Third District Court of Appeal
State of Florida
Opinion filed January 26, 2022.
_______________
No. 3D20-1712
Lower Tribunal No. 16-14544
________________
Azran Miami 2, LLC,
Appellant,
vs.
US Bank Trust, N.A., etc.,
Appellee.
An Appeal from non-final orders from the Circuit Court for Miami-Dade
County, Pedro P. Echarte, Jr., Judge.
Jacobs Legal PLLC, and Bruce Jacobs, for appellant.
Locke Lord LLP, and Steven J. Brotman (West Palm Beach), for
appellee.
Before EMAS, GORDO and LOBREE, JJ. 1
1
Judge Gordo did not serve on the panel that issued the opinion in this case,
and has replaced Judge Miller, who did serve on the panel that issued the
opinion in this case. Following the issuance of our opinion, Mr. Jacobs filed
a motion which cites to, quotes from, and relies upon a 2018 lower court
order in an unrelated case in which then-Circuit Court Judge Miller was the
presiding judge. Mr. Jacobs’ reliance on that order as ostensible support for
his post-opinion motion in this case is even more puzzling given the fact that,
PER CURIAM.
On Motion to Certify Conflict, Request for Written Opinion, Motion
for Rehearing, and/or Motion for Rehearing En Banc
The motion of appellant, Azran Miami 2, LLC, filed by Bruce Jacobs,
Esq. and entitled Motion to Certify Conflict, Request for Written Opinion,
Motion for Rehearing, and/or Motion for Rehearing En Banc, together with
the twelve separately filed appendices (totaling nearly 3500 pages), filed by
Mr. Jacobs in support of said motion, are stricken because they violate the
Florida Rules of Appellate Procedure and the Rules Regulating the Florida
Bar, as more fully detailed below.
ORDER TO SHOW CAUSE
Further, this court on its own motion and pursuant to Florida Rule of
Appellate Procedure 9.410(a), finds there is a reasonable basis to conclude
that the Motion to Certify Conflict, Request for Written Opinion, Motion for
Rehearing, and/or Motion for Rehearing En Banc (“Mr. Jacobs’ Motion”), and
twelve days after issuing the 2018 order, Judge Miller vacated it, rendering
it a legal nullity. Mr. Jacobs’ post-opinion motion implies a derisive and
unsupported basis for Judge Miller’s vacatur order, which is addressed in
greater detail, infra at 12-13. In light of Mr. Jacobs’ actions in this regard,
and in an abundance of caution, Judge Miller has recused herself from
further consideration of this cause, including our issuance of the instant order
to show cause.
2
appendices thereto, violate the Rules of Appellate Procedure in the following
manner:
1. Mr. Jacobs filed twelve separate appendices, totaling 3,469 pages
(unpaginated and unindexed), comprised of documents that are outside
the record on appeal, regarding events or proceedings occurring after Mr.
Jacobs filed his notice of appeal in this cause, 2 and are otherwise
unrelated to the instant appeal. Mr. Jacobs failed to seek leave of court
before filing these documents, and it appears there would have been no
proper basis for granting leave had it been sought. See, e.g., Konoski v.
Shekarkhar,
146 So. 3d 89 (Fla. 3d DCA 2014) (striking appellee’s
appendix, which contained documents outside the record, noting that
appellee did not seek leave to file such extra-record documents, and
admonishing counsel for filing the unauthorized appendix); Rosenberg v.
Rosenberg,
511 So. 2d 593, 595 n. 3 (Fla. 3d DCA 1987) (noting: “It is
entirely inappropriate and subjects the movant to possible sanctions to
inject matters in the appellate proceedings which were not before the trial
court”); Pedroni v. Pedroni,
788 So. 2d 1138 (Fla. 5th DCA 2001) (same);
2
In fact, most of the documents contained in the appendices were not even
created (or the events to which they relate did not even take place) until after
the briefing in this appeal had been completed and the appeal perfected.
3
Swyers v. State,
483 So. 2d 520, 521 (Fla. 4th DCA 1986) (observing:
“The law is clear that matters outside the record may not be made the
subject of a motion for rehearing”); Altchiler v. Dep’t of Prof’l Reg.,
442
So. 2d 349, 350 (Fla. 1st DCA 1983) (holding: “When a party includes in
an appendix material or matters outside the record, or refers to such
material or matters in its brief, it is proper for the court to strike the same.
