Document 6442010

IN THE SUPREME COURT OF FLORIDA
(Before a Referee)
THE FLORIDA BAR,
CASE NO.
Complainant,
TFB NO.
2008-10,986(13C)
v.
WILLIAM M. HOLLAND, JR.
Respondent.
COMPLAINT
THE FLORIDA BAR, Complainant, files this Complaint against William
M. Holland, Jr., Respondent, pursuant to Rule 3-3.2(b), Rules Regulating The
Florida Bar, and alleges:
1.
Respondent is, and at all times pertinent to this Complaint has been, a
member of The Florida Bar, subject to the jurisdiction of the Supreme Court of
Florida.
2.
Respondent represented the Plaintiff, Gloria H. Greenfield, in a civil
suit, Gloria H. Greenfield v. William R. Garrett, et al., Case No. Ol-CA-003155, in
the Circuit Court of the Thirteenth Judicial Circuit in and for Hillsborough County.
3.
pending.
Gloria Greenfield died on November 17, 2006, while the case was
4.
Respondent became aware of his client's death on or about December
1,2006.
5.
Respondent failed to inform the defendants or the court of his client's
6.
On or about March 28, 2007, counsel for defendants Patrick A. Abbey
death.
and Patrick A. Abbey, D.M.D., P.A. ("Abbey") served Respondent with a Notice
of Production from Non-Parties, seeking the Plaintiffs medical records from a
large number of medical providers. A copy of the Notice of Production from NonParties is attached as Exhibit A.
7.
On or about March 30, 2007, counsel for Abbey sent Respondent a
letter requesting dates for Plaintiffs deposition in the month of May 2007. A copy
of the letter dated March 30, 2007 is attached as Exhibit B.
8.
Respondent did not respond to the letter requesting dates for Plaintiffs
deposition and on or about May 1, 2007, counsel for Abbey noticed Plaintiffs
deposition for May 14, 2007. A copy of Notice of Taking Deposition Duces
Tecum is attached as Exhibit C.
9.
Respondent did not object or respond to Abbey's Notice of Production
from Non-Parties and as a result counsel for Abbey pursued obtaining Plaintiffs
medical records from the numerous medical providers stated in the notice.
10. Upon review of Plaintiff s medical records, counsel for Abbey learned
of Plaintiff s death and in response filed a suggestion of death of the Plaintiff with
the court on or about May 9, 2007. A copy of "Suggestion of Death of Plaintiff
Gloria H. Greenfield" filed by counsel for Abbey is attached as Exhibit D.
11. On or about May 10, 2007, in response to receipt of the suggestion of
death filed by counsel for Abbey, Respondent filed a suggestion of death with the
court, approximately five months after learning of his client's death. A copy of
"Suggestion of Parly's Death" filed by Respondent is attached as Exhibit E.
12. Rule 1.260(a), Florida Rules of Civil Procedure, provides that unless a
motion for substitution of parties is made within 90 days after death is suggested
on the record, the action shall be dismissed as to the deceased party.
13. Respondent failed to disclose his client's death and avoided filing a
suggestion of death of his client serving to delay the litigation so as not to trigger
the 90-day limitation for making a motion for substitution pursuant to Rule
1.260(a) and subject his client's case to dismissal under said Rule.
14. Counsel for Abbey filed a Motion to Dismiss and Motion for
Evidentiary Hearing for Sanctions.
15. On or about November 26, 2007, the trial court entered an Order of
Dismissal and Imposing Sanctions against Respondent in response to counsel for
Abbey's Motion to Dismiss and for Sanctions. A copy of the November 26, 2007
Order of Dismissal and Imposing Sanctions is attached as Exhibit F.
16. Subsequently, the trial court entered an Order Denying William J.
Holland Jr.'s Motion to Dismiss, Motion to Strike and Motion for Rehearing on
May 28, 2008, and found that Respondent by his inaction acted in bad faith. The
Court reserved jurisdiction to determine the amount of attorney's fees and costs to
be awarded. A copy of the Order dated May 28, 2008 is attached as Exhibit G.
17. After an evidentiary hearing on the reservation of jurisdiction over the
determination of attorney fees, the court entered an Order on Attorney Fees and
Costs on Defendants' Motion to Dismiss and for Sanctions dated January 9, 2009,
awarding Abbey $29,503.40 in attorney's fees and costs against Respondent as a
monetary sanction. A copy of the Order is attached as Exhibit H.
