sunEthics
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Florida - TRIAL CONDUCT (and Sanctions)
Court did not abuse discretion in dismissing criminal case after state “invited” dismissal. [Added 12/20/24]
In an initial appearance in a first-degree misdemeanor case, the assistant state attorney told the court the state waived its right to a jury trial. The defense also waived its right to a jury trial, and the case was set for a non-jury trial.
On the date of trial, a different assistant state attorney appeared in the case. The new prosecutor informed the court that the state did not wish to waive the right to a jury trial. The court pointed out that the state previously waived jury trial. Despite this, the new prosecutor continued to argue for a jury trial. When the court told the state to call its first witness, the prosecutor said the state was not willing to go forward at that time. “Because the state did not seek leave to continue the matter or offer any mitigating circumstances which might nullify the state’s prior agreement to waive trial by jury, the trial court dismissed the case.” The state appealed.
The Fourth DCA affirmed, concluding that the trial court did not abuse its discretion. “[T]he state never formally sought to revoke its consent to the jury trial waiver, waited until the day of trial to seek a jury trial, and did not move for a continuance, but rather simply demanded that the case be transferred and refused to proceed when the trial court declined to transfer the case. This cavalier refusal by the new ASA was compounded by her failure to suggest a meaningful solution or provide a reasonable alternative. Under these circumstances, the trial court did not abuse its discretion by dismissing the charge.” The court summarized: “The state cannot now complain of error for which the state itself is responsible and which the state, in essence, invited the trial court to make.” State v. Poitier, __ So.3d __ (Fla. 4th DCA, No. 4D2024-0106, 11/27/2024), 2024 WL 4900198.
Sanctions order against lawyer and his law firm reversed due to lack of meaningful opportunity to present evidence opposing sanctions. [Added 8/26/24]
A trial court imposed sanctions on Lawyer and his Law Firm after determining that Lawyer’s conduct led to a mistrial in a personal injury case. Lawyer appealed, raising several issues. The Fifth DCA found one issue to be dispositive and reversed on that ground: the trial court erred in imposing punitive sanctions without first holding an evidentiary hearing on the issue.
The parties who moved for the sanctions contended that Lawyer had an opportunity to present his position during a discussion with the court regarding the motion in limine that was at issue (which occurred before imposition of sanctions), as well as immediately after the court’s oral pronouncement that sanctions would be imposed and in Lawyer’s motion for rehearing.
In the view of the appellate court, none of these situations sufficed. The opportunity to be heard is to take place before sanctions are imposed because due process requires a right to respond to a notice of sanctions. Further, a discussion with the court immediately after sanctions have been announced is not a “meaningful opportunity to respond” as contemplated by Moakley v. Smallwood, 826 So.2d 221 (Fla. 2002). The court noted that “Moakley expressly requires that the opportunity include ‘the opportunity to present witnesses and other evidence.’ 826 So.2d at 227. Neither contemporaneous argument nor a motion for rehearing and reconsideration (denied without a hearing) meets this requirement.”
Finally, the court rejected movants’ argument that an evidentiary hearing was not needed because the conduct in question occurred in court. “[I]t is not for us to decide what evidence might or might not be presented. The Supreme Court has expressly held that right belongs to [Lawyer and Law Firm], and we are not inclined to attempt to narrow their holding.” Oltchick v. Parenti, __ So.3d __ (Fla. 5th DCA, No. 5D2023-1239, 8/16/2024), 2024 WL 3837061.
Court erred in denying Rule 1.540(b) motion to vacate dismissal order due to clerical error. [Added 2/26/24]
Plaintiffs’ counsel failed to attend a scheduled case management conference. The trial court issued an “unelaborated order” dismissing the case. Plaintiffs’ counsel moved to vacate the dismissal order pursuant to Fla.R.Civ.P. 1.540(b), explaining that his assistant mistakenly failed to calendar the conference because the assistant “mistakenly believed that the case management conference had been cancelled once [Plaintiffs] filed a response within the time parameters of the trial court’s notice of lack of prosecution issued under [Fla.R.Civ.P.] 1.420(e). As a result, the case management conference was not on counsel’s calendar; and he did not attend the conference.” Plaintiffs’ counsel stated in the motion that, to his knowledge, he had never missed a scheduled court hearing in his career.
