Robinson v. State , 2016 Fla. App. LEXIS 16612 ( 2016 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
BRUCE ROBINSON, MICHAEL FORTE, )
ESQ., and JESSICA TETRICK, ESQ., )
)
Appellants, )
)
v. ) Case Nos. 2D14-4799
) 2D14-5359
JACQUELINE WARD, as parent and )
natural guardian of L.W., ) CONSOLIDATED
)
Appellee. )
___________________________________ )
Opinion filed November 9, 2016.
Appeals from the Circuit Court for Polk
County; J. Dale Durrance, Judge.
Manuel J. Alvarez and Carla M. Sabbagh of
Rywant, Alvarez, Jones, Russo & Guyton,
P.A., Tampa, for Appellant Bruce Robinson.
Tracy Raffles Gunn of Gunn Appellate
Practice, P.A., Tampa, for Appellant
Michael Forte, Esq.
Hala A. Sandridge of Buchanan, Ingersoll &
Rooney, P.C., Tampa, for Appellant Jessica
Tetrick, Esq.
Joel D. Eaton of Podhurst Orseck, P.A.,
Miami; Law Offices of Allen & Abaray, P.A.,
Lakeland; and Brennan, Holden &
Kavouklis, P.A., Tampa, for Appellee.
KHOUZAM, Judge.
L.W. was injured in a car accident while a passenger in a pickup truck that
collided with a van driven by Bruce Robinson, who was working for Talbot House
Ministries at the time. L.W.'s mother, Jacqueline Ward, filed suit against Robinson and
Talbot House but voluntarily dismissed the suit against Talbot House before proceeding
to trial. Attorneys Michael Forte and Jessica Tetrick represented Robinson. Following
trial, the jury found that both drivers were at fault and awarded L.W. damages for past
medical expenses but not for future expenses. L.W. moved for a new trial or,
alternatively, mistrial and sanctions, based on alleged misconduct by Attorneys Forte
and Tetrick. Finding that such misconduct had indeed occurred and had interfered with
the jury's ability to be fair, the circuit court granted a new trial and ordered sanctions
against both defense attorneys.
In these two consolidated appeals, Robinson appeals the circuit court's
order granting new trial and Attorneys Forte and Tetrick appeal the order imposing
sanctions against them. Because we conclude that the record supports the circuit
court's findings of misconduct by Attorney Forte and the resulting harm to the fairness of
the trial, we affirm the order granting new trial based on that misconduct as well as the
order imposing sanctions to the extent that it imposes sanctions on him. However,
because the record before us does not support the court's findings of misconduct by
Attorney Tetrick, we are constrained to reverse the order imposing sanctions to the
extent that it imposes sanctions on her.
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I. The Alleged Misconduct
Though there were quite a few instances of alleged misconduct by
Attorney Forte, we will focus our discussion on the several most egregious examples
that, by themselves, support the court's rulings.
a. Talbot House Ministries
Talbot House Ministries was originally named as a defendant in this case,
but Ward voluntarily dismissed the case against it at the beginning of trial. Ward filed a
motion in limine seeking exclusion of any mention of Talbot House. Ward's counsel
believed that the fact that Robinson was running an errand for a religious charity at the
time of the accident was irrelevant to the issues in the case and would unfairly create
sympathy for him. Ward's counsel argued that the Ministries' logo should be redacted
from any photos of the van admitted into evidence. The court agreed, ruling that
Robinson was only permitted to say with whom he was employed, what he was doing,
and that he was in the course and scope of his employment. The court stated that there
was no relevance to anything else referencing the Ministries.
Despite this ruling, Attorney Forte asked prospective jurors whether they
had heard of Talbot House Ministries, intentionally placed an unredacted photo of a
Talbot House Ministries van on the overhead projector during Robinson's testimony,
and unnecessarily inserted the words "Talbot House" into his questions for the driver of
the pickup truck. At the close of all evidence, in the presence of the jury, Attorney Forte
offered three photos of the van with the Ministries' logo visible in each. Though Ward's
counsel did object to some of these actions, he did not object to all of them because he
was concerned that objecting before the jury would create the appearance that he had
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something to hide. Similarly, the court determined that redacting the logo in the photos
provided to the jury after Forte had already revealed the unredacted photo to them
would be problematic. The court stated that the motion in limine was moot at that point
because Forte had "just kind of rolled over" it, exposing things that were in violation of
the court's ruling.
