Motion To Grant Motion To Vacate

IN THE SUPREME COURT OF FLORIDA

THE FLORIDA BAR,

Case No.: SC05-1149 L.T. Case No.: 2004-10,132(6A)

Complainant

MARK A. ADAMS,

Respondent.

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RESPONDENT'S VERIFIED THIRD MOTION TO CORRECT THE DOCKET AND EMERGENCY MOTION TO GRANT RELIEF REQUESTED IN THE RESPONDENT'S VERIFIED MOTION TO VACATE ORDER ENTERED ON JULY 12,2007 DISBARRING THE RESPONDENT WHICH HGS NOT BEEN TIMELY OPPOSED BY THE FLORIDA BAR COMES NOW, the Respondent, MARK A. ADAMS, Esquire and files the Respondent's Verified Third Motion to Correct the Docket and Emergency Motion to Grant Relief Requested in the Respondent's Verified Motion to Vacate Order Entered on July 12,2007 Disbarring the Respondent Which Has Not Been Timely Opposed by the Florida Bar showing: 1.

Rule 3-7.7 of the Rules Regulating the Florida Bar provides the procedure for review of reports and judgments entered by a referee in disciplinary proceedings.

2.

Pursuant to Rule 3-7.7(f), the Florida Rules of Appellate Procedure apply to petitions for review of disciplinary proceedings before the Supreme Court of

Florida, and the Rules Regulating the Florida Bar do not provide that Florida Rules of Appellate Procedure 9.300 or 9.330 do not apply in disciplinary proceedings nor do the Bar Rules contain provisions which modify these Appellate Rules which are applicable to this motion. 3.

Florida Rule of Appellate Procedure 9.330(a) provides that a motion for rehearing may be filed within 15 days of an order, and the pertinent part of Rule 9.330(a) states, "A motion for rehearing shall state with particularity the points of law or fact that, in the opinion of the movant, the court has overlooked or misapprehended in its decision.. .."

4.

On July, 12,2007, the Clerk of this Court issued an order denying the Respondent's Motion for Clarification of this Court's Order entered on May 14,2007, an order denying the Respondent's Motion to Correct the Docket, an order denying the Respondent's Motion to Toll Time to File Brief, and an

order dismissing the Respondent's Petition for Review, and the Clerk of this Court served these four orders to the Respondent via U.S. Mail. No other order entered on July 12,2007 was served to the Respondent by the Clerk of this Court or received by the Respondent.

5.

On July 27,2007, the Respondent traveled for over ten hours to file the Respondent's Motion for Rehearing of Order Entered on July 12,2007 Dismissing the Respondent's Petition for Review, the Respondent's Second

Motion to Correct the Docket, and the Respondent's Motion to Toll Time to File Brief and to review the case file. 6.

When the Respondent reviewed the case file on July 27,2007, he learned that the Clerk of this Court had entered a fifth order on July 12,2007 which indicated that the Respondent was permanently disbarred and which provided that a motion for rehearing shall not delay the effective date of this order.' This order was only signed by the Clerk of this Court and the Deputy Clerk refksed to provide any document showing that this order was authorized by the required number of Justices or the names of the Justices who authorized this order.

7.

On July 27,2007, the Respondent also learned that the documents which had been stored in the sub-basement had been put back together with the file, although it was not clear when such action was taken, but most importantly, the Respondent learned that a number of exhibits which he submitted to the referee, Gregory P. Holder, were missing from the file and also not

' The Respondent does not know the exact language used in this order as the Respondent was not served with a copy and has not received one, and although the Respondent informed the Deputy Clerk that he had not received a copy of this order and requested one, the Deputy Clerk refised to provide one to the Respondent without charging a fee for the same.

accounted for by Judge Holder on the list that he prepared of the Respondent's e ~ h i b i t s . ~

8.

If the Respondent had been served with the order indicating that he was permanently disbarred, he would have filed a timely motion for rehearing pointing out the points of law, the rules of procedure, and the facts that this Court had overlooked in reaching its decision in addition to the other motions which he filed on July 27,2007.

9.

To date the Respondent still has not received a copy of the order entered by the Clerk of this Court on July 12,2007 indicating that the Respondent is permanently disbarred and that a motion for rehearing shall not delay the effective date of this order.

10.

However, as the Respondent was not served with a copy of the order entered by the Clerk of this Court on July 12,2007 indicating that the Respondent was permanently disbarred and did not learn that such order had been entered until he reviewed the case file on July, 27,2007, the Respondent did not have an opportunity to file a timely motion for rehearing of such order.

