200 So. 3d 83
Fla. Dist. Ct. App.2015Background
- Appellants filed a motion for rehearing after the court issued a per curiam affirmance without opinion (PCA).
- The motion was a 29‑page document that largely reargued issues already briefed and argued and included disparaging, accusatory language directed at opposing counsel, the trial judge, and the panel.
- The court found the motion violated Florida Rule of Appellate Procedure 9.330(a) because it did not identify any overlooked law, fact, or precedent and was improper after a PCA.
- Appellants then filed an amended motion and claimed the original was a mistakenly filed draft; the amended motion still contained errors and retained some disparaging material.
- The court denied the motions, struck the amended motion, and entered an order to show cause under Fla. R. App. P. 9.410(a) directing counsel (Frederic Stanley, Jr.) to explain why sanctions should not be imposed; the court also directed the clerk to provide a copy of the opinion to The Florida Bar.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a rehearing motion is proper after a PCA | The rehearing should be considered (counsel attempted to reargue errors) | PCA normally precludes rehearing absent intervening authority or overlooked new controlling law | Motion was improper; rehearing denied because it reargued points and identified nothing overlooked |
| Whether the motion complied with Rule 9.330(a) (must point to overlooked law/fact) | Counsel argued the motion raised substantial errors and due process concerns | Court: Rule requires pointing to matters overlooked in an opinion; no written opinion existed to have overlooked anything | Motion violated Rule 9.330(a); court found abuse of rehearing process |
| Whether counsel’s tone and accusations warranted sanctions or referral | Counsel contended the filings reflected alleged serious misconduct by appellee and trial judge | Court viewed the rhetoric as disparaging, contemptuous, and meritless; unacceptable conduct | Court issued show‑cause order for counsel to justify why sanctions should not be imposed and referred matter to The Florida Bar |
| Whether an amended motion cured defects or justified the original filing error | Counsel claimed the original was a draft mistakenly filed and filed an amended motion | Amended motion still contained errors and retained disparaging content; did not cure violation | Amended motion stricken; motion to amend denied; court reserved jurisdiction to impose sanctions |
Key Cases Cited
- Ayala v. Gonzalez, 984 So.2d 523 (Fla. 5th DCA 2008) (rehearing is not a vehicle to reargue previously presented points)
- Marion v. Orlando Pain & Med. Rehab., 67 So.3d 264 (Fla. 5th DCA 2011) (motions for rehearing after a PCA are rarely warranted)
- Snell v. State, 522 So.2d 407 (Fla. 5th DCA 1988) (rearguing same points after a PCA is improper and an abuse of procedure)
- Amador v. Walker, 862 So.2d 729 (Fla. 6th DCA 2003) (sanctions and admonitions for abusive rehearing practice)
- 5‑H Corp. v. Padovano, 708 So.2d 244 (Fla. 1997) (mandatory reporting to The Florida Bar in appropriate cases)
- Banderas v. Advance Petroleum, Inc., 716 So.2d 876 (Fla. 3d DCA 1998) (authority addressing improper rehearing practice and sanctions)
- Elliott v. Elliott, 648 So.2d 135 (Fla. 4th DCA 1994) (case discussing sanctions for improper appellate filings)
- State ex rel. Jaytex Realty Co. v. Green, 105 So.2d 817 (Fla. 1st DCA 1958) (discussing purpose and limits of motions for rehearing)