IN THE SUPREME COURT OF FLORIDA No. SC11 …...IN THE SUPREME COURT OF FLORIDA THE FLORIDA BAR, Supreme Court Cas No. SC11-1482 and Complainant, SC11-1829 v. The Florida Bar File Nos.

IN THE SUPREME COURT OF FLORIDA

THE FLORIDA BAR, Supreme Court CasNo. SC11-1482 and

Complainant, SC11-1829

v. The Florida Bar FileNos. 2009-51,522(15D)

JACOB ADDINGTON ROSE, 2010-50,323(15D)

Respondent. 2011-50,225(15D)

ANSWER BRIEF

Michael C. Greenberg, Bar CounselThe Florida BarFt. Lauderdale Branch OfficeLake Shore Plaza II1300 Concord Terrace, Suite 130Sunrise, Florida 33323(954) 835-0233Florida Bar No. [email protected]

Kenneth Lawrence Marvin, Staff CounselThe Florida Bar651 E. Jefferson StreetTallahassee, Florida 32399-2300(850) 561-5600Florida Bar No. [email protected]

John F. Harkness, Jr., Executive DirectorThe Florida Bar651 E. Jefferson StreetTallahassee, Florida 32399-2300(850) 561-5600Florida Bar No. [email protected]

TABLEOFCONTENTS

TABLE OF CONTENTS ...........................................................................................i

TABLE OF CITATIONS.........................................................................................iii

PRELIMINARY STATEMENT ............................................................................... 1

THE FLORIDA BAR'S STATEMENT OF THE CASE AND FACTS .................. 2

STATEMENT OF THE CASE .................................................................................2

STATEMENT OF THE FACTS............................................................................. 11

SUMMARY OF ARGUMENT...............................................................................14

ARGUMENT...........................................................................................................15

ISSUE I....................................................................................................................16

THE REFEREE'S FINDINGS ARE CLEARLY SUPPORTED BY THERECORD, ARE NOT CLEARLY ERRONEOUS, AND SHOULDTHEREFORE BE UPHELD.

ISSUE II ..................................................................................................................17

THE REFEREE DID NOT ERR IN MAKING FINDINGS OF GUILT ANDAGGRAVATING FACTORS SINCE THERE WAS COMPETENTSUBSTANTIAL EVIDENCE PRESENTED TO THE REFEREE.

ISSUE III.................................................................................................................26

THE REFEREE DID NOT COMMIT A GROSS ABUSE OF DISCRETIONIN DENYING THE MOTION TO SET ASIDE DEFAULT ORCONTINUANCE BECAUSE RESPONDENT FAILED TO ACT WITHDUE DILIGENCE TO SET ASIDE THE JUDGMENT AND FAILED TO

1

DEMONSTRATE THAT HE HAD MERITORIOUS DEFENSES, AND THECONTINUANCE MOTION WAS UNTIMELY.

ISSUE IV.................................................................................................................39

THE COURT IS PRECLUDED FROM REVIEWING RESPONDENT'S. CLAIM REGARDING THE MOTION FOR RECONSIDERATION AND

CLARIFICATION SINCE IT HAS BEEN DEEMED ABANDONED.

ISSUE V ................................................................-................................................41

THE CASE LAW, STANDARDS, AND AGGRAVATING/MITIGATINGFACTORS SUPPORT A THREE YEAR SUSPENSION WHENRESPONDENT'S CONDUCT INVOLVES A CONTINUlNG PATTERN OFMISCONDUCT SIMILAR TO MISCONDUCT FOR WHICH HE HASPREVIOUSLY BEEN SANCTIONED.

CONCLUSION .......................................................................................................50

. CERTIFICATE OF SERVICE................................................................................51

CERTIFICATE OF TYPE, SIZE AND STYLE AND ANTI-VIRUS SCAN........ 52

11

TABLE OF CITATIONS

Page No.

Cases

Allstate Floridian Ins. Co. v. Ronco Inventions, LLC, 890 So.2d 300, 304 (Fla. 2dDCA 2004)..........................................................................................................34

Bank ofNew York Mellon v. P2D2, LLC, 2012 WL 5350038, 2 (Fla. 2d DCA2012)..............................................................................................................35,36

Bayview Tower Condo. Ass'n v. Schweizer, 475 So.2d 982, 983 (Fla. 3d DCA1985)....................................................................................................................34

Brown v. Giffen Industries, Inc., 281 So.2d 897 (Fla. 1973).................................. 28Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980).......................................26, 27Church of Christ Written in Heaven, Inc. v. Church of Christ Written in Heaven of

Miami, Inc., 947 So.2d 557, 559 (Fla. 3d DCA 2006)........................................ 36Edwards v. Pratt, 335 So. 2d 597 (Fla. 3d DCA 1976)...........................................37Fischer v. Barnett Bank of S. Fla., N.A., 511 So.2d 1087, 1088 (Fla. 3d DCA 1987)

.............................................................................................................................33Fla. Bar v. Areia, 848 So.2d 296, 299 (Fla.2003)....................................................22Fla. Bar v. Barrett, 897 So. 2d 1269, 1277 (Fla. 2005)..................................... 24, 25Fla. Bar v. Horowitz, 697 So.2d 78, 84 (Fla.1997).................................................38Fla. Bar v. Klein, 774 So.2d 685, 691 (Fla. 2000)...................................................44Florida Bar v. Beach, 699 So. 2d 657, 660 (Fla. 1997)........................................... 16Florida Bar v. Bustamante, 662 So. 2d 687, 689 (Fla. 1995).................................. 16Florida Bar v. Dubow, 636 So.2d 1287 (Fla.1994).................................................21Florida Bar v. Miele, 605 So. 2d 866, 868 (Fla. 1992)............................................ 16Florida Bar v. Tobin, 674 So.2d 127 (Fla.1996) .....................................................21Hepburn v. All American General Const. Corp., 954 So. 2d 1250 (Fla. 4th DCA

2007)....................................................................................................................27Hunter v. Dennies Contracting Co., Inc., 693 So. 2d 615, 616 (Fla. 2d DCA 1997)

.......................................................................................................................40, 41Lazcar Intern., Inc. v. Caraballo, 957 So. 2d 1191 (Fla. 3d DCA 2007).......... 33, 34Milros-Sans Souci, Inc. v. Dade County, 296 So.2d 545 (Fla.3d DCA 1974)........ 28Minerva Mendez v. Integon Indemnity Corp., Case No. 2009CC015877 .............. 13North American Acc. Ins. Co. v. Moreland, 60 Fla. 153 (Fla. 1910)...................... 20North Shore Hospital, Inc. v. Barber, 143 So. 2d 849, 852 (Fla. 1962)..................26Pedro Realty, Inc. v. Silva, 399 So.2d 367, 369 (Fla. 3d DCA 1981)..................... 35

n1

S & S Pharmaceuticals, Inc. v. Hirschfield, Fla.App. 1969, 226 So.2d 874 ........... 37Scott v. Johnson, 386 So. 2d 67 (Fla.3d DCA 1980) ..............................................28Service Fire Insurance Cornpany ofNew York v. Markey, 83 So.2d 855 (Fla. 1955)

.............................................................................................................................28The Florida Bar v. Carlon, 820 So. 2d 891, 899 (Fla. 2002)................................... 16The Florida Bar v. Daniel, 626 So. 2d 178 (Fla. 1993)...........................................28The Florida Bar v. Dubbeld, 748 So. 2d 936, 940 (Fla. 1999)................................ 16The Florida Bar v. Feige, 937 So. 2d 605 (Fla. 2006)..................... 38, 39, 43, 44, 45The Florida Bar v. Grief, 701 So. 2d 555 (Fla. 1997).............................................41The Florida Bar v. Lecznar, 690 So. 2d 1284 (Fla. 1997).......................................42The Florida Bar v. Nunn, 596 So. 2d 1053, 1054 (Fla. 1992)................................. 45The Florida Bar v. Pahules, 233 So. 2d 130 (Fla. 1970)....................................41, 43The Florida Bar v. Peterman, 306 So. 2d 484 (Fla. 1975)........................... 42, 44, 45The Florida Bar v. Porter, 684 So. 2d 810 (Fla. 1996)............................................21The Florida Bar v. Rue, 643 So. 2d 1080 (Fla. 1994).............................................41The Florida Bar v. Senton, 882 So. 2d 997, 1001 (Fla. 2004)................................. 15The Florida Bar v. Sweeney, 730 So. 2d 1269 (Fla. 1998) .....................................42The Florida Bar v. Temmer, 753 So. 2d 555, 558 (Fla. 1999)................................ 16The Florida Bar v. Ticktin, 14 So. 3d 928 (Fla. 2009)................................ 22, 24, 25The Florida Bar v. Vannier, 498 So. 2d 896, 898 (Fla. 1986)................................. 26The Florida Bar v.. Vining, 761 So. 2d 1044, 1047 (Fla. 2000)............................... 15Trinka v. Struna, 913 So.2d 626, 628 (Fla. 4th DCA 2005).................................... 33Westinghouse Credit Corp., 356 So.2d at 1330.......................................................33Williams v. Gunn, Fla.App.1973, 279 So.2d 69......................................................37Yost v. Fiallos ex rel. Tarazona, 64 So. 3d 699 (Fla. 3d DCA 2011)...................... 40

