Third District Court of Appeal
State of Florida
Opinion filed March 16, 2022.
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No. 3D21-1869
Lower Tribunal No. 19-10810
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The Bank of New York Mellon, etc.,
Petitioner,
vs.
Regis Bontoux, et al.,
Respondents.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, Jose
M. Rodriguez, Judge.
Akerman LLP, and Nancy M. Wallace (Tallahassee); Akerman LLP,
and William P. Heller (Fort Lauderdale); Akerman LLP, and Eric M. Levine
(West Palm Beach), for petitioner.
Jacobs Legal, PLLC, and Bruce Jacobs, for respondent Regis
Bontoux.
Before FERNANDEZ, C.J., and GORDO and LOBREE, JJ.
GORDO, J.
On Motion for Rehearing En Banc
The motion of respondent, Regis Bontoux, filed by Bruce Jacobs, Esq.
entitled Motion for Rehearing En Banc, together with the separately filed
appendix, 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 further 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 for Rehearing En Banc (“Mr. Jacobs’ Motion”), and appendix
thereto, violate the Florida Rules of Appellate Procedure and Rules
Regulating the Florida Bar in the following manner:
1. Mr. Jacobs filed an appendix comprised of documents that are outside
the record on review, addressing events or proceedings that occurred after
the trial court entered the order on review, and are otherwise unrelated to
the instant petition. 1 Mr. Jacobs did not seek leave of court to file these
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Two of the documents were never submitted to the trial court, and one was
not created until after the order on review was entered by the trial court. The
appendix raises issues pursuant to Florida Rule of Appellate Procedure
9.220 because the index to the appendix lists documents that are not actually
included and the documents that are included are either mislabeled or
missing from the index. Mr. Jacobs cites to documents in his Motion for
support that are not included in either the index or the appendix itself and
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documents, and it appears there would have been no proper basis for the
court to grant such leave. See, e.g, Konoski v. Shekarkhar,
146 So. 3d 89,
90 (Fla. 3d DCA 2014) (striking appellee’s appendix, which contained
documents outside the record, where the appellee did not seek leave to file
such extra-record documents, and admonishing counsel for filing the
unauthorized appendix); Aspen Air Conditioning, Inc. v. Safeco Ins. Co. of
Am.,
170 So. 3d 892, 897–98 (Fla. 3d DCA 2015) (“These documents were
not in existence at the time of the hearing, and our review is limited to the
record made before the trial court.”); Rosenberg v. Rosenberg,
511 So. 2d
593, 595 n.3 (Fla. 3d DCA 1987) (“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.”); Swyers v. State,
483 So.
2d 520, 521 (Fla. 4th DCA 1986) (“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) (“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
much of his argument contains text from transcripts from cases that were not
a part of the lower court’s record.
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is so elemental that there is no excuse for any attorney to attempt to bring
such matters before the court.”) (citations omitted).
2. In his motion, Mr. Jacobs contends that this case is of exceptional
importance because it deals with a deprivation of a constitutional right.
Florida Rule of Appellate Procedure 9.331(d)(1) which provides that “a party
may move for an en banc rehearing solely on the grounds that the case or
issue is of exceptional importance or that such consideration is necessary to
maintain uniformity in the court’s decisions. A motion on any other ground
shall be stricken.” Fla. R. App. P. 9.331(d)(1). Mr. Jacobs, however, fails to
show how this Court’s opinion quashing a discovery order that failed to
comply with the Florida Rules of Civil Procedure deprived his client of any of
his constitutional rights. Mr. Jacobs’ claim that his client was deprived of due
process because he was not “before a fair and impartial tribunal” is
unsupported and improperly impugns the integrity of this Court. Mr. Jacobs’
Motion at 56, 57 (“[T]he law on rehearing en banc should extend to this
fundamental deprivation of due process by a panel that refuses to honor the
judicial canons, including upholding the law, protecting the constitutional
rights of homeowners, and granting disqualification where there is evidence
of bias that requires disqualification.”). A motion for rehearing is not “an open
invitation for an unhappy litigant or attorney to reargue the same points
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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.” Ayala v. Gonzalez,
984 So. 2d 523,
526 (Fla. 5th DCA 2008); see also Jedak Corp. v. Seabreeze Off. Assocs.,
LLC,
248 So. 3d 242, 244 n.1 (Fla. 5th DCA 2018) (denying a motion for
rehearing where “the motion expressed disagreement with the opinion, [but]
failed to identify any ambiguity necessitating clarification”); Sherwood v.
