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IN THE SUPREME COURT OF FLORIDA

CASE NO. SC00-1164


Lower Tribunal No.: 99-51,297(17C)

DAVID SMITH NUNES


Appellant,
v.
THE FLORIDA BAR
Appellee.

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PETITIONERS REPLY BRIEF

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Peter Ticktin, Esquire


SCHOLL, TICKTIN & ROSENBERG, P.A.
Attorneys for the Petitioner
Net First Plaza
5295 Town Center Road
Third Floor
Boca Raton, Florida 33486-1003
(561) 750-5200

TABLE OF CONTENTS

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I.

WHETHER THE REFEREE ERRED BY ENTERING A


DEFAULT WHILE MR. NUNES MOTION FOR
ENLARGEMENT OF TIME WAS PENDING . . . . . . . . . . . . . . . 1

II.

WHETHER THE REFEREE ERRED BY MAKING


FINDINGS THAT WERE BEYOND THOSE FOUND
ON THE FACE OF THE COMPLAINT . . . . . . . . . . . . . . . . . . . . 9

III.

WHETHER THE REFEREE ERRED BY GIVING THE


EXTREME SANCTION OF DISBARMENT . . . . . . . . . . . . . . . . 9

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
CERTIFICATE OF SERVICE AND FONT . . . . . . . . . . . . . . . . . . . . . . . . . . 12

TABLE OF CITATIONS

FLORIDA SUPREME COURT


Cases

Page

Gore v. Harris, 24 Fla. Law W. S1112 (Fla. 2000) . . . . . . . . . . . . . . . . . . . . . . . 7


Picchi v. Barnett Bank of South Florida, N.A.,
521 So. 2d 1090 (Fla. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
State ex rel. Watson v. City of Miami, 15 So. 2d 481 (Fla. 1943) . . . . . . . . . . . . 7

FLORIDA DISTRICT COURTS OF APPEAL


Cases

Page

Goldy v. Corbett Cranesservices, Inc., 692 So. 2d 225, 228


(Fla. 5th DCA 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

OTHER AUTHORITIES
Rule 1.500(a) Rules of Civil Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8
Rule 1.500(a) Florida Rules of Civil Procedure . . . . . . . . . . . . . . . . . . . . . . . 5, 6
Rule 1.500(a) Florida Rules of Civil Procedure . . . . . . . . . . . . . . . . . . . . . . . . . 2
Rule 1.140 Florida Rules of Civil Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Rule 1.090(b) Florida Rules of Civil Procedure . . . . . . . . . . . . . . . . . . . . . . . . . 4
Form 1.198 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARGUMENT

I.

WHETHER THE REFEREE ERRED BY ENTERING A DEFAULT


WHILE MR. NUNES MOTION FOR ENLARGEMENT OF TIME
WAS PENDING
The Florida Bar failed to meet the main thrust of the Petitioners argument head

on. That thrust is one of fundamental fairness, or due process.


It is axiomatic that any system that gives both sides a chance to be heard is
more fair than one that does not.
Five days prior to the filing of TFBs Motion for Default, the Petitioner had
served and filed a Motion for Enlargement of Time. That motion was completely
ignored. There was no hearing arranged to consider the problem that the Petitioner
was having in his efforts to obtain counsel, and there was no hearing on the Motion for
the entry of the Default, notwithstanding the fact that the Petitioner had served and filed
a motion.
In his Motion for Default, counsel for TFB advised the Referee of the
Petitioners failure to file an Answer, but omitted the fact that he had received a Motion
for Enlargement of Time.
The Motion was mailed to the Referee two days before the Default was entered.
No doubt, the Referee relied on the representations in the Motion for Default, and
perfunctorily his Honor entered the Default that was provided with the Motion.
This is not the way a mans professional career should be determined.

This Court considers disciplinary matters to be of great importance, probably


secondary to only capital cases.
The Rules of Civil Procedure prohibit the entry of a default by the Clerk of the
Court if a Defendant had filed any paper. That is because a judge should consider any
such paper to use his discretion as to whether or not a default should be entered.
In this case, a paper was filed of which the Referee was probably unaware, as
there was no hearing and no indication to the Referee that something had been filed.
This is not the way that these cases should be pursued. This is not a game of
got you. Or, at least, it should not be.
Ordinarily, if an Answer or responsive motion is filed before the entry of a
default, the default must fail. Hence, the time in which such a pleading or motion is
required is at least 20 days and no more than the time that it takes for a plaintiff to
obtain and file a default. See Rule 1.500(c), Florida Rules of Civil Procedure.
In the case at bar, within the same time that the Petitioner had to file his Answer,
he did file a document which put him into the case. He filed his Motion for
Enlargement of Time, which should have been heard. This would have given the
Referee control of the litigation and he could have imposed time constraints to give fair
notice of when a default would be entered.
Instead, the Petitioner got less consideration than one who unethically would file
a Notice of Appearance for purposes of delay. In Picchi v. Barnett Bank of South

Florida, N.A., 521 So. 2d 1090 (Fla. 1988) this Court held that a Defendant whose
counsel filed a Notice of Appearance was not entitled to a Notice of a Hearing on a
Motion for Default, but that there was an entitlement to service of the Motion for a
Default.
The inference is that there would have to be a hearing on a Motion for Default.
Otherwise, if there was to be no actual difference between the Clerk and a perfunctory
judge, this Court could have simply encouraged the mailing of a proposed Default with
no explanation other than that there was no Answer or Rule 1.140 motion filed.
Otherwise, it would be better for the Clerks office to enter all defaults than for
the Court to perfunctorily enter them. At least the Clerk would have the court file to
see what was filed.

