Rhoades v. Rodriguez

• Decision Date: 03 February 2023
• Docket Number: 5D21-2295
• Parties: RANDY RHOADES, III, Appellant, v. LILMISSETTE RODRIGUEZ, Appellee.
• Court: Florida District Court of Appeals

RANDY RHOADES, III, Appellant, v. LILMISSETTE RODRIGUEZ, Appellee.

No. 5D21-2295

Florida Court of Appeals, Fifth District

February 3, 2023

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

Appeal from the Circuit Court for Brevard County, LT Case No 2014-CA-25416 Curt Jacobus, Judge.

Derek J. Angell, of Roper, P.A., Orlando, for Appellant.

Maegen Peek Luka, of Newsome Melton, P.A., Orlando, and Jeffrey M Byrd, of Jeffrey M. Byrd, P.A., Orlando, for Appellee.

PER CURIAM

Appellee Lilmissette Rodriguez, ("Plaintiff") filed a negligence action against Appellant, Randy Rhoades, III ("Defendant") for injuries sustained when the motor vehicle she was driving was struck by Defendant's motor vehicle. The first trial in the case ended during the presentation of testimony when the predecessor trial judge declared a mistrial. Prior to the second trial, Plaintiff filed a Motion for Sanctions Against Defendant for Fraud on the Court and a Motion for Sanctions due to Ongoing Illegal Conduct. The motions alleged that defense counsel, Dale Gobel, had intentionally made misleading and deceptive statements to the judge and jury in the first trial resulting in the mistrial, and that defense counsel had utilized improper discovery procedures in the case to obtain medical records from Plaintiff's treating physicians. The court held a lengthy hearing on Plaintiff's motions and ultimately granted the motions and struck Defendant's pleadings. The second trial proceeded to verdict, where the jury awarded far less damages than the amount sought by Plaintiff. The trial court subsequently granted Plaintiff's motion for additur. When Defendant rejected the additur, a new trial was ordered.

On appeal, Defendant seeks review of the order granting new trial and the order imposing sanctions. We affirm, in part, reverse, in part, and remand for a new trial on all issues.

First, we conclude that the trial court did not abuse its discretion in ordering a new trial after Defendant rejected an additur. See Van v. Schmidt, 122 So.3d 243, 253-54 (Fla. 2013) (holding that highly deferential abuse of discretion standard applies on appellate review where trial court grants new trial on grounds that jury verdict was contrary to manifest weight of evidence; mere showing that there was evidence in record to support jury verdict does not demonstrate abuse of discretion).

Next, we conclude that sufficient evidence supported the trial court's determination that in the first trial and in the motions for sanctions hearing, defense counsel made "intentionally misleading and deceptive statements" regarding his prior professional relationship and experiences with one of the physician witnesses. As the determiner of witness credibility, the trial court could properly reject attorney Gobel's claims of having failed to remember prior interactions with the witness. We also find no error in the determination that defense counsel had utilized improper discovery procedures in his effort to obtain Plaintiff's medical records. Accordingly, we affirm the trial court's decision that sanctions were warranted as a result of defense counsel's misconduct. The more difficult decision is determining whether the trial court abused its discretion in striking Defendant's pleadings.

In Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla. 1993), our Supreme Court set forth guidelines to assist trial courts in their task of sanctioning parties for "acts of malfeasance and disobedience." Those factors were:

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 for noncompliance; and

6) whether the delay created significant problems of judicial administration.

Id. at 818.

In addition to finding that attorney Gobel's misconduct was willful and deliberate, the trial court correctly observed that other judges have found misconduct on the part of attorney Gobel. See, e.g., Bowers v. Tillman, 323 So.3d 322, 324 (Fla 5th DCA 2021) ("The second event arises from misconduct by defense counsel, Dale Gobel"); Cemoni v Ratner, 322 So.3d 197, 201 (Fla 5th DCA 2021) (Cohen, J, concurring) ("In my view, the instant cases establish a continuing pattern of conduct by Mr. Gobel designed to provoke the granting of mistrials. Mr. Gobel has occasioned more mistrials in these two cases alone than most lawyers will have in an entire career."); Plotkin v. Calhoun, et. al., No. 2014-CA-452 (Fla. 18th Cir. Ct. July 8, 2020) (granting amended motion for sanctions and stating that "[p]ursuant to Moakley v. Smallwood, 826 So.2d 221 (2002), the court finds that [defendant's] counsel engaged in 'extreme bad faith litigation'"); Swanson v. State Farm, No. 2014-CA-009563-0 (Fla. 9th Jud. Cir. Mar. 16, 2017) (granting plaintiff's motion for mistrial, stating "[t]he pervasiveness of defense counsel's comments and the cumulative nature of the comments and improper testimony throughout the entirety of trial, as well as the numerous violations of the Court's orders on motions in limine mandate the granting of a new trial").

