Tenev v. Thurston

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
PETIA B. TENEV, ESQ., )
)
Appellant, )
)
v. ) Case No. 2D14-4566
)
FREDERICK D. THURSTON, D.M.D., )
individually; THURSTON DENTAL )
ASSOCIATES, P.A., a Florida )
professional association; and )
THURSTON AND ACOSTA DENTAL )
ASSOCIATES, P.L., a Florida limited )
liability company, )
)
Appellees. )
)
Opinion filed March 9, 2016.
Appeal from the Circuit Court for Polk
County; Keith Spoto and J. Dale Durrance,
Judges.
Petia B. Tenev, Esq., pro se.
Matthew Morrow, St. Petersburg, for
Appellant.
Hank B. Campbell and William T. McKinley
of Valenti Campbell Trohn Tamayo &
Aranda, P.A., Lakeland, for Appellees.
SLEET, Judge.
Petia B. Tenev challenges the trial court's final judgment granting
sanctions against her in which the trial court directed Tenev to pay $68,385.83 in
attorneys' fees and $5853.83 in costs to Frederick Thurston, D.M.D.; Thurston Dental
Associates, P.A.; and Thurston and Acosta Dental Associates, P.L. (collectively
Thurston), who were the plaintiffs below. Tenev represented the defendants below,
Henry Acosta, D.M.D., and Acosta Dental Associates, P.L. (collectively Acosta). We
reverse.
The underlying action involved the separation and winding up of a dental
practice that had been owned by Thurston and Acosta. The proceedings were
bifurcated with the issues of dissolution, wind up, and an accounting addressed first at a
bench trial. The parties then prepared to address the issue of damages via a jury trial.
On May 5, 2014, the parties selected a jury, including one alternate, and the jury was
sworn in. Before adjourning for the day, the court 1 addressed the jurors specifically,
stating:
I want to remind you that during this overnight recess do not
discuss this case among yourselves or with any other
persons, and do not permit anyone to say anything to you in
your presence about the case, do not read or listen to any
reports about the case, and do not do any electronic
research on the Internet or any other electronic devices
concerning this case or the location of this case, and do not
have any conversation whatsoever with the attorneys, the
parties, or any of the witnesses who are listed to appear in
this case.
1Trialwas conducted before Judge Dale Durrance, and he entered the
mistrial and issued the order imposing sanctions. However, Judge Keith Spoto
conducted the hearing on and entered the order setting the amount of sanctions.
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On the following morning, before the jurors entered the courtroom, the
court convened to discuss the logistics of the trial with the parties and counsel. After
about thirty minutes of discussion, as the trial court was about to bring the jurors back
into the courtroom, Tenev informed the court that she wanted to strike a juror for cause
because the juror was a Facebook friend of one of Dr. Acosta's employees. Initially, the
court became upset and admonished Tenev for violating the aforementioned instruction
to the jurors before adjourning the day before. Then the trial court asked Tenev how
she came to learn this information, and a lengthy discussion ensued during which
Tenev gave three different answers to the inquiry. None of Tenev's responses involved
any contact with the juror.
After hearing Tenev's responses, the trial court first stated that it could
strike the questionable juror and proceed to trial with the alternate juror. Both parties
initially agreed, but Thurston then asked for the court to inquire of both Dr. Acosta's wife
and the juror. The court granted the request and inquired of the juror, who admitted to
being Facebook friends with Dr. Acosta's hygienist but stated that she was unaware that
the hygienist worked part time for Acosta and that she did not know anything about the
instant case. Further, the juror stated that she had not had any contact with any party
or attorney involved in the case. Thereafter, the court sent the juror back to the jury
room and inquired of Dr. Acosta's wife, Katherine Loh.
Loh testified that she found the jury list in Dr. Acosta's suit coat the
evening before and decided to research the jurors on the Internet. She discovered that
one of the jurors was Facebook friends with the hygienist. Thereafter, she sent a text to
Tenev informing her of the relationship and asking her to strike the juror. Tenev
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responded to Loh that morning via text and asked for the name of the juror. Loh
provided the name to Tenev.