The Referee had only the Motion for Default, and the

representations of Bar Counsel for The Florida Bar, on which his Honor should have
been able to rely.
Instead of being informed that Mr. Nunes has had difficulty in obtaining an
attorney and has requested additional time, the Referee, here, knew only that no
response was made to the Complaint.
It is not important if this was an intentional concealment of information with
malice of forethought, or an innocent failure to provide that information. It should
have been provided. The Referee should been properly advised in the premises.
Instead, TFB advised the Referee by inference that the Petitioner failed to plead or

otherwise defend as provided by the rules. (Emphasis added.) ( 2 of Motion for


Default).
It is likely that the Referee understood from the clear language of TFBs Motion
for Default that there was a total failure to defend as provided by the rules, which
would have included the failure to move under Rule 1.090(b) of the Florida Rules of
Civil Procedure for an enlargement of time.
If this Referee had known of the Petitioners motion, it is likely that he would
have acted with appropriate discretion to made inquiry of him and given additional
time. Instead, his Honor simply signed a Default with no hearing, as he had no
knowledge of the Motion for Enlargement of Time.
This is how this case has turned into a game of how to deprive an attorney of
an opportunity to be heard and then to disbar him on procedural mistakes, rather than
on the basis of proved facts. This is not to say that all procedural mistakes should be
overlooked. If the Petitioner had failed to respond, at all, a default should be
permitted. However, this was not the case here.
Well before a Motion for Default was served, a Motion for Enlargement of Time
was served. Bar Counsel should have sought to have had that motion heard, rather
than to pull a fast one by responding by sending a Motion for Default and a Default
to the Referee for his signature, with no suggestion that he had received a paper.
Form 1.980 of the Forms for Use with Rules of Civil Procedure is a Motion for

Default is intended for the entry of a default under Rule 1.500(a) by the Clerk in that
it expressly indicates that the Defendant failed to serve or file any paper on the movant.
TFB did not go so far as to say that there was no paper served, but it implied
it in its motion, as discussed above.
To be fair to a Court, or in this case, a referee, if the movant did receive a piece
a paper of any sort, the Court should be apprized of that in a motion for a default.
Here, the Petitioners paper was ignored.
With a paper served and filed, a Clerk could not enter a default, so here, Rule
1.500(b) came into play. Pursuant to the safeguard built into Rule 1.500(b), for a
Default to be entered, the Petitioner was to be served with notice of the application
for default.
The fact that a copy of the Motion was sent to the Petitioner is not the
equivalent of having provided notice. In this case, the notice was totally useless.
The Motion for Default and the Default were mailed to the Referee and Mr. Nunes on
Monday, July 17, 2000.

Presumably, the Referee and Mr. Nunes received the

documents on July 19, 2000. Then the Referee immediately signed the Default. By
the time Mr. Nunes would have known of the Motion for Default, the Default would
have been perfunctorily signed.
Hence, when TFB maintains in its Answer Brief that the Petitioner should have
known that a default could be entered against him, TFB is not being realistic. The

whole reason for requiring service of any document is to give the recipient of the
notice an opportunity to respond in some effective manner.
It is not sufficient for TFB to say that because there was a default in the
Petitioners history that he should have known that one would be sent to the Referee
without notice.
There is a clear requirement in Rule 1.500(b) that the Petitioner was entitled to
notice of the application for default. The mailing of a copy of the Motion to the
Petitioner contemporaneously with the mailing of it to the Referee makes this provision
meaningless. This was no notice. Certainly, it cannot be reasonable notice. See
State ex rel. Watson v. City of Miami, 15 So. 2d 481 (Fla. 1943).
For this Court to now hold that the notice that was given here was sufficient
would make the notice provisions of Rule 1.500(b) meaningless.
This Court held in Gore v. Harris, 24 Fla. Law W. S1112 (Fla. 2000), no statute
should be interpreted in such a way as to render another statute meaningless or absurd.
Here, the administration of the provision in Rule 1.500(b) should not be accepted if
it renders it meaningless or absurd. It would be absurd to suggest that notice of an
application is sufficient if it is to be received at the same time or after the application
is granted. To suggest that it is appropriate for counsel to send Motions of Default
with Defaults to a judge with no hearing date, for the judge to sign the Default based
on a Motion, alone, leads to an absurd result. It means that the Defendant who should