18. On March 5, 2009, the Court entered an Order Denying Respondent's
Motion for Rehearing. On April 6, 2009, Respondent filed a notice of appeal of
the trial court's order imposing sanctions, which appeal is pending at the Second
District Court of Appeal, Case No. 2D09-1694.
19. By failing to report his client's death to the court and the parties to the
litigation and allowing the litigation to proceed without such notice, Respondent
committed an act contrary to honesty and justice in violation of Rule 3-4.3, and
engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in
violation of Rule 4-8.4(c), Rules Regulating The Florida Bar.
20. By delaying the filing of a suggestion of death or otherwise notifying
the parties and the court of his client's death serving to avoid the consequences of
Rule 1.260 Florida Rules of Civil Procedure, Respondent knowingly disobeyed an
obligation under the rules of a tribunal in violation of Rule 4-3.4(c).
21. On May 27, 2009, the Thirteenth Judicial Circuit Grievance Committee
"C" found probable cause for further disciplinary proceedings, and the presiding
member of the grievance committee has approved the instant complaint.
22. By reason of the foregoing, Respondent has violated the following
Rules Regulating The Florida Bar: Rule 3-4.3 (commission of any act that is
unlawful or contrary to honesty and justice); Rule 4-3.4(c) (a lawyer shall not
knowingly disobey an obligation under rules of a tribunal except for an open
refusal based on an assertion that no valid obligation exists); and Rule 4-8.4(c) (a
lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or
misrepresentation).
WHEREFORE, The Florida Bar respectfully requests that Respondent be
appropriately disciplined in accordance with The Rules Regulating The Florida
Bar.
Kenneth Lawrence Marvin
Staff Counsel
The Florida Bar
651 E. Jefferson Street
Tallahassee, Florida 32399-2300
(850)561-5600
Florida Bar No. 200999
Lisa BuzzeWi Hurley
Bar Counsel
The Florida Bar
4200 George J. Bean Parkway
Suite 2580
Tampa, Florida 33607-1496
(813)875-9821
Florida Bar No. 164216
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the original of this Complaint has been
furnished by regular U. S. mail to The Honorable Thomas D. Hall, Clerk, the
Supreme Court of Florida, 500 South Duval Street, Tallahassee, Florida 323991925; a true and correct copy by U.S. certified mail No.^t^ 22.SO ooo\ *4x>z
Return Receipt Requested, and by regular U.S. mail to William M. Holland, Jr.,
Respondent, at official bar address of 1725 E. 8th Avenue, Tampa, Florida 336053811; a copy to Lisa Buzzetti Hurley, Bar Counsel, The Florida Bar, 4200
George J. Bean Parkway, Suite 2580, Tampa, Florida 33607-1496; and a copy to
Lansing C. Scriven, Esq., Designated Reviewer, at 442 W. Kennedy Boulevard,
Suite 280, Tampa, Florida 33606-1464; all this \4th day of
2010.
Kenneth Lawrence Marvin
Staff Counsel
NOTICE OF TRIAL COUNSEL
PLEASE TAKE NOTICE that the trial counsel in this matter is Lisa
Buzzetti Hurley, Bar Counsel, whose address is The Florida Bar, 4200 George J.
Bean Parkway, Suite 2580, Tampa, Florida 33607-1496. Respondent need not
address pleadings, correspondence, etc. in this matter to anyone other than trial
counsel and to Staff Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee.
Florida 32399-2300.
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
IN AND FORHILLSBOROUOH COUNTY, FLORIDA
GLORIA H. GREENFIELD,
Plaintiff,
Case No. 01-003155
v.
%
WILLIAM R. GARRETT, WILLIAM R.
GARRETT, D.D.S., P.A., PATRICK A.
ABBEY, PATRICK A. ABBEY, D.M.D.,
PA, UNIVERSITY COMMUNITY
HOSPITAL, INC. d/b/a UNIVERSITY
COMMUNITY HOSPITAL,
Division C
Defendants,
NOTICE OF PRODUCTION FROM NON-PARTIES
TO;
William M. Holland, Jr., Esq.
