9 Master Participation Tr., 4D19-2999, 2020 WL

3556697 (Fla. 4th DCA July 1, 2020)

• Opinion by Kuntz, J.; Conner and Forst, JJ., concur.

• Counsel for Appellant: Charles D. Barnard of Charles D Barnard, PA, Fort Lauderdale.

• Counsel for Appellee: Shannon Troutman of Albertelli Law, Tampa.

149. Singh v. Kumar, 234 So. 3d 1 (Fla. 4th DCA 2017)


• Counsel for Appellant: Meredith A. Chaiken of Tenberg Chaiken, LLC, Lighthouse Point.

• Counsel for Appellee: Geoffrey D. Ittleman of The Law Offices of Geoffrey D. Ittleman, P.A., Fort

Lauderdale.

150. Smith v. State, 232 So. 3d 430 (Fla. 4th DCA 2017)




• Counsel for Appellee: Pamela Jo Bondi, Attorney General, Tallahassee, and Jessenia J. Concepcion,


https://www.westlaw.com/Document/Ia7d80560f3e611e8a174b18b713fc6d4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0

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151. Smith v. State, 4D19-1036, 2020 WL 4810792 (Fla. 4th DCA Aug. 19, 2020)

• Opinion by Kuntz, J.; Levine, C.J., and Shepherd, Carline, Associate Judge, concur.

• Counsel for Appellant: Carey Haughwout, Public Defender, and Nancy Jack, Assistant Public Defender,

West Palm Beach.

• Counsel for Appellee: Ashley Moody, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant


152. Sparks v. State, 4D18-307, 2020 WL 1546442 (Fla. 4th DCA Apr. 1, 2020)

• Opinion by Kuntz, J.; Gerber and Klingensmith, JJ., concur.



• Counsel for Appellee: Ashley Moody, Attorney General, Tallahassee, and Allan R. Geesey, Assistant


153. Spector v. Spector, 226 So. 3d 256 (Fla. 4th DCA 2017)


• Counsel for Appellant: Chad R. Laing and Dale W. Schley, II of Laing & Weicholz, P.L., Boca Raton.

• Counsel for Appellee: Kraig S. Weiss and Paul K. Silverberg of Silverberg & Weiss, P.A., Weston.

154. Spicer v. Ocwen Loan Servicing, LLC, 238 So. 3d 275 (Fla. 4th DCA 2018)


• Counsel for Appellant: H. Daniel McKillop, of McKillop Law Firm, Sarasota.

• Counsel for Appellee: Anthony R. Yanez and Nicole R. Topper, of Blank Rome LLP, Fort Lauderdale.

155. State v. Capeletti, 216 So. 3d 769 (Fla. 4th DCA 2017)


• Counsel for Appellant: Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez–Orosa,

Senior Assistant Attorney General, West Palm Beach.

• Counsel for Appellee: Carey Haughwout, Public Defender, and Stacey Kime, Assistant Public Defender,

West Palm Beach.

156. State v. Chantiloupe, 248 So. 3d 1191 (Fla. 4th DCA 2018)


• Counsel for Appellant: Pamela Jo Bondi, Attorney General, Tallahassee and Leslie T. Campbell, Assistant


• Counsel for Appellee: Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public


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157. State v. Ervin, 4D19-626, 2020 WL 1283551 (Fla. 4th DCA Mar. 18, 2020)


• Counsel for Appellant: Ashley Moody, Attorney General, Tallahassee, and Allan R. Geesey, Assistant


• Counsel for Appellee: Carey Haughwout, Public Defender, and Claire Victoria Madill, Assistant Public


158. State v. Fair, 213 So. 3d 1098 (Fla. 4th DCA 2017)


• Counsel for Appellant: Pamela Jo Bondi, Attorney General, Tallahassee and Anesha Worthy, Assistant


• Counsel for Appellee: Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender,

West Palm Beach.

159. State v. Lawrence, 219 So. 3d 941 (Fla. 4th DCA 2017)

• Opinion by Kuntz, J.; May and Levine, JJ., concur.

• Counsel for Appellant: Pamela Jo Bondi, Attorney General, Tallahassee and Luke R. Napodano, Assistant


• Counsel for Appellee: Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender,

West Palm Beach.

160. State v. Serfrere, 267 So. 3d 407 (Fla. 4th DCA 2019)


• Counsel for Appellant: Ashley Brooke Moody, Attorney General, Tallahassee and Jeanine Germanowicz,


• Counsel for Appellee: Carey Haughwout, Public Defender, and Jessica A. De Vera, Assistant Public


161. State v. Sylvestre, 254 So. 3d 986 (Fla. 4th DCA 2018)


• Counsel for Appellant: Pamela Jo Bondi, Attorney General, Tallahassee and Melynda L. Melear, Senior


• Counsel for Appellee: Peter Grable, Palm Beach Gardens.

162. State Farm Mut. Auto. Ins. Co. v. Baum Chiropractic Clinic PA, 323 So. 3d 756 (Fla. 4th DCA

2021)

• Opinion by Kuntz, J.; Damoorgian and Artau, J., concur.

• Counsel for Appellant: Nancy W. Gregoire of Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale.

• Counsel for Appellee: Todd Landau of Todd Landau, P.A. Hollywood.

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163. State Farm Mut. Auto. Ins. Co. v. Glob. Neuro & Spine Inst., 323 So. 3d 754 (Fla. 4th DCA 2021)

• Opinion by Kuntz, J.; Damoorgian and Artau, J., concur.

• Counsel for Appellant: Sarah Hafeez and Thomas L. Hunker of Cole, Scott & Kissane, P.A., Fort Lauderdale.

• Counsel for Appellee: Mac S. Phillips of Phillips|Tadros, P.A., Fort Lauderdale.

164. State Farm Mut. Auto. Ins. Co. v. Hollywood Diagnostic Ctr., Inc., 329 So. 3d 152 (Fla. 4th DCA

2021)

• Opinion by Kuntz, J.; Klingensmith and Artau, J., concur.

• Counsel for Appellant: DeeAnn J. McLemore and Charles W. Hall of Banker Lopez Gassler P.A., St.

Petersburg, Nancy W. Gregoire of Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, and Christopher

L. Kirwan and R. Ryan Smith of Kirwan Spellacy Danner Watkins & Brownstein, P.A., Fort Lauderdale.

• Counsel for Appellee: Joseph R. Dawson of Law Offices of Joseph R. Dawson, P.A., Fort Lauderdale.

165. State Farm Mut. Auto. Ins. Co. v. Palmetto Lakes Therapy & Rehab., 330 So. 3d 951 (Fla. 4th DCA

2021)

• Opinion by Kuntz, J.; Klingensmith and Artau, J., concur.

• Counsel for Appellant: Ezequiel Lugo and DeeAnn McLemore of Banker Lopez Gassler P.A., Tampa, Nancy

W. Gregoire of Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, and Christopher L. Kirwan and R.

Ryan Smith of Kirwan Spellacy Danner Watkins & Brownstein, P.A., Fort Lauderdale.

• Counsel for Appellee: Mac S. Phillips of Phillips|Tadros, P.A., Fort Lauderdale.

166. Stephanos v. Stephanos, 4D19-1276, 2020 WL 3443825 (Fla. 4th DCA June 24, 2020)


• Counsel for Appellant: Benjamin T. Hodas and Brendon Carrington of Fisher Potter Hodas, PL, West Palm

Beach.

• Counsel for Appellee: Joel M. Weissman, Sarah A. Vitulli and Ashley M. Johnson of Joel M. Weissman,

P.A., West Palm Beach.

167. Stuart v. Ryan, 232 So. 3d 418 (Fla. 4th DCA 2017)


• Counsel for Appellant: Pamela B. Stuart, Vero Beach, pro se.

• Counsel for Appellee: David P. Hathaway of Dean, Mead, Egerton, Bloodworth, Capouano & Bozarth, P.A.,

Orlando.

168. Sunset Beach Investments, LLC v. Kimley-Horn & Associates, Inc., 207 So. 3d 1012 (Fla. 4th DCA

2017)


• Counsel for Appellant: Benjamin A. Webster, Evan H. Frederick, and Aaron C. Garnett, West Palm Beach.

• Counsel for Appellee: Jon D. Derrevere and Shirley Jean McEachern of Derrevere Hawkes Black & Cozad,

West Palm Beach.

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169. Target Corp. v. Kaufer, 244 So. 3d 315 (Fla. 4th DCA 2018)


• Counsel for Appellant: Jon D. Derrevere and Shirley Jean McEachern of Derrevere Stevens Black & Cozad,

West Palm Beach.

• Counsel for Appellee: Jay M. Levy and Ryan I. Marks of Jay M. Levy, P.A., Miami, and Samuel M. Spatzer

of Samuel M. Spatzer, P.A., Miami.

170. Taylor v. State, 253 So. 3d 631 (Fla. 4th DCA 2018)

• Opinion by Kuntz, J.; Damoorgian and Levine, JJ., concur.



• Counsel for Appellee: Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Senior


171. Theophile v. State, 240 So. 3d 15 (Fla. 4th DCA 2018)



West Palm Beach.

• Counsel for Appellee: Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider,


172. Thomas v. State, 274 So. 3d 1100 (Fla. 4th DCA 2019)


• Counsel for Appellant: Albert W. Guffanti of Albert W. Guffanti, P.A., Miami.

• Counsel for Appellee: Ashley B. Moody, Attorney General, Tallahassee, and Melynda L. Melear, Senior


173. Thompson v. State, 221 So. 3d 645 (Fla. 4th DCA 2017)



West Palm Beach.

• Counsel for Appellee: Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant


174. Tobiassen v. State, 213 So. 3d 1045 (Fla. 4th DCA 2017)



West Palm Beach.

• Counsel for Appellee: Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine Germanowicz, Assistant Attorney General, West Palm Beach.

https://www.westlaw.com/Document/I016d9a70495811e884b4b523d54ea998/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0

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175. Townsend v. C.T. Box, Trustee, et al, 4D18-3004, 2020 WL 698268 (Fla. 4th DCA Feb. 12, 2020)


• Counsel for Appellant: Richard W. Glenn, Jupiter.

• Counsel for Appellee: Jonathan Jacobson and Zachary Ullman of Aldridge|Pite, LLP, Delray Beach.

176. Uoweit, LLC v. Fleming, 4D19-270, 2020 WL 4198362 (Fla. 4th DCA July 22, 2020)


• Counsel for Appellant: Daniel A. Bushell of Bushell Law, P.A., Fort Lauderdale.

• Counsel for Appellee: Dean A. Morande and Michael K. Winston of Carlton Fields, P.A., West Palm Beach.

177. U.S. Bank Nat’l Ass’n v. Grob, 47 Fla. L. Weekly D760, 4D21-1456, 2022 WL 945531 (Fla. 4th

DCA Mar. 30, 2022)


• Counsel for Appellant: David Rosenberg and Jarrett Cooper of Robertson, Anschutz, Schneid, Crane &

Partners, PLLC, Boca Raton.

• Counsel for Appellees Steven and Dorothy Grob: Joseph J. Huss and Benny A. Ortiz of Krinzman Huss

Lubetsky Feldman & Hotte, Fort Lauderdal.

• Counsel for Appellee Renee Hay: J. Michael Burman of Reid Burman Lebedeker Xenick Pepin, West Palm

Beach.

178. Velazquez v. State, 286 So. 3d 361 (Fla. 4th DCA 2019)

• Opinion by Kuntz, J.; Klingensmith, J., concurs; Gross, J., specially concurs.

• Counsel for Appellant: John Weinberg, West Palm Beach.

• Counsel for Appellee: Ashley Moody, Attorney General, Tallahassee, and James J. Carney, Senior Assistant


179. Viera v. Novation Ventures, LLC, 324 So. 3d 528 (Fla. 4th DCA 2021)

• Opinion by Kuntz, J.; Damoorgian, J., and Fahnestock, Fabienne E., Associate Judge, concur.

• Counsel for Appellant: W. Aaron Daniel, Elliot B. Kula, and William D. Mueller of Kula & Associates, P.A.,

Miami, and Griffin Klema of Klema Law, P.L., Tampa.

• Counsel for Appellee: Robert A. Sweetapple of Sweetapple, Broeker & Varkas, PL, Boca Raton.

180. Vitale v. Holmes, 229 So. 3d 832 (Fla. 4th DCA 2017)

• Opinion by Kuntz, J.; Gerber, C.J., and Warner, J., concur.

• Counsel for Appellant: Jonathan Mann and Robin Bresky of Law Offices of Robin Bresky, Boca Raton.

• Counsel for Appellee: Kathleen E. Holmes, Delray Beach, pro se.

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181. Walker v. State, 253 So. 3d 1 (Fla. 4th DCA 2018)


• Counsel for Appellant: Antony P. Ryan, Regional Counsel, and Louis G. Carres, Special Assistant Conflict

Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach.

• Counsel for Appellee: Pamela Jo Bondi, Attorney General, Tallahassee, and Marc B. Hernandez, Assistant


182. Wal-Mart Stores, Inc. v. Thornton, 241 So. 3d 867 (Fla. 4th DCA 2018)


• Counsel for Appellant: Thomas A. Valdez and Karen M. Shimonsky of Quintairos, Prieto, Wood & Boyer,

P.A., Tampa.

• Counsel for Appellee: Donna Greenspan Solomon of Solomon Appeals, Mediation & Arbitration, Fort

Lauderdale, and Robert C. Rogers, Jr., of Lawrence J. Bohannon P.A., Fort Lauderdale.

183. Wallace Buick Company v. Rite Way Auto Transport LLC, 279 So. 3d 151 (Fla. 4th DCA 2019)


• Counsel for Appellant: Peter T. Mavrick and Steven M. Canter of Mavrick Law Firm, Fort Lauderdale.


184. Wells Fargo Bank, N.A. v. Tan, 320 So. 3d 782 (Fla. 4th DCA 2021)

• Opinion by Kuntz, J.; Warner and Artau, JJ., concur.

• Counsel for Appellant: Benjamin B. Carter and Jeffrey S. Lapin of Lapin & Leichtling, LLP, Coral Gables.

• Counsel for Appellees Nissim Shani and Michele Shani: Lynette Ebeoglu McGuinness and Cary A. Lubetsky

of Krinzman Huss Lubetsky Feldman & Hotte, Fort Lauderdale.

• Counsel for Appellee Bank of America, N.A.: Elizabeth A. Henriques and Tricia J. Duthiers of Liebler

Gonzalez & Portuondo, Miami.

185. Wiener v. Golex Properties, LLC, 328 So. 3d 1009 (Fla. 4th DCA 2021)


• Counsel for Appellant: Hilton Wiener, Boca Raton.

• Counsel for Appellee: Kenyetta N. Alexander and Mark R. Osherow of Osherow, PLLC, Boca Raton.

186. Williams v. State, 4D18-1128, 2020 WL 1933217 (Fla. 4th DCA Apr. 22, 2020)


• Counsel for Appellant: Carey Haughwout, Public Defender, and Timothy Wang, Assistant Public Defender,

West Palm Beach.

• Counsel for Appellee: Ashley Moody, Attorney General, Tallahassee, and Matthew Steven Ocksrider,


https://www.westlaw.com/Document/Iad3d231096a711e888e382e865ea2ff8/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0

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187. Wolf v. Doll, 229 So. 3d 1280 (Fla. 4th DCA 2017)


• Counsel for Appellant: Paul J. Kneski of the Law Offices of Paul J. Kneski, P.A., Plantation.

• Counsel for Appellee: James S. Telepman of Cohen, Norris, Wolmer, Ray, Telepman & Cohen, North Palm

Beach.

188. Wolter v. State, 219 So. 3d 852 (Fla. 4th DCA 2017)

• Opinion by Kuntz, J.; Conner and Forst, JJ., concur.

• Counsel for Appellant: Christopher Wolter, Fort Lauderdale, pro se.


189. Woodson v. State, 4D19-3035, 2020 WL 3551981 (Fla. 4th DCA July 1, 2020)


• Counsel for Appellant: Antony P. Ryan, Director, and Paul O'Neil, Assistant Regional Counsel, Office of

Criminal Conflict and Civil Regional Counsel, Fourth District, West Palm Beach.

• Counsel for Appellee: Ashley Moody, Attorney General, Tallahassee, and Jeanine Germanowicz, Assistant


190. World-Class Talent Experience, Inc. v. Giordano, 4D18-3807, 2020 WL 1163100 (Fla. 4th DCA

Mar. 11, 2020)


• Counsel for Appellant: Daniel A. Bushell of Bushell Law, P.A., Fort Lauderdale.

• Counsel for Appellee: Kenneth W. Waterway of Berger Singerman LLP, Fort Lauderdale, and Lindsey M.

Tenberg of Lindsey M. Tenberg P.A., Lighthouse Point.

191. Yanofsky v. Isaacs, 277 So. 3d 132 (Fla. 4th DCA 2019)


• Counsel for Appellant: Stuart B. Yanofsky of Stuart B. Yanofsky, P.A., Plantation.

• Counsel for Appellee: Ryan D. Gesten of George Gesten McDonald, PLLC, Lake Worth.

192. Zieler v. State, 276 So. 3d 835 (Fla. 4th DCA 2019)

• Opinion by Kuntz, J.; Levine, C.J., and Boatwright, Joe, Associate Judge, concur.


West Palm Beach.

• Counsel for Appellee: Ashley Moody, Attorney General, Tallahassee, and Kimberly T. Acuña, Assistant


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193. Zubricky v. Zubricky, 273 So. 3d 217 (Fla. 4th DCA 2019)


• Counsel for Appellant: Stacy N. Beaulieu-Fawcett and Denise C. Desmond of Beaulieu-Fawcett Law Group,

P.A., Delray Beach.


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Majority Opinions (Non-Unanimous)

194. Fetzner v. State, 219 So. 3d 834 (Fla. 4th DCA 2017)

• Opinion by Kuntz, J.; Gerber J., concurs; Warner, J., dissents with opinion.



• Counsel for Appellee: Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R. Napodano, Assistant


195. Florida Power & Light Company v. McRoberts, 257 So. 3d 1023 (Fla. 4th DCA 2018)

• Opinion by Kuntz, J.; May, J., concurs; Ciklin, J., dissents with opinion.

• Counsel for Appellant: Charles L. Schlumberger, Senior Litigation Counsel, and Robert Sendler, Juno Beach.

• Counsel for Appellee: Alan B. Rose, L. Louis Mrachek, Gregory S. Weiss, and Michael W. Kranz of

Mrachek, Fitzgerald, Rose, Konopka, Thomas & Weiss, P.A., West Palm Beach.

196. Imerys Talc America, Inc. v. Ricketts, 262 So. 3d 799 (Fla. 4th DCA 2018)

• Opinion by Kuntz, J.; Klingensmith, J., concurs; Taylor, J., dissents with opinion.

• Counsel for Appellant: David M. Gersten, Joseph A. Sacher and Christopher A. Noel of Gordon Rees Scully

Mansukhani LLP, Miami.

• David J. Sales and Daniel R. Hoffman of David J. Sales, P.A., Jupiter, and Todd R. Falzone and Karina D.

Rodrigues of Kelly Uustal, PLC, Fort Lauderdale.

197. Machin v. State, 267 So. 3d 1098 (Fla. 4th DCA 2019) (en banc)

• Opinion by Kuntz, J.; Gerber, C.J., Warner, Damoorgian, Ciklin, Levine, Conner, Forst, and Klingensmith,

JJ., concur; May, J., concurs in part and dissents in part with opinion, in which Gross and Taylor, JJ., concur.





198. McGraw v. State, 245 So. 3d 760 (Fla. 4th DCA 2018), vacated McGraw v. State, 289 So. 3d 836

(Fla. 2019)

• Opinion by Kuntz, J.; Gerber, C.J., concurs; Gross, J., dissents in part with opinion.



• Counsel for Appellee: Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant


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199. Progressive Select Ins. Co. v. Blum, 238 So. 3d 852 (Fla. 4th DCA 2018), quashed 47 Fla. L. Weekly

S98 (Fla. Jan. 21, 2022)

• Opinion by Kuntz, J.; Forst, J., concurs; Gross, J., dissents with opinion.

• Counsel for Appellant: Douglas H. Stein of Association Law Group, P.L., Miami.

• Counsel for Appellee: Marlene S. Reiss, Miami, and Thomas J. Wenzel of Cindy A. Goldstein, P.A., Coral

Springs.

200. State Farm Mut. Auto. Ins. Co. v. Care Wellness Ctr., LLC, 240 So. 3d 22 (Fla. 4th DCA 2018),

quashed 47 Fla. L. Weekly S98 (Fla. Jan. 21, 2022)


• Counsel for Appellant: Nancy W. Gregoire of Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, and

Scott E. Danner of Kirwan, Spellacy & Danner, P.A., Fort Lauderdale.

• Counsel for Appellee: Marlene S. Reiss of Law Offices of Marlene S. Reiss, Esq., P.A., Miami, Thomas J.

Wenzel of Cindy A. Goldstein, P.A., Coral Springs, and Stuart L. Koenigsberg of A Able Advocates–Stuart

L. Koenigsberg, P.A., Miami.

• Counsel for Amicus Curiae: Peter J. Valeta of Cozen O’Connor, Chicago Illinois, for Amicus Curiae, Florida

Justice Reform Institute. Matthew C. Scarfone of Colodny Fass, P.A., Sunrise, for Amicus Curiae, Property

Casualty Insurers Association of America. Mac S. Phillips of Phillips|Tadros, P.A., Fort Lauderdale, and

David M. Caldevilla of de laParte & Gilbert, P.A., Tampa, for Amicus Curiae, Floridians For Fair Insurance,

Inc.

201. USAA Gen. Indem. Co. v. Gogan, 238 So. 3d 937 (Fla. 4th DCA 2018), quashed 47 Fla. L. Weekly

S98 (Fla. Jan. 21, 2022).


• Counsel for Appellant: Douglas H. Stein of Association Law Group, P.L., Miami.

• Counsel for Appellee: Andrew A. Harris and Nichole Segal of Burlington & Rockenbach, P.A., West Palm

Beach, and Barry Aronin of LaBovick Law Group, Palm Beach Gardens.

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Concurring Opinions

202. Dep’t of Highway Safety & Motor Vehicles v. Quinn, 315 So. 3d 52 (Fla. 4th DCA 2021)

• Per Curiam Opinion in which Ciklin, Conner, and Kuntz, JJ., concur; Kuntz, J., concurs specially with

opinion.

• Counsel for Petitioner: Christie S. Utt, General Counsel, and Mark L. Mason, Assistant General Counsel, of

the Office of General Counsel, Department of Highway Safety and Motor Vehicles, Tallahassee.

• Counsel for Respondent: No appearance.

203. The Event Depot Corp. v. Frank, 269 So. 3d 559, 563 (Fla. 4th DCA 2019)

• Opinion by Forst, J.; Warner, J., concurs; Kuntz, J., concurs specially with opinion.

• Counsel for Appellant: Eric C. Morales and Jason H. Klein of Wood, Smith, Henning & Berman, LLP,

Miami.

• Counsel for Appellee: Daniel Mahfood and Bryan S. Gowdy of Creed & Gowdy, P.A., Jacksonville, and

Jonathan R. Gdanski and David Silverman of Schlesinger Law Offices, P.A., Fort Lauderdale.

204. State Farm Fla. Ins. Co. v. Valenti, 285 So. 3d 958, 960 (Fla. 4th DCA 2019)

• Per Curiam opinion in which Conner, Klingensmith and Kuntz, JJ. concur; Kuntz, J., concurs specially with

opinion; Conner, J. concurs specially with opinion.

• Counsel for Appellant: Kara Berard Rockenbach, David A. Noel, and Daniel M. Schwarz of Link &

Rockenbach, PA, West Palm Beach.

• Counsel for Appellee: Matthew G. Struble and Christine D. Skubala of Struble, P.A., Fort Lauderdale.

205. Sturgeon v. State, 275 So. 3d 630, 630 (Fla. 4th DCA 2019)

• Opinion by May and Forst, JJ.; Kuntz, J., concurs with opinion.

• Counsel for Appellant: Gregory C. Rosenfeld of Law Offices of Greg Rosenfeld, P.A., West Palm Beach,

Andrew B. Greenlee of Andrew B. Greenlee, P.A., Sanford, and Joshua LeRoy of LeRoy Law, P.A..

• Counsel for Appellee: Ashley B. Moody, Attorney General, Tallahassee, and Rachael Kaiman, Assistant


206. Twigg v. State, 254 So. 3d 464, 471 (Fla. 4th DCA 2018)

• Opinion by Damoorgian, J.; Levine, J., concurs; Kuntz, J., concurs specially with opinion.

• Counsel for Appellant: David F. Pleasanton of David F. Pleasanton, P.A., West Palm Beach.

• Counsel for Appellee: Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider,


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Opinions Concurring in Result Only

207. Delbrouck v. Eberling, 226 So. 3d 929, 935 (Fla. 4th DCA 2017)

• Opinion by Cynamon, Abby, Associate Judge; Damoorgian, J., concurs; Kuntz, J., concurs in result only

with opinion.

• Counsel for Appellant: Brian C. Valentine of the Law Office of Mosier Valentine, P.A., Fort Lauderdale.

• Counsel for Appellee: Scott A. Weiss of Selzer & Weiss, Fort Lauderdale, for Appellee Maria Eberling. John

G. Jordan of John G. Jordan, P.A., Fort Lauderdale, for Appellee Claude Delbrouck.

208. G.A.Q.L. v. State, 257 So. 3d 1058, 1065 (Fla. 4th DCA 2018)

• Opinion by Levine, J.; Ciklin, J., concurs; Kuntz, J., concurs in result only with opinion.

• Counsel for Appellant: Eric T. Schwartzreich of Schwartzreich & Associates, P.A., Fort Lauderdale, and

Jason Alan Kaufman of Kaufman Legal Group, P.A., Fort Lauderdale.

• Counsel for Appellee: Pamela Jo Bondi, Attorney General, Tallahassee, and Anesha Worthy, Assistant


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Dissenting Opinions

209. Fox v. Fox, 262 So. 3d 789, 796 (Fla. 4th DCA 2018) (en banc)

• Opinion by May, J.; Warner, Gross, Taylor, Damoorgian, and Klingensmith, JJ., concur; Conner, J., concurs

specially with opinion; Kuntz, J., dissents in part with opinion in which Gerber, C.J., Ciklin, Levine, and

Forst, JJ., concur.

• Counsel for Appellant: Neil B. Jagolinzer and Jay R. Jacknin of Jacknin & Jagolinzer, West Palm Beach.

• Counsel for Appellee: Matthew S. Nugent and Adam M. Zborowski of Nugent Zborowski, North Palm

Beach.

210. Johnson v. State, 268 So. 3d 729, 743 (Fla. 4th DCA 2018), quashed 295 So. 3d 710 (Fla. 2020)

• Opinion by Conner, J.; Warner, J., concurs; Kuntz, J., dissents with opinion.

• Counsel for Appellant: Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant Regional

Counsel, Office of Criminal Conflict and Civil Regional Counsel, Fourth District, West Palm Beach.



211. Owens v. Corrigan, 252 So. 3d 747, 751 (Fla. 4th DCA 2018)

• Opinion by Taylor, J.; Gross, J., concurs; Kuntz, J., dissents with opinion.

• Counsel for Appellant: Robert Garven, Coral Springs.

• Counsel for Appellee: Katherine L. Corrigan of KLC Law P.A., Fort Lauderdale.

212. R.J. Reynolds Tobacco Company v. Burgess, 294 So. 3d 910 (Fla. 4th DCA 2020), disapproved

Prentice v. R.J. Reynolds Tobacco Co., 47 Fla. L. Weekly S78 (Fla. Mar. 17, 2022)

• Opinion by Taylor, J.; Ciklin, J., concurs; Kuntz, J., dissents with opinion.

• Counsel for Appellant: Marie A. Borland and Troy A. Fuhrman of Hill Ward Henderson, Tampa, Jason T.

Burnette of Jones Day, Atlanta, Georgia, and Charles R.A. Morse of Jones Day, New York, New York.

• Counsel for Appellee: David J. Sales and Daniel R. Hoffman of David J. Sales, P.A., Sarasota, Randy

Rosenblum of Dolan Dobrinsky Rosenblum, Miami, and Gary M. Paige and Cassandra Lombard of Gordon & Partners, Davie.

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Judicial Ethics Advisory Committee (J.E.A.C.) Opinions2

J.E.A.C. opinions are unsigned. All opinions issued during my time on the committee are listed.

213. JEAC Op. 2019-05 (February 4, 2019) 214. JEAC Op. 2019-06 (February 8, 2019)

215. JEAC Op. 2019-07 (February 21, 2019) 216. JEAC Op. 2019-08 (February 22, 2019)

217. JEAC Op. 2019-09 (March 25, 2019) 218. JEAC Op. 2019-10 (March 28, 2019)

219. JEAC Op. 2019-11 (April 2, 2019) 220. JEAC Op. 2019-12 (April 2, 2019)



225. JEAC Op. 2019-17 (May 9, 2019) 226. JEAC Op. 2019-18 (May 28, 2019)

227. JEAC Op. 2019-19 (June 25, 2019) 228. JEAC Op. 2019-20 (July 9, 2019)

229. JEAC Op. 2019-21 (July 23, 2019) 230. JEAC Op. 2019-22 (August 19, 2019)

231. JEAC Op. 2019-23 (September 3, 2019) 232. JEAC Op. 2019-24 (September 5, 2019)



237. JEAC Op. 2019-29 (October 8, 2019) 238. JEAC Op. 2019-30 (October 16, 2019)

239. JEAC Op. 2019-31 (November 4, 2019) 240. JEAC Op. 2019-32 (November 15, 2019)

241. JEAC Op. 2019-33 (November 22, 2019) 242. JEAC Op. 2019-34 (December 2, 2019)

243. JEAC Op. 2019-35 (December 2, 2019) 244. JEAC Op. 2020-01 (January 24, 2020)

245. JEAC Op. 2020-02 (January 31, 2020) 246. JEAC Op. 2020-03 (February 11, 2020)




253. JEAC Op. 2020-10 (April 8, 2020) 254. JEAC Op. 2020-11 (May 8, 2020)

255. JEAC Op. 2020-12 (May 8, 2020) 256. JEAC Op. 2020-13 (May 13, 2020)

257. JEAC Op. 2020-14 (May 18, 2020) 258. JEAC Op. 2020-15 (June 9, 2020)

259. JEAC Op. 2020-16 (June 12, 2020) 260. JEAC Op. 2020-17 (June 15, 2020)

261. JEAC Op. 2020-18 (July 13, 2020) 262. JEAC Op. 2020-19 (July 17, 2020)

263. JEAC Op. 2020-20 (August 11, 2020) 264. JEAC Op. 2020-21 (August 11, 2020)

265. JEAC Op. 2020-22 (October 22, 2020) 266. JEAC Op. 2020-23 (November 13, 2020)

267. JEAC Op. 2020-24 (November 13, 2020) 268. JEAC Op. 2020-25 (December 10, 2020)

269. JEAC Op. 2020-26 (December 10, 2020) 270. JEAC Op. 2021-01 (March 8, 2021)




277. JEAC Op. 2021-08 (July 19, 2021) 278. JEAC Op. 2021-09 (July 22, 2021)

279. JEAC Op. 2021-10 (July 23, 2021) 280. JEAC Op. 2021-11 (August 5, 2021)

281. JEAC Op. 2021-12 (August 10, 2021) 282. JEAC Op. 2021-13 (August 23, 2021)


285. JEAC Op. 2021-16 (October 7, 2021) 286. JEAC Op. 2021-17 (November 2, 2021)

287. JEAC Op. 2021-18 (November 3, 2021) 288. JEAC Op. 2022-01 (March 25, 2022)


2 “The Judicial Ethics Advisory Committee renders written advisory opinions to inquiring judges and judicial candidates

regarding application of the Code with respect to specific instances of contemplated judicial and nonjudicial conduct.”

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1

Court Case No. Case Name (Not Intended To Conform To Bluebook) Opinion/Order Author Panel Panel Panel Oral ArgumentPrimary Responsibility

for BriefingOpposing Counsel

11th Cir. 07-11699Kaplan v. Blue Cross & Blue Shield of Florida , 300 Fed.Appx. 734

(11th Cir. 2008)Opinion Per Curiam Anderson Cox Hull No No

Erik W. Scharf, Erik W. Scharf, P.A.

11th Cir. 09-16404Gateway Investors, LLC v. Innovest Capital, Inc. , 402 Fed.Appx.

459 (11th Cir. 2010)Opinion Per Curiam Dubina Coar (N.D. Ill.) Anderson Yes (Brennan) No

Robert L. Sirianni, Jr., Brownstone, P.A.

11th Cir. 10-12407 Chubb Custom Ins. Co. v. Vista View Apartments, LTD. Settled after briefing - - - - NoNo (Amicus Supporting

Neither Side)-

11th Cir. 12-10036Pantoja v. Edward Zengel & Son Exp., Inc. , 500 Fed. Appx. 892

(11th Cir. 2012)Opinion Per Curiam Dubina Pryor, William Anderson Yes (Kuntz) Yes

Sina Negahbani, Law Offices of Sina Negahbani

11th Cir. 12-12185 Frantz v. Walled , 513 Fed.Appx. 813 (11th Cir. 2013) Opinion Per Curiam Carnes, Ed Barkett Hull No Yes Pro Se

11th Cir. 12-10838DuChateau v. Camp, Dresser & McKee, Inc. , 713 F.3d 1298 (11th

Cir. 2013)Opinion Pryor, William Pryor, William Tjoflat

Rothstein (W.D. Wash.)

Yes (Loffredo) PartiallyG. Ware Cornell, Jr., Cornell &

Associates, PA

11th Cir. 12-12616Apothecary Dev. Corp. v. City of Marco Island, Fla. , 517 Fed.

Appx. 890 (11th Cir. 2013)Opinion Per Curiam Dubina Barkett Kleinfeld (9th Cir.) Yes (Kuntz) Yes (Reply Brief)

Michael R.N. McDonnell, McDonnell Trial Law

11th Cir. 12-12317Arthur v. JP Morgan Chase Bank, NA , 569 Fed. Appx. 669

(11th Cir. 2014)Opinion

Coogler (N.D. Ala.)

MarcusCoogler (N.D.

Ala.)Bowen (S.D. Ga.) Yes (Kuntz) Yes

W. Jeffrey Barnes, W.J. Barnes, PA

11th Cir. 13-13-849Medicomp, Inc. v. United Healthcare Ins. Co. , 562 Fed. Appx. 754

(11th Cir. 2014)Opinion Per Curiam Marcus Fay Hull No Yes

William Tucker Brown, D. Jamie Carruth, Edith M. Kallas,

Deborah J. Winegard, and Joe R. Whatley, Jr., Whatley Drake & Kallas, LLC; Thomas J. Force, The Force Law Firm, PC; and

James P. Gitkin, Salpeter Gitkin, LLP

11th Cir. 13-15422 In re Brown , 572 Fed. Appx. 849 (11th Cir. 2014) Opinion Per Curiam Pryor, William Cox Martin No Yes Pro Se

4th Cir. 14-1992Taylor v. Oak Forest Health & Rehab., 590 Fed. Appx. 254 (4th

Cir. 2015)Opinion Per Curiam Shedd Keenan Diaz No Yes Pro Se

11th Cir. 14-12067In re Tousa, Inc. (Wilmington Trust Co. v. Jefferies Leveraged Credit

Products, LLC, et al), 598 Fed.Appx. 761 (11th Cir. 2015)Opinion Martin Martin Dubina Rodgers Yes (Other) No

Joshua K. Brody, David Ellis Blabey, Jr., Kramer Levin Naftalis & Frankel, LLP;

Lawrence E. Pecan, III, Meland Russin & Budwick, PA; and

Robert Corey Streit, Marshall Socarras Grant PL

11th Cir. 14-11163Ames v. J.P. Morgan Chase Bank, N.A., 623 Fed. Appx. 983

(11th Cir. 2015)Opinion Per Curiam Carnes, Ed Pryor, William Jordan No Yes

Jacqulyn Mack and Kerry E. Mack, Mack Law Firm

Chartered

11th Cir. 15-10082Beepot v. JP Morgan Chase Nat. Corp. Services, Inc., 626 Fed.

Appx. 935 (11th Cir. 2015)Opinion Per Curiam Marcus Wilson Carnes, Julie No No Pro Se

11th Cir. 15-10564Beepot v. JP Morgan Chase Nat. Corp. Services, Inc., 628 Fed.

Appx. 1008 (11th Cir. 2015)Opinion Per Curiam Pryor, William Rosenbaum Carnes, Julie No Yes Pro Se

11th Cir. 15-10459Gables Ins. Recovery, Inc. v. Blue Cross and Blue Shield of Florida,

Inc. , 813 F.3d 1333 (11th Cir. 2015)Opinion Per Curiam Marcus Pryor, Jill Restani (U.S. C.I.T.) Yes (Kuntz) Yes

George Bartram Billbrough, Billbrough & Marks, PA; Robert

Nelson Pelier, Law Office of Robert N. Pelier, PA; and Thomas R. Poole, Gables Insurance Recovery, Inc.

11th Cir. 15-11772Pinson v. JPMorgan Chase, - Fed. Appx - (11th Cir. March 28,

2016)Opinion Per Curiam Martin Tjoflat Anderson No Yes Pro Se

11th Cir. 15-12986Hayes v. US Bank National Assoc., et al, - Fed. Appx - (11th Cir.

April 21, 2016)Opinion Per Curiam Martin Rosenbaum Anderson No Yes Pro Se

11th Cir. 15-13731 In re Bayou Shores SNF, LLC, - F.3d - (11th Cir. 2016) OpinionClevenger (Fed.

Cir.)Hull Carnes, Julie Clevenger (Fed. Cir.) Yes (Other) No

Jeffrey A. Clair, U.S. Department of Justice; and Stuart F. Williams, Florida Agency for Health Care

Administration

Jeffrey T. Kuntz Ex. B, Page 1 of 10

2



11th Cir. 15-13857La Ley Recovery Systems, OB v. UnitedHealthcare Ins. Co ., - Fed.

Appx - (11th Cir. July 12, 2016)Opinion Per Curiam Carnes, Ed Pryor, William Fay No Yes

John H. Ruiz and Timothy J. Van Name, Law Offices of La

Ley con John H. Ruiz, P.A.

11th Cir. 15-11436Humana Med. Plan, Inc. v. W. Heritage Ins. Co., - F.3d - (11th

Cir. 2016)Opinion Black Black

Parker (Second Cir.)

Pryor, William (Dissent)

Yes (Other) No

Anthony John Russo, Lewis F. Collins, Jr., William Philip

Schoel, Butler Weihmuller Katz Craig, LLP; and Neil H. Selman, Jennifer J. Capabianco, Selman

Breitman, LLP

11th Cir. 15-15240 Melissa Milward, et al., Appellants v. Linda Shaheen, et al. TBD TBD TBD TBD TBDYes (Kuntz, Sept. 14,

2016)Yes

Matthew Kudzin, Kate Deal, Michael Qin, Covington &

Burlington LLP

M.D. Fla. 13–cv–191Brown v. JP Morgan Chase Bank, N.A. , 526 B.R. 882 (M.D. Fla.

2013)Opinion Conway N/A

N/A (Bankruptcy Appeal to District

Court)N/A No Yes Pro Se

S.D. Fla. 13–CV–80240Roberts-Dude v. JP Morgan Chase Bank , N.A., 498 B.R. 348 (S.D.

Fla. 2013)Opinion Rosenberg N/A

N/A (Bankruptcy Appeal to District

Court)N/A No Yes

Marshall Joel Osofsky, Law Office of Paul A. Krasker

S.D. Fla. 14-cv-60853 DiMaria Properties, LLC v. 3400 Atlantic, LLC Opinion Middlebrooks N/AN/A (Bankruptcy Appeal to District

Court)N/A No Yes Daniel DeSouza

1DCA 1D10-2746Jagodinski v. Washington Mut. Bank , 63 So. 3d 791 (Fla. 1st

DCA 2011)Opinion Marstiller Marstiller Hawkes Wolf (Dissent) No Yes

Douglas L. Smith and Michael J. Hauversburk, Burke Blue

Hutchison Walters & Smith, P.A

1DCA 1D10-1363Hoffman v. Chase Home Fin., LLC , 1D10-1363, 2011 WL

3097767 (Fla. 1st DCA 2011)PCA - Affirm PCA Wolf Lewis Ray No Yes Pro Se

1DCA 1D11-2784Santana v. Flagstar Bank, FSB , 98 So. 3d 573 (Fla. 1st DCA

2012)PCA - Affirm PCA Wolf Roberts Davis No Yes

Jon B. Lindeman, Jr., Carlos M. Ferreyros, Carlos D.