That an appellate court may not consider matters outside the record is so
elemental that there is no excuse for any attorney to attempt to bring such
matters before the court”) (citations omitted).
2. Mr. Jacobs violated Florida Rule of Appellate Procedure 9.330(a), which
provides: “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 order or decision. The motion shall not present
issues not previously raised in the proceeding.” See also Rule 9.330,
2000 amend. comm. note (providing that a motion for rehearing “should
be utilized to bring to the attention of the court points of law or fact that it
has overlooked or misapprehended in its decision, not to express mere
disagreement with its resolution of the issues on appeal”); Sherwood v.
State,
111 So. 2d 96 (Fla. 3d DCA 1959) (holding motion for rehearing
may not be used as a means to reargue points involved in the case or to
4
raise other or different grounds than those previously relied on in the
appeal); Ayala v. Gonzalez,
984 So. 2d 523, 526 (Fla. 5th DCA 2008)
(issuing show cause order and holding that a motion for rehearing in an
appellate court is not “an open invitation for an unhappy litigant or attorney
to reargue the same points previously presented, or to discuss the
bottomless depth of the displeasure that one might feel toward this judicial
body as a result of having unsuccessfully sought appellate relief”). Mr.
Jacobs has violated Rule 9.330(a), and the case law applying that rule,
by alleging in his Motion:
a. The trial court denied Mr. Jacobs’ motion to vacate an earlier
judgment “in deference to shadow rulings of this Court.” Mr.
Jacobs’ Motion at 2.
b. This Court has created a “shadow body of law that allows banks
to commit fraud.” Mr. Jacobs’ Motion at 2.
c. “The panel decision is already being paraded about by attorneys
engaged in this systemic fraud as controlling law that grants a
privilege to commit systemic fraud when it states no facts.” Mr.
Jacobs’ Motion at 4.
5
d. “[T]he panel ruling perpetuates a shadow law that banks are
above the constitution and can commit fraud with impunity.” Mr.
Jacobs’ Motion at 10.
e. This court’s issuance of a citation per curiam affirmed opinion in
this case constitutes “an abuse of judicial power, an act of judicial
tyranny perpetrated with disregard of procedural requirements,
resulting in a gross miscarriage of justice.”3 Mr. Jacobs’ Motion
at 24.
3. Mr. Jacobs takes one or more frivolous positions, or makes one or
more arguments in bad faith, in violation of Florida Rule of Appellate
Procedure 9.410(a) (providing that the court “may impose sanctions for
3
While Mr. Jacobs quoted language from Jones v. State,
477 So. 2d 566
(Fla. 1985), he takes it out of context and uses it in a misleading way and for
a derogatory purpose. Jones had nothing to do with the characterization of
a per curiam affirmed opinion. Instead, the quote is taken from a concurring
opinion in Jones that addressed the requirements for common-law certiorari
and further defined the phrase “departure from the essential requirements of
the law” as meaning “something far beyond legal error. It means an inherent
illegality or irregularity, an abuse of judicial power, an act of judicial tyranny
perpetrated with disregard of procedural requirements, resulting in a gross
miscarriage of justice.”
Id. at 569 (Boyd, C.J., concurring). Mr. Jacobs seizes
upon this description of common-law certiorari, ostensibly using it to justify
his accusation that the very issuance of the citation opinion in the instant
case constitutes “an abuse of judicial power” and “an act of judicial tyranny”
resulting in a “miscarriage of justice.”
6
any violation of these rules, or for the filing of any proceeding, motion,
brief, or other documents that is frivolous or in bad faith”).
