19 Fla. L. Weekly Supp. 161a

Online Reference: FLWSUPP 1903RODR

NOT FINAL VERSION OF OPINION
Subsequent Changes at 19 Fla. L. Weekly Supp. 243aInsurance — Personal injury protection — Appeals — Dismissal of appeal is warranted where appellate court has granted five motions for extension of time to file insurer’s initial brief and warned when it granted fourth and fifth extensions that no further extensions would be granted and failure to comply with orders would result in dismissal of appeal, insurer thereafter filed motion to stay appeal pending resolution of another case on issue and filed motion seeking sixth extension of time for filing brief after motion for stay was denied, and insurer has misrepresented tolling effect of motion for stay and failed to advise court of issuance of now-controlling district court opinion

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. VIRTUAL IMAGING SERVICES, INC (Uriel Rodriguez), Appellee(s). Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 10-549 AP. LC. Case No. 10-9312-SP-23. November 10, 2011. An appeal from a Final Judgment rendered by the Miami-Dade County Court. Honorable Caryn Canner-Schwartz, Judge. Counsel: Marcy Levine Aldrich and Nancy A. Copperthwaite, for Appellant. Joseph Littman, for Appellee.

(BEFORE LANGER, J., FREEMAN, J., and LEBAN, J.)

(LEBAN, Judge.)

INTRODUCTION

This PIP appeal raises the spectre of that fortunately rare demonstration of egregious delaying tactics on the part of an Appellant in an all-too transparent effort to accomplish an “end-run” around this Court’s denial of a stay of the appeal in hopes that the Third District will, at some unknown point in the future, issue a favorable opinion in a case raising the identical issue.¹ The issue, already recently decided against Appellant by the Fourth District, is which fee schedule should apply to the services rendered by Appellant medical facility for treatment it provided to Appellant’s insured after an automobile accident. The procedural history is important to a full understanding of the admittedly harsh result regrettably reached by this Court herein, namely, the DISMISSAL of this appeal, as authorized for such conduct by Rule 9.410,² Fla. R. App. P., after more than the “fair warning” required for such an authorized sanction. See, United Automobile Insurance company v. Total Rehab & Medical Center a/a/o Ovil Gaspard, 870 So.2d 866, 867 (Fla. 3d DCA 2004) [29 Fla. L. Weekly D331b] (en banc) (consolidating certiorari review of three dismissal orders). [Hereinafter Total Rehab.]

PROCEDURAL HISTORY

After the timely filing of a Notice of Appeal from the Final Order entered below, the Clerk of this Court advised Appellant of the due date for the filing of its Initial Brief (hereinafter IB) of February 23, 2011.³ Thereafter, Appellant has sought no less than six (6) extensions of time (the first two for sixty (60) days) to file its IB, five (5) of which extensions have been granted by this Court. As stated, the fifth extension motion, filed after a “no further extensions” order with warning,⁴ was granted; it is this sixth extension motion that is now pending before this Court, and the one that “is the proverbial straw which breaks the camel’s back,” Valdez v. State, 613 So.2d 916, 918 (Fla. 4th DCA 1993), along with this appeal.

The fourth extension order, which carried the “no further extension” warning, gave a due date of September 7th for the filing of the IB; however, on September 1st, six days before the “final” due date, Appellant filed a MOTION TO STAY in this Court, raising, for the first time the pendency of the purportedly controlling U.S. Security appeal in the Third District. See note 1, supra. Several observations arise from this MOTION TO STAY which have bearing on this Court’s decision to dismiss this appeal. First, the stay was DENIED on September 6th by the Court. Second, the Motion itself, while raising the U.S. Security case then pending in the Third District, asserts without any basis for so doing, that the DCA “likely will be issuing an opinion very soon on this issue,” [o.e.] [Indeed, see n. 1, supra]. Third, while the Motion was filed on September 1, 2011, the Appellant failed to demonstrate candor by informing this Court of the issuance on May 18, 2011, of the now-controlling decision on the identical issue in Kingsway Amigo Insurance Company v. Ocean Health, Inc., 63 So.3d 63 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a], which, absent a conflicting opinion from the Third DCA, is binding on this Court.⁵ See Pardo v. State, 596 So.2d 665 (Fla. 1992). “Every lawyer has a duty of candor to the court, and must disclose contrary authority.” Albritton v. Ferrera, 913 So.2d 5, 10 (Fla. 1st DCA 2005) [30 Fla. L. Weekly D2099a].