1725 E. Eighth Avenue
Tampa, FL 33605-3811
NOTICE IS HEREBY GIVEN that, in accordance with Rule 1.351 of the Florida Rules of
Civil Procedure, after ten (10) days from the date of service of this notice, if service is by delivery,
or fifteen (15) days from the date of service, if service is by mail, and if no objection is received
from any party, the undersigned attorney will issue or apply to the clerk of this court for issuance of
the attached subpoena(s) directed to the persons listed below, who are not parties, to produce the
items listed at the time and place specified in each subpoena.
Records Custodians For:
1. Albertson's Pharmacy
5371 Ehrlich Road
Tampa, Florida 33625
2. Armenia Surgery Center
4703 North Armenia Avenue
Tampa, Florida 33603
3. Associates Pathology of St. Joseph's Hospital
4600 North Habana Avenue
Suite 19A
Tampa, FL 33603-2706
4. Bay Area Oncology
4301 North Habana Avenue
Suite 1
Tampa, Florida 33607
5. Cardiology Center of Tampa
Dr. Ohara
13701 Bruce B. Downs Boulevard
#101
Tampa, Florida 33613
6. Care View Radiology Centers
14999 North Dale Mabry Highway
Suite 150
Tampa, Florida 33 618
7. Cosmetic & Reconstructive Surgery Center
Berger Lewis, M.D.
2901 St. Isabel Street, Suite 2C
Tampa, Florida 33607-6385
8. Eckerd
5360 Ehrlich Road
Tampa, Florida 33624-6976
9. Feldman, Randy DBS
1773 West Fletcher Avenue
Tampa, Florida 33612-1820
10. Fletcher Medical Center Pharmacy
3000 East Fletcher Avenue
Tampa, Florida 33613
11. Fouraker, Bradley MD
Gstalder, Roger MD
12901 Bruce B. Downs Boulevard
MDC33
Tampa, Florida 33612
EXHIBIT
12. LabCorp
5610 West LaSalle Street
Tampa, Florida 33607-1770
13. Mozingo, David W., MD
University of Florida Shands Healthcare Hospital
1600 SW Archer Rd
Gainesville, FL 32610
14. SDI Radiology
4516 North Armenia
Tampa, Florida 33 603
15. South Florida Anesthesia
Dr. Moreno
6285 Sunset Drive
South Miami, Florida 33143
16. St. Joseph's Diagnostic Center
14310 North Dale Mabry Highway
Suite 100
Tampa, Florida 33618
17. Sylvester Comprehensive Cancer Center - University of Miami Hospital & Clinics
Weed, Donald T. MD
1475 NW 12TH Avenue
Suite 4027
Miami, Florida 33136
18. Tampa Bay Women's Care
5840-B West Cypress Street
Tampa, Florida 33607
19. Tampa Hearing Services, Inc.
450 East Fletcher Avenue
Suite 350
Tampa, Florida 33613
20. University Medical Service Association, Inc.
3500 East Fletcher Avenue
Suite 410
Tampa, Florida 33613
21. USF Eye Institute
2020 Laurel Drive
Tampa, Florida 33612
22. Vale, Fernando MD
Harbourside Med Tower
4 Columbia Drive, Suite 730
Tampa, Florida 33606
Respectfully submitted,
BAVOL JUDGE, P.A.
^/t*v
Brian R^enjief (EBNi^9730)
Charle/D/Bavp^BN: 776701)
400 N. AgjJefDrive, Suite 2500
P.O. Boxl440
Tampa, Florida 33601-1440
813-221-7111; 813-221-7112 (fax)
Attorneys for Defendant, PATRICK A. ABBEY,
D.M.D.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to
William M. Holland, Jr., Esq., 1725 E, 8th Avenue - Ybor City, Tampa, Florida 33605 and
Lori M. Dorman, Esq., 601 12th Street West, Bradenton, Florida 34205, by regular U.S. Mail,
and this <?'SLdayof March, 2007.
EXHIBIT
BRIAN R.DENNEY
ATXOKNXIVB AX LAW
[email protected]
March 30, 2007
William M, Holland, Jr., Esquire
1725 East 8th Avenue
Tampa, Florida 33605
Re:
Greenfield, Gloria N, v. Abbey, Patrick A., D.M.D., et al.
Claim No.
604307
Our File No. 100-001
Dear Mr. Holland;
Please provide me with dates for your client's deposition in the month of May 2007,
•within five (5) business days. If for any reason you are unable to provide dates within this tune
frame, please notify me immediately.
Should you have any questions or comments regardbg this matter, please contact me at
your earliest convenience.