However, in Ham v. Dunmire, 891 So.2d 492, 497 (Fla. 2004), the Court cautioned against the imposition of sanctions that "punish litigants too harshly for the failures of counsel." Here, there is no evidence that Defendant participated in his counsel's actions, nor is there evidence that Plaintiff was prejudiced by defense counsel's utilization of improper discovery procedures. Furthermore, we cannot agree with the trial court's apparent determination that attorney Gobel's misconduct was the sole cause of the necessity to grant the earlier mistrial (and the resulting undue expenses and negative impact on judicial administration emanating therefrom). Our review of the record reflects that both attorney Gobel and Plaintiff's counsel, Jeffrey Byrd,^[1] had significant roles in causing the mistrial.

After giving due consideration to the trial court's findings, but also giving consideration to the fact that both attorneys' conduct contributed to the need to declare a mistrial in the first trial, we conclude that the trial court abused its discretion in striking Defendant's pleadings. Instead, the trial court should have imposed sanctions directly upon the individual who it found had made "intentionally misleading and deceptive statements" to the court and/or jury and who utilized improper discovery procedures. See Moakley v. Smallwood, 826 So.2d 221, 226 (Fla. 2002) ("We thus hold that a trial court possesses the inherent authority to impose attorney's fees against an attorney for bad faith conduct."); see also Robinson v. Ward, 203 So.3d 984, 989 (Fla. 2d DCA 2016) (affirming imposition of sanctions against attorney for attorney's misconduct during jury trial in personal injury action). On remand, the trial court is authorized to do so. It would be appropriate to require attorney Gobel to personally pay for the reasonable costs and attorney fees incurred by Plaintiff in preparation for, and participation in, the hearing on Plaintiff's motions for sanctions. Furthermore, it would be appropriate for the trial court to require attorney Gobel to personally pay for any fees billed by Dr. Mahan at the original trial given the trial court's determination that attorney Gobel had engaged in an intentionally misleading and deceptive cross-examination of Dr. Mahan-a cross-examination that necessitated Dr. Mahan being required to spend time and effort in gathering documentation that tended to rebut attorney Gobel's statements to the judge and/or jury. Furthermore, although defense counsel's utilization of improper discovery procedures did not cause prejudice to Plaintiff, it was not inappropriate for Plaintiff to seek court assistance to preclude defense counsel from continuing to engage in such practices.

For the benefit of the members of the Bar, we call attention to the two particular instances where defense counsel's utilization of improper discovery techniques potentially serve as a basis for disciplinary sanctions. First, the record reflects that after serving notices of intent to issue subpoenas to non-party medical providers, defense counsel prematurely issued the subpoenas in contravention of Florida Rule of Civil Procedure 1.351. Upon receiving a timely objection from opposing counsel, defense counsel waited over two weeks before notifying the subpoena recipients that they should not produce the requested documents. By that time, defense counsel had already received documents from four of the subpoenaed medical providers.

Recently, in Florida Bar v. Arugu, 350 So.3d 1229 (Fla. 2022), the Florida Supreme Court addressed a situation where, in a family law case, attorney Arugu prepared and filed with the circuit court a "Notice of Production from Non-Party," along with a proposed subpoena duces tecum to a particular mortgage company. Id. at 1231. The proposed subpoena listed several sets of records Arugu wanted the mortgage company to produce pertaining to his client's wife and father-in-law. After the ten-day period to serve an objection to the proposed subpoena expired, Arugu served a modified version of the subpoena seeking the production of three additional sets of records. Id. Despite receiving an objection from opposing counsel to the modified subpoena, Arugu failed to notify the mortgage company, which ultimately produced records in response to the modified subpoena. Id.

The...