The trial court denied the motion. Plaintiffs appealed. The Fifth DCA reversed. Rule 1.540(b) is liberally construed in favor of deciding cases on their merits. Defendants did not file a response to the motion to vacate or contest the allegations of clerical error. The court explained: “This court, as well as our sister courts, have consistently recognized that an attorney’s inadvertent and unintentional failure to appear at a hearing due to a calendaring or clerical error is one of the common and well-established types of excusable neglect or mistake that warrants relief under rule 1.540(b).” Dismissal is the harshest of all possible sanctions, and so in order to dismiss an action the court “must explicitly find that the party’s actions were willful, flagrant, deliberate, or otherwise aggravated.” The challenged order made no such findings. Little v. Turnbow, __ So.3d __ (Fla. 5th DCA, No. 5D23-2441, 2/9/2024), 2024 WL 498299.
Fourth DCA upholds dismissal of pro se litigant’s complaint where appellant failed to follow briefing rules. [Added 1/16/24]
Appellant was a pro se litigant whose complaint had been dismissed with prejudice after he failed to appear at the hearing on the motion to dismiss. He filed a motion to vacate the dismissal and a motion for rehearing, which were not granted.
Appellant appealed. His brief, however, “cites no legal authority and contains no citations to the record on appeal.” Accordingly, the Fourth DCA affirmed. “Appellant, as a pro se litigant, was still required to adequately present his arguments on appeal. Stueber v. Gallagher, 812 So.2d 454, 457 (Fla. 5th DCA 2002) (‘In Florida, pro se litigants are bound by the same rules that apply to counsel.’); Kohn v. City of Miami Beach, 611 So.2d 538, 539 (Fla. 3d DCA 1992) (‘[I]t is a mistake to hold a pro se litigant to a lesser standard than a reasonably competent attorney.’); Figueroa v. Kossiver, 336 So.3d 1260, 1264 (Fla. 5th DCA 2022) (applying Polyglycoat principles to a pro se litigant’s brief). The deficiencies in appellant’s brief mandate affirmance.” Walker v. Estate of Yee, __ So.3d __ (Fla. 4th DCA, No. 4D2023-0366, 1/10/2024), 2024 WL 103677.
Second DCA refers lawyer to Florida Bar for disciplinary investigation for failing to comply with court orders. [Added 10/19/23]
On June 14 Lawyer filed a notice of appeal in the Second DCA in a termination of parental rights case, which is an expedited proceeding. Two days later (on June 16) the court ordered Lawyer to file transcript designations or a status report within 7 days. The court’s electronic case management system showed that Lawyer received the order. Lawyer did not respond.
About a month later (July 14) the court ordered Lawyer to comply with the earlier order. Lawyer did not respond.
On July 31 the court issued an order to show cause why sanctions should not be imposed for failure to comply with the 2 prior orders. Lawyer did not respond.
In mid-August the court tried to reach Lawyer by telephone at the number provided to the court and listed with the Florida Bar, but the number was not in service. That same day the court issued a show cause order directing Lawyer to appear on September 5. Lawyer failed to appeal.
When the court finally contacted Lawyer at the previously out-of-service phone number, Lawyer claimed that he did not receive the order to show cause. The post office tracking system, however, showed that the order was delivered to a person at Lawyer’s record Bar address.
Based on these circumstances, the court referred Lawyer to the Bar: “Due to [Lawyer’s] failure to comply with this court’s directives and the attendant delays in this expedited appeal and recognizing [Lawyer’s] disciplinary history, we hereby refer this matter to The Florida Bar for investigation and initiation of such proceedings as may be appropriate.” K.R. v. Fla. Dept. of Children and Families, __ So.3d __ (Fla. 2d DCA, No. 2D23-1274, 9/29/2023), 2023 WL 6321693.
Third DCA affirms imposition of sanctions under F.S. 57.105 solely against party’s lawyer. [Added 9/27/21]
A trial court imposed sanctions against a party’s lawyer under F.S. 57.105, apparently for advancing a frivolous position. The lawyer appealed. The Third DCA affirmed. “We conclude that the trial court did not abuse its discretion in entering the challenged order awarding sanctions against appellant, attorney Fred Viera, pursuant to section 57.105 of the Florida Statutes. . . . When a claim or defense that is not supported by existing law is presented to the court, section 57.105 monetary damages may be awarded against a party’s counsel only.” Viera v. In re: Aptito, LLC vs. Zell, __ So.3d __ (Fla. 3d DCA, No. 3D20-1166, 8/25/2021), 2021 WL 3744396.
Fourth DCA reverses litigation sanctions against 2 lawyers representing defendant in medical malpractice case. [Added 8/20/21]
In a lengthy and detailed opinion, the Fourth DCA reversed a sanctions order against 2 lawyers (Cousins and Sankey) who represented defendant Doctor in a medical malpractice case. (The appeals court’s opinion contains a full recitation of the facts and the court’s reasoning; highlights are summarized below.)