Grande, Jennifer N. Hernandez, Steven V. Llarena, and Oded

Chayoun, Advocate Law Groups of Florida, P.A.

1DCA 1D12-2499U.S. Bank Nat. Ass'n v. Farhood , 110 So. 3d 446 (Fla. 1st DCA

2013)Order - Certiorari

Denied After BriefingOrder Benton Wolf Swanson No Yes

Bruce M. Rodgers and Brandon R. Burg, Business Law Group,

P.A.

1DCA 1D12-3197Beepot v. JPMorgan Chase Bank , 128 So. 3d 1060 (Fla. 1st DCA

2013)PCA - Affirm PCA Wetherell Swanson Makar Yes (Kuntz) Yes

Paetra T. Brownlee, Brownstone, P.A.

1DCA 1D13-496Heard v. JPMorgan Chase Bank, N.A. , 132 So. 3d 226 (Fla. 1st

DCA 2014)PCA - Affirm PCA Lewis Wetherell Rowe No Yes

Fred H. Flowers, Flowers Law, LLC

1DCA 1D14-268U.S. Bank Nat. Ass'n v. Farhood , 153 So. 3d 955 (Fla. 1st DCA

2014)Opinion Clark Clark Padavano

Thomas (Concurs in Result Only)

No YesJacob A. Brainard, Scott C.

Davis, and Candice J. Gundel, Business Law Group, P.A.

1DCA 1D14-1422 Stephens v. Citibank , N.A.Order - Transferred to

Supreme CourtOrder Unsigned Unsigned Unsigned No

Yes (Response to OSC re: jurisdiction)

Daniel W. Uhlfelder

1DCA 1D15-4424 Margaretten v. Flagstar Bank, FSB , TBD TBD TBD TBD TBD TBD TBD Nicholas A Vidoni 1DCA 1D16-363 Leggett v. Flagstar Bank, FSB , TBD TBD TBD TBD TBD TBD TBD Eric Lanigan

2DCA 2D09-3137Fla. Ins. Guar. Ass'n v. BSR Elec., Inc. , 26 So. 3d 588 (Fla. 2d

DCA 2010)Settled - After Briefing - - - - No Yes

2DCA 2D09-4934Morginstin v. Fifth Third Bank , 36 So. 3d 670 (Fla. 2d DCA

2010)PCA - Affirm PCA Silberman Villanti Crenshaw Yes (Vitucci) No

Berry J. Walker, Jr., Walker & Tudhope, P.A.

2DCA 2D10-2549 Toth v. Lasalle Bank , 49 So. 3d 760 (Fla. 2d DCA 2010) PCA - Affirm PCA Casanueva Northcutt Wallace No Yes Pro Se


3



2DCA 2D10-1535 Robinson v. JPMorgan Chase BankVoluntarily Dismissed -

After Briefing- - - - No Yes Pro Se

2DCA 2D10-1536 Robinson v. Chase Home FinanceVoluntarily Dismissed -

After Briefing- - - - No Yes Pro Se

2DCA 2D10-4882Risch v. Bank of Am., Nat. Ass'n , 72 So. 3d 161 (Fla. 2d DCA

2011)PCA - Affirm Black Black Silberman Davis No Yes

Bradley S. Donnelly, Treiser Collins

2DCA 2D10-916Fla. Ins. Guar. Ass'n v. Sandpiper , 58 So. 3d 266 (Fla. 2d DCA

2011)PCA - Affirm PCA Altenbernd Northcutt Whatley Yes (Kuntz) Yes

William J. Hazzard and Sonia M. Diaz, Coleman, Hazzard &

Taylor, P.A.

2DCA 2D10-2973JPMorgan Chase Bank v. Jurney , 86 So. 3d 1182 (Fla. 2d DCA

2012)PCA - Affirm Altenbernd Altenbernd Silberman Wallace No No -

2DCA 2D11-1458Clear Blue Investments, LLC v. Reginelli , 96 So. 3d 893 (Fla. 2d

DCA 2012)PCA - Affirm PCA Altenbernd Villanti Morris Yes (Not GR) No

Robert D. Friedman, Friedman & Greenberg, P.A.; and Jeffrey

S. Schelling

2DCA 2D11-2583Hale v. JP Morgan Chase Bank, 99 So. 3d 952 (Fla. 2d DCA

2012)PCA - Affirm PCA Casanueva Kelly Khouzam No Yes Pro Se

2DCA 2D11-5276Ammann v. Chase Home Fin. , LLC, 132 So. 3d 833 (Fla. 2d

DCA 2013)PCA - Affirm PCA Villanti Wallace Khouzam No Yes Pro Se

2DCA 2D12-4959Pokorny v. JPMorgan Chase Bank , 138 So. 3d 1034 (Fla. 2d DCA

2014)PCA - Affirm PCA Davis Villanti Sleet Yes (Kuntz) Yes

Luke Lirot, Luke Charles Lirot, P.A.

2DCA 2D13-5699 Neal v. Flagstar Bank, FSB , 172 So. 3d 879 (Fla. 2d DCA 2015) PCA - Affirm PCA Wallace Khouzam Morris Yes (Kuntz) Yes Kelley A. Bosecker

2DCA 2D14-1056 Bevan v. Washington Mutual BankOrder - Prohibition

Denied After BriefingUnsigned - - - No Yes Pro Se

2DCA 2D15-2387 Russo v. Bank of America Settled - - - - - - Michael P. Fuino2DCA 2D15-3459 Summers v. Wells Fargo Bank TBD TBD TBD TBD TBD TBD Yes Kendrick Almaguer2DCA 2D15-5283 Patel v. Chase Home Finance, LLC TBD TBD TBD TBD TBD TBD Yes Michael P. Fuino2DCA 2D16-789 Williams v. JPMorgan Chase Bank, N.A. TBD TBD TBD TBD TBD TBD TBD Alexander R. Allred

3DCA3D07-1798, 3D07-1799

Wavestone Props. v. Fortune Dev. Sales Corp. , 978 So. 2d 830 (Fla. 3d DCA 2008)

Opinion Cope Rothenberg Wells Cope Yes (Campbell) NoRichard H. Critchlow, Christina M. Ceballos-Levy, and Robert J. Alwine, II, Kenny Nachwalter

3DCA 3D09-1952SunTrust Bank v. Electronic Wireless Corp. , 23 So. 3d 774 (Fla. 3d

DCA 2009)Opinion Rothenberg Rothenberg Ramirez Lagoa Yes (Kuntz) Yes

Ainslee R. Ferdie, Ferdie and Lones

3DCA 3D09-1808Academic Books, L.L.C. v. Textbooks Mgmt. L.L.C. , 23 So. 3d

1191 (Fla. 3d DCA 2010)Settled - After Briefing - - - - Cancelled Yes Mark S. Auerbacher

3DCA 3D10-1196Gonzalez v. JP Morgan Chase Bank , 51 So. 3d 469 (Fla. 3d DCA

2010)Order - Dismissing

AppealOrder Rothenberg Ramirez Suarez No

Yes (Motion to Dismiss Granted)

Luis A. Gonzalez, L.A. Gonzalez Law Offices, P.A.

3DCA 3D09-2437Soto v. JP Morgan Chase Bank , 50 So. 3d 1149 (Fla. 3d DCA

2011)PCA - Affirm PCA Rothenberg Gersten Cortinas No Yes

John H. Ruiz, Law Offices of La Ley con John H. Ruiz, P.A.

3DCA 3D10-2589 Vargas v. Washington Mut., 89 So. 3d 262 (Fla. 3d DCA 2012) Opinion Wells Wells Ramirez Lagoa NoYes (Confession of Error

Filed)Raul E. Espinoza

3DCA 3D11-2374Blombergh v. Chase Home Fin. LLC , 100 So. 3d 701 (Fla. 3d

DCA 2012)PCA - Affirm PCA Lagoa Logue Schwartz Yes (Kuntz) Yes Robert I. Spiegelman

3DCA 3D11-636Deutsche Bank Nat. Trust Co. v. Gallo , 86 So. 3d 1129 (Fla. 3d

DCA 2012)PCA - Affirm PCA Rothenberg Wells Shepherd Yes (Kuntz) Yes

Ross B. Toyne, Michael A. Schimmel, and Alberto J. Alonso, Toyne & Mayo

3DCA 3D10-2188Lau v. Chase Home Fin., LLC, 83 So. 3d 732 (Fla. 3d DCA

2012)PCA - Affirm PCA Wells Fernandez Schwartz Yes (Kuntz) No

D.S. “Dar” Airan, Airan–Pace Law; and Randall D. Burks

3DCA 3D11-2207Lopez v. JP Morgan Chase Bank , 117 So. 3d 422 (Fla. 3d DCA

2012)PCA - Affirm PCA Rothenberg Shepherd Logue Yes (Kuntz) Yes

Roberta G. Mandel; and Dennis R. Haber

3DCA 3D10-3015Fla. Ins. Guar. Ass'n, Inc. v. Karelas, 106 So. 3d 1 (Fla. 3d DCA

2012)Opinion Schwartz Rothenberg Emas Schwartz Yes (Not GR)

Yes (Amicus in Support of Rehearing Only)

Marlene S. Reiss; and Kenneth B. Schurr


4



3DCA 3D12-2011JP Morgan Chase Bank v. Garcia , 116 So. 3d 639 (Fla. 3d DCA

2013)Opinion Per Curiam Rothenberg Suarez Salter No Yes

Louis K. Nicholas II, Ocean Bank; Aubrey G. Rudd; Kevin D. Dennis; Nelson C. Keshen;

Jason J. Quintero, Carlton Fields

3DCA 3D13-128US Bank Nat. Ass'n v. Rivera, 128 So. 3d 907 (Fla. 3d DCA

2013)Opinion Logue Lagoa Salter Logue Yes (Kuntz) Partially

Tony L. Stabenow, The Stabenow Law Firm, PLLC

3DCA 3D13-1466Federal Contracting, Inc. v. Bimini Shipping, LLC , 128 So. 3d 904

(Fla. 3d DCA 2013)Opinion Rothenberg Rothenberg Wells Emas Yes (Kuntz) Yes

Irv J. Lamel, Law Office of Irv J. Lamel; and Jan A. Yelen, Yelen

& Yelen PA

3DCA 3D12-777 Beyer v. City of Marathon, - So. 3d - (Fla. 3d DCA 2013) Opinion Suarez Lagoa Wells Suarez Yes (Kuntz) YesJames S. Mattson and Andrew

Mitchell Tobin

3DCA 3D13-1621JPMorgan Chase Bank, N.A. v. de los Reyes, et al (Fla. 3d DCA

July 22, 2013)Order - Certiorari

Denied After BriefingOrder Lagoa Wells Suarez Yes (Not GR)

Yes (Amicus in Support of Rehearing)

Jason T. Forman, Jason T. Forman, P.A

3DCA 3D12-2670Venezia v. Wells Fargo Bank, N.A. , 133 So. 3d 941 (Fla. 3d

DCA 2014)PCA - Affirm PCA Suarez Lagoa Salter No Yes Thomas P. Murphy

3DCA 3D12-2489 Prieto v. CitiBank, N.A. , 130 So. 3d 1291 (3d DCA 2014) Opinion Per Curiam Rothenberg Suarez Emas NoYes (Confession of Error

Filed)Stephen H. Butter

3DCA 3D13-1641Nascimiento v. Martin C. Boire, P.A., et al , 149 So. 3d 690 (Fla.

3d DCA 2014)Opinion Per Curiam Lagoa Salter Logue Yes (Kuntz) Yes

Cesar J. Dominguez, Dominguez & Associates, P.A.; and Theresa

B. Edwards and June M. Clarkson, Edwards & Clarkson,

P.A.

3DCA 3D13-429Rivera v. US Bank Nat. Ass’n., 3D13-0429 (Fla. 3d DCA

January 14, 2014)Order - Dismissing

AppealOrder Lagoa Salter Logue No


Tony L. Stabenow, The Stabenow Law Firm, PLLC

3DCA 3D12-3073Memon v. JPMorgan Acquisition Corp., 160 So. 3d 441 (Fla. 3d

DCA 2015)PCA - Affirm PCA Shepherd Salter Logue Yes (Kuntz) No

Thomas E. Ice, Ice Appellate; and Thomas D. Hall, The Mills

Firm, P.A.

3DCA 3D12-2883Humana Med. Plan, Inc. v. Reale, 180 So. 3d 195 (Fla. 3d DCA

2015)Opinion Shepherd Rothenberg Shepherd

Salter (Concurs in Part, Dissents in

Part)Yes (Baker) No

Philip D. Parrish; and Donna Brown Michelson

3DCA 3D15-983La Ley Recovery Systems v. United Healthcare Ins., - So. 3d - (Fla.

3d DCA 2016)Opinion Rothenberg Rothenberg Emas Hernandez No Yes

John H. Ruiz and Timothy J. Van Name, Law Offices of La

Ley con John H. Ruiz, P.A.3DCA 3D15-254 Didato v. Wilmington Trust Co. TBD TBD TBD TBD TBD TBD Yes Manuel E. Garcia

4DCA 4D08-476Am. Maritime Off. Union v. Merriken , 981 So. 2d 544 (Fla. 4th

DCA 2008)Opinion Warner Warner Polen Hazouri No Yes

William J. Brown, William J. Brown, P.A.; and Robert N.

Harris, Robert N. Harris, P.A.

4DCA 4D08-2670Derespina v. North Broward Hosp. Dist ., 19 So. 3d 1128 (Fla. 4th

DCA 2009)Opinion Per Curiam Warner Polen Taylor No No

Derek H. Lloyd and Christopher W. Wadsworth, Wadsworth

Huott, L.L.P.

4DCA 4D09-377Fla. Ins Guar. Ass'n, Inc. v. Devon Neighborhood Ass'n, Inc. , 33 So.

3d 48 (Fla. 4th DCA 2009)Opinion Warner Warner Polen Taylor No Yes

Daniel S. Rosenbaum, John M. Siracusa, Richard C.

Valuntas and Mark G. Keegan, Rosenbaum

Mollengarden Janssen and Siracusa, PLLC

4DCA 4D09-378Fla. Ins. Guar. Ass'n, Inc. v. Shadow Wood Condominium Ass'n , 26

So. 3d 610 (Fla. 4th DCA 2009)Opinion Gross Gross Damoorgian Gerber No Yes

Mitchell B. Haller and Keith J. Lambdin, Katzman Garfinkel

Rosenbaum, LLP4DCA 4D10-3648 Home Depot U.S.A., Inc. v. Sidella Settled - After Briefing - - - - No Yes Diana Santa Maria

4DCA 4D09-2116GrayRobinson, P.A. v. Fireline Restoration, Inc ., 46 So. 3d 170 (Fla.

4th DCA 2010)Opinion Warner Warner Taylor May Yes (Kuntz) Yes

Fred L. Kretschmer, Jr., Brennan & Kretschmer, P.A.


5



4DCA 4D10-1787Rodrigo v. JPMorgan Chase Bank Nat. Ass'n. , 47 So. 3d 970 (Fla.

4th DCA 2010)Opinion Per Curiam Hazouri Ciklin Levine No Yes

James A. Bonfiglio, Law Office of James A. Bonfiglio, Esq.

4DCA 4D09-11Fla. Ins. Guar. Ass'n, Inc. v. Olympus Assoc. , Inc., 34 So. 3d 791

(Fla. 4th DCA 2010)Opinion Taylor Taylor Ciklin Blanc No Yes

Melissa Groisman, Eisinger, Brown, Lewis & Frankel, P.A.

4DCA 4D09-4656Hammocks-Lake Forest Condo. Assoc. v. Fla. Ins. Guar. Ass'n. , 50

So. 3d 1150 (Fla. 4th DCA 2010)PCA - Affirm PCA Warner Polen Stevenson Yes (Kuntz) Yes

Mitchell B. Haller and Keith J. Lambdin, Katzman Garfinkel

Rosenbaum, LLP

4DCA 4D10-3881 Diedrick-Clarke v. WAMU , 73 So. 3d 814 (Fla. 4th DCA 2011) Opinion Per Curiam May Damoorgian Gerber NoYes (Confession of Error

Filed)Larry R. Fleurantin, Larry R. Fleurantin & Associates, P.A.

4DCA 4D09-4597Fla. Ins. Guar. Ass'n v. Smothers , 65 So. 3d 541 (Fla. 4th DCA

2011)Opinion May May Damoorgian Levine No Yes

James C. Spitz, Law Offices of James C. Spitz; and Bard D. Rockenbach and Nichole J.

Segal, Burlington & Rockenbach, P.A.

4DCA 4D10-4157Fla. Ins. Guar. Ass’n. v. Somerset Homeowners Ass’n , 83 So. 3d

850 (Fla. 4th DCA 2011)Opinion Damoorgian Warner Damoorgian Gerber Yes (Kuntz) Yes

Ernest P. Wagner and Christopher N. Mammel,

Childress Duffy, Ltd.

4DCA 4D10-2585Douglas v. J.P. Morgan Chase Bank , 68 So. 3d 247 (Fla. 4th DCA

2011)PCA - Affirm PCA May Hazouri Conner No Yes

Brian Korte, Korte & Wortman, P.A.

4DCA 4D10-3918Florida Ins. Guar. Ass'n v. Lexington Club Cmty. Ass'n Inc ., 75 So.

3d 289 (Fla. 4th DCA 2011)PCA - Affirm PCA Stevenson Damoorgian Hazouri No Yes

Stephen A. Smith, Pallo, Marks, Hernandez, Gechijian & Demay,

P .A.

4DCA 4D10-5240Walko v. Chase Home Finance, 4D10-5240 (Fla. 4th DCA Oct.

6, 2011)Order - Dismissing

AppealOrder Unsigned Unsigned Unsigned No


Pro Se

4DCA 4D10-4054Sanderson v. JPMorgan Chase Bank , 4D10-4054, 2011 WL

6386697 (Fla. 4th DCA 2011)PCA - Affirm PCA Polen Stevenson Taylor No Yes

Jose D. Sosa, The Law Office of Jose D. Sosa, P.C.

4DCA 4D11-1302Chase Home Fin., LLC v. Amorosana , 4D11-1302, 2011 WL

6386740 (Fla. 4th DCA 2011)PCA - Affirm PCA Ciklin Conner Gerber No Yes

Gregg H. Glickstein, Gregg H. Glickstein, P.A.

4DCA 4D10-4197Rodrigo v. JPMorgan Chase Bank Nat. Ass'n. , (Fla. 4th DCA

2011)Order - Certiorari

Denied After BriefingOrder May Polen Levine No Yes

James A. Bonfiglio, Law Office of James A. Bonfiglio, Esq.

4DCA 4D11-4726Baruch Jacobs, M.D., P.A. v. Neighborhood Health P'ship, Inc., 103

So. 3d 170 (Fla. 4th DCA 2012)PCA - Affirm PCA Stevenson Gerber Levine No No

D. Patricia Wallace, Mathews Wallace LLP

4DCA 4D10-5302Lopez v. Chase Home Fin. LLC , 81 So. 3d 432 (Fla. 4th DCA

2012)PCA - Affirm PCA Polen Hazouri Taylor No Yes

J. Wil Morris and Jennifer M. Barrow, Morris duPont, P.A.

4DCA 4D10-3670Koutsogiannis v. JP Morgan Chase Bank, Nat. Ass'n , 86 So. 3d

1136 (Fla. 4th DCA 2012)PCA - Affirm PCA Taylor Ciklin Gerber No Yes

Samuel D. Lopez, Samuel D. Lopez, P.A.

4DCA 4D10-2822Stamatakis v. JP Morgan Chase Bank Nat. Ass'n, 79 So. 3d 37

(Fla. 4th DCA 2012)PCA - Affirm PCA May Damoorgian Gerber No Yes

J. Wil Morris, Morris duPont, P.A.

4DCA 4D10-5288Beaulieu v. JPMorgan Chase Bank, N.A. , 80 So. 3d 365 (Fla. 4th

DCA 2012)Opinion Warner Warner Damoorgian Gerber No Yes

Garry W. Johnson and Bruce K. Herman, 511 Law, P.A.

4DCA 4D11-3047Alcin v. Chase Home Finance , 97 So. 3d 841 (Fla. 4th DCA

2012)PCA - Affirm PCA May Stevenson Levine No Yes

Philippe Symonovicz, The Law Offices of Philippe Symonovicz

4DCA 4D11-4724Rooney v. Wells Fargo Bank, N.A. , 102 So. 3d 734 (Fla. 4th

DCA 2012)Opinion Warner Warner Stevenson Stone No Yes Thomas E. Ice, Ice Legal, P.A.

4DCA 4D13-6060Williams v. Bank Of Am., N.A. , 101 So. 3d 1288 (Fla. 4th DCA

2012)Opinion Per Curiam Gross Conner Cox No Yes

Carl A. Cascio, Carl A. Cascio, P.A.

4DCA 4D11-4009Bryant v. JP Morgan Chase Bank, Nat. Ass'n , 144 So. 3d 548 (Fla.

4th DCA 2013)PCA - Affirm PCA Warner Ciklin Levine No Yes

Jason J. Ricardo, Ricardo & Wasylik, PL

4DCA 4D12-1288 Malone v. Chase Home Fin., LLC (Fla. 4th DCA July 17, 2012)Order - Certiorari

Denied After BriefingOrder May Stevenson Taylor No Yes

Robert P. Bissonnette, Robert P. Bissonnette, P.A.

4DCA 4D12-2211Malone v. Chase Home Fin., LLC , 128 So. 3d 811 (Fla. 4th DCA

2013)PCA - Affirm PCA Stevenson Ciklin Levine No Yes

Robert P. Bissonnette, Robert P. Bissonnette, P.A.

4DCA 4D12-4254R.H. Ciccone Properties v. JP Morgan Chase Bank , 141 So. 3d 590

(Fla. 4th DCA 2014)Opinion Gerber Gerber Stevenson May No

Yes (Motion for Rehearing Only)

Robert Saylor


6



4DCA 4D13-2058JPMorgan Chase Bank, N.A. v. Estate of Neu , 133 So. 3d 811

(Fla. 4th DCA 2014)Opinion Gerber Damoorgian Gerber Conner No Yes (Reply Brief)

Richard L. Williams and John Kirkpatrick

4DCA 4D14-320 Vazza v. Estate of Vazza, 144 So. 3d 698 (Fla. 4th DCA 2014) OpinionScher (Circuit

Judge)Gross May Scher (Circuit Judge) Yes (Lessne) Yes

Gerald F. Richman and Michael J. Napoleone; Richman Greer,

P.A.

4DCA 4D12-2190 Zimmerman v. JPMorgan Chase , 134 So. 3d 501 (4th DCA 2014) Opinion Per Curiam Damoorgian Gerber Levine NoYes (Confession of Error

Filed)Pro Se

4DCA 4D13-856Fla. Ins. Guar. Ass'n v. Coral Palms Vill. Homeowner's Ass'n , 137

So. 3d 527 (Fla. 4th DCA 2014)PCA - Affirm PCA April Ciklin Levine No Yes

John H. Pelzer, Greenspoon Marder, P.A.; and F. Tyler, Geyer Fuxa Tyler, PLLC

4DCA 4D13-1357Grande Beach N. Hutchinson Island v. BankAtlantic , 138 So. 3d

461 (Fla. 4th DCA 2014)PCA - Affirm PCA April Ciklin Levine No Yes

Richard J. Zaden and Steven A. Wahlbrink, The Law Offices of Seiler, Sautter, Zaden, Rimes &

Wahlbrink

4DCA 4D13-1089Smith v. JPMorgan Chase Bank, N.A., 151 So. 3d 1263 (Fla. 4th

DCA 2014)PCA - Affirm PCA Ciklin Conner Forst No Yes

Morton Antman, Morton Antman, P.A.

4DCA 4D12-1312 City of Hollywood v. Arem, 154 So. 3d 359 (Fla. 4th DCA 2014) Opinion Klingensmith Klingensmith Taylor Conner Yes (Not GR)Yes (Amicus in Support of

Rehearing Only)Jason T. Forman, Jason T.

Forman, P.A

4DCA 4D13-488Wadsworth v. Deutsche Bank National Trust Co., 163 So. 3d 1219

(Fla. 4th DCA 2014)PCA - Affirm PCA Gross Taylor Gerber No No Pro Se

4DCA 4D14-2351City of Coral Springs v. North Broward Hospital District, 166 So. 3d

902 (Fla. 4th DCA 2015)Opinion

Per Curiam - Citation

Stevenson Gross Ciklin Yes (Kuntz) YesJohn J. Hearn, Sherry Whitacre,

City Attorney's Office

4DCA 4D13-1971Zeller, et al v. BankAtlantic, et al, 2015 WL 1515605 (Fla. 4th

DCA 2015)PCA - Affirm PCA Gerber Levine Forst No Yes

Richard Zaden and Steven A. Wahlbink, Seiler, Sautter, Zaden,

Rimes & Wahlbrink

4DCA 4D13-3656 Plaza-Diaz v. Flagstar, 169 So. 3d 1189 (Fla. 4th DCA 2015) PCA - Affirm PCA May Damoorgian Taylor No NoBruce K. Herman, The Herman

Law Group, P.A.

4DCA 4D13-606Williams v. JP Morgan Chase Bank, 171 So. 3d 733 (Fla. 4th

DCA 2015)PCA - Affirm PCA Warner Levine Conner No Yes

Carl A. Cascio, Carl A. Cascio, P.A.

4DCA 4D14-2057Balch v. LaSalle Bank N.A. , 171 So. 3d 207 (Fla. 4th DCA

2015)Opinion Stevenson Stevenson Gerber Levine No Yes Pro Se

4DCA 4D12-4331Ross v. JPMorgan Chase Bank, 2015 WL 5603920 (Fla. 4th DCA

2015)PCA - Affirm PCA Ciklin Gerber Levine No Yes Pro Se

4DCA 4D15-743 Demilt v. Demilt , 189 So. 3d 784 (Fla. 4th DCA 2016) PCA - Affirm PCA Ciklin Warner Levine No YesChristopher N. Link,

Christopher N. Link, P.A.

4DCA 4D15-2069Kaufman v. JPMorgan Chase Bank, 190 So. 3d 645 (Fla. 4th

DCA 2016)PCA - Affirm PCA Stevenson Damoorgian Levine No Yes

Kenneth Eric Trent, Kenneth Eric Trent, P.A.

4DCA 4D15-402Levitan v. Woodmont Country Club, 191 So. 3d 475 (Fla. 4th

DCA 2016)PCA - Affirm PCA Ciklin Warner Gerber No Yes

Adam J. Steinberg, The Law Offices of Adam J. Steinberg,

P.A.

4DCA 4D14-3593Boca Bayou v. Fla. Ins. Guar. Ass'n., - So. 3d - (Fla. 4th DCA

2016)PCA - Affirm PCA Damoorgian Forst

Perlman (Circuit Judge)

Yes (Kuntz) YesRonald E. D'Anna and Kristin J. Mentzer, McClosky, D'Anna &

Dieterle, LLP

4DCA 4D15-1161Miller v. Wells Fargo Bank, N.A., - So. 3d - (Fla. 4th DCA

2016)Opinion Per Curiam Gross Taylor Forst No

Yes (Confession of Error Filed)

Brian Korte and Scott J. Wortman, Korte & Wortman,

P.A.

4DCA 4D15-236 MDVIP v. Beber, et alOrder - Certiorari

Denied After BriefingPer Curiam Stevenson May Klingensmith No Yes Karen Terry, Searcy Denny

4DCA 4D15-1668Ricketts v. JPMorgan Chase Bank, N.A., - So. 3d - (Fla. 4th

DCA 2016)PCA - Affirm PCA Damoorgian Levine Forst No Yes

Bruce K. Herman, The Herman Law Group, P.A.

4DCA 4D15-1389 Vasserman v. Wells Fargo Bank, - So. 3d - (Fla. 4th DCA 2016) PCA - Affirm PCA Ciklin Levine Forst No YesMark L. Pomeranz, Pomeranz &

Associates, P.A.

4DCA 4D15-1704Seminole Tribe of Florida v. Schinneller, - So. 3d - (Fla. 4th DCA

2016)Opinion May Warner May Conner No Yes

Jonathan J. Luca, Muench & Luca, PLLC


7



5DCA 5D10-2959Woodhouse v. Flagstar Bank, FSB , 72 So. 3d 773 (Fla. 5th DCA

2011)PCA - Affirm PCA Torpy Lawson Evander No No

Jon B. Lindeman, Jr., Carlos M. Ferreyros, Carlos D. Grande, and Jennifer N. Hernandez, Advocate Law Groups of

Florida, P.A.5DCA 5D11-2400 Hill v. Fifth Third Bank , 88 So. 3d 173 (Fla. 5th DCA 2012) PCA - Affirm PCA Sawaya Lawson Evander No No Pro Se

5DCA 5D11-2408JP Morgan Chase Bank, N.A. v. Gaines , 88 So. 3d 173 (Fla. 5th

DCA 2012)PCA - Affirm PCA Orfinger Griffin Evander Yes (Kuntz) Yes

Tanner Andrews, Tanner Andrews, P.A.

5DCA 5D11-2729Travers v. HSBC Bank USA, N.A. , 91 So. 3d 154 (Fla. 5th

DCA 2012)PCA - Affirm PCA Monaco Torpy Evander No Yes

Kelly A. Greene, Kelly A. Greene, P.A.

5DCA 5D12-1021 Malugen v. Mortgage Elec. , 106 So. 3d 948 (Fla. 5th DCA 2013) PCA - Affirm PCA Orfinger Palmer Berger No No Lora S. Scott

5DCA 5D13-1468Schwartz v. JP Morgan Chase Bank , 134 So. 3d 964 (Fla. 5th

DCA 2014)PCA - Affirm PCA Palmer Lawson Berger No Yes Kelley A. Bosecker

5DCA 5D13-161Seegobin v. JPMorgan Chase Bank, N.A., 145 So. 3d 863 (Fla. 5th

DCA 2014)PCA - Affirm PCA Sawaya Orfinger C.M. Harris No Yes

Melanie Branch and Ryan Ghantous, Kaufman, Englett

5DCA 5D12-4212Beck v. Flagstar Bank, FSB , 130 So. 3d 233 (Fla. 5th DCA

2013)PCA - Affirm PCA Torpy Lawson Berger No Yes Kelley A. Bosecker

5DCA 5D13-197Mengel v. Chase Home Finance, LLC, 162 So. 3d 1036 (Fla. 5th

DCA 2014)PCA - Affirm PCA Orfinger Berger Edwards No No Pro Se

5DCA 5D14-824 Nascimiento v. Martin C. Boire, P.A., et alOrder - Certiorari

Denied After BriefingOrder Unsigned Unsigned Unsigned No Yes



P.A.

5DCA 5D14-1732Becker v. University of Central Florida, 181 So. 3d 504 (Fla. 5th

DCA 2015)PCA - Affirm PCA Orfinger Cohen Edwards Yes (Kuntz) Yes

Andrea Flynn Mogensen, Law Office of Andrea Flynn

Mogensen, P.A.

5DCA 5D14-2951Knight News, Inc. v. University of Central Florida, - So. 3D - (Fla.

5th DCA 2016)Opinion Evander Lawson Evander Edwards Yes (Kuntz) Yes

Justin S. Hemlepp, J.S. Hemlepp, P.A.; and Robert Rivas, Sachs

Sax Caplan, P.L.

5DCA 5D15-0037 Nascimiento v. Martin C. Boire, P.A., et al , TBD TBD TBD TBD TBD TBD Yes



P.A.

5DCA 5D15-3557 Alva v. Fidelity Bank of Florida Settled - After Briefing - - - - No YesJoshua M. Sachs, Henderson,

Sachs, P.A.

5DCA 5D15-3809 Orlando Heart Specialists v. Arora, et al , TBD TBD TBD TBD TBD No Yes

Eric Lee, Lee & Amtzis, P.L.; and Stephen D. Milbrath, Allen,

Dyer, Doppelt, Milbrath & Gilchrist, P.A.

5DCA 5D15-4543 Nascimiento v. Martin C. Boire, P.A., et al , TBD TBD TBD TBD TBD No Yes



P.A.

5DCA 5D16-0993 Knight News, Inc. v. University of Central Florida, TBD TBD TBD TBD TBD No JointlyJustin S. Hemlepp, J.S. Hemlepp,

P.A.


8

Case No.Case Name (Not Intended To Conform To

Bluebook)Jurisdiction/Merits Author Concur Dissent Oral Argument

Responsible for Briefing

Role Opposing Counsel

SC08-1238Am. Mar. Officers Union v. Merriken , 993 So. 2d 510

(Fla. Sept. 18, 2008)Jurisdiction

Order Declining Jurisdiction

Wells, Anstead, Pariente, Lewis,

CanteroNone No Yes

Represented Petitioners

William J. Brown, William J. Brown, P.A.; and Robert N. Harris, Robert N. Harris,

P.A.

SC10-347Fla. Ins. Guar. Ass'n v. Devon Neighborhood Ass'n, Inc .,

43 So. 3d 44 (Fla. Sep. 22, 2010)Jurisdiction

Order Accepting Jurisdiction

Pariente, Lewis, Labarga, Perry

Canady, Quince, Polston

No YesRepresented Petitioners

Daniel S. Rosenbaum, John M. Siracusa, Richard C. Valuntas and Mark G. Keegan, Rosenbaum Mollengarden

Janssen and Siracusa, PLLC

SC11-1448Washington Mut. Bank v. Jagodinski , 86 So. 3d 1115

(Fla. Mar. 9, 2012)Jurisdiction


Canady, Quince, Polston, Labarga,

PerryNone No Yes


Douglas L. Smith and Michael J. Hauversburk, Burke Blue Hutchison

Walters & Smith, P.A

SC11-1805, SC11-1807

Arbor E&T, LLC v. Alexis, 90 So. 3d 274 (Fla. Apr. 27, 2012)

JurisdictionOrder Declining

Jurisdiction

Canady, Pariente, Lewis, Labarga,

PerryNone No Yes


Matthew Seth Sarelson, Sarelson Law Firm; and Max M. Nelson

SC12-640Beaulieu v. JPMorgan Chase Bank, N.A. (Fla. Dec. 31,

2012)Jurisdiction


Polston, Pariente, Lewis, Quince,

CanadyNone No Yes

Represented Respondent

Garry W. Johnson and Bruce K. Herman, 511 Law, P.A.

SC13-423Florida Insurance Guaranty Association v. Karelas, 123

So. 3d 1146 (Fla. Sept. 23, 2013)Jurisdiction


Polston, Pariente, Lewis, Quince,

CanadyNone No N/A

Represented Amicus (Notice of Intent to

File Amicus -Jurisdiction Declined,

No Brief)

Marlene S. Reiss; and Kenneth B. Schurr

SC14-1120Al-Saleh v. Sargeant, 157 So. 3d 1040 (Fla. Nov. 17,

2014)Jurisdiction


Labarga, Pariente, Lewis, Quince,

CanadyNone No N/A



No Brief)

Roger S. Kobert and Marc C. Pugliese, Rafferty, Kobert, Tenenholtz, Bounds & Hess, P.A.; Christopher M. Kise, Foley &

Lardner LLP; and Raoul G. Cantero, David P. Draigh, and Laura M.

Reich, White & Case LLP

SC15-236City of Hollywood v. Arem, 168 So. 3d 224 (Fla. Apr.

13, 2015)Jurisdiction


Labarga, Pariente, Lewis, Quince,

PerryNone No N/A



No Brief)

Jason T. Forman, Jason T. Forman, P.A

SC14-2268Nascimiento v. Martin C. Boire, P.A., 182 So. 3d 634

(Fla. Oct. 8, 2015)Jurisdiction


Labarga, Quince, Canady, Polston,

PerryNone No Yes

Represented Respondents

Cesar J. Dominguez, Dominguez & Associates, P.A.; and Theresa B.

Edwards and June M. Clarkson, Edwards & Clarkson, P.A.

SC10-1362 Roberts v. Brown , 43 So. 3d 673 (Fla. 2010) Merits Per Curiam Quince (written)

Polston concurred in

part and dissented in part

No PartiallyRepresented Respondent

John S. Mills, The Mills Firm; Michael G. Tanner and Thomas E. Bishop, Tanner

Bishop; C.B. Upton, Fla. Dep.'t of State; Mark Herron and Robert J. Telfer,

III, Messer, Caparello and Self, P.A.; Ronald G. Meyer, Jennifer S. Blohm, and Lynn C. Hearn, Meyer, Brooks, Demma and Blohm, P.A.;

and Stephen S. Dobson, III, Dobson, Davis, and Smith

SC09-751 Osborne v. Dumoulin , 55 So. 3d 577 (Fla. 2011) Merits CanadyLabarga, Polston, Pariente, Lewis, Quince, Perry

None Yes (Scott) PartiallyRepresented Respondent

Leslie S. Osborne, Trustee, Rappaport, Osborne and Rappaport, PL

SC10-347Fla. Ins. Guar. Ass'n v. Devon Neighborhood Ass'n , 67

So. 3d 187 (Fla. 2011)Merits Labarga

Canady, Pariente, Lewis, Quince, Polston, Perry

None Yes (Kuntz) YesRepresented Petitioners

Daniel S. Rosenbaum, John M. Siracusa, Richard C. Valuntas and Mark G. Keegan, Rosenbaum Mollengarden

Janssen and Siracusa, PLLC


9

Case No.Case Name (Not Intended To Conform To

Bluebook)Jurisdiction/Merits Author Concur Dissent Oral Argument

Responsible for Briefing

Role Opposing Counsel

SC14-1814Stephens v. Citibank , N.A., 157 So. 3d 1048 (Fla.

2015)Merits Order

Pariente, Quince, Canady, Polston,

PerryNone No Yes

Represented Respondent

(Transferred from First District)

Daniel W. Uhlfelder


10

Case Merits/PetitionOral

ArgumentResponsible for

BriefingRole

Frantz v. Walled , 134 S. Ct. 380 (2013) Jurisdiction/Respondent - Waived Represented RespondentExecutive Benefits Ins. Agency v. Arkison , -

U.S. -, 134 S. Ct. 2165 (2014)Merits/Amicus Yes (Other) Yes Represented Amicus

Gables Insurance Recovery v. Blue Cross and Blue Shield of Florida , Case No. 16-64

Jurisdiction/Respondent - Yes Represent Respondent


Jeffrey T. Kuntz

Part 1: Articles published during my service as a Judge on the Fourth District Court of Appeal. No article was intentionally excluded. However, I was unable to access certain articles.

Part 2: Articles published during my time in private practice. No article was intentionally excluded. However, I was unable to access certain articles.

Exhibit C

Jeffrey Kuntz

$7.1M in Attorney Fees Gone: South Florida Court Nixes Award Over Expert Testimony

Broward Daily Business Review

March 4, 2022 Friday

Copyright 2022 Copyright Holder for ALM Media Properties, LLC

Section: Pg. A1; Vol. 96; No. 176

Length: 639 words

Byline: Michael A. Mora

Body

Bad news for the client of three South Florida attorneys.Florida's Fourth District Court of Appeal reversed and remanded a Broward Circuit Court ruling that had awarded several million dollars in attorney fees.The fees would have gone to the lawyers representing the family of a man whose death was attributed to tobacco products from defendant Philip Morris USA Inc.

Meland Budwick Fort Lauderdale partner Meaghan Murphy, who is not involved in the matter, said the takeaway for attorneys is not to relax just because they have a highly qualified expert."You need to make sure you understand not only your expert opinion, but [that] how they got there is based on a methodology that can actually be articulated," Murphy said.KELLEY UUSTAL, LINK & ROCKENBACH

This was the fifth time the case had gone before the Fourth DCA.A jury originally found in favor of James Naugle, as personal representative of Lucinda Naugle, as to compensatory and punitive damages.However, the appellate court reversed a $300 million damage award, and later, a jury in the trial court returned a second verdict for more than $11 million.

Then, Naugle moved for attorney fees and costs based on a proposal for settlement under Section 768.79 of the Florida Statutes.Naugle was represented by South Florida attorneys, Kara Link and Daniel M. Schwarz, partners at Link & Rockenbach, and John Uustal, a partner at Kelley Uustal, who did not respond to a request for comment.Phillip Morris represented by attorneys Andrew S. Brenner and Ryan B. Witte of Boies Schiller & Flexner in Miami then moved to exclude a retired circuit court judge's expert testimony as a fee witness.Phillip Morris argued that Broward Circuit Chief Judge Jack Tuter should have precluded the expert's testimony. They claimed the fee expert revealed that he relied on factors that Florida Patient's Compensation Fund v. Rowe precluded, and that other Florida law did not recognize.For instance, the fee expert testified that "the 'extraordinary' time and labor devoted to the case impacted his determination of the hourly rates Naugle's attorneys charged," according to the opinion.

