IN THE SUPREME COURT OF FLORIDA

THE FLORIDA BAR, Case No.: SC05-1149

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

MARK A. ADAMS,

Respondent. /

RESPONDENT'S VERIFIED
THIRD MOTION TO CORRECT THE DOCKET AND EMERGENCY
MOTION TO GRANT RELIEF REQUESTED IN THE RESPONDENT'S
VERIFIED MOTION TO VACATE ORDER ENTERED ON JULY 12,2007
DISBARRING THE RESPONDENT WHICH HGS NOT BEEN TIMELY
OPPOSED BY THE FLORIDA BAR

COMES NOW, the Respondent, MARK A. ADAMS, Esquire and files the

Respondent's Verified Third Motion to Correct the Docket and Emergency Motion

to Grant Relief Requested in the Respondent's Verified Motion to Vacate Order

Entered on July 12,2007 Disbarring the Respondent Which Has Not Been Timely

Opposed by the Florida Bar showing:

1. Rule 3-7.7 of the Rules Regulating the Florida Bar provides the procedure

for review of reports and judgments entered by a referee in disciplinary

proceedings.

2. Pursuant to Rule 3-7.7(f), the Florida Rules of Appellate Procedure apply to

petitions for review of disciplinary proceedings before the Supreme Court of

 Florida, and the Rules Regulating the Florida Bar do not provide that Florida

Rules of Appellate Procedure 9.300 or 9.330 do not apply in disciplinary

proceedings nor do the Bar Rules contain provisions which modify these

Appellate Rules which are applicable to this motion.

3. Florida Rule of Appellate Procedure 9.330(a) provides that a motion for

rehearing may be filed within 15 days of an order, and the pertinent part of

Rule 9.330(a) states, "A motion for rehearing shall state with particularity

the points of law or fact that, in the opinion of the movant, the court has

overlooked or misapprehended in its decision.. .."

4. On July, 12,2007, the Clerk of this Court issued an order denying the

Respondent's Motion for Clarification of this Court's Order entered on May

14,2007, an order denying the Respondent's Motion to Correct the Docket,

an order denying the Respondent's Motion to Toll Time to File Brief, and an

order dismissing the Respondent's Petition for Review, and the Clerk of this

Court served these four orders to the Respondent via U.S. Mail. No other

order entered on July 12,2007 was served to the Respondent by the Clerk of

this Court or received by the Respondent.

5. On July 27,2007, the Respondent traveled for over ten hours to file the

Respondent's Motion for Rehearing of Order Entered on July 12,2007

Dismissing the Respondent's Petition for Review, the Respondent's Second

 Motion to Correct the Docket, and the Respondent's Motion to Toll Time to

File Brief and to review the case file.

6. When the Respondent reviewed the case file on July 27,2007, he learned

that the Clerk of this Court had entered a fifth order on July 12,2007 which

indicated that the Respondent was permanently disbarred and which

provided that a motion for rehearing shall not delay the effective date of this

order.' This order was only signed by the Clerk of this Court and the

Deputy Clerk refksed to provide any document showing that this order was

authorized by the required number of Justices or the names of the Justices

who authorized this order.

7. On July 27,2007, the Respondent also learned that the documents which had

been stored in the sub-basement had been put back together with the file,

although it was not clear when such action was taken, but most importantly,

the Respondent learned that a number of exhibits which he submitted to the

referee, Gregory P. Holder, were missing from the file and also not

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

Respondent's e ~ h i b i t s . ~

8. If the Respondent had been served with the order indicating that he was

permanently disbarred, he would have filed a timely motion for rehearing

pointing out the points of law, the rules of procedure, and the facts that this

Court had overlooked in reaching its decision in addition to the other

motions which he filed on July 27,2007.

9. To date the Respondent still has not received a copy of the order entered by

the Clerk of this Court on July 12,2007 indicating that the Respondent is

permanently disbarred and that a motion for rehearing shall not delay the

effective date of this order.