Doctor was sued by a Crohn’s disease patient following a 2008 surgery based on Doctor’s allegedly negligent failure to remove a stricture at the site of the Plaintiff’s ileocolonic anastomosis. The sanctions order was related to defense counsel’s actions in connection with Doctor’s testimony at deposition and his answer to an interrogatory.
In response to Plaintiff’s interrogatory #6, which asked if Doctor “performed surgery . . . specifically treatment of the stricture at the ileocolonic anastomosis . . .,” Doctor answered that the “stricture at the ileocolonic anastomosis was treated” during surgery and that Doctor “recalls treating that area.” During Doctor’s long deposition he repeatedly was asked whether he examined the stricture and whether he removed it. In various ways Doctor said that he “looked at everything that was diseased” and that he “believe[d]” he removed the stricture and “took out all the disease [he] saw.” Subsequently the defense’s standard of care expert testified that Doctor examined the stricture but did not remove it; Doctor was “mistaken” at his deposition.
At the start of trial Cousins told the jury that Doctor would testify that he did not remove the stricture based on his “medical judgment” at the time. Plaintiff’s counsel objected that this position was a “surprise” and contrary to Doctor’s deposition testimony. The court questioned counsel for the parties, including asking defense counsel if they had filed an errata sheet regarding Doctor’s deposition testimony. After counsel stated that they had not, the court commented that “there’s been no effort to fix the depo up to this point.”
After Plaintiff filed a written motion to strike defendant’s pleadings the court held an evidentiary hearing. Doctor asserted that he did not intentionally try to misrepresent anything or deceive anyone. Plaintiff attempted to call Cousins to testify, but he objected to taking the stand without criminal counsel. The court questioned Cousins about not updating the interrogatory answer or correcting the deposition, and Cousins responded that the interrogatory answer was correct at the time and that, even if he had reviewed the deposition transcript (which he did not at the time), he would not have filed an errata sheet.
The court entered a sanctions order against Cousins and Sankey. The court found that the lawyers did not bring the “false testimony” to the attention of the court or opposing counsel when they learned of it and acted “in order to gain an unfair advantage.” The court declined to find a fraud on the court, but nevertheless awarded fees and costs in the amount of $271,487 against the lawyers. Doctor settled the underlying case, and the lawyers appealed the sanctions order.
The Fourth DCA reversed for a number of reasons. There was no perjured testimony. Doctor “testified he looked at the plaintiff’s entire abdomen, including the subject stricture, and removed the diseased area. There is nothing in this testimony that reveals whether the doctor removed the stricture. It is neither inaccurate nor perjurious. And, to the extent he later testified in deposition that he believed he had removed the stricture, his testimony was based on his belief. ‘[A]n expression of belief’ cannot constitute perjury because it is not a statement of empirical fact.” (Citation omitted.) In addition, the appeals court concluded that estoppel and waiver precluded the sanctions order.
The court also concluded that defense counsel had no duty to file an errata sheet to Doctor’s deposition. Under Fla.R.Civ.P. 1.310(e), only the witness can do this.
In summary, the court stated: “[T]he doctor’s deposition testimony neither constituted a fraud on the court nor litigation misconduct. There were no legitimate grounds to sanction defense counsel as they were unaware of the inaccuracy of the doctor’s deposition testimony at the time it was given and were under no obligation to correct it.” As to the interrogatory answer, the court ruled that it “similarly fails to show any bad faith misconduct or fraud” and that defense counsel’s action “were entirely proper and based on their understanding of the facts and the law.” Cousins and Sankey both testified that their understanding of “treatment” as a medical term included examination of a body part. Further, “there is no duty to update interrogatory answers.”
The trial court also misapplied the Rules Regulating The Florida Bar. Although Rule 4-3.3(a)(2) requires lawyers to disclose material facts to a court when necessary to avoid assisting a client’s criminal or fraudulent act, the rule “does not support the sanctions order. First, the record establishes defense counsel’s intent to have the doctor testify truthfully at trial. Second, Rule 4-3.3 applies only where an attorney has actual knowledge that evidence to be offered is false. By advising the jury that the doctor would testify he did not remove the stricture at the ileocolonic anastomosis, defense counsel complied with his ethical obligation. See Rule 4-3.3(a)(4) (‘A lawyer shall not knowingly . . . offer evidence that the lawyer knows to be false.’).”
Additionally, a Florida Bar Ethics Opinion (75-19) relied on by the trial court did not support the sanctions order. “Unlike the factual scenario, in that opinion, at no time prior to the evidentiary hearing did defense counsel have reason to believe the doctor knew at the time of his deposition that he had not removed the stricture at the ileocolonic anastomosis.”
