19 Fla. L. Weekly Supp. 243a

Online Reference: FLWSUPP 1904URODInsurance — Appeals — Sanctions — Motion for rehearing of opinion dismissing appeal as sanction for insurer’s failure to file initial brief following four extensions of time is denied — Appellate court is not required to afford opportunity to be heard prior to imposition of sanction of dismissal; rule only requires that court provide ten days’ notice that sanction of dismissal may be imposed — Motion to vacate opinion to allow parties to settle case is denied — Parties do not need court’s permission to reach settlement, and insurer has not met burden of showing equitable entitlement to extraordinary remedy of vacatur

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. 10-0549 AP. L.C. Case No. 10-9312-SP-23. December 19, 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.OPINION ON REHEARING DENIED[Original Opinion at 19 Fla. L. Weekly Supp. 161a]

(Before FREEMAN, G., LANGER, L., and LEBAN, M.)

(LEBAN, Judge.)

INTRODUCTION

Appellant seeks rehearing of this Court’s November 10, 2011, opinion, arguing, inter alia, that “[f]irst and foremost, the [o]pinion . . . [does not] allow[ ] them to respond to the charges” and that under “basic fairness,” counsel and Appellant “should have had an opportunity to be heard before the Court published its [o]pinion,” citing the sanctions rule. Rule 9.410 (a). Fla. R. App. P. See, UNOPPOSED MOTION FOR REHEARING AND TO VACATE DISMISSAL ORDER (hereinafter MOTION) at p. 2, ¶ 1. The cited rule, however, nowhere requires an “opportunity to be heard” before an appellate court may impose its litany of sanctions, and, to the contrary, expressly permits the appellate court “on its own motion” to impose the sanction of dismissal against any party “for any violation of these rules. . .”. The only requirement in the rule is that the party be given “10 days’ notice” that such dismissal may be ordered, not that the party be given any opportunity “to be heard.”

Here, after, five previous extension orders, each including the “notice” that the appeal may be dismissed, and one issued on August 9th (the fourth such extension), that failure to comply with the September 7th new due date for the filing of Appellant’s Initial Brief “will result” in dismissal [emphasis added] more than satisfies the “10 days’ notice” requirement of the rule. Dismissal indeed came in the form of our November 10th opinion, issued more than ninety days after Appellant was given the requisite warning. The Third District’s United Auto Ins. Co. v. Total Rehab & Med. Ctr., 870 So.2d 866 (Fla. 3d DCA 2004) [29 Fla. L. Weekly D331b] (en banc), does not require any “opportunity to be heard” before the imposition of the rule’s sanctions, other than “fair warning” that such sanctions may be imposed. Appellant’s true complaint appears to be the Court’s finding of misconduct including “egregious delaying tactics” and the publication of this Court’s opinion so stating.

VACATUR OF OPINION UPON SETTLEMENT

Appellant State Farm, in its MOTION, asserts, as its title indicates, that Appellant’s MOTION is “unopposed,” and in its second paragraph represents that “The parties . . .intend to file a Stipulation of Dismissal of the appeal with prejudice, and State Farm asks the Court to vacate the Opinion to permit them to do so.” [Original bolding]. First, the parties do not need this Court’s permission, by way of vacating its opinion or otherwise, to reach a settlement. Second, no such “settlement” notice or voluntary dismissal had been filed in this Court even after, let alone before, as is required by Rule 9.350 (a),¹ this Court’s issuance of its November 10th opinion. Third, as will become more significant in the discussion below, neither party to this appeal has ever asserted that any purported “settlement” was or is conditioned upon the dismissal or vacatur of this Court’s November 10th opinion. Again, no such notification of settlement, past or intended, was filed with this Court, nor has it been as of the time this order is being prepared.² As will be seen, overwhelming and binding precedent is that any settlement vel non, conditional or otherwise, carries no persuasive value, nor legal entitlement, to either a rehearing or vacating of this Court’s November 10, 2011, opinion.