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Page 2 of 2$7.1M in Attorney Fees Gone: South Florida Court Nixes Award Over Expert Testimony

Jeffrey Kuntz

Therefore, Phillip Morris argued that without relying on proper factors, the expert's testimony was neither supported nor based on a reliable methodology, according to the appellate opinion. As a result, the expert was not qualified to testify at the fee hearing under the standards set forth in Daubert v. Merrell Dow Pharmaceuticals.But Tuter awarded Naugle's lawyers $5.3 million in attorney fees, excluding prejudgment interest and later assessed nearly $1.8 million in prejudgment interest against Phillip Morris.

Now, Fourth DCA Judges Jeffrey T. Kuntz, Spencer D. Levine and Mark W. Klingensmith ruled that Tuter erred when he denied Phillip Morris' motion to exclude the testimony of Naugle's fee expert.

The appellate judges ruled that Daubert applied to expert testimony on attorney fees, as section 90.702, Florida Statutes (2019), does not offer any basis to decide otherwise.The court partially agreed with Naugle that the procedure followed by the gatekeeper can vary during a bench trial; and that "a judge as finder of fact is presumed to have disregarded any inadmissible evidence or improper argument."However, the appellate judges noted that even with a "relaxed approach," at some point, Tuter must have determined whether the expert testimony was admissible. In this instance, the panel found the expert a retired judge "had a lifetime of experience," but had not provided specific case law to support his claims, only to say his "theory" had "no case law on it."And the Third DCA noted that the record led it to conclude the trial court had not ignored the "inadmissible testimony."

Michael A. Mora covers litigation and is based in South Florida. You can contact him by email: [email protected]

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5/11/22, 12:31 PM $37M verdict reversed after lawyer calls makers of tobacco 'soulless enterprise of death'

https://www.abajournal.com/news/article/37m-verdict-reversed-after-lawyer-calls-tobacco-makers-a-soulless-enterprise-of-death 1/2

Home Daily News $37M verdict reversed after lawyer calls…

TRIALS & LITIGATION

$37M verdict reversed after lawyer calls makers of tobacco'soulless enterprise of death'BY DEBRA CASSENS WEISS

JULY 8, 2021, 3:31 PM CDT

Image from Shutterstock.

A lawyer’s literary references and descriptive comments in closing arguments hasdoomed a $37 million verdict obtained against two tobacco companies, the R.J. ReynoldsTobacco Co. and Philip Morris USA Inc.

In a June 30 opinion, the Florida Fourth District Court of Appeal reversed a $37 millionverdict awarded to widower Richard Mahfuz, whose wife died of lung cancer.

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5/11/22, 12:31 PM $37M verdict reversed after lawyer calls makers of tobacco 'soulless enterprise of death'

https://www.abajournal.com/news/article/37m-verdict-reversed-after-lawyer-calls-tobacco-makers-a-soulless-enterprise-of-death 2/2

Law360, the Daily Business Review and Bloomberg Law have coverage of the decisionby Judge Jeffrey T. Kuntz.

The improper argument included references to George Orwell’s dystopiannovel 1984 and Oscar Wilde’s book The Picture of Dorian Gray.

Law360 identified the plaintiffs lawyer who made the improper comment as Scott P.Schlesinger of the Schlesinger Law Offices. The appeals court said the counselimproperly:

• Called the R.J. Reynolds Tobacco Co. and Philip Morris USA Inc. a “soulless enterpriseof death.”

• Described Mahfuz as a good guy “trying to overcome Big Brother.” The counsel thenread a passage from 1984 in which fictional character Winston was about to be tortured.Winston was told: “You must stop imagining that posterity will vindicate you, Winston.Posterity will never hear you. You’ll be lifted clean out of the stream of history.” Thecounsel then asked jurors to make sure that Mahfuz’s wife is not forgotten.

• Compared the tobacco companies to Wilde’s Dorian Gray character, who looks in amirror and sees things for what they really are. “He’s able to see inside his own self, andhe sees that he’s rotten,” the counsel said. He urged jurors to see tobacco companies inthe same light, for what they really are, “because they are rotten inside.”

• Told jurors not to “lose sight” of “the evil that men do. … The conduct of theseindividuals lives on. … Horrors leave shadows, especially carcinogenic horrors.”

A concurring opinion by Judge Robert M. Gross said reversal is required by caselaw, buthe thinks the Florida cases “inappropriately deter metaphorical speech.”

Quoting Orwell, Gross said the caselaw encourages “euphemism, question-begging andsheer cloudy vagueness” with imprecise words that “fall upon the facts like soft snow,blurring the outlines and covering up all the details.”

For his part, Gross found the 1984 reference to be “weak and convoluted, hardly the typeof argument that would inflame the jurors and cause them to abandon all reason inreturning a verdict.”

Kuntz’s opinion didn’t name Schlesinger as the offending lawyer, but he did refer toanother appellate opinion finding the 1984 reference to be improper. That opinion saidSchlesinger or his firm had made “improper inflammatory closing arguments appealing topassion by trial counsel” in several cases.

https://www.law360.com/articles/1399146

https://www.law.com/dailybusinessreview/2021/07/01/weak-and-convoluted-broward-lawyers-improper-closing-leads-to-37m-appellate-reversal-as-trend-emerges/

https://news.bloomberglaw.com/business-and-practice/george-orwell-oscar-wilde-help-topple-37-million-tobacco-award

https://www.goodreads.com/quotes/250854-the-evil-that-men-do-lives-after-them-the-good

https://law.justia.com/cases/florida/fourth-district-court-of-appeal/2021/18-2880.html

Jeffrey Kuntz

'Weak and Convoluted': Broward Lawyer's Improper Closing Leads to $37 Million Appellate Reversal as Trend Emerges


July 6, 2021 Tuesday

Copyright 2021 ALM Media Properties, LLC All Rights Reserved Further duplication without permission is prohibited


Length: 730 words

Byline: Michael A. Mora

Body

A state appellate panel overturned a lower court ruling in which a jury had returned a multimillion-dollar verdict against three tobacco companies.

The ruling, by Fourth DCA Judges Jeffrey T. Kuntz, Edward L. Artau and Robert M. Gross, is a cautionary tale, as it suggests judges are becoming less receptive to overzealous comments directed at tobacco companies in the course of litigation.

However, one of the judges, Gross, pointed out in a special concurring opinion that the appellate court inappropriately deters metaphorical speech.

"In the Engle cases, this court has lost sight of the fact that the cases involve punitive damages and facts egregious enough to justify their imposition," Gross wrote. "Described as 'quasi-criminal,' punitive damages operate as 'private fines' intended to punish the defendant and to deter future wrongdoing. A jury's assessment of the extent of a plaintiff's injury is essentially a factual determination, whereas its imposition of punitive damages is an expression of its moral condemnation." 'SOULLESS ENTERPRISE'

But the Fourth DCA largely took issue with comments that plaintiffs counsel made during closing arguments to "inflame the jury."

Plaintiffs counsel Jonathan Gdanski and Scott P. Schlesinger, partners at Schlesinger Law Offices in Fort Lauderdale, and Celene Humphries, a partner at Brannock Humphries & Berman in Tampa, handled the trial on behalf of Richard Mahfuz and the estate of Mahfuz's deceased wife.

The ruling does not identify the lawyer who delivered closing arguments at trial.

But among the inappropriate statements are accusations that each of the defendants-R.J. Reynolds Tobacco Co., Philip Morris USA, and Lorillard Tobacco Co.-was a "soulless enterprise of death" and was "rotten to the core," according to the opinion.

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Page 2 of 2'Weak and Convoluted': Broward Lawyer's Improper Closing Leads to $37 Million Appellate Reversal as Trend

Emerges

Jeffrey Kuntz

Val Leppert, a partner at King & Spalding in Atlanta, one of the lawyers who represented the companies, declined to comment.

The state appellate court also took issue with Mahfuz's counsel's closing argument in which one of his attorneys read a passage from the George Orwell novel "1984," and compared the tobacco companies to the "totalitarian state" in the dystopian novel.

In the opinion, the Fourth DCA cited comments that it previously disapproved in R.J. Reynolds Tobacco v. Calloway. The appellate court said Mahfuz's counsel equated the tobacco companies to criminals that kill their customers for money.

Schlesinger, who is among the lawyers who represented Mahfuz, did not immediately respond to a request seeking comment.

Referring to the comments from "1984" that equated the tobacco companies with the Big Brother villain in Orwell's work, the Fourth DCA wrote that the passage "had no connection to the evidence."

The court also noted it had addressed the "identical passage" that plaintiff's counsel had recited to the jury in R.J. Reynolds Tobacco v. Kaplan, which was ruled improper in that case.

The state appellate court also referenced Philip Morris USA v. Tullo, in which plaintiff's counsel compared Philip Morris tobacco products to heroin and cocaine, and Cohen v. Philip Morris USA, in which the attorneys equated the companies to a criminal that killed the plaintiff for money. While both statements were deemed improper, the verdict was not overturned in either case.

And that was consistent with the result in Kaplan. In that case, the Fourth DCA affirmed the lower court ruling because the "verdict returned by the jury in each phase was far less than requested by plaintiff's counsel." In that 2019 case, the jury awarded the plaintiff, Myron Kaplan, about 25% of what his counsel sought, delivering a $3 million damages award.

Now, the Fourth DCA has reversed the Broward Circuit Court's $37 million jury award against the tobacco companies and remanded the case for a new trial.

However, not all judges on the Fourth DCA thought the statements by Mahfuz's counsel inflamed the jury.

"For what it is worth, I find the '1984' literary reference to be weak and convoluted, hardly the type of argument that would inflame the jurors, and cause them to abandon all reason in returning a verdict," Gross wrote in his concurrence. "Our recent closing argument jurisprudence disrespects the common sense and intelligence of juries, which is the bedrock of the jury system."

Michael A. Mora primarily covers litigation in South Florida. You can contact him by email: [email protected]

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Jeffrey Kuntz

Broward Judge Acted as '7th Juror,' Appeals Court Suggests Before Reversal


March 12, 2021 Friday



Length: 892 words

Byline: Raychel Lean

Body

A jury verdict that had been reduced by more than 80% is now back in play after Florida's Fourth District Court of Appeal on Wednesday found a trial judge made a mistake by lowering it.

It's an appeal that highlights the extent of a jury's decision-making power, because although the trial judge was concerned about the logic behind their verdict, those concerns weren't enough to disregard it.

"While we understand the judge had questions about the jurors' verdict, those questions did not allow the judge to serve as the seventh and ultimate juror," Wednesday's ruling said. "Fernalld [the plaintiff] asked the jury to award him hundreds of thousands of dollars on his defamation claim, and the jury did so."

Fourth DCA Judge Jeffrey Kuntz wrote the ruling, which instructed Broward Circuit Judge David A. Haimes to reinstate a $550,000 jury verdict. Kuntz was backed by appellate Judges Jonathan Gerber and Alan Forst.

The verdict came from an employment discrimination lawsuit filed by Brian Fernalld, who alleged he was wrongly fired because of his age and accused defendant Laura Noddin of defaming him.

The plaintiff had asked for $2.1 million in back pay and $1.2 million in future losses. He testified he had contemplated suicide because he "didn't know what to do" about his finances, according to the opinion.

Broward County jurors didn't find Fernalld's former employer ABB Inc. had fired him because of his age, but they did hit Noddin with a $550,000 defamation verdict, finding she had damaged his business and reputation.

Noddin had also fired back with a civil battery claim against Fernalld, but jurors found she had failed to prove her case.

That $550,000 award seemed a bit much to Haimes, who chopped the verdict to $100,000, reasoning it was "grossly excessive," according to Wednesday's ruling.

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Page 2 of 3Broward Judge Acted as '7th Juror,' Appeals Court Suggests Before Reversal

Jeffrey Kuntz

"I think it's - it's not reasonably related to the damages proved and the injuries suffered," Haimes said, according to hearing transcripts quoted in the opinion. "And so I just don't see how it's logical. And you look at the different factors. And so I think it's indicative of passion by the jury, even based on a lot of the questions that they had asked during the trial."

The Fourth DCA's opinion said Haimes noted the plaintiff never sought professional help for mental or physical problem linked to the defamation, and found his testimony about depression "all pertain[ed] to him losing his job."

Haimes made that decision during a hearing on Noddin's motion for remittur, after which he said he didn't understand how jurors landed on $500,000. He also raised concerns about inconsistencies in testimony, according to Wednesday's opinion.

"The court's first thought when the $550,000 verdict came out was that it was 'excessive' and 'somewhat punitive' because the jurors seemed to be trying to 'send a message that they didn't like it' and that they did not believe Ms. Noddin," Kuntz wrote

Noddin had argued the verdict was "clearly indicative of prejudice, passion, or corruption on the part of the trier of fact," and pointed to a post-verdict comment from Haimes that it was "[c]ertainly not any kind of verdict [the court] would have ever guessed."

But the Fourth DCA saw the case differently.

On appeal, the panel had to decide whether the verdict was excessive by considering multiple factors: whether the award indicated prejudice, passion or corruption; whether jurors ignored the evidence or misconceived the merits of the case; whether jurors improperly weighed damages; and whether the verdict made logical sense.

But although Haimes had "misgivings" about the evidence and verdict, the appellate panel found they were supported by "competent substantial evidence."

"He [Fernalld] presented evidence that he was depressed, suicidal, in financial distress and unemployed. He also presented evidence suggesting the defamatory statement was transmitted to each of ABB's 50 employees and people outside the company," Kuntz wrote. "Consistent with the requested amount and the jury's interpretation of the evidence, the jury awarded Fernalld $550,000 on his defamation claim. The court erred when it substituted its interpretation for the plausible interpretation accepted by the jury."

VERDICTS 'NEED TO BE HONORED'

It was good news for Chris Kleppin of The Kleppin Firm in Plantation, who represents Fernalld.

"Thankfully, the appellate court decided that jury determinations here in the state of Florida are significant and need to be honored, unless the other side can truly show that there is evidence that the statutory factors in the remittitur statute would require that it be lowered," Kleppin said.

The opinion reinforced how important juries are, in Kleppin's eyes.

"There are so few cases that are now being tried to juries. There were even a year ago, but of course, now we've had a whole year without jury trials because of COVID," Kleppin said. "And rulings like this one really bring home just how important the jury system is to our system of justice in resolving civil disputes among the citizenry."

Anisley Tarragona of BT Law Group in Miami and Pedro J. Torres-Diaz of Jackson Lewis in Miami represent Laura Noddin and did not immediately respond to a request for comment.

Page 3 of 3Broward Judge Acted as '7th Juror,' Appeals Court Suggests Before Reversal

Jeffrey Kuntz

Raychel Lean is ALM's Florida bureau chief, overseeing the Daily Business Review. Email her at [email protected] or follow her on Twitter via @raychellean.

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Jeffrey Kuntz

$3M South Florida Tobacco Verdict Survives Challenge, Ignites Conflict With First DCA


February 27, 2020 Thursday



Length: 778 words


Body

A woman who blamed R.J. Reynolds Tobacco Co. for her husband's lung cancer death will keep a $3 million jury award after Florida's Fourth District Court of Appeal declined to order a new trial.

Jacqueline Burgess sought compensation on behalf of her husband, Johnny, who died at 59 in 1993.

But her case tested the limits of detrimental reliance, as it raised questions about the extent to which a plaintiff must show that a tobacco company misled a smoker.

It also certified a conflict with the First DCA since the majority relied on the type of evidence that the other court found insufficient.

At issue: whether it's enough for jurors to deduce that a smoker relied to their detriment on claims made by a tobacco company, based on the smoker's history and the defendant's advertising campaigns-or whether direct evidence is needed.

What happened?

Johnny Burgess began smoking unfiltered Pall Mall cigarettes at 14, but eventually switched to Winstons, believing its filters were safer, according to testimony from friends.

The plaintiff also recalled her husband once sliced open a filter to reveal "a lot of brownish-looking stuff," according to the opinion, and remarked, "See all this stuff that's supposed to be going in me is in the filter. The filter is catching it."

Jurors found R.J. Reynolds liable for concealment and conspiracy but awarded no punitive damages. They decided Burgess was 20% at fault.

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Page 2 of 3$3M South Florida Tobacco Verdict Survives Challenge, Ignites Conflict With First DCA

Jeffrey Kuntz

The defendant contested the award, arguing St. Lucie Circuit Judge Larry Schack shouldn't have denied its request for a directed verdict and its request that jurors find Burgess relied upon a particular statement that concealed information about the dangers of cigarettes.

But the Fourth DCA disagreed.

"Mr. Burgess did not need to prove that he relied on any specific statement from the tobacco industry," the opinion said. "Because the evidence showed that the tobacco industry delivered a fraudulent message to the smoking public, it was 'immaterial whether it passe[d] through a direct or circuitous channel in reaching' Mr. Burgess."

But in R.J. Reynolds v. Prentice, the First DCA held that a trial court should have allowed jury instructions requiring exactly that. Likewise, in R.J. Reynolds v. Whitmire, that court found that in order for jurors in infer that a smoker relied to their detriment on a tobacco company's claims, there must be circumstantial evidence that establishes reliance, "and this cannot be shown through a mere presentation of general evidence of the plaintiff's life and behavior."

Even if personalized evidence was necessary, the majority panel found it was enough that the defendant "aggressively promoted" filters that changed color with smoke exposure, when in fact they did nothing.

But the ruling wasn't unanimous.

Fourth DCA Judge Jeffrey Kuntz said he would have reversed the $3 million award. He pointed to the Florida Supreme Court's 2015 explanation that Engle progeny plaintiffs "must certainly prove detrimental reliance in order to prevail on their fraudulent concealment claims" in Hess. v. Philip Morris USA Inc.

"There was no evidence that Mr. Burgess relied on anything said or done by the tobacco companies," Kuntz wrote. "Nor was there testimony that Mr. Burgess ever even saw a misleading statement."

Agreeing that circumstantial evidence can establish reliance, Kuntz stressed that "there must be something to show Mr. Burgess acted differently because of the tobacco companies' actions."

Kuntz reasoned that although Burgess reportedly watched "The Flintstones," during which the defendant often ran advertisements, there was no evidence he actually saw one. Nor was there evidence that Burgess heard directly from R.J. Reynolds that its filters were safer-instead it appears he heard that from friends.

Kuntz also acknowledged that the first Engle progeny case the Fourth DCA considered, R.J. Reynolds v. Brown, involved a defendant granted a directed verdict on similar claims.

"That judge got it right, and so should we," Kuntz wrote.

Fourth DCA Judge Carole Taylor wrote the majority ruling, backed by Judge Cory Ciklin.

David Sales and Daniel Hoffman of David J. Sales in Sarasota, Randy Rosenblum of Dolan Dobrinsky Rosenblum in Miami, and Gary Paige and Cassandra Lombard of Gordon & Partners in Davie represent the plaintiff. The defense attorneys are Marie Boralnd and Troy Fuhrman of Hill Ward Henderson in Tampa, and Jason Burnette and Charles Morse of Jones Day's Atlanta and New York offices. They did not immediately respond to requests for comment.

Raychel Lean reports on South Florida litigation for the Daily Business Review. Send an email to [email protected], or follow her on Twitter via @raychellean.


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Lawsuit Blaming Grape for Winn-Dixie Fall Runs Out of JuiceBroward Daily Business Review

February 21, 2020 Friday



Length: 526 words


Body

The plaintiff slipped in a Winn-Dixie store on what she alleged was a liquid substance but turned out to be a "squished grape." Photo: KAY4YK/Shutterstock.

A premises liability lawsuit brought by a Broward woman, who slipped and fell in a supermarket, has taken a tumble of its own in the Fourth District Court of Appeal, which threw out the case after analyzing evidence about how long a grape had been on the floor.

The ruling demonstrates how a company's training policies and its staff's response to an accident could save businesses from legal trouble.

Plaintiff Brandy T. Oliver sued Winn-Dixie Stores Inc. in 2017, alleging a "liquid substance" sent her into a half-split on the floor. That substance turned out to be a "squished grape," according to the Fourth DCA's ruling, which dissected whether staff knew or should have known the grape was on the floor.

Oliver's lawsuit proved fruitless.

The appellate panel agreed with Broward Circuit Judge Carol-Lisa Phillips' decision to grant Winn-Dixie summary judgment. It found employee and customer testimony particularly compelling.

Staff were trained to "always be on the lookout" for spills and to "immediately address" them, according to the ruling, which noted that surveillance footage showed one employee had walked through the area where Oliver slipped four times in a 30-minute period to stack shelves. That employee testified that he saw a clear, clean and dry floor, though the footage wasn't clear enough to show where he was looking.

Oliver fell 13 minutes after the employee was last there, and a manager responded to the accident within about two minutes, according to the ruling. Upon inspection, staff testified to seeing a squished grape with a single slip mark through its juice.

Crucially, that testimony was consistent with what a customer witness had said about a "very small" substance that "might have been the cause" of Oliver's fall.

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Page 2 of 2Lawsuit Blaming Grape for Winn-Dixie Fall Runs Out of Juice

Jeffrey Kuntz

Nobody, including the plaintiff, saw the rogue grape or any cart tracks or footprints through it before the fall, which the Fourth DCA took to mean that it wasn't on the floor long enough for anyone to have constructive knowledge about it.

According to the opinion, Oliver also acknowledged there was no evidence Winn-Dixie did know about the grape or its surrounding juice. But she argued the trial court shouldn't have given her the burden of proving that at the summary judgment stage.

The appeals court agreed but found that because Winn-Dixie had satisfied its burden of clearing up remaining issues of fact in the case, it became the plaintiff's burden to show that the supermarket should have and could have done something about the potential hazard.

Robin Hazel of Hazel Law in Pembroke Pines represented the plaintiff, while Wesley L. Catri of Catri, Holton, Kessler & Kessler in Fort Lauderdale represented Winn-Dixie. They did not respond to a request for comment by deadline.

Fourth DCA Judge Jeffrey T. Kuntz wrote the ruling, with Judges Cory J. Ciklin and Burton C. Conner concurring.


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Damages Trial to Weigh Sanction Against Broward Lawyer in Legal Malpractice Case; FROM THE COURTS


August 8, 2019 Thursday



Length: 592 words


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Plantation lawyer Stuart B. Yanofsky will face a jury trial to decipher whether damages are warranted over his work on a Broward divorce case, the Fourth District Court of Appeal has ruled.

Yanofsky was accused of failing to let his client Andrew Isaacs know about an adverse ruling until it was too late to appeal, according to the court order.

Isaacs filed a legal malpractice complaint against Yanofsky in 2014, claiming the attorney's alleged negligence meant he'd been hit with a $87,300 bill for excess child support, and that he had lost his 50% stake in a $200,000 property. Isaacs also claimed emotional distress, having spent two nights in jail for failing to comply with that order, according to his attorney.

Yanofsky has denied any wrongdoing.

"I don't believe that there is any evidence, nor is there going to be any evidence, of damage," Yanofsky said.

But so far, two courts have ruled against the Broward lawyer.

The Fourth DCA found the trial court was right to find Yanofsky liable in the malpractice case, and to sanction him by striking his pleadings for failing to file responses to discovery requests by deadline.

Yanofsky produced a case file when he was deposed, but the trial court found that fell short of his obligation to respond to a formal request for documents. He was also publicly reprimanded in 2014 after a judge held him in contempt for failing to respond to Florida Bar inquiries on time.

But in the legal malpractice case, the appellate panel reversed an award of $249,969 for Isaacs. Even though the panel agreed Yanofsky had committed malpractice, it sided with the lawyer's argument that he was entitled to a jury trial on damages that aren't liquidated, despite a default judgment in his former client's favor.

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Damages Trial to Weigh Sanction Against Broward Lawyer in Legal Malpractice Case; FROM THE COURTS

According to the Fourth DCA, in determining damages, the trial court shouldn't have relied solely on Isaacs' affidavita pleading that Yanofsky had moved to strike, alleging it was improper proof.

Issacs retained attorney Ryan D. Gesten, shareholder with George Gesten McDonald in Lake Worth after the lower court hit Yanofsky with sanctions.

Gesten said he was surprised by part of the Fourth DCA's ruling but still believes there was a valid basis for the trial court's final summary judgment, especially since Yanofsky didn't file an affidavit in opposition.

"Despite our surprise that the appellate court reversed the damages portion of the judgment, even though a transcript of the proceedings was unavailable, we are pleased that the appellate court affirmed the sanctions order and liability, and look forward to a jury trial on damages," he said.

After Gesten files a notice of readiness for trial, he said he'll decipher damages with experts, who could recommend more than the original $249,969 Isaacs was awarded. If successful, Gesten might move for attorney fees, which he estimates could reach six figures after a trial.

Yanofsky said he plans to depose Isaacs-a move he said the plaintiff had resisted earlier in the case.

Yanofsky also claimed Isaacs has challenged every effort he'd made to stop representing him-allegedly in an effort to avoid paying child support. Though case files in the divorce case are confidential, Yanofsky is listed as active in the case, despite having moved to withdraw in 2016.

Fourth DCA Judge Jeffrey T. Kuntz wrote the appellate opinion, with Chief Judge Spencer D. Levine and Judge Dorian K. Damoorgian concurring.


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Florida Appellate Judge Suggests Changing the Rule for Reviewing Punitive Damages Fourth District Court of Appeal Judge Jeffrey T. Kuntz wrote that the court had no choice but to deny a petition against adding punitive damages to a corporate negligence case, even though it "provides litigants only the narrowest review of an order that can transform a lawsuit." By Raychel Lean | April 26, 2019 at 02:36 PM Judge Jeffrey T. Kuntz of Florida's Fourth District Court of Appeal. Courtesy photo. Fourth District Court of Appeal Judge Jeffrey T. Kuntz urged the Florida Bar's Appellate Court Rules Committee to reconsider its stance on reviewing punitive damages, after a change to the 1993 statutory law on which it's based. While case law says appellate courts can't review whether lower courts correctly allowed punitive damages, Kuntz suggested defendants should be able to appeal a plaintiff's move to add the extra damages. Kuntz concurred specially with an opinion denying review to Miami event planning company The Event Depot Corp., which sought relief from punitive damages in a corporate negligence lawsuit. Kuntz wrote that case law meant "no" was the only answer the courts could give, even though this "provides litigants only the narrowest review of an order that can transform a lawsuit." The opinion stems from a suit by the parents of Terri Frank, who fell from a "Psycho Swing"

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fairground ride at Hollywood's Seminole Ball Park in 2011. The parents sued the ride's manufacturers, owners and operators for strict negligence and liability. Among those tangled in the nine-count complaint was The Event Depot Corp., which owned and leased out the equipment. The Franks claimed, among other things, that The Event Depot leased the swing without a safety harness, owner's manual or adequate training. The swing's owners denied liability and moved to dismiss. Partway through, the plaintiffs asked to add a claim for punitive damages, reserved for the punishment of outrageous conduct. According to Wednesday's opinion, Broward Circuit Judge Mily R. Powell allowed claims for punitive damages against all the defendants except one — The Event Depot. Months later, the plaintiffs tried again. After a hearing the trial judge agreed, having heard testimony from the swing's creator Robert Murray, who said The Event Depot had shown a "reckless disregard for the health and safety of human life." The Event Depot objected, arguing that the plaintiffs hadn't made a clear case for extra damages. But Wednesday's opinion leaned on a landmark 1995 U.S. Supreme Court case Globe Newspaper Co. v. King, which provided limited scope. According to Globe, appellate courts can review whether a trial judge followed correct procedure surrounding punitive damages but can't review whether there's reasonable evidence supporting punitive damages if all procedural steps were followed. In this case, Judge Powell went by the book, so the appellate court said it had no other route, even though it seemed inclined to offer a wider review. Fourth DCA Judge Alan O. Forst wrote the opinion, backed by Judges Martha Warner and Jeffrey Kuntz. In his concurring opinion, Kuntz noted a sister court, Florida's Third DCA, has found that allowing plaintiffs to tack on punitive damages could be a litigation "game changer," opening defendants up to potentially uninsured losses that would have otherwise been "off limits." That prompted the Third DCA to suggest the Florida Bar change Appellate Procedure 9.130 to allow defendants to appeal plaintiffs' requests to add punitive damages. "I share those concerns," Kuntz wrote. Kuntz also highlighted that Globe based its findings on legislation that's since changed, now more focused on procedural requirements and demanding "clear and convincing evidence of gross negligence or intentional misconduct" for punitive damages. The Globe case came at a time when Florida Statute Section 768.72 gave petitioners the right to be "free of financial discovery, absent a particularized showing." Lawyers for the Frank family, Jonathan Gdanski and David Silverman of Schlesinger Law Offices in Fort Lauderdale, were unavailable before deadline. Counsel to The Event Depot, Eric Morales and Jason Klein of Wood, Smith, Henning & Berman in Miami, did not respond to requests for comment.

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Court Reinstates Judgments Against Nationwide Pools Owners Accused of Scam


April 5, 2019 Friday



Length: 797 words


Body

The Fourth District Court of Appeal Wednesday reinstated consent judgments against the owners of defunct Pompano Beach-based pool construction company Nationwide Pools Inc., sued in 2013 by then-Florida Attorney General Pam Bondi and her legal affairs department for allegedly ripping off customers.

The move reversed the trial court, which had found the defendants had been deprived of their due process rights.

The civil lawsuit alleged deceptive trade practices, accusing a construction company, a contractor, four pool companies and their leadership of misleading customers to close sales and adding 3% surcharges to credit card payments.

The defendants had all assets frozen as the state sought equitable relief, award restitution, civil penalties and attorney fees.

Then-Broward Circuit Judge Michael Gates hit the accused companies with a default final judgment in 2014, finding them liable for failing to answer the complaint. Meanwhile, the individual defendants - Terry Edwards, Keith Stuart, Lynn Stuart and Felicia Mallia - proceeded without lawyers. They opposed Gates' summary judgment and denied the allegations against them.

The defendants agreed to settle the suit in November 2015 with consent judgments, complete with restitution orders and injunctions.

But 17 months later they retained defense lawyers Robyn Sztyndor, Crane Johnstone and Claudia Pastorious, who moved to disqualify Gates over ex parte proceedings. Gates agreed to step down, and the case went to Broward Circuit Judge Carlos Rodriguez.

The defense then asked the court to vacate the consent judgments, arguing Gates had denied them due process. After a three-day hearing featuring live witness testimony, Rodriguez agreed, vacating the judgments and ordering the attorney general's office to return the $23,000 it had collected so far.

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In his February 2018 ruling, Rodriguez found the pro se defendants had requested some of their assets be released so they could hire a lawyer. But Gates told them they had to hire a lawyer to set a hearing to unfreeze their assets, something they couldn't do with their bank accounts frozen.

Rodriguez also found that the defendants hadn't been properly noticed of hearings and proceedings, and remarked Gates made a "serious misstatement" when he said they needed a lawyer to help unfreeze their assets. He also noted that the U.S. Court of Appeals for the 11th Circuit had since declared the underlying Florida statute governing credit card surcharges unconstitutional.

"Certainly, these defendants' testimony that they were misled as to the significance of a finding of liability as to the corporations is credible and believable based on the record," Rodriguez wrote. "Otherwise, why would they argue at every court hearing where they appeared that they were not liable?"

But faced with an appeal from the attorney general, the Fourth DCA has walked that back, ruling that the defendants agreed to the consent judgment and waited 17 months before appealing.

'A MESS OF A CASE'

Sztyndor said she and her team were shocked by the court's decision in what she called "a mess of a case." In Sztyndor's view, the opinion fell back on the consent judgments without addressing how they were reached.

"It gives no deference to Judge Rodriguez, who sat there and watched a 30-hour minitrial," Sztyndor said. "They're basically setting a standard for all of us attorneys out there, which says if you railroad a pro se litigant enough that they finally say 'Uncle' and sign their name to something, it'll stick. They're rewarding misconduct by attorneys."

Sztyndor claims her clients, who she represents pro bono, have a 10th-grade education and felt they'd had no choice but to go along with the consent judgments, having been told they'd otherwise face a $22 million judgment. The asset freeze even left one client homeless, according to Sztyndor, who said the court continued to email him notices he couldn't check.

Sztyndor said she worried the decision had political elements.

"I don't think that has any representative to real justice," Sztyndor said. "You have a bunch of judges up at the Fourth DCA, some of whom are political appointees, and you're asking them to rule against the state of Florida. The reality is there's a political component to this and they don't want to do it."

Florida Attorney General Ashley Moody, Solicitor General Amit Agarwal and Bureau Chief Sarah Shullman represent the state. Spokeswoman Kylie Mason said they're pleased with the court's ruling, but did not comment further.

Fourth DCA Judge Jeffrey T. Kuntz wrote the opinion, with Chief Judge Jonathan D. Gerber and Robert M. Gross concurring.


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12/23/2019 “Get a warrant”—Florida appeals court admonishes cops in two murder cases | Ars Technica

https://arstechnica.com/tech-policy/2018/09/get-a-warrant-florida-appeals-court-admonishes-cops-in-two-murder-cases/ 1/5

WELCOME TO THE SUNSHINE STATE —

“Get a warrant”—Florida appeals court admonishes cops in twomurder casesFourth District appeals court rules unanimously in suspects' favor.

- 9/8/2018, 7:30 AM

Enlarge / A SunCruz Casino ship heads out into the Atlantic Ocean from Port Canaveral for a night of gambling in international waters August 11, 2005 in Cape

Canaveral, Florida.

Mar

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CYRUS FARIVAR

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FURTHER READINGJudge slams FBI for impropercellphone search, stingray use

FURTHER READINGCourt: Locating suspect via stingraydefinitely requires a warrant

A Florida state appellate court has made two recent pro-privacy rulings that take into account alandmark Supreme Court case from earlier this year.

In Florida v. Sylvestre, the District Court of Appeal of the State of Florida, Fourth District, affirmed a lowercourt’s granting of a motion to suppress evidence. In doing so, the court found that the warrantless useof a stingray is unconstitutional.

In the second case, Ferrari v. Florida, the Fourth District reversed a lower court ruling that denied the suppression of cell-site location information(CSLI). This data was specifically at issue in the June 2018 Supreme Court decision, Carpenter v. United States.

Carpenter involved a suspect, Timothy Carpenter, who was accused of leading an armed robbery gang that hit Radio Shack and other cell phone storesin Michigan and Ohio in 2010 and 2011. The government was able to warrantlessly obtain 127 days worth of his CSLI from his mobile provider, whichdetailed precisely where Carpenter had been during that time.The Supreme Court ultimately ruled that when the government seeks to obtain such alarge volume of intimate information, it needs to get a warrant first in most cases.

Taken together, these two cases shed light on how some state appellate courts are starting to think about the ramifications of Carpenter.

A stinging rebuke

In Sylvestre, Florida law enforcement arrested a Fort Lauderdale man, Quinton Sylvestre, on murder androbbery charges. Sylvestre was one of three suspects believed to be involved in the 2013 slaying of aBoca Raton bartender, Rafael Rodriguez.

Investigators sought and obtained a CSLI order, which required Sylvestre’s cell phone company providerto give up real-time records. But that wasn’t enough to figure out precisely where he was, so authorities got a court order to deploy a cell-sitesimulator, better known as a stingray.

As Ars has reported for years, stingrays are in use by both local and federal law enforcement agencies nationwide. The devices determine a targetphone's location by spoofing or simulating a cell tower. Mobile phones in range of the stingray then connect to it and exchange data with the device asthey would with a real cell tower.

Once deployed, stingrays intercept data from the target phone along with information from other phones within the vicinity—up to and including fullcalls and text messages. At times, police have falsely claimed that information gathered from a stingray has instead come from a confidentialinformant.

In Sylvestre, the Fourth District court ruled that a mere court order—showing relevance to an ongoing investigation as opposed to probable cause of acrime—was not good enough.

"Without a warrant, the government cannot: use technology to view information not visible to the naked eye, attach a device to property to monitoryour location, search a cell phone in your possession without a warrant, or obtain real-time location information from the cell carrier," Judge Jeffrey T.Kuntz wrote for the three-judge panel.

"With a cell-site simulator, the government does more than obtain data held by a third party. The government surreptitiously intercepts a signal thatthe user intended to send to a carrier’s cell-site tower or independently pings a cell phone to determine its location. Not only that, a cell-site simulatoralso intercepts the data of other cell phones in the area, including the phones of people not being investigated. If a warrant is required for thegovernment to obtain historical cell-site information voluntarily maintained and in the possession of a third party, we can discern no reason why awarrant would not be required for the more invasive use of a cell-site simulator."

Or, as the judge added in a pithy conclusion: "In other words, ‘Get a warrant.’"

Unless this ruling is taken up by the Florida Supreme Court and successfully appealed, all of the evidence stemming from the location of Sylvestre'sphone inside his own apartment, including three firearms, will be suppressed.

Rough seas

The Ferrari case is equally if not more grizzly. It involves the February 6, 2001 murder of Gus Boulis, a Broward County businessman. As he was drivingsouth along Miami Road from his office one evening, another car suddenly stopped in front of him. A second vehicle, a Jetta, pulled behind the man sothat Boulis was suddenly boxed in. Out of nowhere, a third car, a Mustang, pulled up next to Boulis and fired towards him, killing him.

According to court records, Boulis was the owner of SunCruz Casinos, a "fleet of gambling casino boats," which would sail from Florida to internationalwaters, where they would then invite patrons to gamble. Previously, Florida regulators and federal prosecutors did not take too kindly to thisarrangement, and they prosecuted Boulis under violations of shipping law that forbid foreigners from owning American commercial vessels. (Bouliswas a Greek citizen.)

Authorities eventually struck a deal with him where Boulis would sell the company, pay a $1 million fine, and never work in gambling again. Boulis thentried to find a buyer for his company, which ended up being Adam Kidan and Jack Abramoff, the now-disgraced Washington lobbyist.

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http://www.sun-sentinel.com/local/palm-beach/boca-raton/fl-pn-boca-murder-illegal-cop-search-20180905-story.html

http://arstechnica.com/tech-policy/2013/09/25/meet-the-machines-that-steal-your-phones-data/

http://arstechnica.com/tech-policy/2014/06/19/cops-hid-use-of-phone-tracking-tech-in-court-documents-at-feds-request/

http://arstechnica.com/tech-policy/2014/06/legal-experts-cops-lying-about-cell-tracking-is-a-stupid-thing-to-do/

https://www.4dca.org/Judges/Judge-Jeffrey-T.-Kuntz

https://www.documentcloud.org/documents/4834302-172116-1257-09052018-09310269-I.html#document/p7/a452186

https://en.wikipedia.org/wiki/SunCruz_Casinos_sale

https://en.wikipedia.org/wiki/Adam_Kidan

https://en.wikipedia.org/wiki/Jack_Abramoff

https://arstechnica.com/tech-policy/2018/07/judge-slams-fbi-for-improper-cellphone-search-stingray-use/

https://arstechnica.com/tech-policy/2017/08/court-locating-suspect-via-stingray-definitely-requires-a-warrant/



READER COMMENTS SHARE THIS STORY

CYRUS FARIVAR

Cyrus is a Senior Tech Policy Reporter at Ars Technica, and is also a radio producer and author. His latest book, Habeas Data, about the legal cases over the last 50years that have had an outsized impact on surveillance and privacy law in America, is out now from Melville House. He is based in Oakland, California.

EMAIL [email protected] // TWITTER @cfarivar

Boulis received $23 million from Kidan, but he was owed $20 million more. Kidan, worried that Boulis might retaliate against him, decided to hire"protection." This service was performed by Anthony Ferrari, who touted that he was mafia don John Gotti’s nephew.

Eventually, Boulis was killed. Investigators found that the Jetta and the Mustang were registered to one Anthony Ferrari. Ferrari was eventuallycharged, tried, and convicted of the murder.

As part of the evidence that was used to convict Ferrari back in 2001, investigators obtained CSLI data on his phones. On appeal more recently, Ferrariand his legal team moved to suppress this information.

Prosecutors argued that the evidence stemming from that data should not be suppressed under the "good faith exception to the exclusionary rule"—essentially, a pass if law enforcement had a reasonable assumption that they were following the law as it stood at the time.

The Fourth District did not find this persuasive in its September 5 ruling.

