The Florida Bar v. Madsen Marcellus, Jr.

Supreme Court of Florida
____________

No. SC16-1773
____________

THE FLORIDA BAR,
Complainant,

vs.

MADSEN MARCELLUS, JR.,
Respondent.

[July 19, 2018]

PER CURIAM.

We have for review a referee’s report recommending that Respondent,

Madsen Marcellus, Jr., be found guilty of professional misconduct and suspended

from the practice of law for one year. We have jurisdiction. See art. V, § 15, Fla.

Const. We approve the referee’s findings of fact and recommendations as to guilt,

but disapprove the referee’s recommended sanction, and instead suspend Madsen

Marcellus, Jr., from the practice of law for eighteen months, as set forth below.

BACKGROUND

The Florida Bar (the Bar) filed a complaint with the Court alleging that

Respondent, Madsen Marcellus, Jr., violated various Rules Regulating the Florida
Bar (Bar Rules). The case was referred to a referee, and the referee filed his report

with the Court. Both Marcellus and the Bar sought review of the referee’s report.

The referee made the following findings of fact in his report. Marcellus was

a party to dissolution of marriage proceedings that were initiated in 2009; the final

hearing in the case took place in November 2009 and the Final Order on Petition

for Dissolution of Marriage and Other Relief (Final Order) was issued on April 23,

2010. As reflected in the Final Order, the family court ordered Marcellus and his

ex-wife, Kellie Peterson Gudger, to either refinance the marital home into solely

Marcellus’s name within thirty days of that hearing or sell the home. Although

there was conflicting testimony at the final hearing before the referee, the referee

found that Marcellus vacated the marital home sometime during the pendency of

the divorce, and that the couple had arranged for sale of the home. Two days prior

to the closing, after Gudger vacated the house and completed her portion of the

paperwork for the sale of the home, Marcellus moved back into the home and

refused to complete his portion of the paperwork; as a result, the sale fell through.

Thereafter Marcellus refused to leave the home. After Marcellus reinhabited the

home, he made several attempts to refinance the mortgage into his name alone.

However, he was unable to do so based on his income.

In March 2010, Marcellus pursued another mortgage modification, this time

with the help of a family friend, Curt Francis. Marcellus and Francis testified that

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while applying for the mortgage modification, Marcellus contacted Gudger and

asked her to apply for the modification with him, but she refused. Francis told

Marcellus that he would call Gudger and convince her to sign the document.

Francis left the room as if to call her, and returned shortly thereafter indicating that

Gudger had agreed to allow him to execute the mortgage modification on her

behalf. Francis signed the document, purportedly on Gudger’s behalf, and

notarized the signature which he himself affixed to the document. Marcellus knew

that Francis signed the document and notarized his own signature. However,

contrary to assertions by Marcellus and Francis, Gudger testified that neither

Marcellus nor Francis called her regarding the modification application. She

maintained that she never agreed to have Francis sign the modification application

on her behalf. As a result of this action, Francis lost his notary commission in

Florida. Ultimately, the mortgage modification application with the fraudulent

signature was accepted and approved by the lender.

Gudger first learned of Marcellus’s modification of the mortgage using the

forged signature upon being served a foreclosure complaint filed by the lender on

December 8, 2011, after Marcellus failed to make payments on the mortgage

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following modification thereof.1 In June 2013, Gudger filed a motion for contempt

with the family court as a result of Marcellus’s failure to comply with the terms of

the Final Order in their divorce case, requiring him to either refinance the home

into solely his name within thirty days of the November 2009 final hearing or sell

the home. The family court ordered Marcellus to pay Gudger $2,500 in fees

charged to prepare and file the contempt motion but ultimately declined to hold

him in contempt of court.

