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Moakley bad faith can be shown by the wife’s attorney’s service of two pleadings on the previous attorney (who had not withdrawn on the record).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.

Fourth District Sanctions Counsel For Failing To Confess Error on Appeal

In Lieberman v. Lieberman (4D14-509), the Fourth District again explained what should be obvious: you have an obligation to concede error if controlling caselaw requires a reversal. In this case that did not happen. The court first discussed the merits of the petition for writ of certiorari. Relying upon “Rule Regulating the Florida Bar 4-3.7(a) which states that ‘[a] lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness on behalf of the client . . . .’”, the trial court disqualified the former husbands new counsel, which also happened to be his new wife. 

After noting that “certiorari jurisdiction lies to review an order disqualifying counsel from representing a client at trial,” the court concluded "that the order of disqualification departs from the essential requirements of law because it is not limited to Ferrer’s participation during the contempt hearing. As is well established by numerous Florida courts, the fact that Ferrer was a potentially necessary witness at the contempt hearing would not prevent her from serving as the former husband’s attorney in other pre-trial, trial, and post-trial proceedings.”

In this case, that holding did not end the court’s opinion. The court continued as follows:

Under normal circumstances, we would conclude this opinion by simply granting the petition and quashing the trial court’s order of disqualification and therein recognize that the order of disqualification was impermissibly overbroad. However, the actions of counsel for the former wife, Kenneth Kaplan, have transformed this “simple” matter into an unnecessary and protracted controversy by the failure of Kaplan to acknowledge clear and unambiguous controlling law directly adverse to his client’s position. As such, we are compelled to take the extraordinary but not unprecedented step of awarding appellate attorney’s fees as a sanction. See Santini v. Cleveland Clinic Fla., 65 So. 3d 22, 40-41 (Fla. 4th DCA 2011) (awarding appellate attorney’s fees as a sanction for a frivolous defense of a “patently erroneous” trial court order), review denied, 90 So. 3d 272 (Fla. 2012); see also Crowley v. Crowley, 678 So. 2d 435, 440 (Fla. 4th DCA 1996) (recognizing that “attorney’s fees may be awarded as a punitive measure where a spouse in a domestic relations case institutes frivolous . . . claims that contribute to unnecessary legal expenses, costs and a delay of the proceedings”).  

Although the former husband did not cite KMS, Graves, or Cerillo, either here or in the trial court, Kaplan had an obligation to concede error based on those cases and the plain language of the rule.  

“[A]ppellate counsel . . . has an independent [] obligation to present . . . the applicable law accurately and forthrightly. This will sometimes require appellate counsel to concede error where . . . the law is clearly contrary to the appellee’s position and no good-faith basis exists to argue that it should be changed.” 

Boca Burger, Inc. v. Forum, 912 So. 2d 561, 571 (Fla. 2005). The trial court’s order of disqualification did not just prohibit Ferrer from representing the former husband at the contempt hearing; it generally prohibited her from any further representation of the former husband. The disqualification order is contrary to the plain terms of rule 4-3.7(a), titled “When Lawyer May Testify,” which prohibits the lawyer from acting “as advocate at a trial in which the lawyer is likely to be a necessary witness on behalf of the client.” R. Regulating Fla. Bar 4-3.7(a) (emphasis added). The rule does not support general disqualification of counsel. 

**** 

In this case, there was no legal basis for disqualifying Ferrer from representing the former husband in any proceedings subsequent to the contempt hearing. Therefore, the former wife’s counsel, Mr. Kaplan, should have confessed error as to the trial court’s general order of disqualification. Failure to do so was a self-evident violation of counsel’s duty to disclose legal authority adverse to his client’s legal position and argument. R. Regulating Fla. Bar 4-3.3(a)(3); Dilallo ex rel. Dilallo v. Riding Safely, Inc., 687 So. 2d 353, 355 (Fla. 4th DCA 1997) (holding that rule 4-3.3(3) implies a duty to know and disclose adverse legal authority to the courts); see also R. Regulating Fla. Bar 4-3.1 (“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law.”). 