"At that time, no binding decisional law existed determining that CSLI data was not within Fourth Amendment protection and thus exempt from thewarrant requirement," Judge Martha Warner wrote for a unanimous court. "In fact, CSLI data is never mentioned in reported decisions in that timeperiod. When denying Ferrari’s motion to suppress, the trial court relied on our decision in Mitchell v. State, 25 So. 3d 632, 635 (Fla. 4th DCA 2009),which held that a person has no expectation of privacy in historical CSLI. However, that decision was several years after the search, and even in thatopinion, we noted that the case law concerning historical CSLI was unsettled."

In other words, Florida police seemingly guessed that the law was on their side when they didn’t seek a warrant. The detective got a court order for apen register instead of inquiring about CSLI data; requesting a pen register is not the same thing as forcing a phone company to hand over CSLI data.

"Reliance on an inapplicable statute does not constitute objective reasonableness," Judge Warner continued. "The detective was not seeking to install apen register to record telephone numbers. He was seeking historical data and records from the cellular carriers."

The judge concluded by quoting directly from the Carpenter decision, which was authored by Chief Justice John Roberts: “Before compelling a wirelesscarrier to turn over a subscriber’s CSLI, the Government’s obligation is a familiar one—get a warrant."

Ferrari’s conviction was reversed and he will now be tried again. One of his co-conspirators, Anthony “Big Tony” Moscatiello, also was ordered to be re-tried by the Fourth District back in June 2018.

“Before compelling a wireless carrier to turn over a subscriber’sCSLI, the Government’s obligation is a familiar one—get

a warrant."–

https://arstechnica.com/tech-policy/2018/09/get-a-warrant-florida-appeals-court-admonishes-cops-in-two-murder-cases/?comments=1

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https://arstechnica.com/author/cyrus-farivar

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https://www.twitter.com/cfarivar

https://www.4dca.org/Judges/Judge-Martha-C.-Warner

https://www.documentcloud.org/documents/4834303-140464-1708-09052018-08595300-I.html#document/p12/a452219

http://www.sun-sentinel.com/local/broward/fl-sb-boulis-murder-conviction-reversed-20180606-story.html

Bumpy Litigation Ride for Patron Who Lost an Eye at the Fair | Daily Business Review

https://www.law.com/dailybusinessreview/2018/09/06/bumpy-litigation-ride-for-patron-who-lost-an-eye-at-the-fair/?printer-friendly/ 1/5

South Florida Fairgrounds. Photo courtesyof Wikimedia Commons

Bumpy Litigation Ride forPatron Who Lost an Eye at theFairThe Florida Fourth District Court of Appeal reversed a circuit courtdecision that had ruled in favor of plainti� Windley Joseph, who lost use ofhis left eye at the fair in 2008. The court found the South Florida Fair hadlimited liability under Florida’s sovereign immunity and state law forpersonal injury claims.By Zach Schlein | September 06, 2018

Ordinarily, the South Florida Fair is an

ideal spot to take a load o�.

But that was not the case for Windley

Joseph, who lost an eye during an armed

robbery there in 2008.

And Wednesday presented another blow

for Joseph after a state appellate court

capped his potential recovery in his

lawsuit against the fair at $300,000. This

limitation was established after the court

Click to print or Select 'Print' in your browser menu to print this document.

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ruled the fair quali�ed as an

instrumentality of the state and has limited liability under Florida’s sovereign immunity

and state law for personal injury claims.

Here’s the full Fourth DCA opinion:

According to a 2010 lawsuit �led in Palm Beach Circuit Court, Joseph and his two sons

were waiting in line to use the bumper cars when a group of teenagers demanded his

watch and beat him up after he refused to hand it over in February 2008.

Joseph said he lost his right eye in the assault and was left with permanent mental and

physical injuries.



Joseph subsequently �led suit against the South Florida Fair for negligence and alleged

that the fair had failed to provide adequate security for its patrons.

Read Windley Joseph’s lawsuit against the South Florida Fair:

Although the circuit court initially agreed and ruled in Joseph’s favor, an opinion issued

in a Florida appellate court this week overturned that ruling.

The Fourth District Court of Appeal reversed the lower court’s order and instead ruled

in favor of the appellant, the South Florida Fair.

The fair had appealed the case maintaining the circuit court erred in denying its motion

for summary judgment and rebu�ng the argument that limited sovereign

immunity shielded it from tort or personal injury claims.



The trial court initially found “the state did not have su�cient structural power over the

South Florida Fair to render it an instrumentality of the state.”

Writing for a unanimous panel, Judge Je�rey Kuntz disagreed and remanded the case

for further proceedings. Judges Carole Taylor and Dorian Damoorgian concurred.

That’s bad news for Joseph, who will now be limited to no more than $200,000 or

$300,000 in damages from the fair as dictated by Section 768.28 of the Florida Statutes

(http://www.leg.state.�.us/statutes/index.cfm?

App_mode=Display_Statute&Search_String=&URL=0700-

0799/0768/Sections/0768.28.html).

Joseph’s counsel, Marwan Emmet Porter, managing partner at The Porter Law Firm in

Stuart, did not respond to requests for comment by press time.

Carlton Fields Jorden Burt partner Matthew J. Conigliaro, who represented the fair

along with fellow Carlton Fields partner Derek Harris, told the Daily Business Review

that he was pleased with the court’s ruling and what it means for his client moving

forward.

“The law uses the phrase ‘essential governmental purpose,’ and that’s how it

characterizes the role of the fairs. And that’s a historical role in Florida,” he said. “You

can trace the local fairs back a century and the role they played and continue to play in

educating the public on a variety of areas.”

While the door remains open for a rehearing, Conigliaro believes the appellate court

“correctly applied the law to the facts in this case.”

Related stories:

Court Weighs Clerk’s Immunity in Speed Trap Class Challenge(https://www.law.com/dailybusinessreview/almID/1202751756572/court-weighs-clerks-immunity-in-speed-trap-class-challenge/)

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0768/Sections/0768.28.html

https://www.law.com/dailybusinessreview/almID/1202751756572/court-weighs-clerks-immunity-in-speed-trap-class-challenge/



Florida Supreme Court Rules for UCF Athletic Association in Player’s Death(https://www.law.com/dailybusinessreview/almID/1202727826973/�orida-supreme-court-rules-for-ucf-athletic-association-in-players-death/)

Copyright 2018. ALM Media Properties, LLC. All rights reserved.

https://www.law.com/dailybusinessreview/almID/1202727826973/florida-supreme-court-rules-for-ucf-athletic-association-in-players-death/

Cops illegally used cellphone tracker to bust murder suspect, court rules - Sun Sentinel

http://www.sun-sentinel.com/local/palm-beach/boca-raton/fl-pn-boca-murder-illegal-cop-search-20180905-story.html 1/4

I

Cops illegally used cellphone tracker to bustmurder suspect, court rules

By Marc FreemanSouth Florida Sun Sentinel

SEPTEMBER 5, 2018, 7:30 PM

t turns out more than just old-fashioned police work helped detectives make one of three arrests in the

2013 killing of a popular Boca Raton restaurant bartender.

The cops used an ultra-secret device called a “StingRay” that allowed them to track a suspect’s cellphone and get

private information about his whereabouts, according to a state appeals court opinion released Wednesday.

And because they did it without a proper warrant, all of the evidence collected from the Fort Lauderdale

defendant’s residence now can’t be used in the man’s robbery and murder trial, said a panel of three judges with

the Fourth District Court of Appeal.

This undated file photo provided by the U.S. Patent and Trademark Office shows the StingRay II, a cellular site simulator used forsurveillance purposes manufactured by Harris Corporation, of Melbourne, Fla. (AP/U.S. Patent and Trademark Office)

http://www.sun-sentinel.com/sfl-marc-freeman-bio-staff.html#nt=byline

http://articles.sun-sentinel.com/2013-03-25/news/fl-boca-raton-josephines-update-20130325_1_hockey-mask-police-chief-dan-alexander-first-degree-murder

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The decision affirmed an earlier Palm Beach County Circuit Court ruling that the government crossed the line

while investigating the killing of Josephine's Restaurant worker Rafael Rodriguez, 46.

“It’s a big win for us,” said defense attorney Peter Grable, who represents Quinton Redell Sylvestre. “This was

secret government stuff. It’s frightening equipment when you consider what’s inside a smartphone.”

Thanks to the opinion in the Sylvestre case the cloak has been lifted a bit.

This tool largely is a mystery to the public but has been used for years by law enforcement as a “cell-site

simulator” — it basically pretends to be a cellphone tower.

It means an individual’s phone is communicating with police rather than an actual cellphone tower, without the

user’s ever knowing it.

People can be tracked, personal information can be gleaned easily, and privacy interests are threatened,

according to recent U.S. Supreme Court decisions cited by the Florida court.

“Together these cases hold that, without a warrant, the government cannot: use technology to view information

not visible to the naked eye, attach a device to property to monitor your location, search a cell phone in your

possession without a warrant, or obtain real-time location information from the cell carrier,” Judge Jeffrey T.

Kuntz wrote.

“With a cell-site simulator, the government … surreptitiously intercepts a signal that the user intended to send

to a carrier’s cell-site tower or independently pings a cell phone to determine its location,” Kuntz continued.

“Not only that, a cell-site simulator also intercepts the data of other cell phones in the area, including the

phones of people not being investigated.”

It would be allowed if the police first obtained a warrant signed by a judge, based on evidence showing a person

is believed to have committed a crime.



In this case, the Broward Sheriff’s detective did not get a warrant to use the device to track down Sylvestre, then

26.

But investigators did properly obtain a court order allowing the use of real-time cell tower information to locate

Sylvestre’s phone.

That order was based on surveillance video footage showing Sylvestre allegedly participating in the robbery with

two other men. Also, Sylvestre was identified as the seller of a $20,000 ladies’ Chopard watch, records show.

But a sergeant testified that the cell tower information only narrowed the location of the cellphone to a general

area covering several blocks. So the sergeant used the cell-site simulator and got the precise location.

Then, police got a search warrant for Sylvestre’s residence.

Detectives searched the home and “found a black backpack containing three firearms, a mask, ammunition, and

a stun gun,” the appeals court opinion said. It’s not clear if any of those guns were used in the bartender’s

murder.

Once the detectives got the evidence, they tracked Sylvestre’s cellphone and arrested him while he was driving

into Palm Beach County.

Grable, Sylvestre’s lawyer, said he hired a telecommunications expert who helped to uncover the use of the

secret device and fight for the evidence to be thrown out.

“This is an important issue that will affect how the case is tried,” Grable said, adding that prosecutors still have

more evidence to show a jury.

But Grable is pleased that a government tactic has been exposed, and he wonders how individual privacy is

being violated.

“No one knows how much information this technology can get,” he said.

A 2015 report by the U.S. Department of Homeland Security cites the privacy concerns, yet notes the cell-site

simulators “are invaluable law enforcement tools that locate or identify mobile devices during active criminal

investigations.”

Along with Sylvestre, two other Broward men are charged with first-degree murder in the restaurant slaying:

Samuel Magic Walker, 33, of Lauderdale Lakes, and Adalberto Junior Montalvo, 34, of Pompano Beach.

The victim was left to die outside the Federal Highway eatery’s back door when one of the robbers shot him in

the mid-section after robbing him and five other people, police said.

“The successful resolution of this case is a result of outstanding inter-agency cooperation, use of technology,

great crime-scene processing and good-old fashioned police work,” Boca Raton Police Chief Dan Alexander said

http://www.sun-sentinel.com/topic/crime-law-justice/law-enforcement/stingray-tracking-device-PRDCES00072-topic.html



at a news conference announcing the arrests.

[email protected], 561-243-6642 or Twitter @marcjfreeman

Copyright © 2018, Sun Sentinel

This article is related to: Homicide, Trials and Arbitration, Crime, Law Enforcement, Boca Raton, Stingray TrackingDevice, Fort Lauderdale

Missing comments? We’ve turned off comments across Sun Sentinel while we review our commenting platform and consider waysto improve the system. If you purchased points through the Solid Opinion platform and would like a refund, please let us know [email protected].


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This South Florida Ruling Just Made it Harder to Pursue Court Costs When Clients Don't Pay | Daily Business Review

https://www.law.com/dailybusinessreview/2018/07/26/this-south-florida-ruling-just-made-it-harder-to-pursue-court-costs-when-clients-dont-pay/ 1/10

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This South Florida Ruling Just Madeit Harder to Pursue Court Costs WhenClients Don't PayBy Raychel Lean (/author/pro�le/Raychel Lean/) | July 26, 2018 at 10:55 AM

(http://www.almreprints.com)

Photo: LightField Studios/Shutterstock.com

The Fourth District Court of Appeal Wednesday reversed a circuit court

decision to reimburse Steinger, Iscoe & Greene, which had spent more than

$21,000 to prosecute a lien against a former client.

In a ruling(https://drive.google.com/�le/d/1eXrn5HrLRBJhuEQisODc_J7hBkpc4hDo/view)that could mean bad news for attorneys expending resources to collect

debts from litigants they once represented, the Fourth DCA held the �rm

responsible for its own court costs.

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The opinion, which Fourth DCA Judge Je�rey T. Kuntz(https://www.4dca.org/Judges/Judge-Je�rey-T.-Kuntz) authored for

the court, a�rmed St. Lucie Circuit Judge Janet Carney Croom’s �nding(https://drive.google.com/�le/d/1wpXPiVUcVNYnLxrKdR8Jn6kOHgNIXwvK/view)that Steinger, Iscoe & Greene had a valid charging lien and was entitled

to recover $38,570. But when it came to the �rm’s spending to collect on

that lien, the appellant panel would not hold Steinger Iscoe’s client liable.

The litigation stemmed from a disagreement between the �rm and its

clients, Mary and Robert Abt.

The Abts had hired the �rm on a contingency basis to handle a personal

injury case. Their contract would have paid the law �rm an hourly rate of

$650 for attorneys and $100 for paralegals, with a total upper limit of

$100,000. The underlying suit had sought damages from Metro Motors

Ventures Inc., allegedly at fault for a major car accident and injuries. But the

plainti�s changed direction and discharged Steinger, Iscoe & Greene before

that litigation ended.

The �rm imposed a lien, and the trial court retained jurisdiction when

the personal injury case later settled.

Croom found the Abts owed their former lawyers nearly $59,650 —

including the $38,570 lien, plus another nearly $21,080 for the �rm’s

collection e�orts.

“It’s not the attorney fees they incurred in representing Ms. Abt,” said

Steinger, Iscoe & Greene partner Alfred R. Bell(https://www.injurylawyers.com/attorney-alfred-bell/), who teamed

https://www.4dca.org/Judges/Judge-Jeffrey-T.-Kuntz

https://drive.google.com/file/d/1wpXPiVUcVNYnLxrKdR8Jn6kOHgNIXwvK/view

https://www.injurylawyers.com/attorney-alfred-bell/

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Julie Litky-Rubin of Clark, Fountain,La Vista, Prather, Keen & Littky-Rubin, West Palm Beach. Courtesyphoto.

with Sean J. Greene (https://www.injurylawyers.com/partner-sean-greene/) to defend their Port St. Lucie �rm on appeal. “It’s what they were

required to do after that to prove their case.”

Bradford L. Je�erson represented Mary and

Robert Abt with co-counsel Julie Littky-Rubin(https://www.clarkfountain.com/our-team/julie-h-littky-rubin/) of Clark,

Fountain, La Vista, Prather, Keen & Littky-

Rubin in West Palm Beach.

“Whether (the �rm) had spent $1 or

$500,000, the court said, ‘You don’t get

money for the cost of pursuing the lien,’”

Littky-Rubin said.

The Abts’ new lawyers applauded the

decision and said it would help resolve

future disputes between attorneys and their

former clients.

“This shows, in the personal injury context, that whenever an attorney gets

discharged, he or she is not going to be able to recover the cost of having to

pursue a lien,” Littky-Rubin said.

A victory for Steinger, Iscoe & Greene would have suggested attorneys

might then have spared no cost in litigating against former clients, Littky-

Rubin said.

But Steinger, Iscoe & Greene’s Bell sees things di�erently.

“One of the concerns that exists is it encourages someone who doesn’t

want to pay lawyers fees for the work that they did to not cooperate, so that

they can win the battle but not the war,” he said.

Bell worries that the policy might encourage “unneccesary” and “duplicative”

litigation in future cases.

“We’re considering how to proceed,” he said. “There are still issues about

what was done in the case that remain to be resolved by the judge.”

https://www.injurylawyers.com/partner-sean-greene/

https://www.clarkfountain.com/our-team/julie-h-littky-rubin/



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Raychel Lean reports on SouthFlorida litigation for the DailyBusiness Review. Send an email [email protected], or follow her onTwitter via @raychellean.

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Court Revives Malpractice Suit Against Broward Law Firm Over Arbitration Agreement | Daily Business Review

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Court Revives Malpractice SuitAgainst Broward Law Firm OverArbitration AgreementBy Raychel Lean (/author/pro�le/Raychel Lean/) | June 29, 2018 at 02:12 PM


Judge Carole Taylor. Photo: Melanie Bell

A state appellate court has revived a legal malpractice lawsuit �led by a

client who lost a dependency case, ruling an arbitration clause in a retainer

agreement was unenforceable under Florida Bar rules.

Lindsay Owens is suing Katherine L. Corrigan and Fort Lauderdale �rm KLC

Law, seeking damages for the “removal of her children, living in fear and

being forced to move to another jurisdiction,” the complaint said.

Owens faulted Corrigan in her three-count complaint(https://drive.google.com/�le/d/1wBa2sgXPn9Jnp1Wpn3CTIhjmdiX2ra10/view?usp=sharing) for failing to return telephone calls, failing to appropriately




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communicate with her and the court, failing to attend hearings and

disclosing privileged communications. Owens sought damages

for negligence, breach of �duciary duty and vicarious liability.

Broward Circuit Judge David Haimes granted Corrigan’s motion to dismiss(https://drive.google.com/�le/d/1vVg_-XO383HCIvMLJeIGOCXC5nwTH2X-/view?usp=sharing) last August on the

grounds that both parties had agreed in the retainer agreement to arbitrate

any dispute.

“Any controversy, dispute or claim arising out of or relating to our fees,

charges, performance of legal services, obligations re�ected in this letter, or

other aspects of our representation shall be resolved through binding

arbitration in Broward County,” the clause reads.

But Fourth District Court of Appeal Judge Carole Y. Taylor found fault with

that agreement Wednesday.

The agreement was “unenforceable for violating the Rules Regulating the

Florida Bar,” siding with Owens’ current attorney Robert Garven of Coral

Springs, who argued the agreement lacked speci�cs.

“The contract here at issue is di�erent than the garden variety commercial

contract,” Taylor wrote. “Lawyers owe ethical obligations and duties to their

clients that exceed what the common law requires of arm’s length

contracting parties.”

Precise language advising the client to consider seeking counsel from an

independent attorney was necessary but not present in the document

Owens signed, Garven claimed.

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“The Florida Bar rule prohibits lawyers from making an agreement with a

client for mandatory arbitration of fee disputes without advising the client

in writing that they should seek independent counsel,” the ruling states.(https://www.4dca.org/content/download/244172/2149993/�le/172740_1709_06272018_09290264_i.pdf)

Garven said he looks forward to the issue being resolved at trial. He had no

comment on behalf of his client.

He said it’s not unusual to see the courts descend heavily on attorneys

in cases like this.

“As a general rule, the burden is always on the attorney to make the

consumer aware of certain matters as opposed to the burden being on the

consumer to ask, ‘What about this? what about that?’ ” Garven said.

Owens’ appeal also argued the trial court order “ violated her right to due

process by denying her a proper forum for redress of her grievances.”

Judge Robert M. Gross concurred with Taylor’s ruling, but Judge Je�rey T.

Kuntz issued a dissent, saying the bar rule only applies to attorney fees, and

fees weren’t an issue.

“This dispute is a claim for malpractice — a claim that falls within the broad

language of the arbitration clause. It is �rmly established that ‘Florida public

policy favors arbitration, and any doubts concerning the scope of an

arbitration agreement should be resolved in favor of arbitration,’ ” Kuntz

stated.

Corrigan did not respond to requests for comment by deadline.

Read the court order:

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Raychel Lean

https://www.4dca.org/content/download/244172/2149993/file/172740_1709_06272018_09290264_i.pdf

Appeals court: State can’t seek death in 2017 Boca Raton murder

https://www.palmbeachpost.com/news/crime--law/appeals-court-state-can-seek-death-penalty-2017-boca-raton-murder/DI1au3JtimQsa9CVZsrO5H/ 1/7

Appeals court: State can’t seek deathpenalty in 2017 Boca Raton murder

June 06, 2018By Daphne Duret, Palm Beach Post Staff Writer

An appellate court Wednesday upheld a judge’s decision barring Palm Beach County

prosecutors from seeking the death penalty against a 28-year-old man because of a missed

filing deadline in a case where he is charged with killing a man who helped send him to jail.

...

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In a 12-page ruling, Florida’s 4th District Court of Appeal denied a request to overturn the

December decision from Circuit Judge John Kastrenakes, which came after an attorney for

Tashane Chantiloupe argued state prosecutors had missed the 45-day deadline after

Chantiloupe’s August arraignment to announce they intended to seek a death sentence

against him for the May 2017 murder of Augustus “Gus” Byam in Boca Raton.

Statements Byam made to police in 2016 had led to Chantiloupe’s May 2016 arrest in the

attempted murder of another man. Court records show prosecutors allowed him to plead

guilty to an aggravated battery charge in November of that year in exchange for a sentence

that allowed him to go free a month before Byam’s death.

Chantiloupe was arrested and arraigned in connection with Byam’s shooting death in

August, but in late October, Assistant Public Defender Joseph Walsh asked Kastrenakes to

bar prosecutors from seeking a death sentence. In his request, he said 56 days had passed

from the time of the arraignment.

Assistant State Attorney Aleathea McRoberts filed the death penalty notice three days later

and asked Kastrenakes to deny Walsh’s request.

The judge ultimately ruled that he had no discretion in the matter. But even if he did, he

ruled, he would keep prosecutors from seeking the death penalty because McRoberts

“failed to allege a good faith delay, excusable neglect, or any other circumstances” to justify

the missed deadline.

The higher court concluded that although Kastrenakes did, in fact, have the legal right to

extend the deadline if he wanted, he had not acted unlawfully by deciding against it, either.

“Because it sought to enlarge a lapsed deadline, the State needed to establish both good

cause and excusable neglect,” 4th District Court of Appeal Judge Jeffrey Kuntz wrote in the

ruling released Wednesday.

Kuntz, agreeing with Kastrenakes, wrote that McRoberts failed to do that, both in a four-

paragraph initial objection to Walsh’s request and a later five-page petition to the judge.

In a separate case, prosecutors last month announced that they would no longer seek the

death penalty in the case of Lajayvian Daniels. Daniels, 24, is accused of shooting Wellington

gas station clerk Shihab Mahmud in May 2014. The shooting at the time was the first in more

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than four years in the village.

Court records in that case show Assistant State Attorney Jill Richstone filed the notice to

seek the death penalty less than a month after Daniels waived his September 2015

arraignment, but in a short memo on May 8 she told Circuit Judge Samantha Schosberg

Feuer that prosecutors would no longer be seeking a death sentence. The announcement

offered no reason for the change in course.

...

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Hollywood Off the Hook for $2.6 Million in Condo Height Fight | Daily Business Review

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Hollywood O� the Hook for $2.6Million in Condo Height FightBy Lidia Dinkova (/author/pro�le/Lidia Dinkova/) | May 08, 2018 at 10:26 AM


Daniel Abbott. Photo: Melanie Bell

Hollywood no longer owes $2.58 million to a developer that sued the city

for imposing a height restriction that limited a planned condominium to 65

feet, shorter than the previous 150-foot limit.

The Fourth District Court of Appeal reversed(https://images.law.com/contrib/content/uploads/documents/392/19616/The-Fourt-District-Court-of-Appeal.pdf) a trial court ruling setting damages

owed to GSK Hollywood Development LLC for lost development rights after

the city shrunk height rules on the company’s property.

GSK, led by principals Joseph Kavana and Manuel Grosskopf, wanted to

build a 150-foot luxury condominium tower on 1.2 acres at the northeast

corner of State Road A1A and Je�erson Street, just steps from the beach,

according to court �lings and property records.




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The site had a zoning allowing construction of up to 150 feet high when GSK

bought it for $3.9 million in 2002, but the City Commission in 2005 voted to

change the height limit for eight blocks on the barrier island including GSK’s

property, where the building height was limited to 65 feet.

GSK �led a property rights lawsuit in Broward Circuit Court in 2009, listing a

Bert J. Harris Jr., Private Property Rights Protection Act claim alleging the

height change cost it at least $5.4 million in lost property value, and a civil

rights claim alleging its due process rights under the 14th Amendment were

violated. The constitutional claim was potentially worth $40 million.

After a jury and a bench trial, Circuit Judge William Haury in 2016 entered a

�nal judgment(https://www.law.com/dailybusinessreview/almID/1202735561790/15m-award-for-zoning-change-thwarting-hollywood-condo-plan/) in favor of

the city on the due process claim but against the city on the Bert Harris

claim, setting damages at $1.5 million plus $1.08 million in prejudgment

interest.

At the Fourth DCA, the three-judge panel last week a�rmed the due

process decision but reversed on the property rights claim, noting GSK

hadn’t formally applied to the city for a taller building before making the

Harris Act claim.

“A claim relating to building restrictions under the then-existing version of

the Harris Act does not accrue unless the property owner formally applied

to develop the property; thus, allowing the governmental entity to

speci�cally apply the law or ordinance to the property in question,” Judge

Je�rey Kuntz wrote for a unanimous panel. Judges Burton Conner and

Martha Warner concurred.

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GSK presented its plan to city leaders at an informal event but didn’t �le a

preliminary site plan until 2010, about a year after suing, the appellate

panel noted.

Weiss Serota Helfman Cole & Bierman member Daniel Abbott,

partner Laura Wendell and former associate Adam Schwartzbaum

represented the city on appeal.

Duane Morris partners Harvey W. Gurland Jr. and Lida Rodriguez-Tase� as

well as former partner Scott Marder represented GSK.

GSK attorney Leoncio E. de la Pena, founder of the De La Peña Group law

�rm in Miami, who wasn’t involved in the lawsuit, said, “We are considering

our legal options and, as we have done in the past, we will explore all of

them to protect our �nancial interest.”

NEIGHBORS OPPOSED

GSK argued in the lawsuit that the 65-foot height limit prevented the

company from building an economically viable and marketable project.

GSK said it did due diligence to make sure it could build up to 150 feet

before closing on the property purchase and had verbal assurances about

height rules from city sta� members, the complaint said.

The company presented its plan to the city’s economic development

roundtable, planning sta�, City Commission members and representatives

from The Summit, a two-tower condominium just south of GSK’s property,

according to the complaint.

GSK maintained that political pressure from Summit property owners who

opposed GSK’s plan prompted the City Commission to shrink the allowable

building height. The city issued a development moratorium, and the city

planning sta� studied shorter building heights.

After that study, the city Planning and Zoning Board recommended keeping

the 150-foot height but gradually reducing heights approaching the beach,

according to the appellate panel. The City Commission, however, adopted

the 65-foot height limitation.

Then-Hollywood Mayor Mara Giulianti was receptive to gripes from Summit

owners.

“The mayor responded to their emails, writing that she had ‘protected the

Summit from every bad project that has come down the pike’ and that

‘when the presentations are made and the vote is taken, I’m sure my vote

will make my friends at Summit happy … as they always have,’ ” Kuntz

wrote.

Abbott, who was the city attorney when the shorter height ordinance was

adopted, said prospects for other 150-foot buildings convinced city leaders

that a 150-foot limit “ was an inappropriate height.”



Civil Appeals (/topics/civil-appeals/) Government (/topics/government/)

Land Use and Planning (/topics/land-use-and-planning/) Real Estate (/topics/real-estate/)

Cases and Courts (/topics/cases-and-courts/) Construction (/topics/construction/)

Legal Services (/topics/legal-services/) Real Estate (/topics/real-estate/)

State and Local Government (/topics/state-and-local-government/)

“If the suggestion is it was really the prospect of a building being built that

caused the city to revisit its allowable height ordinances, I think that might

very well be true,” he said. “Oftentimes what spurs a government to adopt a

land-use regulation is when it comes to their attention that somebody is

going to build something that is inappropriate for the area.”

GSK could �le for a rehearing before the Fourth DCA or appeal to the

Florida Supreme Court. If no action is taken, the trial court is to enter a

judgment in favor of the city.

Dig Deeper

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Lidia Dinkova

( /author/profile/Lidia Dinkova/)

Lidia Dinkova covers South Floridareal estate for the Daily BusinessReview. Contact her [email protected] or 305-347-6665. On Twitter @LidiaDinkova.

More from this author (/author/profile/Lidia Dinkova/)

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Media Advisory: Real-Life Judges, Attorneys Come to Carver Middle for School-wide Mock Trial | Office of Communications

https://www.palmbeachschools.org/news/2018/05/03/media-advisory-real-life-judges-attorneys-come-to-carver-middle-for-school-wide-mock-trial/ 1/2

Of� ice of Communications (https://www.palmbeachschools.org/news)

Media Advisory: Real-Life Judges,Attorneys Come to Carver Middle forSchool-wide Mock Trial May 3, 2018

DELRAY BEACH – Civics students from Carver Middle School will serve as defense attorneys, witnesses,victims and play other roles in the courtroom as they participate in a mock trial with real judges, attorneys andother legal and law enforcement professionals.

In addition to Carver’s Civics students, participants will include the Honorable Jeffrey T. Kuntz, Fourth DistrictCourt of Appeal; the Honorable Catherine M. Brunson, Palm Beach County Circuit Court Judge; the HonorableCymonie S. Rowe, Palm Beach County Circuit Court Judge; Lauren Kimberly Ervin, Senior RegulatoryCompliance Counsel, Ocwen Financial Corp.; Sonja D. Hall, FPR, Palm Beach Reporting, Inc.; Wilnar Julmiste,Partner, Anderson Glenn LLP; Sherrie Norton, Judicial Assistant to Judge Rowe; Seth Perrin, Deputy, PalmBeach County Sheriff’s Office; Michael Suarez, Agent, Task Force Officer, United States Marshal Service; andMichelle Voce, RPR, Official Court Reporter II, Palm Beach County.This is the fifth year for Carver’s mock trial. Students are selected by teachers to participate in the mock trial.WHAT: Mock trial at Carver Middle School, featuring Palm Beach County judges, attorneys and other legal andlaw enforcement professionals

WHEN: Friday, May 4, beginning at 10 a.m.

WHERE: Carver Middle School 101 Barwick Road Delray Beach

Posted in Headlines (https://www.palmbeachschools.org/news/category/headlines/), Top News(https://www.palmbeachschools.org/news/category/top-news/)

Fulton-Holland Educational Services Center 3300 Forest Hill Boulevard

West Palm Beach, FL 33406 Phone: (561) 434-8000, (866) 930-8402

The School District of Palm Beach County

http://www.palmbeachschools.org/

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http://www.palmbeachschools.org/

PBChoice MSAP on Twitter: "This is the type of opportunity that sets @pbcsd apart! @CmsDelray students recently took part in a mock t…

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PBChoice MSAP@PBChoice_MSAP

This is the official Palm BeachChoice Department Twitter Pagefor MSAP Grant 2016 Cohort.

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This is the type of opportunity that sets @pbcsd apart! @CmsDelray students recently took part in a mock trial that was hosted by @4dca_flcourts Judge Jeffrey T. Kuntz and @15thCircuit Judge Catherine Brunson along with several local attorneys. @pbpschools @citydelraybeach #edFL

12:19 PM - 9 May 2018 from Delray Beach, FL

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Grade 3 Students Visit Palm Beach County Courthouse, Judges, an…

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Published: Monday, November 20, 2017

Saint Andrew’s grade 3 students had a firsthand lesson on how government and the judicial systemworks recently.

Nearly 75 grade 3 students visited and toured the Palm Beach County 15th Judicial CircuitCourthouse in West Palm Beach on Thursday, November 16 in the morning. The trip tied into aPrimary Year Programme (PYP) unit of inquiry: How We Organize Ourselves.

View Photos from this Field Trip (https://saintandrewsschool.myschoolapp.com/page/Home?#photo/564118)

During their visit, students gathered in the courtroom and received a warm welcome by SaintAndrew’s School’s very own Judge Cymonie Rowe ‘87, Judge Meenu Sasser, and Judge Lisa Small. Following the courtroom, the student group visited Palm Beach Sheriff’s Office for a K-9demonstration with ‘Officer Dutch the Dog.’ Dutch is a specialized Bomb-sniffing canine for PBSO.Students were eager to hear about the important role that K-9 units play in keeping the communitysafe.

After the K-9 demonstration, the student group returned to the courtrooms for a lock-updemonstration. Some students were able to take part in a handcuff demonstration by the Officers.The group was also able to tour the holding cell adjacent to the courtroom and were surprised tofind Saint Andrew’s School Chaplain Rev. Charles Browning awaiting them. The kids found greathumor in seeing their school chaplain behind bars!

After lunch, students gathered for a discussion by Judge Cymonie Rowe ‘87 and Judge Jeff Kuntzwhere they discussed the process of the legal system. Students finished the day with a stop in theJury Assembly room for a question and answer period about the jury selection process. ParentChaperone Kristine Kuntz ‘09 arranged for each child to receive a pencil gavel engraved with themessage: “The Supreme Court of the United States. With Liberty and Justice for all.”

Upon reflection, students most enjoyed getting to sit on Judge Sasser’s bench, meeting Dutch, andlearning about the the roles and responsibilities of a jury and judge.

When asked about their field trip, students shared many wonderful reactions and learning

$ (http://www.saintandrews.net)

11/21/17, 6(10 PMPage 1 of 2

moments:"My day at the courthouse was fantastic!"

"My favorite part of the day was watching the K-9 dog, Dutch, sniff out gunpowder and learnabout how he was trained."

"I learned my parents could serve on a jury"

"My favorite part of the day was watching a real-life trial take place.”

"The best part was putting on handcuffs to see how the defendants are transferred."

Grade 3 Students Visit Palm Beach County Courthouse, Judges, and PBSO K-9 Unit

11/21/17, 6(10 PMPage 2 of 2

friDAY, november 3, 2017

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TROPICAL TRANSFERS

Boca Raton Home Sells for $4.4 MillionSee Page A9

DAILY BUSINESS REVIEW

by Celia Ampel

The era of collaborative poli-tics seems to be over in the state, justices mused as they consid-ered a challenge to Gov. Rick Scott's authority to fill seats on the Florida Supreme Court on his way out of office.

Justice Peggy Quince, the first justice ever appointed by two gov-ernors — incoming Gov. Jeb Bush and outgoing Gov. Lawton Chiles made the bipartisan decision in 1998 — drew laughs with one com-ment during Wednesday's oral ar-guments that recalled the gentle-men's agreement.

Quince cut in as lawyers mulled a scenario where Scott refuses to work with his succes-

sor on filling the three seats that will open in 2019.

“We know that there have been times in history — that I have personal knowledge of — that they have agreed," she said.

There's no ambiguity about whether justices turning 70 must leave the court, but there is a question of whether Scott can appoint the new justices on the morning of Jan. 8, 2019, hours before his successor's customary midday swearing-in. After Scott announced his plan last year, the League of Women Voters and Common Cause filed a quo warranto action to compel Scott to prove he has the author-ity to exercise that power.

Jill Kahn

Gov. Rick Scott is fighting for the right to replace three Florida Supreme Court justices whose terms end along with his in 2019.

Florida Justices Consider Which Governor Gets to Replace Them

see justices, page a6

by Monika Gonzalez Mesa

Greenspoon Marder has added three lawyers to its New York office from Wormser Kiely Galef & Jacobs—a New York firm that announced on its website Wednesday that it is has dissolved.

Approximately 20 Wormser attorneys are now in new jobs, according to the site. In addition to Greenspoon Marder, Condon & Forsyth, Kauff McGuire & Margolis, Warshaw Burstein and Eaton & Van Winkle have taken on the firm's lawyers, the site said.

Lawyers Patricia Gannon, Marcela Bermudez and Harlan Greenman started at Greenspoon’s 20-lawyer New York of-fice Wednesday.

Gannon, now a Greenspoon Shareholder, is a former federal pros-ecutor and deputy district counsel for the former U.S. Immigration and Naturalization Service. She has worked at Wormser since coming over from Greenberg Traurig in early 2011 along with then-associate Marcela Bermudez, according to their LinkedIn profiles.

Gannon and Bermudez have joined Greenspoon’s immigration and natu-

ralization practice. Bermudez will be senior counsel.

Greenman has joined Greenspoon as of counsel in the firm’s real estate prac-tice group. He had been at Wormser since 2003 after working at Snow Becker Krauss; McDermott Will & Emery and Arnold & Porter Kaye Scholer, accord-ing to LinkedIn.

Gannon focuses her practice on busi-ness immigration, advising multinationals

by Angela Morris

A fight over a controversial propos-al to toughen law school accreditation standards regarding bar exam pass rates is headed for round two.

Although it failed earlier this year in the effort, the nation’s accrediting body for law schools, the American Bar Association Council of the Section of Legal Education and Admissions to the Bar, is expected to try again at its meeting from Nov. 2 to 4 in Boston with a proposal to require law schools to have at least 75 percent of their graduates pass the bar within two years of graduation.

The debate over the rule comes at a time when schools are under pressure due to falling bar pass rates, mounting student debt, and a tight legal job mar-ket. The ABA’s legal education council has faced criticism for being too lenient and the new bar pass rule was supposed to show the council is trying to protect

Greenspoon Hires Three Lawyers From Dissolved New York Firm

Tougher bar Pass Standard for Law Schools on Agenda at AbA meeting

J. albert Diaz

Lawyers Patricia Gannon, Marcela Bermudez and Harlan Greenman started at Greenspoon Marder's 20-lawyer New York office this week.

by Samantha Joseph

A state appellate court Wednesday sanctioned Palm Beach attorney Guillermo J. Farinas, holding him per-sonally responsible for half of an attor-ney fee award against his client.

Florida's Fourth District Court of Appeal held Farinas and client Joseph Manzaro equally liable for "frivolous and completely meritless" filings in a child custody case that jumped from Broward to Palm Beach County. It re-manded the case to the lower court with instructions to divide the opposing side's attorneys fees between Farinas and Manzaro, then took the additional step of making an allowance for future litigation expenses.

"If a motion for rehearing is filed in this court, then services rendered in connection with the filing of the motion, including, but not limited to, preparation of a responsive pleading, shall be taken into account in computing the amount of the fee," the court ordered.

It was an unusual sanction, but eth-ics lawyer Andrew Berman has seen it employed with growing frequency as judges order attorneys to explain why courts shouldn't sanction them along with their clients.

Attorney, Client ordered to Pay for frivolous Lawsuit

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see aBa, page a2see gReenspoon, page a6

paLM spRings pRopeRtY seLLs

See PaGe a10

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VoL. 92, No. 99

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"Appellate courts have be-come frustrated with frivo-lous appeals and motions," said Berman, senior partner at Young Berman Karpf & Gonzalez in Miami and Fort Lauderdale, who was not in-volved in the litigation. "It’s done as a method to dissuade people from taking frivolous po-sitions."

Farinas is a veteran attorney admitted to the Florida Bar in 1979 with no disciplinary ac-tion in the last 10 years. He said the appellate panel's decision shocked him and that he plans an appeal to the state Supreme Court.

"I’m not going to pay one penny of attorneys fees to any-body because I’ve done every-thing in good faith," he said. "I’ve lost my respect for the Fourth DCA. ... I definitely ob-ject completely to this order."

Court records show Farinas turned to the Palm Beach Circuit in 2016 to file a complaint for relief from a 2012 agreed final order from Broward County, claiming ex-trinsic fraud and lack of per-sonal jurisdiction. Litigants typically have a one-year window to seek to set aside an order, with exceptions for fraud, mistakes and other causes under Florida Rule of Civil Procedure 1.540(b).

Farinas' filings suggest he an-ticipated two hurdles: a potential deadline impediment and the leap from one county—which still maintained jurisdiction—to

another. To mitigate these, he brought the fraud claim and pitched his Palm Beach filing as an independent action. But the appellate court rejected both strategies, citing precedent re-quiring litigants to raise fraud claims in the original court.

"The appellant has had mul-tiple opportunities to raise the issues presented in his com-plaint to the Broward Circuit Court and, in fact, has done so," Judge Jeffrey T. Kuntz wrote in a unanimous decision with Judges Carole Taylor and Dorian Damoorgian. "His at-tempt at filing a new lawsuit in a different circuit, after those prior attempts were rejected and while other new attempts still remain pending in the Broward Circuit Court, is com-pletely devoid of merit."

