Shortes v. Hill

Decision Date01 August 2003
Docket Number No. 5D02-3564., No. 5D02-2571
Citation860 So.2d 1
PartiesJason Thomas SHORTES, Appellant, v. Leon M. HILL and Twila C. Hill, Appellee.
CourtFlorida District Court of Appeals

Sidney L. Syna, Melbourne, for Appellant.

Robert R. Berry of Eisenmenger, Berry & Peters, P.A., Melbourne, for Appellee.

ORFINGER, J.

Jason T. Shortes appeals a final judgment on his counterclaim in favor of Leon M. Hill and Twila C. Hill. We affirm without comment. Shortes, and his attorney, Sidney Syna, also appeal an order assessing attorney's fees against them pursuant to section 57.105, Florida Statutes (2001). We reverse.

Following overly contentious litigation concerning what should have been a relatively simple mortgage foreclosure proceeding, the trial court awarded section 57.105 fees in equal shares against Shortes and Syna for work performed by the Hills' attorney in defense of Shortes's counterclaim.1 The order awarding fees made no express finding that Shortes's counterclaim was not supported by material facts, or by the application of then-existing law to the material facts as required by section 57.105(1). Further, the order is not supported by substantial, competent evidence. The Hills' attorney did not testify as to the number of hours spent in defense of the counterclaim or the fee agreement with his client as required. See Wiley v. Wiley, 485 So.2d 2 (Fla. 5th DCA 1986)

. While the Hills' attorney proffered his time records, because Shortes objected to this procedure, without supporting testimony from the attorney, the affidavits should not have been considered by the trial court. "A finding that a party is entitled to recover attorney's fees under section 57.105 must be based on substantial, competent evidence presented at the hearing on attorney's fees or otherwise before the court and in the record." Mason v. Highlands County Bd. of County Comm'rs, 817 So.2d 922, 923 (Fla. 2d DCA 2002). Having failed to prove entitlement to fees in the trial court, the Hills are not entitled to a second hearing. Wiley, 485 So.2d at 3.

What makes this otherwise unremarkable case noteworthy are the vitriolic comments about the trial judge contained in the appellate brief filed by Sidney L. Syna, Shortes's attorney. Some of Syna's more notable comments were:

There is also no question that plaintiffs pursued collection efforts against this defendant on a personal liability basis both before suit and continued to do so in the lawsuit for more than one year, from April 2, 2000 to June, 2001. Was this the pursuit of madness to a friendly court?
* * *
It's true that there was no record made or presented as to the proceedings of the December 14, 2001 court hearing. However, it is submitted that something far off and out of line had to be involved to block what should have been a clear and obvious decision.

(emphasis added). These comments, without any record support, appear to make unsubstantiated charges of collusion or impropriety against the trial judge. Such charges, if unsupported, are unprofessional.

Rule 4-8.2(a) of the Rules of Professional Conduct provides:

(a) Impugning Qualifications and Integrity of Judges or Other Officers. A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, mediator, arbitrator, adjudicatory officer, public legal officer, juror or member of the venire, or candidate for election or appointment to judicial or legal office.

Rule 4-8.2 is intended to preserve confidence in the judicial system and prevent disrespect for the law, not to protect judges from criticism. As the supreme court explained in The Florida Bar v. Ray, 797 So.2d 556, 558-60 (Fla.2001):

[Et]hical rules that prohibit attorneys from making statements impugning the integrity of judges are not to protect judges from unpleasant or unsavory criticism. Rather, such rules are designed to preserve public confidence in the fairness and impartiality of our system of justice. See Kentucky Bar Ass'n v. Waller, 929 S.W.2d 181, 183 (Ky. 1996)

.... Because members of the Bar are viewed by the public as having unique insights into the judicial system, the state's compelling interest in preserving public confidence in the judiciary supports applying a different standard than that applicable in defamation cases. For this reason, we, like many other courts, conclude that in attorney disciplinary proceedings under rule 4-8.2(a), the standard to be applied is whether the attorney had an objectively reasonable factual basis for making the statements. See United States Dist. Court v. Sandlin, 12 F.3d 861, 864, n. 1 (9th Cir.1993).

* * *
Our resolution of this case does not limit an attorney's legitimate criticism of judicial officers; we simply hold that an attorney must follow the Rules of Professional Conduct when so doing. Although attorneys play an important role in exposing valid problems within the judicial system, statements impugning the integrity of a judge, when made with reckless disregard as to their truth or falsity, erode public confidence in the judicial system without assisting to publicize problems that legitimately deserve attention. See State ex rel. Oklahoma Bar Ass'n v. Porter, 766 P.2d 958, 969 (Okla.1988)

("Members of the Bar possess, and are perceived by the public as possessing, special knowledge of the workings of the judicial branch of government. Critical remarks from the Bar thus have more impact on the judgment of the citizen than similar remarks by a layman would be calculated to have.").

Syna further wrote that the trial judge's ruling was "cockeyed and absurd" and demonstrated a "most startling absence of legal knowledge and irrational decision...." (emphasis added). The Oath of Admission to the Florida Bar requires lawyers to "maintain the respect due to courts of justice and judicial officers" and to "abstain from all offensive personality." Syna's comments fall far below that standard and are demeaning and patently unprofessional. Such statements, made without any supporting facts, embarrass and denigrate our profession. Therefore, pursuant to the mandate in 5-H Corp. v. Padovano, 708 So.2d 244 (Fla.1997), we direct that the Clerk of this Court provide a copy of this opinion to the Florida Bar.

AFFIRMED IN PART, REVERSED IN PART.

SHARP, W., concurs.

PLEUS, concurs and concurs specially, with opinion.

PLEUS, J., concurring and concurring specially.

I concur wholeheartedly with Judge Orfinger's comments concerning the unprofessional conduct of Sidney L. Syna. In my view, the trial court would be justified in holding Syna in contempt. It is my hope The Florida Bar will take prompt and decisive action.

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2 books & journal articles
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    • Colorado Bar Association Colorado Lawyer No. 38-1, January 2009
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