Rules

3-7.6(e) ....................................................................................................................213-7.7(c)(5)................................................................................................................154-1.16(a) ..............................................................................................................2, 194-1.1............................................................................................................2,3,18, 194-1.16(a) ........................................................................................2, 3, 18, 19, 20, 234-1.16(a)(2)....................................................................................................3, 20, 234-1.3 ...............................................................................................2, 3, 18, 19, 20, 234-1.4(a) ..........................................................................................2,3, 18, 19, 20, 234-1.4(b)................................................................................................2,3, 18, 19, 20

lv

4-1.5(a)......................................................................................................2,3, 18, 194-8.4(a) ................................................................................................2, 3, 18, 19, 204-8.4(d)....................................................................................................3,18, 19, 204..8.4(g)....................................................................................................................23

Standards

4.41, (a), (b), (c).................................................................................................11,464 42 a b 11 46. , ( ), ( )....................................................................................................... ,9.22(a)................................................................................................................22,489.22(c)................................................................................................................22,489.22(d)................................................................................................................22,489.22(h)................................................................................................................22,489.22(i) ................................................................................................................22,489.32(c), (h)...............................................................................................................48

V

PRELIMINARY STATEMENT

Throughout this Answer Brief, The Florida Bar will refer to specific parts ofthe

record as follows: The Report of Referee will be designated as RR (indicating

the referenced page number). The transcript used in the Final Hearing is designated as

T (indicating the referenced page number). The Index of the Record will be

designated as R (indicating the index number, followed by the page number ofthe

referenced document). References to pages in respondent's initial brief will be

designated IB_ (indicating the page number). References to The Florida Bar's

Exhibits will be R: 10: TFB Ex. . The Florida Bar will be referred to as "the Bar."

Jacob Rose will be referred to as "Rose" or "respondent."

1

THE FLORIDA BAR'S STATEMENT OF THE CASE AND FACTS

Respondent has also filed an Appendix contemporaneously with his initial brief.

One ofthe documents contained in the Appendix is not part ofthe record ofthis case.

Respondent's brief makes references to this document. Contemporaneous with filing

this answer brief, the Bar has filed a Motion to Strike portions of the Appendix and

portions from respondent's initial brief that refer to the document contained in the

Appendix that is outside the record.

STATEMENT OF THE CASE

This matter consists of complaints from two of respondent's former clients,

Alice Brown and Edwin Hunt, and a judicial referral regarding respondent's

representation of Minerva Mendez.

In the Alice Brown and Edwin Hunt matters, The Florida Bar filed its Complaint

against Respondent on July 29, 2011, in SC11-1482. In the Minerva Mendez matter,

The Florida Bar filed its Complaint on September 20, 2011, in SC11-1829. Respondent

failed to file a responsive pleading to either complaint as required by R. Regulating

Fla. Bar 3-7.6(h)(2).

In Case Number SC11-1482, an order for default judgment was entered against

respondent on August 31, 2011. The order adjudged respondent guilty ofviolating R.

Regulating Fla. Bar, Rules 4-1.1; 4-1.3; 4-1.4(a); 4-1.4(b); 4-1.5(a); 4-1.16(a); 4-8.4(a)

2

and 4-8.4(d) as set forth in Count I of the Complaint (Alice Brown matter); and Rules

4-1.1; 4-1.3; 4-1.4(a); 4-1.4(b); 4-1.5(a); 4-1.16(a); 4 8.4(a) and 4-8.4(d) as set forth in

Count II of the Complaint (Edwin Hunt matter). (R: 5).

In Case Number SC11-1829, on September 27, 2011, respondent filed an

Unopposed Motion for Enlargement of Time to Respond to Complaint requesting an

extension of time until October 31, 2011, in which to file a responsive pleading to the

complaint. (R: 9). On November 14, 2011, respondent had failed to file a responsive

pleading in SC11-1829 and an order for default judgment was entered. The order

adjudged respondent guilty ofviolating R. Regulating Fla. Bar, Rules 4-1.3; 4-1.4(a);

4-1.4(b); 4-1.16(a)(2); and 4-8.4(d) as set forth in the Complaint (Minerva Mendez

matter). (R: 11).

Each of the two orders for default judgment stated that the respective matter

"shall proceed to final hearing, solely on the issue of disciplinary sanctions to be

imposed." (R: 5, 11). Final hearings on both matters were scheduled for January 9,

2012. The respective Notice of Final Hearing for SC11-1482 and SC11-1829 were

each served on November 29, 2011. (R: 12, 13).

On January 5, 2012, respondent filed in each case a Verified Motion for an

Order Continuing Final Hearing, for an Order Setting Aside Order on Motion for

Default Judgment [hereinafter referred to as either motion to set aside default judgment

3

or motion for continuance], and for an Order Consolidating Pending Disciplinary

Matters. (R: 16).

In the motions, respondent claimed that he could not represent himself

competently since he was enduring medical and financial difficulties which had

severely hindered and prevented him from fully participating in the disciplinary

proceedings as well as prepare a defense. (R:16:1-2 as to both motions). Respondent

requested a three-month continuance during which time he averred that he would be

receiving a substantial amount ofmoney for work he performed for two governmental

entities that he could use to retain counsel and obtain necessary medical treatment to

allow him to participate in the proceedings and in his defense. (R:16:2-3 as to both

motions).

As to the motions to set aside the default judgments, respondent claimed that his

failure to file responsive pleadings was the result ofmistake, inadvertence or excusable

neglect and that he had meritorious defenses. (R: 16-3 as to both motions.) In SC11-

1482, respondent claimed that his failure to respond was due to his medical difficulties

and the failure of the postal service to redeliver a certified letter containing the

Complaint. (R: 16:3-5 as to SC11-1482 Motion). In the motion to set aside pertaining

4

to SC11-1829, respondent does not explain his failure to respond to the Complaint

after being granted the enlargement of time to October 31, 2011.1

As to meritorious defenses in the Alice Brown matter, respondent claimed in his

motion that, although he had a limited recollection, he believed Ms. Brown's file had

been closed after a determination that Ms. Brown did not have a viable cause ofaction.

Respondent also claimed that, according to his office personnel, they attempted to

contact Ms. Brown in 2004 and 2005 to advise her that her case was not viable.

Respondent stated that he had limited recollection that it was accepted for evaluation

and after her file was placed in storage, Brown made no contact with the office until

2009. Respondent stated he had no recollection of the details concerning the

evaluation, investigation and assessment, and that the assertions in the motion were

based on information received from his staff. Respondent also did not claim to have

personal knowledge of efforts by his staff to contact Ms. Brown, rather this

information was also relayed to him by his staff. Respondent also claimed that Ms.

Brown's file was subsequently destroyed due to hurricane damage to his storage unit.

(R: 16: 5-6 as to SC11-1482 Motion).

iThe default judgment in SC11-1829 was entered on November 14, 2011, (R: 11), andnot on August 31, 2011, as stated in respondent's motion. (R: 16: 3 as to SC11-1829motion.)

5

As to meritorious defenses in the Edwin Hunt matter, respondent claimed that he

had acted competently and diligently in this matter regarding the modification of

paternity and child support since the total time between the initial intake and

termination ofhis services was approximately six months. (R: 16:7 as to SC11-1482).

As to meritorious defenses in the Minerva Mendez matter (SC11-1829)

respondent's motion claimed that he agreed to represent Menedez pro bono and on a

limited basis, and that he explained his medical condition to Mendez. Thereafter, there

was a sudden escalation in the severity of respondent's condition and he was unable to

pursue active representation for the several weeks prior to his discharge by the trial

judge. Respondent acknowledged that his failure to appear in Court was accurately

stated in the Court Order he attached as Exhibit 1 to his motion. The exhibit references

respondent's "multiple failures to appear at hearings."(R: 16:4-5 and Exhibit 1 as to

SC11-1829).

In his motions, respondent requested that an evidentiary hearing be scheduled

after he obtains legal representation, which was expected to be shortly after the end of

February 2012. (R: 16:8 as to SC11-1482 motion; R:16:5-6 as to SC11-1829 motion).

On January 9, 2012, a hearing by the referee was held on respondent's Verified

Motion for an Order Continuing Final Hearing, for an Order Setting Aside Order on

Motion for Default Judgment, and for an Order Consolidating Pending Disciplinary

6

Matters, followed by the Final Hearing on the disciplinary matters. During this hearing,

the referee denied the motions regarding a continuance and setting aside the default

judgments and granted the motion for consolidation. (T: 3, 27).

During the hearing regarding a continuance, respondent requested the referee

allow him to-the end of February to obtain counsel. (T: 8). The referee noted though

that this was not respondent's first Bar grievance and that respondent had seven cases

consolidated in a ten-count complaint involving similar misconduct in which he was

placed on probation for one year effective in October 2008 and that one of the instant

matters occurred while respondent was on probation. (T: 9). The referee noted that this

seemed to be a continuous stream of conduct and although the referee was extremely

sympathetic to respondent's health issues, it seemed as if respondent was a danger to

the public if he continued to practice since the conduct never ceased. (T: 9-10).

The referee noted that there was no medical testimony before him and inquired if

the default judgment were to be set aside and this matter reset for trial for the summer

of2012, what would change between then and now? (T: 10). Respondent represented

that if he could get a stream of treatment for one month, it might make a difference.

(T: 12).