Accordingly, we remand this matter to the trial court to assess the amount of appellate attorney’s fees to be imposed as sanction on the former wife for her counsel’s baseless defense in this proceeding. Santini, 65 So. 3d at 41.

Dismissal With Prejudice for Discovery Violations Reversed

In PNC Bank, N.A. v. Duque (4D12-1799), the Fourth District reversed a trial court's order dismissing a complaint with prejudice as a result of discovery violations. In this foreclosure action, the defendant served numerous discovery requests to which the plaintiff, allegedly, failed to respond. As a result, the defendant sought sanctions and the trial court dismissed the case with prejudice. The plaintiff filed a motion for rehearing directed to the dismissal, however, that motion was denied and the plaintiff appealed. On appeal, the court held:

We have reviewed the trial court’s order. While indicating that the court considered the six Kozel factors, the order lacked specific findings as to each. We do not condone the bank’s failure to comply with discovery and court orders; we feel the trial court’s frustration. But, as the bank argues, the homeowners made numerous confusing and cumulative discovery requests while failing to file a responsive pleading for two years. There was no evidence that the violations were caused by the bank itself. The homeowners suffered no prejudice, and the bank’s violations did not cause any significant problem with judicial administration.  

The law does not always provide a good roadmap for trial courts. In this area of sanctioning non-compliant parties, however, our supreme court has done just that. See Kozel, 629 So. 2d at 818. When the trial court fails to follow that roadmap, reversal is warranted. See Bank One, 873 So. 2d at 521–22. 

Fifth District Affirms and Issues Sanctions Order On Own Motion

In Badgley v. SunTrust Mortgage (5D13-2500), the Fifth District affirmed the trial court's sanction order and, sua sponte, ordered "order Badgley and her attorney to pay, in equal amounts, the reasonable attorneys' fees and costs incurred by Appellees in this appeal, pursuant to section 57.105(1), Florida Statutes." There were a number of issues raised on appeal and are generally described below:

In her first issue, she baldly asserts that dismissing a complaint prior to discovery violates due process of law. The law is to the contrary.

***

In her second and third issues, Badgley argues that the dismissal of her complaint with prejudice was error even though she had already amended the complaint once as a matter of right and her quiet title theory was legally unsupportable based on the alleged facts. She claimed her lenders created a cloud on her title by refusing to respond to her absurd demand of them to "prove" that she owed them money. Not only is there no legal basis to support such a claim, the attachments to the complaint clearly demonstrate, as Badgley later admitted, that she 'took a mortgage and got the money.'

***

In her fourth issue, Badgley claims Appellees' fee motion below was untimely filed after the dismissal judgment even though Appellees' motion for sanctions was timely filed before the judgment awarding fees.

***

Finally, Badgley disputes the sanction award even though similar complaints by plaintiffs represented by her attorney have been dismissed and have been the basis for sanctions.

In a footnote to the discussion of the second and third issue, the court described the claim that the lender created a cloud on title as follows: "Badgley sent Appellees a written demand to 'validate that an actual debt exists' by producing twenty-three separate categories of documents. The demand stated that if Appellees failed to produce the information requested in their next correspondence, they would 'be accepting my offer to provide pen pal services at $100,000.00 per correspondence.' It further notified Appellees that by 'failure to validate the alleged debt,"as demanded, they would tacitly agree to waive any and all claims against Badgley, would release her from any encumbrances clouding title to her property, and would be subject to a quiet title action.'" (Emphasis is mine).

