Motion To Vacate Order of Disbarment
Motion To Vacate Order of Disbarment
Motion To Vacate Order of Disbarment
v.
Resvondent. 1
COMES NOW, the Respondent, MARK A. ADAMS, Esquire and files the
Statement of Facts
1. On May 14,2007, the Clerk of this Court issued an order requiring the
Respondent to file a proper initial brief within fifteen (15) days and served
this Court's Order entered on May 14,2007 which pointed out that previous
orders entered in this action had not required the Clerk or the Florida Bar to
prepare an index to the record which made it impossible for the Respondent
Rule of Appellate Procedure 9.210(b). This motion also pointed out that the
order entered on May 16,2006 denied the Respondent's alternative request
to file a brief referring to the documents filed in this action and allowing the
pointed out that unless this Court granted the requested relief, it will have
effectively prevented the Respondent from preparing a proper brief and will
3. On July, 12,2007, the Clerk of this Court issued an order denying the
an order denying the Respondent's Motion to Toll Time to File Brief, and an
order dismissing the Respondent's Petition for Review, and the Clerk of this
' The Respondent has also previously filed a motion showing that the Clerk of this
Court acknowledged that documents, which are required to be included in the file
and which the Respondent discovered were missing from it, were instead stored in
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a room in the Court's sub-basement. The documents which were missing from the
file included transcripts, motions, and orders regarding proceedings before the
referee which showed the numerous errors which were committed by the referee
including preventing the Respondent from calling witnesses in his defense,
prohibiting the Respondent from deposing witnesses who were listed as witnesses
by the Florida Bar, allowing one witness to represent other witnesses, and entering
an order without a hearing on the Respondent's Motion to Dismiss.
'Although the Court denied the Respondent's Motion to Correct the Docket which
was filed on May 3 1,2007, the Clerk or another person with access to this Court's
online docket corrected the error shown in this motion by June 1,2007 even
though this motion did not show up on this Court's online docket until June 5,
2007, five days after it was filed.
Court served these four orders to the Respondent via U.S. Mail. No other
order entered on July 12,2007 was served to the Respondent by the Clerk of
4. On July 19,2007, Ms. Sheryl Walker of the Florida Bar sent a letter to the
Respondent which stated in part, "The filing of a motion for rehearing does
not alter the effective date of the disbarment." The Florida Bar's letter
included the Florida Bar's Failure to Pay Notice and an Affidavit required
by Bar Rule 3-5.l(g) as enclosures, and it did not contain a copy of any
order. The pertinent part of Florida Bar's Failure to Pay Notice states,
"Disciplinary costs are deemed delinquent unless they are paid within 30
days after the disciplinary order becomes final. Usually, that is forty-five
5. On July 27, 2007, the Respondent traveled for over ten hours to file the
Motion to Correct the Docket, and the Respondent's Motion to Toll Time to
The Florida Bar's Failure to Pay Notice indicates that the Florida Bar is aware
that the rules concerning motions for rehearing apply to orders of disbarment.
6. When the Respondent reviewed the case file on July 27,2007, he learned
that the Clerk of this Court had entered a fifth order on July 12,2007 which
provided that a motion for rehearing shall not delay the effective date of this
order.4 This order was only signed by the Clerk of this Court and the
Deputy Clerk refused to provide any document showing that this order was
On July 27,2007, the Respondent also learned that the documents which had
been stored in the sub-basement had been put back together with the file,
although it was not clear when such action was taken, but most importantly,
referee, Gregory P. Holder, were missing from the file and also not
Respondent's exhibits.'
The Respondent does not know the exact language used in this order as the
Respondent was not served with a copy and has not received one, and although the
Respondent informed the Deputy Clerk that he had not received a copy of this
order and requested one, the Deputy Clerk rehsed to provide one to the
Respondent without charging a fee for the same.
'If the Justices had reviewed the transcripts of the proceedings before the referee as
required by Rule 3-7.7(a)(2), they would have surely noticed the fact that several
of the exhibits submitted to the referee by the Respondent were missing from the
case file.
8. If the Respondent had been served with the order indicating that he was
pointing out the points of law, the rules of procedure, and the facts that this
9. To date the Respondent still has not received a copy of the order entered by
the Clerk of this Court on July 12,2007 indicating that the Respondent is
permanently disbarred and that a motion for rehearing shall not delay the
10. As the Florida Bar's letter dated July 19,2007 did not contain a copy of the
the Clerk's office who was responsible for mailing copies of the orders
entered on July 12,2007 also failed to include this order when mailing the
11. The record shows that the Florida Bar did not file any response opposing the
Respondent's Motion to Toll Time to File Brief, and the record shows that
the Florida Bar did not file any motion seeking to limit the Respondent's
right to file a motion for rehearing or the effect of a motion for rehearing.