Additionally, in May and June 2013, Gudger served Marcellus with various

discovery requests regarding his alleged noncompliance with family court orders

concerning child support and other matters. At a July 24, 2013, hearing, the family

court found that Marcellus had not responded to any of the discovery requests and

ordered him to do so within ten days of that hearing. Marcellus did not comply

with that order and did not comply with any of the discovery requests for the next

year of litigation. Gudger filed several motions to compel discovery. The family

court granted Gudger’s motions to compel on September 24, 2013, July 1, 2014,

and September 11, 2014. The family court sanctioned Marcellus for his failure to

comply with its orders and ordered him to pay Gudger’s attorneys’ fees within

1. Following instigation of the foreclosure proceedings, Gudger quitclaimed
her interest in the home. However, the lender refused to dismiss its claims against
her, and she remains a defendant in the pending foreclosure proceedings.

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thirty days. Additionally, the September 11, 2014, order fined Marcellus $50 per

day until he provided proof of compliance with the discovery requests.

Subsequently, the family court issued an order directing Marcellus to appear before

it on September 15, 2014, to show cause why he failed to comply with the court’s

prior orders and why he should not be sanctioned. Marcellus failed to appear, and

the family court issued a writ of bodily attachment. Ultimately, the family court

dissolved the writ after Marcellus’s appearance at the next scheduled hearing so

that the case could go forward, but expressed disbelief at Marcellus’s excuse that

his newly hired counsel, who also happened to be his law partner, failed to notify

him of the Monday morning show cause hearing until after close of business on the

preceding Friday.

The referee found that Marcellus remained in violation of several family

court orders as of the date of the final hearing in this case. Specifically, the referee

found that Marcellus had failed to pay the attorneys’ fees or fines ordered by the

family court on September 24, 2013, July 1, 2014, and September 11, 2014. He

also found that Marcellus remained in violation of the family court’s April 23,

2010, Final Order by remaining in the marital home and failing to refinance it out

of Gudger’s name. Additionally, the referee found that Marcellus took actions to

evade arrest on the writ of attachment, such as exchanging vehicles with his

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current wife so that he would not be found driving the vehicle described in the writ

and avoiding his children’s activities for fear of being arrested.

RULE VIOLATIONS

The referee recommended that Marcellus be found to have violated Bar

Rules 3-4.3 (Misconduct and Minor Misconduct); 4-3.4(a) (a lawyer must not

unlawfully obstruct another party’s access to evidence or otherwise unlawfully

alter, destroy, or conceal a document or other material that the lawyer knows or

reasonably should know is relevant to a pending or reasonably foreseeable

proceeding); 4-3.4(b) (a lawyer must not fabricate evidence); 4-3.4(c) (a lawyer

must not knowingly disobey an obligation under the rules of a tribunal except for

an open refusal based on an assertion that no valid obligation exists); 4-3.4(d) (a

lawyer must not in pretrial procedure make a frivolous discovery request or

intentionally fail to comply with a legally proper discovery request by an opposing

party); 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud,

deceit, or misrepresentation); and 4-8.4(d) (a lawyer shall not engage in conduct in

connection with the practice of law that is prejudicial to the administration of

justice).

Marcellus challenges several of the referee’s findings of fact and argues that

the referee’s recommendations as to guilt with regard to Bar Rules 4-3.4(a), (c),

and (d), and 4-8.4(c) are not sufficiently supported by the referee’s findings of fact.

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Marcellus does not challenge the referee’s recommendations that he be found

guilty of violating Bar Rules 3-4.3, 4-3.4(b), and 4-8.4(d).

When reviewing a referee’s findings of fact, “the Court will not reweigh the

evidence and substitute its judgment for that of the referee” if the referee’s findings

of fact are supported by competent, substantial evidence in the record. Fla. Bar v.

Gwynn, 94 So. 3d 425, 428 (Fla. 2012). Additionally, it is the referee’s

responsibility to make credibility determinations and resolve conflicts in the

evidence presented at the final hearing. Fla. Bar v. Niles, 644 So. 2d 504, 506

(Fla. 1994). Further, the referee’s findings of fact must be “sufficient” to support

the recommendations as to guilt. See Fla. Bar v. D’Ambrosio, 25 So. 3d 1209,

1216 (Fla. 2009); Fla. Bar v. Shoureas, 913 So. 2d 554, 557-58 (Fla. 2005).