The appeals court pointed out further problems with the sanction order. The trial court believed that “medical judgment” was an affirmative defense that must be pleaded or is waived. That was error – “[t]he ‘medical judgement’ defense in this case involved a factual dispute, not a legal avoidance of admitted allegations.” And, the monetary amount of the sanctions was excessive.
The court concluded by stating: “As Judge Carnes stated in Norelus [v. Denny’s, Inc., 628 F.3d 1270, 1281 (11th Cir. 2010)], ‘[n]o one’s memory is perfect. People forget things or get confused, and anyone can make an innocent misstatement or two.’ 628 F.3d at 1273. This is just one of those cases. But it was not a case of bad faith or litigation misconduct on the part of defense counsel. For the foregoing reasons we reverse the sanctions order.” Cousins v. Duprey, __ So.3d __ (Fla. 4th DCA, No. 4D19-3602, 7/21/2021), 2021 WL 3073683.
Fourth DCA condemns “trial by ambush” tactics in reversing plaintiff’s judgment. [Added 7/30/19]
Plaintiff sued for injuries allegedly suffered in a 2014 auto accident. Plaintiff’s expert reviewed the MRI from that accident, but did not review Plaintiff’s MRI from a prior 2010 accident. At deposition the expert testified that he had never seen the 2010 MRI and did not consider it necessary in reaching his opinion. In the opening statement at the trial, Defendants’ counsel told the jury that, in contrast, the defense’s expert had viewed both MRIs. “Only then, long after the discovery deadlines and in the middle of trial after defense counsel had committed to a certain line of defense, did plaintiff’s counsel show his expert the 2010 MRI” and elicit testimony about it.
The defense moved to exclude Plaintiff’s expert from testifying about the 2010 MRI or comparing it to the 2014 MRI. The trial court initially granted the motion to exclude, concluding that the testimony would be “completely prejudicial” and “not fair” to Defendants. After a break, the court reversed its ruling and allowed the testimony. The jury rendered a verdict for Plaintiff. Defendants appealed.
The Fourth DCA reversed, concluding that the trial court abused its discretion in allowing Plaintiff’s expert to offer the challenged testimony. In Binger v. King Pest Control, 401 So.2d 1310 (Fla. 1981), the Supreme Court ruled that, when an undisclosed witness is offered for testimony at trial, the focus should be on the potential prejudice to the objecting party. “Prejudice” refers to the surprise on the party, and does not depend on the nature of the testimony. The Binger rule “has been extended from undisclosed witnesses to disclosed witnesses who offer previously undisclosed testimony.” (Citation omitted.) Defendants “were confronted with new and additional undisclosed testimony during trial and after opening statements which pertained to the comparison of two different MRIs as well as Dr. Myers’s conclusions regarding the content of the two MRIs,” after they had relied on their expert being the only witness who viewed the two MRIs. The undisclosed testimony in these circumstances “is the type of ambush-based prejudice that Binger seeks to prevent.”
The appeals court summarized: “As far back as 1993, this court wrote that ‘[a]lthough we thought it was generally accepted that civil trials are not to be ambushes for one side or another, we are confronted here by such tactics used by the plaintiff to the prejudice of the defense.’ Grau v. Branham, 626 So.2d 1059, 1059 (Fla. 4th DCA 1993) (citation omitted). In this case twenty-six years later, we are once again confronted with the same type of tactics. These ‘trial by ambush’ tactics were wrong in 1993, and they remain wrong today.” Gurin Gold, LLC v. Dixon, __ So.3d __ (Fla. 4th DCA, No. 4D18-2156, 7/10/2019), 2019 WL 2998515.
While not condoning closing argument of plaintiffs’ counsel in tobacco case, Third DCA affirms judgment for plaintiffs and acknowledges that arguments must be viewed in context of this 3-week, high-stakes trial. [Added 2/13/19]
Plaintiffs obtained a large compensatory damages verdict (almost $15 million net) in a 3-week trial against Defendant tobacco company. Defendant appealed on grounds including allegedly improper closing argument. The Third DCA affirmed, emphasizing that its analysis of the arguments at issue necessarily must consider the specific context of the particular trial: “While we do not condone the closing argument comments to which [Defendant] objected, we conclude that the complained-of comments fall short of denying [Defendant] its right to a fair trial. In reviewing the comments, it is important to remember their context. This case was a nearly three-week-long bifurcated Engle progeny case involving claims for intentional and non-intentional torts and prayers for non-economic compensatory damages flowing from Plaintiffs’ loss of companionship and protection and pain and suffering, as well as for punitive damages. Arguments inappropriate in a simple negligence case may be appropriate concerning record evidence of a parties’ intentional misconduct in the context of a claim for punitive damages.”