As earlier observed, the Appellant’s primary complaint expressed in its MOTION appears to be this Court’s findings of its “egregious misconduct” in violation of this Court’s orderly processes and the Florida Rules of Appellate Procedure, and other findings of misrepresentation of rules and the decisional law, findings that subject the Appellant and its counsel to opprobrium in the public eye.³

In this regard, and in denying rehearing as well as vacatur of our November 10th opinion, we follow the rule of law long ago established by the United States Supreme Court, the Florida Supreme Court, the District Courts of Appeal and the majority of the federal courts of appeal dealing with the issue of the effect of a settlement on a pending or already issued appellate opinion, even one which, as is the case at bar, has not yet been “rendered” by the disposition of a timely rehearing motion.⁴

The leading United States Supreme Court case on the issue of whether vacatur of an appellate court’s opinion is appropriate where the parties have settled after the issuance of the opinion, but where certiorari review has been granted, is U.S. Bancorp Mortgage Company v. Bonner Mall Partnership, 513 U.S. 18, 115 S. Ct. 386 (1994). The Court there explained:

After we granted the petition, 510 U.S. 1039, 114 S.Ct. 681, 126 L.Ed.2d 648 (1994), and received briefing on the merits, Bancorp and Bonner stipulated to a consensual plan of reorganization, which received the approval of the Bankruptcy Court. The parties agreed that confirmation of the plan constituted a settlement that mooted the case. Bancorp, however, also requested that we exercise our power . . .to vacate the judgment of the Court of Appeals. . . .We set the vacatur question for briefing and argument. 511 U.S. 1002-1003, 114 S.Ct. 1367, 128 L.Ed.2d 44 (1994).

The Supreme Court first set forth the events leading to the bankruptcy proceedings and decisions of the Bankruptcy Court, the U.S. District Court for the District of Idaho, and the U.S. Court of Appeals for the Ninth Circuit, arising out of the creditor’s suit for relief from the automatic stay provisions of the bankruptcy code and the dismissal of the Chapter 11 case. The Court proceeded to discuss at length the consequences of a settlement undertaken after an appellate court has issued its opinion and the factors to consider in ruling on a “vacatur” of the lower courts’ labors. The Court’s holding, while lengthy, is important to set forth herein, given the arguments raised by Appellant State Farm in the UNOPPOSED MOTION before us:

It is true of course, that respondent agreed to the settlement that caused the mootness. Petitioner argues that vacatur is therefore fair to respondent, and seeks to distinguish our prior cases on that ground. But that misconceives the emphasis on fault in our decisions. That the parties are jointly responsible for settling may in some sense put them on even footing, but petitioner’s case needs more than that. Respondent won below. It is petitioner’s burden, as the party seeking relief from the status quo of the appellate judgment, to demonstrate not merely equivalent responsibility for the mootness, but equitable entitlement to the extraordinary remedy of vacatur. Petitioner’s voluntary forfeiture of review constitutes a failure of equity that makes the burden decisive, whatever respondent’s share in the mooting of the case might have been.

As always when federal courts contemplate equitable relief, our holding must also take account of the public interest. “Judicial precedents are presumptively correct and valuable to the legal community as a whole. They are not merely the property of private litigants and should stand unless a court concludes that the public interest would be served by a vacatur.” Izumi Seimitsu Komw Kabushiki Kaisha v. U.S. Philips Corp., 510 U.S. 27, 40, 114 S.Ct. 425, 428, 126 L.Ed.2d 396 (1993) (STEVENS. J., dissenting). Congress has prescribed a primary route, by appeals as of right and certiorari, through which parties may seek relief from the legal consequences of judicial judgments. To allow a party who steps off the statutory path to employ the secondary remedy of vacatur as a refined form of collateral attack on the judgment would — quite apart from any considerations of fairness to the parties — disturb the orderly operation of the federal judicial system. * * *

We hold that mootness by reason of settlement does not justify vacatur of a judgment under review. 115 S. Ct. at 392-3. [Emphasis added].

More recently, in Alvarez v. Smith, ___ U.S. ___, 130 S.Ct. 576, 580, 175 L.Ed.2d 447 (2009) [22 Fla. L. Weekly Fed. S17a], the Supreme Court ratified its Bancorp holding and explained it thusly:

We said that, “[w]here mootness results from settlement” rather than “ ‘happenstance,’ ” the “losing party has voluntarily forfeited his legal remedy. . . [and] thereby surrender[ed] his claim to the equitable remedy of vacatur.” 513 U.S., at 25, 115 S.Ct. 386.