b. Florida Department of Children & Families' (DCF) Investigations
Before calling Ward to the stand, her counsel moved in limine to prevent
the defense from cross-examining her about DCF investigations and family members'
arrest records. Following a lengthy discussion, the court reserved ruling but instructed
defense counsel not to question the witness on either matter without first proffering the
questions and answers outside the jury's presence. However, while cross-examining
one of L.W.'s doctors, Forte displayed a page from the doctor's records (which were not
in evidence) on the overhead projector. The page indicated that "DCF has gotten
involved." Ward objected. The trial court admonished Forte for exposing this
information to the jury without a proffer, stating: "[Y]ou've done just what I told you not to
do. And I know how you've done it. But if it doesn't come in through the front door, you
can't get it through the back door or the side door or the window or underneath the roof
either." Following the proffer, the court granted the motion in limine, stating as follows:
Okay. I will grant the motion in limine. There will be
no mention or reference to DCF or any family members'
arrest records, and it will all be struck from any documents
that you have reference to it, and it will be redacted. I find
that it is not relevant, and it's not material. I further find that
it's highly prejudicial.
In addition, I further find that, Mr. Forte, you violated
the Court's instruction whenever you all gave preliminary
arguments on the motion in limine, and I reserved ruling,
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waiting until you got ready to bring it up, so it could be
proffered. And the instruction was for you to let the Court
know, I would take the jury out and allow you to proffer it, as
you've just now proffered outside the presence of the jury.
I note that you have put two documents up before the
jury, one that you just showed from April the 21st, indicating
the mother is in jail with a highlight. And then the second
document brought [plaintiff's counsel's] objection concerning
DCF. That was improper. That was wrong for you to bring
those up and show them before the jury in your cross-
examination of this witness without letting the Court know, so
that you could properly make a proffer.
So I just want the record to reflect that there are still
some more pending motions in limine. The Court has
reserved on them, waiting for a proffer. If there is a second
violation of that, the Court will proceed to impose sanctions
with or without any motions from opposing counsel.
Despite this ruling, approximately twenty minutes later Attorney Forte placed a
document on the projector that suggested that J.W.'s father had been arrested. Ward's
attorney objected. The court stated:
Well, I know, Mr. Forte, this has been a difficult day
for you. This has been a difficult week. Any time a case
gets pulled off track and lawyers don't stay focused on their
case presenting testimony to the real issues, that makes
your day go pretty bad in a hurry. And it's not much fun for
the Court either, because then we have to deal with all of
that. And I've been dealing with it each times it comes up.
I was surprised when I saw that come up on the
monitor. I was surprised whenever they didn't jump up over
there and object. I certainly wasn't going to jump up and
object, but I noted it. And I thought, "Why is he putting that
up there," whenever I've gone over this and ruled on this,
because my ruling was, I granted their motion in limine, and
it is to exclude any testimony, evidence, or mention
concerning Department of Children & Families, and as well
as criminal arrest records of family members.
And this is a criminal matter concerning one of the
family members. It's not relevant. It's not material. Again, it
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violates the Court's ruling. So, once again, I'm taking your
motion for sanctions under advisement. I believe this is now
at least the third motion for sanctions, at least two against
Mr. Forte and one against Ms. Tetrick, that I've got under
advisement. I'm going to address them at an appropriate
time. But I'm going to try my best to keep this case on track
to be sure that each party gets a fair trial. Because that's
what I'm here to try to do.
Now, probably the safe thing for you, Mr. Forte, is if
you have any doubt in your mind—because you've been
flipping documents up there pretty regularly. You flip them
and take them away, flip them, take them away, flip them,
take them away. Now, I'm watching them, so I know what's
going up there. I'm not sure—I don't know if counsel for the
plaintiff has been able to keep up with all of them. But that's
probably a dangerous thing for you to do. So if you got any
doubts about something you're fixing to flip up there, then I
would recommend that you probably ask for a bench
conference and come up here and be sure that you're not
going to do something else to violate this Court's order.
These statements show that, in the court's assessment, Attorney Forte was repeatedly
and intentionally violating the court's rulings in an effort to draw focus from the "real
issues" in the case and place the jury's focus instead on irrelevant and immaterial but
highly prejudicial matters. The court expressed concern that Attorney Forte's behavior
was jeopardizing the fairness of the trial.
c. Facebook Posts
While cross-examining Ward, Attorney Forte asked her whether she had
posted the following on Facebook: "Now, I'm stuck here at the courthouse for a long
week of trial. Girl, it's BS. And they expect it to last all week." Ward's counsel
objected, stating that the post was from only two days previous, had not been disclosed
to him, and that Forte had mischaracterized the statement. After discussion, the court
ruled as follows:
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[T]he Court finds that the question was an improper
cross-examination question. There hadn't been anything on
direct examination along those lines. I further find that it was
a violation of discovery. Whenever you know about it on
Monday, and you waited now until Wednesday afternoon,
still not ever disclosing it, just bringing it out and throwing it
in front of the jury, that was not only a violation of discovery,
I consider that to be attorney misconduct.
