IN THE SUPREME COURT OF FLORIDA. CASE NO. SC Lower Tribunal No.: 99-51,297(17C) DAVID SMITH NUNES. Appellant, THE FLORIDA BAR. Appellee.

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC Lower Tribunal No.: 99-51,297(17C) DAVID SMITH NUNES Appellant, v. THE FLORIDA BAR Appellee. ******************************************************************* PETITIONER S REPLY BRIEF ******************************************************************* Peter Ticktin, Esquire SCHOLL, TICKTIN & ROSENBERG, P.A. Attorneys for the Petitioner Net First Plaza 5295 Town Center Road Third Floor Boca Raton, Florida (561)

2 TABLE OF CONTENTS ARGUMENT... 1 I. WHETHER THE REFEREE ERRED BY ENTERING A DEFAULT WHILE MR. NUNES MOTION FOR ENLARGEMENT OF TIME WAS PENDING... 1 II. III. WHETHER THE REFEREE ERRED BY MAKING FINDINGS THAT WERE BEYOND THOSE FOUND ON THE FACE OF THE COMPLAINT... 9 WHETHER THE REFEREE ERRED BY GIVING THE EXTREME SANCTION OF DISBARMENT... 9 CONCLUSION CERTIFICATE OF SERVICE AND FONT... 12

3 TABLE OF CITATIONS FLORIDA SUPREME COURT Cases Page Gore v. Harris, 24 Fla. Law W. S1112 (Fla. 2000)... 7 Picchi v. Barnett Bank of South Florida, N.A., 521 So. 2d 1090 (Fla. 1988)... 3 State ex rel. Watson v. City of Miami, 15 So. 2d 481 (Fla. 1943)... 7 FLORIDA DISTRICT COURTS OF APPEAL Cases Page Goldy v. Corbett Cranesservices, Inc., 692 So. 2d 225, 228 (Fla. 5 th DCA 1997)... 8 OTHER AUTHORITIES Rule 1.500(a) Rules of Civil Procedure... 5, 8 Rule 1.500(a) Florida Rules of Civil Procedure... 5, 6 Rule 1.500(a) Florida Rules of Civil Procedure... 2 Rule Florida Rules of Civil Procedure... 3 Rule 1.090(b) Florida Rules of Civil Procedure... 4 Form ARGUMENT

4 I. WHETHER THE REFEREE ERRED BY ENTERING A DEFAULT WHILE MR. NUNES MOTION FOR ENLARGEMENT OF TIME WAS PENDING The Florida Bar failed to meet the main thrust of the Petitioner s argument head on. That thrust is one of fundamental fairness, or due process. It is axiomatic that any system that gives both sides a chance to be heard is more fair than one that does not. Five days prior to the filing of TFB s Motion for Default, the Petitioner had served and filed a Motion for Enlargement of Time. That motion was completely ignored. There was no hearing arranged to consider the problem that the Petitioner was having in his efforts to obtain counsel, and there was no hearing on the Motion for the entry of the Default, notwithstanding the fact that the Petitioner had served and filed a motion. In his Motion for Default, counsel for TFB advised the Referee of the Petitioner s failure to file an Answer, but omitted the fact that he had received a Motion for Enlargement of Time. The Motion was mailed to the Referee two days before the Default was entered. No doubt, the Referee relied on the representations in the Motion for Default, and perfunctorily his Honor entered the Default that was provided with the Motion. This is not the way a man s professional career should be determined.

5 This Court considers disciplinary matters to be of great importance, probably secondary to only capital cases. The Rules of Civil Procedure prohibit the entry of a default by the Clerk of the Court if a Defendant had filed any paper. That is because a judge should consider any such paper to use his discretion as to whether or not a default should be entered. In this case, a paper was filed of which the Referee was probably unaware, as there was no hearing and no indication to the Referee that something had been filed. This is not the way that these cases should be pursued. This is not a game of got you. Or, at least, it should not be. Ordinarily, if an Answer or responsive motion is filed before the entry of a default, the default must fail. Hence, the time in which such a pleading or motion is required is at least 20 days and no more than the time that it takes for a plaintiff to obtain and file a default. See Rule 1.500(c), Florida Rules of Civil Procedure. In the case at bar, within the same time that the Petitioner had to file his Answer, he did file a document which put him into the case. He filed his Motion for Enlargement of Time, which should have been heard. This would have given the Referee control of the litigation and he could have imposed time constraints to give fair notice of when a default would be entered. Instead, the Petitioner got less consideration than one who unethically would file a Notice of Appearance for purposes of delay. In Picchi v. Barnett Bank of South