In one of the arguments, Plaintiffs’ counsel pointed out that the $450,000 deaths annually from smoking would equal 3 airline crashes per day for a year. The appeals court considered this argument provocative and even somewhat inflammatory,” but noted that the comparison was “mild” considering that Defendant’s corporate representative testified to that many annual deaths or more. The court distinguished cases relied on by Defendant; the evidence was admissible and Plaintiffs’ counsel did not offer personal opinion.
Another argument involved counsel comparing the decedent’s efforts to quit smoking to “all their power, all their money” that Defendant spent on advertising to convince people to smoke and to lobby for favorable laws. The appeals court stated that “[w]hen these comments are placed in the unique context of the evidence presented at this trial, the comments related to ‘wealth’ and ‘power’ do not merit reversal.”
Finally, the court rejected the assertion that Plaintiffs’ argument impermissibly denigrated the defense. Some of the arguments “approached the boundary,” but did not warrant reversal.
The court summarized: “Plaintiffs’ counsel’s comments during his closing argument in this case may be considered to be close to the limits of what is acceptable. Indeed, they may well justify reversal in a different context. In the context of the evidence of this particular trial, however, we find that the comments did not rise to a level that requires reversal. This conclusion is particularly compelling here because the trial spanned nearly three weeks and closing argument ended on a Friday. The jury returned the following Monday, engaged in two days of deliberation, and found in favor of [Defendant] on the question of punitive damages and concealment; awarded less than the compensatory amount requested for the [decedent’s] daughter; and attributed a higher percentage of comparative negligence to [decedent] than what Plaintiffs’ counsel argued for in closing. These actions by the jury strongly indicate the jury was not inflamed, prejudiced, or improperly mislead by closing arguments.” R.J. Reynolds Tobacco Co. v. Schleider, __ So.3d __ (Fla. 3d DCA, No. 3D15-1634, 12/26/2018), 2018 WL 6786635.
Although court may be able to sanction insurer for egregious or bad-faith conduct that lawyer hired by insurer commits while defending insured, it would have to make detailed factual findings describing offending conduct by insurer. [Added 8/3/18]
Insurance carriers FCCI and Empire were in litigation. The trial court disqualified FCCI’s lawyer for misconduct. The court then, under its inherent authority to impose sanctions for egregious or bad-faith conduct, awarded attorney’s fees against FCCI “based on its finding that FCCI ‘did direct and orchestrate’ the attorney’s misconduct.” FCCI appealed.
The Second DCA reversed. The trial court did not make specific findings of egregious or bad-faith conduct on the part of FCCI. “We have found no case that would preclude a trial court from sanctioning an insurer for egregious or bad-faith conduct that the insurer committed while performing its duty to defend the insured. Nonetheless, in such circumstances, the trial court cannot ignore that it should rarely invoke this inherent authority, see Bitterman [v. Bitterman], 714 So. 2d [356 (Fla. 1998)] at 365, and should do so only after complying with Moakley [v. Smallwood, 826 So.2d 221 (Fla. 2002)]. Thus, although we do not rule out that an insurer could be liable for the egregious or bad-faith conduct of the attorney that it has hired to represent its insured, it would not be sufficient for the trial court to find simply that the insurer had taken an active role in the representation of the insured because no authority provides an exception to the requirement that the trial court make detailed factual findings describing the specific egregious or bad-faith conduct committed by the party against whom sanctions are imposed.” FCCI Ins. Co. v. Empire Indemnity Ins. Co., __ So.3d __ (Fla. 2d DCA, No. 2D17-1749, 7/13,2018), 2018 WL 3404044.
Distinguishing a recent line of cases, the Fourth DCA affirms a plaintiff’s judgment despite closing argument by plaintiff’s counsel disparaging the tobacco company for defending itself. [Added 12/23/16] -- R.J. Reynolds Tobacco Co. v. Odom, __ So.3d __ (Fla. 4th DCA, No. 4D14-3867, 11/30/2016), 2016 WL 6992162.
Summary judgment granted against clients of lawyer who returned a few minutes late from restroom is reversed. [Added 12/6/16] -- Natiello v. Winn-Dixie Stores, Inc., __ So.3d __ (Fla. 4th DCA, No. 4D15-2501, 11/16/2016), 2016 WL 6678678.
