Rush v. Burdge

               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT



BRIAN P. RUSH,                      )
                                    )
            Appellant,              )
                                    )
v.                                  )                  Case No. 2D13-1175
                                    )
LOUIS E. BURDGE; RIVIERA POOLS,     )
INC.; RIVIERA POOLS OF TAMPA, INC.; )
and JOHN DOE, Lessor,               )
                                    )
            Appellees.              )
                                    )

Opinion filed July 11, 2014.

Appeal from the Circuit Court for
Hillsborough County; James M. Barton, II,
Judge.

Steven L. Brannock and Celene H.
Humphries of Brannock & Humphries,
Tampa, and Brian P. Rush of Woodlief &
Rush, P.A., Tampa, for Appellant.

Daniel P. Mitchell of Barr, Murman & Tonelli,
P.A., Tampa, for Appellees.


CASANUEVA, Judge.

             Brian P. Rush appeals the trial court order imposing sanctions for

unprofessional conduct in the amount of $5000 for attorney's fees and $3000 for costs,

for a total of $8000. Mr. Rush is an attorney engaged in this instance in the practice
area of personal injury. The events giving rise to the sanction arose in the context of a

Compulsory Medical Examination (CME). We reverse.

             This case arises from an incident that occurred on May 9, 2011, at the

office of Dr. Michael Shahnasarian, an expert retained by Appellees to conduct a CME

of Ronald McKibban, the plaintiff in a personal injury suit brought against Appellees.

Mr. Rush, as counsel for Mr. McKibban, raised several last-minute, albeit timely,

objections to the CME, which were served on opposing counsel via facsimile at

5:00 p.m., Friday, May 6, 2011. Mr. McKibban appeared for the scheduled CME on

Monday morning and was instructed to fill out a seventeen-page pre-exam

questionnaire. Mr. McKibban presented the doctor with a copy of the objections, which

included an objection to the completion of lengthy information forms, but the CME

continued when Dr. Shahnasarian learned that no court order had been entered limiting

it.

             Mr. McKibban, diagnosed with cognitive impairment and memory loss,

became concerned about the questionnaire after answering a few questions and called

his attorney, Mr. Rush. Dr. Shahnasarian attempted unsuccessfully to contact one of

the defense attorneys. According to Dr. Shahnasarian and two members of his staff,

when Mr. Rush arrived at Dr. Shahnasarian's office, the two engaged in a heated

discussion, during which Mr. Rush was loud, aggressive, and used abusive and

threatening language. Mr. Rush claims he merely informed Dr. Shahnasarian that his

client would not fill out the lengthy survey and that Mr. Rush would ask the judge to

impose sanctions.




                                           -2-
              A member of Dr. Shahnasarian's staff told Mr. McKibban that he could tear

up the completed portions of the questionnaire, which he did. Ultimately, it was agreed

that the CME would continue as scheduled for that day and the dispute regarding the

questionnaire would be submitted to the court. Mr. Rush left the office and the CME

proceeded without further difficulties. Mr. Rush filed a motion with the court to resolve

the questionnaire discovery objection, and Appellees moved for sanctions against Mr.

Rush, alleging that he intentionally interfered with and disrupted the May 9 CME,

unfairly depriving Appellees of the benefit of the exam.1

              The trial court ruled as to the questionnaire objection that Mr. McKibban

would be required to complete the questionnaire, but with the full assistance of Mr.

Rush. After an evidentiary hearing as to the motion for sanctions, the court entered an

order imposing sanctions against Mr. Rush, finding he "created an atmosphere of

anxiety and hostility which disrupted the examination." After a hearing as to amount,

the court ordered Mr. Rush to pay $5000 in attorney's and paralegal fees and $3000 in

costs to Appellees.

              We review an order imposing sanctions for abuse of discretion. Mercer v.

Raine, 

 (Fla. 1983); J.D.C. v. M.E.H., 

 (Fla.

2d DCA 2013). "A trial court . . . abuses its discretion if its ruling is based on an

'erroneous view of the law or on a clearly erroneous assessment of the evidence.' "




              1
                Appellees' motion alleged several actions by Mr. Rush which disrupted
the exam, including destroying evidence and refusing to preserve destroyed evidence,
coaching Mr. McKibban and instructing him how to answer questions, loudly and
belligerently attempting to dictate to Dr. Shahnasarian the conditions of his examination,
and violating copyrights. The trial court's order focuses only on the argument between
Mr. Rush and Dr. Shahnasarian.


