13 Fla. L. Weekly Supp. 1060a
Insurance — Personal injury protection — Appeals — Sanctions — Dismissal — Where, on remand from appellate court to conduct hearing on allegation of medical provider’s motion to dismiss appeal and request for sanctions, trial court found that conduct of insurer’s counsel did not rise to level of fraud on court but was neglectful, unduly prejudicial, and without justification, and that delays caused by counsel’s failure to comply with court orders had caused significant problems of judicial administration, prolonged the appellate process, and required unusual expenditure of judicial resources on remand; and insurer failed to respond to appellate court’s consequent order to show cause why motion to dismiss and request for sanctions should not be granted until after time set by court had expired and second motion for sanctions was filed, untimely response to show cause order is stricken, appeal is dismissed, and attorney’s fees and costs are awarded to provider
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. ASCLEPIUS MEDICAL & FINLAY DIAGNOSTICS CENTER, INC., a/a/o GERARDO MENDOZA, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 04-418 AP/04-517 AP. L.C. Case No. 02-11489 (CC 25). August 22, 2006. Counsel: Dean A. Mitchell, Ocala, for Appellee.
ORDER GRANTING APPELLEE’S MOTION TO STRIKE UNTIMELY RESPONSE TO NOVEMBER 16, 2005 ORDER TO SHOW CAUSE; GRANTING APPELLEE’S MOTION TO DISMISS APPEAL; GRANTING APPELLEE’S MOTION FOR ATTORNEYS’ FEES AND COSTS
This matter initially came before this court on December 7, 2004 on Appellee’s motion to dismiss Appellant’s appeal and request for sanctions. We remanded the case to the trial court for an evidentiary hearing on Appellee’s allegations.
On March 28, 2005, and pursuant to the remand, the trial court, the Honorable Mercedes A. Bach, presided over an evidentiary hearing, heard argument of counsel and the testimony of witnesses, thoroughly reviewed the case file, researched the applicable law, and on July 14, 2005 entered written findings of fact and conclusions of law. Although Judge Bach did not find Appellant’s counsel Mr. Mark Gatica’s conduct in the proceedings to rise to the level of “fraud on the court” as alleged by Appellee, the court did find his conduct neglectful, not without precedent (Mr. Gatica having previously been sanctioned for similar conduct), unduly prejudicial to Appellee and without justification. Judge Bach found that the delay caused by Mr. Gatica’s behavior had caused “significant problems of judicial administration,. . .prolonged the appellate process” and required the unusual expenditure of judicial resources in connection with the remand. Taking judicial notice of various other sanction orders against Mr. Gatica for previous failures to comply with court orders, Judge Bach recommended that we issue an order against Mr. Gatica to show cause why Appellee’s motion to dismiss the appeal and for sanctions should not be granted.
Accordingly, this court issued its order to show cause why Appellee’s December 7, 2004 motion to dismiss and request for appellate court sanctions should not be granted as prayed, requiring Appellant’s response to be filed within twenty days. Apparently not inconsistent with prior practice, Mr. Gatica failed to file a response within the twenty day time period.
On December 13, 2005, Appellee filed its second motion for sanctions. On December 22, 2005, Appellant, through Mr. Gatica, belatedly filed a response to this court’s November 16, 2005 order to show cause.
On January 12, 2006, Appellee filed its motion to strike as untimely Appellant’s response to the show cause order.
We have reviewed all the motions, Judge Bach’s written findings of fact and conclusions of law, the case file, as well as various other orders sanctioning Mr. Gatica for his conduct in connection with his appellate practice, and hereby grant Appellee’s motion to strike Appellant’s untimely response to the November 16, 2005 order to show cause, grant Appellee’s motion to dismiss the appeal, grant Appellee costs and attorneys fees and hereby remand to the trial court for a determination of a fees and costs amount. (MARY R. BARZEE, JACQUELINE HOGAN-SCOLA, and IVAN FERNANDEZ, JJ.)
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