have been the recipient of notice is simply given notice of a past event. It is
tantamount to a wedding invitation that is sent from the honeymoon, or to use a cliche,
it is tantamount to closing the barn door after the horse has left the barn. To have
meaning, notice must at least be delivered in time for the recipient to jump to close
that door in time to keep the horse in the proverbial barn.
This is not to criticize the Referee. It is understandable that his Honor signed
the Default without a hearing, considering that, by the information that his Honor was
provided, it appeared that the Referee was to enter a default as would a clerk under
Rule 1.500(a). After all, there was no indication that so much as a paper was received
by the bar counsel.
In effect, the offense that Mr. Nunes committed that has caused his disbarment
is the reliance on the system to give some fair consideration to his Motion for
Enlargement of Time, which was simply ignored.
This is why the holding in Goldy v. Corbett Cranesservices, Inc., 692 So. 2d
225, 228 (Fla. 5th DCA 1997), which was not addressed in the Answer Brief is so
reasonable.
Timely motions for enlargements of time should effectively extend[ ] the
subject period beyond its prescribed deadline pending a ruling on the motion. It
would permit someone who longs to defend an action, but who cannot obtain
adequate representation for some reason, to have the chance that Mr. Nunes is seeking

from this Court.


All he wanted or needed was an opportunity to hire adequate counsel, and for
his taking the time to ask for that relief, he has been disbarred.

II.

WHETHER THE REFEREE ERRED BY MAKING FINDINGS THAT


WERE BEYOND THOSE FOUND ON THE FACE OF THE
COMPLAINT
This issue was not addressed in the Answer Brief.

III.

WHETHER THE REFEREE ERRED BY GIVING THE EXTREME


SANCTION OF DISBARMENT
The disbarment of Mr. NUNES was too extreme. The conduct was consistent

with the previous complaints.


It appears that the undersigned stands corrected in that the last alleged bar
offense would have occurred after the hearing that lead to the 3 year suspension. The
undersigned should not have suggested that TFB should not be rewarded for holding
complaints back to stack them on top of the prior disciplinary determinations. In this
regard, the undersigned apologizes to this Court and to Counsel.
However, notwithstanding the undersigneds misunderstanding, the point is still

valid. The Petitioners conduct seems consistent with prior conduct, and it is all part
of the same general state his mind.
With all that occurred before, this Court saw that it was appropriate to suspend
for 3 years and require corrective measures for the benefit of both the Petitioner and
the public.
Nothing has changed. The fact that one little incident occurred on top of
everything else, that should be expected, considering that no counseling or help was
yet due or rendered.
Clearly, in his vehemence, perhaps with some other facts that he had in mind,
but of which we are unaware due to the Defaults preclusion of evidence, the Petitioner
stated that he moved for the trial judges recusal several times when in total, there were
only two formal occurrences. This minor mistake should not be a basis to now say
that this man who was thoroughly examined and considered is so much worse than
this Court originally believed.
He can be counseled and helped. He has put his life into the profession and
should continue to have the same chance to save his professional life as he had before
this last transgression (assuming due to the default that there was such a transgression,
at all).
Mr. Nunes should have the opportunity to defend himself. This matter should
be sent back for a fair hearing or in the alternative, the Petitioner should be suspended

from the practice of law for a time that is concurrent to the time in the pending 3 year
suspension.

CONCLUSION
For all the foregoing reasons, this matter should be remanded back to the
Referee for a full hearing on the issues raised in the Complaint and refuted in the
Answer that was ultimately filed, or in the alternative, Mr. NUNES should be
sanctioned with a 3 year suspension to be served concurrently with the present
suspension.
Yet, the right for Mr. Nunes to improve himself through the regiment that he was
given for his other violations will now be given no chance at all to cure.

CERTIFICATE OF SERVICE AND FONT


I HEREBY CERTIFY, that a true and correct copy of the foregoing has been
mailed this 15th day of January, 2001, to ERIC TURNER, ESQUIRE, Assistant
Staff Counsel for The Florida Bar, 5900 N. Andrews Avenue, Suite 835, Fort
Lauderdale, Florida 33309; JOHN A. BOGGS, Director of Lawyer Regulation, The
Florida Bar, 650 Apalachee Parkway, Tallahassee, Florida 32399-2300; HARRY S.
RALEIGH, JR., Chair Grievance 17"C, Post Office Box 1799, Fort Lauderdale,
Florida 33339.
I FURTHER CERTIFY that this Brief complies with the requirements of the
Florida Rules of Appellate Procedure, in that the Font is Times New Roman, 14 Point.

SCHOLL, TICKTIN & ROSENBERG, P.A.


Attorneys for the Petitioner
Net First Plaza
5295 Town Center Road
Third Floor
Boca Raton, Florida 33486-1003
(561) 750-5200

____________________________
PETER TICKTIN
FLORIDA BAR NO. 887935
C:\Document\briefs - pdf'd\00-1164_rep.wpd

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