10. However, as the Respondent was not served with a copy of the order entered

by the Clerk of this Court on July 12,2007 indicating that the Respondent

was permanently disbarred and did not learn that such order had been

entered until he reviewed the case file on July, 27,2007, the Respondent did

not have an opportunity to file a timely motion for rehearing of such order.

*Ifthe Justices had reviewed the transcripts of the proceedings before the referee as
required by Rule 3-7.7(a)(2), they would have surely noticed the fact that several
of the exhibits submitted to the referee by the Respondent were missing from the
case file, that the referee's decision is erroneous, unlawfi.d, and unjustified, and
that the referee should have granted the Respondent's motion to dismiss this case.
11. As a result, on August 9,2007, the Respondent served and filed the

Respondent's Verified Motion to Vacate Order Entered on July 12,2007

Disbarring the Respondent (hereinafter referred to as the Respondent's

Motion to Vacate) which is incorporated herein by reference.

12. The Respondent's Motion to Vacate pointed out that as the Clerk failed to

serve a copy of the order entered on July 12,2007 permanently disbarring

the Respondent to the Respondent and also apparently to the Florida Bar, the

Respondent did not receive timely notice of such order and was deprived of

his right to file a timely motion for rehearing, and therefore, the order

disbarring the Respondent violates due process and should be vacated.

13. In addition, the Respondent's Motion to Vacate pointed out that as the

Respondent was deprived of any opportunity to respond after entry of the

orders denying his motions on July 12,2007 and before entry of an order

disbarring the Respondent on that same date, the Respondent was deprived

of due process by such action, and therefore, the order disbarring the

Respondent should be vacated.

14. Furthermore, the Respondent's Motion to Vacate pointed out that as the

names of the Justices who may have authorized the Clerk of this Court to

enter the orders on July 12,2007 are not shown on the record and as the

Clerk has refused to disclose such Justices' names, if any, the orders entered
 on July 12,2007 appear on their face to violate Article V, 3(a) of the

Florida Constitution, and therefore, the order disbarring the Respondent

should be ~ a c a t e d . ~

15. Finally, the Respondent's Motion to Vacate pointed out that as the foregoing

shows that this Court should enter an order vacating the order disbarring the

Respondent and that such order should not be enforced, this Court should

immediately issue an order staying the enforcement of such order pending

the resolution of the Respondent's Motion to Vacate in order to avoid

irreparable harm to the Respondent and his clients.

16. Therefore, the Respondent's Motion to Vacate clearly and specifically

showed why the order entered by the Clerk of this Court on July 12,2007

disbarring the Respondent should be vacated instead of showing all of the

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

purportedly authorized by at least four unnamed ~ustices.~

17. This Court's online docket shows that no order has been entered in this case

since July 12,2007.

18. However, after the Respondent's Motion to Vacate was filed on August 9,

2007, the Clerk or a deputy clerk made an entry on this court's online docket

designating such motion as a motion for rehearing and stating that it was

filed 9 days late without an order being entered purporting to authorize such

designation or such rni~statement.~

19. The Respondent believes that this entry on the Court's online docket may

cause the Justices to simply deny the Respondent's Motion to Vacate as

being an untimely motion for rehearing without reviewing and considering

the substance of it.

20. Therefore, the unauthorized and erroneous information entered on this

Court's online docket stating that the Respondent's Motion to Vacate is a

motion for rehearing which was filed late should be immediately removed

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

Respondent's reputation and right to a fair and just decision in this action.

2 1. Furthermore, this Court's online docket shows that the Florida Bar has not

filed any response to any of the motions filed by the Respondent since June

21,2006.~ (Emphasis added.)

22. Also, the Respondent has not been served with any response by the Florida

Bar to any of the Respondent's motions since the responses the Florida Bar

served and filed in June of 2006.

23. The pertinent part of Florida Rule of Appellate Procedure 9.300(a) states, "A

party may serve 1 response to a motion within 10 days of service of the

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

1- 1.13(b) of the Rules Regulating the Florida Bar, an additional five ( 5 ) days

shall be added to the prescribed time period when a document is served via

mail. Therefore, if the Florida Bar could have contradicted the Respondent's

Motion to Vacate which was filed and served on August 9,2007, the Florida

Bar should have served its response by August 24,2007.