The Bar argued that respondent used his health problems as an excuse

previously and that respondent had been down this road before. Respondent had

7

attached as an exhibit to his motion to set aside in the Mendez matter (R:16 as to

SC11-1829), a July 1, 2010 order by the trial judge, the Honorable Sandra Bosso

Pardo, which indicated respondent had avoided a finding of contempt in the Mendez

matter by using his medical condition as an excuse and making representations to

assure the judge that the situation would not recur. (T: 14-15).

The Bar also argued that respondent had been served a copy ofthe Complaint in

SC11-1482 both by regular mail and certified mail. The copy sent regular mail had

never been returned so it must have been delivered to respondent's office. (T: 15). The

Bar also argued that respondent only made one phone call to the post office to get the

certified letter redelivered and that there was absolutely no other follow up or contact

with either the Bar or the Court prior to his filing the motion to set aside the default on

January 5, 2012, despite that respondent was doing work on other Bar related matters

during the intervening period of time. (T: 16-18).

The Bar also argued that in order to set aside a default judgment, respondent had

to demonstrate due diligence along with a meritorious defense and in the instant matter

respondent had failed to show any of these elements. (T: 18). The referee noted that

respondent's asserted defense regarding his illness condemns him because it proves the

Bar's case. (T: 18).

8

The Bar argued that respondent's illness was not a defense but rather could be

argued as a mitigating factor and so respondent had failed to demonstrate any

meritorious defense. The Bar also argued that respondent had not demonstrated

diligence to warrant having the default judgment set aside and cited to cases which

required a party to-move quickly to set aside a default judgment. (T: 19).

Respondent claimed that his attempt to get the certified letter containing the

Complaint redelivered to him should serve as a meritorious defense. (T: 23).

Respondent agreed that even if the judgments were set aside, some of the violations

would still be problematic for him. (T: 25). Respondent also admitted that he exercised

bad judgment in accepting the Mendez case. (T: 26).

The referee then denied the motion to set aside the default judgments noting that

respondent had not met the legal criteria of the three prong test and because his

meritorious defense, including respondent's acknowledgement ofusing badjudgment

attributable to his medical condition, was nothing more than an admission of his

culpability. (T: 26-27). The referee noted that even ifhe set aside the default judgment

and had a full trial, it. would turn out the same since respondent failed to meet his

obligations to the Bar. (T: 27). The referee also denied respondent's continuance

motion. (T: 27).

9

A sanction hearing ensued and concluded on the same day. Respondent was the

only witness to testify. The Bar placed six exhibits and respondent placed one exhibit

in evidence. The report of referee was timely filed.

The report of referee recommended respondent be found guilty of the rule

violations pursuant to the two Orders for Default Jtidgment. (RR: 12). As the

disciplinary sanction, the referee recommended a three-year suspension and that prior

to his reinstatement, (i)respondent shall prove his physical and mental rehabilitation as

set forth in the report2; (ii) respondent shall, within the first six months of his

suspension, make restitution payable to Alice Brown in the amount of $1,100 and

Edwin Hunt in the amount of $500; (iii) respondent shall also make full restitution to

victims in the event that other complaints against respondent have been made to the

Bar; (iv) respondent shall take and pass the ethics portion of The Florida Bar exam.

Further, respondent is to pay The Florida Bar's costs in the matters. (RR: 12-13).

2 At RR:16, the referee states: "During the suspension period, respondent mustdemonstrate substantial rehabilitation, both physical and mental from appropriatemedical and psychological tests. Respondent must also be gainfully employed duringhis suspension to demonstrate that he has the physical and mental stamina and abilityto bear the responsibility ofpracticing law as well as the daily grind that goes with it.Such gainful employment also will be indicative as to respondent's physical andmental rehabilitation. Respondent must also pay full restitution to the victims withinthe first six (6) months ofhis suspension and take at least the ethics portion ofthe BarExam."

10

In support of the recommended sanction, the referee found that Standards for

Lawyer Discipline 4.41 and 4.42 were applicable. (RR: 13). The referee found the

following aggravating factors: prior discipline, a pattern of misconduct, multiple

offenses, vulnerability of the client, and substantial experience in the practice of law.

(RR: 14, 19). In mitigation, the referee found absence of dishonest or-selfish motive,

personal or emotional problems, physical or mental disability or impairment, and

remorse. (RR: 15, 19).

On February 5, 2012, respondent filed a Motion for Reconsideration ofReport

and Recommendation ofthe Referee. On the same day, respondent also filed a Request

for Referee to Include Entire Transcript of January 9, 2012 Proceeding as Part of the

Record.

Respondent filed his Petition for Review on April 30, 2012.

STATEMENT OF THE FACTS

The Report ofReferee contains extensive findings of fact. The Referee's report

included the following findings:

As to The Florida Bar File No. 2009-51,522(15D): In or about June 2004, Alice

Brown hired respondent to represent her concerning a possible employment

discrimination complaint. Respondent collected $1,100 from Ms. Brown for his

services. Thereafter, respondent took no significant action in Ms. Brown's case.

11

Although respondent was away from his office for several months recuperating from

an automobile accident, he failed to withdraw from the representation for medical

reasons or otherwise protect the client's interest. (RR: 3).

Furthermore, after hiring respondent, Ms. Brown attempted to contact

respondent to ascertain the status of.her case, but respondent failed and refused to

properly communicate with Ms. Brown. Respondent failed to take any significant

action in Ms. Brown's case. Respondent's failure to take the necessary timely action

resulted in a failure to preserve her potential claims. (RR:4).

As to The Florida Bar File No. 2010-50,323(15D): In or about December 2008,

respondent was hired by Edwin Hunt regarding a paternity and child support matter.

Respondent collected a $3,000 fee for his services. After accepting the case and fee,

respondent took little or no significant action in the case. Respondent claimed that

during this period he was delayed for medical reasons, but failed to withdraw from the

matter for medical reasons or otherwise protect the client's interest. (RR: 6)

Due to respondent's inaction, Mr. Hunt was required to retain new counsel.

When Mr. Hunt contacted respondent to ascertain the status of his case, respondent

failed and refused to properly communicate with him. Respondent failed to take any

significant action in the matter. (RR: 7).

12

As to The Florida Bar File No. 2011-50,225(15D): On March 10, 2010,

respondent filed a notice of appearance on behalf of Minerva Mendez, in the Palm

Beach County court case of Minerva Mendez v. Integon Indemnity Corp., Case No.

2009CC015877. After filing such notice, respondent took no significant action. On

March 11, 2010, a status conference was held on the matter wherein respondent failed

to appear (although Ms. Mendez was present). Ms. Mendez was ordered to file an

amended complaint on or before March 15, 2010. Ms. Mendezultimately filed her own

amended complaint because she was unable to make contact with respondent since she

had hired him. On April 8, 2010, respondent failed to appear at a properly scheduled

hearing on a defense motion. During this hearing, the court called respondent's office

but was unable to reach him. The court left a message on respondent's answering

machine but neither respondent nor anyone from his office responded to the message.

(RR: 9-10).

Based on respondent's failure to appear, the court scheduled a status conference

for May 5, 2010 and entered an order requiring respondent's presence at the May 5,

2010 hearing. Despite being ordered to do so, respondent failed to appear. During the

May 5, 2010 status conference, Ms. Mendez testified that she had been unable to

communicate with respondent since hiring him on March 10, 2010. At the request of

Ms. Mendez, the court discharged respondent from the case. (RR: 10).

13

On July 1, 2010, the court held a hearing on an Order to Show Cause against

respondent. Respondent appeared and explained that he had been ill. Prior to that

hearing, respondent failed to advise the court or his client of his medical problem.

Further, respondent failed to withdraw from the representation when his medical

condition impaired his ability to represent his client. (RR: 10).

Respondent claims that his illness is an excuse and therefore his conduct was not

improper. The bar's position is that respondent's illness is not a defense to his violation

of the rules charged in the complaints. The report of referee amply shows that

respondent's medical condition was considered in the referee's mitigation findings and

the disciplinary recommendation.

SUMMARY OF ARGUMENT

First, the referee did not err in finding respondent guilty ofthe charges made in

the Complaints. Respondent's failure to file responsive pleadings resulted in default

judgments causing the well pled allegations in the Complaints to be considered

admitted. Pursuant to the admitted allegations, there was substantial competent

evidence before the referee to find respondent guilty.

Second, the referee did not abuse his discretion in denying respondent's motion

to set aside the default judgments and continuance. There was sufficient evidence

14

adduced at the hearing that respondent failed to diligently move to set aside the default

judgments. Respondent also failed to demonstrate any meritorious defenses.

Third, respondent is precluded from appealing his Motion for Reconsideration

since it was never ruled upon by the referee and any undecided motions are deemed

abandoned when an appeal is filed.

Finally, after considering all ofthe evidence in the record, respondent's previous

disciplinary history regarding similar misconduct and the need to protect the public, the

referee made proper findings and disciplined respondent accordingly by suspending

him for three years. There. is nothing improper or erroneous about respondent's

sanctions, and as such, they must be upheld.

ARGUMENT

On review, the burden is on the party seeking review to demonstrate that a report

of the referee sought to be reviewed is erroneous, unlawful, or unjustified. R.