Farinas represents Manzaro in a family law case that start-ed in Broward County in 2012 and has since yielded litigation across South Florida. One of the cases stemmed from opposing counsel Megan K. Wells, who has a permanent stalking in-junction against Manzaro.

“This is by far the craziest case I’ve ever had in my career," said Wells, who's been practicing in family court since 2013. "When I tell my colleagues the things that occur ... in open court, people don’t even understand why I stay on this case.”

At least six judges have re-cused themselves in Broward—some after only one hearing—and Farinas filed motions to disqualify two others.

The underlying litiga-tion involves a dispute with Manzaro's mother, Linda

D'Alessandro, over which family member should gain custody of Manzaro's seven-year-old son.

Manzaro claimed his mother drugged and tricked him into signing documents that helped her gain custody of the child after his partner died in Miami in April 2013. He has a pending wrongful death suit, brought

with Farinas' help, against the hospital where she died.

Court records show D'Alessandro petitioned for tem-porary custody in January 2012, then filed an agreed final order that month claiming Manzaro consented to let the child live with the grandmother. But Manzaro claimed the timing showed his mother's intention to "kidnap"

the child, more than a year be-fore his partner's death. He and Farinas accused the Broward judiciary and Clerk of Courts of-fice of assisting D'Alessandro by tampering with records and ig-noring evidence.

"This is outrageous and criminal in nature," Farinas wrote in an email. "I believe that these fees and the related sanctions are being imposed to 'shut down' our challenge of the temporary custody in Broward County, because we have al-leged fraud upon the court. The appellate court does not want to deal with this issue."

In August, the Fourth DCA affirmed Judge Edward A. Garrison's dismissal of Manzaro's complaint in Palm Beach Circuit Court, the issued an order to show cause.

"Rather than responding to our order—why he and his counsel should not be sanc-tioned—the appellant begins his amended response by seek-ing attorney’s fees against the appellee," Kuntz wrote for the Fourth DCA.

The appellate panel instead awarded appellate fees and costs to D'Alessandro in the Palm Beach Circuit Court case as a sanction against Farinas and his client. Wells said the litigation in Palm Beach County alone has cost D'Alessandro about $4,000, with a mount-ing bill of about $20,000 for the Broward case.

Samantha Joseph is an award-winning journalist with Daily Business Review, Law.com +more. Grad School: Newhouse Syracuse. Contact: [email protected]. On Twitter: @SjosephWriter

the consumer interests of students. The council has also cracked down on some law schools.

This week, it sent Florida Coastal School of Law, which had a 47.7 percent bar pass rate, a letter warn-ing it was significantly out of compli-ance with standards. In March, it put Arizona Summit School of Law on probation for having a 25 percent bar passage rate among July 2016 test-takers, among other things. In addi-tion, the ABA has sent noncompliance letters, for a variety of reasons, to

seven other schools this year, includ-ing Atlanta’s John Marshall School of Law, Texas Southern University Thurgood Marshall School of Law, Thomas Jefferson School of Law and SUNY Buffalo School of Law, accord-ing to Paul Caron, editor of TaxProf Blog

The current ABA rule gives schools up to five years to reach 75 percent pas-sage, while also providing alternatives if they can’t meet the requirement.

The legal education council, which has debated the idea for years, ap-proved the harder rule last year, but in February, the ABA’s House of Delegates rejected the measure, send-ing it back to the council.

The debate on the bar pass rule in-volved supporters who say the change would prevent law schools from admit-ting students who can’t pass the bar. Critics argued it would discourage law schools from admitting minority stu-dents who are statistically disadvan-taged on standardized tests. Others feared how the harder rule might im-pact schools in California, because the state has a high minimum bar-pass score and has seen declining passage rates in recent years.

Despite the House’s rejection, the le-gal education council decided in June it wouldn’t change its proposal. Instead, it conducted a survey to gather informa-tion about the House’s concerns, said an Oct. 20 memo by section managing director Barry Currier, who didn’t return a call seeking comment.

Among the 204 ABA-accredited U.S. law schools, 92 responded to the vol-

untary survey. Currier wrote that each of the 92 schools reported bar passage rates for the past two years, which gave the council 184 data points to consider. Only three of the 184 data points were below the 75 percent bar passage stan-dard. Two-thirds of the schools reported that at least 95 percent of graduates had taken the bar exam within the two-year window allowed in the proposed bar pass rule. About half of California’s law schools, and several law schools at his-torically black colleges or universities, participated in the survey.

Currier wrote in the memo that survey data didn’t bear out the claims, debated in the House, that the tougher bar pass rule would negatively impact schools in California or schools that serve minorities.

Currier, in his memo, identified two possibilities for what the council might do during its meeting on Friday. First, the council might confirm that it still sup-ports the tougher bar pass rule and send it back to the House in February 2018. The council could also keep studying the idea and send it to the House again in August 2018.

It could still become effective even if the house rejects it again. Under ABA rules, the House can twice reject a reso-lution from the legal education council, but the council itself has the ultimate say over accreditation standards. Thus, if the House issues another rejection, the council could still adopt the measure.

Alternatively, the council at Friday’s meeting might decide to send the bar pass rule back to its standards review committee for more work to address the House’s concerns and the bar pass sur-

vey. Another idea would be to scrap the entire revision, and keep the current bar pass rule in place.

ADMISSIONS TESTSThe legal education council on

Friday will also discuss changing anoth-er accreditation standard dealing with admissions tests.

Right now, the admissions test rule in Standard 503 requires schools to give applicants a “valid and reliable” admissions test, which is supposed to help evaluate whether the applicant is capable of graduating the school and passing the bar exam. Most schools use the Law School Admissions Test, but a handful of law schools have begun to use the Graduate Record Examination. They include the University of Arizona School of Law, Harvard Law School, Columbia Law School and the University of Hawaii School of Law.

Educational Testing Service, which develops and administers the GRE, this week released the results of a study about the validity of the GRE for law school admissions. Working with 21 law schools, ETS, not surprisingly, found that performance on the GRE is a valid pre-dictor of first-year law school grades.

Kellye Testy, president and CEO of the Law School Admission Council, which develops the LSAT, said Wednesday that while she supports the use of an alter-native test on a small scale, she's con-cerned about the limitations of studies pertaining to the GRE's validity in pre-dicting success in law school.

Follow Angela Morris on Twitter: @AMorrisReports

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aba

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sanction

“Rather than responding to our order—why he and his counsel should not be sanctioned—the appellant begins his amended response by seeking attorney’s fees against the appellee,” Judge Jeffrey T. Kuntz wrote for the Fourth DCA.

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VERDICTS & SETTLEMENTS

Class Settlement for Junk FaxesSee Page A16

DAILY BUSINESS REVIEW

by Monika Gonzalez Mesa

Miami-based litigation firm Kluger, Kaplan, Silverman, Katzen & Levine is expanding by opening its first out-of-state office in Minneapolis.

The firm’s partners decided on Minneapolis because they see an op-portunity to capture some of the legal market there. Minnesota’s economy was ranked 17th by gross domestic product in the U.S. in 2015, and the state is home to 17 Fortune 500 companies, including General Mills, Target, Land O’Lakes, Hormel Foods, Best Buy and 3M. Yet Big Law has largely bypassed the market in favor of traditional power centers such as New York, Boston and Washington.

“It’s much less Rust Belt and old in-dustry than you would think you would J. Albert DiAz

Kluger Kaplan looked at commercial interests before deciding on Minnesota for expansion.

Kluger Kaplan Expands Beyond Florida With Minneapolis Office

see klugeR kaplan, page a2

by Samantha Joseph

Borrowers seeking attorney fees on appeal can’t have it both ways when it comes to lenders’ legal standing to fore-close.

If they prevail on arguments that plaintiffs don’t own their mortgage debts and therefore lack legal right to foreclose, they can’t then turn around and seek attorney fees under these same contracts.

It’s either one or the other, said an April 12 opinion by Fourth District Court of Appeal Judge Jeffrey T. Kuntz, writ-ing for a state appellate panel of Chief Judge Cory J. Ciklin and Judge Robert M. Gross.

Kuntz, who rose to the bench in November, wrote the opinion weighing borrower Marie Ann Glass’ reliance on a mortgage clause and the reciprocity provisions in Florida Statutes.

That statute permits courts to ap-ply contractual fee provisions to benefit both parties, even in cases of one-sided contracts. But it has two requirements: a prevailing litigant and parties to the contract.

“Because the statute is in derogation of the common law, it must be strictly construed,” Kuntz wrote.

by Carla Vianna

The Sherwood Forest apartment complex in Coral Springs traded in a $68.2 million deal.

A limited liability company linked to New York City-based Abacus Capital Group picked up the 400-unit communi-ty at 1599 NW 91st Ave. east of Sherwood Forest Park on April 10, according to Broward County property records. The sale breaks down to $170,500 per unit.

The deal marked a 39 percent gain in five years for seller Sherwood Forest at Coral Springs L.P., a partnership linked to Houston-based LSR Communities, an owner and operator of apartment com-plexes. LSR purchased the property for $49.2 million in 2012.

The Coral Springs community is made up of 16 three-story buildings built in the late 1980s. The complex sits on just over 20 acres featuring a tennis court and two pools. Additional site amenities include a clubhouse,

Arguing Standing to Foreclose? Don’t Expect Attorney Fees

Coral Springs Complex Goes for $68 Million

Writing for a panel, District Judge Jeffrey Kuntz rejected a request for appellate attorney fees.

by Samantha Joseph

Deutsche Bank National Trust went beyond the scope of its complaint when it “sequestered” rental income from a condominium in foreclosure, the Third District Court of Appeal found.

The bank foreclosed on investment property belonging to North Miami-based borrower UV Cite III LLC in 2016. While the case was pending, the bank moved to require the defendant to deposit into the court registry all rent from tenants occupying the Sailboat Cay condo unit. At trial after a hearing, Deutsche Bank succeeded on a motion to have UV Cite deposit rent into the court registry and later won release of all funds in the registry as the prevail-ing party.

But the borrower objected, arguing the trial court lacked subject matter ju-risdiction and provided more relief than Deutsche Bank sought in its complaint.

“There wasn’t a whole lot [of prec-edent] about whether you could se-quester rent without pleading it,” UV Cite’s attorney, Todd L. Wallen of Wallen Hernandez Lee Martinez, said. “If you’re

Court Says ‘Spell It Out’ to Hold Rent

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see sale, page a2see fees, page a2

Davie Retailgoes foR $1M

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eric Hernandez & arturo Martinez

MiaMi-DaDe

VoL. 91, No. 213

Official cOurt Newspaper Of sOuth flOrida

Daily Business Review is published daily Monday through Friday, except legal holidays, by ALM Media, LLC, 1 SE 3rd Ave., Suite 1750, Miami, FL 33131, (305) 377-3721. © 2017 ALM, Daily Business Review (USPS 344-300) (ISSN 1538-1749) Miami.Subscription Rates: One year (253) issues - basic (individual and small firms) $575.88 plus tax; discounted group rates available. Single copies (M-F) - $2. Back issues when available (M-F) - $6. Periodicals postage paid at Miami, FL.

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going to seek a remedy … you need to plead it. You need to give notice that you’re seeking that remedy, and you have to have a basis for it.”

Deutsche Bank’s three-count com-plaint sought to foreclose on the mort-gage and reform the mortgage and deed but had no cause of action for the rent. It also sought no judgment for the rent and provided no evidence of a rent as-signment agreement.

“Because the rent was not the sub-ject of Deutsche Bank’s lawsuit and there was no other basis for sequester-ing the money, the trial court had no

authority to order that the rent UV Cite collected from its tenant be deposited in the registry of the court,” Third DCA Judge Robert Luck wrote in a unani-mous decision with Judges Kevin Emas and Thomas Logue.

Rent assignments are common in commercial mortgages, where lenders see them as a safeguard in case of loan defaults. These assignments allow lend-ers to collect the income generated from offices, retail properties and other com-mercial buildings but are rare in resi-dential mortgages, according to Corona Law Firm founder Ricardo Corona, who was not involved in the litigation.

In this case, UV Cite III used the condo as an investment property, but the suit was a residential foreclosure.

“What the bank did in this case … we’ve seen banks try to do in other cas-es,” Corona said. “It’s meant to pressure the borrower because they don’t have that cash flow.”

The appellate court suggested both parties presented too little information at trial as neither side cited cases that show a trial court’s jurisdiction over money not claimed in the complaint.

“We reverse because absent an agree-ment between the parties to assign rents or some form of injunctive relief, a trial court has no authority to order a deposit of money into the registry of the court if the money was not the subject of the litigation,” Luck wrote.

Contact Samantha Joseph at [email protected]. On Twitter: @SJosephWriter

see in the Midwest,” said Alan Kluger, a founding partner of Kluger Kaplan. “It’s really cutting-edge finance, internet, banking. Target is there. There’s a pretty robust litigation practice.”

Indeed, firms in the last few years have been taking a second look, and some, such as DLA Piper and Jones Day, have opened offices in Minnesota. Kluger Kaplan, which has more than 30 lawyers in South Florida, hopes to cap-ture more of the Midwest legal market with a Minneapolis office that opens May 1.

Minneapolis has also become attrac-tive to firms because it has well-regarded

courts and a highly experienced bench. Former Parker Rosen partner Daniel

Rosen will head up Kluger Kaplan’s Minneapolis office as partner-in-charge. Rosen, who has 23 years of courtroom experience and has been a friend of Kluger’s for about as long, focuses his practice on complex commercial and real estate litigation. Kluger said he ex-pects to hire two additional lawyers at the new office in the coming months.

Although the Minneapolis office doesn’t officially open until May 1, Kluger said the firm has already been retained “by two huge top 50 companies.” Kluger declined to name them, but said they were companies that had previously worked with Rosen.

Kluger plans to further expand in the Midwest later this year, opening an office

either in St. Louis or Chicago. Once the Midwestern offices are up and running, the firm may head to New York, Kluger said.

“We have a lot of clients that we do work for in Florida that have their headquarters in Chicago,” Kluger said. “We have a very significant client in St. Louis, and that discussion is happening right now. That may move quicker than Chicago.”

Kluger Kaplan’s litigation prac-tice includes high-stakes business and commercial litigation disputes, including securities and financial fraud, probate, class actions, com-plex matrimonial, probate and trust litigation.

Contact Monika Gonzalez Mesa at [email protected]. On Twitter: @MonikaMesa1

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rent

fitness center and playground, accord-ing to CoStar Group.

Its one- to three-bedroom units lease from $1,228 to $1,752 per month, ac-cording to CoStar. The average asking rental rate is $1.38 per square foot, and the community is about 97 percent oc-cupied.

Abacus Capital has acquired over $2.5 billion of real estate assets, in-cluding 23,000 apartment units. The Sherwood Forest apartments weren’t the company’s first South Florida invest-ment. Abacus also owns The Landings at Coconut Creek, a 268-unit apartment community purchased for $33.2 million in 2015.

The New York buyer focuses on adding value — “Abacus Capital Group believes that value can be created at any stage of the life cycle,” president and CEO Benjamin Friedman said on the firm’s website.

The Broward market is largely de-veloped, so the bulk of new residen-tial construction is on infill locations as multifamily product, according to a CBRE Inc. report this year on the county’s multifamily market. Despite

an expected increase in vacancies this year, Broward will remain an attrac-

tive investment option for institutional buyers, the report found.

Contact Carla Vianna at [email protected]. On Twitter: @byCarlaVianna

Glass sought appellate attorney fees and costs from Nationstar Mortgage LLC, doing business as Champion Mortgage Co., after the lender chal-lenged Broward Circuit Senior Judge Joel T. Lazarus’ dismissal of its amend-ed foreclosure complaint with preju-dice. Her argument that Nationstar lacked standing to foreclose on her debt succeeded in the circuit court. But

that victory blocked her claim for ap-pellate fees.

“Simply put, to be entitled to fees pursuant to the reciprocity provi-sion of section 57.105(7), the mov-ant must establish that the parties to the suit are also parties to the con-tract containing the fee provision,” Kuntz wrote. “A party that prevails on its argument that dismissal is required because the plaintiff lacks standing pursuant to the contract sued upon cannot satisfy that re-quirement.”

But there is an exception, accord-ing to a nugget in the appellate ruling, which appears to leave the door open for collecting appellate fees in cases where lenders are party to the contract, but fail to establish legal standing.

“The result is different when the plaintiff was also the originating lender,” Kuntz wrote.

Marc James Ayers of Bradley Arant Boult Cummings in Birmingham, Alabama, represented Nationstar.

Amy L. Fischer and F. Malcolm Cunningham Jr. of The Cunningham

Law Firm in West Palm Beach repre-sented Glass.

Contact Samantha Joseph at [email protected]. On Twitter: @SJosephWriter

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fees

Daniel Rosen has been named partner in charge of Kluger Kaplan’s new office.

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sale

GooGle

The seller of the Sherwood Forest apartment complex in Coral Springs earned a 39 percent gain in five years.

A.M. Holt

Deutsche Bank needed an agreement to as-sign rent or an injunction to hold condo rent money in a foreclosure case, Judge Robert Luck wrote for an appellate panel.

CORRECTIONAn article published April 17 on a settle-ment by Raymond James with Jay Peak investors included an error. Former Raymond James Financial Inc. manager Frank Amigo was not a defendant in the investor lawsuit and was not alleged to have aided a fraud.

A2 dailybusinessreview.com TUESDAY, APRIL 18, 2017 DAILY BUSINESS REVIEW

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Co. Urges Justices To Allow State Law Claims Despite ERISA By Carolina Bolado

Law360, Miami (July 15, 2016, 9:28 PM ET) -- A Florida insurance recovery company has asked the U.S. Supreme Court to review the dismissal of its claims against Blue Cross and Blue Shield of Florida Inc. and settle the question of whether entities assigned claims by health care providers fall under the Employee Retirement Income Security Act framework.

In its July 8 petition for certiorari, Gables Insurance Recovery Inc. said its suit against Florida Blue, originally filed in Florida state court, should never have been removed to federal court under ERISA, arguing that applying the federal statute to third-party recovery companies like itself expands ERISA's framework far beyond what Congress intended .

"For the Eleventh Circuit to have granted ERISA standing to Gables, which is neither a plan participant, plan beneficiary or even a healthcare provider, it is tantamount to transforming ERISA health benefit claims into a freely tradeable commodity, something Congress never intended," Gables said. "It allows third parties with no relationship to the beneficiary to acquire claims solely for the purpose of litigating them."

The dispute stems from an unpaid bill for services provided by South Miami Chiropractic LLC, which, after fighting Florida Blue for payment, assigned its rights to the claim over to Gables. Gables then sued in state court for breach of contract.

Florida Blue removed the suit to federal court and said ERISA governed the claims and completely preempted Gables' complaint. The insurer then said the suit should be dismissed because South Miami Chiropractic had failed to exhaust its administrative remedies under ERISA.

The district court agreed, as did the Eleventh Circuit, which said that allowing assignments for the purposes of bringing suit generally facilitates the employee's receipt of health benefits because the assignee is usually better positioned to pursue an action for benefits.

In its petition, Gables said the Fifth Circuit in another case came to the same conclusion, but the Second, Sixth, Ninth and Tenth have held that derivative standing is limited to health care providers to whom a beneficiary has assigned his claim in exchange for health care.

The issue is of growing importance as the health care industry continues to expand.

"The question of whether non-health care providers holding assignments may bring ERISA claims occurs with frequency, both in this circuit and elsewhere," Gables said. "With a divergent approach being taken by the circuit courts, there can be no question that this court's consideration of this issue is necessary to establish uniformity in an important growing area of the law."

Gables Insurance Recovery is represented by The Law Offices of Robert N. Pelier PA and Geoffrey B. Marks of Billbrough & Marks PA.

Blue Cross is represented by Daniel Alter and Jeffrey T. Kuntz of GrayRobinson PA.

The case is Gables Insurance Recovery Inc. v. Blue Cross and Blue Shield of Florida Inc., case number 16-64, in the Supreme Court of the United States.

--Editing by Brian Baresch.

Fla. High Court Lets Insurer Appraise Hurricane Claims - Law360

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Fla. High Court Lets Insurer Appraise Hurricane Claims

By Allison Grande Share us on :

Law360, New York (June 30, 2011, 5:03 PM ET) -- Florida's highest court on Tuesday

quashed a ruling that barred a local insurance guaranty association from compelling an

appraisal of a neighborhood association's property loss claims, finding that lower courts

had misapplied the test for determining the relevant statute's retroactivity.

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The Florida Supreme Court's controlling precedent requires courts to apply a two-prong

test in determining the question of retroactivity of a legislative enactment by first

addressing whether the legislature clearly expressed an intent that the statute be applied

retroactively and then questioning whether retroactive application would be constitutional.

But in determining whether the Florida Insurance Guaranty Association Inc. could compel

the appraisal of property losses claimed under a 2004 insurance policy issued to Devon

Neighborhood Association Inc. without providing the condominium association notice of

the availability of mediation as required by a 2005 legislative amendment, two lower courts

failed to consider the first prong of the required test.

"Because the district court did not apply the two-prong test for retroactivity that is

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mandated by this court's controlling precedent, and instead based its holding only on

whether retroactive application would be constitutional, and because there is no clear

evidence that the legislature intended the 2005 amendments to apply retroactively, we

quash the decision of the district court ... and remand for further proceedings," the high

court ruled.

Daniel S. Rosenbaum of Rosenbaum Mollengarden Janssen and Siracusa PLLC, which

representes the neighborhood association, told Law360 Thursday that while the high

court's ruling won't have any impact on the merits of the instant action, it will have a

substantial impact on how courts in the state analyze the retroactivity of legislative actions.

"Courts will have to scrutinize [these actions] more, and the legislature will have to do

more in order for [these actions] to pass constitutional muster," Rosenbaum said. "I

believe that there should be more flexibility to deal with things such as widespread

tornadoes and new technological advances that we can't foresee, and if courts construe

this so narrowly, then it is going to be more difficult to problem solve."

Jeffrey T. Kuntz of Gray Robinson PA, which represents FIGA, said Thursday that his

client has "always believed this was an important issue, and [we] are very happy the

Florida Supreme Court agreed."

The case before the state Supreme Court arose from claims for property loss incurred as

a result of Hurricane Wilma in 2005 that the neighborhood association made under a 2004

insurance policy issued by its original insurer, Southern Family Insurance.

After Southern Family became insolvent in April 2006, FIGA - a public nonprofit

corporation created by statute to provide a mechanism for payment of covered claims

under certain classes of insurance policies issued by insurers which have become

insolvent - became obligated to respond to the covered property-loss claims filed prior to

adjudication of the insurer's insolvency.

In January 2008, the neighborhood association submitted supplemental claims to FIGA

totaling more than $4.8 million, and the following month filed suit against FIGA seeking

that claimed loss.

In answering the complaint, FIGA demanded an appraisal of the claimed loss under the

appraisal provision contained in the 2004 insurance policy between Devon and Southern

Family.

Devon objected to being required to participate in the appraisal process because it had

not been provided notice of the availability of mediation, a notice requirement that was

imposed on commercial residential insurers such as Southern Family by a 2005

amendment to a provision of the Florida Insurance Code.

The trial court agreed with the neighborhood association in January 2009 when it denied

FIGA's motion to compel appraisal, a decision that the Fourth District Court of Appeal

affirmed after similarly concluding that the amendment applied retroactively to the 2004

insurance contract and that FIGA was bound by Southern Family's failure to give the

notice required in the amended statute.

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But the Florida Supreme Court ruled Thursday that both courts had misapplied its

controlling precedent by only considering whether retroactive application of the

amendment would be constitutional and not if the legislature had intended the amendment

to apply retroactively.

After reviewing the "language, structure, purpose and legislative history of the enactment,"

the high court concluded that the 2005 amendments could not be applied retroactively to

the 2004 policy to bar FIGA's right to enforce the appraisal provision in the contract

because there was no clear evidence that the legislature intended the disputed

amendments to apply retroactively.

Justice Jorge Labarga authored the opinion of the unanimous court.

FIGA is represented by Jefrey T. Kuntz, Philip E. Ward, Roland E. Schwartz and Evan D.

Appell of Gray Robinson PA.

The neighborhood association is represented by Daniel S. Rosenbaum, John M. Siracusa,

Richard C. Valuntas and Mark G. Keegan of Rosenbaum Mollengarden Janssen and

Siracusa PLLC.

The case is Florida Insurance Guaranty Association Inc. v. Devon Neighborhood

Association Inc., case number SC10-347, in the Supreme Court of Florida.

--Editing by John Quinn.

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811/2016 Fla.Appeals Court Says Tribe Was Immune Between Compacts- L..aw360

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Fla. Appeals Court Says Tribe Was Immune Between Compacts By Adam Udgett

Law360, New York {July 29, 2016, 4:34 PM ET) -- A Florida appeals court has found that the Seminole Tribe of Florida is immune from a slip and fall lawsuit filed by a woman who fell in a casino bathroom, saying the tribe wasn't subject to a sovereign immunity waiver at the time of the incident because it was between gaming compacts.

Florida's Fourth District Court of Appeal said Wednesday that a lower court was wrong to deny the tribe's motion to dismiss based on sovereign immunity as a matter of law. The court agreed with the tribe that there was no established, enforceable resolution or compact that Included a sovereign Immunity waiver in 2009 when Delores Schinneller alleged she was Injured.

"There is no factual dispute," the appeals court wrote. "The trial court departed from the essential requirements of law when it denied the tribe's motion to dismiss. This harm is irreparable if immunity is not given its Intended effect."

Schinneller sued the tribe for personal injuries after she slipped and fell in a restroom at the Seminole Hard Rock Hotel and Casino in Hollywood, Florida, court documents said.

Schinneller said in court documents that the tribe wasn't subject to state civil jurisdiction unless it waived its right to sovereign immunity - which she claimed it did.

The tribe did enter into a gaming compact with the state of Florida in 2007 that had a provision that it would provide tort remedies for patrons who claimed they were injured at certain parts of the casino.

However, the Supreme Court of Florida in 2008 said that the compact violated Florida law, so it was voided, court documents said.

"Nevertheless, the plaintiff maintained the tribe had waived Its sovereign immunity," the appeals court said.-

Another compact was approved in 2010, after the alleged slip and fall incident happened.

While the 2010 compact did maintain a limited sovereign Immunity waiver, the tribe said the later compact was not retroactive so it did not apply to Schinneller's complaint.

The tribe also provided an affidavit that said that no sovereign Immunity waiver was In effect at the time of Schlnneller's lawsuit, which she did not dispute, court documents said.

Daniel A. Kirschner, one of the tribe's attorneys, said the tribe Is pleased with the appeal court's ruling, and that it solidified ttie tribe's right to sovereign immunity before the 2010 gaming compact.

Jonathan J. Luca, Schinneller's attorney, said the affidavit the court cited is erroneous because the person who gave It quoted from tribal history from the 1800s, so it couldn't be based on personal

https://www.law360.com/articles/823033/prlnt?section=appellate 1/2

81112016 Fla. Appeals Court Says Tribe Was Immune Between Compacts- Law360

knowledge. He also argued that the tribe agreed to waive sovereign immunity when it adopted the 2006 resolution that allowed the tribe to enter into the 2007 compact, and always functioned as if the compact were valid.

Schlnneller is represented by Jonathan J. Luca of Muench & Luca PLLC.

The Seminole Tribe is represented by Daniel A. Kirschner, Mark D. Schellhase and Jeffrey T. Kuntz of GrayRobinson PA.

The case is Seminole Tribe of Florida v. Delores Schinneller, case number 4015-1704 , the Fourth District Court of Appeal of the State of Florida.

All Content© 2003-2016, Portfolio Media, Inc.

https://www.law360.com/articles/823033/prlnt?section=appellate 212

6/18/2015 An appeals court upheld a lower court's decision that Coral Springs erred in collecting truces from a hospital district - Sun Sentinel

Court to Springs: repay $430k in fees collected from hospital

By Lisa J. Huriash Sun Sentinel

JUNE 18 , 2015 , 3 :02 PM I CORAL SPRINGS

T he city could soon be on the hook to pay back nearly $430,000 in taxes it improperly collected over the last five years from the agency which runs the hospital formerly lmown as Coral Springs Medical Center.

Last week the 4th District Cornt of Appeal in West Palm Beach upheld a lower cornt' s ruling that the city's fire

assessment fee on the hospital is a tax, and governments are not allowed to tax other governments. The hospital is run by the North Broward Hospital District, itself a taxing agency.

"Taxpayers are the ones who fund this hospital district and their money should go toward the operation of the

hospital district and not fund a component of the city's government," said John Herin, the Fort Lauderdale

attorney who represented the hospital district.

It is not the hospital's job "to fund the fire depa1tment in Coral Springs," he said.

The city has argued there was no tax, rather the city was levying a special assessment which can be passed on to taxpayers.

Coral Springs began charging the hospital dish·ict the fire assessment fee in 2010 to pay for fire service and ·

contribute toward the cost of equipment and new fire engines.

Coral Springs officials said the assessment is fair "because they use our fire services," said city attorney John "J.J."

Hearn. "If they don't [pay], the city pays for their fire service."

Wednesday night, the Coral Springs City Commission agreed to ask the cornt for a re-hearing, although the city

attorney warned them the decision might not be reversed.

Thursday, Commissioner Dan Daley criticized the hospital dish·ict for spending money on such things as signing a three-year endorsement with Miami Dolphins qua1terback Ryan Tannehill to represent Broward Health's

orthopedics and spmts medicine program.

Tannehill was paid $100,000 in 2013, $no,ooo in 2014 and $121,000 this year to be their spokesman.

''You are willing to pay somebody to be on your billboard but you aren't willing to pay for services you take part in, in a city?" Daley said.

And the hospital is "one of our largest users in the city," said City Manager Erdal Donmez.

Herin, the hospital's attorney, said he hopes the city will make quick "arrangements to refund the money."

The bill is at $428, 750.95, about $19,000 of which is interest.

[email protected] or 954-572-2008

http://www.sun-sentinel .com/local/broward/fl-springs-payback-hospital-20150618-story.html 1/3

AA22 dailybusinessreview.com MONDAY, DECEMBER 7, 201 s

FROM PAGE AA21

POSITION

SPECIAL REPORT MOST EFFECTIVE LAWYERS OF 201S An ALM Publication

gallons of wastewater each day and injecting the treated water into deep wells in the boulder zone of the lower Floridan Aquifer.

advanced wastewater treatment by 2018 to cease using ocean outfalls by 2025 and to reuse 60 percent of the flows by 2025.

The plant also will reduce the need to pwnp wastewater from western to eastern developments, as well as flows at both the central and north wastewater treatment plants. This facility will also decrease flooding resulting from heavy rainfall by mov-( ing a significant portion of the cow1ty's treatment capacity to the west where storm surges are not an issue.

CH2M's responsibilities include developing and managing the program master schedule and task schedules, and phasing the project work to meet the OOL requirements, as well as providing budget and cost oversight of all the program elements.

As program manager, CH2M will manage overall delivery of the program, including design, procurement, construction and commissioning of the component projects. The engineering finn also will oversee all the activities necessary to reverse the wastewater system flows away from the ocean outfalls and reroute them to a new membrane bioreactor treatment plant.

The plant, to be known as the West District wastewater treatment plant, will be one of the largest of its kind in the world, capable of treating more than 100 million

CH2M also is responsible for providing construction managers, coordinators and engineers; start-up specialists; inspectors; safety officers; and administrative personnel for the project.

PUBLIC INTEREST-FINALISTS

Construction is expected to take eight to 10 years and, upon completion, meet projected demands through 2035.

GrayRobinson Attorneys Take On Case Against City's Service Fees JOHN R. HERIN AND JEFFREY T. KUNTZ GrayRobinson

In 1996, the City of Coral Springs started assessing a fire service fee on city properties. In 2010, local officials began to levy that assessment on properties owned by the North Broward Hospital District , which holds the Coral Springs Medical Center. The district paid the fees through its 2014-15 fiscal year, but it then advised the city that it believed the assessment was improper. The district requested that the assessments end and prior assessments be refunded.

The city refused. As a result, John R. Herin and Jeffrey T. Kuntz, shareholders at GrayRobinson, filed suit on behalf of the district. After hearing argument on the issue, the trial court granted the district's motion for summary judgment. The city appealed to the Fourth District Court of Appeal, but Herin and Kuntz won there as well. The city was required to end the assessment and refund all previously paid fees, plus accrued interest.

Herin and Kuntz based their arguments on a 2012 Florida Supreme Court ruling. In recent years many Florida cities and counties have imposed or attempted to impose a wide range of assessments and/or fees on property owned by other government agencies-including school boards, state universities and colleges, hospital dis - Herin tricts and community develop-ment districts. The fees are for fire and police services, storm water, etc. In 2012 , the court ruled that unless the enabling legislation of a special district or state agency provides that its property is subject to such assessments, the imposition of an assessment by any other governmental agency is illegal.

According to GrayRobinson, the outcome of this case will have statewide implications on the way cities, counties and special districts levy and impose

ATTORNEYS AT LAW I SINCE 1910

is proud of

Kuntz

special assessments on property owned by other government agencies, which in tum will affect the way those cities, counties and special districts prepare their annual budgets and allocate funds for capital improvements and day-to-day operations.

Herin and Kw1tz brought complementary skills to the assignment. Herin is certified in city, cow1ty and local government law. He has served as the city at

torney for the cities of Marathon and Doral, and as counsel to numerous local governments and quasigovernmental agencies in a wide array of matters.

Kuntz handles complex commercial litigation and appellate matters. He has argued cases in every district court of appeal in Florida, the Florida Supreme Court and the U.S. Court of Appeals for the Eleventh Circuit, as well as the federal and state trial courts throughout Florida.

for being recognized as one of the

Most Effective Lawyers in complex/business litigation.

C':_'jrrd./uwM {//-' ~ r£ ~n:rJ. shutts.com

FORT LAUDERDALE I MIAMI I ORLANDO I SARASOTA I TALLAHASSEE I TAMPA I WEST PALM BEACH

An ALM Publication DAILY BUSINESS REVIEW THURSDAY, AUGUST 28, 2014 dailybusinessreview.com A3

FLORIDA LAW REVIEW

Condo association's $5 million claim denied by Adolfo Pesquera [email protected]

A Palm Beach County condominium association's $5 million hurricane damage claim was rejected and the case dismissed in favor of the Florida Insurance Guaranty Association.

Boca Bayou Condominium Association Inc. already obtained three payments for damages from Hurricane Wilma in 2005. Southern Family Insurance Co., the association's insurer, paid $200,000. according to a summary judgment order issued by Circuit Judge Jack Cox on Aug. 12.

Southern Family later declared insolvency, and FIGA assumed its claims. FIGA hired an independent adjuster. Rocky Mountain Cat Inc., which estimated total damage of $3.38 million. After deducting the initial payment, FIGA cut Boca Bayou a check for the remainder, Cox's order explained. On Dec. 4, 2006. Boca Bayou demanded another appraisal. Each side had its own appraiser. An umpire awarded more than $1.7 million in new money, Cox said. The state-created nonprofit paid again in 2008.

"The court finds that the contractually agreed-to appraisal process has been completed and that the disputed issue has been resolved by appraisal and payment," Cox declared. "This

MELANIE BEtt

Broward Grcuit Judge Jack Cox ruled against Boca Bayou, saying the appraisal and payment for roof damage from Hurricane Wilma had already been resolved.

court reserves jurisdiction to determine FIGA's entitlement to attorney's fees and costs," he added.

Ronald E. D'Anna at McClosky D'Anna & Dieterle in Boca Raton represented Boca Bayou. II e said he would ask for a rehearing and would recommend an appeal if unsuccessful.

"The sad part is the unit owners ultimately had to be assessed to repair the roofs . and that's where the hardship lies," D'Anna said.

He disagreed with Cox's finding on a factual issue;

only one of two schedules listing itemized damages was attached. FIGA's original adjuster found every building sustained roof damage. he said. But the second FIGA adjuster determined only seven of 18 roofs were damaged.

"The association had a right to rely on FIGA's adjusters when they said damage was suffered to all 18 roofs . FIGA should have been precluded. almost two years after the fact, from second-guessing its own appraiser," D' Anna said.

Because of that issue. summary judgment was not appropriate, D'Anna claimed.

The case was before Cox because Boca Bayou filed a second amended complaint claiming it was still owed $5 million.

NOT ENOUGH FIGA was represented

by GrayRobinson attorneys Evan Appell . Jeffrey Kuntz and Philip Ward of For t Lauderdale .

GrayRobinson submitted a supplemental memoran-

dum to support its motion for summary judgment. It included details from the deposition of Boca Bayou's corporate representative. Peter McNeal.

Ile testified the Boca Bayou board was told if the appraisers could not agree on any contested issue, the umpire becomes the ultimate decision maker. McNeal said he wasn't present during talks between appraisers and lacked knowledge of the amounts considered.

McNeal also acknowledged a spreadsheet of itemized appraisal award accounted for every building.

Boca Bayou's appraiser, perhaps because he agreed with the result. did not lodge any objections during the appraisal process, Kuntz told the court.

"Boca Bayou's grievance is simple. They believe that they weren't getting enough money as a result of the appraisal award. Boca Bayou's roofing consultant. Brian Barrows of MacBrady Associates. told Boca Bayou that the amount of new money awarded 'was not enough money.' Boca Bayou's issue with the appraisal is that it wasn't awarded every single penny it was seeking, and it wants the full amount of what Mr. Barrows is telling them they should be paid," Kuntz concluded.

Adolfo Pesquera can be reached at (954) 468-2616.

Florida Supreme Court asked to rule on gay marriage by Gary Fineout The Associated Press

Florida's highest court is being asked to decide whether or not the state's ban on gay marriage is constitutional.

In an unusual decision, the state's Second District Court of Appeal on Wednesday asked the Florida Supreme Court to settle the question due to "great public importance." If the high court takes up the case, it could result in having the issue settled even before the U.S. Supreme Court acts.

The ruling is connected to a Hillsborough County divorce case involving a same-sex couple who had been married in Massachusetts but since relocated to the Tampa area. Their petition to dissolve their marriage was rejected by a Florida judge who noted that state law does not recognize gay marriage.

"Resolution of the constitutional questions will no doubt impact far more individuals than the two involved here," states the unsigned opinion. "And there can be little doubt that until the constitutional questions are fmally resolved by the Florida Supreme Court or the United States Supreme Court, there will be a great impact on the proper administration of justice in Florida."

A panel of judges with the Lakeland-based appeals court earlier this summer rejected a request to forward the case up the state Supreme Court. But that ruling was overturned in a 10-3 decision by the entire appeals court.

Florida Attorney General Pam Bondi has asked judges to stop ruling on samesex marriage cases until the U.S. Supreme Court decides whether states can ban gay marriage. But her request has

not been ruled on yet. Bondi's office was not involved in the Hillsborough County case, but a spokeswoman said the ruling is being reviewed now by the attorney general.

Voters approved Florida's ban in 2008.

But judges in four Florida counties- Palm Beach, Monroe, Miami-Dade and Broward- have overturned the ban. Last week a federal judge also overturned the ban. No mai:riage licenses have been issued so far as the cases have either been appealed or judges have issued a stay to delay the effect of the ruling.

Gay marriage proponents have won more than 20 legal decisions against state samesex marriage restrictions since the U.S. Supreme Court struck down a key part of the federal Defense of Marriage Act last year.

CANDACE WEST

Aorida Attorney General Pam Bondi has asked judges to stop ruling on same-sex marriage cases until the llJ.S. Supreme Court decides whether states can ban gay marriage.

11th Circ. Dismisses JPMorgan Foreclosure Doc Fraud Suit - Law360 6/16/14, 2:25 PM

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11th Circ. Dismisses JPMorgan Foreclosure Doc Fraud Suit By Benjamin Horney

Law360, New York (June 16, 2014, 2: 03 PM ET) -- The Eleventh Circuit on Friday affirmed a district court's dismissal of a lawsuit accusing JPMorgan Chase Bank NA of defrauding 58 plaintiffs during mortgage foreclosure proceedings, agreeing that the plaintiffs' allegations were too broad and lacked specific evidence.

In an unpublished opinion released on Friday, a three-judge panel for the appeals court agreed with a Florida district court's previous ruling that the plaintiffs failed to provide satisfactory evidence to back its claims that the bank used fradulent documents during foreclosure proceedings in violation of the Florida Civil Remedies for Criminal Practices Act - a state Racketeer Influenced and Corrupt Organizations statute that seeks to stop organizations from participating in "patterns" of criminal activity.