Rather than making a motion to strike the juror and proceed to trial with
the alternate juror, Thurston moved for a mistrial and argued that there was no way he
could receive a fair trial given that Tenev and Loh had attempted to make improper
contact with a juror. Tenev argued that the court should excuse the juror and proceed
with the alternate juror because there was no evidence of any improper contact
between herself and any juror. The court found that Tenev had acted in bad faith, and it
granted a mistrial. However, the court did not find that Tenev had made any contact
with the juror or that trial could not proceed with the remaining panel of jurors. Thurston
filed a motion for sanctions, alleging that Tenev's dishonesty and improper juror
research caused the mistrial. Following a hearing, the trial court granted the motion and
ordered Tenev to pay for Thurston's counsel's fees and costs for preparation and
attendance at the trial and prosecution of their motion for sanctions.
On appeal, Tenev first argues that the trial court's imposition of sanctions
must be reversed because the court failed to make specific findings as to the grounds
for the sanctions. However, the trial court did make a specific finding that Tenev was
dishonest in answering the court's inquiry about the basis for striking the juror and such
does constitute an ethical violation between Tenev and the court. But the court failed to
make specific findings as to any bad faith acts committed by Tenev that were so
prejudicial as to vitiate the entire trial and necessitate a mistrial. Although counsel for
Thurston's frustration with Tenev is palpable from the record, Thurston did not provide
the trial court with a sufficient legal basis to grant the mistrial.
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"We review an order imposing sanctions for abuse of discretion." Rush v.
Burdge, 141 So. 3d 764, 766 (Fla. 2d DCA 2014). "[A] trial court possesses the
inherent authority to impose attorneys' fees against an attorney for bad faith conduct."
Moakley v. Smallwood, 826 So. 2d 221, 226 (Fla. 2002). However, that authority is not
unfettered or without limits; the court must strike a balance "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." Id. Accordingly
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.
Id. at 227.
In the instant case, the trial court made the following findings in its written
order:
With regard to Plaintiffs' Motion for Sanctions against
Defendants' counsel, Petia Tenev, Esquire, the court
specifically finds that her bad faith conduct leading up to,
during and even subsequent to the jury trial which began on
May 5, 2014, and which mistried on May 6, 2014, reflects an
intentional, consistent, deliberate, and contumacious
disregard for [the trial] court's authority. In particular the
conduct of Defendant's counsel pertaining to her May 6,
2014, request to disqualify a juror for cause after the jury
was sworn on May 5, 2014, well establishes her unethical
and willful disregard of or gross indifference to the authority
of the court. As clearly reflected in the transcript, in the
history of this case, and as asserted in Plaintiffs' Motion for
Sanctions, Ms. Tenev's actions, including her admitted
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dishonesty to the court's direct questioning, mandates
sanctioning . . . .
The bulk of the trial court's findings lack the high degree of specificity
required to support the imposition of sanctions. However, the court arguably makes a
sufficiently detailed finding upon which to sanction Tenev for being dishonest before the
court. But a review of the record before us clearly establishes that Tenev's dishonesty
was not a litigation tactic undertaken solely for bad faith purposes. Tenev initially set
out to notify the court of a potentially biased juror before trial commenced. Such was
her duty as an officer of the court, and she clearly was not attempting to unduly delay or
protract litigation or to seek an unfair advantage against Thurston. However, the
aggressive inquiry by the trial court as to the legal basis for her motion to strike the juror
was met with inarticulate, evasive, and dishonest answers. As a consequence, she
violated her oath as an attorney to be honest before a tribunal. See R. Regulating Fla.
Bar 4-3.3(a)(1) ("A lawyer shall not knowingly . . . make a false statement of fact or law
to a tribunal."); 4-8.4(c) ("A lawyer shall not . . . engage in conduct involving dishonesty,
fraud, deceit, or misrepresentation.").