Regulating Fla. Bar 3-7.7(c)(5). A referee's findings of fact regarding guilt carry a

presumption of correctness that should be upheld unless clearly erroneous or without

support in the record. The Florida Bar v. Senton, 882 So. 2d 997, 1001 (Fla. 2004);

The Florida Bar v. Vining, 761 So. 2d 1044, 1047 (Fla. 2000). This Court's scope of

review ofa referee's recommended sanction is broader than that afforded to findings of

fact because this Court has the ultimate authority to determine the appropriate sanction.

15

The Florida Bar v. Carlon, 820 So. 2d 891, 899 (Fla. 2002). However, generally

speaking, the Court will not second-guess the referee's recommended discipline as long

as it has a reasonable basis in existing case law and the Florida Standards for Imposing

Lawyer Sanctions. See, The Florida Bar v. Temmer, 753 So. 2d 555, 558 (Fla. 1999).

The Bar submits that the factual findings and disciplinary recommendation of

the referee should be approved.

ISSUEI

THE REFEREE'S FINDINGS ARE CLEARLY SUPPORTED BYTHE RECORD, ARE NOT CLEARLY ERRONEOUS, ANDSHOULD THEREFORE BE UPHELD.

In considering respondent's argument and evaluating the referee's findings of

fact, the Court will recaH the principles articulated in The Florida Bar v. Dubbeld, 748

So. 2d 936, 940 (Fla. 1999):

A referee's findings of fact regarding guilt carry a presumption ofcorrectness that should be upheld unless clearly erroneous or withoutsupport in the record. Florida Bar v. Beach, 699 So. 2d 657, 660 (Fla.1997). If the referee's findings are supported by competent, substantialevidence, this Court is precluded from reweighing the evidence andsubstituting its judgment for that of the referee. Florida Bar v.Bustamante, 662 So. 2d 687, 689 (Fla. 1995). The party contending thatthe referee's findings of fact and conclusions as to guilt are erroneouscarries the burden ofdemonstrating that there is no evidence in the recordto support those findings or that the record evidence clearly contradictsthe conclusions. Florida Bar v. Miele, 605 So. 2d 866, 868 (Fla. 1992).

16

Accordingly, it is respondent's burden to prove that there is no record evidence

to support the referee's findings, or that such evidence contradicts his conclusions.

Respondent has met neither burden in his initial brief. To the contrary, the record is

replete with evidence to support the referee's findings contained in his report.

ISSUE II

THE REFEREE DID NOT ERR IN MAKING FINDINGS OFGUILT AND AGGRAVATING FACTORS SINCE THERE WASCOMPETENT SUBSTANTIAL EVIDENCE PRESENTED TO THEREFEREE.

In his initial brief respondent claims there was not competent substantial

evidence presented to the referee to make a finding of guilt or of aggravating factors.

(IB: 32). Respondent errs in this claim because there was sufficient evidence for the

referee to make the finding of guilt.

First, in the instant matter, the Bar filed Complaints alleging respondent's acts

and omissions were violations of the Rules Regulating The Florida Bar. In the

complaint filed in SC11-1482, the Bar claimed the following: 1) Alice Brown hired

respondent to represent her in a possible employment discrimination matter and paid

him $1,100; 2) respondent took no significant action on her case; 3) during this time

respondent was away recuperating from an automobile accident, he failed to withdraw

from the matter to protect her interest and preserve her claims; 4) communications

17

from Ms. Brown to respondent were not properly responded to and there was no proper

communication from respondent to her. (R: 1:-2).

Respondent's acceptance of a fee and thereafter doing no substantial work,

constituted an excessive fee in violation of Rule 4-1.5(a). Respondent's failure to do

significant work on a case and preserve Ms. Brown's potential claims was a failure to

act competently and diligently in violation of Rules 4-1.1 and 4-1.3. Respondent's

failure to withdraw from the matter due to illness when it impaired his ability to

represent Ms. Brown was a violation of Rule 4-1.16(a). Respondent's failure to

communicate with Ms. Brown was a violation of Rules 4-1.4(a) and 4-1.4(b).

Respondent's activities above were a violation of the Rules of Professional Conduct

and prejudicial to the administration ofjustice and a violation ofRules 4-8.4(a) and 4-

8.4(d).

As to Edwin Hunt, the Bar claimed the following in its Complaint.: 1) Edwin

Hunt hired respondent to represent him in a paternity and child support matter and paid

him $3,000; 2) respondent took no significant action on Mr. Hunt's case; 3) during this

time respondent was delayed for medical reasons, but failed to withdraw from the

matter or otherwise protect his client's interest; 4) respondent failed to properly

communicate with Mr. Hunt regarding the status of his case. (R: 1: 4-5).

18

Respondent's acceptance of a fee and thereafter doing no substantial work,

constituted an excessive fee in violation of Rule 4-1.5(a). Respondent's failure to do

significant work on a case was a failure to act competently and diligently in violation

of Rules 4-1.1 and 4-1.3. Respondent's failure to withdraw from the matter due to

illness when it impaired his ability to represent Mr. Hunt was a violation of Rule

4-1.16(a). Respondent's failure to communicate with Mr. Hunt was a violation of

Rules 4-1.4(a) and 4-1.4(b). Respondent's activities above were a violation of the

Rules of Professional Conduct and prejudicial to the administration of justice and a

violation of Rules 4-8.4(a) and 4-8.4(d).

In the Complaint filed in SC11-1829, the Bar claimed the following: 1)

respondent filed a notice of appearance to represent Ms. Mendez in a Palm Beach

County civil matter, but respondent took no significant action on her case; 2)

respondent failed to appear at status conferences and hearings set by the court; 3) Ms.

Mendez was unable to make contact with respondent regarding drafting an amended

complaint and throughout the representation; 4) the court held a hearing on an order to

show cause against respondent on July 1, 2010, wherein respondent explained to the

court that he had been ill. Prior thereto, respondent had failed to advise his client or

the court of his illness. (R: 6: 1-3).

19

Respondent's accepting a representation and thereafter doing no substantial

work on the case, was a failure to act diligently in violation of Rule 4-1.3.

Respondent's failure to withdraw from the matter due to illness when it impaired his

ability to represent Ms. Mendez was a violation of Rule 4-1.16(a)(2). Respondent's

failure to communicate with Ms. Mendez was a violation of Rules ·4-1.4(a) and

4-1.4(b). Respondent's activities above were a violation of the Rules of Professional

Conduct and prejudicial to the administration of justice and a violation of Rules 4-

8.4(a) and 4-8.4(d).

In SC11-1482, the Complaint was filed on July 29, 2011. In SC11-1829 the

Complaint was filed on September 20, 2011. Respondent failed to file a responsive

pleading to either Complaint and Orders on the Motions For Default Judgment were

granted on August 31, 2011 and November 29, 2011, respectively. (R: 3 and 11).

In North American Acc. Ins. Co. v. Moreland, 60 Fla. 153 (Fla. 1910), this

Court noted that when a default judgment is granted all the allegations made in the

complaint are considered to be admitted:

A judgment by default properly entered against parties sui juris operatesas an admission by the defendants of the truth of the definite and certainallegations and the fair inferences and conclusions of fact to be drawnfrom the allegations of the declaration.

20

As a result of the default judgments obtained in these two matters, all the

allegations in the Complaints that were before the referee .were considered to be

admitted to by respondent. Thus, since the allegations were well plead and as noted

above rose to the level of rule violations, the referee did not err when he found

respondent guilty of the above rule violations.

This principle applies to attorney discipline cases as well. In The Florida Bar v.

Porter, 684 So. 2d 810 (Fla. 1996), this Court noted the following:

In a disciplinary proceeding, the Florida Rules of Civil Procedure applyto the extent not inconsistent with the Rules Regulating the Florida Bar.See R. Regulating Fla. Bar 3-7.6(e). As such, Florida Rule of CivilProcedure 1.500(b) empowered the referee to enter a default againstPorter, who failed to plead or defend the action.FN4 See generallyFlorida Bar v. Tobin, 674 So.2d 127 (Fla.1996) (finding attorney couldnot challenge matters deemed admitted for failure to respond to requestfor admissions); Florida Bar v. Dubow, 636 So.2d 1287 (Fla.1994)(same). By this default, the allegations in the Bar's complaint weredeemed admitted, and the default thereby provided the referee withcompetent, substantial evidence upon which to base the findings.

Porter at 813.

Since the allegations in the Bar's Complaint were deemed admitted and provided

the referee with competent substantial evidence upon which the referee based his

findings, the referee did not err in finding respondent guilty ofthe charges made in the

Complaint.

21

Nor did the referee err in his list of aggravating factors since there was

competent substantial evidence presented at the final hearing and in the Complaint to

support the referee's list of factors. In The Florida Bar v. Ticktin, 14 So. 3d 928 (Fla.

2009), this Court found that a referee's findings in aggravation carry a presumption of

correctness:

A referee's findings in aggravation carry a presumption of correctnessthat should be upheld unless clearly erroneous or without support in therecord. See Fla. Bar v. Arcia, 848 So.2d 296, 299 (Fla.2003).

Ticktin at 937.

In his Report of Referee, the referee identified the following as aggravating

factors:

1) 9.22(a), prior discipline; 2)9.22(c), a pattern ofmisconduct; 3)9.22(d), multiple

offenses; 4)9.22(h), vulnerability ofthe client; and 5)9.22(i), substantial experience in

the practice of law. (RR: 14).

As to respondent's prior discipline, the referee noted that he was aware of

respondent's previous matter in SC08-695, in which respondent was given a public

reprimand and one year probation. (RR: 14). Thus, the referee did not err when he

identified prior discipline as an aggravating factor.