*Ifthe Justices had reviewed the transcripts of the proceedings before the referee as required by Rule 3-7.7(a)(2), they would have surely noticed the fact that several of the exhibits submitted to the referee by the Respondent were missing from the case file, that the referee's decision is erroneous, unlawfi.d, and unjustified, and that the referee should have granted the Respondent's motion to dismiss this case.

11.

As a result, on August 9,2007, the Respondent served and filed the Respondent's Verified Motion to Vacate Order Entered on July 12,2007 Disbarring the Respondent (hereinafter referred to as the Respondent's Motion to Vacate) which is incorporated herein by reference.

12.

The Respondent's Motion to Vacate pointed out that as the Clerk failed to serve a copy of the order entered on July 12,2007 permanently disbarring the Respondent to the Respondent and also apparently to the Florida Bar, the Respondent did not receive timely notice of such order and was deprived of his right to file a timely motion for rehearing, and therefore, the order disbarring the Respondent violates due process and should be vacated.

13.

In addition, the Respondent's Motion to Vacate pointed out that as the Respondent was deprived of any opportunity to respond after entry of the orders denying his motions on July 12,2007 and before entry of an order disbarring the Respondent on that same date, the Respondent was deprived of due process by such action, and therefore, the order disbarring the Respondent should be vacated.

14.

Furthermore, the Respondent's Motion to Vacate pointed out that as the names of the Justices who may have authorized the Clerk of this Court to enter the orders on July 12,2007 are not shown on the record and as the Clerk has refused to disclose such Justices' names, if any, the orders entered

on July 12,2007 appear on their face to violate Article V,

3(a) of the

Florida Constitution, and therefore, the order disbarring the Respondent should be ~ a c a t e d . ~ 15.

Finally, the Respondent's Motion to Vacate pointed out that as the foregoing shows that this Court should enter an order vacating the order disbarring the Respondent and that such order should not be enforced, this Court should immediately issue an order staying the enforcement of such order pending the resolution of the Respondent's Motion to Vacate in order to avoid irreparable harm to the Respondent and his clients.

16.

Therefore, the Respondent's Motion to Vacate clearly and specifically showed why the order entered by the Clerk of this Court on July 12,2007 disbarring the Respondent should be vacated instead of showing all of the

' The Respondent's Motion to Vacate also pointed out that as the applicable rules do not allow for entry of an order which deprives the Respondent of the rights afforded by the rules concerning motions for rehearing and as the Florida Bar did not even seek such relief, the order disbarring the Respondent violates due process and should be vacated, and that as this Court did not require preparation of an index to the record as required by the rules, as the record is not complete, and as the Respondent did not have an opportunity to supplement the record, the Respondent has been deprived of due process, and therefore, the order disbarring the Respondent should be vacated.

points of law and fact that this Court had overlooked when such order was purportedly authorized by at least four unnamed ~ustices.~ 17.

This Court's online docket shows that no order has been entered in this case since July 12,2007.

18.

However, after the Respondent's Motion to Vacate was filed on August 9, 2007, the Clerk or a deputy clerk made an entry on this court's online docket designating such motion as a motion for rehearing and stating that it was filed 9 days late without an order being entered purporting to authorize such designation or such rni~statement.~

19.

The Respondent believes that this entry on the Court's online docket may cause the Justices to simply deny the Respondent's Motion to Vacate as being an untimely motion for rehearing without reviewing and considering the substance of it.

20.

Therefore, the unauthorized and erroneous information entered on this Court's online docket stating that the Respondent's Motion to Vacate is a motion for rehearing which was filed late should be immediately removed

'The Respondent intends to file a motion for rehearing or a brief showing why this Court should render a decision quashing the findings and recommendations made in the referee's report and dismissing this action. 'If on August 9,2007, the Respondent had filed a motion seeking rehearing of the order entered on July 12,2007 disbarring the Respondent, it would have been 13 days late rather than 9 days late.

from the online docket before it causes further unjustified damage to the Respondent's reputation and right to a fair and just decision in this action. 2 1.

Furthermore, this Court's online docket shows that the Florida Bar has not filed any response to any of the motions filed by the Respondent since June 21,2006.~ (Emphasis added.)

22.

Also, the Respondent has not been served with any response by the Florida Bar to any of the Respondent's motions since the responses the Florida Bar served and filed in June of 2006.

23.

