Mike Cosentino cites inability to get necessary materials from attorney he dismissed earlier this year and ignorance about potential repercussions of a late filing
Siesta Key resident Michael Cosentino missed a July 11 deadline for submitting a document in his appeal of the lawsuit he filed against Sarasota County in 2016 over the North Beach Road vacation, The Sarasota News Leader has learned.
As a result, Cosentino has asked the Second District Court of Appeal for a fourth extension in that case — until July 31 — to submit the brief replying to responses from Sarasota County and intervenors in the lawsuit. As of the News Leader’s deadline for publication this week, the court had not ruled on Cosentino’s motion.
In his July 18 request for the latest extension, Cosentino blamed his former attorney, Lee Robert Rohe of Big Pine Key, for failing to provide him with materials Cosentino indicates he needs but remain in Rohe’s possession.
He also told the court that he “was unaware of the potential negative outcome” of filing the reply brief late. Thus, he was asking the Court of Appeal to “grant him the opportunity to show good cause for the delay …”
Both Sarasota County and intervenors in the case have filed objections to Cosentino’s motion.
The county agrees with a judicial precedent Cosentino cited, that the court should not “‘penalize the litigant for the shortcomings of counsel,’” Assistant County Attorney David Pearce wrote. Yet, “Cosentino has his own shortcomings,” Pearce continued, as Cosentino failed to file the request for the new extension “before the July 11 deadline” for the reply brief [emphasis in the document].”
Pearce added, “Cosentino also mentions for the first time more than four months after his initial brief was filed that his attorney filed [that brief] against his ‘strongest objections [emphasis again in the document].’ It strains credibility that any person would wait more than four months to bring such a matter to this Court’s attention.”
Last fall, Cosentino filed the appeal after a 12th Judicial Circuit Court judge in Sarasota dismissed the final part of his complaint against Sarasota County over the May 2016 County Commission vacation of a 373-foot-long segment of North Beach Road. Cosentino has maintained that the action violated county regulations and policies.
In early June, Cosentino dismissed Rohe, who was his second attorney in the case. In March 2018, Cosentino hired Rohe in place of his initial attorney, Ralf Brookes of Cape Coral.
On June 12, the Court of Appeal formally relieved Rohe of any further responsibility in the case and gave Cosentino a third extension — until July 11 — to file the reply brief.
The court ruling then said Cosentino could act on his own behalf “or through substitute counsel.” However, the ruling added, “Further motions for extensions will not be given favorable consideration.” The ruling also noted the county’s and intervenors’ objections to that third extension.
When the News Leader asked Morgan Bentley of the Sarasota firm Bentley & Bruning, who is not involved in the case, about Cosentino’s latest actions, Bentley wrote in a July 18 email, “Typically speaking, our appeals court is pretty forgiving.” Bentley indicated that the court likely would let Cosentino file the reply brief late.
Nonetheless, David A. Wallace, a board-certified appellate lawyer with Bentley & Bruning, told the News Leader that if the appeals court chose not to approve the fourth extension, the court could decide the case on the basis of the initial brief filed for Cosentino and the answer briefs from the county and the intervenors.
During a June 25 Circuit Court hearing on the possible consolidation of the original North Beach Road case with a companion case filed in October 2018 and amended in late December 2018, Cosentino asked Judge Andrea McHugh for more time to prepare for a potential hearing. Cosentino pointed out at that time that he would have to work on the reply brief for the Court of Appeal.
He also told McHugh that his new attorney, Fred E. Moore of Blalock Walters in Bradenton, was “not up to speed” yet on all the details of the two Circuit Court cases.
Subsequently, on July 4, Cosentino filed a new motion in the 2016 Circuit Court case, requesting that that court allow him to represent himself. He argued that he was not trying to delay action or “gain an unfair advantage in the litigation.” Instead, he wrote, “The granting of this Motion will eliminate the possibility of joint representation conflict.”
Cosentino also explained that he had met on July 1 with Moore “to discuss how to proceed with representation given the complexities” of the impending consolidation of the Circuit Court cases, because Cosentino had been representing himself in the 2018 matter but still had Moore as his attorney in the 2016 case.
Cosentino indicated that he and Moore had decided the best course of action was for Cosentino to seek to proceed pro se in both Circuit Court cases.
The second case involves two Sarasota County Charter amendments related to the North Beach Road vacation. Cosentino wrote them and was able to gain the necessary number of voter signatures to get them on the Nov. 6, 2018 General Election ballot. Both passed.
One calls for the county to reacquire the vacated portion of North Beach Road, while the other calls for the county to refrain from vacating any property it owns that has so much as a waterfront vista.
The county contends that both Charter amendments are not only vague but also in contravention with authority the Florida Statutes delegate to the County Commission.
During the June 25 hearing, Judge McHugh indicated that she would be agreeable to conducting a hearing this summer on a motion the county filed for summary judgment in the Charter amendments case. A case management conference has been scheduled for Sept. 9.
Explaining the Court of Appeal delay
In his July 18 motion filed with the Second District Court of Appeal, Cosentino referenced the timeline of the withdrawal of his former attorney, Rohe, from that case.