12. Furthennore, the Respondent has not found and the Florida Bar has not cited
any provision of the Rules Regulating the Florida Bar that provides for any
other way in which to refer to the record in the Respondent's brief in support
of his petition for review other than by citation to the appropriate page
Florida Rule of Appellate Procedure 9.200, and the Respondent has not
found nor has the Florida Bar cited any provision in the Rules Regulating the
Florida Bar which provides that the record is not required to be prepared in
accordance with Florida Rule of Appellate Procedure 9.200 or that this rule
13. In addition, the record shows that several of the exhibits submitted by the
14. The respondent has diligently filed this motion, and the Respondent and his
clients will suffer extreme prejudice if this motion is not granted. The
Florida Bar would not suffer any prejudice if this motion i s granted.
15. The record shows that this Court has not yet issued its mandate in this action
and that the Florida Bar has not responded to any of the motions filed by the
16. Rule 3-7.7 of the Rules Regulating the Florida Bar provides the procedure
proceedings.
17. Pursuant to Rule 3-7.7(f), the Florida Rules of Appellate Procedure apply to
18. The Rules Regulating the Florida Bar do not provide that Florida Rules of
in disciplinary proceedings nor do the Bar Rules contain provisions that are
inconsistent with or modify these Appellate Rules, and therefore, the Florida
19. "All rules prescribed for court procedure are binding on the court and
its clerk as well as on litigants and their counsel." Esch v. Forster, 127
So. 336,336 (Fla. 1930). (Emphasis added.) "The burden of proving that
observance of the rules of practice has been waived is upon the party
20. "We have emphasized time and again that "[tlhe touchstone of due process
governmental objective, see, e.g., Daniels v. Williams, 474 U.S., at 331, 106
extraordinary relief if it is filed before the appellate court has issued its
mandate. Regan v. ITT Industrial Credit Co., 469 So.2d 1387, 1390 (Fla. 1st
DCA 1984).
Legal Argument
I. The rules do not allow for entry of an order which deprives the Respondent
of the rights afforded by the rules concerning motions for rehearing, and
22. Florida Rule of Appellate Procedure 9.330(a) provides that a motion for
rehearing may be filed within 15 days of an order or within such other time
set by the Court. However, Rule 9.330 does not authorize the Court to
eliminate the right to file a motion for rehearing except pursuant to Rule
motion for rehearing is filed, then the order shall not be deemed rendered
until such motion is resolved. Furthermore, Rule 9.020(i) does not authorize
24. "All rules prescribed for court procedure are binding on the court and
its clerk as well as on litigants and their counsel." Esch v. Forster, 127
25. However, the Clerk of this Court entered an order on July 12,2007 which
provided that a motion for rehearing shall not delay the effective date of this
order even though no such relief was requested by the Florida Bar.
26. As the applicable rules do not allow for entry of an order which deprives the
rehearing and as the Flarida Bar did not even seek such relief, the order
11. The Clerk of this Court failed to serve the order disbarring the
Respondent as required by the rules and the dictates of due process, and
all documents filed under these rules either before or immediately aRer
filing.
28. "All rules prescribed for court procedure are binding on the court and
its clerk as well as on litigants and their counsel." Esch v. Forster, 127
29. Notice is an essential element necessary for the enforcement of any order,
and proof of service is critical. Suggs v. State, 795 So.2d 1028, 1030 (Fla.
2d DCA 2001).
30. When a judgment or order has not been timely served, it should be vacated
so that the prejudiced party is not deprived of rights afforded by the rules of
procedure and procedural due process. See, e.g., Gibson v. Buice, 381 So.2d
349,350-35 1 (Fla. 5th DCA 1980) citing Rogers v. First National Bank at
process has been clear: 'Parties whose rights are to be affected are
entitled to be heard; and in order that they may enjoy that right they
See Windsor v. McVeigh, 93 U.S. 274,23 L.Ed. 914; Hovey v. Elliott, 167
U.S. 409, 17 S.Ct. 841,42 L.Ed. 215; Grannis v. Oredean, 234 U.S. 385,34
S.Ct 779,58 L.Ed. 1363. It is eyually fundamental that the right to
32. To date the Respondent still has not received a copy of the order entered by
the Clerk of this Court on July 12,2007 indicating that the Respondent is
permanently disbarred.