Fifth District Orders Counsel To Appear Regarding Possible Sanctions For Frivolous Rehearing Motion

In Marion v. Orlando Pain & Medical Rehabilitation (5D06-4243), the Fifth District denied a motion for rehearing, and entered an order to show cause as to why the attorney that filed the motion should not be sanctioned.  The motion for rehearing included statements such as:

1.  Oh.

2.  Please forgive in advance if, through the words of this Motion you can hear the author screaming, but I  cannot overcome my indignation engendered by this Honorable Court's per curiam affirmance of the lower court's order.  I understand that Motions for Rehearing are seldom granted by appellate courts, and for good reason.  However, I must believe that if I correctly state the facts of this case, the court will retract its opinion and reconsider the issue.  I assume that I failed in my obligation in the initial briefs. 

[and]

6.  In short, [Appellees] ran a con,  using the (now, surprisingly, defunct) clinic as a shell.  And now the Court seems to be saying this is OK in the Fifth District.  If so, I have lived too long.  (I am sorry -- I am screaming again.) 

The appellees "addressed the impropriety of Appellant’s motion in considerable detail and sought sanctions."  In response to the motion for sanctions, the "Appellant pressed on, albeit with a somewhat more conciliatory tone.  Appellant nevertheless delivered a “tit for tat” by demanding that Appellees’ counsel be caused to appear before the court to “explain  in detail” his assertion that Appellant’s statement of facts was improper."

The Court was not amused.  The court stated:

We have repeatedly admonished the bar regarding the impropriety of motions such as this.  See Amador v. Walker, 862 So. 2d 729 (Fla. 5th DCA 2003), and cases cited therein.  Motions for rehearing are not to be used  for the purpose of venting counsel’s frustrations with the form or substance of the court’s decision.  Id.  They are rarely, if ever, warranted when the decision is without opinion.  See Snell v. State, 522 So. 2d 407 (Fla. 5th DCA 1988) (absent a written opinion, motion for rehearing cannot direct court to matters overlooked).

In this motion, not only does counsel  violate this admonition, he does so unabashedly -- by admitting that it was his primary purpose in filing the motion.  The motion itself completely fails to satisfy any  of the requisites of a  proper motion of this nature or of any other pleading filed by a professional lawyer for that matter.  It fails to tell us what “fact” we overlooked.  It contains assertions that have no support in the record, are scandalous and are legally irrelevant........

Based upon the apparent violations of  numerous rules of court and the rules governing the conduct of attorneys, counsel for Appellant, [], is directed to appear before this Court on February 17, 2011, at 11:30 a.m., to show cause why monetary or other sanctions should not be imposed pursuant to Florida Rule of Appellate Procedure 9.410 (a) and (b), and section 57.105, Florida Statutes (2010).  The Court reserves jurisdiction for this and other proper purposes. 

11th Circuit Affirms $400,000 Sanction After Counsel Filed Deposition Errata Sheet With 868 Changes

In Norelus v. Denny's Inc. (07-14077), a divided three judge Eleventh Circuit panel released a published opinion and affirmed the district court's order sanctioning the attorneys for the plaintiff.  Judge Carnes wrote the majority opinion. Judge Bowen, United States District Judge for the Southern District of Georgia, sitting by designation, concurred in the opinion with the exception of Section III.C.  The portion of the opinion that Judge Bowen did not concur in is found on pages 49 through 62 of the opinion.  Judge Tjoflat filed a dissenting opinion which begins on page 76.  The trial court's decision was affirmed, however, the portion of the majority opinion which lacked a concurring judge presumably carries the weight of a concurring opinion.  The opinion began:

No one’s memory is perfect. People forget things or get confused, and anyone can make an innocent misstatement or two. Or maybe even three or four. But not 868 of them. In this case, the plaintiff’s attorneys, William and Karen Amlong, filed a sixty-three page errata sheet containing 868 attempted changes to their client’s deposition testimony, which was the sole source of evidentiary support for their client’s claims. The district court exercised its authority under 28 U.S.C. § 1927 to sanction the Amlongs. This is their appeal, or more specifically their second appeal.

This is the second appeal as the trial court had previously entered a sanction order which was reversed with instructions.  See Amlong & Amlong, P.A. v. Denny’s, Inc., 500 F.3d 1230 (11th Cir. 2007).