As to respondent's pattern of misconduct, the referee noted the following:

22

The pattern of misconduct is probably one of the greatest aggravatingfactors. That is, pursuant to the disciplinary proceedings againstrespondent in SC08-695, respondent was given a public reprimand andone (1) year probation for violating Rules 4-1.3; 4-1.4(a); 4-1.16(a)(2)and 4-8.4(g). That matter involved seven separate complaints againstrespondent wherein he did not diligently pursue representation of hisclients, did not properly communicate with the clients or respond to theirinquiries. Respondent also failed to withdraw from the representationwhen his medical condition materially impaired his ability to continue therepresentation. So not only was the respondent reprimanded, he was alsoplaced on a year ofprobation, but some of the circumstances arising outof the current proceedings occurred during the probationary period andshortly after the probationary period ended. The respondent's pattern ofmisconduct has carried throughout and it's been occurring since 2004 and2005.

(RR: 14-15).

Based upon the above comments by the referee which are supported by this

Court's own records, the referee did not err when he found a pattern ofmisconduct as

an aggravating factor.

As to multiple offenses, the referee did not err when he found this as an

aggravating factor because respondent did engage in a number of rule violations as

alleged in the Complaints and deemed admitted by default judgment. The rules violated

in the three client matters include: 1) excessive fee violations; 2) lack of competency;

3) lack ofdiligence; 4) failure to communicate; 5) failure to protect a client's interest;

6) failure to withdraw due to illness; 7) violating the Rules of Professional Conduct

and 8) engaging in conduct prejudicial to the administration ofjustice. (RR: 12). Based

23

upon the referee's recommendation as to guilt, the referee did not err when he found

the aggravating factor of multiple offenses.

As to vulnerability of the client, the referee did not err when he made this

finding with respect to the Mendez matter since there was substantial competent

evidence to support it. In Ticktin, this Court noted the following as a criteria for

determining victim vulnerability:

Vulnerability of a victim is established when findings support that arespondent exercised undue advantage over a client who was notreasonably in a position to protect himself or herself ...

Id. at 938. See, Fla. Bar v. Barrett, 897 So. 2d 1269, 1277 (Fla. 2005)(vulnerability of

a victim supported where one of the victims retained respondent's law firm only

because she was angry that somebody else had tried to take advantage ofher during a

time in which she was clearly preoccupied with her son's critical injuries).

In the Mendez matter, respondent stated at paragraph 10 in his motion to set

aside the default in SC11:1829, in pertinent part:

Respondent agreed to represent Ms. Minerva Mendez on a pro bono basison 09 March 2010, after she was introduced to him by a colleague, JaniceJennings, at the Palm Beach County Courthouse. Ms. Mendez had beenrepresenting herself, and was extremely distraught at facing the discoveryphase ofher action for personal injury indemnity...(R: 16: 4 at to SC11-1829 Motion.)

Respondent himself testified as to being told that Ms. Mendez needed someone

to do something to help her and that is why he decided to represent her:

24

Mendez was a lady crying in the courthouse, probably frustrated becauseshe was handling the matter herself. ... She was just broken up on amatter that she rightfully should be.

(T: 25-26).

After respondent was retained, Mendez was required to file an Amended

Complaint pro se because she was unable to contact respondent. (RR: 9).

The referee noted that he considered vulnerability of the victim as an

aggravating factor, "when we vvere talking about the woman who was in a desperate

situation." (T:38). Based upon the above and the case law'in Ticktin and Barrett, the

referee did not err when he found the aggravation factor ofvulnerability ofthe client in

Ms. Mendez's matter.

Finally, as to respondent's substantial experience in the practice of law,

respondent was admitted to the Bar on June 1, 1976. (RR:17). The respondent himself

noted during the January 9th hearing that he has been practicing for thirty-five years.

(T: 8). The referee did not err when he found the aggravation factor regarding

substantial experience in the practice of law.

As demonstrated above, the Bar provided competent and substantial evidence to

prove its allegations. The evidence in this case does not contradict the referee's

findings of fact and conclusions as to guilt. It is clear from a review of the record in

this case and the findings in the Report of the Referee, that the referee carefully

25

considered and weighed all of the evidence, and only after considering the same did he

make the findings he did. Because there is full support in the record for the Referee's

findings as to each of respondent's challenges, those findings must not be disturbed.

The Florida Bar v. Vannier, 498 So. 2d 896, 898 (Fla. 1986).

ISSUE III

THE REFEREE DID NOT COMMIT A GROSS ABUSE OFDISCRETION IN DENYING THE MOTION TO SET ASIDEDEFAULT OR CONTINUANCE BECAUSE RESPONDENTFAILED TO ACT WITH DUE DILIGENCE TO SET ASIDE THEJUDGMENT AND FAILED TO DEMONSTRATE THAT HE HADMERITORIOUS DEFENSES, AND THE CONTINUANCEMOTION WAS UNTIMELY.

The referee did not commit a gross abuse ofdiscretion by denying respondent's

motions to set aside the default judgments or motion for continuance because

respondent failed to act with due diligence in moving to set aside the default

judgments, and failed to demonstrate that he had any meritorious defenses. Further, the

motion for continuance was untimely.

In North Shore Hospital, Inc. v. Barber, 143 So. 2d 849, 852 (Fla. 1962), this

Court held that "a showing of gross abuse of a trial court's discretion is necessary on

appeal to justify reversal of the lower court's ruling on a motion to vacate." In

Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980), this Court gave a description of

abuse of discretion when it stated:

26

Discretion, in this sense, is abused when the judicial action is arbitrary,fanciful, or unreasonable, which is another way of saying that discretionis abused only where no reasonable man would take the view adopted bythe trial court. If reasonable men could differ as to the propriety of theaction taken by the trial court, then it cannot be said that the trial courtabused its discretion.

Canakaris at 1203.

The referee's decision in this matter was not arbitrary, fanciful or unreasonable.

The referee did not.abuse his discretion in denying the motion to set aside the default

judgments because evidence was adduced at the January 9th hearing that respondent

failed to demonstrate that he acted diligently to set aside the default judgment or that he

possessed meritorious defenses. In Hepburn v. All American General Const. Corp.,

954 So. 2d 1250 (Fla. 4th DCA 2007), the court noted that due diligence was required

for a trial court to set aside a default judgment:

For a trial court to grant a motion to set aside a default final judgment, themoving party must show: (1) the failure to file a responsive pleading wasthe result of excusable neglect; (2) the moving party has a meritoriousdefense; and (3) the moving party acted with due diligence in seekingrelief from the default.

Hepburn at 1251-52.

Failure to meet any one ofthe three elements is sufficient to deny the motion to

set aside the default. Respondent failed to meet his burden. Although respondent

claims that courts are very liberal in setting aside default judgments so that the matters

can be decided on the issues, the courts have specifically required the moving party to

27

act diligently once they discover a default judgment has been granted. The facts in the

instant matter demonstrate that respondent failed to act in a reasonable time or manner

after he discovered the default judgments against him.

First, in SC11-1482 the Complaint was served by both first class mail and

certified mail on July 29, 2011. (R: 1:8). Respondent concedes that proper service of

the Complaint was made. (R: 16:4 as to SC11-1482). Furthermore, this Court has held

that service of the Complaint on respondent by certified mail to his record bar address

is sufficient. The Florida Bar v. Daniel, 626 So. 2d 178 (Fla. 1993).

Default judgment was granted on August 31, 2011. (R: 5). The copy of the

Complaint that was also sent by first class mail was never returned to the Bar, thus

there exists a presumption that respondent received the Complaint and had notice of

the claims against him. In Scott v. Johnson, 386 So. 2d 67 (Fla.3d DCA 1980), the

court noted the following:

We agree with the Johnsons that this certificate is prima facie proof thatthe notice oftrial was mailed, cf. Florida Rule ofCivil Procedure 1.080(f)[FN3]; that proof of mailing raises the presumption that the mail wasreceived, Brown v. Giffen Industries, Inc., 281 So.2d 897 (Fla. 1973);Service Fire Insurance Company ofNew York v. Markey, 83 So.2d 855(Fla. 1955); Milros-Sans Souci, Inc. v. Dade County, 296 So.2d 545(Fla.3d DCA 1974) ...

Scott at 69.

28

Further, it should be noted that when bar counsel stated that the first class

mailing had not been returned, respondent was silent and never denied not receiving

the copy of the Complaint sent by first class mail:

Then we filed the complaint in - I think it was served on July 29thThere's an attempt to-And it's served not only by certified mail, but byregular mail as well. And that regular mail never came back to us so itmust have been delivered to Mr. Rose's office.

(T: 15).

Thus, it would not be unreasonable to conclude that respondent had notice ofthe

Complaint as early as the beginning of August of 2011, but failed to act on it, until

over five months had passed.

As to the copy of the Complaint sent certified mail, the following was noted by

Bar counsel regarding the several dates the post office attempted to deliver the certified

mailing:

... there was attempted delivery ofthe certified complaint on August 18†,August 6th and August 16'h ... And it was served at his - by certifiedmail at his record Bar address, so the service was fine.

(T: 16).

