IN THE SUPREME COURT OF FLORID CASE NO. SC12-2555 L.T. CASE NOS. 5D10-2610 KARA SINGLETON ADAMS, Petitioner, v. LAURA BARKMAN and RANDALL HOBBS, Respondents. PETITIONER KARA SINGLETON ADAMS' INITIAL BRIEF ON JURISDICTION Respectfully submitted by, Hinda Klein, Fla. Bar No. 510815 CONROY, SIMBERG, GANON, KREVANS, ABEL, LURVEY, MORROW, & SCHEFER, P.A. 3440 Hollywood Boulevard, Second Floor Hollywood, FL 33021 Phone: (954) 961-1400 Fax: (954) 518-8705 Email: hklein@conroysimberg.com
CASE NO. SCl2-2555 TABLEOFCONTENTS TABLE OF AUTHORITIES...ii POINT ONAPPEAL...1 SUMMARYOF THE ARGUMENT...2 STATEMENT OF FACTS...3 ARGUMENT ONJURISDICTION...5 THE FIFTH DISTRICT'S OPINION IN THIS CASE IS IN EXPRESS AND DIRECT CONFLICT WITH KOZEL V. OSTENDORF, 620 SO. 2D 817 (FLA. 1993) AND HAM V. DUNMIRE, 891 SO. 2D 492 (FLA. 2004), AS WELL AS SEVERAL DISTRICT COURT CASES, INCLUDING BURGESS V. PFIZER, 990 SO. 2D 1140 (FLA. 3D DCA 2008), INSOFAR AS THE APPELLATE COURT FAILED TO CONSIDER WHETHER THERE WERE LESSER AND MORE APPROPRIATE SANCTIONS, OTHER THAN DEFAULTING ADAMS, THAT COULD HAVE BEEN LEVIED AGAINST DEFENSE COUNSEL PERSONALLY FOR HIS MISCONDUCT DURING TRIAL....'...5 CONCLUSION...10 CERTIFICATE OF SERVICE...11 CERTIFICATE OF COMPLIANCE...12 1
TABLE OF AUTHORITIES Cases Aravena v. Miami-Dade County, 928 So. 2d 1163 (Fla. 2006)...8 Burgess v. Pfizer, Inc., 990 So. 2d 1140 (Fla. 3d DCA 2008)...7 Crossley v. State, 596 So. 2d 447 (Fla. 1992)...8 Fiore v. Athineos, 9 So. 3d 1291 (Fla. 4* DCA 2009)...9 Florida Star v. B.J.F., 30 SO. 2D 286 (Fla. 1988)...5 Ford Motor Co. v. Kikis, 401 So. 2d 1341 (Fla. 1981)...8 Ham v. Dunmire, 891 So. 2d 492 (Fla. 2004)...4, 5, 6 Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993)...4, 5 Rudolph v. State, 832 So. 2d 826 (Fla. 3d DCA 2002)... 10 In re Weinstein, 518 So. 2d 1370 (Fla. 4th DCA 1988)...9 Sullivan v. Kanarek M.D., 79 So. 3d 900 (Fla. 2d DCA 2012)...9 11
Other Authorities Article V, 3(B)(3), Fla. Const...5 111
POINT ON APPEAL CASE NO. SC12-2555 THE FIFTH DISTRICT'S OPINION IN THIS CASE IS IN EXPRESS AND DIRECT CONFLICT WITH KOZEL V. OSTENDORF, 620 SO. 2D 817 (FLA. 1993) AND HAM V. DUNMIRE, 891 SO. 2D 492 (FLA. 2004), AS WELL AS SEVERAL DISTRICT COURT CASES, INCLUDING BURGESS V. PFIZER, 990 SO. 2D 1140 (FLA. 3D DCA 2008), INSOFAR AS THE APPELLATE COURT FAILED TO CONSIDER WHETHER THERE WERE LESSER AND MORE APPROPRIATE SANCTIONS, OTHER THAN DEFAULTING ADAMS, THAT COULD HAVE BEEN LEVIED AGAINST DEFENSE COUNSEL PERSONALLY FOR HIS MISCONDUCT DURING TRIAL. 1
SUMMARY OF THE ARGUMENT The Fifth District Court of Appeal's decision in this case is in express and direct conflict with decisions from this Court and other appellate courts on the issue of whether it was appropriate for the trial court to default a defendant on liability as the sanction for her counsel's misconduct during trial. The Fifth District's opinion makes it clear that the Court recognized there are a myriad of other cases throughout the state granting new trials as the sanction for trial misconduct, but it chose not to follow that case law, in favor of sending a message to the Bar, without considering the effect of that message on litigants. In addition, the appellate court's affirmance of a default as the appropriate sanction in this case, where all of the improper conduct occurred during the trial and where the defendant was not involved in that misconduct, is in express and direct conflict with case law throughout Florida holding that, in addition to considering the Kozel factors, the Courts are required to consider whether other sanctions short of default might be more appropriate. In failing to even consider this issue, the Fifth District's opinion therefore conflicts with this Court's decisions in Kozel and Ham, in addition to District Court opinions throughout the state. e 2
