In Rivero v. Meister (4D09-2555), the Fourth District reversed a trial court order finding that the attorneys acted negligently and requiring the attorneys to pay the appellee's attorneys fees. Judge Gerber wrote the opinion for the Court and Judge Damoorgian wrote an opinion concurring specially with the majority. After counsel for the appellee failed to appear for trial, the trial court continued the trial and counsel for the appellee filed a motion for sanctions. The motion stated:
The failure of an attorney to appear at a scheduled trial date amounts to disregard of a Court Order, jeopardizes the rights of his own client, damages the rights of his opponent and damages the efficient administration of justice. No claim is made by undersigned counsel that opposing counsel did this knowingly or with intent.
(emphasis in opinion). The trial court held a hearing on the motion and stated that "The issue here this morning is not whether sanctions are going to be imposed, just the amount.” The opinion states:
The court issued a written order granting the plaintiff’s motion. The court noted that under Moakley v. Smallwood, 826 So. 2d 221, 226 (Fla. 2002), it had the “inherent authority to impose sanctions” for the defendants’ attorneys’ conduct. The court then stated:
This situation was caused by the negligence of [the defendants’ attorneys]. Therefore, the Court imposes sanctions against [the defendants’ attorneys] in the amount of $10,750.00. The Court further determines that this is not a “taxable cost” to be assessed at the end of this litigation but rather is due and payable immediately.
The court noted:
The defendants’ attorneys acknowledge that their failure to appear was an embarrassing and regrettable event. However, they contend that the trial court abused its discretion when it imposed the monetary sanctions for their failure to appear at trial. They primarily argue that, under Moakley, a court must find an attorney’s conduct to have been in bad faith, and the record establishes that their conduct was not in bad faith. They rely on the plaintiff’s motion, which recognized that they did not fail to appear “knowingly or with intent.” They also rely on the court’s order, which found that the matter was caused by their “negligence.”
The Fourth District stated that because the trial court did not make an express finding that the attorneys had acted in bad faith, they are required to reverse the sanction order. However, the court noted that the result is unfair (at least in certain cirumstances). The court stated that:
Given the unfairness of this result, we believe that our supreme court may wish to re-examine Moakley’s requirement of bad faith. As Justice Wells pointed out in his concurring opinion in Moakley, “bad faith is not defined” in the majority opinion. 826 So. 2d at 228 (Wells, J., concurring). In our view, “bad faith” should be defined to include at least both intentional misconduct and reckless misconduct. “[T]o act ‘recklessly’ is to act ‘in disregard of a risk so obvious’ that the ‘actor must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.’” Dean Witter Reynolds, Inc. v. Hammock, 489 So. 2d 761, 766 (Fla. 1st DCA 1986) (quoting W. Prosser, Law of Torts 185 (4th ed. 1971) (internal citation omitted)).
Finally, the court certified a question of great public importance to the Florida Supreme Court.
If Moakley’s definition of “bad faith” included reckless misconduct, then the trial court would have been justified in granting the plaintiff’s motion for sanctions. Thus, we certify the following question of great public importance:
DOES THE DEFINITION OF “BAD FAITH CONDUCT” IN MOAKLEY V. SMALLWOOD, 826 SO. 2D 221 (FLA. 2002), INCLUDE RECKLESS MISCONDUCT WHICH RESULTS IN THE UNNECESSARY INCURRENCE OF ATTORNEYS’ FEES?