Cosentino also asked the court for an “In Camera Inspection of attorney-client correspondence and related documents to demonstrate … legitimate grounds” for the court to grant him the extension.
The legal term “in camera” refers to a judge’s private screening of materials.
Cosentino added that he wants to “prevent any inadvertent waiver of attorney-client privilege or disclosure of privileged communications, documents, or information.”
He continued that, in anticipation of his being allowed to proceed as his own counsel in the appeal, plus “his day to day operating of Cosentino Construction Co., Inc., and being cognizant of the need to correct deficiencies” in the brief Rohe previously filed in the appeal, he was seeking an extension until July 31.
He added that he had received only a partial draft of Rohe’s brief in the appeal before Rohe filed it on Feb. 28. “Cosentino’s daily, urgent requests to speak with counsel went unanswered,” Cosentino wrote.
As of June 7, Cosentino continued, he still “had not received the promised draft/notes [from Rohe] regarding his Reply Brief,” which was due on June 10. That was when he “was forced to take the extraordinary measure of requesting counsel to withdraw or be withdrawn,” he wrote, which resulted in the June 7 motion for Rohe to withdraw as his counsel in the Court of Appeal case.
In his objection, filed on behalf of intervenors Dennis and Wendy Madden, attorney Lewis Hall III of the Williams Parker firm in Sarasota wrote on July 19 that Cosentino knew about the Court of Appeal’s “admonition in the Order of June 12, 2019 that further motions for extensions will not be given favorable consideration. Granting Cosentino’s Motion creates total chaos in this appeal and is prejudicial to the Maddens and the County.”
In his July 19 objection to Cosentino’s motion, Assistant County Attorney Pearce pointed to the following timeline:
- Cosentino filed his notice of appeal on Oct. 11, 2018.
- On Dec. 7, 2018 and Jan. 28, Cosentino received two extensions of time for filing his initial brief.
- On March 4, Cosentino filed that brief.
- On March 25, the county “timely served its answer brief without requesting any time extensions.”
- On April 10, May 29 and June 12, Cosentino received extensions of time to file his reply brief.
With his request for a fourth extension, Pearce added, “Cosentino has repeatedly delayed the outcome of this appeal.”
Then Pearce referencing Cosentino’s arguments about his attorney filing the initial brief “against [Cosentino’s] ‘strongest objections.’” Pearce added that Cosentino is seeking to “‘correct deficiencies” in that initial brief.
Citing Florida Rules of Appellate Procedure, Pearce argued that “it is improper to raise new issues or claims for the first time in a reply brief, and ordinarily any issues that are not raised in an initial brief or in the proceedings … are waived.”
Details of the latest actions in Circuit Court
In his July 4 Circuit Court motion, seeking to act as his own counsel in the 2016 lawsuit, Cosentino wrote that he had emailed Assistant County Attorney Pearce on July 1, “and copied all opposing counsel with same, noting the need to address/preserve/establish his right to proceed Pro Se before/in conjunction with stipulating to the consolidation of the [two Circuit Court] cases …” As of July 4, Cosentino continued, the county had not responded.
Cosentino added that he had received notice that Hall, attorney for the intervenors, was unavailable until July 15.
S. William Moore of Moore Bowman & Reese in Sarasota, counsel for the Caflisch family of Siesta Key, would be unavailable until July 8, Cosentino pointed out. The Caflisches filed the complaints last year about the Charter amendments, asking the court to rule the amendments invalid.
Then, on July 10, the court docket shows, Cosentino filed a 220-page document that contained two transcripts.
The first is a record of the full County Commission public hearing on the North Beach Road vacation, conducted on May 11, 2016. That hearing, which lasted close to three hours and 45 minutes, included testimony regarding a petition for a related Coastal Setback Variance. The latter was sought by the intervenors in the lawsuit, the Maddens, who wanted to tear down decades-old multi-family structures they owned on the vacated road segment so they could construct six new dwelling units that would conform to current building regulations, their attorney, Charles Bailey III of Williams Parker, explained to the commissioners.
The Maddens needed to combine the square footage of the vacated road segment with the parcels where the old structures stood, as well as that of parcels they own seaward of the road, to have enough square footage for their project, Bailey pointed out.
The Caflisches, who also own property on the vacated road segment, joined the Maddens and one other property owner on North Beach Road in petitioning for the road vacation.
The second transcript, Cosentino noted, was of the first hearing in his original lawsuit against the county. Circuit Judge Frederick P. Mercurio conducted that hearing on April 5, 2017.
A July 24 News Leader review of the dockets for the two related Circuit Court cases found that the only other recent filings were the following: a notice from Assistant County Attorney Pearce that he would be unavailable from July 22 through July 26; and a document Pearce filed on July 19, responding to the Maddens’ request for admissions in the original North Beach Road case.
In the latter, Pearce wrote that the county had undertaken certain maintenance activities on North Beach Road prior to the May 2016 public hearing. However, he added, the resolution the County Commission approved at the conclusion of that hearing made it clear that the county had “abandoned and discontinued” its easement or title to the 60-foot-wide right of way of the 373 feet of North Beach Road.
The vacated road segment had been closed to vehicular traffic since 1993 because of repeated storm damage.