Faddis v. City of Homestead , 2015 Fla. App. LEXIS 1790 ( 2015 )

Third District Court of Appeal
State of Florida
Opinion filed February 11, 2015.
Not final until disposition of timely filed motion for rehearing.
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No. 3D14-121
Lower Tribunal No. 11-27981
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Johanna Faddis,
Appellant,
vs.
The City of Homestead, et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Jorge E. Cueto,
Judge.
Kelsay Patterson (Tampa), for appellant.
Weiss Serota Helfman Pastoriza Cole & Boniske and Edward G. Guedes;
Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow, & Schefer and Diane
H. Tutt and Dale L. Friedman (Hollywood), for appellees.
Before SHEPHERD, C.J., and SUAREZ and SALTER, JJ.
SHEPHERD, C.J.
ON ORDER TO SHOW CAUSE
This case is before us on the court’s sua sponte order to appellant, Johanna
Faddis, and her counsel, Kelsay Patterson, Esq., to show cause why they should
not be ordered to compensate the appellees―City of Homestead, seven present or
former members of the city council, and a private investigation firm―for appellate
attorney fees and costs incurred by them in defending against the prosecution of a
frivolous appeal of a trial court order, which awarded the appellees $166,000 as a
sanction for Faddis and Patterson’s fraud on the court. Having affirmed the appeal
per curiam, without the necessity for an opinion, Faddis v. City of Homestead,
2014 WL 4628900 (Fla. 3d DCA Sept. 17, 2014), we now order Patterson alone to
compensate appellees further and remand this case to the trial court for
determination of the appropriate amount.1
The law necessary to resolve this matter is, of course, section 57.105 of the
Florida Statutes (2010). The statute reads in pertinent part:
57.105. Attorney's fee; sanctions for raising unsupported claims
or defenses; exceptions; service of motions; damages for delay of
litigation
(1) Upon the court's initiative or motion of any party, the court
shall award a reasonable attorney's fee, including prejudgment
interest, to be paid to the prevailing party in equal amounts by the
1This is the second appearance of this case before the court. We affirmed the trial
court’s dismissal of the complaint for fraud on the court in a written opinion issued
September 4, 2013. See Faddis v. City of Homestead, 121 So. 3d 1134 (Fla. 3d
DCA 2013). Attorney Patterson has represented Faddis from the day the complaint
was filed, and in this and the prior appeal.
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losing party and the losing party's attorney on any claim or defense at
any time during a civil proceeding or action in which the court
finds that the losing party or the losing party's attorney knew or
should have known that a claim or defense when initially
presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to
establish the claim or defense; or
(b) Would not be supported by the application of
then-existing law to those material facts.
...
(3) Notwithstanding subsections (1) and (2), monetary sanctions
may not be awarded:
(a) Under paragraph (1)(b) if the court determines that
the claim or defense was initially presented to the court
as a good faith argument for the extension, modification,
or reversal of existing law or the establishment of new
law, as it applied to the material facts, with a reasonable
expectation of success.
(b) Under paragraph (1)(a) or paragraph (1)(b) against
the losing party's attorney if he or she has acted in good
faith, based on the representations of his or her client as
to the existence of those material facts.
(c) Under paragraph (1)(b) against a represented
party.
§ 57.105 (emphasis added). In this case, we award fees to appellees under section
57.105(1)(b).
Patterson asserted three grounds for reversal of the trial court sanction:
(1) the trial court erred ab initio by dismissing the complaint as a fraud on the court
without an evidentiary hearing, (2) the trial court erred by imposing sanctions
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against Faddis without express factual findings of bad faith, and (3) the trial court
erred by imposing sanctions against Patterson without express factual findings of
bad faith.
The first point on appeal, the trial court’s dismissal of the underlying case
without an evidentiary hearing, is barred by res judicata. The dismissal of the
underlying case was the subject of the first appeal, not this case. In that first
appeal, Patterson contended that “[t]he trial court abused its discretion in granting
the defendant’s motions to dismiss.” We wrote:
“The trial court did not abuse its discretion in striking Faddis’s
pleadings and entering final judgment in favor of the defendants
below, as the record amply demonstrates Faddis ‘sentiently set in
motion some unconscionable scheme calculated to interfere with the
judicial system’s ability impartially to adjudicate a matter by
improperly influencing the trier of fact or unfairly hampering the
presentation of the opposing party’s claim or defense.’”
Faddis, 121 So. 3d at 1135 (internal citations omitted). A first principle of res
judicata is that issues which either were or could have been raised in the original
appeal are barred from being raised in a second appeal. See Fla. Dept. of Transp.
v. Juliano, 801 So. 2d 101, 105 (Fla. 2001) (“[R]es judicata bars relitigation in a
subsequent cause of action not only of claims raised, but also claims that could
have been raised.”). Any issue with the trial court’s dismissal of the underlying
complaint, whether with or without an evidentiary hearing, has already been
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decided by this court. Appellant’s first point of error in this appeal is unsupported
“by the application of then-existing law to [the] material facts.” See §57.105(1)(b).