Court not required to use “magic words ‘bad faith’” in order sanctioning lawyer for repeatedly violating court orders and putting inadmissible evidence before jury. [Added 11/29/16] -- Robinson v. Ward, __ So.3d __ (Fla. 2d DCA, Nos. 2D14-4799, 2D14-5359, 11/9/2106), 2016 WL 6609585.
Fourth DCA affirms judgment even though juror violated trial court’s order by commenting on social media while trial was pending. [Added 11/17/16] --Murphy v. Roth, __ So.3d __ (Fla. 4th DCA, No. 4D14-4830, 10/5/2016), 2016 WL 5803658.
Court erred in dismissing party’s case as sanction based on its counsel’s conduct in different case. [Added 11/9/16] -- Reverse Mortgage Solutions, Inc. v. Unknown Heirs, __ So.3d __ (Fla. 1st DCA, No. 1D16-966, 10/7/16), 2016 WL 5874434.
Lawyer convicted of indirect criminal contempt and referred to Bar for violating court’s confidentiality order. [Added 8/10/16] -- Clover v. State, __ So.3d __ (Fla. 5th DCA, No. 5D15-1714, 8/5/2016), 2016 WL 4150232.
Court erred in ordering party’s lawyer, who was not counsel of record, deposed. [Added 6/18/15] -- Eller-I.T.O. Stevedoring Co., LLC v. Pandolfo, __ So.3d __ (Fla. 3d DCA, No. 3D14-2904, 6/17/2015) (on motion for clarification), 2015 WL 3759570.
Second DCA reverses verdict for defendants in personal injury case and remands for a new trial, refusing to reward defense counsel’s “’gotcha’ tactics.” [Added 2/11/15] -- Andreaus v. Impact Pest Management, Inc., __ So.2\3d __ (Fla. 2d DCA, No. 2D14-1688, 2/6/2015).
Fourth DCA publishes opinion serving as “primer” for prosecutors and criminal defense counsel on improper arguments and failure to preserve error. [Added 5/27/14] -- Augustine v. State, __ So.3d __ (Fla. 4th DCA, No. 4D12-2881, 5/14/2014), 2014 WL 1908817.
Fifth DCA imposes 57.105 sanctions on party and her lawyer, noting that her arguments on appeal were as frivolous as her claim in the underlying case. [Added 3/19/14] -- Badgley v. SunTrust Mortgage, Inc., __ So.3d __ (Fla. 5th DCA, No. 5D13-2500, 3/14/2014).
Fifth DCA observes that spouse’s offensive conduct during litigation, not during the marriage, may support section 57.105 sanctions. [Added 2/20/14] -- Shadwick v. Shadwick, __ o.3d __ (Fla. 2d DCA, No. 2D12-6235, 2/14/2014).
Subordinate lawyers remain responsible for complying with ethics rules even when acting at their superior’s direction. [Added 9/16/13] -- Briarwood Capital v. Lennar Corp., 125 So.3d 291 (Fla. 3d DCA 9/11/2013).
Letter of protection between plaintiff and her treating physician who testified as an expert is admissible to show physician’s potential bias. [Added 9/5/13] -- Pack v. Geico General Ins. Co., 119 So.3d 1284 (Fla. 4th DCA 9/4/2013).
Trial court lacked authority to impose monetary sanctions on party for filing Bar complaints against opponent’s lawyers. [Added 8/26/13] -- Kass Shuler, P.A. v. Barchard, 120 So.3d 165 (Fla. 2d DCA 8/23/2013).
Court abused its discretion in paternity case by sanctioning father for challenging recommendations in psychologist’s report. [Added 8/21/13] -- J.D.C. v. M.E.H., 118 So.3d 933 (Fla. 2d DCA 8/7/2013).
On rehearing, Fourth DCA affirms trial court’s dismissal of case for fraud on the court. [Added 8/12/13] -- Herman v. Intracoastal Cardiology Center, 121 So.3d 583 (Fla. 4th DCA 8/7/2013) (on rehearing).
Fifth DCA sanctions law firm’s lawyers for their "negligent" work on “frivolous” initial appellate brief and improper reply brief. [Added 7/1/13] -- Hagood v. Wells Fargo, N.A., 125 So.3d 1012 (Fla. 5th DCA 6/28/2013).
Calling the quality of their legal work “disturbing,” Fifth DCA orders 3 lawyers to show cause why they should not be sanctioned. [Added 5/20/13] -- Hagood v. Wells Fargo, N.A., 112 So.3d 770 (Fla. 5th DCA 5/17/2013).
Court erred in denying motion for new trial based on alleged juror misconduct without conducting juror interview. [Added 5/2/13] -- Hillsboro Management, LLC v. Pagono, 112 So.3d 620 (Fla. 4th DCA 4/24/2013).