In this second appeal, the court stated that "n attorney multiplies court proceedings 'unreasonably and vexatiously,' thereby justifying sanctions under 28 U.S.C. § 1927, 'only when the attorney’s conduct is so egregious that it is ‘tantamount to bad faith.’”  Without even attempting to put words into Judge Carnes opinion, I interpret the opinion as having the biggest problem with the fact the the attorneys continued to represent the client, and pursue the same legal theories, after the filing of the errata sheet containing the 868 changes.  The court stated:

As the magistrate judge found and no one (with the possible exception of the dissenting judge on this panel) seriously contests, the improper submission of the massive errata document rendered the eight days spent on Norelus’ deposition a waste of time and money to say nothing of the time the attorneys were forced to spend on the issues created by the document itself. The Amlongs’ decision to press on with Norelus’ claims after the creation of the errata document wasted more time and money. Together, the submission of the errata document and the continued pursuit of Norelus’ claims afterwards unquestionably prolonged and multiplied the proceedings...... 

Still, like Ahab hunting the whale, the Amlongs relentlessly pursued the claims. All the while they blinded themselves to as much of the contradictory evidence as they could. They deliberately did not obtain the deposition testimony of any of Norelus’ co-workers who would have seen or heard something had anything improper occurred. They did not concern themselves with that testimony, according to Karen Amlong, because they assumed all of the witnesses, except for their client, were either lying or simply could not remember witnessing the gross sexual harassment inflicted on her.  When the truth was thrust in the Amlongs’ faces, they stubbornly ignored it and kept on litigating.

The portion of Judge Carnes' opinion which Judge Bowen did not join began: 

Up to this point, we have addressed the issues related to the errata document and the award of sanctions as those issues have been raised and defined since that document was submitted fourteen years ago. Our dissenting colleague, by contrast, has hatched a brand new theory—a theory that was never raised by the parties, never considered by the district court, and never argued to this Court. The theory that he has conjured up is that the errata sheet was really nothing more than a “letter” from Karen Amlong to defense counsel. It was not, he insists, an errata sheet because he thinks it was never presented to the court reporter or affixed to Norelus’ deposition as, he thinks, Federal Rule of Civil Procedure 30 requires. Dissenting Op. at 1. He is wrong on his premises and wrong in his conclusion.

The section later stated:

The first and only time this issue has been raised in the more than fourteen years since the errata document was submitted is now, by our dissenting colleague who wants us to share his novel vision and reverse the district court’s award of sanctions on that basis. Even if his vision had any factual basis, there are two walls of precedent standing against what he wants to do. The first one is our well established rule against reversing a district court judgment on the basis of issues and theories that were never presented to that court—issues not raised in the district court should not be considered on appeal.

Finally, the section concluded "Issues should not sprout like weeds in appellate opinions no matter how fertile the minds of the judges deciding the appeal. We could not reverse the district court based on the dissenting opinion’s new theory of the case, even if it had a factual basis, which it does not."

The final section of the majority opinion, which Judge Bowen did join, addressed whether a party can be awarded those fees and costs that actually stemmed from the sanctions proceeding itself.  The court stated:

This is the first time we have addressed whether a district court may include costs arising from the sanctions proceedings themselves in an award of § 1927 sanctions. Other circuits have tackled this issue in the closely related context of rules-based sanctions. Many of those courts have held that it is within the discretion of a district court to include within a sanctions award costs incurred in obtaining that award.

The court concluded that those fees and costs are awardable and stated:

We begin our analysis of what the statute permits where we always should: the statute’s plain language. See Nguyen v. United States, 556 F.3d 1244, 1250 (11th Cir. 2009). The plain language of 28 U.S.C. § 1927 establishes that, in making a sanctions award to a party, a court may include the “costs, expenses, and attorneys’ fees” that the party victimized by the sanctionable conduct incurred in obtaining the award. Id. After all, those costs are, in the statute’s terms, “incurred because of such conduct.” Id. If there were no sanctionable conduct there would have been no proceeding to impose sanctions. Because the costs arising from the sanctions proceedings were “occasioned by the objectionable conduct,” McMahan, 256 F.3d at 1128 (citing Peterson, 124 F.3d at 1396), a district court may include costs arising from the sanctions proceedings in the sanctions award. 