STATEMENT OF FACTS1 CASE NO. SCl2-2555 This case arose out of a motor vehicle accident in which Plaintiff/Respondent RANDALL HOBBS (HOBBS), a motorcyclist, rear-ended Defendant/Petitioner KARA ADAMS (ADAMS). (A.2) HOBBS sued ADAMS, contending that she caused the accident by making a sudden lane change which allegedly caused him to suffer brain damage. (A.2) The case was litigated for some time and, after the trial court bifurcated the trial such that the issue of the parties' respective negligence was tried in the first phase and HOBBS' comparative fault in failing to wear his helmet was tried in the damages phase. (A.3) Before and during the trial, the parties argued numerous motions relating to the conduct of the trial, including the propriety of the trial court's bifurcation order. (A.2-3) The trial court ruled that the traffic officer who investigated the accident could not testify as an expert and was confined to testifying solely with respect to his personal observations and the Trooper was so instructed by the Court. (A.4) On cross-examination, defense counsel, Randy Fischer, asked the Trooper whether the tread marks at the scene were consistent with ADAMS' vehicle's going straight ahead. (A.4) HOBBS' counsel objected and after the Trooper concluded his This Statement of Facts is properly confined to only those facts contained within the District Court's opinion. 3
testimony, the trial court considered that objection and HOBBS' motion for mistrial, which the Court granted. (A.4) After the mistrial but before the trial on damages, the Court granted HOBBS' motion for sanctions and, even though neither ADAMS nor her counsel had ever previously been sanctioned, the trial court defaulted ADAMS on liability. (A.4-5) On rehearing, the trial court made specific findings in accordance with Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993) and Ham v. Dunmire, 891 So. 2d 492 (Fla. 2004), finding that Mr. Fischer's violations of the trial court's orders in limine were conscious and intentional. (A.5) The trial court did not consider whether there were lesser, more appropriate sanctions that could have been levied against ADAMS or her counsel Mr. Fischer. (A.5) On appeal, the Fifth District Court of Appeal affirmed the trial court's default on liability. (A.1-6) The appellate court did not, however, find that lesser sanctions would not have been appropriate, but instead concluded: We note that the conduct exhibited by Mr. Fischer is a continuing problem with these types of cases. Although the Southern Reporter is replete with cases where the appellate courts have granted new trials based on similar behavior, counsel for both plaintiffs and defendants continue to make improper arguments and violate orders of the court. In the last two years, this court has admonished other lawyers regarding such conduct on at least three occasions. [citations omitted] While it is suggested that these cases should be tried on the merits and not attorney shenanigans, the threat of an admonishment and a new trial appears to be of no avail. By sanctioning a party as Judge Dickey did in this case, 4
maybe attorneys will get the message to either change their tactics or clients will stop hiring them. At any rate, attorneys need to constantly review the Code of Professional Responsibility and conduct themselves in a professional manner so that every party to the cause receives a fair trial. (A.6) The Fifth District denied ADAMS' Motions for Rehearing, Rehearing En Banc and Certification. This Petition for Review follows. ARGUMENT ON JURISDICTION THE FIFTH DISTRICT'S OPINION IN THIS CASE IS IN EXPRESS AND DIRECT CONFLICT WITH KOZEL V. OSTENDORF, 620 SO. 2D 817 (FLA. 1993) AND HAM V. DUNMIRE, 891 SO. 2D 492 (FLA. 2004), AS WELL AS SEVERAL DISTRICT COURT CASES, INCLUDING BURGESS V. PFIZER, 990 SO. 2D 1140 (FLA. 3D DCA 2008), INSOFAR AS THE APPELLATE COURT FAILED TO CONSIDER WHETHER THERE WERE LESSER AND MORE APPROPRIATE SANCTIONS, OTHER THAN DEFAULTING ADAMS, THAT COULD HAVE BEEN LEVIED AGAINST DEFENSE COUNSEL PERSONALLY FOR HIS MISCONDUCT DURING TRIAL. This Cebrt has discretionary jurisdiction to review a decision of a District Court of Appeal that expressly and directly conflicts with that of another District Court or with a decision of the Supreme Court on the same point of law. See, Article V, 3(b)(3), Fla. Const.; Florida Star v. B.J.F., 530 So. 2d 286 (Fla. 1988). In this case, the Fifth District cited as controlling authority Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993) and Ham v. Dunmire, 891 So. 2d 492 (Fla. 5