After the stay motion was denied, on September 6th, Appellant filed its FIFTH motion for extension of time to file its IB, a motion as earlier noted, that was filed after this Court’s “no further” fourth extension order. See note 4, supra. Some observations are also necessary regarding this fifth motion: First, the motion, while acknowledging the September 6th denial of its Stay Motion, asserted that the order denying the stay “does not address the briefing schedule.” See fifth extension motion, ¶3. Second, and more significantly, this prohibited fifth extension motion , while acknowledging the prior [“no further”] order, asserted that said order “was tolled during the pendency of State Farm’s Motion [to Stay], making its [Initial] Brief now due on or about . . . September 12th,” [emphasis added], citing Rule 9.300 (b),⁶ Fla. R. App. P. In making this tolling assertion, State Farm has badly misrepresented the cited rule of procedure, and worse, demonstrates a lack of candor by failing to cite the controlling provision, Rule 9.300(d) (2), Fla. R. App. P., “Motions Not Tolling Time,” which expressly lists “motions to stay pending appeal. . .”. Notwithstanding this inexcusable misrepresentation of the effect of its Stay Motion, and the Court’s August 9th “no further” extensions order, the Court, in its largess,⁷ granted yet another extension for the filing of the IB until October 10th, but cautioned that “[f]ailure to comply with this order may result in dismissal of the appeal . . .”.

This Court’s “good deed”⁸ resulted not in compliance but was instead met with Appellant’s astonishing SIXTH extension motion (its second after the “no further” order of August 9th) seeking yet another 30 day delay until November 10th within which to file its IB.⁹ This Court finds that the above pattern of behavior is intolerable. Appellant was obviously attempting to avoid the Court’s denial of the stay so that, hopefully, the long-awaited [now not reached] U.S. Security case will be issued, and will conflict with the presently binding Kingsway¹⁰ opinion of the Fourth DCA; this “end run” around of the denial of the stay motion constitutes the type of egregious misconduct condemned in Total Rehab and other cases, sufficiently so that this Court feels it must exercise the discretion afforded it by Rule 9.410, Fla. R. App. P., to dismiss this appeal. State Farm has been given more than the “fair warning” that Total Rehab reads into the Rule, and to do otherwise, by granting yet a sixth extension would serve to simultaneously reward Appellant for its misrepresentations and tactics, render the case management functions of the Circuit Appellate Court impotent, and eviscerate any efficacy of the sanctions rule promulgated by our Supreme Court.

A HARSH SANCTION IS WARRANTED

Florida appellate courts at all levels, including this one, routinely eschew the harsh remedy of dismissal of appeals for counsel’s failure to timely file an initial brief, under a variety of scenarios, ranging from a total failure to even request an extension, to a failure to adhere to a “no further extension order” after any number of prior extensions, and, as we have noticed, even where the “fair warning” required by Rule 9.410, Fla. R. App. P., has been given or where the prior “no further extension order” uses such polite language as “may result in dismissal” or “could result” in dismissal. The case law, does, however approve of the remedy of dismissal where the record warrants it. See, e.g., Swicegood v. Florida Dept. of Transp., 394 So.2d 1111 (Fla. 1st DCA 1981) (noting “flagrant disregard of the rules”); Famiglio v. Accredited Services, Inc., 592 So.2d 257 (Fla. 2d DCA 1991), rev. denied, 599 So.2d 655 (Fla. 1992); Baron v. First National Bank of Florida, 792 So.2d 708 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D2129a] (noting appellant “failed to give any reasonable explanation as to why she failed to comply with the appellate rules.”).