33. In addition, the Florida Bar's letter dated July 19,2007 did not contain a
appears that the member of the Clerk's office who was responsible for
mailing copies of the orders entered on July 12,2007 also failed to include
this order when mailing the orders entered on July 12,2007 to counsel for
the Florida Bar. The Florida Bar's letter and its enclosures are attached as
Appendix A.
34. As the Clerk failed to serve a copy of the order entered on July 12,2007
apparently to the Florida Bar, the Respondent did not receive timely notice
of such order and was deprived of his right to file a timely motion for
rehearing, and therefore, the order disbarring the Respondent violates due
process and should be vacated. Furthermore, as the Respondent still has not
been served with a copy of the order disbarring him, such order should not
be enforced.
111. As this Court did not require preparation of an index to the record as
required by the rules and as the record is not complete, the Respondent has
been deprived of due process, and therefore, the order disbarring the
35. Florida Rule of Appellate Procedure 9.200 requires an index to the record to
36. Florida Rule of Appellate Procedure 9.210(b) requires the parties to cite to
the appropriate page numbers of the record in their briefs; however, without
37. The Respondent's Motion for Clarification of this Court's order entered on
May 14,2007 pointed out that previous orders entered in this action had not
required the Clerk or the Florida Bar to prepare an index to the record which
pointed out that the order entered on May 16,2006 denied the Respondent's
Furthermore, this motion pointed out that unless this Court granted the
preparing a proper brief and will have deprived the Respondent of due
process.
38. Moreover, Florida Rule of Appellate Procedure 9.200(fi(2) states, "If the
court finds the record is incomplete, it shall direct a party to supply the
merits.. ..*,
39. Rule 3-7.6(n)(2) of the Rules Regulating the Florida Bar states, "The record
shall include all items properly filed in the cause including pleadings,
referee."
40. Due process requires a complete record on appeal. See, e.g., Thomas v.
State, 828 So.2d 456,457 (Fla. 4th DCA 2002) and Berube v. State, 771
Scarp, 366 So.2d 402,404 (Fla. 1978). (Emphasis added.) "This Court
42. "All rules prescribed for court procedure are binding on the court and
its clerk as well as on litigants and their counsel." Esch v. Forster, 127
So. 336,336 (Fla. 1930). (Emphasis added.) "The burden of proving that
observance of the rules of practice has been waived is upon the party
43. "A duty evolves upon the attorneys for both appellant and appellee to see to
it that a record is sent here which can be used with a minimum of time loss."
44. The record shows that several of the exhibits submitted by the Respondent to
the referee are not included in the case file and that for some period of time
much of the record was stored in the Court's sub-basement rather than being
"The Supreme Court of Florida shall review all reports and judgments of
decision, and such review would have shown that the record is incomplete.
46. As no index to the record was prepared as required by the Rule 9.200, the
47. As the Clerk of this Court entered orders denying the Respondent's
48. As no index to the record was prepared as required by the Rule 9.200 and as
the Clerk of this Court failed to store the record transmitted to this Court by
the referee in the case file, the Respondent did not learn that the referee had
reviewed the case file on July 27,2007, and therefore, the Court did not have
an opportunity to review the complete case file as required by Rule 3-
49. Due to the foregoing, the Respondent was deprived of due process, and
brief after his motions were denied on July 12,2007, the order disbarring the
motion shall toll the time schedule of any proceeding until disposition of the
Court has held that "The rule is clear on its face that it suspends the time
schedule of any and all proceedings irrespective of the movant." St. Paul
Fire & Marine Ins. Co. v. Indemnity Ins. Co. of North America, 675 So.2d
52. "For more than a century the central meaning of procedural due
process has been clear: 'Parties whose rights are to be affected are
entitled to be heard; and in order that they may enjoy that right they
U.S. 409, 17 S.Ct. 841,42 L.Ed. 2 15; Grannis v. Oredean, 234 U.S. 385,34
53. On July, 12,2007, the Clerk of this Court issued an order denying the
an order denying the Respondent's Motion to Toll Time to File Brief, and an
Respondent has since learned that the Clerk also entered an order disbarring
54. However, pursuant to Rule 9.300(d), the time period for filing a brief should
opportunity to respond or file a brief after the orders were entered denying
55. As the Respondent was deprived of any opportunity to respond after entry of
the orders denying his motions on July 12,2007 and before entry of an order
disbarring the Respondent on that same date, the Respondent was deprived
of due process by such action, and therefore, the order disbarring the
V. As the order disbarring the Respondent was entered by the Clerk of this
Court without any indication that it was supported by at least four Justices, it
should be vacated.