State,
111 So. 2d 96, 98 (Fla. 3d DCA 1959) (holding that a motion for
rehearing may not be used as a means to reargue points involved in the case
or to raise grounds other than those previously relied on in the appeal).
3. In his motion, Mr. Jacobs takes one or more frivolous positions or makes
one or more arguments in bad faith. Florida Rule of Appellate Procedure
9.140(a) states that a court “may impose sanctions for 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 is the reliance on a vacated, and therefore
legally null, circuit court order. Mr. Jacobs acknowledges that the order is
vacated but fails to adequately explain why he would rely on a vacated order
in an unrelated case or why this Court should rely on it as persuasive
authority. Mr. Jacobs also relies on orders that were reversed by this Court
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without explaining why this Court should rely on them as authority for the
legal propositions advanced by him.
A second example is Mr. Jacobs’ claim that Sorenson v. Bank of New
York Mellon as trustee for Certificate Holders CWALAT, Inc.,
261 So. 3d 660
(Fla. 2d DCA 2018) “carve[s] out” a right for him to “allege the rubberstamped
blank endorsement on his promissory note is a forgery and to conduct
discovery to prove that it is a forgery.” Mr. Jacobs’ Motion at 28. Sorenson
does not create such a right. Sorenson dealt with an appeal of a final
judgment of foreclosure where the defendant alleged that the trial court erred
in denying his motion to amend his answer and add an affirmative defense
of fraud. Our sister court found the trial court had abused its discretion and
reversed because Sorenson, the defendant, should have been given the
opportunity to amend his affirmative defenses pursuant to Florida Rule of
Civil Procedure 1.190. Sorenson, 261 So. 3d at 663. Rule 1.190 states that
leave of court to amend pleadings shall be freely given when justice so
requires. This represents a public policy in favor of allowing liberal
amendments of pleadings in order to allow cases to be decided on their
merits. The holding in Sorenson and its entrenched public policy
propositions is wholly inapplicable to the instant petition. The only aspects
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shared between the instant case and Sorenson are that both are foreclosure
cases, and both have Mr. Jacobs as counsel.
Mr. Jacobs also contends that Bennett v. Deutsche Bank Nat. Tr. Co.,
124 So. 3d 320, 323 (Fla. 4th DCA 2013) holds that section 673.3081(1),
Florida Statutes, “instructs that once an endorsement is challenged as a
forgery, discovery into the endorsement is proper.” Mr. Jacobs’ Motion at
19. Our sister court in Bennett relied on the Uniform Commercial Code
Comment 1 to section 673.3081 which explains that “until some evidence is
introduced which would support a finding that the signature is forged or
unauthorized, the plaintiff is not required to prove that it is valid.” Bennett,
124 So. 3d at 322. “The defendant is therefore required to make some
sufficient showing of the grounds for the denial before the plaintiff is required
to introduce evidence.” Id. Our sister court found that the bank was entitled
to summary judgment on its mortgage foreclosure action because the
defendants failed to make “some evidentiary showing to support their claim.”
Id. at 323. At no point does Bennett give a defendant the right to discovery
simply because they challenge an endorsement by claiming it is a forgery—
it requires an evidentiary showing to support that claim.