Very truly yours,
BAVOL JUDGE, P.A.
BRD:cjs
400 NORTH A-snjjaY Dnivit • SUITID B6OQ • TAMPA, FLORIDA S36DE
F.O. Box 1440 • TAMPA, FLORIDA 83601-1440
TDMU-BOjni 813.221.7111 • ITAX 81S.EE1.711E
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL cnicuit
DSf AND FORHDLLSBOROUGH COUNTY,'.
GLORIA H. GREENFIELD,
MAY 03 2007
Plaintiff,
CLERK OF CIRCUIT COURT
§18 WWftll&JTY, FL
HILL
v.
WILLIAM R GARRETT, WILLIAM R
GARRETT, D.D.S., P.A, PATRICK A.
ABBEY, PATRICK A. ABBEY, D.M.D.,
P.A, UNIVERSITY COMMUNITY
HOSPITAL, INC. d/b/a UNIVERSITY
COMMUNITY HOSPITAL,
Division C
Defendants.
NOTICE OF TAKING PEPOSITION PUCES TECUM
PLEASE TAKE NOTICE that Defendants, PATRICK A ABBEY and PATRICK A.
ABBEY, D.M.D., P.A, will take the deposition, upon oral examination, of the person named
below, at the time, date and place indicated:
DATE/TIME
DEPONENT
LOCATION
Monday, May 14, 2007
@ 9:30 a,m.
GLORIA H. GREENFIELD Michael Musetta & Associates, Inc.
201N. Franklin Street
One Tampa City Center, Suite 3400
• ~
Tampa, FL 33602
813-221-3171
Said deposition wiJl be taken before a duly qualified Notary Public or officer authorized by
law to take depositions in the State of Florida, and shall continue from day to day until completed.
This deposition is being taken for the purpose of discovery, for use at trial, or for such other
purposes as are permitted under the rules of Court.
In connection with said deposition, deponent is directed to produce at said time and place
the following:
1.
Complete copies of all medical records, diagnostic films, medical reports, or any
other documents generated by or from any of your medical providers regarding your
medical condition^) between the year 2003 and lie present
2.
Any and all documents pertaining to health insurance, including, but not limited
.to, policies, claims, correspondence, and any other document or thing related to your
health insurance from the year 2000 to the present.
(See Definition, of "Document" in Attachment "A").
Respect&lly submitted,
SAW.
Charles D. Bavol (FBN: 776701)
400 N. Ashley Drive, Suite 2500
P.O. Box 1440
Tampa, Florida 33601-1440
813-221-7111; 813-221-7112 (fax)
Attorneys for Defendant, PATRICK A. ABBEY,
D.M.D.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to
William M. Holland, Jr., Esq., 1725 E. 8th Avenue - Ybor City, Tampa, Florida 33605 and
Lori M. Dorman, Esq., 601 12m Street West, Bradenton, Florida 34205, by regular U.S. mail,
this
/I**"
day of May, 2007.
Attorney
ATTACHMENT "A"
DEFINITIONS AND GJUIDELDSIES
A.
The term "document" shall mean and include, but not be limited to, any and all
letters, correspondence, memoranda, notes, ledgers, medical records, diagnostic films, X-rays, CT
scans, tapes, charts, reports, financial statements, computer printouts of all computer stored and
retrievable data, bills, invoices, receipts, and any and all other •writings, typings, printings or drafts
or copies or reproduction thereof) irrespective or form, in the possession, custody or control of
Gloria EL Greenfield, and any of her agents or representatives.
B.
The term "you" or "your" shall mean Gloria H. Greenfield and her agents,
representatives, attorneys, experts, investigators, officers, directors and all other persons acting or
purporting to act on behalf of Gloria EL Greenfield, for any purpose whatsoever.
C.
In the event you withhold any document as privileged, you are requested to provide
defendants, at the tune the requested documents are produced, a list of the documents withheld.
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
IN AND FOR fflLLSBOROUOH COUNTY, FLORIDA
GLORIA H. GREENFIELD,
Plaintiff,
v,
Case No. 01-003155
WILLIAM R. GARRETT, WILLIAM R.
GARRETT, D.D.S., P.A., PATRICK A.