The pertinent part of Florida Rule of Appellate Procedure 9.300(a) states, "A party may serve 1 response to a motion within 10 days of service of the

motion." Pursuant to Florida Rule of Appellate Procedure 9.420(e) and Rule

1- 1.13(b) of the Rules Regulating the Florida Bar, an additional five ( 5 ) days shall be added to the prescribed time period when a document is served via mail. Therefore, if the Florida Bar could have contradicted the Respondent's Motion to Vacate which was filed and served on August 9,2007, the Florida Bar should have served its response by August 24,2007. 24.

When a judgment or order has not been timely served, it should be vacated so that the prejudiced party is not deprived of rights afforded by the rules of procedure and procedural due process. See, e.g., Gibson v. Buice, 38 1 So.2d

It appears that the Florida Bar could not think of any basis to contest them.

349,350-35 1 (Fla. 5th DCA 1980) citing Rogers v. First Nafional Bank at Winter Park, 232 So.2d 377,378 (Fla. 1970).

25.

When the court fails to mail a copy of a judgment to a party, it should be vacated when such party files a motion to vacate it showing that counsel for that party did not receive a copy of the judgment from the court, and the failure to grant a motion to vacate under such circumstances is an abuse of discretion. Id.

26.

When the opposing party has not filed any verified response contradicting a motion to vacate a judgment which was not served to counsel for the moving party, the court should grant the motion and vacate such order. Spanish

Oaks Condominium Ass'n, Inc., v. Compson ofFlorida, Inc., 453 So.2d 838 (Fla. 4th DCA 1984).

27.

As the Florida Bar has not opposed any motion filed by the Respondent since June of 2006 and as the Florida Bar has not filed or served any response to the Respondent's Verified Motion to Vacate Order Entered on July 12,2007 Disbarring the Respondent, the dictates of due process require this Court to grant the Respondent's Motion to Vacate such order.

28.

The Respondent's Motion to Vacate requested that this Court issue an emergency order staying enforcement of the order disbarring the Respondent pending the Court's resolution of such motion, issue an order vacating the

order entered on July 12,2007 disbarring the Respondent, and issue an order granting the Respondent a reasonable time of at least twenty days in which to file his brief, allowing the Respondent to supplement the record, allowing the Respondent to file a brief referring to the documents filed in this action, and allowing the Respondent to include an appendix with key documents necessary for this Court's review of this disciplinary proceeding.

29.

The foregoing shows that the Respondent has been deprived of due process by the Clerk's entry of the order disbarring the Respondent on July 12,2007, and the Respondent has not been able to provide legal service to his clients or accept new clients since A u s s t 11,2007 pursuant to such order. As a result, the Respondent and his clients have suffered severe prejudice and will continue to suffer damages until this Court vacates such order and allows the Respondent a reasonable time in which to supplement the record and file a brief in support of his petition for review in accordance with the rules and precedent.

30.

Apparently, the Florida Bar will not suffer any prejudice if this Court grants the relief requested by the Respondent; otherwise, the Florida Bar would have filed a response trying to contradict the relief requested in the Respondent's Motion to Vacate. WHEREFORE, the Respondent respectllly requests that this Court issue

an order correcting the docket to show that the Respondent's Motion to Vacate is not a motion for rehearing of the order entered on July 12,2007 disbarring the Respondent, issue an order vacating the order entered on July 12,2007 disbarring the Respondent, and issue an order granting the Respondent a reasonable time of at least twenty days in which to file his brief, allowing the Kespondent to supplement the record, allowing the Respondent to file a brief referring to the documents filed in this action, and allowing the Respondent to include an appendix with key docwnents necessary for this Court's review of this disciplinary proceeding. Under penalties of perjury, I declare that I have read the foregoing mulio~z and the facts stated in it are true.

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Mark A. Adams, Esquire Fla. Bar No. 0193 178

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CERTIFICATE OF SERVICE 1WEREBY CERTIFY that a copy hereof has been served by U.S. Mail to Jodi A. Thompson, Assistant Staff Counsel for the Florida Bar at 5521 W. Spruce

Street, Suite C49; Tampa, FL 33607 and to Staff Counsel for the Florida Bar at 65 1

I

E. Jefferson Street; Tallahassee, Florida 32399 on this -- 5'

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day of August,

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Mark A. Adams, Esquire Fla. Bar No. 0193178

CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this document complies with the requirements of Florida Rule of Appellate Procedure 9.21 O(a)(2).

d a r k A. Adams, Esquire Fla. Bar No. 0193178 P.O. Box 1078 Valrico, FL 33595 Telephone: 813-654-1235