In respondent's motion to set aside the default judgment, respondent's part-time

assistant avers that she received notice ofthe certified mailing on August 23, 2011 and

contacted the post office and made arrangements to have the certified mail delivered on

August 24th She then avers that the certified mailing was never redelivered. However,

29

respondent's failure to follow up on the certified mailing demonstrates his failure to act

diligently, as stated by the Bar:

And his motion is saying that Ms. Woodly (phonetic) did not see thenotice until August 23rd. And he even says in his motion that he was notaround in his office. He was not available. So all this time is going by.Then- So they get the notice, but she - one phone call is made to the postoffice anèthere's absolutely no other followup. And months go [by] ...And absolutely nothing more was done. Nothing. No contact was madewith the Bar, no contact was made with the Court until last Friday.

(T: 16-17).

Therefore based upon the above, respondent had notice ofthe Complaint in late

August of 2011, but failed to respond to it until he filed his motion to set aside the

default judgment over four months later on January 5, 2012.

Respondent cannot blame an inability to work on his failure to act diligently.

During this four-month period, respondent did engage in other activities regarding

these and other matters.3 Specifically in the consolidated case SC11-1829, on or about

September 27, 2011, respondent filed an unopposed motion for an enlargement oftime

to October 31, 2011, to respond to the complaint in the Mendez matter, and

3 Respondent represented to the referee that he did a substantial amount ofwork for theCity ofWest Palm Beach and the Palm Beach County School Board for which he wasexpected to receive fees. (T: 6).

30

another unopposed motion for enlargement of time to respond to the Order to Show

Cause in another matter, SC11-1722. On or about October 14, 2011, he filed a

response to the Order to Show Cause in SC11-1722. Further, on or about December 6,

2011, respondent filed a response to the Order to Show Cause issued in another matter,

SC11-2225.

A copy ofrespondent's October 14, 2011, Response to Order to Show Cause in

SC11-1722 was entered into evidence. (T: 31; R: 10: TFB Ex. 1). A copy of

Respondent's September 27, 2011, Unopposed Motion for Enlargement of Time to

Respond to Order to Show Cause in SC11-1722 was entered into evidence. (T: 31; R:

10: TFB Ex. 2). A copy of Respondent's December 6, 2011, Response to Order to

Show Cause in SC11-2225 was entered into evidence. (T: 31-32; R: 10: TFB Ex. 3).

A copy ofRespondent's September 27, 2011, Unopposed Motion for Enlargement of

Time to Respond to Complaint in SC11-1829 was entered into evidence. (T: 32; R: 10:

TFB Ex. 4).

As noted in the January 9th, 2012 hearing:

(By Mr. Soifer): ...And it's not as if Mr. Rose could not do anythingsince August until last Friday because we have - for instance, he did filethe motion for continuance in the other - in the Mendez matter and thatwas filed in September. Late September. He also filed responses to twoorders to show cause and I have those today ifYour Honor would like tosee them.

31

Mr. Rose: He's correct. He's correct.

Mr. Soifer: Okay. So he - Okay. So he filed the continuance onSeptember 27th in this case and also one of the orders to show cause. Healso filed a response to an order to show cause dated October 14th.

(T: 17).

Respondent's ability to do work in other matters during the time period that he

could have filed a timely motion to set aside the default judgment demonstrates

respondent's failure to act diligently as noted by Bar counsel:

And in order to set aside a default judgment, Mr. Rose has to be able todemonstrate due diligence, excusable - and excusable neglect along witha meritorious defense. And before we even get to the meritorious defense,which he has not shown, he has not shown any due diligence in thismatter ...

(T: 18).

Therefore, because respondent failed to act diligently in setting aside the default

judgment in SC11-1482, the referee did not abuse his discretion in denying the motion

to set aside the default judgment.

Likewise in SC11-1829, respondent also failed to act diligently in moving to set

aside the default. The Complaint in this matter was served on September 20, 2011. (R:

6). On September 27, 2011, respondent filed an Unopposed Motion for Enlargement

of Time to Respond to Complaint. (R: 9). In this motion, respondent requested an

enlargement of time until October 31, 2011 to file a responsive pleading. (R: 9).

32

Respondent failed to file a responsive pleading and a default judgment was granted on

November 14, 2011. (R: 11).

The referee did not grossly abuse his discretion in denying respondent's motion

to set aside the default judgment in this matter because again respondent failed to act

diligently. In this matter, over six weeks had passed between the default judgment

order on November 14, 2011 and respondent's motion to set aside on January 5, 2011.

This six week delay in filing a motion to set aside, especially when respondent knew

his responsive pleading was due on the date he requested, October 31, 2011, thereby

demonstrates a lack of diligence on respondent's part.

In Lazcar Intern., Inc. v. Caraballo, 957 So. 2d 1191 (Fla. 3d DCA 2007), the

court noted that absent competent substantial evidence of some exceptional

circumstance, a six week delay in moving to set aside a default judgment constitutes a

lack of diligence:

Absent competent substantial evidence ofsome exceptional circumstanceexplaining the delay, Westinghouse Credit Corp., 356 So.2d at 1330, asix-week delay in filing a motion to vacate a default after receiving noticeconstitutes a lack of due diligence as a matter of law. See, e.g., Trinka v.Struna, 913 So.2d 626, 628 (Fla. 4th DCA 2005)(finding "[t]hatdefendant's attorney ignored his duty to act with all due diligence" where"more than a month passed between the discovery of the default and theentry of the final judgment without any attempt to vacate the default");Fischer v. Barnett Bank of S. Fla., N.A., 511 So.2d 1087, 1088 (Fla. 3dDCA 1987)(finding a "five week delay by the defendants [in filingmotion to vacate] entirely inexcusable"); Bayview Tower Condo. Ass'n v.

33

Schweizer, 475 So.2d 982, 983 (Fla. 3d DCA 1985)(finding a delay ofone month "showed a lack ofdue diligence in seeking reliefafter learningof the default and was fatal to the subject motion to vacate filed below");see also Allstate Floridian Ins. Co. v. Ronco Inventions, LLC, 890 So.2d300, 304 (Fla. 2d DCA 2004)(concluding "that the seven-week delay herewas unreasonable").

Lazcar at 1192-93.

In the instant matter, respondent seems to blame his health for his deficiencies.

However, as noted above, competent substantial evidence of an exceptional

circumstance is required to justify a delay. In the instant matter, although respondent

spoke of his health problems and was eventually put under oath, there was no

testimony or affidavits by any medical personnel or presentation ofmedical records to

support respondent's claim presented to the referee. The evidence showed that

respondent was able to do other work during this period of time despite his medical

claims.

Since there was no expert medical testimony presented regarding respondent's

delay in filing his motion to set aside the default judgment in SC11-1829, respondent's

six-week delay constituted a lack ofdiligence. Therefore, the referee did not abuse his

discretion in denying respondent's motion to set aside the default judgment in SC11-

1829.

34

Furthermore, the referee did not abuse his discretion in denying the motions to

set aside the default judgments because respondent also failed to demonstrate that he

possessed meritorious defenses.

In his motion to set aside the default judgment, as to Ms. Brown's matter

respondent admitted that he had "a limited recollection", he could not specifically

remember anything regarding Ms. Brown's matter but indicated what his procedures

were in such matter. (R: 16: 5-6). Respondent represented though that his office

workers, Gisele Woodley and Victor Gent, who were involved in Ms. Brown's matter

claimed it had been closed and they had tried to contact her. Respondent's

representation is deficient though since an affidavit or sworn statement from his office

workers were required. In Bank of New York Mellon v. P2D2, LLC, 2012 WL

5350038, 2 (Fla. 2d DCA 2012), the court noted that a party seeking to vacate a

default judgment bears the burden ofestablishing a meritorious defense by affidavit or

sworn statement setting forth the facts known and simply averring that one possesses a

meritorious defense is insufficient:

A party seeking to vacate a default bears the burden of establishingexcusable neglect, a meritorious defense, and due diligence by affidavitor sworn statement setting forth facts explaining its mistake orinadvertence. ... And the defendant cannot simply state that he hasmeritorious defenses, but must disclose such defenses in a defensivepleading or affidavit. Pedro Realty, Inc. v. Silva, 399 So.2d 367, 369(Fla. 3d DCA 1981). Failure to satisfy these requirements is fatal to a

35

motion to vacate. Church of Christ Written in Heaven, Inc. v. Church ofChrist Written in Heaven of Miami, Inc., 947 So.2d 557, 559 (Fla. 3dDCA 2006).

Mellon at 2.

Respondent fails to have provided a meritorious defense as to Mr. Hunt. In his

motion, respondent's defense is that six months with no significant action was not an

unreasonable delay in providing competent and diligent service. (R: 16:7). Although

respondent avers that he has provided the Bar "with records reflecting diligent

activities which justified the charged fee of $3,000, the Bar disputes this

representation. Since respondent failed to provide with his motion a sworn statement or

affidavit regarding the work he had done on the file together with the claimed records

of this alleged work, he has failed to establish a meritorious defense. Therefore, the

referee did not abuse his discretion in denying respondent's motion to set aside the

default judgment.

Respondent also did not present a meritorious defense concerning the Mendez

matter. Respondent admits that after taking on the representation, the severity of his

medical condition was such that he was unable to pursue active representation for the

several weeks prior to his being discharged by the trial judge. (R: 16:4-5 as to SC11-

1829). Respondent also admits he exercised bad judgment in taking the case. (T: 26).

In this matter, illness is not a meritorious defense since respondent should have advised

36

the court and his client ofhis illness and either withdrew from the matter or taken other

steps to protect the client's interest.