The [Bancorp] Court’s reason for leaving the lower court’s judgment in place was that mootness was not a result of “the vagaries of circumstance.” Id., at 25, 115 S.Ct. 386. Rather the party seeking review had “caused the mootness by voluntary action.” Id., at 24,115 S.Ct. 386 (emphasis added). By virtue of the settlement, that party had “voluntarily forfeited his legal remedy by the ordinary processes of appeal or certiorari.” Id., at 25, 115 S.Ct. 386. Hence, compared to mootness caused by “happenstance,” considerations of “equity” and “fairness” tilted against vacatur. Id., at 25-26. 115 S.Ct. 386. Alvarez, supra at 582.

Justice Stevens, in his opinion concurring in part and dissenting in part in Alvarez, further explained Justice Scalia’s Bancorp holding as follows:

The “public interest” must be considered as part of this equitable inquiry, Bancorp, 513 U.S., at 26, 27, 115 S.Ct. 386, and that interest is generally better served by leaving appellate judgments intact “ ‘Judicial precedents are presumptively correct and valuable to the legal community as a whole. They are not merely the property of private litigants . . . .’ ” Id., at 26, 115 S.Ct. 386. Alvarez, supra, at 583.

Stevens, J., concurring in part and dissenting in part at 583.

Finally, Justice Stevens, interpreting the rational of Bancorp, said it best, and in language that applies uniquely to the instant case, given the conduct of the Appellant that lead this Court to its November 10th opinion, which we leave intact despite the purported settlement between the parties here:

[W]e will typically decline to vacate when “the party seeking relief from the judgment below caused the mootness by voluntary action,” id., at 24, 115 S.Ct. 386, including action taken in good faith and in conjunction with the opposing party. Even when “respondent agreed to [a] settlement that caused the mootness,” it remains “petitioner’s burden, as the party seeking relief from the status quo of the appellate judgment, to demonstrate not merely equivalent responsibility for the mootness, but equitable entitlement to the extraordinary remedy of vacatur.” Id., at 26, 115 S.Ct. 386. [Emphasis added]. Alvarez, supra, at 583-4.

Stevens, J., concurring in part and dissenting in part at 583.

Before discussing the Florida federal and state precedent which follows the Bancorp rule, we address the remarkably similar decision of one of the leading federal appellate decisions in In re Memorial Hospital of Iowa County, Inc., 862 F.2d 1299, 1302-12304 (7th Cir. 1988). There, in dismissing an appeal (before decision) of a contempt finding, the court refused to order “expungement” of the lower court judgment:

A judgment also has preclusive benefits for third parties to the extent explained in Parklane Hosiery Co. v. Shore, 439 U.S. 322,99 S.Ct. 645. 58 L.Ed.2d 552 (1979). See also Premier Electrical Construction Co. v. National Electrical Contractors Ass’n, Inc., 814 F.2d 358, 361-67 (7th Cir. 1987). True, litigation is conducted to resolve the parties’ controversies; precedent is a byproduct of resolving disputes rather than the raison d’etre of the judicial system. Hewitt v. Helms, 482 U.S. 755.107 S.Ct. 2672,2676-77,96 L.Ed.2d 654 (1987); Alliance to End Repression v. City of Chicago, 820 F.2d 873,876 (7th Cir. 1987). When a clash between genuine adversaries produces a precedent, however, the judicial system ought not allow the social value of that precedent, created at cost to the public and other litigants, to be a bargaining chip in the process of settlement. The precedent, a public act of a public official, is not the parties’ property. We would not approve a settlement that required us to publish (or depublish) one of our own opinions, or to strike a portion of its reasoning. To the extent an opinion permits the invocation of Parklane, it may have great value to strangers — a value that one or another party to today’s case may try to appropriate in the settlement, but which is not theirs to sell. If parties want to avoid stare decisis and preclusive effects, they need only settle before the district court renders a decision, an outcome our approach encourages.