4. In his motion, Mr. Jacobs recklessly impugns and disparages the judges
of this Court and certain judges of the circuit court. Rule 4-8.2(a) of the Rules
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Regulating the Florida Bar provides in pertinent part: “A lawyer shall not
make a statement that the lawyer knows to be false or with reckless
disregard as to its truth or falsity concerning the qualifications or integrity of
a judge . . .”. Every lawyer admitted to the Florida Bar has sworn to “maintain
the respect due to courts of justice and judicial officers” and to “abstain from
all offensive personality.” “[E]thical rules that prohibit attorneys from making
statements impugning the integrity of judges are not to protect judges from
unpleasant or unsavory criticism. Rather, such rules are designed to
preserve public confidence in the fairness and impartiality of our system of
justice.” The Florida Bar v. Ray,
797 So. 2d 556, 558–59 (Fla. 2001). “It is
not a part of an attorney’s duties to his clients to use language in his Petition
for Rehearing, or in any other papers filed in this court, that is actually
insulting to the members of the panel which heard the case.” Vandenberghe
v. Poole,
163 So. 2d 51, 51 (Fla. 2d DCA 1964). “Insults or disparaging
comments by lawyers to courts in court filings cannot be justified as zealous
advocacy because they risk alienating the very judges the lawyer was hired
to persuade.” Bank of Am., N.A. v. Atkin,
305 So. 3d 305, 307 (Fla. 3d DCA
2018). “‘Although attorneys play an important role in exposing valid
problems within the judicial system, statements impugning the integrity of a
judge, when made with reckless disregard as to their truth or falsity, erode
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public confidence in the judicial system without assisting to publicize
problems that legitimately deserve attention.’”
Id. (quoting Ray,
797 So. 2d
at 560). Mr. Jacobs recklessly impugns and disparages the judges of this
Court and certain judges of the circuit court, in filing his Motion for Rehearing
En Banc containing the following statements:
• This Court initiated contempt proceedings against Mr. Jacobs,
“[d]espite the clear evidence establishing the truth of these [fraud]
allegations.” Mr. Jacobs’ Motion at 3.
• “The panel judges also showed bias by commenting on motions to
disqualify [Mr. Jacobs] . . .” Mr. Jacobs Motion at 5.
• The panel “initiated contempt proceedings for criticizing the court and
failed to recuse themselves as required . . .” Mr. Jacobs Motion at 5–
6.
• Mr. Jacobs is “a victim of the Third DCA’s abuse of its contempt powers
. . .” Mr. Jacobs’ Motion at 7–8.
• “It is self-evident that . . . [Mr. Jacobs’] clients are not before a fair and
impartial tribunal [as] guaranteed by the constitution.” Mr. Jacobs’
Motion at 8.
• This Court needs to “search its soul.” Mr. Jacobs’ Motion at 8.
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• A named circuit court judge “refused to disqualify herself until she
entered orders that seriously injured the client’s rights and the integrity
of the judicial process.” Mr. Jacobs’ Motion at 31.
• This Court “has taken no action required by the Judicial Canons
against [the named circuit court judge] for [their] gross misconduct.”
Mr. Jacobs’ Motion at 31–32.
• “There is a question whether this Honorable Court is fair and impartial
when it refuses to act against clear misconduct and manufactures
contempt charges against the attorney who has uncovered systemic
fraud . . . . [j]udicial canons and the constitution do not permit such an
abuse of power.” Mr. Jacobs’ Motion at 32.
• This Court’s January 11, 2022, order in Case No. 3D21-1300, directing
Mr. Jacobs to show cause why he should not be subjected to sanctions
for failing to comply with the Rules of Appellate Procedure and
professional norms is an “abuse of power.” Mr. Jacobs’ Motion at 34.
• “The court below violated the clear admonition ‘to avoid any
appearance of vindictiveness if the defendant chooses to exercise
certain rights.’” Mr. Jacobs’ Motion at 36.
• This Court has failed to take appropriate action where it “has ‘received
information’ and has ‘actual knowledge that substantial likelihood
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exists that judges have committed a violation of this Code.’” Mr.
Jacobs’ Motion at 36–37.
• This Court’s attempt to “disbar” Mr. Jacobs “is unconstitutional,
inequitable, and unjust.” Mr. Jacobs’ Motion at 37.
• “[There is a problem] when a court has actual knowledge [a party]
committed felonies and fraud upon the court, [and] decides to attack
the whistleblower attorney who defended against the fraud.” Mr.
Jacobs’ Motion at 42.
• This Court has entered “orders that violate the constitution as Mr.
Jacobs’ African American and Jewish clients believe the court below
has repeatedly done.” Mr. Jacobs’ Motion at 42.
• “[S]ome judges [have a penchant] to blindly accept the self-serving
assertions of financial institutions.” Mr. Jacobs’ Motion at 47.
