Opinion
1D19-3987
04-06-2022
Jacqueline Huggins, individually, and with Alexander Huggins, as Mother and Father and Next Friends of A.R.H., a minor child, Appellants, v. Jeffrey Siegel, Appellee.
Jordan S. Redavid of Fischer Redavid PLLC, Hollywood, for Appellants. Rhonda B. Boggess of Marks Gray, P.A., Jacksonville, and Chandra L. Miller of Goodis Thompson & Miller, P.A., St. Petersburg, for Appellee.
On appeal from the Circuit Court for Alachua County. Donna M. Keim, Judge.
Jordan S. Redavid of Fischer Redavid PLLC, Hollywood, for Appellants.
Rhonda B. Boggess of Marks Gray, P.A., Jacksonville, and Chandra L. Miller of Goodis Thompson & Miller, P.A., St. Petersburg, for Appellee.
ON SECOND MOTION FOR REHEARING, CERTIFICATION, AND REHEARING EN BANC
B.L. Thomas, J.
We deny Appellant's second Motion for Rehearing, Certification, and Rehearing En Banc, which addressed this Court's second opinion, granting Appellant's Motion for Clarification but denying Appellant's Motion for Rehearing. We write to address the improper filing of the second motion and the improper language used by Appellant's counsel in both motions.
I. Improper Filing
Florida Rule of Appellant Procedure 9.330(b) limits a party to one motion for rehearing, clarification, certification, or written opinion per order or decision of the court. However, there is an exception to this rule and a party may file a second motion for rehearing when a court issues a new opinion which changes the entire basis for the ruling of the first opinion. Dade Fed. Sav. & Loan Ass'n v. Smith, 403 So.2d 995, 999 (Fla. 1st DCA 1981); DeBiasi v. Snaith, 732 So.2d 14, 17 (Fla. 4th DCA 1999).
This Court denied Appellant's first motion for rehearing but granted Appellant's motion for clarification. Although this Court clarified its original opinion, it did not issue a new opinion changing the entire basis for the ruling of the original opinion. See Smith, 403 So.2d at 999. Thus, Appellant's second motion for Rehearing, Certification, and Rehearing En Banc is not authorized under Rule 9.330(b) and is improper.
II. Improper Language
Recognizing the tragic nature of this case, we are nevertheless compelled to address some of the language used by Appellant's counsel in his motions for rehearing:
The Florida Code of Judicial Conduct further mandates that judges "should participate in establishing, maintaining, and enforcing high standards of conduct," "shall require order and decorum in proceedings before the judge," and shall require lawyers subject to their direction and control to be "patient, dignified, and courteous." Fla. Code Jud. Conduct, Canons 1, 3B(3), 3B(4).5-H Corp. v. Padovano, 708 So.2d 244, 246 (Fla. 1997).
Appellant's counsel's language does not rise to the level of vitriol and vituperation found in the motion at issue in 5-H Corp. Even so, some of counsel's statements in the motions for hearing are lacking in the patience, dignity, and courtesy contemplated under the canons and warrant discussion.
In both post-opinion motions, Appellant's counsel stated the following, regarding the exclusion of Appellant's expert witness: "The panel, as with the trial court, effectively punished A.R.H. for being a little girl with a legitimate birth defect only because her injuries are in an area of medicine and science not yet fully developed." (emphasis added). Of course, neither court did any such thing.
What this Court did was affirm a ruling by the Honorable Donna M. Keim excluding Appellant's witness under Daubert. Daubert v. Merrill Dow Pharms., Inc., 509 U.S. 579 (1993). We addressed the merits of that ruling in our previous two opinions. We did not in any manner write to disparage or "punish" anyone. Appellant's counsel has chosen to disparage this Court and the trial court in an apparent attempt to shame both courts. The accusation that our Court and the trial court have punished a little girl with a birth defect is not "dignified [or] courteous." 5-H Corp., 708 So.2d at 246.
In responding to the rehearing motion, Appellee also recognized Appellant's counsel's "improper inflammatory language accusing the courts of punishing [the child] and stealing juries away from injured plaintiffs." We agree that this language is inflammatory and improper. See McDonnell v. Sanford Airport Auth., 200 So.3d 83, 85-86 (Fla. 5th DCA 2015) (holding that an appellate counsel's motion for rehearing did not alert the panel to some fact, precedent, or rule of law that the court overlooked; rather, it expressed displeasure with the court's ruling and attacked the trial judge, Appellee, opposing counsel, and the panel).
Words matter and words have definitions. The Oxford English Dictionary defines "punish," as "to cause (an offender) to suffer for an offense; to subject to judicial chastisement as retribution or requital, or a caution against further transgression; to inflict a penalty on." Punish, Oxford English Dictionary (2d ed. 1989). While Appellant's counsel attempted to diminish the accusation by using the modifier "effectively," counsel's statement clearly asserts that this Court and the trial court decided that a "little girl with a legitimate birth defect" should suffer and be chastised, because "medicine and science [were] not yet fully developed."
As the supreme court recognized in 5-H Corp.:
The very Oath of Admission into The Florida Bar requires applicants to solemnly swear to "maintain the respect due to Courts of Justice and Judicial Officers ... [and] abstain from all offensive personality," and the Preamble to the Rules of Professional Conduct in the Rules Regulating The Florida Bar likewise provides that "[a] lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers, and public officials." R. Regulating Fla. Bar Ch. 4.5-H Corp., 708 So.2d at 246. This statement by Appellant's counsel did not demonstrate respect for the judges of this Court or the trial judge.
Advocates are expected and encouraged to zealously advocate for their clients. See R. Regulating Fla. Bar 4-Preamble. But this duty of zealous advocacy must be tempered with respect, courtesy, and decorum:
This Court has recognized that "ethical problems may arise from conflicts between a lawyer's responsibility to a client and the lawyer's special obligations to society and the legal system.... 'Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the rules.'" Florida Bar v. Machin, 635 So.2d 938, 940 (Fla.1994) (quoting the Preamble to the Rules of Professional Conduct). Certainly, the principles underlying the rules include basic fairness, respect for others, human dignity, and upholding the quality of justice. Zealous advocacy cannot be translated to mean win at all costs, and although the line may be difficult to establish, standards of good taste and professionalism must be maintained
while we support and defend the role of counsel in proper advocacy.
The Fla. Bar v. Buckle, 771 So.2d 1131, 1133-34 (Fla. 2000).
We cite 5-H Corp. and Buckle to educate and remind Appellant's counsel, and all counsel, of their obligations to maintain professionalism in addition to their duty to zealously advocate for their clients.
The two duties are not mutually exclusive.
We deny Appellant's second Motion for Rehearing, Certification, and Rehearing En Banc as unauthorized. No further motions will be considered in this case.
ROWE, C.J., and M.K. THOMAS, J., concur.