There is, moreover, a special interest when the adjudication in question holds one of the parties in contempt of court. Such an adjudication may vindicate not only an entitlement of a party — as the one in this case did — but also the authority of the court. See Young v. United States ex rcl. Vuitton et Fils S.A., 481 U.S. 787, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987). * * *A party who thumbs his nose at the orderly processes of the court cannot expect to escape notice; and having attracted notice the litigant may not escape his desert by dismissing the case or walking away. Sec Szabo Food Service, Inc. v. Canteen Corp., 823 F.2d 1073,1077-79 (7th Cir. 1987); Muthig v. Brant Point Nantucket, Inc., 838 F.2d 600,603-04 (1st Cir. 1988). The parties may settle their private grievance, as they did here, by exchanging the universal medium, money. The judicial branch retains an interest in the orderliness of its own processes, however, an interest at least strong enough to preserve in the case books a record of the conclusion that a contempt occurred.

In re Memorial Hospital of Iowa County, Inc., 862 F.2d 1299, 1302-12304 (7th Cir. 1988) [Emphasis added].

Precisely so in the case at bar. Appellant’s conduct, as set forth in our November 10th opinion, must not be repeated by other litigants who might chance upon our labors; vacatur of our opinion disserves the appellate process, no less so than in In re Memorial Hospital of Iowa County, Inc., supra.

The Eleventh Circuit also rejected vacatur of a section of a harshly critical earlier opinion, where both parties jointly sought, again, in circumstances startlingly similar to both Memorial Hospital of Iowa County, supra, and the case at bar, in Brookhaven Landscape & Grading Co., Inc. v. J.F. Barton Contracting Co., 681 F.2d 734 (11th Cir. 1982) (Brookhaven II). There the Eleventh Circuit had issued an opinion severely critical of appellant’s counsel, see Brookhaven Landscape & Grading Co., Inc. v. J.F. Barton Contracting Co., 676 F.2d 516, 520 (Part II) (11th Cir. 1982) (Brookhaven I).⁵ The Eleventh Circuit relied exclusively on policy considerations in denying a joint motion to modify the court’s opinion in Brookhaven I or dismiss the appeal, holding:

[T]he motion to dismiss is filed and presented after the Court has rendered and published a decision in the case and on the basis of the attorneys’ dissatisfaction with a portion of the opinion of the Court. * * * While in rare cases there may be a valid reason to withdraw a decision and opinion once published, it would be completely inappropriate to allow parties to frustrate the business of this Court by demanding dismissal of an appeal whenever they disagree with or are chagrined by something in the Court’s opinion. Brookhaven II, supra, at 736. [Emphasis added].

Here too, the UNOPPOSED MOTION FOR REHEARING AND TO VACATE DISMISSAL ORDER complains of a lack of “basic fairness” in our findings in a now “published” opinion, urging that we vacate it and arguing that this Court’s recitals of “egregious misconduct” are unwarranted, thus requiring the nullification of all of this Court’s record-supported findings to the contrary. For the reasons that led the Eleventh Circuit to reject a vacatur of the offending portion of that court’s harsh criticism of counsel, we too decline to allow the parties to nullify our precedent to salve the wounded feelings of Appellant’s counsel and exposure to whatever opprobrium may follow our opinion.

Florida law dictates the same result. In its most recent application of the Bancorp principles, our Supreme Court on December 8, 2011, issued an emphatic rejection of the concept that the parties could usurp the jurisdiction of an appellate court by stipulation of settlement and joint motion to dismiss a pending appeal or certiorari proceeding after briefing by at least one of the parties, in Pino v. The Bank of New York, ___ So.3d ___ (Fla. SC11-697 Dec. 8, 2011) [36 Fla. Law Weekly S711a]. There the Florida Supreme Court held:

In the present case, it is true that the parties have filed a notice of stipulated dismissal pursuant to rule 9.350 notifying this Court that this matter has been settled. Although the issues underlying this litigation may be moot as to the parties involved, our precedent clearly establishes that mootness does not defeat appellate jurisdiction, and a reviewing court has the discretion to retain jurisdiction over a case to decide the merits notwithstanding a notice of dismissal filed by the parties denoting a settlement of their dispute. [Emphasis added].

The Pino Court construed its Rule 9.350 (a), Fla. R. App. P., see n. 1, supra, and held, “The language of this rule does not impose upon the appellate court a mandatory obligation to dismiss a case following the filing of a notice of dismissal. . .”. This is especially so where, as in Pino, the Court feels impelled to provide guidance for future litigants in the form of a precedent to avoid a recurrence of fraudulent conduct by litigants, and, as well, in the instant case where future misconduct by attorneys in the prosecution of their appeals will be less likely to be repeated. Pino expressly cited by way of example, “Holly v. Auld, 450 So. 2d 217 (Fla. 1984), [wherein] this Court addressed the merits . . . even after the respondent settled with the petitioners and the respondent’s attorney filed a suggestion of mootness with this Court. Id. at 218 n.l.”