"Civil RICO claims, which are essentially a certain breed of fraud claims, must be pied with an increased level of specificity," the court wrote. "Although the appellants attempt to rely upon general allegations about JPMorgan's practices, they have not alleged sufficient facts or produced documentation to place JPMorgan on notice of either the content or time frame of particular mailings to the appellants ... "

The Eleventh Circuit said that the plaintiffs' complaint did not detail specific violations - rather, they simply stated generally that the bank had committed criminal activity and fraud, and alleged that the bank's actions would hurt them in the future, without giving any detail as to how in each individual case.

"It would be pure speculation to suggest that these appellants would be harmed by current or future foreclosures of other individuals' properties," the court wrote. "While those appellants with pending foreclosures would have standing to seek an injunction regarding their own proceedings, the appellants have not alleged a sufficient likelihood of injury from unrelated current or future foreclosures to establish standing."

The court also dismissed the notion that the case should be remanded to Florida state court, noting that 30 of the 58 plaintiffs did not even allege that any part of the criminal activity in their specific foreclosures occurred in JPMorgan's Florida facility, which is known as Baymeadows Hub.

"[Plaintiffs] must allege a connection between Florida and the alleged wrongful conduct," the court wrote. "[The complaint] does not allege sufficient facts to suggest that every appellant's foreclosure involved the Baymeadows Hub."

http://www.law360.com/ articles/ 548153 I print?section=appellate Page 1of2

11th Circ. Dismisses JPMorgan Foreclosure Doc Fraud Suit - Law360 6/16/14, 2:25 PM

The case dates back to August 2011, when the 58 plaintiffs - who hail from a variety of U.S. states, including Florida, Arizona, California, Hawaii and New York, among others - filed suit against JPMorgan in a Florida state court, claiming the bank produced "false or fraudulent documents" at a Jacksonville, Florida facility known as Baymeadows Hub.

The suit alleged that the false or fraudulent documents produced at Baymeadows included declarations of compliance with California's foreclosure procedures, notices of default and elections to sell, collection letters and pleading.

11These documents allegedly contained misrepresentations that JPMorgan or Chase Home Finance was a successor in interest to loans originally made by Washington Mutual Bank, that the Mortgage Electronic Registration Systems Inc. had an interest in various mortgages, and that JPMorgan properly complied with the special safeguards for borrowers in various states," the court wrote.

JPMorgan removed the case to the U.S. District Court for the Southern District of Florida in October 2011, and multiple attempts by the plaintiffs to have the case remanded back to state court have been rejected.

Representatives for both sides were not immediately available to comment on Monday.

The three-judge panel was comprised of Circuit Judge Stanley Marcus and District Judges L. Scott Coogler and Dudley H. Bowen Jr.

Plaintiffs are represented by William Jeffrey Barnes.

JP Morgan is represented by Jeffrey T. Kuntz, Thomas Holland Loffredo and Ronald Joseph Tomassi Jr. of GrayRobinson PA.

The case is Veldora Arthur, et al. v. JPMorgan Chase, et al., case number 12-12317 in the U.S. State Court of Appeals for the Eleventh Circuit .

. ~~~c:ji~!J'l9 .. IJY ~mily Kokoll. All Content © 2003-2014, Portfolio Media, Inc.

http:/ /www.law360.com/ articles/ 548153 /print?section=appellate Page 2 of 2

The Voice - March 11,. 2009

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And The Defense Wins

In a three-week jury trial before Judge Ana Gardiner in Broward County, Florida, ORI members Philip Ward , Roland Schwartz and Jeffrey Kuntz of Gray Robinson, P.A. in Fort Lauderdale-successfully represented a client in a 2002 case raising claims of retaliatory discharge and tortious interference.

The plaintiff wore a wire for the Department of Labor and Department of Justice and recorded more than 200 conversations that eventually led to the 2007 conviction of several former officials of the client and a non-party. The plaintiff alleged that his termination in 2000 occurred as retaliation when it was discovered he was cooperating with the government.

The defense presented evidence establishing that the plaintiff was the co-creator of the criminal conspiracy, that he only cooperated with the government after the government was closing in on the illegal operation, that the plaintiff refused to cooperate in an internal investigation into the illegal acts and that the plaintiff's termination was justified, based upon his illegal conduct.

On January 28, 2009, the jury concluded that the client was not liable for the termination.

The plaintiff has filed numerous other lawsuits against the client since his termination, including alleged violations of the federal Major Fraud Act, the federal False Claims Act, the ERi SA Whistleblower Act, the federal RI CO Act, the Florida RI CO Act, and defamation. He has sought between $5,000,000 and $178,000,000 in the various lawsuits. The team has now successfully defended the client in each of the lawsuits. The team had previously prevailed with prejudice on a motion to dismiss in another state case, won the federal ERISA case, Merriken v. Am. Maritime Off. Vacation Plan, et al, 08-60687, 2008 WL 4899126 (S.D. Fla. Sept. 29, 2008), and prevailed on ERISA preemption grounds in Florida's Fourth District Court of Appeal Am. Maritime Off Union v. Merriken, 981 So. 2d 544 (Fla. 4th DCA 2008) .

VOLUME 8 ISSUE 10

Appeals Court Asked To Revive Fla. Keys Takings Case - Law360

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Appeals Court Asked To Revive Fla. Keys Takings Case

By Carolina Bolado 0 Comments Share us on :

Law360, Miami (June 19, 2013, 5:16 PM ET} -- A Florida couple on Wednesday asked an

appeals court to reinstate their suit over what they say is a regulatory taking of their nine

acre offshore island, arguing that the government had the burden of proving that

increasingly strict regulations didn't amount to a taking.









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Gordon and Molly Beyer told Florida's Third District Court of Appeal that a trial court erred

in granting summary judgment to the city of Marathon and the state of Florida on the basis

of laches, meaning that the Beyers had unreasonably delayed pursuing their claim and

exercising their rights regarding the Florida Keys property.

But just because they had let the property remain undeveloped for almost three decades

before taking any action does not mean that the landowners slept on their rights, their

attorney Andrew Tobin said. The Florida Supreme Court did not even recognize a

regulatory taking until 1990, he said.

"Laches is an equitable principle where someone has to be prejudiced," Tobin said. "The

government hasn't been prejudiced by passing a law that affects lots of people. If it did,

everybody who bought vacant land would be at risk."

He added that there is no requirement that a property owner must apply for a permit by a

certain time or forfeit his or her rights.

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Page 1 of 3

Appeals Court Asked To Revive Fla. Keys Takings Case - Law360

The Beyers bought Bamboo Key, a nine-acre offshore island in the Florida Keys in 1970,

when it and other similar islands were zoned for "general use" and were allowed

development of one dwelling unit per acre, according to court documents.

Monroe County in 1986, after adopting the state's comprehensive plan, changed the

zoning designation of the land to "offshore island," which limited development to one unit

per 1 O acres, according to court documents. Ten years later, Monroe County adopted a

new comprehensive plan that prohibited development on the island because it was

classified as a bird rookery, according to court documents.

In 1997, the landowners applied for a beneficial use determination under the 1996 plan,

which, after some delay on the part of the city, was denied because the Beyers had sat on

the property for 30 years without doing anything with it and because the recreational uses

- such as camping and hiking - and rate of growth ordinance points assigned to the

property reasonably met their investment-based expectations, according to court

documents.

Tobin said the effect of this determination was a "total wipeout," although Judge Richard J.

Suarez pointed out that the ability to camp there combined with the ROGO points did not

make it a total loss.

"The ability to walk on your property and take a nap is not a reasonable economic use,"

Tobin said. "They have to come in and conclusively negate that this is a taking."

The city's attorney Jeffrey Kuntz of GrayRobinson PA told the appeals court that the

Beyers never presented any evidence showing exactly what their investment-based

expectations for the property were when they bought it in 1970. Just because the

regulations at the time of purchase allowed for the construction of up to eight single-family

homes did not mean that the Beyers planned to build any or all of them, Kuntz said.

"They came forward with nothing," Jonathan Glogau, who represented the state, said.

"They did not meet their summary judgment burden. They never said anything about what

they actually intended to do."

Judges Linda Ann Wells, Richard J. Suarez and Barbara Lagoa sat for the Third District.

The Beyers are represented by James S. Mattson and Andrew M. Tobin.

The city is represented by John Herin and Jeffrey T. Kuntz of GrayRobinson PA.

The case is Beyer et al. v. City of Marathon et al., case No. 3D12-777, in the Third District

Court of Appeal of Florida.

--Editing by Chris Yates.

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Fla. Court Affirms Dismissal Of Couple's Takings Suit - Law360

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Fla. Court Affirms Dismissal Of Couple's Takings Suit

By Carolina Bolado 0 Comments Share us on :

Law360, Miami (November 06, 2013, 5:47 PM ET) -- A Florida appeals court on

Wednesday affirmed the dismissal of a Florida couple's suit claiming that increasingly

restrictive development regulations affecting their nine-acre offshore island was a taking of

their property.

Florida's Third District Court of Appeal affirmed a trial court's summary judgment decision

in favor of the City of Marathon, saying that property owners Gordon and Molly Beyer had

not presented any evidence showing they had investment-backed expectations for the

Florida Keys property they bought in 1970.

"The record is devoid of evidence that - not only at the time of purchase, but in all the

intervening years - the Beyers pursued any plans to improve or develop the property.

They provided no evidence of investment-backed expectations at or since the time the

property was purchased, nor demonstrated any reasonable expectation of selling the

property for development," the appeals court said.

The appeals court said that Monroe County's assignment of rate of growth ordinance

points to the property in addition to the allowed recreational uses, such as camping and

hiking, met the Beyers' economic expectations for the land.

The Beyers bought Bamboo Key, a nine-acre offshore island in the Florida Keys in 1970,

when it and other similar islands were zoned for "general use" and were allowed

development of one dwelling unit per acre, according to court documents.

Monroe County in 1986, after adopting the state's comprehensive plan, changed the

zoning designation of the land to "offshore island," which limited development to one unit

per 1 O acres, according to court documents. Ten years later, Monroe County adopted a

new comprehensive plan that prohibited development on the island because it was

classified as a bird rookery, according to court documents.

In 1997, the landowners applied for a beneficial use determination under the 1996 plan,

which, after some delay on the part of the city, was denied because the Beyers had sat on

the property for 30 years without doing anything with it and because the recreational uses

- such as camping and hiking - and rate of growth ordinance points assigned to the

property reasonably met their investment-based expectations, according to court

documents.

The Beyers' attorney Andrew Tobin told the appeals court in oral arguments in June that

the effect of this determination was a "total wipeout."

http://www.law360.com/ articles/ 486880 /fla-court-affirms-dismissal-of-cou ple-s- taki ngs-suit

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Fla. Court Affirms Dismissal Of Couple's Takings Suit - Law360

"The ability to walk on your property and take a nap is not a reasonable economic use,"

Tobin told the court. "They have to come in and conclusively negate that this is a taking."

Jeffrey Kuntz of GrayRobinson PA, who represented the city in the dispute, said that the

ruling reaffirmed that a landowner must show loss of all economically beneficial use of the

property in order to recover on an applied takings claim.

"The result also helps support the universal goal of protecting the environment by

upholding enforcement of the zoning district regulating 'properties which have natural

limitations to development because of their sensitive economic character,"' Kuntz said.

An attorney for the Beyers could not immediately be reached for comment Wednesday.

Judges Linda Ann Wells, Richard J. Suarez and Barbara Lagoa sat for the Third District.

The Beyers are represented by James S. Mattson and Andrew M. Tobin.

The city is represented by John Herin and Jeffrey T. Kuntz of GrayRobinson PA.

The case is Beyer et al. v. City of Marathon et al., case No. 3D12-777, in the Third District

Court of Appeal of Florida.

--Editing by Philip Shea.

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Page 2 of 2

Fla. Appeals Court Revives Shipping Damage Suit - Law360 12/27/13, 8:33 AM

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Fla. Appeals Court Revives Shipping Damage Suit

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Law360, Miami (December 18, 2013, 8:04 PM ET) -- A Florida appeals court on

Wednesday reversed the dismissal of a lawsuit over goods allegedly damaged during a

shipment from Miami to the Bahamas, rejecting the cargo company's argument that the

Carriage of Goods by Sea Act carries stricter requirements than a statute of limitations.

The three-judge panel from the Third District Court of Appeal disagreed with defendant

Bimini Shipping LLC's position that the trial court correctly - and with proper authority -

dismissed the suit on the basis that its contract with Miami-based Federal Contracting Inc.

fell under the Carriage of Goods by Sea Act, which, it claimed, courts have found to be a

statute of repose.

A statute of repose is stricter than a statute of limitations because the clock starts ticking

from the time of delivery of the goods and expires - in this case after one year -

regardless of whether a cause of action accrues, Bimini said in its brief.

At the same time, the appeals panel agreed with the plaintiff, which does business as

Bryan Construction Inc., that an arbitrator should decide procedural issues arising from a

contract containing broad arbitration provisions, as its pact with Bimini did.

The ruling remanded the case with instructions for the trial court to vacate its dismissal

order and issue a new order granting Bryan's motion to compel arbitration without

prejudice to Bimini to raise any appropriate defenses.

"Florida law favors arbitration as a matter of public policy, and broad arbitration provisions

should be construed in favor of allowing arbitration of the disputed subject matter," the

opinion said, citing the 2006 Second District case O'Keefe Architects Inc. v. CED

Construction Partners Ltd.

The Third District panel concurred with the finding in O'Keefe that "in general, issues of

timeliness are to be decided by the arbitrator." O'Keefe dealt with an arbitration clause

substantially identical to the current one, the court said.

Bimini's argument regarding the Carriage of Goods by Sea Act was misguided, the judges

said. While Bimini correctly said there was a substantial distinction between a statute of

repose and a statute of limitations, the Florida Supreme Court and the Third District have

held in several cases that the act has a statute of limitations and no case law has been

found to the contrary.

Federal courts have noted similarities in the law to a statute of repose, but have also

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Fla. Appeals Court Revives Shipping Damage Suit - Law360

called it a limitation period, according to the opinion.

The appeals panel also noted that Bimini referred to the Carriage of Goods by Sea Act as

a statute of limitation in the earlier proceedings.

"Only in its brief on appeal has Bimini tried to draw this distinction and categorize the

COGSA provision as a statute of repose that deprives the trial court and arbitrator of

jurisdiction," the Third District said.

Counsel for Bimini said he understand the court's ruling but believed it failed to appreciate

the significance of the Carriage of Goods by Sea Act limitation.

"Although COG SA states, in effect, that a court cannot entertain a claim filed beyond one

year from the date delivery of goods should have been made, this decision allows a court

to do just that since it interprets and enforces a provision of the contract allowing the

claimant to further pursue its claim," attorney Irv J. Lame! said.

The dispute arose from a May 2011 contract Bryan signed with Bimini for the shipment of

certain goods from Miami to the Bahamas. During a September 2011 shipment, some

goods were damaged and had to be replaced, according to Bryan's brief.

The sides were unable to agree on compensation for Bryan, and on May 30, 2012, Bryan

sent Bimini a demand for arbitration. After Bimini repeatedly failed to respond to requests

to agree on an arbitrator, Bryan filed its complaint in February seeking to compel

arbitration, the brief says.

Bimini moved to dismiss on the basis that the claim was barred by a one-year statute of

limitations under the Carriage of Goods by Sea Act. Bryan said the limitations period

defense should be determined by an arbitrator, but the trial court granted Bimini's motion.

Judges Linda Ann Wells, Leslie B. Rothenberg and Kevin Emas sat on the panel for the

Third District.

Bryan is represented by Jeffrey T. Kuntz and Evan D. Appell of GrayRobinson PA.

Bimini is represented by Jan A. Yelen of Yelen & Yelen PA and Irv J. Lame!.

The case is Federal Contracting Inc. v. Bimini Shipping LLC, case number 3Dl3-1466, in

the Third District Court of Appeal of the State of Florida.

--Editing by Jeremy Barker.

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Page 2 of 3

Lockheed Consultant Can 't Reopen Pregnancy Suit: 11th Circ. - Law360

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Lockheed Consultant Can't Reopen Pregnancy Suit: 11th Circ.

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Law360, New York (April 09, 2013, 4:34 PM ET) -- The Eleventh Circuit said Tuesday that

a jury's verdict rejecting a former Camp Dresser & McKee Inc. employee's pregnancy

retaliation case now prevents her from attempting to reopen claims alleging she was

removed from a Lockheed Martin Corp. project because she took maternity leave.









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In a published opinion, the appeals court said Jeannine DuChateau is directly estopped

from relitigating whether consulting firm COM violated the Florida Civil Rights Act and

Family Medical Leave Act. In January 2012, a jury determined that DuChateau had not

suffered an adverse employment action because she was removed from the Lockheed

project.

The jury considered only DuChateau's retaliation claim, after a magistrate judge had nixed

her FCRA pregnancy discrimination and FMLA interference claims. Her appeal sought to

overturn the court's prior decision. But the jury's decision renders the appeal moot, the

Eleventh Circuit said Tuesday.

"The finding by the jury that DuChateau suffered no adverse employment action in her

claim of retaliation bars a trial before another jury of her claim of pregnancy

discrimination," the opinion said. "Even if there was a cause of action for pregnancy

discrimination under the Florida act [it] would be constructed in the same manner as a

cause of action for pregnancy discrimination under Title VII of the Civil Rights Act of

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Lockheed Consultant Can't Reopen Pregnancy Suit: 11th Circ. - Law360

1964."

DuChateau sued COM fn April 2010, after she agreed to a voluntary layoff. According to

the complaint, DuChateau was forced out of her role as head of a Lockheed

environmental project after she told COM that she was pregnant and planned to take a

leave of absence.

She alleged that the head of Camp's Lockheed customer relations called her irresponsible

for getting pregnant while managing the project. DuChateau claimed she was forced to

resign from the Lockheed project days before she went on maternity leave in January

2009.

During the plaintiff's leave, COM began laying off workers, issuing furloughs and reducing

hours of employees in DuChateau's division, the complaint said. Lockheed also

significantly reduced its budget for the environmental project she was working on,

according to the complaint.

DuChateau returned to work in April 2009. She said she returned to the same position and

neither her duties, pay or benefits changed. In June of that year, her hours were reduced

from 40 hours per week to 24 hours per week during a slowdown in CD M's workload. She

agreed to accept a layoff after receiving an offer from a COM competitor.

Attorneys for the parties were not immediately available for comment Tuesday.

DuChateau is represented by G. Ware Cornell Jr. of Cornell & Associates PA.

COM is represented by Tom Loffredo and Jeffrey T. Kuntz of GrayRobinson P.A.

The case is DuChateau v. Camp Dresser & McKee Inc., case number 12-10838, in the

U.S. Court of Appeal for the Eleventh Circuit.

--Editing by Andrew Park.

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By Jacob [email protected]; 239-213-6042

They better call Saul.Three men need good lawyers

after Lee County sheriff’s investi-gators seized about 79,000 packetsof synthetic marijuana valued at$1.2 million from three San CarlosPark homes this week, Sheriff MikeScott said Thursday. At the houses,deputies found hundreds of mon-ey orders, a bin of receipts, about$20,000 in cash and six guns.

The operation alone is surpris-ing: three men running a nationaldrug ring based out of a home in thewestern shadow of San Carlos ParkElementary School.

But in a strange twist, Ryan Car-roll, 28, who investigators have

pinpointed as the ringleader, madeheadlines in September whenhe won a trip to watch the seriesfinale of “Breaking Bad,” a televisionshow centered on chemistry teacherturned methamphetamine kingpin

By Aisling [email protected]

The owner of a now-defunct Marco Islandpharmacy filled prescrip-tions for known drug ad-dicts, destroyed evidencethat covered his tracks,and has “blood on hishands,” according to re-cently filed court docu-ments.

However, Island Drugpharmacist Larry Heine’sattorney branded those al-legations an “exaggerateddepiction” not supportedby facts.

The flurry of motionsand responses filed in thepast few weeks are the lat-est chapters in an ongoingcivil rights lawsuit filedby Larry and Susan Heineagainst Marco Island Po-lice and its former chief,

‘Bloodon hishands’

DANIA MAXWELL/STAFF

Lee County Sheriff Mike Scott speaks at a news conference Thursday in Fort Myers about a New Year’s Eve drug bust. In the raid of three San Carlos Parkhomes, investigators confiscated hundreds of prepackaged synthetic marijuana packets worth about $1.2 million and six guns. Subscribers can see morephotos from the drug bust and watch an interview with Scott at naplesnews.com.

Fan’s home ‘tricked out’

In this photofrom Facebook,San Carlos Parkresident RyanCarroll, left,hangs out with“Breaking Bad”actor AaronPaul in Califor-nia after Carrollwon a contestin September.While “BreakingBad” is a ficti-tious televisionshow centeredon a meth king-pin, the chargessuspected drugkingpin Carrollfaces are real.

Marco pharmacyLee County | ‘Breaking Bad’ bust

LOCAL | ANNUAL ROUNDUP

Offbeat crimes of ’13Crime is no laughing matter.Until, of course, it is. Therewas no shortage in South-west Florida in 2013, fromthe suspected burglar whogot caught in a chimney to awoman who told a troopershe wanted to “taste theocean.” PAGE 5A

■ Deputies confiscate $1.2 million in fake marijuana packets, $20K in cash, 6 guns

■ Cops, formeremployee sayowner knowshe filled scriptsfor drug dealers

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By Katherine [email protected]; 239-263-4764

Collier County’s first Floridapanther fatality of the year willno doubt put some minds at easein Golden Gate Estates.

State wildlife officials had been

working since late November totrap and relocate the panther thatwas killed about 12:30 a.m. Thurs-day near mile marker 111 in thesouthbound lanes of Interstate 75.

Florida Fish and Wildlife Con-servation Commission biologistsbelieve the panther is the same

one seen lingering in yards in thatarea for months. The animal hadan unusual white marking on itsleft ear, which leads biologists tobelieve it was the same one, ac-cording to a state agency newsrelease.

John Welch said he knew as

soon as he hit the animal that hehad struck a dead panther lyingin the road.

“There was no doubt in mymind,” he said.

Welch, who was in a pickup,

Dead panther on I-75 believed to be one marauding in Estates

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BOSTON — A snow-storm pushing intothe Northeast forcedairlines to cancel2,300 flights Thursday,including some at RSW.

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speculate that someof (Ryan Carroll’s)involvement is (tied to)the show because it sopatterns the show.”

Lee County Sheriff Mike Scott

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10A » Friday, January 3, 2014 » N A P L E S D A I LY N E W S

Thom Carr. The Heines, who shut theirMarco Town Center store in July, accusedpolice and Carr of harassing them andtheir customers, demanding they ceasefilling prescriptions for nonlocals.

Police and Carr, however, blame theHeines’ greed for the loss of business,contending they brought a “criminal el-ement” to the area, harming citizens andnearby businesses and prompting policeaction.

“Island Drug’s owners shirked theirown professional and ethical responsibili-ties to prevent prescription drug abuse,diversion and fraud by ignoring obviousred flags seen by everyone else, includingtheir own employees,” says a motion forsummary judgment filed in U.S. DistrictCourt in Fort Myers.

Hundreds of pages of depositions byemployees and neighboring store own-ers, the motion and expert’s report painta picture of a shop that knowingly filledprescriptions for dealers, addicts, painclinics, even doctors who had pendingcomplaints, were already shut down oreventually lost their licenses.

The pharmacy sold more than 1 mil-lion oxycodone pills in 2010, “a mind-boggling” volume “astronomically” abovethe national store average of 69,000 pills,the motion says. It notes the mom-and-pop drugstore doubled its annual incomein 2009 and 2010, reaching about $1 mil-lion by attracting customers statewide,nearly all cash-paying.

As a result, pharmaceutical companies,one-by-one, stopped supplying the store.Meanwhile, employees said parents ofsome customers who died of overdosescalled to blame owner Larry Heine for“ruining their child’s life.”

“He’s got blood on his hands,” anotheremployee, Island Drug’s relief pharma-cist Donald Norman, testified in his de-position, noting he discovered some pre-scriptions Heine filled clearly were fakes.“People died because of these drugs.”

Norman said many customers were“drug addicts and abusers and called thequantities doctors dispensed “just over-whelming.”

“I remember one for methadone ...that’s enough to kill 10 horses,” he testi-fied.

Employees and shop owners describedgangs of customers, “lowlifes and trailertrash” who came in carloads, bumped intoshelves, were high on drugs, incoherentand sold their prescriptions outside. Oneshop owner said everyone knew addictsflocked to Island Drug because it didn’thave a computer system to track fraud.

By June 2012, pharmaceutical suppliershad all dropped Island Drug, and othersdeclined to supply it, depositions say. Itwas for that reason, not harassment, that

the Heines lost business, the defendantscontend, asking Judge John Steele to dropthe lawsuit.

“The rise and fall of Island Drug hasnothing to do with the actions of theMIPD and everything to do with IslandDrug’s desire to take advantage of theoxycodone boom in Florida,” the motionsays.

But the Heines say they never violatedlaws or regulations, all prescriptions werelegally filled and they were just trying tomaximize their profits. They blameddoctors for overprescribing painkillers,the government for not enacting laws tostop it and contended police “acted likea bull in a china shop,” shattering theircivil rights.

“Defendants might as well have as-sailed an automobile dealer for sellingcars that might cause vehicle accidentsor a gun shop for selling weapons thatmight cause harm,” their attorney, Mi-chael McDonnell, wrote in his response.“Defendants had their sights on the wrongtarget.”

Last week, Jeffrey Kuntz, the lead at-torney for the defendants, asked the judgefor sanctions against the Heines, to allowthem to tell jurors the Heines destroyedincriminating evidence, wiping theircomputers clean and taking them to arecycling center; smashing one using “agarbage bag and a hammer”; and gettingrid of DVDs and CDs.

Employees had testified Heine markedhis records “suspected dealer,” “possibleabuser,” “sharing (drugs)” — showing hehad knowledge, yet filled the prescriptionsanyway. Those were among the recordsthe defendants say the Heines destroyedand were not included in records theygave CVS, which purchased the store ac-counts.

Paul Doering, a University of Floridapharmacy professor hired as a defenseexpert, has been hired for many criminalcases against pharmacists for “preciselythe same activity” — and all resulted in aconviction at trial or plea deal.

“It was inevitable that their dispensingpractices would ultimately come to theattention of the suppliers, if not the DEA,”Doering wrote.

The motion for summary judgment — alast step before trial — asks Judge Steele toforeverdismiss the lawsuit,which is set fortrial in February. For the defense to win onsummary judgment, a judge must deter-mine there are no genuine disputes overany material facts left for a jury to decide.

PHARMACYfrom 1A

DAILY NEWS FILE

Marco Island pharmacist Larry Heine was the owner of the now-defunct Island Drug, whichsold more than 1 million oxycodone pills in 2010, “a mind-boggling” volume “astronomically”above the national store average of 69,000 pills, a court motion says.

The Heines say theynever violated laws orregulations, all prescrip-tions were legally filledand they were just tryingto maximize their profits.

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marco eagleMARCO ISLAND | GOODLAND | ISLES OF CAPRI | EAST NAPLES

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TERMINATIONCOMMUNITY AFFAIRS DIRECTOR BYAN MILKLET GO AFTER SHORT SUSPENSION PAGE 4A

ISLAND DRUGS UPDATEPHARMACIST LARRY HEINEDISPUTES ALLEGATIONS PAGE 9A

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By Aisling SwiftStaff

The owner of a now-defunct MarcoIsland pharmacy filled prescriptions forknown drug addicts, destroyed evidencethat covered his tracks, and has “bloodon his hands,” according to recently filedcourt documents.

However, Island Drug pharmacistLarry Heine’s attorney branded thoseallegations an “exaggerated depiction”not supported by facts.

The flurry of motions and responsesfiled in the past few weeks are the lat-est chapters in an ongoing civil rightslawsuit filed by Larry and Susan Heineagainst Marco Island Police and its for-mer chief, Thom Carr. The Heines, whoshut their Marco Town Center store inJuly, accused police and Carr of harass-ing them and their customers, demand-ing they cease filling prescriptions fornon-locals.

Police and Carr, however, blame theHeines’ greed for the loss of business, con-tendingtheybroughta“criminalelement”to the area, harming citizens and nearbybusinesses and prompting police action.

“Island Drug’s owners shirked theirown professional and ethical respon-sibilities to prevent prescription drugabuse, diversion and fraud by ignoringobvious red flags seen by everyone else,including their own employees,” says amotion for summary judgment filed inU.S. District Court in Fort Myers.

Hundreds of pages of depositions byemployees and neighboring store own-ers, the motion and expert’s report painta picture of a shop that knowingly filledprescriptions by dealers, addicts, painclinics, even doctors who had pendingcomplaints, were already shut down oreventually lost their licenses.

The pharmacy sold more than 1 millionoxycodone pills in 2010, “a mind-bog-gling” volume “astronomically” abovethe national store average of 69,000 pills,the motion says, noting the mom-and-pop drugstore doubled its annual incomein 2009 and 2010, reaching nearly $1 mil-lion by attracting customers statewide,nearly all cash-paying.

As a result, pharmaceutical companies,one-by-one, stopped supplying the store.Meanwhile, employees said parents ofsome customers who died of overdosescalled to blame owner Larry Heine for“ruining their child’s life.”

“He’s got blood on his hands,” DonaldNorman, Island Drug’s relief pharmacist,testified in his deposition, noting he dis-covered some prescriptions Heine filledwere clearly fakes. “People died becauseof these drugs.”

He said many customers were “drugaddicts and abusers and called thequantities doctors dispensed “just over-whelming.”

“I rememberoneformethadone ... that’senough to kill 10 horses,” he testified.

Employees and shop owners describedgangs of customers, “lowlifes and trailertrash” who came in carloads, bumpedinto shelves, were high on drugs, incoher-ent and sold their prescriptions outside.One owner said everyone knew addictsflocked to Island Drug because it didn’thave a computer system to track fraud.

By June 2012, pharmaceutical suppliershad all dropped Island Drug, and othersdeclined to supply it, depositions say. Itwas for that reason, not harassment, thatthe Heines lost business, the defendantscontend, asking Judge John Steele to dropthe lawsuit.

“The rise and fall of Island Drug hasnothing to do with the actions of theMIPD and everything to do with IslandDrug’s desire to take advantage of theoxycodone boom in Florida,” the mo-tion says.

But the Heines say they never violat-ed laws or regulations, all prescriptionswere legally filled and they were justtrying to maximize their profits. Theyblamed doctors for overprescribing painkillers, the government for not enactinglaws to stop it and contended police “act-ed like a bull in a china shop,” shatteringtheir civil rights.

“Defendants might as well have as-sailed an automobile dealer for sellingcars that might cause vehicle accidentsor a gun shop for selling weapons thatmight cause harm,” their attorney, Mi-chael McDonnell, wrote in his response.“Defendants had their sights on thewrong target.”

Last week, Jeffrey Kuntz, the leadattorney for the defendants, askedthe judge for sanctions against theHeines, to allow them to tell jurorsthey destroyed incriminating evi-dence, wiping their computers cleanand taking them to a recycling cen-ter; smashing one using “a garbagebag and a hammer”; and getting ridof DVDs and CDs.

Employees had testified Heine markedhis records “suspected dealer,” “possibleabuser,” “sharing (drugs)” – showing hehad knowledge, yet filled the prescrip-tions anyway. Those were among therecords the defendants say the Heinesdestroyed and were not included in re-cords they gave CVS, which purchasedthe store accounts.

Paul Doering, a University of Floridapharmacy professor hired as a defenseexpert, has been hired for many criminalcases against pharmacists for “preciselythe same activity” – and all resulted in aconviction at trial or plea deal.

“It was inevitable that their dispensingpractices would ultimately come to theattention of the suppliers, if not the DEA,”Doering wrote.

The motion for summary judgment – alast step before trial – asks Judge Steeleto forever dismiss the lawsuit, which isset for trial in February. For the defenseto win on summary judgment, a judgemust determine there are no genuinedisputes over any material facts left fora jury to decide.

Marcopharmacist has ‘bloodonhishands,’ former employee, police say LOGAN ANTHONY BUDDEMEYER

Marco Island, FL

Logan was granted his angel wings onJanuary 1st 2014, following a lifelong ill-ness. He was surrounded by family andfriends that he had touched throughouthis life. With Logan’s passing we remindothers that his life is one to be celebrat-ed. He will forever remain in our hearts.

Logan’s life would seem too short tomany,butthosewhoweretouchedbyhimunderstood that the quality of existencefar exceeds the quantity of time in whichonelives.Hissmileandbighugcouldmelttheheartsofthosearoundhimandthoughhe never spoke a full sentence, his voiceand thoughts could always be heard.

There is a special place in our heartsfor Logan’s nurses Jenny and Bridgetbecause of their continual dedication,love and support. He will also be dearlymissed by all his special caregivers atJackson Memorial Hospital in Miamithat provided Logan with love and dig-nity in his life and also in his death.

Logan is survived by his loving par-ents, Mike and Monica Buddemeyer;sisters, Melissa Young and SamanthaBuddemeyer; grandparents, Juan andElsa Manfredi and Gloria Buddemeyer;aunts and uncles, John Soutar and SandraManfredi; Jim and Shirley Buddemeyer;Melissa Buddemeyer and Laura Lubawy;Cindy Uphold along with many cousins.

He was predeceased by his sisters,Amanda and Riana; grandfather, LeeBuddemeyer.

Viewing hours are to be held Friday,January 17th, from 6:00 to 8:00 p.m., atHodges-JosbergerFuneralHome,577EastElkcam Circle, Marco Island FL 34145.

There will be a celebration of lifeJanuary 18th at 1:00 p.m., at St Mark’sEpiscopal Church, 1101 North CollierBlvd, Marco Island, FL 34145. Island ca-sual dress is preferred.

In lieu of flowers, donations may bemade to: Amandas Friends (N.P.O.) 1055Weeping Willow Way, Hollywood FL33019, E-mail: [email protected]; Web: www.amandasfriends.org.

OBITUARY

FILE PHOTO

Larry Heine at Island Drug.

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N A P L E S D A I LY N E W S « Thursday, January 23, 2014 « 3A

Updated news onlinenaplesnews.comSWFLATODAY

BRENTBATTEN

OPINION

This isn’t your father’sreclaimed water debate.

The city of Naples is qui-etly going about expandingits water reuse capabilitiesminus the hysteria thatusually accompanies torn-up streets and doom andgloom predictions thatcame with past efforts tostore irrigation water un-derground.

That’s not to say the planwon’t spark controversy.There will be rate changesfor users of both the city’sdrinking water system andits growing irrigation wa-ter system. In some cases,residents will pay more, insome cases less, than theydo now.

Plus, 10 golf courseslikely are to continue to re-ceive irrigation water at adiscounted rate, andthere’sa debate brewing over whoshould pay for that subsidy.

Thepictureshouldcomemore intofocusduringCityCouncil’s Feb. 19 meeting,when ideas will be aired.

City Council has beendiscussing ways to proceedfor the past few months butthe reclaimed water issuestretches back nearly twodecades in Naples. Thecity started off small, withtreated sewer water beingpumped to the golf coursesand to Port Royal, the big-gest users of irrigation wa-ter.

The idea is that if treatedeffluent can be used to wa-ter grass, more expensivepotable water can be con-served.

The Naples approachwas in contrast to CapeCoral, which in the early1990s embarked on an am-bitious plan to circulateeffluent to all the city’sneighborhoods. The en-suing expense and trafficdisruption caused a politi-cal firestorm that reverber-ated throughout theregion.

Later inthe1990s,Naplesconsidered storing water inwells during the rainy sea-son for use in the dry sea-son. That plan also becamea political issue as criticsraised fears the storedwater would contaminatedrinking water wells.

NaplesCityManagerBillMoss says the intention isto avoid both potential con-troversies.

The expansion of theirrigation system will bedone in small increments,with only $3 million a yeardevoted to putting in newpipes. Some areas of thecity might never get re-claimed water for irriga-tion because they don’tuse enough water on theirlawns to justify the cost,Moss said.

Thenextareasof thecityto get reclaimed water forirrigationwillbealongGulfShoreBoulevardNorth, theMoorings and Park Shore

Naples eyeswatered-downirrigation plan

By Aisling [email protected]; 239-263-4739

A federal judge Wednesdaythrew out a lawsuit filed by theowners of a now-defunct MarcoIsland drugstore, ruling the po-lice department and its formerchief did not harass the store andcustomers in an attempt to shut itdown.

U.S. District Court Judge SheriPolster-Chappell’s ruling endsthe 2010 lawsuit filed by Larryand Susan Heine and averts a trial

scheduled for next month. TheHeines retired in July and sold the43-year-old store’s customer ac-counts to CVS.

“The Marco Island Police De-partment had a valid purpose inhalting or deterring criminal con-duct,” Polster-Chappell wrote inher 16-page ruling. “The MarcoIsland Police Department wasthere toaddress reported criminalactivityandperhapsdetercriminalactivity. ...Anincreaseindrugs, loi-tering, medical issues, and theftsare all viable issues to reasonably

concern anyone, let alone law en-forcement.”

The judge ruled the focus oncustomers by Marco Police andits then-chief Thom Carr wasn’tirrational, arbitrary or so con-science-shocking that it violatedthe Heines’ constitutional rights.

Ingrantingthedefendants’sum-mary judgment motion, the judgedetermined no “material dispute”exists for a jury to decide and can-celed a pretrial conference set forMonday.

Attorneys representing police

and Carr declined to comment.The Heines’ lawyer, Michael Mc-Donnell, could not be reached forcomment on whether he will ap-peal.

The Heines sued in June 2010,accusing police and Carr of civilrights violations that included ha-rassment, stopping and searchingcustomers, warning them not toreturn and asking the Heines nottofillEastCoastprescriptions.TheHeines contended that damaged

Judge tosses lawsuit, says police had reason to act

By Laura [email protected]; 239-263-4818

Yes, it’s cold,” declares Naplesmystery writer Diane Ketcham.

“I have my socks on, do you?”she asks.

Many in Southwest Floridahave put on more than just socks to dealwith the “cold” weather of late, bringingout their sweaters, scarves and hats. Somehave even gone to an extreme, digging outa “winter” coat, if they have such a thing.

The antics bring laughs from winter resi-

dents, tourists and newer transplants fromup North, some of whom are still hangingout in shorts at the beach.

What gives?Some would argue Floridians just have

thinner blood, but experts say that’s justan urban legend.

“I can’t find any real evidence for any-thing. Clearly, the blood doesn’t change

in different climates, other than at highaltitude,” said Dr. Richard Abood, ownerof Collier Urgent Care Centers, with twowalk-in clinics in North Naples and ParkShore.

Ketcham, originally from New York, saidshe’s wondered about the legend herself.

“That’s what we are all saying, ‘our bloodhas gotten thinner.’ I’m not sure how ex-actly that could happen,” she said.

Abood has a few other ideas about whyFloridians are so cold. One of them is

■ Add socks to those sandals; it’s getting c-c-cold in Southwest Florida

Tropical chill“

naplesnews.comSubscribers can read a story that might explain whyFloridians feel “cold” when it’s really not that cold.

By Maryann [email protected]

A former Lee County Econom-ic Development employee hassued the county over her termi-nation after she claims she blewthe whistle on ethics violations,falsified records and cronyism.

The lawsuit filed Wednesdayin U.S. District Court, Fort Myers,

also names her former boss, GlenSalyer, as a defendant. Salyer, as-sistant to the county manager,served as interim economic de-velopment director from Sept. 1until Jan. 22.

Lisa Wagner, who was hiredas an administrative special-ist in January 2012, alleges thecounty violated Florida’s PublicWhistle-blowers Act and herFirst Amendment rights when

Salyer informed her on Oct. 30of her termination, which becameeffective Nov. 13.

The lawsuit argues Salyertargeted Wagner because of herinvolvement with a Lee CountyClerk of Court audit released inAugust that pointed to a series ofmissteps within the EconomicDevelopment Office, includingthe mismanagement of incen-tive programs and potential eth-

ics violations.“(Wagner) said what she knew

because she was a concerned citi-zen, and she got fired,” said Beja-min Yormak, Wagner’s attorney.“It sets a concerning precedentfor Lee County’s employees whosay and do the right thing.”