                                             -3-
McDuffie v. State, 

 (Fla. 2007) (quoting Cooter & Gell v. Hartmarx

Corp., 

 (1990)).

              In this case, Appellees moved for monetary sanctions against Mr. Rush

pursuant to Florida Rule of Civil Procedure 1.380 and pursuant to the trial court's

inherent power to sanction attorney misconduct. We will address the latter basis first.

In the trial court's order awarding sanctions, certain findings of fact are germane to our

analysis. First, the trial court found that "Rush's disruptive acts were not committed

maliciously or with malevolent intent, but in a misguided attempt to represent his client;"

and second, that the most serious charge leveled against him, the destruction of

evidence, was not proved.

              In Florida, a trial court has the inherent authority to impose a sanction

against an attorney for bad faith conduct. Moakley v. Smallwood, 

(Fla. 2002). This power includes the imposition of a financial assessment. 

However, this power is not unlimited and requires specific findings to ensure its

"restrained use," in compliance with due process. 

; see also Kuttas v.

Ritter, 

 (Fla. 2d DCA 2004).

              In the exercise of its inherent authority a trial court must strike an

"appropriate balance" between "condemning as unprofessional or unethical litigation

tactics undertaken solely for bad faith purposes" against the needs of counsel to provide

necessary advocacy in the pursuit of their client's interest. Moakley, 

.

To insure a proper balance has been attained, Moakley imposes upon the trial court the

necessity to make an express finding of bad faith conduct, together with "detailed




                                            -4-
factual findings describing the specific acts of bad faith conduct that resulted in the

unnecessary incurrence of attorneys' fees." 

.

              From Moakley it is easy to discern that the evil to be avoided is conduct

that is undertaken in "bad faith." An examination of the order on review in this case

reveals that the court did not make a finding that Mr. Rush acted in bad faith. Rather,

the court concluded his behavior was intentional and disruptive; a conclusion with which

this court agrees. Next, the court found that Mr. Rush's conduct was not "committed

maliciously or with malevolent intent." This finding, at a minimum, suggests the trial

court concluded Mr. Rush's behavior lacked the bad faith element. Thus, we conclude

that without a finding of bad faith, it was error to impose a financial sanction premised

upon the exercise of the trial court's inherent authority. See 

              We are invited by Appellees' counsel to return the matter for further

proceedings should we conclude, as we have, that there was a fatal flaw in the order

because of a lack of a specific finding of bad faith conduct. We decline the invitation.

The facts establish that the CME was completed, that part of the delay can be properly

attributed to the need for a judicial resolution of a legitimately disputed issue, and that

the significant issues were resolved in Mr. Rush's favor. We also point out that one

allegation was refuted before Appellees' motion was even filed. Likely, a proper and

complete investigation would have precluded that assertion from being made. We

conclude that this type of conduct is not sufficient to come within the parameters of

Moakley so as to authorize a financial penalty for tactics undertaken "solely for bad faith

purposes." See 

; see also Shniderman v. Fitness Innovations & Techs., Inc.,

 (Fla. 4th DCA 2008) (affirming trial court's sanction of fees against




                                            -5-
attorney pursuant to Moakley based on evidence demonstrating two years of bad faith

litigation, including obtaining a default premised upon a knowingly inaccurate verified

complaint and engaging in discovery misconduct to avoid acknowledging the inaccuracy

and preserve the default).

              Similarly, we reject Appellees' argument that an affirmance is proper

based on the trial court's authority to sanction for discovery violations under rule 1.380.

Neither the circumstances of this case nor the findings of the trial court support a

sanction of attorney's fees against Mr. Rush for failure to make discovery. See

Liebreich v. Church of Scientology Flag Serv. Org., Inc., 

 (Fla. 2d

DCA 2003) ("Rule 1.380(a)(4) provides for the award of expenses on a motion for order

compelling discovery . . . ."); Horace Mann Ins. Co. v. Chase, 

 (Fla.