2004), both of which addressed factors to be considered by a trial court before levying sanctigns for the misconduct of counsel. In both cases, this Court set out six factors that must be considered by a trial court in determining whether the ultimate sanction of dismissal or default should be levied against the party's whose counsel has violated court orders or committed some other misconduct:. 1) whether the attorney's disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has previously been sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification of noncompliance; and 6) whether the delay created significant problems ofjudicial administration. Id. at 818. After review of these factors, the trial court must then consider whether a lesser sanction than dismissal or default is appropriate where, as here, only the attorney and not the client is at fault. Ham v. Dunmire, 891 So. 2d 492 (Fla. 2004). The Fifth District's opinion in this case clearly shows that neither the trial nor the appellate court ever considered whether a lesser sanction might have been appropriate given that ADAMS was not involved in the misconduct, all of which occurred during trial.2 While in Ham, this Court held that the fact that the client 2 One case, Rose v. Fiedler, M.D., 921 So. 2d 720 (Fla. 4th DCA 2006)(on remand from the Supreme Court in Hussamy, M.D. v. Rose, 916 So. 2d 785 (Fla. 2005)) held that where a consideration of all of the factors set forth in Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993) point to dismissal as an appropriate sanction for the plaintiff's attorney's misconduct during the course of litigation as a whole, the 6
may not have been involved in the misconduct is not itself sufficient to preclude dismissal or default, this Court cautioned that "[a]lthough a trial court 'unquestionably has power to discipline counsel' for violating court orders, an action should not be dismissed when the malfeasance can be adequately addressed through the imposition of a contempt citation or lesser degree of punishment directly on counsel." Ham, 891 So. 2d at 498 (citation omitted). See also, Burgess v. Pfizer, Inc., 990 So. 2d 1140 (Fla. 3d DCA 2008)(and cases cited therein, holding that where an attorney is wholly responsible for a violation of a court order, dismissal or default is too severe a sanction). Nowhere in the Fifth District's opinion is there any indication that the panel ever considered this issue, which must always be considered by the Court in any case in which the trial court has levied a sanction depriving a party of its day in court. Rather, the Fifth District observed that "the Southern Reporter is replete with cases where appellate courts have granted new trials based on similar behavior," and that "it is suggested that these cases should be tried on the merits and not attorney shenanigans, the threat of trial court may direct a verdict against the client, even in the absence of client involvement in the misconduct. Rose is distinguishable from this case because, as is evident from a subsequent Supreme Court opinion suspending the offending attorney Donald Tobkin, the misconduct in question took place throughout the litigation and not just at trial. See, The Florida Bar v. Tobkin, 944 So. 2d 219 (Fla. 2006). No other case in Florida has affirmed a default against a party as a sanction for his or her attorney's misconduct at trial. 7
an admonishment and a new trial appears to be of no avail." CASE NO. SC12-2555 (A.6) The appellate court concluded "[b]y sanctioning a party as Judge Dickey did in this case, maybe attorneys will get the message to either change their tactics or clients will stop hiring them." (A.6) The appellate court affirmed the trial court's default not because it found that the trial court did not abuse its discretion in defaulting ADAMS after a finding that there was no other sanction commensurate with Attorney Fischer's misconduct, but because the appellate court determined that it needed to send the Florida Bar a message "to either change their tactics" or risk professional ruin. It is not necessary that the appellate decision explicitly identify by name the