JEDAK CORPORATION D/B/A RAZZLE'S, APPELLANT,
v.
SEABREEZE OFFICE ASSOCIATES, LLC AND NEIL HUNTER, APPELLEES.

Fla. 5th DCA | 2018-05-25
No. Case No. 5D16–3777
248 So. 3d 242 Florida District Court of Appeal, Fifth District (2018) Positive Treatment
Cited by 1 case

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

The Florida District Court of Appeal, Fifth District, addressed a series of procedural motions filed by Appellee Seabreeze Office Associates after the court issued its opinion in the underlying case. The court found that Appellee's counsel violated appellate rules by filing legally insufficient motions for rehearing en banc and filing an amended motion without leave of court, ultimately imposing a show cause order regarding potential sanctions.


Holding

The court denied Appellee's motion seeking relief from prior orders and struck the amended motion for clarification, rehearing, or rehearing en banc as filed in violation of rule 9.330(b) without leave of court. The court ordered Appellee's counsel to show cause within five days why sanctions should not be imposed pursuant to section 57.105, Florida Statutes, and the court's inherent authority for violations of rule 9.331 and for filing the frivolous motion.


Headnotes

[1] A motion for rehearing tolls the time for filing further post-opinion motions.

[2] A motion for rehearing en banc must cite specific decisions with which the panel opinion conflicts to satisfy rule requirements.

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Key Quotes

“the mere filing of this motion tolled the time for filing of the motions for which he sought an extension”

Establishes that Appellee's counsel was apparently unaware of the automatic tolling provision under Florida Rule of Appellate Procedure 9.300(b), which explained his apparent urgency and the entire procedural sequence that followed.

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Facts & Procedural History

Fourteen days after the court issued its opinion, Appellee filed an emergency motion for extension of time to file post-opinion motions, apparently un…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Fourteen days after our opinion issued in this case, Appellee, Seabreeze Office Associates, LLC, filed an "emergency" motion seeking an extension of time within which to file a motion for rehearing and other "post-opinion" motions. The "emergency" motion stated that Appellant could not agree to any extension of time. We assume that Appellee's counsel, Thomas A. Valdez, was unaware that the mere filing of this motion tolled the time for filing of the motions for which he sought an extension. See Fla. R. App. P. 9.300(b). We base this assumption on three facts. First, Appellee labeled the motion an "emergency" when in fact no exigency existed given the automatic tolling. Second, on the next business day following the filing of the motion for extension of time, a Monday, Appellee's counsel's staff called our clerk's office expressing a sense of urgency for a decision *244on the motion. Finally, when counsel did not receive an order by close of business on that Monday, he filed a "Motion for Clarification, Rehearing or Rehearing En Banc ." That motion was filed two minutes after midnight on the date counsel apparently believed the motions were due, suggesting that counsel worked into the late night to meet what he apparently believed was the actual due date. The motion contained no indication that it was incomplete or that further time was needed to refine the motion.

Absent a meritorious objection from Appellant, the panel would probably have granted Appellee's motion for extension of time for filing a motion for rehearing. However, it is doubtful that any such extension would have included a carte blanche for the filing of unspecified "post-opinion" motions. Nevertheless, because Appellee filed the motion for clarification, rehearing or rehearing en banc within the tolling period, we accepted the filing as timely and treated the requested extension as moot. Accordingly, we addressed the merits of the motion. To the extent Appellee sought clarification or rehearing, we denied the motion on the merits.1 As for the request for rehearing en banc , the panel concluded that it was not legally sufficient and struck that portion of the motion.

Pursuant to Florida Rule of Appellate Procedure 9.331(d)(1), there are only two bases for requesting rehearing en banc : (1) that the case or issue is of exceptional importance or (2) that rehearing is necessary to maintain uniformity in the court's decisions. If the request is based on the latter, rule 9.331(d)(2) requires the movant to specifically cite the decisions with which the movant believes the panel opinion conflicts. Although Appellee's motion contained a certificate of counsel that the panel opinion was "contrary to the decision(s) of this Court," that certificate did not list the allegedly conflicting decisions, in violation of rule 9.331(d)(2). In the body of the motion, Appellee alleged that our panel opinion "overlooked and misapplied the controlling law as discussed in the previous sections." In fact, neither "controlling law" nor any decision of this Court2 (much less a purportedly conflicting decision) was cited anywhere within the text of the motion. Instead, Appellee cited a Third District case, which the panel opinion had expressly addressed, and a secondary source, which relied upon a federal case said to be "governed by" a federal statute. Accordingly, the representation that our panel opinion conflicted with "controlling law" and the certification of counsel that our panel opinion conflicted with other decisions of this Court were false. The very reason rule 9.331(b) requires a "certification" of counsel is to prevent the abuse of this rule by placing the ethical onus on counsel to verify and separately certify compliance.