1st DCA 2011) (reversing sanctions as inappropriate under rule 1.380 "because the

Appellees did not prevail on a motion to compel and Appellant's counsel did not fail to

appear at a duly noticed deposition").

              While we conclude that this type of conduct is not sufficient to come within

the parameters of Moakley so as to authorize a financial penalty, in so stating, we are

not condoning Mr. Rush's behavior. Simply, it was not professional and is not excused

by the claim that Mr. Rush has a large docket of casework.

              Reversed.



CRENSHAW, J., Concurs.
VILLANTI, J., Concurs with opinion.




                                            -6-
VILLANTI, Judge, Concurring.

               Although I fully concur in this opinion, I cannot help but further comment

on the lack of professionalism and common courtesy displayed by all of the participants

in this case, which has ultimately resulted in the expenditure of the parties' resources,

the trial court's time, and this court's time.

               It is not clear from the record exactly what steps were taken by counsel for

Appellees to schedule the CME of Mr. Rush's elderly client, Mr. McKibban, with Dr.

Shahnasarian and to communicate the intended scope of that examination. What is

clear is that neither party sought or obtained a court order setting forth the parameters

of the CME before it was scheduled to occur. While such an order is not a necessity,

there are apparently a sufficient number of disputes surrounding this type of

examination to warrant the existence of a standard "Hillsborough County Uniform Order

on CMEs." This order provides, in pertinent part, that an "examinee will not be required

to complete lengthy forms upon arrival at the examiner's office."

               Mr. Rush did not initially object to the CME of his client and, as mentioned

above, did not seek to have the court enter the Uniform Order on CMEs. However, late

on the Friday afternoon before the Monday morning CME, Mr. Rush faxed objections to

Appellees' counsel that essentially tracked the provisions of the Uniform Order. Upon

receipt of these objections, counsel for Appellees apparently took no steps to alert Dr.

Shahnasarian to Mr. Rush's objections and apparently did not attempt to contact Mr.

Rush to discuss the matter.2 Mr. Rush provided a copy of his objections to Mr.



               2
              While one of the attorneys representing Appellees testified that he was
on a plane on the Monday morning of the CME, the record indicates that at least two
other attorneys at the firm were working on the case.


                                                 -7-
McKibban, and Mr. McKibban dutifully took them with him to the CME. However, Dr.

Shahnasarian, for his part, refused to honor the objections and told Mr. McKibban that

he would follow his standard protocol unless "he got a court order to the contrary." Dr.

Shahnasarian then handed Mr. McKibban a seventeen-page questionnaire and

expected him to complete it without the assistance of counsel.

              Understandably, Mr. McKibban became concerned that his responses

might be harming his case; so he elected to call Mr. Rush. Upon receiving the call, Mr.

Rush drove to Dr. Shahnasarian's office to address the objections in person rather than

addressing them over the phone with Dr. Shahnasarian or opposing counsel. Needless

to say, Mr. Rush's actions were perceived as disruptive and adversarial. Ultimately,

however, the court imposed the conditions on the CME sought by Mr. Rush, including

allowing Mr. McKibban to complete the forms with the assistance of counsel and with

limitations on the use of Mr. McKibban's responses.

              Clearly Mr. Rush should not have waited until the day before the CME to

file his objections. As the facts unfolded in this case, it would have behooved him to

obtain entry of the Uniform Order upon being served with the notice of CME. And

clearly it might have been better had Mr. Rush attempted to call Dr. Shahnasarian

rather than simply appearing in his office lobby. However, it is equally clear that

counsel for Appellees should not have ignored Mr. Rush's objections when they were

received. As the trial court noted at the evidentiary hearing, counsel for Appellees could

have elected to voluntarily comply with the limitations included in the Uniform Order in

the spirit of professionalism. And Dr. Shahnasarian—no stranger to serving as an

expert in personal injury litigation—should have addressed the issue with counsel for




                                           -8-
Appellees when presented with Mr. Rush's objections rather than forcing the disputed

forms on Mr. McKibban and then legalistically instructing Mr. Rush to "get a court

order." While I certainly do not condone all of Mr. Rush's actions, I agree with my

colleagues that, in light of the conduct displayed by all of the professionals involved in

this matter, Mr. Rush's conduct was not sanctionable. Had professionalism by any of

them prevailed, this matter could have been entirely avoided.




                                            -9-