• “[T]he court below violated the judicial canons, allowed banks and
powerful special interests and their counsel to violate The Florida Bar
Rules with impunity, and knowingly deprived foreclosure defendants of
their Fifth Amendment rights by depriving them of their property without
due process of law.” Mr. Jacobs’ Motion at 51.
• Mr. Jacobs accuses the “JQC not prosecuting judges for serious
misconduct.” Mr. Jacobs’ Motion at 52.
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• “The panel violated the judicial canons and undermined the integrity of
the judiciary.” Mr. Jacobs’ Motion at 54.
• “[T]he panel’s overriding personal bias against [Mr. Jacobs] has
deprived [Bontoux] of a fair and impartial appellate review.” Mr.
Jacobs’ Motion at 56.
• “[T]he panel deprived Mr. Bontoux of the right to due process of law
before a fair and impartial tribunal.” Mr. Jacobs’ Motion at 56.
• This Court’s panel “refuses to honor the judicial canons, including
upholding the law, protecting the constitutional rights of homeowners,
and granting disqualification when there is evidence of bias that
requires disqualification.” Mr. Jacobs’ Motion at 57.
We have sanctioned Mr. Jacobs for similar unprofessional statements
more than once. See Atkin, 305 So. 3d at 307 (“This court finds there is a
reasonable basis to conclude that Mr. Jacobs and Jacobs Legal, PLLC
violated 4-8.2(a).”); Aquasol Condo. Ass’n, Inc. v. HSBC Bank USA, Nat’l
Ass’n,
2018 WL 6344710, at *1 (Fla. 3d DCA Dec. 5, 2018) (“[T]his court
finds that Mr. Jacobs violated Rule 4-8.2(a), Rules Regulating the Florida
Bar, by impugning the qualifications or integrity of the judges of this court
and of the trial court.”). Mr. Jacobs was clearly on notice that such conduct
is violative of the Rules Regulating the Florida Bar and would subject him to
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sanctions. Mr. Jacobs’ has previously claimed that he understands such
commentary is unprofessional and unwarranted, but he nevertheless
continues to utilize such unwarranted commentary rather than assert
competent legal argument. See Bank of Am., N.A. v. Atkin,
271 So. 3d 145,
146 (Fla. 3d DCA 2019) (noting that Mr. Jacobs acknowledged that his
commentary “was unprofessional and unwarranted,” admitted the comments
reflected “inappropriate comments impugning the integrity of the judiciary”
and “assert[ed] that his conduct in this case was an isolated incident”);
Aquasol Condo. Ass’n, Inc. v. HSBC Bank USA, Nat’l Ass’n, 43 Fla. L.
Weekly D2699, D2699 (Fla. 3d DCA Dec. 5, 2018) (stating that Mr. Jacobs
averred “that he ‘fully understands the nature and wrongfulness of his
conduct,’ is ‘deeply remorseful and apologetic to this Court for his actions,’
and is pursuing appropriate corrective measures to ensure this misconduct
is not repeated”).
Further, Mr. Jacobs’ motion does not at any point substantively
address this Court’s opinion on this case or the legal matter at issue. Mr.
Jacobs instead uses his client’s opportunity to file a motion for rehearing to
disparage this Court for issuing a show cause order against him in another
unrelated case and otherwise express “what can best be described as a
desultory diatribe, consisting of personal opinions, reflections and
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experiences which are completely outside the record and entirely irrelevant
to the issues on appeal or the decision of the court.” Aquasol Condo. Ass’n,
Inc. v. HSBC Bank USA, 43 Fla. L. Weekly D2271, D2272 (Fla. 3d DCA Sept.
26, 2018). Mr. Jacobs advances his own personal gratification in his motion
and unprofessionally impugns the integrity of the judges of this Court and the
circuit court, rather than appropriately advocate for his client therefore
unequivocally depriving his client of any meaningful opportunity for
rehearing.
CONCLUSION
WHEREFORE, Bruce Jacobs, Esq., Florida Bar Number 116203, is
hereby ordered to show cause within twenty days from this date why this
court should not impose sanctions for violation of the Florida Rules of
Appellate Procedure and Rules Regulating the Florida Bar. 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.
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