The second point of error asserted in this appeal is that the trial court
awarded sanctions against Faddis without express factual findings of bad faith.
This assertion is clearly meritless as the trial court specifically delineated its
factual findings of bad faith as follows:
1. As set forth in the Final Judgment, which is incorporated
herein, Faddis provided contradictory sworn testimony in separate
depositions that could not be reasonably explained, even by her. It is
also clear from the undisputed facts of the case that Faddis changed
her testimony in order to suit her strategic needs in this litigation.
2. When Faddis first testified on March 24, 2011 (during the
course of [the] lawsuit brought by Shehadeh against the City for
payment of his severance), and stated that “there has never been a
time that [Shehadeh] has harassed me, sexually harassed me …,”
she was represented by her own counsel, Kelsay Patterson. (Faddis
Depo., March 24, 2011, p. 115) (emphasis added). At that same
deposition, she stated that as to the text messages from Shehadeh, [the
city manager], “I didn’t taken any offense to it.” (Id. at p. 114).
3. Faddis had also earlier told Franklin, during the City’s
investigation into Shehadeh’s alleged misconduct while he was City
Manager, that she knew of no improper or inappropriate behavior by
Shehadeh towards anyone, including herself. (Faddis depo, June 25,
2012, p. 223). Franklin’s investigative report was then presented to
the City Council at the conclusion of the investigation. As noted in
the Final Judgment, as a result of Faddis’ testimony, the City settled
the lawsuit with Shehadeh for $250,000.
4. Shortly after the current lawsuit was filed, Mr. Patterson sent an
email to Shehadeh stating that Mr. Patterson had “never said that you
[Shehadeh] sexually harassed her.” He then confirmed that Faddis
and Shehadeh had always described their relationship as “good
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friends” or “very similar to close cousins.” He further stated that
“Johanna did not receive them [text messages] nor interpret them in
that [negative] fashion or regard.” (Exh. 17, Faddis depo, September
10, 2012).
5. Prior to her deposition in the [sic] this case on June 25, 2012,
Faddis, still represented by Mr. Patterson, had made no mention of
sexual harassment in any pleadings or in avoidance of defenses raised
by the City Defendants or Franklin, even though the City Defendants’
defense based on public records law was clearly disclosed. (Final
Judgment, p. 3).
6. On June 4, 2012, the City Defendants filed a motion for
summary judgment alleging that Faddis enjoyed no privacy right with
respect to the text messages since the text messages and investigative
report in which they were included related to a matter of public
concern and constituted public records.
7. Three weeks later, Faddis, for the first time, testified that she
was in fact sexually harassed by Shehadeh. [emphasis in original].
When confronted with her prior testimony denying sexual harassment,
Faddis stated that she previously “provided a water down version of
the truth.” (Final Judgment, pp. 3-4). Faddis was given repeated
opportunities during the deposition to explain the change in testimony,
but evaded responding, at one point indicating it was a matter between
her and her psychologist. (Final Judgment, p.4).
8. During the June 25, 2012 deposition, Faddis was given repeated
opportunities to explain why she was changing her sworn testimony.
Her answers were evasive, except insofar as they established an
unequivocal willingness to misrepresent the truth under oath when it
suited her needs. [emphasis in original].
9. In response to Defendant’ amended motion for sanctions,
Faddis filed an affidavit in which she stated that the reason she
originally testified that she had not been harassed was because she
received “threats [from Shehadeh] that lasted right up to a day before
my deposition” and that she was afraid of “harsh consequences in a
retaliatory, socio political way.” This affidavit, filed shortly before
the hearing on the Defendants’ motions for sanctions, was the very
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first time that Faddis claimed that the reason for her prior testimony
was threats from Shahedah. She never proffered that explanation
during her June 25, 2012, deposition when she was repeatedly asked
to explain the discrepancies. Thus, her affidavit is, itself, reflective of
an additional change to her testimony to suit her litigation posture in
this case. (Final Judgment, p. 5).
10. Mr. Patterson has served as counsel for Faddis since at least the
time of her first deposition in March 2011 through the present. Mr.
Patterson allowed Faddis to testify as she did in the June 25, 2012
deposition, notwithstanding his statements to Shehadeh that Mr.
Patterson knew Faddis never felt sexually harassed. (Final Judgment,
p. 5). For example:
Q: (By Ms. Friedman): Did you tell the truth when you
said he never sexually harassed you on March 24, 2011?
A: It was sexual harassment.
Q: So you didn’t tell the truth under oath in your
deposition, correct? Correct?
A: It was sexual harassment.
Q: And you did not tell the truth, correct?
Mr. Patterson: You got your answer. You just think
that you can hit a home run, and you’d like to sit here
until you get it, but you have your answer. Do you know
what the difference is in what her testimony is in the
deposition, and what she’s answer today? You have the
home run.
Ms. Friedman: Stop coaching.
