Wednesday, December 16, 2015

Sanction Over Not Removing Prior Counsel From E-Service List Reversed

In Houston v. McKnought-Smith (4D14-4927), the Fourth District reversed a trial court's order sanctioning counsel and requiring the "former wife’s attorney to pay attorney’s fees to the former husband’s previous attorney."

The court "the previous attorney claimed that he had to file a motion requesting that the wife’s attorney be ordered not to serve him, and requesting attorney’s fees. In granting the motion and ordering the payment of fees at a non-evidentiary hearing, the court failed to make the necessary finding that the wife’s attorney acted in bad faith in serving the husband’s previous attorney." Therefore, the order was reversed in order to allow for an evidentiary hearing. 

There were also two footnotes in the opinion. The second footnote stated that "it is difficult to believe that any Moakley bad faith can be shown by the wife’s attorney’s service of two pleadings on the previous attorney (who had not withdrawn on the record). However, because there was no evidentiary hearing, all of the facts are not present. Nevertheless, it appears that professionalism has eluded these attorneys, burdening both the trial court and this court."

The first footnote indicates there was a question without an answer regarding e-filing. The court stated that "it is unclear whether the wife’s attorney could have prevented service through the electronic filing portal on an attorney that the portal had listed for service."  

I do not think the answer would impact the "it is difficult to believe" portion of the second footnote quoted above, because I think the court was indicating that it is difficult to believe that the conduct is sanctionable regardless of the ability to deselect a recipient. However, as shown below, page 6 of the Florida Court's E-Filing Portal Handbook shows that it is possible to deselect a recipient: 

The entire handbook can be viewed HERE. It is also possible to remove yourself from a service list:

See page 21 of the handbook.


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