Jedak Corp. v. Seabreeze Office Assoc. , 248 So. 3d 242 ( 2018 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
INTERIM NON-DISPOSITIVE
OPINION. NO MANDATE WILL BE
ISSUED AT THIS TIME.
JEDAK CORPORATION D/B/A RAZZLE'S,
Appellant,
v. Case No. 5D16-3777
SEABREEZE OFFICE ASSOCIATES, LLC
AND NEIL HUNTER,
Appellees.
________________________________/
Opinion filed May 25, 2018
Appeal from the Circuit Court
for Volusia County,
Dennis Craig, Judge.
Cynthia B. Beissel, and F. Bradley Hassell,
of Hassell-Legal, P.A., Daytona Beach, for
Appellant.
Thomas A. Valdez, of Quintairos, Prieto,
Wood & Boyer, P.A., Tampa, and Michael
J. Reilly and Gabriel Dobrin, of Law Offices
of James W. Kehoe, Fort Lauderdale, for
Appellee, Seabreeze Office Associates,
LLC.
No Appearance for Other Appellee.
ON MOTION TO VACATE ORDER, STAY ISSUANCE OF MANDATE,
AND ACCEPT AND CONSIDER APPELLEE’S AMENDED MOTION
FOR REHEARING OR REHEARING EN BANC
AND
APPELLEE’S AMENDED MOTION FOR CLARIFICATION, REHEARING
OR REHEARING EN BANC
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 on 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
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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 Court 2 (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
1 The request for rehearing consisted primarily of prohibited re-argument in
violation of established precedents from this Court. See, e.g., McDonnell v. Sanford
Airport Auth., 200 So. 3d 83 (Fla. 5th DCA 2015); Godoy v. State, 99 So. 3d 613 (Fla. 5th
DCA 2012); Amador v. Walker, 862 So. 2d 729 (Fla. 5th DCA 2003). Similarly, while the
motion expressed disagreement with the opinion, it failed to identify any ambiguity
necessitating clarification. See Fla. R. App. P. 9.330(a).
2 Only conflicting opinions of this Court—an intradistrict conflict—support the
application for en banc review. Fla. R. App. P. 9.331(d)(2); Finney v. State, 420 So. 2d
639, 641 (Fla. 3d DCA 1982).
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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 Amended 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
3
It is unclear whether Appellee’s reference is to the Clerk of Court or to an
unnamed deputy clerk.
4
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
4 While Appellee made another troubling assertion concerning a purported
statement by an unnamed deputy clerk that occurred after Appellee filed the first motion
for clarification, rehearing or rehearing en banc, because this purported statement
obviously did not induce the filing of that motion, we need not address it.
5 In substance, the amended motion for clarification, rehearing or rehearing en
banc is no more informative or relevant than the first one. It is essentially prohibited re-
argument. Although Appellee added an additional contention to its application for en banc
review—that the case is of “exceptional importance”—this bare-bones conclusion is
insufficient to invoke review on this ground. A rehearing en banc is an “extraordinary
proceeding.” Fla. R. App. P. 9.331(d)(2). Appellee never challenged the correctness of
the precedent from our sister court upon which the panel relied. Its entire argument is
predicated on the contention that we misapplied that precedent to the unique facts of this
case. The panel opinion merely concludes that Appellee failed to prove that the breach
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Counsel 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.
of the particular provisions of this contract caused damages. The assertion that the panel
opinion meets this narrow “exceptional importance” standard is specious.
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