The question was stricken from the official record but preserved for appellate review,
and a curative instruction was given. The court again reserved ruling on the motions for
sanctions.
II. Order Granting New Trial
The circuit court found that a new trial was warranted because Forte's
repeated "pushing of the envelope" throughout the trial was so harmful and highly
prejudicial that it impaired the jury's ability to be fair. The court further determined that
the damage caused by Forte's improper actions was incurable because the probability
that those actions would result in an improper verdict could not be eliminated by
sustaining a timely objection and providing a curative instruction. The court concluded
that the misconduct "so damaged the fairness of the trial that the public's interest in our
system of justice required a new trial." Considering the record before us, we cannot say
that the court abused its discretion in making these findings.
This issue is governed by Murphy v. International Robotic Systems, Inc.,
766 So. 2d 1010 (Fla. 2000), in which the Florida Supreme Court addressed the
question of when a new trial may be granted based on improper but unobjected-to
attorney conduct. In the context of improper arguments made during closing, the
supreme court held that
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before a complaining party may receive a new trial based on
unobjected-to closing argument, the party must establish
that the argument being challenged was improper, harmful,
incurable, and so damaged the fairness of the trial that the
public's interest in our system of justice requires a new trial.
Should the trial court find that these criteria have been
established, the court must enter an order granting a new
trial specifically identifying both the improper arguments of
counsel and the actions of the jury resulting from those
arguments.
Murphy, 766 So. 2d at 1031.
We review the trial court's decision for an abuse of discretion. Id. As the
supreme court has explained, "Although we have not absolutely 'closed the door' on
appellate review of unpreserved challenges to closing argument, we have come as
close to doing so as we believe consistent with notions of due process which deserve
public trust in the judicial system." Id. The use of an abuse of discretion standard in
this scenario is "based on the presumption that the trial judge ruling on the motion for
new trial was the one who presided over the case and is therefore in the best position to
determine the propriety and potential impact of the conduct." Sullivan v. Kanarek, 79
So. 3d 900, 903 (Fla. 2d DCA 2012). A court's decision to grant a new trial is given
even greater deference than a court's decision to deny a new trial. Id. at 905.
It is also important to keep in mind that where one party's counsel
repeatedly refuses to comply with a court's ruling, the other party's counsel is put in a
difficult situation. On one hand, an objection is necessary to preserve the error. But on
the other hand, making numerous objections may alienate the jury.
Jurors cannot be expected to understand the basis of
counsel's repeated objections. All that is apparent to jurors
placed in this position is that frequent objections and sidebar
conferences prolong their service, and perhaps limit the
information available to the jury. Thus, counsel's repeated
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objections to the same type of behavior may well lead the
jury to infer that one side of the case is trying to hide or
disguise matters that would be useful to the jury.
Bocher v. Glass, 874 So. 2d 701, 704 (Fla. 1st DCA 2004).
Here, as described above, the record shows that Attorney Forte
repeatedly violated the court's directions and exposed the jury to inadmissible evidence.
The judge's detailed oral findings at trial, which were specifically referenced in the order
granting new trial, make clear that he believed that Attorney Forte was taking these
actions in an effort to gain an unfair advantage and that the fairness of the trial was in
fact jeopardized. The circuit court was in the best position to determine the propriety
and potential impact of Attorney Forte's conduct, and we cannot say that the court
abused its discretion in determining that a new trial was required under the
circumstances of this case.
III. Sanctions against Attorney Forte
The court entered a separate order on the motion for sanctions, finding
that sanctions were warranted for Forte's repeated "pushing of the envelope" throughout
the trial "by putting evidence before the jury which [the] Court ruled to be inadmissible,
deliberately misleading the jury, or otherwise displaying non-disclosed materials before
the jury." The court set forth a list of eight instances of improper conduct, which
included the incidents discussed above. The court specifically concluded that defense
counsel's actions were "improper and deliberate," had resulted in a miscarriage of
justice, and had solely and directly caused Ward "to incur additional time and expense
of relitigating a trial."
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Attorney Forte claims that the court's order did not contain sufficiently
detailed factual findings and that the court was required to use the magic words "bad
faith" to describe the sanctionable conduct. We disagree and reject Forte's invitation to
elevate form over substance. The Florida Supreme Court has held that
a trial court possesses the inherent authority to impose
attorneys' fees against an attorney for bad faith conduct. In
exercising this inherent authority, an appropriate balance
must be struck between condemning as unprofessional or
unethical litigation tactics undertaken solely for bad faith
purposes, while ensuring that attorneys will not be deterred
from pursuing lawful claims, issues, or defenses on behalf of
their clients or from their obligation as an advocate to
zealously assert the clients' interests. The inherent authority
of the trial court, like the power of contempt, carries with it
the obligation of restrained use and due process.
