Tuesday, August 1, 2017

Follow Orders, or Seek Relief

The Florida Fourth District Court of Appeal recently rendered an interesting decision in Rosenwater v. Deutsche Bank National Trust Co., 4D16-4015 [June 21, 2017]. The focus of the decision is on a contempt of court order, it is interesting and instructive. Workers' compensation judges (JCCs) in Florida do not have contempt powers. I have heard some JCCs lament that fact, while many do not believe that such powers would be of much benefit to JCCs. 

Those who study the procedural aspects of contempt proceedings recognize why judges who do have the authority rarely use it. Contempt is used fairly rarely. The actuality of contempt is not what Hollywood has portrayed, and there are procedural steps required. In addition, it is reasonably rare that parties or attorneys allow themselves to behave in such a manner as to leave the trial judge no recourse except contempt. 

Rosenwater is a foreclosure action. There, an attorney was ordered to attend a case management conference (CMC). The order required personal attendance by the particular attorney, and clearly warned that failure to attend might result in sanctions. Over the years, I have seen a variety of JCCs enter similar orders for specific events, including mediations, motion hearings, and trials. 

The Rosenwater defense attorney failed to attend the case management conference. The judge rescheduled, and the attorney again did not appear. The judge therefore called the attorney on a speaker phone during that last hearing. After "resistance" from office staff, an associate of the attorney took the call and told the judge that counsel "did not feel the need to attend" the conference because he and opposing counsel had "worked out an agreed order." This seems to illustrate a judge's patience, rescheduling repeatedly, and then eventually attempting to proceed despite the non-appearance.

The Judge, on the phone call, "informed the associate that compliance with court orders is required." Eventually, the defense attorney took the call and verbally expressed his reasons for not attending as ordered:
1. He had worked out an agreement on the defendant’s pending Motion to Dismiss with [the bank]’s counsel and that [the bank]’s counsel was presenting the proposed order.
2. That he did not feel the case was in a sufficient “posture” to “warrant” a case management conference.
3. That he did not feel that CMC was worthy of having even coverage counsel attend.
4. That he essentially ignored the CMC order and had no qualms about ignoring the same.
The judge "then issued an order to show cause," which is basically an opportunity for an attorney or party to explain a failure or action, like not appearing as noticed/ordered. The attorney "responded to the order, 'sincerely apologizing'” and taking full responsibility. The attorney explained however that he believed his behavior to be reasonable in Palm Beach County when the parties have reached an agreement. He also explained that he was making an effort to save his client attorney fees. 

There was a hearing on the order to show cause, and the defense attorney pled no contest, "again apologized and testified that he was unaware the trial judge was placed on hold" (when he called during that last hearing). Counsel explained that "he had the utmost respect for judges and has never had a problem with any court proceedings in the 28 years he has been practicing."

The Judge "appreciated the apology," but "found the attorney guilty of direct criminal contempt for purposefully and willfully and with contumacious disregard to the court's authority ignore and willfully disobey a court order." The Judge also found support for his conclusion in the attorney's comments "that the posture of the case did not warrant the Court having a case management conference." As a side note, the way to express your opinion that a hearing is not required is to file an objection, not simply refuse to appear. 

Counsel was fined $500, and sentenced to "jail for 10 days, suspended." The attorney "moved to disqualify the trial judge from the entire case," which was denied, and the sanctioned attorney appealed the contempt decision and the Fourth District. 

The appellate court agreed with the attorney, citing Florida Rule of Criminal Procedure Rule 3.840(e). It says that “If the contempt charged involves disrespect to or criticism of a judge, the judge shall disqualify himself or herself from presiding at the hearing. Another judge shall be designated by the chief justice of the supreme court.” The Court concluded that the trial judge holding a criminal contempt proceeding, in this setting, was fundamental error. The Court ordered the case remanded for a new hearing on contempt before a different judge. That demonstrates one of the procedural aspects that may discourage contempt proceedings.

A similar contempt proceeding was reported by Florida Record earlier this year. That case involves an Assistant Public Defender and disclosure of some transcripts. The article explains that there is a process for responding to a judge's orders. It quotes attorney Dorothy Easley that "when a trial judge enters an order, the order is to be followed. If the order is in any way ambiguous, the solution is to ask the trial court for clarification. Not to exceed the order and hope the attorney’s interpretation was a correct one." That is very sound advice. By the same token, if a party perceives an order as inappropriate, the solution is to object and point out such infirmity. 

The same is true in workers' compensation proceedings. When an order is entered, compliance is required. An order is not a request. This is true whether the order says that the parties will come to a status conference, a mediation, a hearing, or a trial. And, when it says specifically who will attend, those persons are then under an obligation to do one of two things (1) attend, or (2) seek relief from the order by filing some sort of motion or objection, see Rule 60Q6.115. Ignoring the order, substituting your own judgment for the judge's in terms of whether a proceeding or your presence is actually necessary, is not the way to go. 

Florida workers' compensation judges do not have contempt authority. However, there are a number of other potential direct sanctions that might be discussed, including dismissal of motion(s) or petition(s), striking of defense(s), and monetary sanctions such as attorney's fees or costs. Before imposition of direct sanctions in workers' compensation, an order to show cause or a motion for sanctions is appropriate, Rule 60Q6.125. Mistakes are going to happen; when they do, and a sanction motion or order to show cause is issued, it is time to correct the mistake. That is generally not the time to "double down" on the behavior (refuse to get on the phone when the judge calls from a hearing). 

It is also worth considering that an attorney might see a complaint filed with The Florida Bar regarding disregarding an order. That action can be taken without any motion or "show cause" order. A lawyer is "a public citizen having special responsibility for the quality of justice," and "should be competent, prompt, and diligent," Preamble to The Florida Bar Rules of Professional Responsibility. Ignoring trial judge orders may not be seen as fulfilling any of these responsibilities. 

In the end, it makes sense to follow Ms. Easley's advice. If an order is issued, take it seriously. If there is disagreement with the order, take appropriate action by objecting/responding. If you conclude the order is inappropriate, and your attempts to have the trial judge address your concerns fail, seek appellate review. But, it is simply not advisable to simply ignore the order with which one disagrees. Ignoring the order may lead to further misunderstanding, and potentially to sanctions. It is not likely that ignoring the order will assist in moving the issue or the case forward. And in the end, the whole point of litigation is to move the issue forward, to resolution or adjudication. 







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