ABBEY, PATRICK A. ABBEY, D.M.D.,
P.A., UNIVERSITY COMMUNITY
HOSPITAL, INC. d/b/a UNIVERSITY
COMMUNITY HOSPITAL,
Division C
Defendants,
SUGGESTION OF DEATH OF PLAINTIFF GLORIA H. GREENFIELD
PLEASE TAKE NOTICE that Defendants, PATRICK A. ABBEY and PATRICK A.
ABBEY, D.M.D., P.A., file with the Court and have served upon all parties this notice that Plaintiff
Gloria H. Greenfield died November 17,2006 at Tampa General Hospital in Tampa, Florida.
BAVOL JUDGE, P.A.
Charles D. Bavol (FBN: 776701)
400 N. Ashley Drive, Suite 2500
P.O. Box 1440
Tampa, Florida 33601-1440
813-221-7111; 813-221-7112 (fax)
Attorneys for Defendant, PATRICK A. ABBEY,
D.M.D.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to
William M. Holland, Jr., Esq., 1725 E. 8th Avenue - Ybor City, Tampa, Florida 33605 and
Lori M. Dorman, Esq., 601 12th Street West, Bradenton, Florida 34205, by regular U.S. mail,
this ^^"day of May, 2007.
Attorney
May 10 2007
545PM
WM HOLLAND JR A l IY
No.U/i)/
Y- \
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
IN AND FOR HILLSBOROUGH COUNTY, STATE OF FLORIDA
CIVIL DIVISION
GLORIA N. GREENFIELD,
Plaintiff,
vs.
WILLIAM R, GARRETT, WILLIAM R.
GARRETT, D.D.S., P.A., PATRICK A.
ABBEY, PATRICK A. ABBEY, D.M.D.,
P.A., UNIVERSITY COMMUNITY
HOSPITAL, INC., d/b/a UNIVERSITY
COMMUNITY HOSPITAL,
Defendants.
CASE NO.; 01-3155
DIVISION: C
SUGGESTION OF PARTY'S DEATH
GLORIA N. GREENFIELD, Plaintiff in the above-styled cause,
died on November 17, 2006.
CERTIFICATE OF SERVICE
1 HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished by U.S. Mail and Facsimile transmission this 10th day of May 2007
to:
Brian R, Denney
Lori Dorman
Charles D. Bavol
601 12th St. W
400 N, Ashley Drive, Ste, 2500
Bradenton, FL 34205
P.O. Box 1440
Attorney for William R.
Tampa, FL 33601-1440
Garrett
Attorney for Patrick A. Abbey, D.M.D
Pax: 941/745-2866
Pax: 813/221-7112
William M. Holland, Jr.
1725 E. 8th Ave.
Tampa, Florida 33605
(813)988-9894
FBN; 36952
Attorney for Plaintiff
EXHIBIT
**t I
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
CIVIL DIVISION
GLORIA H. GREENFIELD,
Plaintiff,
vs.
CASE NO. 01-3155
DIVISION
C
WILLIAM R. GARRETT, WILLIAM
R. GARRETT, D.D.S., P.A., PATRICK
A. ABBEY, PATRICK A. ABEY, D.M.D.,
P.A., UNIVERSITY COMMUNITY
HOSPITAL, INC., d/b/a UNIVERSITY
COMMUNITY HOSPITAL,
Defendants.
ORDER OF DISMISSAL AND IMPOSING SANCTIONS
THIS CAUSE coming before the Court on the Defendants' Motion to Dismiss
and for Sanctions and the Court having considered the oral and written argument of
counsel, it is hereby ORDERED AND ADJUDGED:
1.
The named Plaintiff is deceased, and no party has been substituted after
the filing of a Suggestion of Death. Based upon the record and the argument presented,
the cause is dismissed with prejudice,
2.
Defendants' Motion for Sanctions is granted. Long after learning of his
client's death, counsel for plaintiff willfully failed to inform the Court and opposing
counsel. As a result, Defense counsel expended unnecessary time and effort in
conducting discovery regarding Plaintiffs medical condition. Consequently, the Court
finds that imposition of sanctions against Plaintiff's counsel is appropriate. Counsel has a
duty to expedite litigation, to be candid with the Court, and to be fair to opposing
Page 1 of 2
counsel.
Rules of Professional Conduct 4-3.2; 4-3.3 and 4.3.4. The Court reserves
jurisdiction to conduct a hearing to determine the amount of monetary sanctions.
DONE AND ORDERED this
day of November, 2007.