conflicting appellate decisions in its opinion in order to create an express and direct conflict if the "discussion of the legal principles which the [district] court applied supplies a sufficient basis for a petition for conflict review." Ford Motor Co. v. Kikis, 401 So. 2d 1341, 1342 (Fla. 1981). One test of whether two or more decisions expressly and directly conflict is whether the decisions are irreconcilable. Aravena v. Miami-Dade County, 928 So. 2d 1163 (Fla. 2006); Crossley v. State, 596 So. 2d 447 (Fla. 1992). In this óase, the Fifth District noted that "the Southern Reporter is replete with cases where appellate courts have granted new trials based on similar behavior", thereby acknowledging that its opinion in this case conflicts with those 8
cases. See 3 Sullivan v. Kanarek M.D., 79 So. 3d 900 (Fla. 2d DCA 2012)(defense counsel's improper conduct at trial warranted new trial). The appellate court made no effort to distinguish this case from others, but simply expressed frustration with trial attorneys who make improper arguments and violate court orders during trial. Ultimately, the appellate court decided to make an example of Mr. Fischer by affirming the trial court's default in this case irrespective of the fact that its decision was contrary to Florida law in which a new trial has been deemed the appropriate sanction for trial misconduct and default is too harsh a sanction where there are lesser sanctions commensurate with the violation(s). As this Court noted in Ham, where the trial court has found contumacious behavior on the part of counsel, it has a number of different sanctions available to it, including the finding that trial counsel is in direct criminal contempt of court for the violation of court orders. See, Fiore v. Athineos, 9 So. 3d 1291 (Fla. 4* DCA 2009); Rudolph v. State, 832 So. 2d 826 (Fla. 3d DCA 2002); In re Weinstein, 518 So. 2d 1370 (-Fla. 4* DCA 1988)(direct criminal contempt punishes charges of intentional misconduct committed in open court). The Fifth District's recognition that there are a myriad of cases throughout the state granting a new trial as a sanction for attorney misconduct during trial and its failure to even consider 9
contempt or monetary sanctions as an alternative to default was unprecedented and contrary to all of the law in this state. The appellate court's holding in this case is not only expressly and directly in conflict with those decisions such that this Court has jurisdiction to reconcile the conflict. We submit that it should also accept jurisdiction because the panel's opinion could have a chilling effect on zealous advocacy during trial by appearing to open the door to default or dismissal any time a trial court grants a mistrial or finds that trial counsel committed misconduct during trial that warrants a new trial. CONCLUSION Because the Fifth District's opinion in this case expressly and directly conflicts with numerous cases from this Court as well as other district courts of appeal and the decisions are irreconcilable, it is respectfully requested that this Court accept jurisdiction to consider this case and resolve this insoluble conflict. 10
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy hereof has been furnished to: Clerk of the Court, Supreme Court of Florida, through efiling and U.S. Mail, 500 South Duval Street, Tallahassee, FL 32399; and to: Alexander M. Clem, Esq., Morgan & Morgan, PA, PO Box 4979, Orlando, Florida 32802, aclem@forthepeople.com; Travis J. McMillen, Esq., Adams, Adams Baca, McMillen, 1111 E. Amelia Street, Orlando, FL 32803, tmemillen@adams-adamslaw.com; through E-Service Mail on this 14th day of January, 2013. CONROY, SIMBERG, GANON, KREVANS, ABEL, LURVEY, MORROW, & SCHEFER, P.A. 3440 Hollywood Boulevard, Second Floor Hollywood, FL 33021 Phone: (954) 961-1400 Fax: (954) 518-8705 By: Hinda Klein, Esquire Florida Bar No. 510815 11
CERTIFICATE OF COMPLIANCE The undersigned hereby certifies that this brief is filed in compliance with the requirements set forth in Rule 9.210 of the Florida Rules of Appellate Procedure. The brief is presented in Times New Roman, 14-point font. By: Hinda Klein, Esquire Florida Bar No. 510815 12