Moakley v. Smallwood, 826 So. 2d 221, 226-27 (Fla. 2002). Moreover, the supreme
court determined that
the trial court's exercise of the inherent authority to assess
attorneys' fees against an attorney must be based upon an
express finding of bad faith conduct and must be supported
by detailed factual findings describing the specific acts of
bad faith conduct that resulted in the unnecessary
incurrence of attorneys' fees. Thus, a finding of bad faith
conduct must be predicated on a high degree of specificity in
the factual findings. In addition, the amount of the award of
attorneys' fees must be directly related to the attorneys' fees
and costs that the opposing party has incurred as a result of
the specific bad faith conduct of the attorney. Moreover,
such a sanction is appropriate only after notice and an
opportunity to be heard—including the opportunity to present
witnesses and other evidence.
Id. at 227. Even though the order in this case does not include the specific words "bad
faith," it does clearly state that Forte's actions were "improper and deliberate" and
resulted in a miscarriage of justice. The order not only lists and details the specific
conduct at issue but also references the court's oral findings in which the court
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repeatedly determined that Forte was intentionally and purposefully violating the court's
rulings. The written recitation of Forte's improper behavior, combined with the
numerous oral findings in the record, provide more than adequate support for the court's
decision to grant sanctions.
Attorney Forte's reliance on Rush v. Burdge, 141 So. 3d 764, 766-67 (Fla.
2d DCA 2014), is misplaced because in that case the trial court had concluded, even
though Mr. Rush's behavior was "intentional and disruptive," it was not "committed
maliciously or with malevolent intent." Here, in contrast, the record makes clear that the
judge believed that Attorney Forte was intentionally placing inadmissible evidence
before the jury in an effort to gain an unfair advantage.
The facts of the instant case are also distinguishable from Tenev v.
Thurston, 198 So. 3d 798 (Fla. 2d DCA 2016). In Tenev, this court reversed an order
imposing sanctions on Attorney Tenev for bad faith conduct—specifically, before
opening statements and before the jury had entered the courtroom, Tenev moved to
strike a juror for cause and then provided dishonest answers to the court's questions
about the basis for that motion. This court held that "a review of the record before us
clearly establishes that Tenev's dishonesty was not a litigation tactic undertaken solely
for bad faith purposes." Id. at 801. Indeed, "she clearly was not attempting to unduly
delay or protract litigation or to seek an unfair advantage." Id. Ultimately, her actions
"did not adversely impact the proceedings in any material way such that a fair trial could
not be had for both parties" and did not cause the opposing party to incur additional
attorney's fees and costs. Id. at 802. In contrast, Forte's actions did take place in front
of the jury: his actions were apparently intended to influence the jury by presenting
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inadmissible, unfairly prejudicial evidence. Because the jury was exposed to that
evidence, a new trial was required and Ward will incur additional expenses to relitigate.
Finally, Forte argues that his due process rights have been violated
because he did not have adequate notice or an opportunity to be heard on the issue of
sanctions. But the issue of sanctions was repeatedly raised at trial, and the court
reserved ruling on the motions. Then Ward's motion requested a new trial and
sanctions on the same grounds that had been addressed at trial. The issue of
sanctions was heard at the same hearing as the motion for new trial; Forte did not
request a separate hearing on the matter or seek to present witnesses in mitigation.
Accordingly, Forte's due process rights have not been violated.
IV. Sanctions against Attorney Tetrick
Attorney Jessica Tetrick argues that the court abused its discretion by
imposing sanctions against her because she did not commit the conduct detailed in the
sanctions order. We agree. Attorney Forte was the partner primarily responsible for the
trial; Tetrick was the associate who assisted at trial. Of the eight grounds for sanctions
listed in the court's order, Tetrick was tangentially involved in only one—"[a]sking
deliberately misleading questions to Dana Whitaker Childers regarding the 'Jessica' she
spoke to one year earlier." Tetrick did not question Ms. Childers or any other witnesses.
Rather, it was Forte who cross-examined Ms. Childers. It was only in the context of a
discussion with the court about whether Ms. Childers had been disclosed as a witness
that Tetrick became involved. During that discussion, she told the court that she
assumed she had spoken to Ms. Childers because she was an associate working on
the case. Tetrick later clarified that it was not she who had spoken to Ms. Childers;
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rather, records showed it was a summer intern who was also named Jessica. This
evidence is insufficient to support a finding of bad faith on Tetrick's part. Accordingly,
the sanctions order must be reversed as to Tetrick.
Affirmed in part and reversed in part.
CRENSHAW and BADALAMENTI, JJ., Concur.
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