Rhoades v. Rodriguez—(Per Curiam; 5DCA; 2/3/23).
Rodriguez sued Randy Rhoades, III, (no idea if he’s related to the dead-at-25 former rock star guitarist for Ozzy Osbourne) after he hit her vehicle with his own vehicle and she suffered injuries. The first trial resulted in a mistrial, and Rodriguez filed a motion for sanctions alleging that Rhoades’ attorney, Dale Gobel, had made statements that caused the mistrial that turned out to be misleading and deceptive. She also alleged that Attorney Gobel had used improper methods to obtain her medical records. The trial court ultimately imposed the sanction of striking the defendant’s pleadings.
The second trial proceeded to a plaintiff verdict, but the jury imposed far lower damages than she had requested. She moved for additur, and the trial court granted the motion, increasing the damages. The defendant had the choice of accepting the additur or opting for a new trial, and Rhoades rejected the additur and appealed the order granting a new trial and the order granting the sanction of striking his pleadings.
Citing the highly deferential standard of review for an additur motion, the DCA held that the trial court did not abuse its discretion in ordering a new trial after a rejection of additur.
The DCA also affirmed the finding that the defense attorney made intentionally misleading and deceptive statements and improperly obtained the plaintiff’s medical records.
The only question left, then, was whether striking the defendant’s pleadings was an appropriate sanction. The court recited the mandatory standard under Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla. 1993), for considering whether to strike a party’s pleadings as a sanction. The 6-part test is:
- whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience;
- whether the attorney has previously been sanctioned;
- whether the client was personally involved in the act of disobedience;
- whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion;
- whether the attorney offered reasonable justification for noncompliance; and
- whether the delay created significant problems of judicial administration.
The trial court also noted Attorney Gobel’s extensive history of being sanctioned. Most of these factors weighed heavily in favor of a harsh sanction. Ham v. Dunmire, 891 So. 2d 492, 497 (Fla. 2004), however, commands that sanctions not “punish litigants too harshly for the failures of counsel.” The DCA noted that there was no evidence of Rhoades participating in his attorney’s misconduct, that there was no evidence of prejudice to the Plaintiff, and that the record showed that the plaintiff’s attorney also had a significant role in causing the mistrial. (NOTE: I suppose the plaintiff’s attorney’s role in helping to cause the mistrial was the basis for the finding of lack of prejudice. Having to try a case twice would seem to undoubtedly cause additional expense and prejudice a party, but not if you’re partly to blame). In a footnote, the DCA stated that the holding should not be interpreted to mean that non-involvement by the party in the attorney’s misconduct always acts as a bar to striking pleadings; rather, the holding applied only the “the facts of this case.”
The DCA specifically authorized the trial court, on remand, to sanction the attorney directly and the court went so far as to suggest specific things the attorney should pay for.
The DCA then stated that for “the benefit of the members of the Bar,” they would summarize two of the misdeeds that warranted sanctions. First, after serving notices of intent to issue subpoenas, Attorney Gobel prematurely issued the subpoenas. When plaintiff objected to something in the subpoenas, the attorney waited two weeks to communicate to the subpoenaed party. By that time, he had already received the documents. The court called attention to a recent bar case where the same sort of thing resulted in a suspension from the practice of law for 91 days.
Second, counsel used a prior subpoena to seek updated medical records from one of plaintiff’s doctors without plaintiff’s knowledge or consent by characterizing them as “missing” records. Subpoenas are not continuing in nature. A request for updated records requires a new subpoena. The attorney used the old subpoena to obtain updated medical records without any notice to the plaintiff.
JUDGE JAY CONCURRED SPECIALLY, but since the concurrence was written solely to respond to the dissent, that will be summarized first.
CHIEF JUDGE LAMBERT CONCURRED IN PART AND DISSENTED IN PART. The chief judge concurred with the part of the majority opinion that affirmed the trial court’s actions, but he dissented from reversing the sanction of striking the pleadings. He noted that that the court was forwarding the opinion to the Florida Bar. He stated that in light of Attorney Gobel’s history of misconduct, the reversal would embolden him to not to change his tactics and “clients will continue to hire him,” resulting in further adverse effects on Florida’s courts.
JUDGE JAY’s concurrence undercuts the footnote in the majority that attempted to distance itself from setting a precedent that striking pleadings is never justified if the party was not involved in the attorney’s misconduct. Judge Jay opined that pleadings should never be stricken when the malfeasance can be adequately addressed through a contempt citation or punishment directed at the attorney. A key fact for Judge Jay was that Mr. Rhoades did not hire Attorney Gobel; his insurance carrier did. Perhaps he would have a different view if the party handpicked an attorney with an unethical reputation.
Terry P. Roberts
Director of Appellate Practice Fischer Redavid PLLC