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

• Court: District Court of Appeal of Florida
• Decided: September 30, 2022
• Docket: 21-1784
• Status: Published

Opinion

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.