56. The pertinent part of Article V, § 3(a) of the Florida Constitution states,
57. However, the orders entered by the Clerk of this Court on July 12,2007 do
appears that such decisions were not only contrary to the applicable rules but
~onstitution.'
58. As the names of the Justices who may have authorized the Clerk of this
Court to enter the orders on July 12,2007 are not shown on the record and as
The Respondent previously requested to see the Justices' authorizations for other
orders entered in this proceeding pursuant to Florida's public records laws, but the
Clerk of the Court refised to provide access to such documents. The Clerk of the
Second District Court of Appeal of Florida has also unlawfully issued orders
concerning the Respondent contrary to the judges' directions, without
authorization by the required number of judges, and without any authorization as
shown by the exhibits filed in this action before the referee.
the Clerk has refused to disclose such Justices' names, if any, the orders
the Florida Constitution, and therefore, the order disbarring the Respondent
should be vacated.
VI. As the foregoing shows that this Court should enter an order vacating the
order staying the enforcement of such order pending the resolution of this
motion in order to avoid irreparable harm to the Respondent and his clients.
59. Notice is an essential element necessary for the enforcement of any order,
and proof of service is critical. Snrggs v. State, 795 So.2d 1028, 1030 (Fla.
2d DCA 2001).
60. When a judgment or order has not been timely served, it should be vacated
so that the prejudiced party is not deprived of rights afforded by the rules of
procedure and procedural due process. See, e.g., Gibson v. Buice, 381 So.2d
349, 350-351 (Fla. 5th DCA 1980) citing Rogers v. First National Bank at
61. "For more than a century the central meaning of procedural due
process has been clear: 'Parties whose rights are to be affected are
entitled to be heard; and in order that they may enjoy that right they
U.S. 409, 17 S.Ct. 841,42 L.Ed 215; Grannis v. Oredean, 234 U.S. 385,34
S.Ct. 779,58 L.Ed. 1363. It is equally fbndarnental that the right to notice
62. "We have emphasized time and again that "[tlhe touchstone of due process
63. The Respondent and his clients will suffer extreme prejudice and irreparable
64. The Florida Bar would not suffer any prejudice if this motion is granted.
65. As the foregoing shows that this Court should enter an order vacating the
order disbarring the Respondent and that such order should not be enforced,
such order pending the resolution of this motion in order to avoid irreparable
pending the Court's resolution of this motion, issue an order vacating the order
entered on July 12,2007 disbarring the Respondent, and issue an order granting the
Respondent a reasonable time of at least twenty days in which to file his brief,
allowing the Respondent to supplement the record, allowing the Respondent to file
a brief referring to the documents filed in this action, and allowing the Respondent
to include an appendix with key documents necessary for this Court's review of
Under penalties of perjury, I declare that I have read the foregoing motion
and the facts stated in it are true.
P '_-'
Mark A. Adams, Esquire Date
Fla. Bar No. 0193178
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy hereof has been served by U.S. Maii to
Jodi A. Thompson, Assistant Staff Counsel for the Florida Bar at 5521 W. Spruce
Street, Suite C49; Tampa, FI, 33607 and to Staff Counsel for the Florida Bar at 651
.,
Mark A. Adams, Esquire
Fla. Bar No. 0193 178
CERTIFICATE OF COMPLIANCE
il
Mark A. Adams, Esquire
Fla. Bar No. 0193 178
P.O. Box 1078
Valrico, FL 33595
Telephone: 813-654-1235
Appendix A
July 19,2007
Pursuant to the order of the Supreme Court of Florida dated July 12, 2007, you were permanently
disbarred effective August 13,2007. The filing of a motion for rehearing does not alter the effective
date of the disbarment. The court's order also assessed costs in the amount of $8,948.32. Your costs
are due in this oflice no later than August 27, 2007. A Failure to Pay Notice providing important
information relating to cost assessments is enclosed.
You must follow the provis~onsof Rule 3-5.l(g). A copy of the order must be provided to your
clients, opposing counsel, and certain courts, and you must provide an affidavit to us verifying that
this has been done. A form affidavit is enclosed. The executed affidavit must be provided to this
office within 30 days of the court's order. If you had no clients or pending matters at the time the
order was served in this case. the affidavit should so state. Should you accept employment with a
Florida lawyer or law firm, additional requirements apply. Please see Rule 3-6.1 in this respect. In
order to avoid an appearance of being a lawyer in good standing, you must eliminate all m d ~ c ~ofa
attorney status (telephone listings, stationery, checks, business cards, office signs, etc.).