The en banc Third District, in its Total Rehab case, discussed above, began by noting that “[b]ecause there had been no fair warning that dismissal could result from failure to file the appellant’s initial brief by the deadline, we conclude that the petitions are well taken and grant them.” United Automobile Insurance Company v. Total Rehab & Medical Center, a/a/o Ovil Gaspard, 870 So.2d 866, 867 (Fla. 3d DCA 2004) [29 Fla. L. Weekly D331b] (en banc) (consolidating certiorari review of three dismissal orders). The en banc Court delved into the minutiae of the consistency of the warnings, the language used (e.g., quoting a warning that a failure to comply with a particular order may result in the appellant “ ‘fac[ing] dismissal’ ” but then noting that a later order “ ‘did not carry’ ” any such warning at all. Id. at 867 n.1.), and noted one case where the extension order did not “contain any warning that no further extensions of time would be allowed.” Id. at 868. Of course, as the procedural history set forth above reveals, this Appellant was clearly put on notice, i.e., given “fair warning,” in the August 9th FOURTH extension order that failure to comply with the September 7th due date, “will result” in dismissal of State Farm’s appeal. State Farm’s post-fourth extension conduct, however, clearly demonstrates its cavalier disregard of this warning, its lack of candor with this Court, and its transparent efforts to delay this case pending an expected favorable decision in the U.S. Security case.¹¹

The Third DCA in Total Rehab, quoted from the excellent appellate treatise by Judge Padovano that “ ‘[d]ismissal is regarded as an extreme sanction and for that reason is normally reserved for the most flagrant violations of the appellate rules.’ Philip J. Padovano, Florida Appellate Practice § 16.8 at 240 (2004 ed.) (footnote omitted).” Id. at 869. We find precisely the kind of “flagrant disregard,” indeed, manipulation, of the appellate rules to warrant the sanction of dismissal, having previously warned State Farm of that result.

We have considered the totality of the Appellant’s conduct in reaching this conclusion: it sought four prior extensions, totaling 180 days, then timed the filing of its Motion to Stay for the very eve of the “no further” extension deadline, a stay based upon its expectation of a “likely” and prompt favorable opinion from the Third District in the U.S. Security case, and brazenly misrepresented the “toll[ing]” effect of the stay motion, while utterly failing to advise this Court of the existence of the controlling and binding Kingsway opinion, followed by yet another extension motion, which also failed to acknowledge that its appeal was doomed absent an intervening (and conflicting)¹² decision of the Third DCA.

The Total Rehab decision expressly recognized that the “appellate division has considerable discretion in the control and management of its own docket, and rightly so[,]” id. at 870, so long as the Circuit Appellate Court gave “fair warning” that dismissal could be imposed, and there was a showing in the record of sufficiently egregious conduct warranting that sanction. These tests are more than met here as outlined above. This Court is keenly aware that dismissal punishes the client for the misconduct of its counsel; yet, absent the use of this sanction as a tool to ensure compliance with the rules we all must follow, there will be little incentive by counsel to abide by those rules at all, safe in the knowledge that they may be violated with impunity. As eloquently observed in an opinion dissenting from the majority’s reinstatement of a dismissed appeal by a circuit panel, the DCA majority finding there had been insufficient “fair warning”:

By today’s decision, we make it pointlessly burdensome for the Circuit Court to manage its appellate docket. We hereby invite litigants like this one to delay an appeal to the Circuit Court without fear of the only useful sanction. * * * I am unable fully to suppress the impression that it has all been purposeful and calculated on its part. I could not bear to know how much more process is due for such an obstinate, unwilling appellant. Id. [Emphasis added].

Affimative Insurance Company v. Gomez, 14 So.3d 1244, 1248 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D1350a] (Farmer, J., dissenting).