Because the statutory language is unambiguous, we could end our analysis there.

The opinion went on to discuss policy reasons why the costs incurred in prosecuting a sanctions motion are recoverable.  

The "dissent is organized as follows. Part I sets out Rule 30, explains the purpose of an errata sheet, and addresses how courts enforce Rule 30’s requirements pertaining to errata sheets. Part II initially establishes that Karen Amlong fully understood how, under Rule 30, an errata sheet becomes part of a deponent’s deposition and then explains that she did not intend the 'errata sheet' she sent defense counsel to comply with Rule 30 and become part of Norelus’s deposition. Part III establishes that defense counsel failed to comprehend this and, thus, erroneously concluded and represented to the court that the 'errata sheet' was part of Norelus’s deposition. In turn, part IV shows how defense counsel’s error led to the § 1927 sanctions at issue in this appeal. Finally, part V explains why, in light of the foregoing, levying these sanctions was improper."

Court Sanctions Party & Counsel For Filing Rehearing Motion That Lacked Merit

In Unifirst Corporation v. City of Jacksonville, Tax Collectors Office (1D09-0820), the First District sanctioned a party and its counsel for filing a motion for rehearing when the appellant "knew or should have known that the motion lacks legal merit and violates the legal principles and rules of appellate procedure."  The court stated:

Section 57.105(4) provides that the party seeking sanctions must serve the opposing party with a copy of the motion, but may not file it with the court “unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.” Florida Rule of Appellate Procedure 9.330(a), however, allows a party only ten days to respond to motions for rehearing. Thus, as Appellee acknowledges, it was unable to comply with section 57.105(4) and also timely respond to Appellant’s motion for rehearing. Although Appellee’s motion for attorney’s fees and sanctions was improperly filed, for the reasons explained below, this court, on its own initiative, awards Appellee attorney’s fees. See § 57.105(1), Fla. Stat. (2009) (providing the court may award fees on its own initiative).

***

Appellant filed a motion seeking rehearing or clarification and rehearing en banc. In it, Appellant addressed the merits of the lower court’s final judgment allowing certain documents into evidence and the general sufficiency of the evidence. These arguments were raised in Appellant’s Initial Brief and extensively addressed during oral argument; rearguing these points was improper.

***

Florida Rule of Appellate Procedure 9.330(1) has been interpreted to mean that “[a] motion for rehearing shall not reargue the merits of the court’s order.”...Appellant compounded its error by including in its motion new arguments related to an issue already addressed in its briefs and at oral argument. “[L]egal arguments . . . must be made between the parties before a judicial decision is rendered; not between one litigant and a tribunal which has already ruled.”...To illustrate the egregiousness of Appellant’s violation of this principle, Appellant dedicated less than one page of its Initial Brief to this issue, and cited no cases, either in its briefs or during oral argument; yet in its rehearing motion, Appellant devoted over five pages to the issue and, for the first time, cited and discussed several cases.

Both Florida Rule of Appellate Procedure 9.330 and the cases we have cited existed at the time Appellant filed its motion; thus, Appellant’s attorney knew or should have known that the motion would not be supported by the application of the law to the material facts of this case. Consequently, a sanction of attorney’s fees pursuant to section 57.105(1)(b) is warranted. 

In its motion for rehearing, Appellant also requested a written opinion, arguing that this court’s per curiam affirmance conflicts with an opinion issued by the Third District Court of Appeal and that clarification “would provide a legitimate basis for Supreme Court review.” It is meritless to argue that an opinion which says nothing more than “Affirmed” conflicts with a written opinion issued by another district court.