Even obviously bad behavior gets a hearing

FLORIDA LAW WEEKLY

VOLUME 49, NUMBER 34

AUGUST 23, 2024

TRIAL COURT ERRED BY IMPOSING SANCTIONS IN THE FORM OF ATTORNEY’S FEES AND COSTS AGAINST COUNSEL AND COUNSEL’S LAW FIRM WITHOUT CONDUCTING AN EVIDENTIARY HEARING TO ALLOW THEM TO PRESENT EVIDENCE AND CALL WITNESSES TO OPPOSE THE SANCTIONS.

Oltchick v. Parienti, 49 Fla. L. Weekly D1726 (Fla. 5th DCA Aug. 16, 2024):

The trial court imposed sanctions (fees and costs for the time involved in the mis-tried case) against an attorney and his law firm for the attorney’s actions in causing a mistrial in a personal injury case. The court also ordered the attorney to send a copy of the order imposing sanctions within 45 days to every current litigation client to whom the attorney had billed his time, and to each insurance carrier that paid the attorney for the work billed by him within those 45 days.

The attorney and his firm asserted that the trial court abused its discretion by issuing sanctions because (a) they were not warranted; (b) the trial court lacked authority to direct the attorney and his firm to send a copy of the court’s order to clients and insurance carriers; (c) even if the court had authority to direct the order to be sent to clients and insurance carriers, it was an abuse of discretion to do so; (d) the trial court violated the attorney’s due process rights by imposing sanctions without affording an opportunity to present evidence or call witnesses opposing the sanctions; and (e) the trial court erred by imposing sanctions without sufficient findings.

The appellate court agreed with the sanctioned lawyer and firm on the fourth issue, noting that sanctions may not be imposed as a punitive measure without first conducting an evidentiary hearing on the issue.

Here, the court granted a mistrial and ordered sanctions after the attorney and the court had a lengthy exchange where the attorney argued he had misunderstood the court’s ruling on the motion in limine that provided the basis for the mistrial.

The plaintiffs argued that the attorney’s opportunity to make a lengthy argument immediately before the court imposed the sanctions was enough “opportunity” to be heard, and further argued that because the conduct had occurred in front of the judge, there was no need for additional witness testimony.

The appellate court rejected those arguments. It found that the attorney deserved an opportunity to be heard regarding the imposition of sanctions and that arguments made immediately before the sanctions were imposed were not enough to satisfy due process.

Seemingly skeptical of the evidence the attorney might or might not present in defense of his bad faith conduct, the court said it was not for it to decide what kind of evidence the attorney would present, noting that the supreme court has expressly held that an evidentiary hearing must be held before a trial court may impose sanctions.

NO NICA, NO LAWSUIT, NO REMEDY.

Siegfried v. Availa-Cana, 49 Fla. L. Weekly D1711 (Fla. 4th DCA Aug. 14, 2024):

The plaintiffs filed a medical malpractice case based on a brain injury their child suffered at birth.

The trial court properly granted the defendant doctor’s motion to abate the action until the plaintiffs had filed a petition under NICA and obtained a final order from the Administrative Law Judge (ALJ) pursuant to section 766.304, Fla. Stat that they could bring a lawsuit.

Under NICA, the ALJ has the exclusive jurisdiction to determine whether a claimed injury is compensable under the plan (i.e., whether a birth-related neurological injury is claimed and whether obstetrical services were delivered by a participating physician during labor, delivery, or resuscitation in the immediate post-delivery period in a hospital).

A plaintiff may not bring suit until an ALJ has made these determinations and determined whether the mother received proper notice required by sections 766.316 and 766.309(1)(d), Fla. Stat.

Before filing the suit, the plaintiff served a notice of intent and named other medical providers in a NICA petition. The ALJ found those claims were compensable as to the other medical providers. However, the plaintiffs did not name the defendant doctor in the NICA petition.

During the period of abatement, the plaintiffs sought to reopen the closed administrative case. The ALJ sent the parties a letter explaining that the case was closed with prejudice and could not be reopened. The ALJ also noted that it had entered a final order, and no appeal was taken making the matter final, and depriving the Division of Administrative Hearings of jurisdiction to consider a motion to reopen the 2019 case.

Upon receiving the ruling from the ALJ, the plaintiffs then moved the trial court to lift the stay, arguing they had complied with the court’s abatement order by trying to reopen the administrative case. The trial court agreed and entered the order on review.

The appellate court reversed. It agreed with the petitioners that the trial court departed from the essential requirements of law in allowing the suit to proceed without the required determinations made by an ALJ as to the defendant physician and concluded that the letter from the ALJ did not satisfy the requirements of section 766.304 which prohibits the bringing of a civil action until determinations have been made by the ALJ.

The plaintiffs asserted that they satisfied the statute because the doctor’s employer had participated in the NICA proceeding. However, the court found that argument had no merit.

Because the plaintiffs had not provided notice that they intended to sue the doctor when they filed the NICA petition, the defendant doctor was not served or given an opportunity to participate in the NICA proceedings, which the law requires before a plaintiff may proceed with a lawsuit based on the doctor’s conduct. Without NICA and without an ability to bring a civil action, the plaintiffs had no remedy against the defendant doctor.