County Attorney RichardWesch said he briefly reviewed

Whistle-blower lawsuit: Firing was retaliationLee County | Former economic development employee

SCOTT MCINTYRE/STAFF

LJ Janevski, left, thanks Christine Zimay for the blanket he’ll be using at St. Matthew’s House on Wednesday night. Janevski, a homeless manwho came to Naples three weeks ago from Miami, was out looking for a job Wednesday as temperatures dropped. He is on the list to stay atSt. Matthew’s House but can use only its overnight-stay program for now.

Now-closed Marco Island drugstore

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6A » Thursday, January 23, 2014 » N A P L E S D A I LY N E W S

By Jacob [email protected]

The trial of a 22-year-old for-mer Lely High School studentcharged withfirst-degree mur-der is scheduledto start Thursdayin Collier Countycourt.

Juan Jose Bar-rientos Jr. faceslife in prison ifconvicted on thecharge, stem-ming from the December 2008robbery and killing of RobertoAvalos-Jasso, 51, near Six L’sFarms in East Naples.

Collier County sheriff ’sdeputies have said Barrientosand Jesus Rene Garza, then 18— classmates at Lely High —schemed to rob Avalos-Jasso,then fatally stabbed him and

dragged his body to a woodedarea about seven miles south-east of U.S. 41 East and CollierBoulevard.

Barrientos and Garza wentto separate Sheriff ’s Office sta-tions and implicated the otherafter the stabbing, officials said.

Prosecutors have said Bar-rientos carried out the killing.

Garza pleaded guilty inJune 2012 to a lesser count ofsecond-degree murder, as wellas a charge of robbery with adeadly weapon. He received a50-year prison sentence.

Under Florida law, the ear-liest Garza could be releasedfrom prison is age 61. He wouldbe deported to Mexico upon hisrelease.

If convicted, Barrientos’ sen-tencing could become trickybecause he was 17 at the timeof the killing. The U.S. Su-preme Court has banned theexecution of killers who were

younger than 18, and the courtruled in 2012 that state lawsmandating life without parolefor defendants under 18 are un-constitutional.

Barrientos’ sentencing, ifhe is convicted, would be thefirst in Collier County for anunder-18 first-degree murderconviction.

Garza’s plea agreementdoesn’t require him to testifyagainst Barrientos, and pros-ecutors have said it’s possibleGarza wouldn’t be called as awitness. Garza’s lawyer hassaid the situation “got out ofcontrol” because of Barrientos’actions.

Barrientos’ lawyer, John Mc-Gowan, declined to discuss po-tential defenses for his clientWednesday. McGowan said heexpects the trial to last aboutfive days, with jury selectionlikely to stretch into Friday andpossibly Monday.

Former Lely student could get lifein prison; murder trial starts today

JuanBarrientos Jr.

their reputation and they lostcustomers and profits.

After years of dry legal argu-ments, the defendants filed amotion for summary judgmentin November that revealed whatprompted the police presence atMarco Town Center.

The motion, depositions byemployees and neighboringstore owners and an expert’s re-port said the Heines knowinglyfilled prescriptions for dealersand addicts that were prescribedby pill mill pain clinics and doc-torswhohadpendingcomplaints,wereshutdownoreventually losttheir licenses.

Employees and shop ownersdescribed gangs of customerswho came in carloads, bumpedinto shelves, were high on drugs,incoherent, nodded off and soldprescriptions outside. They saidaddicts flocked there because Is-landDrugdidn’thaveacomputersystemtotrackfraudasdidbiggerpharmacies.

The motion said Island Drugsold more than 1 million oxyco-

done pills in 2010, well abovethe national store average of69,000 pills, and doubled its an-nual income in 2009 and 2010,reaching nearly $1 million byattracting customers statewide,nearly all paying cash.

The suspicious practices at-tracted the attention of pharma-ceutical companies, which alleventually stopped supplyingthe store.

Last month, the defendantsasked the judge to sanction theHeines for destroying their com-puters and records after beingasked to preserve all evidence.

The judge agreed police didn’tcausetheHeinestogooutofbusi-ness.Pointingtotheevidence,shesaid pharmaceutical suppliersstoppedprovidingdrugs.Shealsonoted the Heines admitted theyretiredbecauseof“longtimepres-sure” by their children and thatLarry Heine admitted he couldwork as a pharmacist again if hewanted to.

“Thisevidencedirectlycontra-dicts any notion that defendantsdeprived the plaintiffs of theirrights to a livelihood,” the judgeruled. “There is no evidence thatdefendants harassed plaintiffs.”

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By Cheryl FerraraEagle Correspondent

Despite chilly weather, the house was packed forCouncilor Larry Sacher’s town hall meetingon Wednesday.

In his words, he fulfilled one of his campaignpromises: to meet with the people and converse. Ques-tions were taken randomly from the audience and an-swers were frank and unambiguous. The Marco IslandCivic Association helped host the event.

“There are no boundaries,” Sacher told the crowd.“The reason we’re here is the City of Marco faces somevery significant issues that affect all citizens.”

On most people’s minds were worries about com-mercial construction, especially at Rose Marina andthe Marco Island Marriott. Sacher added the absence ofconsistency and good city management as his concerns.

Rick Melli questioned the appropriateness of boatstorage on the undeveloped lot across from Rose Marina.

“It is unresolved about the storage facility on the westside of Bald Eagle,” Sacher responded. “This has notcome to council.”

He passed the question to Monte Lazarus, chairman ofthe city’s Planning Board, for more details. The board ap-provedfourordinanceamendmentstoMarcoIsland’sLandDevelopmentCodeonfirstreadingthatcouldopenthewayfor conditional use requests and expansion by the marina.

At the board’s second public hearing, only one amend-ment was approved, raising building heights for marinasfrom 50 to 60 feet. Three amendments, including onethat would allow boat storage on the west side of BaldEagle Drive, were continued for further discussion.

“We have suggested a four-sided rather than a three-sided building,” Lazarus said of the boat storage.

“Are we a sleepy, small town that wants to remainthat way or are we moving toward Myrtle Beach?” KellyLinman asked.

“We don’t have a lot of consis-tency in the various ordinancesthat we have,” Sacher said. “I seeMarco River Marina’s dilemmathat it does not have adequateand updated facilities.”

Sacher said he is not preparedto vote one way or the otherthe issue.

Several residents questionedthe Marriott’s future renovation.

“Marriott has submitted draw-ings to the building department,”Sachersaid.“TheyareapplyingforsomechangestothePUD,soitwillgotothePlanningBoardtwiceandthen to the City Council.”

Rick Medwedeff, general man-ager of the Marco Island Marri-ott, was given a chance to speakabout his plans. Only five proper-ties parallel the area where thehotel hopes to place a parkingdeck on the east side of CollierBoulevard. The hotel is reaching out to those propertyowners for input, he said.

Bill Flasche asked Sacher’s opinion of the proposedMackle Park Community Center.

The question of a new building at Mackle Park shouldrequire a referendum, Sacher said.

“I’ve made it clear from day one that the Mackle Parkfacility is inadequate and in disrepair,” he said. “Ourcity could use a larger and more functional communitycenter. I would vote in favor of it.”

Sacher was sensitive to overbuilding calling the southend of the island a Manhattan skyline.

“I don’t want Marco Island being called Myrtle BeachSouth,” he said.

6A Friday, January 24, 2014 marconews.com

LOCAL NEWS

TOWNHALL

Judge tosses out IslandDrug lawsuit,says lawenforcement activity at pharmacy justifiedBy Aisling SwiftStaff

A federal judge on Wednesday threw out a lawsuitfiled by the owners of a now-defunct Marco Islanddrugstore, ruling the police department and its formerchief did not harass the store and customers in an at-tempt to shut it down.

U.S. District Court Judge Sheri Polster-Chappell’sruling ends the 2010 lawsuit filed by Larry and SusanHeine and averts a trial scheduled for next month. TheHeines retired in July, closed the 43-year-old store andsold the customer accounts to CVS.

“The Marco Island Police Department had a validpurpose in halting or deterring criminal conduct,”Chappell wrote in her 16-page ruling. “The Marco Is-land Police Department was there to address reportedcriminal activity and perhaps deter criminal activity.... An increase in drugs, loitering, medical issues, andthefts are all viable issues to reasonably concern any-one, let alone law enforcement.”

The judge ruled the focus on customers by MarcoPolice and its then-chief Thom Carr wasn’t irrational,arbitrary or so conscience-shocking that it violated theHeines’ constitutional rights.

In granting the defendants’ summary judgment mo-tion, the judge determined no “material dispute” existsfor a jury to decide and canceled a pretrial conferenceset for Monday.

Attorneys representing police and Carr, declined tocomment.TheHeines’ lawyer,MichaelMcDonnell,couldnot be reached for comment on whether he will appeal.

The Heines sued in June 2010, accusing police andCarr of civil rights violations that included harassment,stopping and searching customers, warning them notto return and asking the Heines not to fill East Coastprescriptions. The Heines contended that damagedtheir reputation and they lost customers and profits.

After years of dry legal arguments, the defendantsfiled a motion for summary judgment in Novemberthat revealed what prompted the police presence atMarco Town Center.

The motion, depositions by employees and neigh-boring store owners and an expert’s report said theHeines knowingly filled prescriptions for dealersand addicts that were prescribed by pill mill painclinics and doctors who had pending complaints,

were shut down or eventually lost their licenses.Employees and shop owners described gangs of cus-

tomers who came in carloads, bumped into shelves,were high on drugs, incoherent, nodded off and soldprescriptions outside. They said addicts flocked therebecause Island Drug didn’t have a computer system totrack fraud like bigger pharmacies.

The motion said Island Drug sold more than 1 mil-lion oxycodone pills in 2010, well above the nationalstore average of 69,000 pills, and doubled its annualincome in 2009 and 2010, reaching nearly $1 million byattracting customers statewide, nearly all cash-paying.

The suspicious practices attracted the attentionof pharmaceutical companies, which all eventuallystopped supplying the store.

Last month, the defendants asked the judge to sanc-tion the Heines for destroying their computers andrecords after being asked to preserve all evidence.

The judge agreed police didn’t cause the Heines togo out of business. Pointing to the evidence, she saidpharmaceutical suppliers stopped providing drugs.She also noted the Heines admitted they retired due to“longtime pressure” by their children and that LarryHeine admitted he could work as a pharmacist againif he wanted to.

“This evidence directly contradicts any notion thatdefendants deprived the plaintiffs of their rights to alivelihood,” the judge ruled. “There is no evidence thatdefendants harassed plaintiffs.”

More than80 turnout for coffee andconversationwithCouncilor Sacher

Jack Gilbert questions whether MarcoIsland’s requirement to hardwire hot waterheaters is an arbitrary rule. He addressedhis query to City Councilor Larry Sacher whoheld a Town Hall meeting on Wednesday.

More than 80 residents fill the Marco Island’sCommunity Center Wednesday to ask questions duringa Town Hall sponsored by City Councilor Larry Sacher.

CHERYL FERRARA/EAGLE CORRESPONDENT (3)

One resident meets with Marco Island City Council Larry Sacher during a break in his Town Hall meeting on Wednesday.

“THIS EVIDENCE DIRECTLYCONTRADICTS any notion thatdefendants deprived the plaintiffsof their rights to a livelihood.”— U.S. District Court JudgeSheri Polster-Chappell

“I’VE MADE IT CLEARfrom day one that theMackle Park facility isinadequate and in disrepair.”— Councilor, Larry Sacher

6A Friday, February 21, 2014 marconews.com

LOCAL NEWS

FILE PHOTO (2)

Larry Heine had been in business with Island Drug at the Town Center mall since 1969. The Heines retired and soldthe 43-year-old store’s customer accounts to CVS.

By Aisling SwiftStaff

After winning a four-year legal battle,the City of Marco Island wants to bill thecouple who sued the police departmentmore than $90,000 for its legal costs.

The city filed a bill for $90,215.88against now defunct-Island Drug storeand its owners, Larry and Susan Heine,who accused the police department andits former chief, Thom Carr, of harass-ing them and their customers at theirMarco Town Center store, trying toput them out of business and other civilrights violations.

Last month, the couple lost their bat-tle when a federal judge threw out their2010 lawsuit just before a trial set forthis month.

“Marco Island is not an easy target,”City Attorney Burt Saunders told CityCouncil earlier this month.

Saunders said he wanted the city to

go after the legal fees to warn others to“think twice” about hitting Marco Islandwith frivolous lawsuits.

Attorney Mike McDonnell, who rep-resents the Heines, said they haven’t yetmade a decision on whether to appeal theruling. He asked for more time to respondto the city’s motion and the judge gavehim until mid-March.

The Heines retired in July and sold the43-year-old store’s customer accountsto CVS.

Last month, U.S. District Judge SheriPolster-Chappell ruled that police didn’tharass the store or cause the Heines to goout of business. The city’s defense teamhad provided the judge with evidencethat pharmaceutical suppliers stoppedproviding drugs after the Heines know-

ingly filled prescriptions for dealers andaddicts that were prescribed by pill millpain clinics, doctors who had pendingcomplaints, were shut down or eventu-ally lost their licenses.

Employees and shop owners describedgangs of customers who came in carloads,bumped into shelves, were high on drugs,incoherent, nodded off and sold prescrip-tions outside. They said addicts flockedthere because Island Drug didn’t havea computer system to track fraud likebigger pharmacies.

The city’s motion said Island Drug soldmore than one million oxycodone pills in2010, well above the national store aver-age of 69,000 pills, and doubled its annualincome in 2009 and 2010, reaching nearly$1 million by attracting customers state-

wide, nearly all cash-paying. The suspi-cious practices attracted the attentionof pharmaceutical companies, which alleventually stopped supplying the store.

The city’s defense team also told thejudge the Heines purposely destroyedcomputers and records that proved thecity’s allegations.

Federal court rules allow a prevailingparty to ask a judge to allow it to chargethe losing party for its costs in fightingthe allegations. Among costs are fees forthe court clerk and marshal, copy fees,transcripts, court reporters, filing feesand hefty expert fees.

According to a bill and motion EvanAppell of Fort Lauderdale-based Gray-Robinson filed in U.S. District Court inFort Myers, Marco intends to charge theHeines $3,420.70 for serving subpoenasand summonses, $31,597.89 for the costsof copies and converting the Heines’ elec-tronic records and emails to searchableversions, and $55,197.92 for transcripts.

‘Think twice’CITY BILLS ISLAND DRUG

OWNERS FOR LEGAL COSTS

LAST MONTH, U.S. District Judge Sheri Polster-Chappellruled that police didn’t harass the store or cause theHeines to go out of business.

Island Drug sits vacant on July 18, 2012, on MarcoIsland. After over four decades of business, the drugstore in Marco Town Center Mall closed two years afterowners sued the city of Marco Island and former PoliceChief Thom Carr.

www.NCHmd.org

Named One of the Top 50 Cardiovascular Hospitals in the Nation for 2014.

This is my hospital.

Medicare Insurers Can Sue Primary Payors , 11th Circ . Rules - Law360 8/11/16, 3:57 PM

Portfolio Media. Inc. I 111West19th Street, 5th floor I New York, NY 10011 www.law360.com Phone: +1 646 783 7100 I Fax: +1 646 783 7161 I [email protected]

Medicare Insurers Can Sue Primary Payors, 11 th Circ. Rules By Dani Kass

Law360, New York (August 8, 2016, 9: 56 PM ET) -- The Eleventh Circuit on Monday ruled that private insurers offering Medicare Advantage plans can sue primary insurers under the Medicare Secondary Payer Act, handing a victory to Humana Medical Plan Inc. in its suit against Western Heritage Insurance Co. over who should cover an injury at a Florida condominium.

The act doesn't specifically restrict any class of plaintiffs in its plain text, which two-thirds of the Eleventh Circuit panel agreed makes private cause of action available to Medicare Advantage Organizations. The decision that Western is liable for double damages upholds a district court's decision and falls in line with an earlier ruling by the Third Circuit.

"We see no basis to exclude MAOs from a broadly worded provision that enables a plaintiff to vindicate harm caused by a primary plan's failure to meet its MSP primary payment or reimbursement obligations," the majority said.

The Medicare Secondary Payer Act was created in 1980 in an attempt by Congress to cut down Medicare costs. Under it, when more than one insurer is liable for an insurance cost, private insurers are treated as primary payors and Medicare as a secondary payor. As a MAO is injured by the private insurer not reimbursing them, the Medicare Advantate plan can sue for reimbursement, the majority ruled.

U.S. Circuit Judge William H. Pryor Jr. dissented, arguing the Medicare Secondary Payer Act says nothing about a private cause of action for MAOs in this circumstance.

"I would conclude that the text of the statute is clear and that Humana failed to state a claim," he said.

The case stems from a January 2009 injury Humana Medicare Advantage beneficiary Mary Reale suffered at Hamptons West Condominiums in Florida. Humana paid nearly $20,000 to cover her expenses.

Six months later Reale and her husband sued the condominium association. During that time, Humana asked her to reimburse the full amount, arguing Hampton West's liability insurer, Western, should have been the primary insurer. Reale could have filed an administrative appeal, but chose not to.

In 2010, the Reales settled with Western and Hamptons West for $115,000. A month later, Humana sued the Reales for the reimbursement in Florida federal court. The judge initially

https://www.law360.com/articles/82610 9/print?section=appel late Page 1 of 2

Medicare Insurers Can Sue Primary Payors, 11th Circ. Rules - Law360 8/11/16, 3:57 PM

dismissed that case, determining the MAO didn't have a private right of action, but then vacated that order. Humana then dropped the suit.

Western and Hamptons West tried to make Humana a payee in their settlement with the Reales, a move for which the Reales sought sanctions. Hamptons West then agreed not to make Humana a payee, and the Reales' attorney set aside the $20,000 in a trust.

The Reales sued Humana in 2010 in state court to find out how much they owed, which that court determined to be just under $4,000. Humana appealed and won, with the state appeals court finding the federal courts held jurisdiction. Humana then demanded payment from Western and brought the current suit, securing a district court win in March 2015.

As Western knew that Humana had a lien, it should have reimbursed the health insurer within 60 days, the majority said. Western tried to argue that it didn't know about the lien, but its attempt to make Humana a payee proves otherwise, according to the ruling.

Representatives for Humana and Western didn't immediately respond to request for comment.

U.S. Circuit Judges William H. Pryor, Jr. and Susan Harrell Black sat on the panel for the Eleventh Circuit, joined by U.S. Circuit Judges Barrington D. Parker Jr. of the Second Circuit.

Humana is represented by Michael P. Abate of Dinsmore & Shohl LLP, Jeffrey T. Kuntz and Daniel Alter of GrayRobinson PA, Eileen Kuo and Thomas H. Lawrence of Lawrence & Russell PLC and the insurer's Caroline L. Schiff.

Western is represented by Anthony John Russo, Lewis F. Collins Jr. and William Philip School of Butler Weihmuller Katz Craig LLP and Neil H. Selman and Jennifer J. Capabianco of Selman Breitman LLP.

The case is Humana Medical Plan, Inc. v. Western Heritage Insurance Com, case number 15-11436, in the U.S. Court of Appeals for the Eleventh Circuit.

--Editing by Joe Phalon.

All Content © 2003-2016, Portfolio Media, Inc.

https://www.law360.com/articles/826109/print?section=appellate Page 2 of 2

MIAMI-DADE THURSDAY, DECEMBER 3, 2015

VERDICTS & SETTLEMENTS DEFENSE WIN IN $14.SM SUIT A defense team defeated a $145 million lawsuit by a motorcyclist who hit a Key Largo valve box cover, fell and hit his head. A16

LAW NEW CABA LEADERS NAMED Holland& Knight Miami partner Anna Marie Hernandez is elected president of the 2,500-member Cuban American Bar Association. Javier Lopez of Kozyak, Tropin & Throckmorton becomes president-€1ect A6

PRACTICE FOCUS: EDUCATION With Florida law graduates leaving school with average debt of $80,000 to $163,000, prospective students must decide whether law school is a good investment, writes attorney Lacey D. Hofmeyer. AS

CONGRESSIONAL MAP OVERHAUL The Florida Supreme Court is ordering a sweeping overhaul of the state's congressional map that will mean new boundaries for many of the 27 congressional districts. A6

NEW PLAN HELPS EVERGLADES As much as a quarter of lht! money voters approvt!d lo spend annually on statewide water and land preservation would flow into Everglades restoration and other South Florida water projects, under a recently released House plan. A3

CASE HAS STATEWIDE IMPLICATIONS The Florida Supreme Court will decide whether a Gadsden County racetrack should be allowed to have slot machines withoutthe express permission of the Legislature. A3

COMMERCIAL REAL ESTATE LAUDERDALE BUILDING PURCHASED A 24-unit, 48-year-<ild apartment building in Fort Lauderdale is acquired for $15 million. A9

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60-Year Sentence Puts Judge Destry on Hot Seat

MELAN~E BELL

Broward Grcuit Judge Matthew Destry, the target of a removal campaign on Change.org, was appointed to the bench in 2007 and up for re-election next year.

by Samantha Jose ph [email protected]

Broward Circuit Judge Matthew Destry is the target ofa removal campaign on Change.org after sentencing a yoWlg parole violato1; Herbert Smith, to 60 years when the prosecution suggested 13 years.

More than 19,264 people signed the online petition as of Wednesday asking Broward Clerk of the Courts Howard Forman to remove Destry from the bench "for illegally sentencing people of oolor."

The document has been widely shared on social media sites and the JAABlog Broward courthouse blog, gathering thousands of signatures per day. But it will likely carry little weight because only the Flortda Supreme Court has the power to re-

Online Petition Targets'The Jills' Brokers on Expired Listings by Samantha Joseph [email protected]

An online petition to kick one of the most powerful real estate t.eams in the Miami area off the industry's shared listing portal is gaining momentum, gatheiing 481 signatures by Wednesday.

The petition on the Change.Org website asks the Miami Association of Realtors to ban the Coldwell Banker power duo known as 'The Jills" from the Multiple listing Service for at least three years.

It demands the trade association, which controls the ML5, take immediate "disciplinary actions of the highest seventy" against Jill Eber and Jill Hertzberg, a prominent brokerage team who's dominated Miami Beach's highly competitive luxury residential market for years.

By deadline, the t.ally was close to its 500-supporter goal, acx:ording to the Change.m-g website.

A comment by Brickell luxury broker Guido Caroni suggest.ed Coldwell Banker was responsible for ensuring its agents complied with industry regulations. "They allowed The Jills

THEJILLS

The petition asks the Miami Association of Rea Ito rs to ban the Coldwell Banker power duo, Jill Hertzberg and Jill Eber, from the Multiple Listing Service for at leastthree years.

to blatantly manipulate data, follow the rules of their choosing and mislead the general public," he wrote on the petition.

SEE JILLS, PAGE A2

move a sitting judge. It still leaves Smith's defense at

torney facing an uphill struggle to overturn what many called an excessiv~ut legal-sentence.

"While the sentence in this case is clearly outrageous, the bigger, more important story is tllat it's just emblematic of what goes on on a daily basis in Judge Destry's rourtroom," Broward Public Defender Howard Finkelstein, who's not involved in the litigation, told the Daily Business Review. "From a public defender perspective, he is the worst judge in Broward County. In his rourtroom, if two people get atTested for the same offense and one has money and can pay restitution, they get probation. If tlrny can't pay, they get sent to prison.

SEE DESTRY, PAGE A2

State Court Lacks Jurisdiction in Senior's Medicare Case by Cella Ampel [email protected]

Federal Medicare law preempts state law for Medicare benefits administrators seeking reimbursement from beneficiaries who won settlements from third parties, a state appellate oourt ruled Wednesday.

The Third District Court of Appeal reversed a ruling that allowed Medicare benefits administrator Humana Medical Plan Inc. to rerover only a sliver of the $19,000 in benefits it paid to a woman, then 86, who fell at her condominium building in 2009. She and the building lat.er settled for $135,000 in medical expenses and noneconomic damages.

The court will allow Humana to pursue a greater recovery in federal rourt, where litigation is unde1way.

Humana convinred the appellate panel that then-Miami-Dade Circuit Judge Lester Langer lacked jurisdiction when he ruled in 2012 that Hwnana was entitled to only about $3,600. Only a federal rourt could decide that issue, the appellate judges held.

Leighton law represenis plaintiffs in distracted driving cases.

SEE MEDICARE, PAGE A2

888.395.0001 Miami T Orlando

TR IAL cAWYERS

A2 dailybusinessreview.com THURSDAY, DECEMBER 3, 201 s DAILY BUSINESS REVIEW

FROMPAGEA1

JILLS Another signer, Keller William Realty

broker Dan Maza, wrote, "After searching out some of the expired listing of the Jills I also saw data manipulation."

Beth Butler, president of Compass Florida real estate brokerage, started the petition. Butler, former president and chief operating office of Coldwell Banker rival ONE Sotheby's International Realty, declined to comment.

The move comes amid allegations by competitors claiming "The Jills" have played the MLS by stealthily changing city codes, addresses or other details on more than 50 listings to hide about $350 million worth of business from rivals.

The "majority of The Jills' listings were altered prior to expiring so that they would show as expired in the city of AUapattah," the petition reads. "They effectively disappeared as brokers do not search for the history of Miami Beach luxury properties" in AUapattah, a working-class Miami neighborhood.

Under trade association rules, competing agents and brokers can pursue each other's clients once listings expire. But rivals say Eber and Hertzberg devised a plan to doctor listings for dozens of prime properties.

"The recent coming to light of The Jills' manipulation of the MLS is a weUknown fact to many inside the Realtor community," the petition reads. "It is now a fact that is well known to all

FROMPAGEA1

MEDICARE The Louisville, Kentud.')'-based health

insurer successfully argued Florida's collateral sources of indemnity statute did not apply. That law instructs courts to reduce awards by the amount paid to the claimant but doesn't allow for reductions when a reimbursement right exists.

Third District Judges Frank A Shepherd, writing for the majority, and Leslie B. Rothenberg instructed the lower court to dismiss the case filed by beneficiary Mary Reale. Judge Vance Salter dissented in part. Reale sought to establish a reduced reimbursement for Humana.

The appellate judges found the claim was covered by the Medicare Secondary Payer Act, which states Medicare can malce conditional payments if a primary

Miami Board of Realtor members and the general public."

SMEAR CAMPAIGN? AUegationsagainst"TheJills"firstcame

from former ONE Sotheby's International Realty senior vice president Kevin Tomlinson. who was fired a day after his anest on extortion charges in August. Prosecutors say he tried to bilk $800,000 from Eber and Hertzberg by threatening to go public with his allegations if they didn't pay. The women went to police and secretly recorded telephone conversations with Tomlinson, who has pleaded not guilty to felony extortion, resisting an officer with violence and attempting to deplive an officer of his weapon.

"The extortion charge is completely 100 percent false," Tomlinson told the Daily Business Review. "J found this trove of $350 million-plus in listings that had been manipulated and therefore had corrupted the Miami MLS data."

The association and Realtors rely on the data to drive pricing, appraisals and analyze market trends so misleading listings would affect industry professionals as well as their clients.

"The Jills" camp insists the petition is an online smear campaign led by Tumlinson. with several signatures coming from supporters who aren't bona fide real estate professionals.

The Miami Association of Realtors did not respond to inqui.Jies to confirm petition signatures, but CEO Teresa Kinney released an email late Tuesday urging members not to circulate the petition.

payer, such as an employer or an insurer, is not expected to pay promptly. Those payments are subject to reimbursement.

The state collateral sources law does not apply because the U.S. Supreme Court has already determined aU claims arising w1der the Medicare Act must be resolved by the U.S. Secretary of Health and Human Services before a claimant can pursue litigation, the panel said.

Mary Reale and her husband August did not pursue an administrative appeal after Humana asked to be reimbursed, which the company successfully argued should be grounds for dismissing the state court claim.

Salter agreed on a reversal but d isagreed on dismissal. In his 14-page dissent, Salter said Humana's "extraordinary actions" in dealing with Reale, now in her 90s, made him believe the trial court should talce a different path.

A spokesman for Eber and Hertzberg dismissed the petition as "nothing more than an orchestrated distraction."

"Tomlinson is a notorious social media heckler, and while awaiting his criminal tlial he has been promoting this effort through his Facebook accounts and social media networks," publicist Bruce Rubin wrote in a statement. "The 'petition' was created by Beth Butler, a close friend of Tomlinson and a rival broker. It should be noted Tomlinson stated that Beth Butler was in contact with him during this time."

'SHOCKED AND CONFUSED' Tomlinson lodged a formal complaint

with the association in April, citing dozens of examples of modified listings dating back to 2010.

The women's attorney, Akerman partner Jacqueline Arango, said the allegations fell outside the National Association of Realtors' 180-day window for bringing ethics charges.

"When the respondents read the complaint, they were shocked and confused," Arango wrote in a letter to the Miami association's professional standards board. "They had no idea of the practical effects of certain actions they authorized."

In a June 4 response to the ethics complaint, she said Eber and Hertzberg never handled MLS entries.

"While they are both sophisticated professionals when it comes to selling real estate, neither (is) technologically sophisticated, and they fully rely on the technical and computer knowledge of their staff," Arango wrote. "In fact, neither respon-

The court could dismiss the case against Humana but also malce a determination on how much money to release from escrow to the Reales, he said.

Humana filed a federal lawsuit against the Reales and their attorney, Donna Michelson, in May 2010. Michelson put the $19,000 in a trust during the litigation. Humana later withdrew the complaint and pursued recovery from the condominium building's insurance company.

U.S. District Judge Marcia Cooke in Miami awarded summar')' judgment in Humana's favor in March 2015, ruling the company could pursue double damages against the insurer, Western Helitage Insurance Co.

Western Heritage appealed, and the case is pending. In the meantime, Humana informed the state court that it did not intend to pursue recovery from the Reales, which Salter said should clear the

FROMPAGEA1

DEST RY a monthly probation meeting and at least one restitution payment.

rules of judicial ethics prevent judges from discussing ongoing litigation. He was appointed to the bench in 2007 and up for re-election next year. He previously served as an assistant statewide prosecutor.

We've seen injustice after injustice."

Destry was lenient with Smith, 23, three years ago. In 2012 when Smith was 18, he appeared before the judge in seven cases of strong-arm robbery, grand theft and other felony charges for incidents over a four-month period.

On Nov. 24, Destry sentenced Smith to 60 years in prison, stunning onlookers and prompting Smith's relative, Ratonya Dumas, to launch the petition.

'VINDICTIVE SENTENCING'

But critics say the sentence reflects a bench out of touch with the citizens they serve.

"The reason Broward

Greenwald

An ALM Publication

dent has ever entered or changed data in the MLS, nor do they know how to do so."

The pair accepted an employee's offer to keep expired listings of the public database after a wealthy client complained about a barrage of unwanted solicitations for competing brokers, according to Arango.

"Unawareofwhat wasoccwTingtothe data in the MLS or the unintended consequence, the respondents would from time to time ask for other properties to be kept olf the hot sheet," Arango wrote, us.ing an industry term for expired listings. "The respondents are in no way admitting they took any action with 'malice aforethought' or with ill intentions as alleged in the complaint. However, they do accept responsibility for their failure to fully understand the consequences of their actions, for using poor judgment and for what ultimately occurred."

The association stayed the ethics investigation afterTomlinson's arrest.

But Tomlinson, who denies any role in launching or promoting the petition, said he and hundreds of colleagues doubt the women's explanation.

"This is really a grass-root effort from local real estate professionals who, from what I can tell and what I know. are just sick and tired of the business practices of these two women," he said. "'The Jills' believe everybody is jealous of them, but many of the top producers are just annoyed they have gotten away with this for so Jong."

Samantha Joseph can be reached at 954-468-2614.

way for state court to decide what should happen to the escrowed funds.

"The aggregate legal bills are obviously many multiples of the original reimbursement claim," Salter wrot.e in his dissent. "The judicial system's objective of a 'just, speedy and inexpensive' determination of the dispute has not been achieved."

Humana was represented by Daniel Alter and Jeffrey Kuntz of GrayRobinson in Fort Lauderdale, M. Miller Balcer of McDermott Will & Emery in Washington and Eileen Kuo of Lawrence & Russell in Memphis, Tennessee.

The Reales were represented by solo practitioners Philip Parlish and Michelson, both in Miami

None of the attorneys responded to requests for comment by deadline.

Celia Ampel can be reached at 305-347-6672.

tion when sentencing probation violators. Prosecutors must satisfy the ·conscience of the court" - a relatively low evidentiary standard. To overturn sentences, defense attorneys must meet a high standard and prove the sentences are either illegal or cruel and unusual. The term is in essence a life sentence.

"It malces this motion for mitigation that much more important." Greenwald said.

His former defense attorney, Lawrence Schweiker of Fort Lauderdale, persuaded Destry to sentence Smith as a youthful offender. The judge ordered two years in plison and four years of probation.

"Jtappear-s thatJudgeDestry is punishing the individual for exercising his constitutional right to due process of the law. Herbert had a right to talce his case to a final hearing," Smith's attorney, Blian Greenwald, told the DBR. "The prosecutor was recommending 13 years. Had he accepted the prosecutor's deal, the judge would have been happy to accept it. But he decided to go to a final hearing, and it appears that this could be a vindictive sentencing."

County sentenoes are so out of sync is because we have a 100 judges, six of which are black, but our population is about 30 percent black." Finkelstein said. "We have a judiciary that's largely white and monied passing down judgment on people who are largely poor and minorities."

Broward is neither equal, fair or just," he said.

A status hearing is scheduled for Dec. 10.

Meanwhile, Finkelstein applauded the Change.org petition.

Smith completed the prison sentence and was serving the first year· of probation when he was an·ested for driving on a suspended license in a car with a loaded annnunition clip and a convicted felon. He also missed

Destry did not respond to inquiries about the petition, and

"While there are some people who support what Judge Destry did, I assure you that nobody in any minority does, and in fact this is just another case in a long line of cases that screams out that justice in

Greenwald said he would file a mitigation motion Wednesday asking Destry to reduce Smith's sentence.

"It's a complete outlier," he said. "Sixty years was just outrageous. It's extreme to say the least."

If the judge denies the motion. Greenwald faces a difficult fight on appeal.

Judges have broad discre-

"The only way change happens is when people stand up and say, 'This is wrong.' Maybe Judge Destry will finally hear· it," he said. Either Judge Destry will change-that's the hope--0r somebody should run against him."

Samantha Joseph can be reached at 954-468-2614.

The Voice - February 10, 2010

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And The Defense Wins

ORI members and GrayRobinson, P.A. attorneys Daniel Alter, Roland E. Schwartz and Jeffrey T. Kuntz in Fort Lauderdale, Florida, successfully defended a medical malpractice lawsuit on behalf of the North Broward Hospital District (NBHD) in the trial court and appellate court in Derespina v. North Broward Hospital District d/b/a Coral Springs Medical Center, 19 So. 3d 1128 (Fla . 4th DCA 2009) .

In October 2005, the plaintiff, Eugenia Derespina underwent elective total hip replacement surgery at Coral Springs Medical Center. After surgery, the nursing staff applied an anti-embolism stocking to Ms. Derespina's thigh, per the doctor's orders. Derespina claimed the stocking was too small and caused blistering and eventual scarring. She sent a notice of intent to initiate litigation to the NBHD, along with a corroborating affidavit of a medical expert. The expert who reviewed the records and signed the affidavit was Derespina's sister, a nurse with 46 years of experience. The expert was also the mother of Derespina's lawyer.

Shortly after Derespina filed suit in November 2007, GrayRobinson attorneys filed a motion on behalf of the NBHD to strike Derespina's pleadings for failure to conduct a "reasonable" investigation pursuant to Florida's presuit requirements, Fla. Stat.§ 766.201 - § 766.212. The trial court conducted an evidentiary hearing and determined that Derespina's expert was inherently biased. The trial court also noted that Derespina's expert did not seek compensation for the time she spent reviewing her sister's case, which is something an independent expert would have done. On the basis of these facts, the trial court dismissed the malpractice action as noncompliant with the reasonable investigation requirements of Florida law.

The Fourth District Court of Appeal upheld the decision to strike Derespina's pleadings, while reinforcing the importance of the pre-suit investigation procedure that claimants must follow before a medical negligence claim may be brought in court. "The whole purpose of the reasonable investigation requirement in Florida is to lend assurance that a medical negligence claim has been properly screened," said Alter. "The system would be rendered meaningless if medical malpractice claimants could simply call upon their sisters, sons or nephews to serve up corroborating affidavits."

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The Fourth District Court of Appeal held as follows: "Based upon the findings of the trial court after an evidentiary hearing, the trial court's conclusion that the investigation of malpractice conducted by the plaintiff did not constitute the reasonable investigation contemplated by the statute was not an abuse of its discretion." (Emphasis in original.)

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1 As noted, in this case the investors' complaint in the second federal lawsuit invoked the court's federalquestion jurisdiction over the federal claims and both diversity jurisdiction and supplemental jurisdiction overtheir remaining claims. However, in his report and recommendation the magistrate judge declined to exercisesupplemental jurisdiction over the state law claims and, therefore, presumably overlooked the fact that theinvestors had asserted diversity jurisdiction. In this case we are following our case law which applies thesame test for res judicata regardless of whether the federal court was exercising its supplemental or diversityjurisdiction over the state law claims. Therefore, we need not determine whether the federal court wasexercising its diversity jurisdiction, as pled by the investors, or its supplemental jurisdiction, as indicated inthe magistrate judge's report and recommendation.

2 Our holding in Anderson was based upon the specific facts of that case. In certain circumstances, res judicataapplies to a state claim asserted after the entry of judgment by a federal court exercising its supplementaljurisdiction. See generally Restatement (Second) of Judgments § 25 (1982) (“Even if diversity of citizenshipbetween the parties did not exist, the federal court would have had ‘pendent’ jurisdiction to entertain thestate theory. Therefore unless it is clear that the federal court would have declined as a matter of discretionto exercise that jurisdiction (for example, because the federal claim, though substantial, was dismissed in









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advance of trial), the state action is barred.”). Res judicata applies in those circumstances because “thedoctrine of res judicata not only bars issues that were raised, but it also precludes consideration of issuesthat could have been raised but were not raised in the first case.” Fla. Dept. of Transp. v. Juliano, 801 So.2d101, 105 (Fla. 2001).

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Footnotes

1 Kuchera v. Kuchera, 230 So.3d 135, 139 (Fla. 4th DCA 2017) followed Farghali. To the extent Kucheradeparts from our established precedent, we also recede from it.

2 I agree with the majority that reversal is required because of the circuit court's denial of the Former Husband'srequests to conduct a vocational examination.

3 We have since applied Farghali in Kuchera v. Kuchera, 230 So.3d 135, 139 (Fla. 4th DCA 2017).

4 Broadfoot and Mathieu include a limited caveat allowing the court to remand in those rare situations whenappellate review is hampered. We should consider adopting a similar caveat but one limited to those situationswhen our review is hampered in cases involving child support and parental responsibility and time sharing.

End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works.








Jeffrey T. Kuntz

Example of Legal Writing – Appellate Brief

Exhibit E

No. 16-64 ================================================================

In The

Supreme Court of the United States

--------------------------------- ---------------------------------

GABLES INSURANCE RECOVERY, INC., as Assignee of South Miami Chiropractic LLC,

Petitioner, v.

BLUE CROSS AND BLUE SHIELD OF FLORIDA, INC.,

Respondent.