Adam A. Stetson, Paralegal, will he your contact person at The Florida Bar for issues relating to your
compliance with the court's order. Mr. Stetson may be contacted at (850) 561-5774 should there he
any questions regarding this matter.
Sincerely,
'The Supreme Court of Florida has entered an order assessing costs, fees, imposing fee arbitration
and/or restitution obligations. The requirements of this order create certain obligations of which
you should be aware.
Making Payment
Please send your check or money order made payable to "The Florida Bar" to the attention of
Adam A. Stetson, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300.
Please place The Florida Bar file number on the check so we may extend proper credit for the
payment.
You may also make payment of fees and/or costs with your credit card (Visa and Mastercard
only) by submitting the enclosed credit c a d form. The entire balance must be paid; no partial
payment will he accepted.
Delinquent Costs
Discipli~~ary costs are deemed delinquent unless they are paid within 30 days after the
disciplinary order becomes final. Usually, that is forty-five (45) days after the date of the court
order. The time for payment may be extended by The Board of Governors (hereafter the Board)
for good cause shown. In order for the Board to approve an extension of time a payment plan
must be requested and certain financial information disclosed. Ordinarily payment plans are not
approved unless extreme financial hardship is proven through financial affidavits that include a
statement of assets and liabilities.
Delinquent Fees
Fees are deemed delinquent unless they are paid within 90 days after the court's order becomes
final. The time for payment may be extended by The Board of Governors (hereafter the Board)
for good cause shown.
Fee arbitration award(s) are deemed delinquent unless they are paid within 90 days after the
recommendation becomes final. The time for payment may be extended by the Board for good
cause shown.
Delinquent Restitution
Restitution is deemed delinquent unless it is made within the time Frame and in thc manner
provided by the court in the order or the opinio~iimposing the obligation. As in the case of costs,
the time for making restitution may be extended by the Board for good cause shown. The same
disclosure and the same procedures for obtaining the Board's approval of an extension of time
for making restitution apply as in a request for extension of time in which to make payment for
disciplinary costs,
Effect of Delinquency
If fees, costs or restitution become delinquent, you will be deemed a delinquent member of The
Florida Bar and as such will not be entitled to practice law in Florida until such time as the
delinquency is cured. Cure of the delinquency will include milking payment of all required
obligations, providing proof of payment, and filing a petition for removal of delinquency status.
'Thereafter the petition will be reviewed and, if appropriate, the delinquency will be removed.
Any member who remains delinquent for a period of five years or longer will lose bar
membership. A member whose membership has lapsed may return to the practice of law in
Florida only through application to the Florida Board of Bar Examiners, which will include
taking and passing the bar examination and successful completion of the character and fitness
evaluation.
If costs become delinquent as described above The Florida Bar may record the order as a
judgment in the appropriate public records. The judgment will remain on those records until a
satisfaction is recorded upon payment of costs and accrued interest.
Maintaining Contact
There may be important information that we need to communicate to you after the court order
becomes final. For this reason, it is important for you to maintain an accurate mailing address,
telephone number and other contact information even during the terms of a suspension. In fact,
The Rules Regulating The Florida Bar mandate that all members of The Florida Bar keep current
contact information on file.
If you have any questions about these issues please feel kee to contact Adam A. Stetson by
telephone at (800) 342-8060, ext. 5774
The Florida Bar
Lawyer Regulation - Headquarters Office
Authorization for Payment by Credit Card
Naine
Bar Number
Address
City State Zip
Phone
Fax
E-mail
I hereby authorize The Florida Bar to charge $ to the credit card listed
above.
Signature Date
Please submit this form to Adam A. Stetson at The Florida Bar, 65 1 East Jefferson
Street, Tallahassee, Florida 32399. If you have any questions, please contact Mr.
Stctson at (850) 561-5774 or at [email protected].
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FOR OFFICE USE ONLY
TEKNO. AM~UNT
22102 9
31402 -- $
22103 $
ENHANCE $
44002 $
400L $
4402 $ 1
STATE OF FLORIDA
COUNTY OF
AFFIDAVIT
This affidavit is submitted pursuant to Rule 3-5.l(g) of the Rules of Discipline in conjunction
with the decision in The Florida Bar v. Mark A. Adarns, SC-051149; The Florida Bar File No.
2004-10,132(6A).
-2.a. I have furnished a copy of the court order to all my clients with matters pending
when the court's order was served on me; and
b. to all opposing counsel or co-counsel in the matters listed in 2a. above; and
d. The names and addresses of all persons and entities that have been hmished with
such notification are indicated on the attached list (Exhibit A), and such is a
complete listing of all persons and entities notified pursuant to this rule.
Notary Public