6 Florida, N.A., 521 So. 2d 1090 (Fla. 1988) this Court held that a Defendant whose counsel filed a Notice of Appearance was not entitled to a Notice of a Hearing on a Motion for Default, but that there was an entitlement to service of the Motion for a Default. The inference is that there would have to be a hearing on a Motion for Default. Otherwise, if there was to be no actual difference between the Clerk and a perfunctory judge, this Court could have simply encouraged the mailing of a proposed Default with no explanation other than that there was no Answer or Rule motion filed. Otherwise, it would be better for the Clerk s office to enter all defaults than for the Court to perfunctorily enter them. At least the Clerk would have the court file to see what was filed. The Referee had only the Motion for Default, and the representations of Bar Counsel for The Florida Bar, on which his Honor should have been able to rely. Instead of being informed that Mr. Nunes has had difficulty in obtaining an attorney and has requested additional time, the Referee, here, knew only that no response was made to the Complaint. It is not important if this was an intentional concealment of information with malice of forethought, or an innocent failure to provide that information. It should have been provided. The Referee should been properly advised in the premises. Instead, TFB advised the Referee by inference that the Petitioner failed to plead or

7 otherwise defend as provided by the rules. (Emphasis added.) ( 2 of Motion for Default). It is likely that the Referee understood from the clear language of TFB s Motion for Default that there was a total failure to defend as provided by the rules, which would have included the failure to move under Rule 1.090(b) of the Florida Rules of Civil Procedure for an enlargement of time. If this Referee had known of the Petitioner s motion, it is likely that he would have acted with appropriate discretion to made inquiry of him and given additional time. Instead, his Honor simply signed a Default with no hearing, as he had no knowledge of the Motion for Enlargement of Time. This is how this case has turned into a game of how to deprive an attorney of an opportunity to be heard and then to disbar him on procedural mistakes, rather than on the basis of proved facts. This is not to say that all procedural mistakes should be overlooked. If the Petitioner had failed to respond, at all, a default should be permitted. However, this was not the case here. Well before a Motion for Default was served, a Motion for Enlargement of Time was served. Bar Counsel should have sought to have had that motion heard, rather than to pull a fast one by responding by sending a Motion for Default and a Default to the Referee for his signature, with no suggestion that he had received a paper. Form of the Forms for Use with Rules of Civil Procedure is a Motion for

8 Default is intended for the entry of a default under Rule 1.500(a) by the Clerk in that it expressly indicates that the Defendant failed to serve or file any paper on the movant. TFB did not go so far as to say that there was no paper served, but it implied it in its motion, as discussed above. To be fair to a Court, or in this case, a referee, if the movant did receive a piece a paper of any sort, the Court should be apprized of that in a motion for a default. Here, the Petitioner s paper was ignored. With a paper served and filed, a Clerk could not enter a default, so here, Rule 1.500(b) came into play. Pursuant to the safeguard built into Rule 1.500(b), for a Default to be entered, the Petitioner was to be served with notice of the application for default. The fact that a copy of the Motion was sent to the Petitioner is not the equivalent of having provided notice. In this case, the notice was totally useless. The Motion for Default and the Default were mailed to the Referee and Mr. Nunes on Monday, July 17, Presumably, the Referee and Mr. Nunes received the documents on July 19, Then the Referee immediately signed the Default. By the time Mr. Nunes would have known of the Motion for Default, the Default would have been perfunctorily signed. Hence, when TFB maintains in its Answer Brief that the Petitioner should have known that a default could be entered against him, TFB is not being realistic. The

9 whole reason for requiring service of any document is to give the recipient of the notice an opportunity to respond in some effective manner. It is not sufficient for TFB to say that because there was a default in the Petitioner s history that he should have known that one would be sent to the Referee without notice. There is a clear requirement in Rule 1.500(b) that the Petitioner was entitled to notice of the application for default. The mailing of a copy of the Motion to the Petitioner contemporaneously with the mailing of it to the Referee makes this provision meaningless. This was no notice. Certainly, it cannot be reasonable notice. See State ex rel. Watson v. City of Miami, 15 So. 2d 481 (Fla. 1943). For this Court to now hold that the notice that was given here was sufficient would make the notice provisions of Rule 1.500(b) meaningless. This Court held in Gore v. Harris, 24 Fla. Law W. S1112 (Fla. 2000), no statute should be interpreted in such a way as to render another statute meaningless or absurd. Here, the administration of the provision in Rule 1.500(b) should not be accepted if it renders it meaningless or absurd. It would be absurd to suggest that notice of an application is sufficient if it is to be received at the same time or after the application is granted. To suggest that it is appropriate for counsel to send Motions of Default with Defaults to a judge with no hearing date, for the judge to sign the Default based on a Motion, alone, leads to an absurd result. It means that the Defendant who should