Pino also cited its decision in “ State v. Schopp, 653 So. 2d 1016 (Fla. 1995) [20 Fla. L. Weekly S136a], [where] this Court held that ‘[e]ven where a notice of voluntary dismissal is timely filed, a reviewing court has discretion to retain jurisdiction and proceed with the appeal.’ Id. at 1018. We expressly rejected the appellant’s argument that since his rule 9.350(b) notice of voluntary dismissal was filed before the district court of appeal’s decision became final [precisely as in the case at bar], his appeal had to be dismissed as a matter of right. Id.” The Court stressed the importance of its retention of jurisdiction even in the face of the joint agreement of the parties to dismiss the matter “where the case presents a question of public importance. Id.” Pino, supra, quoting Schopp at 1018.

It is significant that the Pino Court expressly rejected Chief Justice Canady’s dissenting view (joined in by two other Justices), as follows: “To adopt the dissent’s interpretation of rule 9.350(a) — that the act of the parties’ stipulation for dismissal is binding on the Court — would require us to recede from our past decisions recognizing just the opposite.” That view, eschewed by the Pino majority, is as follows:

The respondent who has settled this case will now be required to expend resources to prepare an answer brief.* * *They should not be dragooned into litigating a matter that is no longer in controversy between them simply because this Court determines that an issue needs to be decided. Opinion of Canady, C,J., dissenting in Pino v. The Bank of New York, supra, at ___.

The very rationale for our denial of the instant UNOPPOSED MOTION FOR REHEARING AND TO VACATE DISMISSAL ORDER is that which motivated the Pino majority, by which we are, of course, bound.

Even closer to our case is the Supreme Court’s State v. Schopp, 653 So.2d 1016, 1018 (Fla. 1995) [20 Fla. L. Weekly S136a], which, as just discussed, was expressly relied upon by the Florida Supreme Court in its Pino decision. There, the issue before the Supreme Court was whether the appellate court must accept a voluntary dismissal of an appeal (analogous to the purported “settlement” here) which was jointly sought after an opinion has been issued disposing of the appeal, but while rehearing is still pending. The Supreme Court in Schopp held that no such automatic vacating of the opinion is required by the filing of the joint voluntary notice of dismissal:

We agree with Schopp that his notice of dismissal was timely filed under rule 9.350(b) because there was no “decision on the merits” until the district court disposed of his motion for rehearing. See Fla.R.App.P. 9.020(g)(1) [now (h)] (a decision is not rendered for appellate purposes until disposition of motion for rehearing); Cf. Haverley v. Clann, 196 So.2d 38 (Fla. 2d DCA 1967) (notice of dismissal due to settlement would have been timely filed under rule providing for the filing of such notice “before a decision on the merits” if notice had been filed prior to resolution of motion for rehearing). However, the fact that the notice was timely filed does not end our analysis. Even where a notice of voluntary dismissal is timely filed, a reviewing court has discretion to retain jurisdiction and proceed with the appeal. Cf. Ervin v. Capital Weekly Post, 97 So.2d 464 (Fla.1957) (this Court retained jurisdiction to consider issue of public importance where appellees sought dismissal prior to initial decision); Phibro Resources Corp. v. Department of Environmental Regulation, 579 So.2d 118 (Fla. 1st DCA) (district court retained jurisdiction where case had been settled while motions for rehearing were pending and notices of voluntary dismissal had been filed prior to decision on rehearing), cause dismissed, 592 So.2d 679 (Fla.1991). This is particularly true where, as here, the case presents a question of public importance and substantial judicial labor has been expended as evidenced by the issuance of an initial opinion. Accordingly, it was within the district court’s discretion to retain jurisdiction and refuse to withdraw its opinion certifying the question of public importance to this Court. [Emphasis added].

So too, in our case, and in accord with Pino and Schopp, we choose to allow our November 10th opinion to become the “law of the case,” and decline Appellant’s invitation to moot our opinion, due to the expenditure of “substantial judicial labor,” and, of even more importance, as a forewarning to all future litigants that the manipulation of the appellate rules demonstrated by Appellant and its counsel will be met with similar sanction by reviewing courts for whom our opinion will serve as precedent disapproving such conduct.