In this case, many of Marcellus’s challenges to the referee’s factual findings

represent no more than credibility arguments. However, it is the respondent’s

burden to demonstrate that the referee’s factual findings lack support, and simply

“pointing to contradictory evidence where there also is competent, substantial

evidence in the record that supports the referee’s findings” will not suffice. Fla.

Bar v. Glick, 693 So. 2d 550, 552 (Fla. 1997). Accordingly, those findings of fact

are hereby approved without further discussion.

Marcellus does present several more substantive challenges to factual

findings by the referee. Marcellus contends that he did not violate the family

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court’s April 23, 2010, Final Order on Petition for Dissolution of Marriage and

Other Relief by obtaining a mortgage modification using Gudger’s name because

the Final Order was not issued until after the modification had occurred. However,

the referee’s finding that Marcellus violated the family court’s order by his conduct

is well supported by evidence, including the family court’s order itself, which

directed Marcellus to “within thirty (30) days of the date of this hearing, determine

whether or not the house can be retained. If the house can be retained, [Marcellus]

will refinance the mortgage out of [Gudger’s] name within that thirty (30) day

period.” Marcellus v. Marcellus, No. 09-0511-37, at ¶ 25 (Fla. 17th Cir. Ct. Apr.

23, 2010) (emphasis added). If the house could not be refinanced, the family court

directed Marcellus to “put the house up for sale as soon as possible.” Id.

Similarly, although Marcellus challenges as unsupported the referee’s

finding that he refused to comply with various family court orders compelling him

to respond to Gudger’s discovery requests and to appear before it, the referee’s

finding is amply supported by evidence produced at the final hearing in this

disciplinary matter. Marcellus offers as an explanation that he was represented by

counsel for much of the time that Gudger’s discovery requests went unanswered,

and thus he is not personally liable. However, the record indicates that he

proceeded pro se for over two months, during which time he refused to respond to

pending discovery requests. Even after he was represented by counsel, he was

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ordered by the family court on September 24, 2013, July 1, 2014, and September

11, 2014, to respond to various discovery requests; however, Marcellus refused to

respond to the discovery requests for the next year of litigation.

Moreover, Marcellus’s argument that his failure to appear before the family

court for consideration of sanctions against him, despite having been ordered to do

so, did not violate any Bar Rules because he was attending to matters on behalf of

a client holds no water. Despite the fact that Marcellus knew about the order

directing him to appear before the family court, the evidence before the referee

indicates he made no attempt whatsoever to notify the family court that he would

not be present as a result of his alleged obligation to appear on behalf of a client in

another matter. Marcellus’s excuse that he was not notified that his presence was

required before the family court until after close of business on Friday preceding

the Monday morning hearing is no excuse for his failure to have notified the family

court that he would not be present, or to find another attorney to cover his prior

obligations to clients.

Accordingly, because the referee’s findings of fact are supported by

competent, substantial evidence in the record, we hereby approve the referee’s

findings of fact. Because Marcellus’s challenges to the referee’s recommendations

that he be found to have violated Bar Rules 4-3.4(a) and (d), and 4-8.4(c), rest

solely on his challenges to the referee’s factual findings underpinning those

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recommendations, we hereby approve the referee’s recommendations that

Marcellus be found to have violated those rules without further comment.

Marcellus further challenges the referee’s recommendation that he be found

to have violated Bar Rule 4-3.4(c) “because this rule has an element of scienter and

the Respondent certainly did not intend to mislead anyone.” Respondent’s Answer

Brief and Initial Brief on Cross Appeal at 19. Bar Rule 4-3.4(c) provides that a

lawyer must not “knowingly disobey an obligation under the rules of a tribunal

except for an open refusal based on an assertion that no valid obligation exists.”

However, failing to respond to discovery requests in the face of orders compelling

responses is grounds for a violation of Bar Rule 4-3.4(c). See, e.g., Fla. Bar v.