--------------------------------- ---------------------------------

On Petition For Writ Of Certiorari To The United States Court Of Appeals

For The Eleventh Circuit

--------------------------------- ---------------------------------

BRIEF IN OPPOSITION

--------------------------------- ---------------------------------

DANIEL ALTER JEFFREY T. KUNTZ Counsel of Record GRAYROBINSON, P.A. 401 E. Las Olas Boulevard, Suite 1000 Fort Lauderdale, Florida 33301 Telephone: (954) 761-8111 Facsimile: (954) 761-8112 Email: [email protected]

================================================================ COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

When a medical provider with derivative standing to bring a claim for ERISA benefits assigns its claim to a sub-assignee for the purpose of pursuing benefits, does that sub-assignee have the same rights to bring an ERISA claim for benefits as the medical provider had prior to the assignment?

ii

CORPORATE DISCLOSURE STATEMENT

Respondent, Blue Cross and Blue Shield of Flor-ida, Inc., is a wholly-owned-for-profit subsidiary of Guidewell Mutual Holding Corporation. No publicly held corporation owns 10% or more of Blue Cross and Blue Shield of Florida, Inc.’s stock.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED................................... i

CORPORATE DISCLOSURE STATEMENT ...... ii

COUNTER-STATEMENT ................................... 1

REASONS FOR DENYING THE PETITION ...... 4

I. The Circuit Courts Uniformly Permit The Assignment Of ERISA Benefit Claims, In-cluding Claims Such As Those Brought By Gables ........................................................ 5

II. The Purported Circuit Split, All In Cases Brought By Stephen Simon, Does Not Cre-ate A Legitimate Split Nor One That Jus-tifies This Court’s Attention ...................... 14

CONCLUSION ..................................................... 18

iv

TABLE OF AUTHORITIES

Page

CASES

Aetna Health Inc. v. Davila, 542 U.S. 200 (2004) ......................................................... 2, 3, 4, 6, 7

Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504 (1981) .................................................................. 7

Brown v. Sikora & Associates, Inc., 311 Fed. App’x 568 (4th Cir. 2008) .............................. 9, 12, 13

Cagle v. Bruner, 112 F.3d 1510 (11th Cir. 1997) .......... 4

Connecticut v. Physicians Health Services of Connecticut, Inc., 287 F.3d 110 (2d Cir. 2002) ........ 15

Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141 (2001) ......................................................................... 7

Encompass Office Solutions, Inc. v. Conn. Gen. Life Ins. Co., 3:11-CV-02487-L, 2012 WL 3030376 (N.D. Tex. July 25, 2012) ............................ 9

Fort Halifax Packing Co. v. Coyne, 482 U.S. 1 (1987) ................................................................... 8, 18

Gables Ins. Recovery, Inc. v. Blue Cross & Blue Shield of Florida, Inc., 110 F. Supp. 3d 1259 (S.D. Fla. 2015) .......................................................... 2

Gables Ins. Recovery, Inc. v. Blue Cross & Blue Shield of Florida, Inc., 813 F.3d 1333 (2015) ........... 3

Gables Ins. Recovery v. United Healthcare Ins. Co., 39 F. Supp. 3d 1377 (S.D. Fla. 2013) .................. 9

Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23 (1824) ......... 5

v

TABLE OF AUTHORITIES – Continued

Page

Hillsborough County, Fla. v. Automated Med. Labs., Inc., 471 U.S. 707 (1985) ................................. 5

Ingersoll-Rand Co. v. McClendon, 498 U.S. 133 (1990) ..................................................................... 5, 7

Kennedy v. Connecticut General Life Ins. Co., 924 F.2d 698 (7th Cir. 1991) ........................................... 14

Kennedy v. Plan Adm’r for DuPont Sav. & Inv. Plan, 555 U.S. 285 (2009) .......................................... 7

La Ley Recovery Sys.-OB, Inc. v. Blue Cross & Blue Shield of Fla., Inc., 14-CV-23735-KMM, 2014 WL 7525661 (S.D. Fla. Nov. 18, 2014) .............. 9

Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825 (1988) ............................................. 8, 11

Morlan v. Universal Guar. Life Ins. Co., 298 F.3d 609 (7th Cir. 2002) ................................................... 14

Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987) ......... 8

Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355 (2002) .................................................................. 7

Simon v. Allstate Employee Group Med. Plan, 263 F.3d 656 (7th Cir. 2001) .............................. 16, 17

Simon v. Belwith Int’l, Inc., 3 Fed. App’x 363 (6th Cir. 2001), cert. denied, 534 U.S. 973 (2001) ........... 16

Simon v. Cyrus Amax Minerals Health Care Plan, 107 F. Supp. 2d 1263 (D. Colo. 2000) ............ 16

Simon v. Gen. Elec. Co., 263 F.3d 176 (2d Cir. 2001) ........................................................................ 16

vi


Page

Simon v. Gen. Motors, CIV. 99-74063, 2001 WL 1218714 (E.D. Mich. Aug. 23, 2001) ........................ 16

Simon v. Quaker Oats Employee Benefit Plan, 234 F.3d 1274 (7th Cir. 2000) (unpublished disposition), cert. denied, 533 U.S. 930 (2011) ....... 15

Simon v. Value Behavioral Health, Inc., 955 F. Supp. 93 (C.D. Cal. 1997) .............................. 14, 15

Simon v. Value Behavioral Health, Inc., 208 F.3d 1073 (9th Cir. 2000), amended, 234 F.3d 428 (9th Cir. 2000), cert. denied, 531 U.S. 1104 (2001), overruled in part on other grounds by Odom v. Microsoft Corp., 486 F.3d 541 (9th Cir. 2007) ........................................................................ 15

Tango Transp. v. Healthcare Fin. Servs. LLC, 322 F.3d 888 (5th Cir. 2003) ................................... passim

Yampol v. Mut. Life Ins. Co. of N.Y., 840 F.2d 421 (7th Cir. 1988) ................................................ 9, 13, 14

CONSTITUTIONAL PROVISION

U.S. Const., Art. VI, cl. 2 ........................................... 4, 5

vii


Page

STATUTES

29 U.S.C. §§ 52-53 ....................................................... 15

29 U.S.C. § 1132(a)(2) ........................................... 13, 14

Clayton Act, 15 U.S.C. §§ 12-27 .................................. 15

Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001 et seq. ............... passim

Racketeer Influenced and Corrupt Organiza-tions Act (“RICO”), 18 U.S.C. §§ 1961-1968 ............ 15

Sherman Antitrust Act, 15 U.S.C. § 1001 .................. 15

OTHER AUTHORITY

The Federalist No. 44 (C. Rossiter ed. 1961) ............... 5

1

Respondent respectfully requests that the Court deny the petition for a writ of certiorari seeking review of the decision of the United States Court of Appeals for the Eleventh Circuit in this case.

--------------------------------- ---------------------------------

COUNTER-STATEMENT

Petitioner, Gables Insurance Recovery, Inc. (“Ga-bles”), filed a complaint against Respondent, Blue Cross and Blue Shield of Florida, Inc. (“Florida Blue”), in Florida state court. [Pet. App. 3a]. Gables alleged that a healthcare provider, South Miami Chiropractic, LLC (“South Miami Chiropractic”), provided services to a participant in a health insurance plan issued by Florida Blue. [Pet. App. 2a, and 16a]. South Miami Chi-ropractic obtained an assignment of benefits from the plan participant and relied on that assignment to sub-mit a claim for payment to Florida Blue. [Pet. App. 21a]. After Florida Blue denied the claim, South Miami Chiropractic assigned its rights “to collect benefits” to Gables. [Pet. App. 2a, and 16a].

After it was assigned the claim from South Miami Chiropractic, Gables commenced an action in state court against Florida Blue asserting claims for breach of contract, breach of an oral agreement, breach of im-plied contract, quantum meruit, open account, and ac-count stated. [Pet. App. 16a (citation omitted)]. Gables’ pleading announced that these claims arose out of Florida Blue’s alleged breach of its common law duties under the health insurance contract with its insured,

2

as well as other purported agreements between South Miami Chiropractic and Florida Blue. [Pet. App. 3a]. Gables asserted “that it could pursue its claims both as the successor in interest to the rights of the medical provider as an intended third party beneficiary of the pertinent health insurance contract and also based on agreements directly between South Miami Chiroprac-tic and Florida Blue.” [Pet. App. 3a (internal quotations omitted)].

Florida Blue removed the complaint to the United States District Court for the Southern District of Flor-ida, asserting that ERISA completely preempted Gables’ state-law claims and therefore federal question jurisdiction was proper. [Pet. App. 16a]. Following removal, Florida Blue moved for dismissal on the grounds that Gables’ claims were completely pre-empted and Gables had failed to adequately allege exhaustion of administrative remedies as required by ERISA decisional law. [Pet. App. 5a, and 17a].

Upon full briefing of the complete preemption question, the district court issued its “Omnibus Order” denying Gables’ motion to remand and granting Flor-ida Blue’s motion to dismiss. [Pet. App. 15a-25a].1 The district court applied the test set forth by this Court in Aetna Health Inc. v. Davila, 542 U.S. 200, 210, 124 S. Ct. 2488, 159 L. Ed. 2d 312 (2004), and found that federal question jurisdiction existed under the complete pre-emption doctrine. [Pet. App. 19a-23a]. After finding

1 Published at Gables Ins. Recovery, Inc. v. Blue Cross & Blue Shield of Florida, Inc., 110 F. Supp. 3d 1259 (S.D. Fla. 2015).

3

that Gables’ complaint was completely preempted, the district court determined that Gables had failed to suf-ficiently allege the exhaustion of administrative reme-dies and dismissed the complaint. [Pet. App. 24a].

Gables sought appellate review in the Eleventh Circuit that was limited to one issue, the district court’s conclusion that the claims were completely preempted by ERISA. [Pet. App. 6a]. Gables did not challenge the ERISA nature of the underlying health plan. Nor did Gables challenge the derivative standing obtained by the medical provider South Miami Chiro-practic when it secured an assignment from its patient.

As the district court had done, the Eleventh Cir-cuit examined the content of the claims in the com-plaint while applying the complete preemption test set forth in Davila. [Pet. App. 7a].2 Addressing the second prong of the Davila inquiry first, the Eleventh Circuit explained that Gables “essentially brought two types of claims. In Counts I and III, Gables asserted third party beneficiary claims based on a breach of the un-derlying ERISA plan. In Counts II, IV, V, and VI, Ga-bles alleged contractual or quasi-contractual claims that purportedly are based on Florida Blue’s oral agreements to cover the services rendered.” [Pet. App. 8a]. Regardless, the Eleventh Circuit concluded, “[n]ei-ther set of claims arises out of a separate duty inde-pendent of the ERISA plan.” [Pet. App. 8a].

2 The Eleventh Circuit’s opinion is published at Gables Ins. Recovery, Inc. v. Blue Cross & Blue Shield of Florida, Inc., 813 F.3d 1333 (2015).

4

The Eleventh Circuit then returned to the first prong of the Davila inquiry, and the prong relevant to the issue presented in Gables’ petition. The first prong of the Davila inquiry asks whether Gables could have brought its claims under section 502(a) of ERISA. [Pet. App. 9a]. The Eleventh Circuit first “readily con-clude[d] that Gables’ claims fall within ERISA’s scope.” [Pet. App. 9a-10a]. Next, the Eleventh Circuit con-cluded that “Gables has standing to sue under ERISA.” [Pet. App. 10a]. The Eleventh Circuit observed that “just as nothing in ERISA’s statutory language prohib-its healthcare providers from obtaining derivative standing through assignment, nothing in the statutory language prohibits non-healthcare providers from ob-taining derivative standing through a sub-assignment.” [Pet. App. 11a (citing Cagle v. Bruner, 112 F.3d 1510, 1515 (11th Cir. 1997), and Tango Transp. v. Healthcare Fin. Servs. LLC, 322 F.3d 888, 891 (5th Cir. 2003))]. The Eleventh Circuit agreed with opinions from the Fourth, Fifth, and Seventh Circuits allowing a sub- assignment in furtherance of the goals and purposes of ERISA. [Pet. App. 11a-12a]. Therefore, the Eleventh Circuit concluded that “Gables has standing to sue un-der the ERISA plan as a sub-assignee of the plan par-ticipant.” [Pet. App. 14a].

--------------------------------- ---------------------------------

REASONS FOR DENYING THE PETITION

“It is a familiar and well-established principle that the Supremacy Clause, U.S. Const., Art. VI, cl. 2, inval-idates state laws that ‘interfere with, or are contrary

5

to,’ federal law.” Hillsborough County, Fla. v. Auto-mated Med. Labs., Inc., 471 U.S. 707, 712-13, 105 S. Ct. 2371, 85 L. Ed. 2d 714 (1985) (citing Gibbons v. Ogden, 9 Wheat. 1, 211, 6 L. Ed. 23 (1824) (Marshall, C.J.)). Absent the Supremacy Clause, “the world would have seen, for the first time, a system of government founded on an inversion of the fundamental principles of all government; it would have seen the authority of the whole society everywhere subordinate to the au-thority of the parts; it would have seen a monster, in which the head was under the direction of the mem-bers.” The Federalist No. 44, pg. 287 (C. Rossiter ed. 1961) (Madison). In this case, Gables filed a complaint in state court with the undeniable goal of challenging denials of employee welfare plan benefits under state-law principles rather than proceeding under the fed-eral ERISA remedy system that Congress intended to be exclusive. Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 142, 111 S. Ct. 478, 112 L. Ed. 2d 474 (1990). Ga-bles’ attempt to creatively evade the supremacy clause was ill-fated. The continued effort to evade the Su-premacy Clause does not justify this Court’s review.

I. The Circuit Courts Uniformly Permit The

Assignment Of ERISA Benefit Claims, In-cluding Claims Such As Those Brought By Gables.

In the district court, Gables asserted that the claims in its “complaint are simple,” and that “they are state law contract claims to recover monies which Plaintiff asserts are owed to it.” In the Eleventh

6

Circuit, Gables argued that its complaint was a mere “collection action.” However, Aetna Health Inc. v. Davila, 542 U.S. 200, 208, 124 S. Ct. 2488, 159 L. Ed. 2d 312 (2004), instructs courts to look beyond the labels used by the plaintiff, and Gables’ complaint revealed that it sued to remedy purported “breach[es] of [Flor-ida Blue’s] common law duties under the applicable health insurance contract” procured by an employer for the purpose of providing medical expense benefits to its eligible employees. Gables sought to enforce “the Insurer’s obligations” which arise by operation “of the insurance contract between the Insurer and the In-sured,” and Gables asserted that it was the assignee of a medical provider assigned the right to recover pursu-ant to the applicable health insurance contract.

There is no doubt that Gables’ complaint is an at-tempt to recover benefits arising from an ERISA gov-erned health plan. However, Gables seeks to escape ERISA’s expansive scope. While the circuit courts have unanimously concluded that ERISA permits the as-signment of a benefit claim from a plan participant to a medical provider, Gables contends the claim can be assigned no further. Accepting that argument would allow a party (in this case Gables) to escape the exclu-sive ERISA remedy system, and the will of Congress, through the mere act of assignment. A medical pro-vider with an assignment from its patient would be re-quired to proceed under ERISA’s exclusive system, but yet the medical provider’s assignee – whose objective is identical to the medical provider in challenging a de-nial of ERISA benefits – could escape ERISA’s purview.

7

Surely that is not what Congress intended when it created ERISA’s exclusive remedy system and empha-sized the need for uniformity in employee welfare ben-efit plan regulation. Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 142, 111 S. Ct. 478, 112 L. Ed. 2d 474 (1990).

Congress enacted ERISA to allow employers to “establish a uniform administrative scheme, [with] a set of standard procedures to guide processing of claims and disbursement of benefits.” Kennedy v. Plan Adm’r for DuPont Sav. & Inv. Plan, 555 U.S. 285, 300, 129 S. Ct. 865, 172 L. Ed. 2d 662 (2009) (internal quo-tation omitted). The uniformity sought by Congress in ERISA “is impossible, however, if plans are subject to different legal obligations in different States.” Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 148, 121 S. Ct. 1322, 149 L. Ed. 2d 264 (2001). “To this end, ERISA in-cludes expansive pre-emption provisions, which are in-tended to ensure that employee benefit plan regulation would be ‘exclusively a federal concern.’ ” Aetna Health Inc. v. Davila, 542 U.S. 200, 208, 124 S. Ct. 2488, 159 L. Ed. 2d 312 (2004) (quoting Alessi v. Raybestos- Manhattan, Inc., 451 U.S. 504, 523, 101 S. Ct. 1895, 68 L. Ed. 2d 402 (1981)).

ERISA’s uniform enforcement scheme “induc[es] employers to offer benefits by assuring a predictable set of liabilities, under uniform standards of primary conduct and a uniform regime of ultimate remedial or-ders and awards when a violation has occurred.” See Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 379,

8

122 S. Ct. 2151, 153 L. Ed. 2d 375 (2002). ERISA pro-vides the exclusive means of recovery for those plans the statute covers, thus “afford[ing] employers the ad-vantages of a uniform set of administrative procedures governed by a single set of regulations.” Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 11, 107 S. Ct. 2211, 96 L. Ed. 2d 1 (1987). As the Court has observed, “[t]he policy choices reflected in the inclusion of certain rem-edies and the exclusion of others under the federal scheme would be completely undermined if ERISA-plan participants and beneficiaries were free to obtain remedies under state law that Congress rejected in ERISA.” Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 54, 107 S. Ct. 1549, 95 L. Ed. 2d 39 (1987).

The Eleventh Circuit’s opinion stays true to the goals of ERISA and to this Court’s conclusion in Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825, 108 S. Ct. 2182, 100 L. Ed. 2d 836 (1988), that ERISA does not restrain the alienability of welfare benefits under ERISA. The Eleventh Circuit concluded that “allowing assignments for the purposes of bring-ing suit generally facilitates rather than hampers the employee’s receipt of health benefits because the as-signee likely is better positioned to pursue an action for benefits.” [Pet. App. 13a]. Further, the Eleventh Cir-cuit found that “allowing a provider to assign the right to bring suit may protect plan participants by transfer-ring the burden of bringing suit from healthcare pro-viders who may be unable to collect on denied claims unless they outsource the collection effort to a third party.” [Pet. App. 12a]. In reaching that conclusion,

9

the Eleventh Circuit joined the Fourth Circuit, Fifth Circuit, Seventh Circuit, and at least thirteen district court judges. See, e.g., Tango Transp. v. Healthcare Fin. Services LLC, 322 F.3d 888 (5th Cir. 2003); Brown v. Sikora & Associates, Inc., 311 Fed. App’x 568, 570-571 (4th Cir. 2008); Yampol v. Mut. Life Ins. Co. of N.Y., 840 F.2d 421, 427 (7th Cir. 1988); Gables Ins. Recovery v. United Healthcare Ins. Co., 39 F. Supp. 3d 1377 (S.D. Fla. 2013); La Ley Recovery Sys.-OB, Inc. v. Blue Cross & Blue Shield of Fla., Inc., 14-CV-23735-KMM, 2014 WL 7525661, at *2 (S.D. Fla. Nov. 18, 2014); Encompass Office Solutions, Inc. v. Conn. Gen. Life Ins. Co., 3:11-CV-02487-L, 2012 WL 3030376, at *3 (N.D. Tex. July 25, 2012).

The Fifth Circuit’s decision, which Gables did not cite in its brief to the Eleventh Circuit, is the case most analogous to the present matter. In Tango Transport, Alice Huff obtained medical insurance coverage through the ERISA governed health plan offered by her employer. “On four occasions[ ], Huff received medical treatment from Mississippi Baptist Medical Center (“MBMC”) at a total cost of $104,152.64. On each visit, Huff executed an assignment of benefits to MBMC.” Tango Transp., 322 F.3d at 889. “MBMC, in turn, assigned Huff ’s outstanding accounts to Healthcare Financial Services (“Healthcare”).” Id. Ul-timately, Healthcare and Tango Transport asserted claims against each other, resulting in the federal dis-trict court concluding that “Healthcare does not have standing to sue for insurance benefits under ERISA.” Id. at 890.

10

On appeal, the Fifth Circuit divided the issue of Healthcare’s ERISA standing into three parts. First, “we must first determine whether Huff has standing to enforce plan benefits under ERISA.” Id. at 890. “Sec-ond, we must determine whether MBMC has standing under ERISA by way of Huff ’s assignment of her ben-efits.” Id. Third, the court must consider “whether MBMC’s assignment of its benefits to Healthcare con-fers standing under ERISA.” Id.

After addressing Huff ’s standing and the medical provider MBMC’s standing, the Fifth Circuit turned to the standing of MBMC’s assignee, Healthcare. Id. at 893. Tango argued that the prior opinions allowing a participant to assign a claim for benefits “simply cre-ated a judicial exception in favor of healthcare provid-ers to section 1132.” Id. In response, Healthcare relied upon “the well-established principle that the assignee is placed in the same position as the assignor,” and “argue[d] that such derivative standing to recover healthcare benefits from ERISA-governed welfare plans ad-vances the underlying policy goals of ERISA.” Id.

The court found Tango’s argument “unpersua-sive,” and noted that “there is no language in the [ERISA] statute which even remotely suggests that such assignments are proscribed or ought in any way be limited.” Id. (internal citation omitted). Agreeing with the medical collections company, the Fifth Circuit found “that allowing the healthcare provider to use an assignee to recover ERISA benefits does nothing to frustrate the goals or purposes of ERISA.” Id.

11

The Fifth Circuit next turned to this Court’s deci-sion on the assignability of rights under ERISA. Tango Transp., 322 F.3d at 893-894 (discussing Mackey v. La-nier Collection Agency & Serv., Inc., 486 U.S. 825, 108 S. Ct. 2182, 100 L. Ed. 2d 836 (1988)). The Fifth Circuit noted that in Mackey this Court “held that ERISA’s anti-assignment/alienation provisions for pension ben-efit plans did not preclude a collection agency from at-taching welfare benefit plans.” Tango Transp., 322 F.3d at 893 (citing Mackey, 486 U.S. at 836). “According to the Supreme Court, the absence of such anti-alienation protection with respect to ERISA welfare benefit plans must mean that the benefits of those plans are freely alienable.” Tango Transp., 322 F.3d at 893 (citing Mackey, 486 U.S. at 836).

The Fifth Circuit “decline[d], once again, to read into ERISA an anti-alienation provision that prevents assignments of enforcement rights of employee welfare plans. Rather, we hold that the assignee of a healthcare provider who has a valid assignment from the plan participant or beneficiary has derivative standing to bring a cause of action to recover benefits from an ERISA-governed employee welfare plan.” Id. at 889. Therefore, “[w]hatever rights Huff assigned to MBMC, those rights ‘to sue for payment provided by [the hos-pital] belong solely’ to MBMC. MBMC was free to as-sign its rights to Healthcare placing Healthcare in its shoes to enforce those rights under ERISA.” Id. at 893-894. MBMC exercised that right, and “chose to as-sign to Healthcare its rights to sue Tango and to collect

12

debts due on Huff ’s accounts. In this case, the assignee takes what the assignor had.” Id. at 894.

In conclusion, the Fifth Circuit observed as fol-lows:

[D]enying derivative standing to healthcare providers would harm participants or benefi-ciaries because it would discourage providers from becoming assignees and possibly from helping beneficiaries who were unable to pay them up-front. Likewise, granting derivative standing to the assignees of healthcare pro-viders helps plan participants and beneficiaries by encouraging providers to accept participants who are unable to pay up front. Conversely, to bar healthcare providers from assigning their rights under ERISA, and shifting the risk of non-payment to a third-party, would chill healthcare providers’ will-ingness to accept a patient. Third parties like Healthcare will only be willing to purchase an assignment from a healthcare provider if they can be assured that they will be afforded standing to sue for reimbursement.

Tango Transp., 322 F.3d at 894 (internal quotations omitted).

Other courts have agreed with the Fifth Circuit’s conclusion in Tango Transport. For example, in Sikora & Associates, Inc., the Fourth Circuit stated that its sis-ter “circuits have consistently recognized [ ] standing when based on the valid assignment of ERISA health and welfare benefits by participants and beneficiar-ies,” and the conclusions of those circuit courts are “in

13

part grounded on the recognition that extending deriv-ative standing to healthcare providers serves to fur-ther the explicit purpose of ERISA in a number of distinct ways.” Sikora & Assoc., Inc., 311 Fed. App’x at 570. The Fourth Circuit continued by noting that “[t]he district court seemed to believe that courts have per-mitted ‘assignment of benefits under ERISA only where the claimant is a healthcare provider.’ ” Id. (em-phasis supplied by the Fourth Circuit). The Fourth Cir-cuit commented as follows:

In fact, entities other than healthcare provid-ers have been permitted derivative standing as ERISA assignees. See Tango Transp. v. Healthcare Fin. Servs., 322 F.3d 888, 893-94 (5th Cir. 2003) (holding that a collection agency possessed derivative standing as an assignee of a healthcare provider, who itself possessed derivative standing as an assignee of the beneficiary of the ERISA plan); Yampol v. Mut. Life Ins. Co. of N.Y., 840 F.2d 421, 427 (7th Cir. 1988) (holding that an insurance company possessed derivative standing as an assignee of a fiduciary of a trust to sue under 29 U.S.C. § 1132(a)(2)).

Sikora & Associates, Inc., 311 Fed. App’x at 570-571.

The Seventh Circuit also reached this same con-clusion. In Yampol v. Mut. Life Ins. Co. of N.Y., 840 F.2d 421 (7th Cir. 1988), the Mutual Life Insurance Com-pany of New York (“MONY”), filed suit under ERISA. Id. at 422. “MONY was acting as the assignee of the Illinois Director of Insurance [ ], who is acting under a

14

state court order to liquidate the Trust.” Id. at 422. Ul-timately, the Seventh Circuit agreed “that the Director as Liquidator of the Trust is an ERISA fiduciary, and that MONY, as the Director’s assignee, may therefore bring suit as a fiduciary under 29 U.S.C. § 1132(a)(2).” Id. at 423. In later cases, the Seventh Circuit noted that it had held that a properly assigned ERISA claim makes the assignee a participant or beneficiary within the meaning of the Act.” Morlan v. Universal Guar. Life Ins. Co., 298 F.3d 609, 615 (7th Cir. 2002).

II. The Purported Circuit Split, All In Cases

Brought By Stephen Simon, Does Not Cre-ate A Legitimate Split Nor One That Justi-fies This Court’s Attention.

Gables tries to manufacture a meaningful circuit split based on the Eleventh Circuit’s conclusion in this case. However, no genuine split exists and certainly not one that is worthy of this Court’s attention. The cases cited by Gables as conflicting are all brought by the same litigious plaintiff, Stephen Simon, for the same exact claims. Those opinions from courts attempting to efficiently resolve a large volume of matters brought by a serial litigant do not represent a circuit split wor-thy of this Court’s attention nor even a split recognized within those circuits. See, e.g., Morlan v. Universal Guar. Life Ins. Co., 298 F.3d 609, 615 (7th Cir. 2002) (“in Kennedy v. Connecticut General Life Ins. Co., 924 F.2d 698, 700 (7th Cir. 1991), we rejected the reasoning later adopted in cases like Simon by holding that a properly assigned ERISA claim makes the assignee a

15

participant or beneficiary within the meaning of the Act.”); Connecticut v. Physicians Health Services of Connecticut, Inc., 287 F.3d 110, 115 (2d Cir. 2002) (“Si-mon does not necessarily control this case, however, be-cause the general rule it announced is dicta.”).

Stephen Simon’s first known foray into the federal court system was in the Central District of California where he filed claims against approximately 1,600 de-fendants. Simon v. Value Behavioral Health, Inc., 955 F. Supp. 93, 95 (C.D. Cal. 1997). Simon asserted that those 1,600 defendants “violated (1) the Employee Re-tirement Income Security Act (“ERISA”), codified at 29 U.S.C. §§ 1001 et seq.; (2) Section 1 of the Sherman An-titrust Act, codified at 15 U.S.C. § 1001; (3) the Clayton Act, codified at 15 U.S.C. §§ 12-27 and 29 U.S.C. §§ 52-53; and (4) the Racketeer Influenced and Corrupt Organizations Act (“RICO”), codified at 18 U.S.C. §§ 1961-1968.” Simon v. Value Behavioral Health, Inc., 208 F.3d 1073, 1080 (9th Cir. 2000), amended, 234 F.3d 428 (9th Cir. 2000), cert. denied, 531 U.S. 1104, 121 S. Ct. 843, 148 L. Ed. 723 (2001), overruled in part on other grounds by Odom v. Microsoft Corp., 486 F.3d 541 (9th Cir. 2007).

Stephen Simon’s renegade claims were described by the Ninth Circuit as follows: “[r]educed to their core, these claims accuse Appellees of engaging in a mass conspiracy to withhold benefits fraudulently and to re-strain trade.” Value Behavioral Health, Inc., 208 F.3d at 1080. On those claims, the Ninth Circuit affirmed the district court’s conclusion that Simon lacked stand-ing. Id. at 1080-1081.

16

Subsequently, opinions relating to cases brought by Stephen Simon were issued from various courts. Those decisions, in chronological order, include: Simon v. Cyrus Amax Minerals Health Care Plan, 107 F. Supp. 2d 1263 (D. Colo. 2000), aff ’d sub nom. Simon v. Cyprus Amax Minerals Health Care Plan, 12 Fed. App’x 839 (10th Cir. 2001); Simon v. Quaker Oats Employee Ben-efit Plan, 234 F.3d 1274 (7th Cir. 2000) (unpublished disposition), cert. denied, 533 U.S. 930, 121 S. Ct. 2552, 150 L. Ed. 2d 719 (2011); Simon v. Belwith Int’l, Inc., 3 Fed. App’x 363 (6th Cir. 2001), cert. denied, 534 U.S. 973, 122 S. Ct. 395, 151 L. Ed. 2d 299 (2001); Simon v. Allstate Employee Group Med. Plan, 263 F.3d 656 (7th Cir. 2001); Simon v. Gen. Motors, CIV. 99-74063, 2001 WL 1218714 (E.D. Mich. Aug. 23, 2001); and Simon v. Gen. Elec. Co., 263 F.3d 176 (2d Cir. 2001).

The Seventh Circuit’s second opinion in a case brought by Stephen Simon summarizes the frustration felt by the courts. The Seventh Circuit explained that it “decide[d] this case in a published opinion to alert other federal courts that Simon is flooding the courts with ERISA claims virtually identical to the ones raised here. After the Central District of California dis-missed Simon’s suit against 1,600 employee benefit plans and employers, Simon filed ten suits in 1999 and three suits in 2000 against individual employee benefit plans and their administrators seeking to recover on ERISA claims.” Allstate Employee Group Med. Plan, 263 F.3d at 658. While Stephen Simon was busy “flood-ing” the federal courts with new lawsuits, the result could not change because, the Seventh Circuit explained,

17

all of his claims were “barred on res judicata and col-lateral estoppel grounds.” Id. at 657. Specifically, the Seventh Circuit stated that “[o]n appeal Simon devotes much of his brief to arguing that the decisions of the Central District of California and the Ninth Circuit that he lacked standing to sue under ERISA were in-correct.” Id. Noting his “pattern of repetitious and mer-itless litigation,” id. at 659, the Seventh Circuit held that “Simon’s argument misses the point. The doctrine of res judicata bars relitigation” of Simon’s claims. Id. at 658.

The decisions involving Stephen Simon are not di-rectly on point and are perhaps best dealt with as the Fifth Circuit did in Tango Transport. In that case, the district court apparently relied on the Simon decisions to conclude that the sub-assignee lacked standing. See Brief of Appellant, Tango Transp. v. Healthcare Fin. Services LLC, 322 F.3d 888 (5th Cir. 2003), 2002 WL 32124336, *19 (“The only purported authority which Tango cites, in an attempt to side-step its obligations under ERISA and COBRA, and upon which the Dis-trict Court mistakenly relied, is a case involving a law-yer named Stephen Simon who represented himself against approximately sixteen hundred (1,600) De-fendants.”). On appeal, notwithstanding it being the basis of the district court’s decision, the Fifth Circuit did not acknowledge the Simon anomaly.

Affording derivative standing to a collections com-pany that receives an assignment from the healthcare provider “further[s] the purpose of ERISA preemption” and meets ERISA’s overall objective to “establish a

18

uniform administrative scheme, which provides a set of standard procedures to guide processing of benefits.” Fort Halifax Packing Co., Inc. v. Coyne, 482 U.S. 1, 107 S. Ct. 2211, 96 L. Ed. 2d 1 (1987). Conversely, denying derivative standing to a medical collections company such as Gables would destroy ERISA’s major policy ob-jective. Congress did not intend this end-run around ERISA, where state-law claims that are clearly crafted to challenge ERISA benefit denials could be resolved under a patchwork of state laws when brought by a collections company that, by its own admission, is a “successor-in-interest” and assignee of the medical pro-vider. The Eleventh Circuit’s opinion adheres to the letter of the ERISA statute. There is no compelling need for this Court to review of this matter.

--------------------------------- ---------------------------------

CONCLUSION

For the foregoing reasons, the petition should be denied.

Respectfully submitted,

DANIEL ALTER JEFFREY T. KUNTZ Counsel of Record GRAYROBINSON, P.A. 401 E. Las Olas Boulevard, Suite 1000 Fort Lauderdale, Florida 33301 Telephone: (954) 761-8111 Facsimile: (954) 761-8112 Email: [email protected]

Jeffrey T. Kuntz Ex. F, Page 1 of 3

Exhibit F Speeches and Lectures: 37. List any speeches or talks you have delivered, including commencement

speeches, remarks, interviews, lectures, panel discussions, conferences,

political speeches, and question-and-answer sessions. Include the date and

place they were delivered, the sponsor of the presentation, and a summary of

the presentation. If there are any readily available press reports, a transcript or

recording, please attach a copy or provide a URL at which a copy can be

accessed.

• March 28, 2017: Presentation to Palm Beach County Bar Association titled “Evidence Law Update: Getting It In, Keeping It Out, And Being Upheld On Appeal.” Moderated by Andrea D. McMillan, Esq.; Co-presenters - Judge Cymonie Rowe and Judge Samantha Schosberg-Feuer.

• May 5, 2017: Participation in mock trial at Carver Middle School including presentations to students in preparation. Co-Presenter – Judge Cymonie Rowe.

• June 16, 2017: Presentation to members of the Palm Beach County Bar Association titled “LLC Member Disputes.”

• October 27, 2017: Presentation at the 19th Circuit Bench Bar Conference titled “Preservation: How to Stay Out of a Legal Jam.”

• November 13 and 15, 2017: Presentations to Seventh and Eighth Grade Students at Carver Middle School Regarding Judicial System. Co-Presenter – Judge Cymonie Rowe.

• January 11, 2018: Presentation to the Appellate Practice Sections of the Dade County Bar Association and North Dade Bar Association.

• January 19, 2018: Presentation to first year students at the Nova Southeastern University Shepard Broad College of Law titled “The Importance of Professionalism in Adversarial Legal Writing: A Judicial Roundtable Discussion.”

• April 30, 2018, May 2, 2018, May 4, 2018: Participation in mock trial at Carver Middle School including presentations to students in preparation. Co-Presenter – Judge Cymonie Rowe.


• May 15, 2018: Moderator of Presentation titled “Cerio, Coxe, Karlinsky, and Spicola on the Future of the Florida Constitution.” Panel Members –Timothy Cerio, Henry Coxe, Fred Karlinsky, and William Spicola.

• May 29, 2018: Presentation at the Florida College of Advanced Judicial Studies titled “Statutory Interpretation and the Role of the Courts.” Co-Faculty – Judge Edward Artau, Daniel Nordby, and Judge Stephanie Ray.

• May 30, 2018: Presentation to the Personal Injury/Wrongful Death CLE Committee of the Palm Beach County Bar Association titled “An A to Z Trial Lawyer’s Guide to Preserving and Surviving Appellate Scrutiny at Every Stage of Trial.”

• November 1, 2018: Presentation to the South Broward County Bar Association.

• November 9, 2018: Presentations to Seventh Grade Students at Carver Middle School Regarding Judicial System. Co-Presenter – Judge Cymonie Rowe.

• November 15, 2018: Presentation to members of the bar and students from The King’s Academy titled “U.S. Supreme Court Forecast.”

• February 1, 2019: Presentation to Florida Bar Appellate Practice Section titled “A View from the Bench.” Co-Presenters included the judges of the Fourth District Court of Appeal.

• May 30, 2019: Presentation at the Florida College of Advanced Judicial Studies titled “Statutory Interpretation and the Role of the Courts.” Co-Faculty – Judge Edward Artau, Daniel Nordby, and Judge Stephanie Ray.

• May 31, 2019: Presentation at the Florida College of Advanced Judicial Studies titled “First Party Insurance Claims – Don’t Get Blown Away.” Co-Faculty – Adrian Neiman Arkin, Gladys Perez, Frank Shepherd, and Judge Raag Singhal.

• April 29, 2019, April 30, 2019, May 2, 2019, and May 3, 2019: Participation in mock trial at Carver Middle School including presentations to students in preparation. Co-Presenter – Judge Cymonie Rowe.

• March 2, 2020: Participate in lecture to seventh grade students.

• October 2, 2020: Participate in discussion on post-conviction relief at the Ninth Judicial Circuit Bench Bar Conference with Justice Grosshans and Judge Eisnaugle


• October 9, 2020: Participate in a lecture regarding standards of review at the New Appellate Judge Program.

• December 17, 2020: Participate in a lecture regarding standards of review before the Florida trial and appellate judges.

• May 5, 2021: Participate in the annual Carver Middle School Mock Trial.

• June 26, 2021: Participate in a panel discussing Judicial Nominating Commissions at the Florida Federalist Society’s Young Lawyers Summit

• November 29, 2021: Participate in a discussion about the judicial system to the middle school students at Saint Andrew’s School in Boca Raton, Florida.

• February 22, 2022: Participate in a lecture regarding appellate jurisdiction at OSCA’s FCP Institute.

• April 6, 2022: Participate in a lecture regarding standards of review at the New Appellate Judge Program.

• May 5, 2022: Participate in a lecture about the judicial system to the third grade students at the University School at Nova Southeastern University in Davie, Florida.

Jeffrey T. Kuntz

Exhibit G

2021 Form 6 - Full and Public Disclosure of Financial Interests

General Information

Hon Jeffrey Thomas KuntzName:

County:

Address: 110 S Tamarind Ave, West Palm Bch, FL 33401

Palm Beach

AGENCY INFORMATION

Organization Suborganization Title

4Th District Court Of Appeal Elected Constitutional Officer Judge

My Net Worth as of December 31, 2021 was $ 2,480,000.00.

Net Worth

Printed from the Florida EFDMS System Page 1 of 4

2021 Form 6 - Full and Public Disclosure of Financial InterestsFiled with COE: 05/03/2022

Household goods and personal effects may be reported in a lump sum if their aggregate value exceeds $1,000. This category includes any of the following, if not held for investment purposes: jewelry; collections of stamps, guns, and numismatic items; art objects; household equipment and furnishings; clothing; other household items; and vehicles for personal use, whether owned or leased.

ASSETS INDIVIDUALLY VALUED AT OVER $1,000:

Description of Asset Value of Asset

Residence (Palm Beach County, Florida) $ 730,000.00

Checking Account (Truist Bank) $ 60,000.00

Fidelity Investments Retirement Account (Roth IRA) $ 140,287.00

Fidelity Investments Retirement Account (Rollover IRA) $ 252,018.00

Health Savings Account (Chard Snyder - State of Florida) $ 33,740.00

Florida Prepaid for benefit of minor children $ 17,256.00

Sequoia Fund $ 5,000.00

Gabelli Investments $ 5,000.00

National Financial Services (stock) $ 1,386,508.00

Chevron (stock) $ 28,985.00

State of Florida Deferred Compensation Account (Nationwide) $ 7,375.00

Fidelity Investments Accounts for benefit of minor children $ 68,854.00

Florida Retirement System (FRS) Pension Plan Member Contributions $ 25,584.00

2021 Acura TLX (leased) $ 14,000.00

2022 Acura MDX (leased) $ 15,000.00

Assets

The aggregate value of my household goods and personal effect is $ 150,000.00.



Name of Creditor Address of Creditor Amount of Liability

Mortgage on Residence (Truist Bank) PO Box 26149, Richmond, Virginia 23260 $ 350,400.00

Acura Financial Services (Leased Acura TLX) Honda Finance Exchange, Inc., PO Box 70252, Philadelphia, PA 19176 $ 14,201.00

Acura Financial Services (Leased Acura MDX) Honda Finance Exchange, Inc., PO Box 70252, Philadelphia, PA 19176 $ 20,925.00

Name of Creditor Address of Creditor Amount of Liability

N/A

LIABILITIES IN EXCESS OF $1,000:

Liabilities

JOINT AND SEVERAL LIABILITEIS NOT REPORTED ABOVE:

Name of Source of Income Exceeding $1,000 Address of Source of Income Amount

State of Florida Chief Financial Officer, 200 E Gaines Street, Tallahassee, Florida 32399 $ 183,373.02

Chevron Corporation Computershare, PO Box 505000, Louisville, KY 40233-5000 $ 1,311.57

Business Entity Major Sources of Business Income Address Principal Business

Activity of Source

N/A

Identify each separate source and amount of income which exceeded $1,000 during the year, including secondary sources of income.

Income

PRIMARY SOURCES OF INCOME:

SECONDARY SOURCES OF INCOME (Major customers, clients, etc. of businesses owned by reporting person):



Interests in Specified Businesses

Business Entity # 1

N/A

Digitally signed: 5/3/2022

Signature of Reporting Official or Candidate

Under the penalties of perjury, I declare that I have read the foregoing filing and that the facts stated in it are true.

Filed with COE: 05/03/2022

Jeffrey Kuntz

Training

Based on the office or position you hold, the certification of training required under Section 112.3142, F.S., is not applicable to you for this form year.