10 have been the recipient of notice is simply given notice of a past event. It is tantamount to a wedding invitation that is sent from the honeymoon, or to use a cliche, it is tantamount to closing the barn door after the horse has left the barn. To have meaning, notice must at least be delivered in time for the recipient to jump to close that door in time to keep the horse in the proverbial barn. This is not to criticize the Referee. It is understandable that his Honor signed the Default without a hearing, considering that, by the information that his Honor was provided, it appeared that the Referee was to enter a default as would a clerk under Rule 1.500(a). After all, there was no indication that so much as a paper was received by the bar counsel. In effect, the offense that Mr. Nunes committed that has caused his disbarment is the reliance on the system to give some fair consideration to his Motion for Enlargement of Time, which was simply ignored. This is why the holding in Goldy v. Corbett Cranesservices, Inc., 692 So. 2d 225, 228 (Fla. 5 th DCA 1997), which was not addressed in the Answer Brief is so reasonable. Timely motions for enlargements of time should effectively extend[ ] the subject period beyond its prescribed deadline pending a ruling on the motion. It would permit someone who longs to defend an action, but who cannot obtain adequate representation for some reason, to have the chance that Mr. Nunes is seeking

11 from this Court. All he wanted or needed was an opportunity to hire adequate counsel, and for his taking the time to ask for that relief, he has been disbarred. II. WHETHER THE REFEREE ERRED BY MAKING FINDINGS THAT WERE BEYOND THOSE FOUND ON THE FACE OF THE COMPLAINT This issue was not addressed in the Answer Brief. III. WHETHER THE REFEREE ERRED BY GIVING THE EXTREME SANCTION OF DISBARMENT The disbarment of Mr. NUNES was too extreme. The conduct was consistent with the previous complaints. It appears that the undersigned stands corrected in that the last alleged bar offense would have occurred after the hearing that lead to the 3 year suspension. The undersigned should not have suggested that TFB should not be rewarded for holding complaints back to stack them on top of the prior disciplinary determinations. In this regard, the undersigned apologizes to this Court and to Counsel. However, notwithstanding the undersigned s misunderstanding, the point is still

12 valid. The Petitioner s conduct seems consistent with prior conduct, and it is all part of the same general state his mind. With all that occurred before, this Court saw that it was appropriate to suspend for 3 years and require corrective measures for the benefit of both the Petitioner and the public. Nothing has changed. The fact that one little incident occurred on top of everything else, that should be expected, considering that no counseling or help was yet due or rendered. Clearly, in his vehemence, perhaps with some other facts that he had in mind, but of which we are unaware due to the Default s preclusion of evidence, the Petitioner stated that he moved for the trial judge s recusal several times when in total, there were only two formal occurrences. This minor mistake should not be a basis to now say that this man who was thoroughly examined and considered is so much worse than this Court originally believed. He can be counseled and helped. He has put his life into the profession and should continue to have the same chance to save his professional life as he had before this last transgression (assuming due to the default that there was such a transgression, at all). Mr. Nunes should have the opportunity to defend himself. This matter should be sent back for a fair hearing or in the alternative, the Petitioner should be suspended

13 from the practice of law for a time that is concurrent to the time in the pending 3 year suspension. CONCLUSION For all the foregoing reasons, this matter should be remanded back to the Referee for a full hearing on the issues raised in the Complaint and refuted in the Answer that was ultimately filed, or in the alternative, Mr. NUNES should be sanctioned with a 3 year suspension to be served concurrently with the present suspension. Yet, the right for Mr. Nunes to improve himself through the regiment that he was given for his other violations will now be given no chance at all to cure.

14 CERTIFICATE OF SERVICE AND FONT I HEREBY CERTIFY, that a true and correct copy of the foregoing has been mailed this 15 th day of January, 2001, to ERIC TURNER, ESQUIRE, Assistant Staff Counsel for The Florida Bar, 5900 N. Andrews Avenue, Suite 835, Fort Lauderdale, Florida 33309; JOHN A. BOGGS, Director of Lawyer Regulation, The Florida Bar, 650 Apalachee Parkway, Tallahassee, Florida ; HARRY S. RALEIGH, JR., Chair Grievance 17"C, Post Office Box 1799, Fort Lauderdale, Florida I FURTHER CERTIFY that this Brief complies with the requirements of the Florida Rules of Appellate Procedure, in that the Font is Times New Roman, 14 Point. SCHOLL, TICKTIN & ROSENBERG, P.A. Attorneys for the Petitioner Net First Plaza 5295 Town Center Road Third Floor Boca Raton, Florida (561) C:\Document\briefs - pdf'd\ _rep.wpd PETER TICKTIN FLORIDA BAR NO