Additionally, the referee did not abuse his discretion in denying respondent's

motion for continuance. In Edwards v. Pratt, 335 So. 2d 597 (Fla. 3d DCA 1976), the

court noted:

The granting or denying of a motion for continuance is within thediscretion ofthe trial judge and a gross or flagrant abuse ofthis discretionmust be demonstrated by the complaining party before this court willsubstitute its judgment for that of the trial judge. S & S Pharmaceuticals,Inc. v. Hirschfield, Fla.App. 1969, 226 So.2d 874; Williams v. Gunn,Fla.App.1973, 279 So.2d 69.

Edwards at 598.

The referee did not abuse his discretion in denying the motion for continuance

because respondent was not timely in his motion and the circumstances serving as the

basis of the motion were known long beforehand to respondent. The motion should

have been filed more than a few days before the final hearing was scheduled to occur.

In his motion for continuance, respondent claimed that he "is enduring medical

difficulties which have severely hindered and prevented him from fully participating in

the disciplinary proceedings as well as preparing a defense." (R: 9:1). Respondent also

claims that he is in dire need of legal representation in the instant matter and is not able

to competently represent himself. (R: 9:2).

37

Respondent's health has been a central theme regarding this matter and his

previous disciplinary matters going back to approximately 2004. (R:17: TFB Ex.6).

During the January 9th hearing, respondent had the opportunity to advise the court that

he was too ill to participate in that day's hearing or was unable to represent himself

competently during the final hearing. However, at no time during the hearing did

respondent object to the referee conducting the final hearing and the record

demonstrates respondent participated in the proceedings and made competent argument

in opposition to the recommended discipline.

Although respondent claimed that with a ninety-day continuance he might be

feeling better, the referee did not abuse his discretion because he was familiar with

respondent's health issues over the years as it related to respondent's past disciplinary

history, and respondent failed to provide any competent substantial evidence to

demonstrate that his health would be better in ninety days or that he would even take

the steps to retain counsel to assist him.

In The Florida Bar v. Feige, 937 So. 2d 605 (Fla. 2006), this Court noted that

illness is not a defense:

We agree with the referee's determination that Feige's health problemswere not mitigators for his misconduct. If Feige's health was severeenough to prevent him from providing adequate representation, it wasFeige's ethical duty to inform his clients ofhis condition and arrange foralternate counsel. See Fla. Bar v. Horowitz, 697 So.2d 78, 84 (Fla.1997)

38

(finding that respondent's clinical depression helped to explain but did notexcuse respondent's pattern of neglect of his clients and his failure torespond to communication from the Bar).

Feige at 610.

Finally, the final hearing in this matter had been scheduled since November 29,

2011. (R: 14 & l5). Respondent's motion for continuance was filed on January 5, 2012.

Respondent's motion for continuance was untimely since it was made at the last hour.

Respondent took five weeks to move for a continuance for reasons known since

November but did not file his motion until days before the January 9th final hearing.

Thus, the referee did not abuse his discretion for denying an untimely motion for

continuance.

ISSUE IV

THE COURT IS PRECLUDED FROM REVIEWINGRESPONDENT'S CLAIM REGARDING THE MOTION FORRECONSIDERATION AND CLARIFICATION SINCE IT HASBEEN DEEMED ABANDONED.

In his motion for reconsideration, respondent requests that the referee amend his

report to include the referee's denial of respondent's motion to set aside the default

judgments and continuance and to include a complete transcript of the January 9th

hearing. Although this motion was filed on January 30, 2012, the referee never ruled

on the motion. Since the referee never ruled on the motion before respondent filed his

39

Petition for Review on April 30, 2012, the Motion for Reconsideration and

Clarification is deemed abandoned and precluded from review by this Court.

In Yost v. Fiallos ex rel. Tarazona, 64 So. 3d 699 (Fla. 3d DCA 2011), the court

citing to Fla. R. App. P. 9.020 (h)(3) noted that undecided motions in a lower tribunal

are deemed abandoned when a matter is appealed:

(h) Rendition (of an Order). An order is rendered when a signed, writtenorder is filed with the clerk of the lower tribunal.... [I]f a final order hasbeen entered and there has been filed in the lower tribunal an authorizedand timely motion ... for rehearing, ...

3) If such a motion or motions have been filed and a notice of appeal isfiled before the filing of a signed, written order disposing of all suchmotions, all motions filed by the appealing party that are pending at thetime shall be deemed abandoned, and the final order shall be deemedrendered by"che filing of the notice of appeal as to all claims betweenparties who then have no such motions pending between them.

Yost at 701.

Therefore, since this motion has been abandoned, this Court is precluded from

reviewing this claim and this claim should be dismissed.

Next, even if the motion had been denied, a motion for reconsideration is not

appealable. In Hunter v. Dennies Contracting Co., Inc., 693 So. 2d 615, 616 (Fla. 2d

DCA 1997), the court noted that when courts deny motions for reconsideration they are

not reviewable.

40

Hunter at 616.

Since motions for reconsideration are not appealable, this Court should dismiss

this claim.

ISSUE V

THE CASE LAW, STANDARDS, ANDAGGRAVATING/MITIGATING FACTORS SUPPORT A THREEYEAR SUSPENSION WHEN RESPONDENT'S CONDUCTINVOLVES A CONTINUING PATTERN OF MISCONDUCTSIMILAR TO MISCONDUCT FOR WHICH HE HASPREVIOUSLY BEEN SANCTIONED.

While a referee's findings of fact should be upheld unless clearly erroneous or

without support in the record, this Court's scope ofreview is broader when it reviews a

referee's recommendation for discipline because this Court has the ultimate

responsibility of determining the appropriate sanction. The Florida Bar v. Rue, 643

So. 2d 1080 (Fla. 1994); The Florida Bar v. Grief, 701 So. 2d 555 (Fla. 1997). In The

Florida Bar v. Pahules, 233 So. 2d 130 (Fla. 1970), this Court held three purposes must

be kept in mind when deciding the appropriate sanction for an attorney's misconduct:

1) the judgment must be fair to society; 2) the judgment must be fair to the attorney;

and 3) the judgment must be severe enough to deter others attorneys from similar

conduct. This Court has further stated a referee's recommended discipline must have a

reasonable basis in existing case law or the standards for imposing lawyer sanctions.

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The Florida Bar v. Sweeney, 730 So. 2d 1269 (Fla. 1998); The Florida Bar v. Lecznar,

690 So. 2d 1284 (Fla. 1997).

In the instant matter the referee recommended the following sanctions:

A. Suspension for three (3) years.

B. Prior to respondent's petition for reinstatement:

(i) Respondent shall prove his physical and mental rehabilitation asset forth hereinafter in this report;

(ii) Respondent shall, within the first six months of his suspension,make restitution payable to Alice Brown in the amount of $1,100 andEdwin Hunt in the amount of $500.

(iii)Respondent shall also make full restitution to victims in the eventthat other complainants against respondent have been made to the Bar;

(iv)Respondent shall take and pass the ethics portion of The FloridaBar exam.

C. Respondent shall pay The Florida Bar's costs in these matters.

(RR: 12-13).

In the instant case, the referee found support for his three-year suspension

recommendation in existing case law and the Florida Standards for Imposing Lawyer

Sanctions. Prior to recommending the three-year suspension, the referee considered

the following case law: The Florida Bar v. Peterman, 306 So. 2d 484 (Fla. 1975): The

42

Florida Bar v. Feige, 937 So. 2d 605 (Fla. 2006); and The Florida Bar v. Pahules, 233

So. 2d 130 (Fla. 1970). (RR:16-17).

In Feige, this Court imposed a three-year suspension and demonstration of

physical and mental rehabilitation for misconduct very similar to the rule violations in

the instant matter:

Given Feige's history ofsimilar misconduct in the past and the numerousviolations in each ofthe instant cases, we find that Feige has exhibited aconsistent and ongoing pattern ofclient neglect that is serious enough towarrant a three-year period of suspension.

Feige's conduct amounts to a complete lack of diligence in representinghis clients. As the referee determined, Feige's misconduct in the instantcases involves the violation of sixteen different rules in the handling ofseven different client matters. Feige not only grossly neglected his clientsand their matters, he also gave unsound advice and misled all parties,including clients, opposing counsel, and trial courts, to cover up his lackof diligence. Because Feige was unresponsive to his clients' needs, hisclients were forced to either resolve their matters on their own or retainother counsel to complete the work Feige should have done. Feige'sviolations are further aggravated by his failure to cooperate with the Barduring the Bar's investigations.

Feige at 610.

Although in the instant matter, respondent's conduct involved only three clients

and not seven, and respondent did not give unsound advice (he gave none) and

respondent did cooperate with the Bar, the similarities in the two cases are sufficient to

overcome the distinctions.

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Additionally, respondent's recent prior discipline also serves as an aggravating

factor even more so than it did in Feige. In Feige, his previous misconduct was from

1992, many years from the misconduct for which he was being tried. In the instant

matter, respondent's similar misconduct was so close in time to his previous

misconduct that the referee noted in his report:

... So, not only was the respondent reprimanded, he was also placed on ayear ofprobation, but some ofthe circumstances arising out ofthe currentproceedings occurred during the probationary period and shortly after theprobationary period ended. The respondent's pattern of misconduct hascarried throughout and it's been occurring since 2004 and 2005. (RR:14-15).