After our disposition of its motion for clarification, rehearing or rehearing en banc , Appellee filed the instant "Motion to Vacate Order, Stay Issuance of Mandate, and Accept and Consider Appellee's *245Amended Motion for Rehearing or Rehearing En Banc ." This motion seeks a redo of Appellee's motion for clarification, rehearing or rehearing en banc based upon what Appellee labels "extraordinary circumstances." Appellee contends that its first motion for clarification, rehearing or rehearing en banc was "hurriedly filed" and that it was "forced to discontinue further work on the motion" due to counsel's apparent perception that this Court had been dilatory in ruling on Appellee's request for extension of time. Accordingly, Appellee now asks this Court to vacate its orders on Appellee's motion for extension of time and motion for clarification, rehearing or rehearing en banc and instead rule on its amended motion for clarification, rehearing or rehearing en banc , which it filed after this Court denied the first motion for clarification, rehearing or rehearing en banc .

Most troubling in the motion is Appellee's irrelevant assertion that the fault for the perceived time crunch lies with "the Clerk"3 with whom counsel's staff purportedly had a telephone conversation. During this conversation, which ostensibly occurred on Monday, April 30, 2018, the person with whom counsel's staff spoke allegedly informed counsel's assistant that an order on the motion for extension of time "was being circulated and that the Court would rule on the Motion that day ." (Emphasis added). On its face this allegation is inherently implausible. Motions such as this circulate electronically among three judges. If the motion was indeed "circulating," it would be nearly impossible for any person in the clerk's office to know when a ruling would be forthcoming. Nevertheless, Appellee's assertion triggered an exhaustive internal review in our already overburdened clerk's office. All staff members were queried and, as might be predicted, none recalled speaking with counsel's office on Monday and all denied having informed counsel's office when a ruling would be issued. Regardless of what transpired between someone in the clerk's office and counsel's staff, counsel's perceived need to "hurriedly" complete the motion and "discontinue further work" on the motion for clarification, rehearing or rehearing en banc was obviously the product of counsel's lack of familiarity with the tolling provision of rule 9.300(b), rather than information supplied by the clerk's office.4

Accordingly, Appellee's motion seeking relief from our prior orders is denied. Further, because Appellee filed an amended motion for clarification, rehearing or rehearing en banc in violation of rule 9.330(b) and without leave of court, it is stricken.5

*246Counsel for Appellee, Thomas A. Valdez, shall show cause in writing within five days why sanctions should not be imposed pursuant to section 57.105, Florida Statutes, and this Court's inherent authority, for violations of rule 9.331 and for filing the instant motion, which the Court considers frivolous. The Court reserves jurisdiction to require counsel to personally appear before the Court should the written explanation not be satisfactory. Appellant shall file no response unless ordered or unless leave of court is requested and granted.

To clarify and emphasize for the benefit of litigants and counsel, the clerk's office does not give legal advice. The clerk's office does not make predictions about when the Court will render a ruling, the contents of that ruling, or the internal progress or status of a matter that is pending before this Court. Accordingly, litigants and counsel should not request this information from the clerk's office. Rulings of this Court are rendered in writing and, if the exigencies of the ruling dictate, may be immediately published to the litigants and counsel orally but only after a written ruling is rendered.

MOTIONS DENIED; SHOW CAUSE ORDER ENTERED.

COHEN, C.J., PALMER and TORPY, JJ., concur.


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Citator

Cited By

  • …pth of the displeasure that one might feel toward this judicial body as a result of having unsuccessfully sought appellate relief.” Ayala v. Gonzalez, 984 So. 2d 523, 526 (Fla. 5th DCA 2008); see also Jedak Corp. v. Seabreeze Off. Assocs., LLC, 248 So. 3d 242, 244 n.1 (Fla. 5th DCA 2018) (denying a motion for rehearing where “the motion expressed disagreement with the opinion, [but] failed to identify any ambiguity necessitating clarification”); Sherwood v. State, 111 So. 2d 96, 98 (Fla. 3d DCA 1959)…

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