One example of the frivolous or bad faith nature of Mr. Jacobs’
Motion (beyond that described elsewhere in this Order) is the basis
offered for seeking this court’s certification, pursuant to rule
9.330(a)(2)(C), that the instant decision expressly and directly conflicts 4
4
In fact, Mr. Jacobs’ Motion contains an extensive quote from a decision of
the Florida Supreme Court that undermines his purported certification of
express and direct conflict. Mr. Jacobs’ Motion claims that the Florida
Supreme Court, in Department of Legal Affairs v. District Court of Appeal,
Fifth District,
434 So. 2d 310 (Fla. 1983) “warned about” the “shadow body
of law” created by per curiam affirmed decisions. Nowhere does the Florida
Supreme Court describe a “shadow body of law” alluded to by Mr. Jacobs,
nor does the Court “warn against” the issuance of per curiam affirmed
decisions. The issue and holding in that case, as framed by the Court, was
“whether a per curiam appellate court decision with no written opinion has
any precedential value. We hold that it does not.”
Id. at 311 (emphasis
added). That holding cannot be reconciled with Mr. Jacobs’ certification that
the citation per curiam affirmance in the instant case “expressly and directly
conflicts with” decisions of other district courts. See also The Florida Star v.
B.J.F.,
530 So. 2d 286, 289 n. 3 (Fla. 1988) (discussing the contours of
conflict jurisdiction, observing “there can be no actual conflict discernible in
an opinion containing only a citation to other case law unless one of the
cases cited as controlling authority is pending before this Court, or has been
reversed on appeal or review, or receded from by this Court, or unless the
citation explicitly notes a contrary holding of another district court or of this
Court.”) (citing Jollie v. State,
405 So. 2d 418, 420 (Fla. 1981)).
Further, the record itself (much less the near 3500 pages of extra-record
appendices filed by Mr. Jacobs in support of his Motion) cannot be used to
establish conflict jurisdiction. Reaves v. State,
485 So. 2d 829, 830 n.3 (Fla.
1986) (“The only facts relevant to our decision to accept or reject such
petitions [based on conflict] are those facts contained within the four corners
7
with three other appellate court decisions. First, Mr. Jacobs’ motion
“certifies” that our decision “expressly and directly conflicts with a decision
of the Second District which held the trial court abused its discretion to
deny leave to plead or prove this same evidence of standing was
fraudulently created,” citing Sorenson v. Bank of New York Mellon as
trustee for Certificate Holders CWALAT, Inc.,
261 So. 3d 660 (Fla. 2d
DCA 2018). However, Sorenson was an appeal from a final judgment of
foreclosure in which defendant raised as error the trial court’s denial of
defendant’s motion to amend his answer and affirmative defenses to add
a fraud defense. Our sister court reversed, holding the trial court abused
its discretion in denying Sorenson the opportunity to amend his affirmative
defenses to include a fraud defense. The court’s holding was premised
upon the well-established legal propositions that: under Florida Rule of
Civil Procedure 1.190, leave of court to amend pleadings shall be given
freely when justice so requires; that this rule represents a public policy
of the decisions allegedly in conflict. . . . Thus, it is pointless and misleading
to include a comprehensive recitation of facts not appearing in the decision
below, with citations to the record, as petitioner provided here. Similarly,
voluminous appendices are normally not relevant”). An inherent or implied
conflict cannot serve as a basis for the Florida Supreme Court's conflict
jurisdiction. Dept. of Health & Rehab. Servs. v. Nat’l Adoption Counseling
Serv., Inc.,
498 So. 2d 888 (Fla. 1986).
8
favoring the liberal amendment of pleadings; and that trial courts should
resolve all doubts in favor of allowing the amendment of pleadings to allow
cases to be decided on their merits.
Id. at 663.
Sorenson, and these entrenched propositions, are inapposite to the
issues raised in the instant appeal from a postjudgment order denying a
motion for relief from judgment under Florida Rule of Civil Procedure
1.540, which we affirmed in a citation per curiam affirmed decision. In his
initial brief in the instant case, Mr. Jacobs asserted the following six
claims:
I. Azran has a Constitutional Guarantee of Due Process
II. Fraud on the Court is NOT Due Process of Law
III. This Honorable Court Should Join the Other State and
Federal Trial and Appellate Courts that Have Called out
Systemic Fraud on the Court in Foreclosures
IV. The Ninth Circuit Holds There is No Litigation Privilege to
Commit Systemic Fraud on the Court
V. Doctrine of Unclean Hands Bars the Equitable Relief of
Foreclosure When the Plaintiff Engaged in Forgery, Perjury
and Violated Florida’s RICO Statute
VI. The Trial Court Erred in Denying the Rule 1.540(b) Motion
Without an Evidentiary Hearing
Sorenson is wholly inapplicable to these asserted claims and cannot
serve as a basis for express and direct conflict with the instant case
9
involving a denial of a motion for relief from judgment under Rule 1.540.