Lawyers whose bookkeeper embezzled millions in client funds are disbarred for trust accounting violations and their conduct in responding to the problem. [Added 3/30/13] -- Florida Bar v. Rousso, 117 So.3d 756 (Fla. 3/28/2013).
Defense counsel’s violation of a motion in limine prohibiting mention of plaintiff’s visit to a lawyer on the day of the accident results in reversal. [Added 3/20/13] -- Howard v. Palmer, 123 So.3d 1171 (Fla. 4th DCA 3/13/2013).
Third DCA awards fees under section 57.105(1) as sanction against insurance company and its counsel. [Added 2/8/13] -- Albelo v. Southern Oak Ins. Co., __ So.3d __, 38 Fla.L.Weekly D301 (Fla. 3d DCA, No. 3D11-3012, 2/6/2013), 2013 WL 440199.
Court abused discretion in dismissing complaint based on alleged fraud on the court. [Added 12/31/12] -- Rocka Fuerta Construction Inc. v. Southwick, Inc., 103 So.3d 1022 (Fla. 5th DCA 2012).
Lawyer who appealed 57.105 attorney’s fee sanction by arguing 1979 version of statute now faces imposition of appellate sanctions. [Added 12/17/12] -- Robbins v. Rayonier Forest Resources, L.P., 102 So.3d 737 (Fla. 1st DCA 2012).
Fifth DCA orders imposition of sanctions and refers counsel to the Florida Bar for “willful non-disclosure of truthful facts in discovery.” [Added 8/15/12] -- Jones v. Publix Super Markets, Inc., 114 So.3d 998 (Fla. 5th DCA 2012).
Judge’s actions to control attorney behavior in courtroom are not grounds for disqualification, per Third DCA. [Added 6/29/12] -- Bert v. Bermudez, 95 So.3d 274 (Fla. 3d DCA 6/20/2012).
Defense counsel in a civil case “stepped over the behavioral bounds” so often during trial that the Fifth DCA reversed the judgment. [Added 2/8/12] --Irizarry v. Moore, 84 So.3d 1069 (Fla. 5th DCA 2012).
Motion to disqualify judge for denying continuance and “demeanor” with counsel properly denied as legally insufficient. [Added 12/20/11] -- Ramos v. State, 75 So.3d 1277 (Fla. 4th DCA 2011).
Criminal conviction reversed because court abused its discretion in denying motion to substitute counsel and for short continuance. [Added 12/20/11] -- Alvarez v. State, 75 So.3d 420 (Fla. 4th DCA 2011). In unusual case,
Third DCA sanctions debtors and their counsel for abusing the legal process in a mortgage foreclosure case. [Added 6/28/11] -- JPMorgan Chase Bank, N.A. v. Hernandez, __ So.3d ___, 36 Fla.L.Weekly D1328 (Fla. 3d DCA, No. 3D10-1099, 6/22/2011), 2011 WL 2499641.
Court erred in imposing sanctions on party due to conduct of its expert witness. [Added 2/8/11] -- State Farm Mutual Auto. Ins. Co. v. Swindoll, 54 So.3d 548 (Fla. 3d DCA 2011).
Court erred in forbidding party from calling any witnesses other than herself and from introducing documents due to her lawyer's conduct. [Added 2/5/11] - Cossio v. Arrondo, 53 So.3d 1141 (Fla. 3d DCA 2011). Fifth DCA orders lawyer to show cause why sanctions should not be imposed for filing improper motion for rehearing. [Added 1/15/11] -- Marion v. Orlando Pain & Medical Rehabilitation, 67 So.3d 264 (Fla. 5th DCA 2011).
Per Supreme Court, party whose objections to lawyer misconduct at trial are sustained must move for mistrial to preserve issue for motion for new trial. [Added 12/17/10] -- Companioni v. City of Tampa, 51 So.3d 452 (Fla. 2010).
Rules of Judicial Administration do not require lawyer to disclose names of persons who own and control lawyer's corporate clients. [Added 12/17/10] -- Empire World Towers, LLC v. CDR Creances, S.A.S., 48 So.3d 1033 (Fla. 3d DCA 2010).
Fifth DCA approves sanctions against parties and their counsel after the parties failed to appear at court-ordered mediation. [Added 12/9/10] -- Mash v. Lugo, 49 So.3d 829 (Fla. 5th DCA 2010).
Court erred in denying continuance where party was unemployed and her counsel withdrew on eve of trial. [Added 12/3/10] -- Quintero v. Kenyon, 49 So.3d 808 (Fla. 3d DCA 2010).
