DAVI NAILS SALON AND SPA, L L C v. HAI DO AND HANG DOAN

DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
DAVI NAILS SALON AND SPA, L.L.C.,
Appellant,
v.
HAI DO and HANG DOAN,
Appellees.
No. 2D21-1784
September 30, 2022
Appeal from the Circuit Court for Pinellas County; Amy M. Williams,
Judge.
Eric W. Neilsen of Neilsen Law Group, P.A., St. Petersburg, for
Appellant.
Jonathan J. Luca of Jonathan J. Luca, P.A., St. Augustine; Mai N.
Vu of Vu Legal, P.A., Pinellas Park; and Stephen G. Mortimer of
Rahdert & Mortimer, St. Petersburg, for Appellees.
LaROSE, Judge.
In this commercial lease dispute, Davi Nails Salon and Spa,
LLC, appeals the trial court's final judgment entered in favor of the
tenants, Hai Do and Hang Doan. We have jurisdiction. See Fla. R.
App. P. 9.030(b)(1)(A). The trial court committed no reversible
errors. Therefore, we affirm the judgment without further
comment. We write to address an issue seen with increasing
frequency, the misuse of supplemental authority.
On August 3, 2022, just two days before oral argument,
appellees filed a notice of supplemental authority under Florida
Rule of Appellate Procedure 9.225. The notice listed seven items.
The next day, August 4, the eve of oral argument, appellees filed a
second notice of supplemental authority. That notice listed three
items.
The judges of this panel dutifully reviewed the cited materials.
We undertook a last-minute task "to attempt to divine why it is that
the party submitting [the notices] believe[d] they [we]re relevant to
the issues raised." Ogden Allied Servs. v. Panesso, 619 So. 2d
1023, 1024 (Fla. 1st DCA 1993). These notices were untimely.
Moreover, they cited long-existing statutes, rules, and decades-old
cases of no particular relevance. Finally, the notices failed to
provide any meaningful insights not already addressed in the briefs.
This inappropriate use of notices of supplemental authority
has plagued the district courts for decades. See, e.g., id. And, with
2
unsettling frequency, this court receives notices of supplemental
authority that do little, if anything, to advance a party's cause.
Seemingly, a party comes across a case near the time of oral
argument that could have easily been found and included in the
original briefing. The party feels compelled to apprise us of their
latest find. This is not the purpose of notices of supplemental
authority.
The Florida Rules of Appellate Procedure dictate a more
judicious use. Fla. R. App. P. 9.225. A notice of supplemental
authority is appropriate only when "decisions, rules, statutes, or
other authorities that are significant to the issues raised . . . have
been discovered after service of the party's last brief in the cause."
Id. (emphasis added). Importantly, district courts are not well-
served when advised of years-old legal authority that could have
been included in the party's briefing. See Cleveland v. State, 887
So. 2d 362, 364 (Fla. 5th DCA 2004); Brown & Williamson Tobacco
Corp. v. Young, 690 So. 2d 1377, 1380 (Fla. 1st DCA 1997).
In an effort to advise parties how they can best help us
discharge our review duties, this court's practice guidelines state
that "[t]he need to file a notice of supplemental authority should be
3
rare." Practice Preferences, https://www.2dca.org/content
/download/214545/file/Practice%20Preferences.pdf (last visited
Aug. 8, 2022). We admonish parties that a notice of supplemental
authority is "reserved for extraordinary circumstances or situations
where a new case or legal authority has just been published that
might impact a fully briefed (but not yet decided) appeal." Id.; see,
e.g., Dean Wish, LLC v. Lee County, 326 So. 3d 840, 842, 850, 854
(Fla. 2d DCA 2021) (granting motion for clarification, withdrawing
prior opinion, and substituting revised opinion in light of
appellant's notice of supplemental authority concerning the
legislature's amendment to the statutory language following
issuance of the prior opinion).
Notices of supplemental authority that include citations to
cases and authorities that were published, decided, and available
before briefing are unwelcome. Practice Preferences; Cleveland, 887
So. 2d at 364 ("The State did not comply with rule 9.225 because its
notice of supplemental authority contained new argument not
previously addressed in its answer brief and this new argument
relied on a supreme court case that had been decided four years
prior to the State's filing of its answer brief. It appears to us that
4
the State through its 'supplemental authorities' is attempting to file
an additional brief.").
Rule 9.225 may not be as cabined as this court's published
Practice Preferences. If that assessment is correct, we urge The
Florida Bar's Appellate Rules Committee to consider a more explicit
limitation on the use of notices of supplemental authority.
Affirmed.
STARGEL and LABRIT, JJ., Concur.
Opinion subject to revision prior to official publication.
5