The only aspects shared by this case and Sorenson are that both are
foreclosure cases; both involve Mr. Jacobs as counsel for the defendant;
and both involve an allegation of fraud. Indeed, if the panel decision in
the instant case did somehow expressly and directly conflict with the
Second District’s holding in Sorenson, the panel decision in this case
would also expressly and directly conflict with dozens of decisions of our
own court that stand for the same legal propositions reaffirmed by our
sister court in Sorenson. 5
Mr. Jacobs fares no better with the two remaining cases he cites as
ostensible support for his request that this court certify express and direct
conflict: our sister court’s decision in Schwartz v. Bank of America, N.A.,
267 So. 3d 414 (Fla. 4th DCA 2019) and this court’s own decision in
Barsan v. Trinity Financial Services, LLC,
258 So. 3d 516 (Fla. 3d DCA
2018). Like Sorenson, Schwartz involved an appeal from a final summary
5
See, e.g., DiGiacomo v. Mosquera,
322 So. 3d 734 (Fla. 3d DCA 2021);
Fayad v. Univ. of Miami,
307 So. 3d 114 (Fla. 3d DCA 2020); Pangea
Produce Distribs., Inc. v. Franco's Produce, Inc.,
275 So. 3d 240, 242 (Fla.
3d DCA 2019); JVN Holdings, Inc. v. Am. Constr. & Repairs,
185 So. 3d 599,
601 (Fla. 3d DCA 2016); Off Lease Only, Inc. v. LeJeune Auto Wholesale,
Inc.,
187 So. 3d 868, 871 n. 4 (Fla. 3d DCA 2016); Kay's Custom Drapes,
Inc. v. Garrote,
920 So. 2d 1168, 1171 (Fla. 3d DCA 2006); Downtown Invs.,
Ltd. v. Segall,
551 So. 2d 561 (Fla. 3d DCA 1989).
10
judgment of foreclosure in which Mr. Jacobs represented the defendant
homeowners. On appeal, Mr. Jacobs contended the trial court erred in
granting summary judgment because “discovery was outstanding and
material issues of fact remained on the[] claim of fraud” regarding the
endorsement to the promissory note. Schwartz, 267 So. 3d at 414.
However, the Fourth District affirmed, holding that appellees properly
established standing, that Schwartz failed to timely submit evidence to
rebut the summary judgment motion and that judgment was properly
entered in favor of Bank of America. Id.
Completing the trilogy, our court in Barsan, 258 So. 3d at 516,
issued a citation per curiam affirmed opinion which reads in full:
Affirmed. See § 673.3081(1), Fla. Stat. (2016); Bennett v.
Deutsche Bank Nat. Trust Co.,
124 So. 3d 320, 322 (Fla. 4th
DCA 2013) (noting that the term “presumed” in section
673.3081(1) means that until some evidence is introduced which
would support a finding that the signature is forged or
unauthorized, the plaintiff was not required to prove that it is valid
(citing UCC comment 1 to section 673.3081), and because
defendants failed to make any evidentiary showing to support
their claim that the signer was unauthorized, plaintiff was entitled
to rely on the presumption to obtain summary final judgment).
See also Applegate v. Barnett Bank of Tallahassee,
377 So.2d
1150 (Fla. 1979); Cardona v. Casas,
225 So. 3d 384 (Fla. 3d
DCA 2017): Rodriguez v. Lorenzo,
215 So. 3d 631, 632 (Fla. 3d
DCA 2017) (applying Applegate and noting that, in the absence
of a transcript of the relevant hearing, the reviewing court is
unable to determine whether the trial court abused its discretion).