As to the serious effect of cumulative misconduct, this Court noted in Feige:

We are concerned that neither the referee's recommended one-yearsuspension nor the two-year suspension requested by the Bar recognizesthat Feige has a history of disciplinary cases including a prior two-yearsuspension. We do take into consideration that the past misconductoccurred prior to 1992. However, in 1992, Feige was suspended for twoyears. We treat cumulative misconduct seriously. See, e.g., Fla. Bar v.Klein, 774 So.2d 685, 691 (Fla. 2000)("[C]umulative misconduct is to betreated more severely than isolated misconduct...."): ...We conclude thatthe extent of Feige's misconduct is simply too severe to approve anydisciplinary period shorter than three years.

Id.

As the referee noted in his report in the instant matter:

The case law supports suspension as an appropriate sanction forrespondent's misconduct. See for example, The Florida Bar v. Peterman,306 So. 2d 484 (1975), where the attorney was given a three yearsuspension for neglecting several client matters, failing to communicate

44

and failing to promptly refund fees; and The Florida Bar v. Feige, 937 So.2d 605 (2006), where the attorney was given a three year suspension forlack of diligence and neglect in several client matters. As in the instantmatter, the attorney had health problems that prevented him fromproviding adequate representation, and that attorney failed to informclients and take adequate measures to protect their interests.

(RR: 16-17).

The referee also cited to Peterman. In that matter, Peterman undertook the

representation of several clients and accepted legal fees and thereafter did no

significant activity on the cases. Peterman also failed to communicate with his clients.

Peterman was also suspended for three years, however, a distinction in Peterman from

the instant matter is that the court had ordered Peterman to return client fees which he

failed to do. In the instant matter, respondent showed that he tendered a partial refund

to Mr. Hunt and produced a copy of a check to Alice Brown that was never cashed.

The tendered refunds did not occur until after the respective Bar complaints were filed

by Mr. Hunt and Ms. Brown. (RR:15). In The Florida Bar v. Nunn, 596 So. 2d 1053,

1054 (Fla. 1992), this Court stated that repayment of funds after the bar complaint

proceedings were brought, as occurred in the instant case, could properly be considered

in aggravation as a failure to make restitution.

The referee also considered the following standards to be applicable:

45

4.41(a): Disbarment is appropriate when a lawyer abandons the practice and

causes serious or potentially serious injury to a client; or

(b): a lawyer knowingly fails to perform services for a client and causes serious

or potentially serious injury to a client; or

(c): a lawyer engages in a pattern of neglect with respect to client matters and

causes serious or potentially serious injury to a client.

4.42(a): Suspension is appropriate when a lawyer knowingly fails to perform

services for a client and causes injury or potential injury to a client; or

(b): a lawyer engages in a pattern ofneglect and causes injury or potential injury

to a client. (RR: 13-14).

In the instant matter, the referee believed that respondent had abandoned his

practice, but recommended that respondent should be suspended rather than disbarred.

However, there was substantial competent evidence that respondent had abandoned his

practice. First, as to Ms. Brown, she claimed that respondent failed to communicate

with her after she retained him in 2004. Then, as to Mr. Hunt, he claimed also that

respondent failed to communicate with him to the extent that he had to hire new

counsel to represent him in his matter. Finally, as to Ms. Mendez, she claimed that after

respondent filed a notice ofappearance in her matter, she never heard from respondent

again. Respondent failed to show up at status conferences and hearings in her matter.

46

The court could not even contact him by telephone and when they left a message,

respondent failed to return the court's call. When Ms. Mendez was ordered to file an

amended complaint by a certain date, she was unable to contact respondent so she had

to draft and file it on her own.

Additionally, respondent's conduct demonstrates the abandonment of his

practice. The Complaints in this matter were filed in July and September of2011 and

respondent failed to file a responsive pleading to them (although he did move for an

enlargement of time in September). When the postal service attempted to deliver a

copy ofthe Complaint in SC11-1482 via certified mail during a several week period in

August, it could not be delivered. Respondent further testified that he was away from

his office and not able to work due to his medical condition and failed to inform his

clients and the court of the same. Respondent even admitted that he should have

handled his law practice differently given his medical issues:

I do think counsel is right - I would take a leave for medical reasons. Ithink that would have been the appropriate thing to do at the time eventhough I believed, you know, when you-I want to be optimistic that Icould still do some ...

(T: 22).

Based upon the above, there was competent substantial evidence for the referee

to believe that respondent had abandoned his practice.

47

The referee found five aggravating factors and three mitigating factors. The

aggravating factors were 9.22 (a) prior disciplinary offenses; (c) a pattern of

misconduct; (d) multiple offenses; (h) vulnerability of client; and (i) substantial

experience in the practice of law. (RR 14).

The mitigating factors were 9.32 (c) personal or emotional problems;

(h) physical or mental disability or impairment; and (1) remorse. [RR 15].

The referee's three-year suspension recommendation is appropriate for

respondent's misconduct. No lesser sanction is appropriate in this case. This Court

should approve the referee's three-year suspension recommendation.

In his initial brief, respondent claims that the referee erred when he found that

Ms. Brown, Mr. Hunt and Ms. Mendez had been injured as a result of respondent's

actions. (IB: 33-35). Respondent errs in this claim since the record demonstrated that

the clients had been injured. As for Ms. Brown, the referee's finding of fact was that

respondent had agreed to represent Ms. Brown in an employment discrimination case

in 2004 and received $1,100. Respondent then failed to take any significant action on

her matter, including failing to take the timely action to preserve her potential claims.

(RR: 3-4). Since Ms. Brown's potential claims were not preserved, Ms. Brown was

injured by respondent's .misconduct. Ms. Brown was also injured by having to pay

respondent $1,100 for services never provided.

48

As to Mr. Hunt, Mr. Hunt paid respondent $3,000 to do work related to a

paternity and child support modification issue. Respondent failed to take any

significant action. Mr. Hunt had to find and retain another attorney to do the work

respondent had been hired to do. It would not be unreasonable to conclude that Mr.

Hunt was prejudiced by the delay in receiving the benefit of the modification.

Furthermore, Mr. Hunt was prejudiced by having to pay respondent $3,000 for legal

work never provided. Mr. Hunt was also prejudiced by having to pay another attorney

to do the work respondent was supposed to do. Therefore, Mr. Hunt was injured by

respondent's misconduct.

As for Ms. Mendez, respondent had agreed to represent her in her civil matter.

Ms. Mendez relied upon respondent's representation. After respondent filed his notice

of appearance, Ms. Mendez never heard from respondent again. When the court

required Ms. Mendez to file an amended complaint, she was forced to draft and file the

pleading on her own. Thus, respondent's abandonment of Ms. Mendez caused her

significant prejudice.

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CONCLUSION

A referee's findings should not be disturbed unless they are clearly erroneous.

This referee's findings are not. The Court should approve the Report ofReferee and

suspend respondent for three years.

MICHAEL C. GREE ERG, B Counsel

50

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing has been mailed by certified mail # 7009

1680 0001 1090 1430, return receipt requested, to Jacob Addington Rose, Respondent,

whose record Bar address is The Rose Law Firm, 4710 North Australian Avenue, West

Palm Beach, Florida 33407-2306; and to his last known e-mail address of

[email protected]; with a copy furnished to Staff Counsel of The

Florida Bar at his designated e-mail address [email protected] on this 28* day of

December, 2012.

MICHAEL C. GREENBERG, Bar CounselThe Florida BarFt. Lauderdale Branch OfficeLake Shore Plaza II1300 Concord Terrace, Suite 130Sunrise, Florida 33323(954) 835-0233Florida Bar No. [email protected]

51

CERTIFICATE OF TYPE, SIZE AND STYLE AND ANTI-VIRUS SCAN

Undersigned counsel does hereby certify that this Brief is submitted in 14 pointproportionately spaced Times New Roman font, and that this brief has been filed bye-mail in accord with the Court's order ofOctober 1, 2004. Undersigned counsel doeshereby further certify that the electronically filed version ofthis briefhas been scannedand found to be free of viruses, by Norton Anti Virus for Windows.

MICHAEL C. GREENBERG, Bar Counsel

52

The Florida BaFt. Lauderdale Branch Office

Lake Shore Plaza II

John F. Harkness, Jr. 1300 Concord Terrace, Suite 130 (954) 835-0233Sunrise, Florida 33323Executive Director wwgFLORIDABAR.org

December 28, 2012

The Honorable Thomas D. Hall, ClerkThe Supreme Court of Florida500 South Duval StreetTallahassee, Florida 32399-1927

Re: The Florida Bar v. Jacob Addington RoseSupreme Court Case Nos. SC11-1482 and SC11-1829The Florida Bar File Nos. 2009-51,522(15D); 2010-50,323(15D); and 2011-50,225(15D)

Dear Mr. Hall:

Enclosed for filing in reference to the above mentioned case please find:

1. Original and 7 copies of the Answer Brief.

2. The Florida Bar's Motion to Strike Portions of Respondent's Appendix file with theInitial Brief that are not part of the Record and to Strike Portions of Respondent'sBriefReferencing Matters not part of the Record.

Thank you for your attention to this matter.

Respectfully,

Michael C. GreenbergBar Counsel

MCG/lmg

Enclosures

cc: Jacob Addington Rose (w/enclosures)Staff Counsel (w/enclosures)