MOV 2 6 2007
JAMES M. BARTON. SI
CIRCUIT JUDGE
HON. JAMES M. BARTON, II
CIRCUIT JUDGE
copies to:
William M. Holland, Jr., Esq.
1725 E. 8th Avenue
Tampa, Florida 33605
Lori M. Dorman, Esq.
601 12lh Street West
Bradenton, Florida 34205
Charles D.Bavol, Esq.
P.O. Box 1440
Tampa, Florida 33601-1440
Page 2 of 2
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
IN AND FOR fflLLSBOROUGH COUNTY, FLORIDA
GLORIA H. GREENFIELD,
Plaintiff,
vs.
CASE NO. 01-3155
DIVISION
C
WILLIAM R. GARRETT, WILLIAM R.
GARRETT, D.D.S., P.A., PATRICK A.
ABBEY, PATRICK A. ABBEY, D.M.D.,
P.A., UNIVERSITY COMMUNITY
HOSPITAL, INC., d/b/a UNIVERSITY
COMMUNITY HOSPITAL,
Defendants.
ORDER DENYING WILLIAM J. HOLLAND. JR.'S MOTION TO
DISMISS. MOTION TO STRIKE AND MOTION FOR REHEARING
THIS CAUSE coming before the Court on William J. Holland, Jr.'s Motion for
Rehearing on Order Imposing Sanctions, Motion to Dismiss and Motion to Strike, and the Court
having considered the written and oral argument of counsel, it is hereby ORDERED AND
ADJUDGED:
FACTS
On April 13, 2001, Respondent
Attorney William Holland, Jr.
(hereinafter,
"Respondent") filed the above-styled case seeking damages from Defendants based on
allegations of medical malpractice. Plaintiff died on November 17, 2006. After learning of his
client's death shortly after its occurrence; Respondent on December 6, 2006 caused to be
recorded a quitclaim deed whereby Plaintiff conveyed a parcel of real property to a corporation
owned by Respondent.
EXHIBIT
f\
G
In March, 2007, Defendants Patrick A. Abbey and Patrick A. Abbey, D.M.D. (hereinafter
"Defendants") sent Respondent a letter requesting deposition dates for Plaintiff and served
Respondent with a Notice of Production from Non-parties seeking Plaintiffs medical records.
Respondent did not respond to the letter or the Request for Production.
Respondent set
Plaintiffs deposition for May 14, 2007. Upon review of Plaintiffs medical records, Defendants
learned of Plaintiffs death.
After Defendants filed a Motion to Dismiss and for Sanctions as well as a suggestion of
death, Respondent filed a suggestion of death. The Court entered an Order of Dismissal and
subsequently, after an evidentiary hearing, entered an Order of Dismissal and Imposing
Sanctions. Respondent has filed a Motion for Rehearing and Motion for Dismissal and to Strike.
CONCLUSIONS OF LAW
The issue is whether the Court may sanction an attorney who learns of a client/party's
death and fails to promptly file a suggestion of death pursuant to Fla. R. Civ. Pro. 1.260. The
Court concludes that sanctions may be imposed under the facts of this case.
The law imposes a duty to disclose the death of a party to the adverse party. Davis v.
Evans. 132 So. 2d 476, 481 (Fla. 1st DCA 1961); cert, den.. 136 So. 2d 348 (Fla. 1961). Davis
construed a similarly worded predecessor to Rule 1.260 and held that even a non-party may be
estopped in the pending case by failing to inform litigants of a party's death. The Court quoted
the ancient legal maxim, "One who is silent when he ought to speak will not be heard to speak
when he ought to be silent."
Other Florida courts have recognized the duty to inform attorneys of record of the
decedent's death. In re: Estate of Ortolano. 766 So. 2d 330 (Fla. 4th DCA 2000). In Scutieri v.
Miller. 584 So. 2d 15 (Fla. 3rd DCA 1991), the Court held that when an attorney suggests the
death of a party, the attorney must also provide information concerning the estate, personal
representative and next of kin, if known.
While no Florida court has addressed the precise issue framed herein, other state and
federal courts have squarely held that an attorney must notify opposing parties of the
client/party's death. Virzi v. Grand Truck Warehouse & Cold Storage Co.. 571 F. Supp. 507,
512 (E.D. Mich. 1983); Harris v. Jackson. 192 S.W. 3rd 297, 305 (Ky. 2006); In the Matter of
Forrest. 730 A. 2d 340 (N.J. 1999). As the Court in the Virzi decision stated:
"Although each lawyer has a duty to contend, with zeal, for the rights of
his client, he also owes an affirmative duty of candor and frankness to the Court
and to opposing counsel when such a major event as the death of the plaintiff has
taken place."