11
None of the three cases cited by Mr. Jacobs “expressly and directly
conflicts with” the decision in this case and cannot in good faith support the
conflict certification request made pursuant to Florida Rule of Appellate
Procedure 9.330(a)(2)(C).6
As a second example of arguments made, or positions taken,
frivolously or in bad faith, Mr. Jacobs’ Motion quotes from and relies upon—
as ostensible support for his legal position—a 2018 trial court order issued
in an unrelated case (Bank of New York Mellon v. Lisa S. Dulberg de
Morales, Circuit Court Case Number 13-808). That order, dated August
10, 2018, granted a motion to impose sanctions upon Bank of New York
Mellon and Bank of America. However, less than two weeks later, the trial
6
Indeed, because Barsan v. Trinity Fin. Services, LLC,
258 So. 3d 516 (Fla.
3d DCA 2018), was a decision issued by this court, Mr. Jacobs is precluded
from relying upon it as a basis for seeking certification of express and direct
conflict under rule 9.330(a)(2)(C). That rule provides the procedure for a
party to request that the appellate court certify that its decision expressly and
directly conflicts with a decision of another district court of appeal, thereby
providing a jurisdictional basis for discretionary review by the Florida
Supreme Court, as conferred by the Florida Constitution. See Art. V, §
3(b)(3), Fla. Const. (providing that the Florida Supreme Court “may review
any decision of a district court of appeal that . . expressly and directly
conflicts with a decision of another district court of appeal or of the supreme
court on the same question of law.”); Art. V, § 3(b)(4), Fla. Const. (providing
that the Florida Supreme Court “may review any decision of a district court
of appeal that passes upon a question. . . that is certified by it to be in direct
conflict with a decision of another district court of appeal.”) (Emphasis
added).
12
judge vacated that sanctions order, and ultimately denied the motion for
sanctions after holding a subsequent hearing. 7 While it is true that Mr.
Jacobs’ Motion acknowledges that the August 10, 2018 order in that
unrelated case was vacated by the trial court judge, Mr. Jacobs
nevertheless fails to explain why he would quote from a vacated order in
an unrelated case, or how such a vacated order from an unrelated case is
anything more than a legal nullity, much less an order upon which this court
should rely as persuasive authority for some legal proposition advanced by
him. 8
As a final example, the appendix to Mr. Jacobs’ Motion includes an April
15, 2019 order issued by a circuit court judge in the unrelated case of U.S.
Bank v. Raul Zayas, circuit court case number 14-32372. However, on
November 6, 2019, this court quashed that trial court order. U.S. Bank v.
7
Although Mr. Jacobs attaches the original trial court order of August 10,
2018, he fails to attach the August 22, 2018 order vacating the earlier order.
8
While we cannot know the actual motivation for Mr. Jacobs’ inclusion of
portions of this vacated order in his Motion, it is noteworthy that the then-trial
court judge who issued the order (and ten days later vacated it) presently
serves on this court and served on the panel that issued the decision in the
instant appeal. Mr. Jacobs creates a negative implication by alleging in his
Motion that the trial court judge “vacated her sanctions order that called out
willful bad faith by BANA and BONYM just before Governor Rick Scott
elevated her to the Third DCA.” Mr. Jacobs’ Motion at 5-6. Such a frivolous
implication, made without basis, advancing no relevant position and serving
no other apparent purpose but to malign or impugn the integrity of a judge,
appears to violate Rule 4-8.2(a), Rules Regulating the Florida Bar.
13
Zayas,
290 So. 3d 972, 973 (Fla. 3d DCA 2019) (granting the petition for writ
of certiorari, quashing the trial court order and holding “it is a departure from
the essential requirements of law, not remediable on appeal, to subject a
party to a show cause order and sanctions for failing to produce documents
it has not previously been ordered to produce”). The appendix does not
contain this court’s opinion quashing that trial court order, nor does Mr.
Jacobs’ Motion disclose the existence of this court’s subsequent decision
quashing that trial court order.
WHEREFORE, Bruce Jacobs, Esq., Florida Bar Number 116203, of
Jacobs Legal, PLLC, is hereby ordered to show cause within twenty days
from the date of this order why sanctions should not be imposed upon him
for violation of the Rules of Appellate Procedure. As provided by Rule
9.410(a), such sanctions may include reprimand, contempt, striking of briefs
or pleadings, dismissal of proceedings, costs, attorneys’ fees, or other
sanctions.
14