Bischoff, 212 So. 3d 312 (Fla. 2017) (suspending attorney from the practice of law

for failing to respond to discovery requests, filing a false notice of serving

discovery responses, and instructing client not to respond to questions during

deposition); Fla. Bar v. Whitney, 132 So. 3d 1095 (Fla. 2013) (suspending attorney

from the practice of law for failing to take action in a case on behalf of client,

failing to respond to discovery requests, and misrepresenting material facts to the

presiding court).

We therefore approve the referee’s findings of fact and recommendations

that Marcellus be found to have violated Bar Rules 3-4.3, 4-3.4(a), (b), (c), and (d),

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and 4-8.4(c) and (d). These findings are amply supported by the record before the

referee.

FINDINGS IN AGGRAVATION AND SANCTION

The referee found that several aggravating and mitigating factors were

present in this case. After considering the facts of the case, his findings in

aggravation and mitigation, the applicable case law, and the applicable Florida

Standards for Imposing Lawyer Sanctions (Standards), the referee recommended

that Marcellus be suspended from the practice of law for one year and ordered to

pay the Bar’s costs. Marcellus challenges several of the referee’s findings in

aggravation as unsupported as well as the referee’s recommended sanction; the Bar

also challenges the referee’s recommended sanction. For the reasons discussed

below, we hereby approve the referee’s findings in aggravation, but disapprove the

referee’s recommended sanction and instead suspend Marcellus from the practice

of law for eighteen months.

In his report, the referee found the existence of seven aggravating factors:

Standards 9.22(b) (dishonest or selfish motive); 9.22(c) (a pattern of misconduct);

9.22(d) (multiple offenses); 9.22(f) (submission of false evidence, false statements,

or other deceptive practices during the disciplinary process); 9.22(h) (vulnerability

of victim); 9.22(i) (substantial experience in the practice of law); and 9.22(j)

(indifference to making restitution). “[A] referee’s findings of mitigation and

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aggravation carry a presumption of correctness and will be upheld unless clearly

erroneous or without support in the record.” Fla. Bar v. Germain, 957 So. 2d 613,

621 (Fla. 2007). The burden of demonstrating that the findings in aggravation or

mitigation are clearly erroneous lies with the party challenging the findings. See

Fla. Bar v. Glick, 693 So. 2d 550, 552 (Fla. 1997) (holding that the burden of

disproving a referee’s findings of fact or recommendations as to guilt is upon the

party challenging those findings).

Here, Marcellus concedes that the referee’s findings as to Standards 9.22(c),

(d), and (i), are supported by evidence; he challenges the remaining findings in

aggravation, oftentimes without providing any specific reference to authority

supporting his position or demonstrating that the findings are without support in

the record. Marcellus argues that the referee’s finding that Gudger was a

vulnerable victim was erroneous because she is “a practicing attorney and a

litigator.” Respondent’s Answer Brief and Initial Brief on Cross Appeal at 24.

However, this argument is clearly without merit. See Fla. Bar v. Arcia, 848 So. 2d

296, 298-99 (Fla. 2003) (finding a law firm to be a vulnerable victim in a case

where one of its lawyers diverted fees from the law firm to his own personal

accounts). Because Marcellus makes only general challenges to the remaining

findings in aggravation, he has failed to meet his burden and we hereby approve

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the remaining findings in aggravation without further comment. See R. Regulating

Fla. Bar 3-7.7(c)(5).

With regard to the sanction, we disapprove the referee’s recommendation

that Marcellus be suspended from the practice of law for one year, and instead

suspend him for eighteen months. This Court’s scope of review in imposing

discipline is broader than that afforded to the referee’s factual findings because,

ultimately, it is the Court’s responsibility to order the appropriate sanction. Fla.

Bar v. Anderson, 538 So. 2d 852, 854 (Fla. 1989); see also art. V, § 15, Fla. Const.