Virzi, supra, at p. 512
Here, as the result of Respondent's failure to disclose the death of his client more than
five months after learning of her demise, Defendants incurred substantial, unnecessary costs and
attorney's fees in conducting needless discovery. The facts as detailed above establish that, for
the second time in this litigation, Respondent has acted in bad faith. * Defendants are entitled to
recover their fees and costs caused by Respondent's bad faith inaction. Moakley v. Smallwood.
826 So. 2d 221 (Fla. 2002).
Respondent also has moved to dismiss and strike Defendants' motion for sanctions
because the fees and costs sought by Defendants have been paid by Defendants' liability insurer.
* In a September 1, 2005 Amended Order Denying Defendants' Motions to Dismiss for Failure to Prosecute, the
Court concluded that Respondent filed, in bad faith, multiple notices of taking deposition solely to avoid a dismissal
for failure to prosecute. A predecessor judge in a May 13, 2003 Order on Defendants' Motion to Dismiss found that
Respondent's failure to comply with the Chapter 766 presuit requirements constituted unconscionable and
unjustified neglect.
EXHIBIT
Cr
Even if Respondent's allegation is true, Defendants are not barred from recovery. Aspen v.
Bavless. 564 So. 2d 1081 (Fla. 1990); Plant v Podesta. 579 So. 2d 205 (Fla. 3rd DC 1991).
CONCLUSION
Based on the foregoing,
1.
Defendants' Motions for Rehearing and to Dismiss and Strike are denied.
2.
The Court retains jurisdiction to determine the amount of attorney's fees and costs
to be awarded.
DONE AND ORDERED this
nf^aiffi ?\ ft
HON. JAMES M. BARTON, H
CIRCUIT JUDGE
copies to:
Nancy J. Stewig, Esq.
Charles Bavol, Esq.
Lori R. Dorman, Esq.
Thomas F. Granahan, n, Esq.
EXHIBIT
.
if JUDGE'
f"
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
GLORIA H. GREENFIELD,
Plaintiff,
v.
Case No. 01-003155
WILLIAM R. GARRETT, WILLIAM R.
GARRETT, D.D.S., P.A., PATRICK A.
ABBEY, PATRICK A. ABBEY, D.M.D.,
P.A., UNIVERSITY COMMUNITY .
HOSPITAL, INC. d/b/a UNIVERSITY
COMMUNITY HOSPITAL,
Division C
Defendants.
ORDER ON ATTORNEY FEES AND COSTS ON DEFENDANTS'
MOTION TO DISMISS AND FOR SANCTIONS
The matter having come on to be heard upon Defendants Patrick A. Abbey and Patrick A.
Abbey, DJVLD.'s Motion to Dismiss and For Sanctions and upon this Court's Order of May 28,
2008 retaining jurisdiction to determine the amount of attorney's fees and costs to be awarded, and
the Court having reviewed the filings hi the matter, including the Affidavits of Michael C. Addison
and Nancy J. Stewig and attachments, the post-hearing submission of William M. Holland, Jr., and
an evidentiary hearing having been held November 12, 2008 wherein the Court heard sworn
testimony from Nancy J. Stewig, Michael C. Addison and William M. Holland, Jr., and being
otherwise fully advised in the premises;
HEREBY ORDERED and ADJUDGED:
Defendants, PATRICK A. ABBEY and PATRICK A. ABBEY, D.M.D., P. A., recover from
WILLIAM M. HOLLAND, JR. the sum of $26,837.92 in legal fees, $1,265.48 in costs, and
$1,400.00 for the fees of expert Michael C. Addison, making a total of $29,503.40 for which let
execution issue.
DONE AND ORDERED in Chambers at Tampa, Hillsbordpgh County, Florida this
'.
ORiqiiWALSIGNED
day of January, 2009.
JAN 9 - rnng
Honorable James M. Barton, II
Circuit Judge
Conformed copies to:
Nancy J. Stewig, Esq.
Thomas Granahan, Esq.
William M. Holland, Jr., Esq.
CUITJUDC