Mr. Patterson: You got your answer. You can spend
another 35 minutes. That doesn’t mean her answer is
going to change, but you can try. I’m not standing your
way. It is going on for a long time, though.
Ms. Friedman: Are you done?
Q: (By Ms. Friedman): If Mike Shehadeh’s conduct
was sexual harassment, you did not tell the truth under
oath in your deposition on March 24th, 2011, correct?
A: It was sexual harassment. I did not want to discuss
it. I did not want to file anything against it.
Q: And does that justify lying under oath?
Mr. Patterson: Lying? Here we go. Argumentative.
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Q: Does it justify –
Mr. Patterson: Inflammatory.
Q: – lying under oath? Does it?
Mr. Patterson: Inflammatory.
Q: Does it?
A: Ma’am, I answered the way that I answered those
questions.
Q: And now I’m asking you if it’s because you did
not want to pursue a claim against him then, does that
justify lying when you say he never sexually harassed
you?
Mr. Patterson: Again, objection. The question is
inflammatory.
A: I didn’t want to pursue a claim against him then or
now.
Q: Does it – why is it so difficult for you to just
answer a question that you are obligated to answer? The
question is very straightforward. You did not want to
pursue a claim. I want to know if that justified stating
under oath that Mr. Shehadeh never sexually harassed
you.
Mr. Patterson: Objection. Asked and answered.
You can answer it again.
A: I’ve answered it, ma’am, the way I can answer it.
Q: You haven’t answered the question.
A: The way that I can answer it.
11. Mr. Patterson’s e-mail to Shehadeh confirmed that he knew
Faddis had always described her relationship with Shehadeh as that of
“good friends” and not a situation of sexual harassment. Mr.
Patterson even asked Shehadeh why he [Mr. Patterson] would ever
say anything “negative” about Shehadeh. (Exh. 17, Faddis Depo.,
September 10, 2012).
12. The Court finds evidence of vexatious conduct and bad faith
on the part of both Faddis and Mr. Patterson. [emphasis added].
The second point of error lacks any basis in reality.
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The same findings refute the third ground asserted for reversal of the trial
court’s award of sanctions against Attorney Patterson. Moreover, Patterson did not
name himself as an appellant in this appeal. This alone is fatal to his challenge of
the trial court’s monetary sanction against him. See Due v. Tallahassee Theatres,
Inc., 160 So. 2d 169, 170-71 (Fla. 1st DCA 1964) (“ … [T]he name and
designation of the party appealing shall be stated in the notice of appeal, because it
is only through the medium of such notice that the appellate court can determine
with certainty the identity of the party over whom it has gained jurisdiction, and to
whom the court shall look for compliance with its lawful orders and judgments. If
the notice of appeal fails to state the name and designation of the appealing party,
or parties, there is no way in which the appellate court can determine those parties
over whom it has jurisdiction.”). The fact that he appealed the sanction order on
behalf of his client does not suffice to constitute an appeal of the order in his own
right.2 See Id.; see also, Torres v. Oakland Scavenger Co., 487 U.S. 312, 314
(1988) (“The failure to name a party in a notice of appeal is more than excusable
‘informality’; it constitutes a failure of that party to appeal.”).
Curiously, Patterson’s response to our order to show cause makes no
argument on behalf of his client.3 Rather, it is a screed following hard upon his
2 Consequently, in the order to show cause, we also dismissed Patterson’s appeal of
attorney fees for lack of jurisdiction.
3 Unless waived in writing, Patterson had an inherent conflict of interest in
representing both himself and Faddis in this matter. See R. Regulating Fla. Bar 4-
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reply brief filed in this appeal, where he insinuates that he is “being bullied” by the
parties, their counsel, or the court in this case, and that a “miscarriage of justice . . .
is knowingly being perpetrated upon him,” (emphasis added). He likens “the
story” of the case he filed on behalf of Faddis to “the story of Fidel Castro’s
suffocating grip of Cuba, the Holocaust, Jim Crow laws, and Hillary Clinton.”
According to him, the trial court sanction – and probably, now this one as well –
are part of some political scheme to silence him and his client. Patterson is grossly
mistaken. This case is not about political connection, human atrocities, bullies, or,
as he would have it, the ability of “strong minded individuals” to stand up for the
powerless. This case is about an officer of the court who proffered false evidence
in violation of the Rules Regulating the Florida Bar. See R. Regulating Fla. Bar 4-
3.3(a)(4). It is now probably also about an attorney who has impugned the
qualifications and integrity of the judges of this court, the trial court, or other
officers. See R. Regulating Fla. Bar 4-8.2(a).4
1.7.
4 Rule 4-8.2(a) reads in full:
(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.
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For the foregoing reasons, we order appellate attorney fees as a sanction
against Kelsay Patterson for advancing a frivolous appeal, and remand this case to
the trial court for a determination of amount.
“Rule 4-8.2 is intended to preserve confidence in the judicial system and prevent
disrespect for the law.” Shortes v. Hill, 860 So. 2d 1, 2 (Fla. 5th DCA 2003).
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