Nevertheless, we conclude that the dishonest answers Tenev gave to the
trial court during the conference before the commencement of opening statements did
not adversely impact the proceedings in any material way such that a fair trial could not
be had for both parties. And Tenev's actions certainly did not result in Thurston
incurring additional attorneys' fees and costs. When a trial court awards attorneys' fees
as a sanction against an attorney, "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." Moakley, 826 So. 2d at 227.
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The trial court determined that Tenev's actions caused the ultimate mistrial
of the case and awarded "all reasonable attorneys' fees and costs incurred for
preparation for and attendance at jury trial." This was an abuse of discretion because
the only detailed factual finding of bad faith on the part of Tenev—the dishonest
statements to the court—did not warrant a mistrial. "[A] mistrial should not be granted
unless an absolute legal necessity to do so exists." Gatten v. Zachar, 932 So. 2d 543,
544 (Fla. 5th DCA 2006) (quoting Ratley v. Batchelor, 599 So. 2d 1298, 1302 (Fla. 1st
DCA 1991)); White v. Consol. Freightways Corp. of Del., 766 So. 2d 1228, 1232 (Fla.
1st DCA 2000) (same); see also Duest v. State, 462 So. 2d 446, 448 (Fla. 1985) ("[A]
mistrial is appropriate only when the error committed was so prejudicial as to vitiate the
entire trial.").
Once Tenev brought the issue of a potentially biased juror to the trial
court's attention, the court questioned both Loh and the juror, revealing no evidence of
any improper contact with any of the jurors on the part of Tenev or Loh. Trial had not
commenced, and an agreed upon alternate juror was available and could have been
substituted for the questionable juror. The remaining jury panel, including the alternate,
had been sequestered during the hearing on the request to strike, and there was no
indication that Thurston could not have received a fair trial with the alternate juror
seated. In moving for mistrial, counsel for Thurston argued that the jurors had been
waiting three hours and were aware that one juror had been questioned by the court.
But a jury having to wait while a trial court hears a motion is not so prejudicial to one
party or the other so as to create an absolute legal necessity for a mistrial.
Furthermore, in granting the mistrial, the trial court made much of the fact
that Tenev had disobeyed its instruction to do no research on the case. But the pretrial
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instruction to refrain from discussions or research about the case and to avoid any
contact with witnesses and parties was directed to the jurors—not the attorneys or the
parties—and could not be a basis for the imposition of sanctions against Tenev. There
is no prohibition in Florida law against an attorney researching jurors before, during, and
throughout a trial so long as the research does not lead to contact with a juror. An
attorney is not obligated to inform the court of such research unless it affects the
fairness of the trial and the administration of justice.
In this case, the research was initiated by a party's spouse who was also a
witness under subpoena to testify. When the result of the research was relayed to
Tenev, she had an obligation to inform the court of a potentially biased juror who had a
relationship with her client's employee, and she satisfied that obligation. Even had
Tenev immediately stated that it was Loh who had made the Facebook discovery, the
trial court still would have had to conduct a hearing and inquire of Loh and the
potentially biased juror. And although the trial court also seemed to take exception to
the fact that Tenev did not bring the issue to the trial court's attention until thirty minutes
into the morning's proceedings, nothing about that time delay exacerbated the situation
or changed the fact that the alternate juror could have been seated in place of the
potentially biased juror.
Review of the record demonstrates that the trial court conducted
numerous motion hearings, patiently dealt with Tenev's repetitive arguments, and
expeditiously ruled on the legal issues. However, it appears that Tenev's motion to
strike this juror on the morning of trial was the proverbial straw that broke the camel's
back. The court's frustration is evident in its order granting sanctions; however, none of
Tenev's actions warranted the granting of Thurston's motion for mistrial. Her dishonesty
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about the juror research did not directly affect Thurston's incurrence of attorneys' fees
and costs in preparation for and attendance at the jury trial. And the fees and costs
Thurston did incur in seeking sanctions were the result of its own motion. At the hearing
on the sanctions motion, Thurston presented no evidence or argument to establish that
it had been prejudiced in any way by the three conflicting answers Tenev gave
regarding the juror research. As such, we must reverse the trial court's order in its
entirety.
Reversed.
ALTENBERND and LUCAS, JJ., Concur.
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