The Court will generally not second-guess the referee’s recommended sanction as

long as it has a reasonable basis in existing case law and the Florida Standards for

Imposing Lawyer Sanctions, see Florida Bar v. Temmer, 753 So. 2d 555, 558 (Fla.

1999), although recently the Court has “moved toward imposing stronger sanctions

for unethical and unprofessional conduct.” Fla. Bar v. Rosenberg, 169 So. 3d

1155, 1162 (Fla. 2015).

The Florida Standards for Imposing Lawyer Sanctions dictate that a

suspension is appropriate in this case. Specifically, Standards 6.12 (“Suspension is

appropriate when a lawyer knows that false statements or documents are being

submitted to the court or that material information is improperly being withheld,

and takes no remedial action.”) and 6.22 (“Suspension is appropriate when a

lawyer knowingly violates a court order or rule, and causes injury or potential

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injury to a client or a party, or causes interference or potential interference with a

legal proceeding.”) are instructive in this case and provide that suspension is the

appropriate sanction for Marcellus’s actions. However, the length of the

suspension imposed is guided by case law and the Court’s discretion.

Due to the seriousness of Marcellus’s misconduct in this case, we find that

the referee’s recommended sanction of a one-year suspension is too lenient. In

reaching this conclusion, we found the following cases particularly instructive,

although the conduct in each of these cases was less egregious than Marcellus’s

conduct in this case. First, we look to Florida Bar v. Bischoff, 212 So. 3d 312, 319

(Fla. 2017), in which the Court approved a referee’s findings of fact demonstrating

“that Bischoff knowingly and recklessly pursued frivolous claims, he repeatedly

engaged in discovery-related misconduct, and he failed to comply with court

orders and rules,” and suspended Bischoff from the practice of law for one year.

Bischoff failed to respond to discovery requests on behalf of his clients for over

two years, despite the trial court’s entry of several orders compelling him to do so;

refused to produce his client for a deposition until after a court order directing him

to do so, then advised his client to refuse to answer any questions during the

deposition; filed a “Notice of Serving Responses to Discovery Requests” with a

court despite having not served any such responses; and refused for some time to

pay any of the attorneys’ fees or sanctions ordered by the trial court. Id. at 314-16.

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Notably, the referee in Bischoff found that he had eventually paid the fees and

sanctions ordered by the trial court. Id. at 320.

We next look to Florida Bar v. Rosenberg, 169 So. 3d 1155 (Fla. 2015), for

direction. Rosenberg was disciplined for having failed to respond to discovery

requests on behalf of his clients for over a year, despite the circuit court’s six

orders compelling discovery in the case. Id. at 1156-57. He failed to provide

complete discovery responses in the form dictated by the Florida Rules of Civil

Procedure and refused to provide various information based on objections that had

previously been overruled. Id. at 1157-58. The circuit court ordered Rosenberg to

pay attorneys’ fees as a result of his misconduct and for having acted in bad faith;

the referee found that he never paid those sanctions. Id. at 1158. As a result of his

misconduct, the Court suspended Rosenberg from the practice of law for one year.

Id. at 1161-62.

We last turn to Florida Bar v. Whitney, 132 So. 3d 1095 (Fla. 2013), for

guidance. The Court suspended Whitney from the practice of law for one year

following his failure to take action in a case on behalf of his clients, as well as

various discovery violations and misrepresentations to the court that he made in the

context of another case in which he was the defendant. Id. at 1098. Whitney took

over $60,000 in fees as well as the cost of travel to and from Brazil twice to handle

the client’s fiancée’s immigration from Brazil. Despite receiving the fees, Whitney

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took virtually no action with regard to the immigration and ultimately withdrew

from representing that client without returning any fees. Id. at 1099-1100. In a

subsequent lawsuit initiated by the client in connection with Whitney’s deficient

representation and failure to return fees, Whitney failed to appear for depositions,

testified falsely at depositions when he finally appeared, waited six months to

respond to any discovery requests, and then served incomplete responses. Id. at

1100-01. The referee found that although Whitney ultimately paid the judgment

that was entered against him by the circuit court, he had not paid the almost

$25,000 in attorneys’ fees also ordered by the circuit court. Id. at 1101.

