12 Fla. L. Weekly Supp. 708a
Insurance — Personal injury protection — Appeals — Default — Motion for default at appellate level pursuant to rule 9.210(f) is denied, as rule merely advises of proper time for serving pleadings and does not address default or dismissal of appeals — Where counsel for insurer was granted extension of time to file answer brief based on assertion that record on appeal had yet to be filed when, in fact, record had been filed, appellate court and clerk issued orders warning that failure to file brief within time allowed could preclude filing brief or participating in oral argument, insurer’s counsel has history of use of misstatements of fact and other chicanery to procure additional time to submit appellate pleadings, and insurer has yet to file answer brief, motion for sanctions is granted and insurer is precluded from filing answer brief or participating in oral argument
NEW LIFE REHABILITATION, INC., ET AL., (a/a/o Andres Mesa), Appellant, v. UNITED AUTOMOBILE INS. CO., Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 04-463 AP/04-464 AP. L.C. Case No. 02-6648 (CC-25). May 5, 2005.
ORDER DENYING IN PART AND GRANTING IN PART APPELLANT’S MOTION FOR DEFAULT ANDSANCTIONS AND RDER DENYING APPELLANT’S MOTION FOR DEFAULT IN ACCORDANCE WITH ORDER OF APRIL 1, 2005
THIS COURT having examined the Appellant’s Motion for Default and Sanctions; the Appellant’s Motion for Default in Accordance with the Order of April 1, 2005; the existing court motion file; and being fully advised in the premises, DENIES in part and GRANTS in part the Appellant’s Motion for Default and Sanctions, and DENIES the Appellant’s Motion for Default in Accordance with the Order of April 1, 2005.
This appellate court cannot grant Appellant’s request for default pursuant to Fla. R. App. P. 9.210(f). This subsection of the appellate rule does not address default or dismissal at the appellate level. It merely advises the practitioner of the proper time for serving pleadings pursuant to the appellate rules. As a consequence, this appellate court DENIES the Appellant’s motions for default.
This court further notes that the appellate motion file indicates that on March 9, 2005 Appellee United Automobile Insurance Co., through Counsel Mark Gatica, Esq., requested an extension of time within which to file an answer brief in these proceedings. Counsel Gatica stated as his reason for needing additional preparation time the fact that the record on appeal had yet to be filed. The appellate court granted the extension with the caveat that failure to submit an answer brief by March 29, 2005, the date requested by Appellee, could “result in a dismissal of the appeal or other sanction”. The motion file also contains an appellate clerk order, dated April 1, 2005, directing Appellee United Auto Insurance Co. to “file an answer brief in this cause within fifteen (15) days from the date of this order or be precluded from filing an answer brief and/or presenting oral argument to the court.”
Further examination of the motion file by the appellate court exposed the fact that the record on appeal had actually been filed on November 30, 2004. Additional research also revealed that Counsel Mark Gatica’s history, when dealing with the appellate court, is riddled with numerous examples of misstatements of fact and other chicanery to procure additional time to submit appellate pleadings. Research has also revealed instances where Counsel Gatica has failed to comply with court orders altogether. Such behavior has been previously sanctioned by the Eleventh Judicial Circuit Court’s judiciary. See United Auto v. Asclepius, a/a/o Lemay Arce., 04-395 AP, L.T. 03-7146 (CC-25); United Auto v. Asclepius, a/a/o Gerado Mendoza, 04-418 AP/04-517 AP, L.T. 02-11489 (CC-25); United Auto v. Cicero, 02-326 AP/03-430 AP, L.T. 01-23731 (SP-23) [12 Fla. L. Weekly Supp. 321a].
As of the date of the convening of this panel — April 20, 2005 — an answer brief or any other kind of appellate pleading, has yet to be filed with the appellate court. In response to Appellee’s inaction and continuing contumacious behavior, this court GRANTS the Appellant’s Motion for Sanctions. Pursuant to Fla. R. App. P. 9.410, and as directed by both the March 15, 2005 and April 1, 2005 appellate court orders, this court precludes the Appellee from filing an appellate answer brief and participating in oral arguments on this matter — 04-463 AP/ 04-464 AP.
It is therefore ORDERED and ADJUDGED that, upon the ruling by a majority of the panel, on 5th day of May, 2005, this Court DENIES in part and GRANTS in part the Appellant’s Motion for Default and Sanctions. This court also DENIES the Appellant’s Motion for Default in Accordance with Order of April 1, 2005.
MOTION for DEFAULT and SANCTIONS — DENIED in part/GRANTED in part.
MOTION for DEFAULT in ACCORDANCE with ORDER of APRIL 1, 2005 — DENIED. (JON I. GORDON, EUGENE J. FIERRO, AND JOEL H. BROWN, JJ.)
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