Friday, January 14, 2011

Fifth District Orders Counsel To Appear Regarding Possible Sanctions For Frivolous Rehearing Motion

In Marion v. Orlando Pain & Medical Rehabilitation (5D06-4243), the Fifth District denied a motion for rehearing, and entered an order to show cause as to why the attorney that filed the motion should not be sanctioned.  The motion for rehearing included statements such as:
1.  Oh.
2.  Please forgive in advance if, through the words of this Motion you can hear the author screaming, but I  cannot overcome my indignation engendered by this Honorable Court's per curiam affirmance of the lower court's order.  I understand that Motions for Rehearing are seldom granted by appellate courts, and for good reason.  However, I must believe that if I correctly state the facts of this case, the court will retract its opinion and reconsider the issue.  I assume that I failed in my obligation in the initial briefs. 
6.  In short, [Appellees] ran a con,  using the (now, surprisingly, defunct) clinic as a shell.  And now the Court seems to be saying this is OK in the Fifth District.  If so, I have lived too long.  (I am sorry -- I am screaming again.) 
The appellees "addressed the impropriety of Appellant’s motion in considerable detail and sought sanctions."  In response to the motion for sanctions, the "Appellant pressed on, albeit with a somewhat more conciliatory tone.  Appellant nevertheless delivered a “tit for tat” by demanding that Appellees’ counsel be caused to appear before the court to “explain  in detail” his assertion that Appellant’s statement of facts was improper."

The Court was not amused.  The court stated:
We have repeatedly admonished the bar regarding the impropriety of motions such as this.  See Amador v. Walker, 862 So. 2d 729 (Fla. 5th DCA 2003), and cases cited therein.  Motions for rehearing are not to be used  for the purpose of venting counsel’s frustrations with the form or substance of the court’s decision.  Id.  They are rarely, if ever, warranted when the decision is without opinion.  See Snell v. State, 522 So. 2d 407 (Fla. 5th DCA 1988) (absent a written opinion, motion for rehearing cannot direct court to matters overlooked).
In this motion, not only does counsel  violate this admonition, he does so unabashedly -- by admitting that it was his primary purpose in filing the motion.  The motion itself completely fails to satisfy any  of the requisites of a  proper motion of this nature or of any other pleading filed by a professional lawyer for that matter.  It fails to tell us what “fact” we overlooked.  It contains assertions that have no support in the record, are scandalous and are legally irrelevant........
Based upon the apparent violations of  numerous rules of court and the rules governing the conduct of attorneys, counsel for Appellant, [], is directed to appear before this Court on February 17, 2011, at 11:30 a.m., to show cause why monetary or other sanctions should not be imposed pursuant to Florida Rule of Appellate Procedure 9.410 (a) and (b), and section 57.105, Florida Statutes (2010).  The Court reserves jurisdiction for this and other proper purposes. 


Post a Comment