Will enough ever be enough?!

FLORIDA LAW WEEKLY

VOLUME 48, NUMBER 6

CASES FROM THE WEEK OF FEBRUARY 10, 2023

THE TRIAL COURT ABUSED ITS DISCRETION IN SANCTIONING THE DEFENDANT BY STRIKING HIS PLEADINGS, WHERE THERE WAS NO EVIDENCE THAT THE DEFENDANT HIMSELF HAD PARTICIPATED IN THE DEFENSE ATTORNEY’S BAD BEHAVIOR—EVEN THOUGH COURT CALLED OUT DEFENSE LAWYER FOR BEING A “REPEAT OFFENDER” WHO OFTEN MAKES INTENTIONALLY MISLEADING STATEMENTS AND TAKES DECEPTIVE ACTIONS—THE COURT FOUND SANCTIONING ATTORNEY WAS ENOUGH PUNISHMENT EVEN UNDER THESE EXTREME CIRCUMSTANCES

Rhoades v. Rodriguez, 48 Fla. L. Weekly, D258 (Fla. 5^th DCA Feb. 3, 2023):

The first trial of this automobile accident case ended during the presentation of testimony, when the trial judge had to declare a mistrial based on the defense attorney’s, Dale Gobel’s, actions and statements.

Before the second trial, Plaintiff filed a motion for sanctions against the defendant for fraud on the court for the ongoing illegal conduct. These motions alleged that defense counsel had intentionally made misleading and deceptive statements to the judge and jury in the first trial, which resulted in the mistrial, and further alleged that defense counsel had utilized improper discovery procedures in the case to impermissibly obtain medical records from the plaintiff’s treating physicians. After a lengthy hearing, the trial judge granted the motions, ruling to strike the defendant’s pleadings.

The second trial proceeded to verdict. However, the second jury awarded far less in damages to the plaintiff than counsel suggested and was warranted, leading the trial court to grant plaintiff’s motion for additur. The defendant rejected the additur, necessitating a third trial.

On appeal, the court agreed that there was sufficient evidence to support the trial judge’s determinations both that defense counsel made “intentionally misleading and deceptive statements,” and that defense counsel had utilized improper discovery procedures in his effort to obtain plaintiff’s medical records. It affirmed the ruling sanctioning the defense lawyer.

However, perhaps not realizing that slaps on the wrists such as these are not enough to stop repeat offenders who continue to flout the rules with impunity, the court reversed the trial court’s ruling striking the defendant’s pleadings, finding it did not meet the requirements of Kozel.

The court noted how Dale Gobel has been sanctioned repeatedly and referred him to the Florida Bar, but still found that striking the defendant’s pleadings was too harsh a sanction for the failure of his counsel (sadly, perhaps such an example was the kind that should have been made so that attorneys who proudly disobey the law and rules will stop being hired by litigants for fear of such punishment). There was also no evidence that the defendant participated in his counsel’s actions, or evidence that the plaintiff was prejudiced by the defense attorney’s utilization of the improper discovery procedures (he had impermissibly sent out non-party subpoenas to medical providers over plaintiff’s objection, and purposely failed to advise the doctors not to produce the records until after they were produced).

The court merely required this attorney to pay for the reasonable costs and attorneys’ fees incurred by the plaintiff in preparation for the hearing on plaintiff’s motion for sanctions, and to pay for any fees billed by the physician at the original trial.

PLAINITFF SUFFERED INJURY IN CHOSEN VENUE WHERE, PURSUANT TO THE FACTUAL ALLEGATIONS IN THE COMPLAINT, THE DEFENDANT HAD MADE ALLEGED MISREPRESENTATIONS REGARDING THE SUBJECT INSURANCE POLICIES

Brown & Brown of Florida v, Tzadik Acquisitions, 48 Fla.L.Weekly D228 (Fla. 3d DCA Feb. 1, 2023):

A plaintiff unrelated to this insurance procurement dispute case, sued the property owner defendant for wrongful death claim after the decedent was shot and killed on one of defendant’s properties in Duval County.