24. When a judgment or order has not been timely served, it should be vacated

so that the prejudiced party is not deprived of rights afforded by the rules of

procedure and procedural due process. See, e.g., Gibson v. Buice, 38 1 So.2d

It appears that the Florida Bar could not think of any basis to contest them.
 349,350-35 1 (Fla. 5th DCA 1980) citing Rogers v. First Nafional Bank at

Winter Park, 232 So.2d 377,378 (Fla. 1970).

25. When the court fails to mail a copy of a judgment to a party, it should be

vacated when such party files a motion to vacate it showing that counsel for

that party did not receive a copy of the judgment from the court, and the

failure to grant a motion to vacate under such circumstances is an abuse of

discretion. Id.

26. When the opposing party has not filed any verified response contradicting a

motion to vacate a judgment which was not served to counsel for the moving

party, the court should grant the motion and vacate such order. Spanish

Oaks Condominium Ass'n, Inc., v. Compson ofFlorida, Inc., 453 So.2d 838

(Fla. 4th DCA 1984).

27. As the Florida Bar has not opposed any motion filed by the Respondent

since June of 2006 and as the Florida Bar has not filed or served any

response to the Respondent's Verified Motion to Vacate Order Entered on

July 12,2007 Disbarring the Respondent, the dictates of due process require

this Court to grant the Respondent's Motion to Vacate such order.

28. The Respondent's Motion to Vacate requested that this Court issue an

emergency order staying enforcement of the order disbarring the Respondent

pending the Court's resolution of such motion, issue an order vacating the
 order entered on July 12,2007 disbarring the Respondent, and issue an order

granting the Respondent a reasonable time of at least twenty days in which

to file his brief, allowing the Respondent to supplement the record, allowing

the Respondent to file a brief referring to the documents filed in this action,

and allowing the Respondent to include an appendix with key documents

necessary for this Court's review of this disciplinary proceeding.

29. The foregoing shows that the Respondent has been deprived of due process

by the Clerk's entry of the order disbarring the Respondent on July 12,2007,

and the Respondent has not been able to provide legal service to his clients

or accept new clients since A u s s t 11,2007 pursuant to such order. As a

result, the Respondent and his clients have suffered severe prejudice and will

continue to suffer damages until this Court vacates such order and allows the

Respondent a reasonable time in which to supplement the record and file a

brief in support of his petition for review in accordance with the rules and

precedent.

30. Apparently, the Florida Bar will not suffer any prejudice if this Court grants

the relief requested by the Respondent; otherwise, the Florida Bar would

have filed a response trying to contradict the relief requested in the

Respondent's Motion to Vacate.

WHEREFORE, the Respondent respectllly requests that this Court issue

an order correcting the docket to show that the Respondent's Motion to Vacate is

not a motion for rehearing of the order entered on July 12,2007 disbarring the

Respondent, issue an order vacating the order entered on July 12,2007 disbarring

the Respondent, and issue an order granting the Respondent a reasonable time of at

least twenty days in which to file his brief, allowing the Kespondent to supplement

the record, allowing the Respondent to file a brief referring to the documents filed

in this action, and allowing the Respondent to include an appendix with key

docwnents necessary for this Court's review of this disciplinary proceeding.

Under penalties of perjury, I declare that I have read the foregoing mulio~z
and the facts stated in it are true.

"
- --- -
Mark A. Adams, Esquire Date
Fla. Bar No. 0193 178

CERTIFICATE OF SERVICE

1WEREBY CERTIFY that a copy hereof has been served by U.S. Mail to

Jodi A. Thompson, Assistant Staff Counsel for the Florida Bar at 5521 W. Spruce

Street, Suite C49; Tampa, FL 33607 and to Staff Counsel for the Florida Bar at 65 1
E. Jefferson Street; Tallahassee, Florida 32399 on this -- 5'
I
-
i-

day of August,

I- -- A

Mark A. Adams, Esquire

Fla. Bar No. 0193178

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this document complies with the requirements of

Florida Rule of Appellate Procedure 9.21 O(a)(2).

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