Third DCA issues rule to show cause against APD and appellate counsel

The facts are a classic professional responsibility or CivPro fact pattern. APD and M.B. reached a settlement. APD’s trial counsel courteously agreed to have the hearing taken off calendar, but through some snafu the hearing officer entered a default against M.B. The APD trial counsel acknowledged that this was an error and tried to fix it, but the statewide APD office decided to take advantage of the mistake and objected to a withdrawal of the default. Predictably, the Third DCA is not happy:

On appeal, the Agency reverses its position [that the order of dismissal was entered in error]. Represented by new counsel, the Agency now argues for affirmance for two reasons: (1) M .B. failed to file objections to the recommended order of dismissal; and (2) the dismissal was proper because M.B. failed to advise the hearing officer the case had been resolved. The Agency’s first argument can only be described as absurd. The Final Order of Dismissal was issued one day after the Recommended Order. The Agency’s second argument directly conflicts with the position taken by Agency counsel below. It is painfully obvious from the correspondence between Sippio–Smith and Warwick below that Sippio–Smith conceded the Final Order was entered in error.

We summarily enforce the Agency’s original agreement and order the Agency’s appellate counsel of record and the Agency itself, through separate counsel, to show cause within ten days why each should not be sanctioned pursuant to Florida Rule of Appellate Procedure 9.410(a) for the maintenance of a frivolous defense to this appeal.

M.B. v. Agency for Persons with Disabilities, — So.3d —- (Fla. 3rd DCA 2013) (emphasis in original, paragraph order reversed).

This is the second reversal of an APD decision this year. The first is here. Both involved APD’s statewide office’s intermeddling in the fair hearing process. I will not go so far as to say that statewide APD is attempting to deny claims at any costs legal, ethical, or otherwise, because I have seen good outcomes from APD as well. But it only takes two points to make a line–and APD should begin worrying about where this line is taking them. 


Leave a Reply

Your email address will not be published. Required fields are marked *