The property owner had hired the defendant as an insurance expert to manage and plan for its insurance. The insurance expert met with the property owner in its Miami-Dade office, providing the owner with an insurance proposal indicating that the property where the wrongful death occurred was covered.

As the wrongful death action proceeded, the owner learned that the property was not covered by the insurance policies as represented. Consequently, the owner had to pay the wrongful death suit out of pocket.

The owner sued the insurance expert in Miami Dade County for breach of fiduciary duty and negligence. The insurance expert moved to transfer the venue to Duval County, where the wrongful death occurred.

It is true that a tort claim is deemed to have accrued where the last event necessary to make the defendant liable for the tort took place; i.e., the last event occurs when the harmful force set in motion by the defendant’s negligence first took effect.

To determine where a plaintiff’s injury occurred, the court must look to the allegations laid out in the complaint. Pursuant to those allegations, the defendant insurance expert had made representations to the owner regarding the insurance policies in Miami Dade, the property owner entered into the policies in Miami-Dade, and the owner made its wrongful death payment from its office in Miami Dade.

Because the facts alleged accrued in the owner’s chosen forum, even though the negligence did not become apparent until the wrongful death, the court found there was no abuse of discretion in the trial court’s finding that Miami-Dade was the proper forum.

NO ERROR IN AWARDING FEES FOR COUNSEL’S PREPARATION AND EXAMINATION OF AN EXPERT WHO TESTIFIED AT AN EVIDENTIARY HEARING—AMOUNT OF FEES AWARDED WAS NOT EXCESSIVE

Bath Club Entertainment, LLC. v. The residences of the Bath Club Maintenance Association, 48 Fla. L. Weekly D228 (Fla. Third DCA Feb. 1, 2023):

After an arbitration award, a trial judge entered a sanctions order associated with the enforcement of the award, which the appellate court upheld.

In this opinion, the defendant challenged the $10,000 in attorney’s fees, that counsel claimed for preparation and examination of the expert who testified. The defendant also asserted that the trial court had erroneously determined the amount of attorneys’ fees by reducing the plaintiff’s billable hours by a flat 25%.

Unlike the decision in Universal Property v. Deshpande, where the trial court had adopted a fee expert’s blanket percentage reduction and billed hours without explanation, here the trial court here made sufficient findings to support the reduction, leading the court to affirm the award as consistent with the trial court’s discretion.

ERROR TO DENY MOTION TO TRANSFER VENUE TO COUNTY WHERE VIRTUALLY ALL WITNESSES RESIDED AND ALL ALLEGED INCIDENTS TOOK PLACE—DEFENDANT’S HEADQUARTERED LOCATION NOT ENOUGH TO DEFEAT MOTION

SMA Behavioral Health Services, Inc. v. Loewinger, 48 Fla. L. Weekly D229 (Fla. 3d DCA Feb. 1, 2023):

In this wrongful death action, two groups of defendants appealed the order denying their motions to transfer venue from Miami-Dade to Volusia.County. The decedent had been arrested in Volusia, and admitted into the Volusia County jail. Four years before the arrest, the decedent had a history of psychiatric issues and was in the care of a psychiatrist in Volusia County.

The plaintiff filed the lawsuit in Miami-Dade based on one of the defendants having had its corporate headquarters there. In accordance with section 47.122, Fla.Stat., which looks to the convenience of the parties, witnesses and the interest of justice, Volusia County was the more appropriate venue.

INVOICES AND EVIDENCE WERE SUFFICIENT TO SUPPORT WORK PERFORMED TO SATISFY THE FIRST STEP OF THE LODESTAR ANALYSIS FOR ATTORNEY’S FEES, EVEN WITHOUT THE ATTORNEY’S TESTIMONY WHO DID THE WORK

CED Capital Holdings 2000 EB v. CTCW Berkshire Club, 48 Fla. L. Weekly D261 (Fla. 6^th DCA Feb. 3, 2023):

The new Sixth District ruled that the attorneys’ invoices were legally sufficient to support the work performed, but certified conflict with the fourth District’s Court of Appeal’s decision in Cohen v Cohen which held to the contrary, requiring actual testimony from the attorney who performed the work.