Fourth DCA urges Supreme Court to allow trial courts to sanction attorneys for reckless misconduct, not just bad faith. [Added 11/5/10] -- Rivero v. Meister, 46 So.3d 1161 (Fla. 4th DCA 2010).
Court's failure to inquire into defense counsel's potential conflict is not subject to harmless error rule. [Added 9/14/10] -- Hannah v. State, 42 So.3d 951 (Fla. 4th DCA 2010).
Third DCA reverses substantial verdict based on improper argument by plaintiff's counsel. [Added 9/1/10] -- Fasani v. Kowalski, 43 So.3d 805 (Fla. 3d DCA 2010).
Fourth DCA criticizes lawyers for failure to comply with candor-toward-the-tribunal rule. [Added 8/31/10] -- Dept. of Children and Families v. D.B.D., 42 So.3d 916 (Fla. 4th DCA 2010).
JCC does not have statutory authority to strip employer/carrier of defenses on ground that its lawyer engaged in fraudulent conduct. [Added 6/1/10] -- McArthur v. Mental Health Care, Inc./Summit Claims Center, 35 So.3d 105 (Fla. 1st DCA 2010).
Lawyers and client sanctioned for appealing non-appealable order, and court notes that client may have conflict-free counsel when sanction amount is determined on remand. [Added 5/19/10] -- Maradriaga v. 7-Eleven, 35 So.3d 109 (Fla. 1st DCA 2010).
First DCA imposes 57.105 fees against party and his lawyer who sought certiorari review after unsworn motion to disqualify JCC was denied. [Added 3/5/10] -- Skarka v. Lennar Homes, Inc./Broadspire, 29 So.3d 1170 (Fla. 1st DCA 2010).
Florida Supreme Court vacates death sentence due to prosecutorial misconduct. [Added 1/20/10] -- Johnson v. State, 44 So.3d 51 (Fla. 2010) (revised opinion).
Despite improper argument that one judge called "outrageous," Third DCA affirms criminal conviction. [Added 4/28/09] -- Williams v. State, 10 So.3d 218 (Fla. 3d DCA 2009).
Comments by insurer's lawyer concerning allegedly fraudulent workers' compensation claim were non-actionable as statements of pure opinion. [Added 8/26/08] -- Dreggors v. Wausau Ins. Co., 995 So.2d 547 (Fla. 5th DCA 2008).
Jury verdict reversed due to counsel's statement during voir dire that he was "consumer justice attorney" representing an individual rather than a "fancy company." [Added 8/26/08] -- Hollenbeck v. Hooks, 993 So.2d 50 (Fla. 1st DCA 2008).
Defense verdict in slip and fall case reversed due in part to counsel's argument that violated Rule of Professional Conduct 4-3.4(e). [Added 12/30/2007] -- entimiglia v. TGI Fridays, Inc., 980 So.2d 1087 (Fla. 4th DCA 2007).
Although condemned by Supreme Court as improper, counsel's argument in tobacco case did not rise to level of reversible error. [Added 12/21/06] -- Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006) (revised opinion).
Lawyers who change addresses should file notice of the change in each active litigation file. [Added 10/24/06] -- Richardson v. Chase Manhattan Bank, 941 So.2d 435 (Fla. 3d DCA 2006).
Plaintiff had responsibility to do own investigation before naming Fabre defendant, and could not rely on assertions of opponent to avoid Fla.Stat. sec 57.105 fee award. [Added 8/2/06] -- Yakavonis v. Dolphin Petroleum, Inc., 934 So.2d 615 (Fla. 4th DCA 2006).
Prosecutor's Biblical reference during cross-examination did not constitute fundamental error, per Florida Supreme Court. [Added 7/7/06] -- Farina v. State, 937 So.2d 612 (Fla. 2006).
Lawyer sanctioned for phoning in to mediation rather than personally appearing as ordered. [Added 2/28/06] -- Hernando County School Board v. Nazar, 920 So.2d 794 (Fla. 5th DCA 2006).
Supreme Court eliminated distinction between "active" and "passive" record activity for purposes of determining dismissal for failure to prosecute. Wilson v. Salamon, 923 So.2d 363 (Fla. 2005).
Client's absence from defense counsel's ex parte disclosure to court of counsel's concerns about his ability (due to anticipated bar complaint and client perjury) to be effective violated client's due process rights. Frett v. State, 864 So.2d 577 (Fla. 2d DCA 2004).
Lawyer's suspension for failure to maintain CLE credits is not "good cause" for client's failure to prosecute case. Orsonio v. Fuller, Mallah and Associates, 857 So.2d 973 (Fla. 3d DCA 2003).