CONCLUSION

So too in the case at bar. The violations of the rules of procedure, the purposeful misrepresentations and withholding of information, and the manipulation of the Court to avoid its prior rulings all lead to the inexorable result that, pursuant to Rule 9.410, Fla. R. App. P., this appeal must be and is hereby DISMISSED. (FREEMAN, J. and LANGER, J. concur)

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¹The primary case then awaiting decision by the Third District which it is said will be dispositive of the issue raised in the case at bar is U.S. Security Company v. Professional Medical Group, Case No. 3D-10-2881, for which, Appellant advises, oral argument was held on April 27, 2011. On November 2, 2011, the DCA declined jurisdiction and remanded the case to this Court. This Court has denied stays sought by State Farm on the identical issue in many such cases, based in part, on just such declination by higher courts to reach an issue said to be dispositive.

²The Rule, entitled, “Sanctions.”, provides in pertinent part: “After 10 days’ notice, on its own motion, the court may impose sanctions for any violation of these rules* * * [which] may include . . .striking of briefs or pleadings, dismissal of proceedings . . . , or other sanctions.” [Emphasis added].

³Thus, more than eight (8) months have elapsed and no IB has yet been filed by Appellant.

⁴The fourth extension order carried the following explicit stamped warning: “No further extensions will be granted and failure to comply with this order will result in the dismissal of this appeal.” [Emphasis added].

⁵While it is conceivably possible that counsel for Appellant was totally unaware of the then-nearly FOUR MONTH old Kingsway opinion when it filed its Motion To Stay in this Court on September 1, 2011, this Court finds such ignorance of the law to be at once irrelevant and inexcusable, given the high level of counsel’s practice and experience. Moreover, Appellee, in its written opposition to the Stay Motion, expressly cited Kingsway as “binding” authority, in its opposition pleading, served on State Farm on September 7th; in addition, this Court had already denied several of State Farm’s stay motions well before the September 1st motion filed in the case at bar, citing Kingsway, said orders having been served on State Farm on or about August 1 and August 2, See Case Nos. 11-257 and 11-258.

⁶Rule 9.300 (b), entitled, “Effect on Proceedings”, provides in pertinent part: “Except as prescribed by subdivision (d) of this rule, service of a motion shall toll the time schedule of any proceeding in the court until disposition of the motion.” [Emphasis added].

⁷It was in the spirit of the Third DCA’s Total Rehab decision that this Court did so.

⁸“Thus lending credence to the adage that no good deed goes unpunished.” Velez v. City of Coral Gables, 819 So.2d 895, 897 n.4 (Fla. 3d DCA 2002) [27 Fla. L. Weekly D1401b].

⁹Were the Court to grant this sixth extension, the IB would be due approximately 320 days after its original March 23 due date.

¹⁰Kingsway was recently followed by a panel majority of this very Court in American Independent Insurance Company v. Gables Insurance Recovery Inc. a/a/o Orlay Lima, Case No. 10-346 AP, October 12, 2011, authored by now U.S. District Judge Robert Scola.

¹¹The cases are legion where certiorari or other review was accepted only to later be discharged as “improvidently granted” and the merits, even after full briefing and oral argument heard, were never reached. See, e.g., Courtelis v. Lewis, 348 So.2d 1147 (Fla. 1976) (“We issued the Writ and have heard argument of the parties. After hearing argument and upon further consideration of the matter, we have determined that the Court is without jurisdiction. Therefore, the Writ must be and is hereby discharged and the Petition for Writ of Certiorari is dismissed.”). A similar fate has come to pass with regard to the vaunted U S. Security case. See note 1, supra.

¹²As any seasoned appellate practitioner must know, even if, as State Farm had hoped, U.S. Security had come down on Appellant’s side, thus conflicting with Kingsway, a guaranteed petition for writ of certiorari would have followed, based either upon direct and express conflict jurisdiction, see Rule 9.030 (a) (2) (A) (iv), Fla. R. App. P., or certification of direct conflict by the DCA, see Rule 9.030 (a) (2) (A) (vi), Fla. R. App. P., thus further delaying the finality of any decision of the Third District, or, for that matter of this Court.

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