The lawyers in Bischoff, Rosenberg, and Whitney were each suspended from

the practice of law for one year. Although Marcellus’s conduct is similar to that in

each of those cases, it is more severe and accordingly deserving of a more severe

sanction. For instance, although Marcellus engaged in the same type of conduct as

that at issue in Bischoff, he failed to pay any of the fees or sanctions ordered by the

family court and remained in violation of the family court’s 2010 Final Order on

Petition for Dissolution of Marriage and Other Relief because he remained in the

marital home and did not finance it out of Gudger’s name. Not only did Marcellus

refuse to comply with orders of the family court directing him to provide discovery

responses for over a year, and refuse to pay the penalties associated therewith, but

he also remained in violation of some of those orders as of May 30, 2017. He also

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refused to appear before the family court for consideration of sanctions, and as a

result the family court issued a writ of bodily attachment in order to compel his

appearance. It is clear that, at least in the context of Marcellus’s divorce case, he

engaged in a pattern of deliberately disobeying and disregarding orders of the

family court. “This Court has long held that ‘cumulative misconduct of a similar

nature warrants an even more severe discipline than might dissimilar conduct.’ ”

Fla. Bar v. Picon, 205 So. 3d 759, 766 (Fla. 2016) (quoting Fla. Bar v. Walkden,

950 So. 2d 407, 410 (Fla. 2007)).

Moreover, unlike in Bischoff, Rosenberg, or Whitney, Marcellus submitted a

mortgage modification application with a forged signature, despite having

personally witnessed the forgery. Gudger discovered that her signature had been

forged only after Marcellus failed to pay his mortgage and the bank filed suit to

foreclose on the home; otherwise she would have never discovered Marcellus’s

conduct. Gudger remained a defendant in the pending foreclosure action solely as

a result of Marcellus’s misconduct. His conduct was entirely unbecoming of a

lawyer, who is held within a position of trust and respect in our society, and cannot

be tolerated. Although Marcellus committed this misconduct as a party to his own

divorce, lawyers “do not cast aside the oath they take as an attorney or their

professional responsibilities” just because they are litigants in personal matters.

Fla. Bar v. Cibula, 725 So. 2d 360, 365 (Fla. 1998); see Fla. Bar v. Baker, 810 So.

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2d 876, 882 (Fla. 2002) (“We impose this discipline because we expect members

of The Florida Bar to conduct their personal business affairs with honesty and in

accordance with the law.”).

Accordingly, Madsen Marcellus, Jr., is hereby suspended from the practice

of law for eighteen months. The suspension is effective, nunc pro tunc, June 16,

2018, the date on which this Court ordered that Marcellus’s suspension shall be

effective. See Fla. Bar v. Marcellus, No. SC16-1773 (Fla. order issued May 15,

2018) (granting Marcellus’s motion to extend the commencement date of the

suspension imposed by order dated April 25, 2018, and extending the effective

date of Marcellus’s suspension until June 16, 2018). Marcellus shall fully comply

with Rule Regulating the Florida Bar 3-5.1(h). Further, Marcellus shall accept no

new business from the date this opinion is filed until he is reinstated.

Judgment is entered for The Florida Bar, 651 East Jefferson Street,

Tallahassee, Florida 32399-2300, for recovery of costs from Madsen Marcellus,

Jr., in the amount of $3,048.94, for which sum let execution issue.

It is so ordered.

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

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THIS SUSPENSION.

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Original Proceeding – The Florida Bar

Joshua E. Doyle, Executive Director, Tallahassee, Florida, Jennifer R. Falcone, Bar
Counsel, Miami, Florida, and Adria E. Quintela, Staff Counsel, The Florida Bar,
Sunrise, Florida,

for Complainant

Kevin P. Tynan of Richardson & Tynan, P.L.C., Tamarac, Florida,

for Respondent

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