Even before all of the above Third District’s early opinion on the subject is consistent with the above federal and Florida Supreme Court analyses. Thus in Rothenberg v. Connecticut Mut. Life Ins. Co., 161 So.2d 875, 876 (Fla. 3d DCA 1964), the Third DCA held:

When the court has filed its opinion and judgment and the parties settle on the basis thereof but prior to such decision becoming final, there is more reason to hold that it lies within the discretion of the appellate court to grant a dismissal on the basis requested by the parties or to allow its decision to stand and be given such effect as the court may deem appropriate consistent with the subsequent action of the parties.

Finally, we must note that in the case at bar, the purported “settlement,” as we are informed in the joint rehearing motion, occurred BEFORE our November 10th opinion dismissing this appeal, and thus could not possibly have been the basis for any settlement, nor could the vacatur of our then-yet to be issued opinion have been made a condition of any settlement. Even if the “settlement” had been so conditioned, we chose to exercise or discretion, as the Rothenberg opinion expressly allows, to “require the preservation of our opinion. . .”. 161 So.2d at 877.

CONCLUSION

We hold that the Appellant in the case at bar has not met its burden of demonstrating the “equitable entitlement” about which the Supreme Court spoke in Bancorp, supra, as recently ratified in Alvarez, supra. See also, In re Memorial Hospital of Iowa County, Inc., supra.⁶ Accordingly, Appellant’s UNOPPOSED MOTION FOR REHEARING AND TO VACATE DISMISSAL ORDER is hereby DENIED. (FREEMAN, G., LANGER, L., JJ, Concur.)

__________________

¹The rule states in pertinent part: Rule 9.350. Dismissal of Causes

(a) Dismissal of Causes When Settled. When any cause pending in the court is settled before a decision on the merits, the parties shall immediately notify the court by filing a signed stipulation for dismissal.

²By a pleading served on December 1, 2011, entitled “NOTICE OF CASE STATUS,” Appellee, in response to an inquiry by this Court, advises that Appellee does not oppose the instant motion for rehearing “which requests that the Court permit the filing of a joint stipulation for dismissal of the appeal.”

³The Court summarily rejects the other arguments in the MOTION without further comment, except to observe that Appellant’s unsupported interpretation of the non-tolling effect of a motion for stay, Rules 9.200 (b) and (d) (2), which, when read in pari materia, clearly refer to deadlines for appellate related events, such as the briefing schedule, not to county court proceedings. As for whether Kingsway Amigo Insurance Company v. Ocean Health, Inc., 63 So.3d 63 (Fla 4th DCA 2011) [36 Fla. L. Weekly D1062a], may or may not be “binding” with respect to the case at bar, Appellee, whom we are told does not oppose granting Appellant’s rehearing motion, did oppose Appellant’s effort to stay this appeal, indeed expressly arguing in its written opposition to Appellant’s stay motion that Kingsway was “binding” authority. See our opinion at page 4, note 5.

⁴The Court has been made aware that the Clerk of this Court prematurely issued the mandate, in the mistaken belief that the time for filing the now-pending MOTION FOR REHEARING had elapsed on November 28, 2011; however, the Court has instructed the Clerk to withdraw the mandate inasmuch as the instant MOTION was timely filed, since the 15th day for doing so fell on the day after Thanksgiving, a day when the clerk’s office was closed, thus making the last day for filing November 28th, the date of filing the instant MOTION. See Rules 9.020 (h) and (i), Fla. R. App. P.

⁵The reasons for the Eleventh Circuit’s harsh treatment of counsel in Brookhaven I are unrelated to those recited in this Court’s November 10th opinion finding that Appellant’s counsel had, inter alia, “engaged in egregious misconduct” warranting the extreme sanction of dismissal.

⁶For an excellent compendium on the doctrine of “vacatur settlements” both before and after issuance of an appellate decision, in the United States Supreme Court, federal courts of appeals, and Florida state courts, see 68 NOV. Fla. B.J. 18, Florida Bar Journal, November 1994, “VANISHING PRECEDENTS: SETTLEMENT VACATUR ON APPEAL,” by Scott D. Makar.

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