Opinion
No. 3D19-0601
04-08-2020
Sonnett HUMES, Appellant, v. Haresh SOLANKI, M.D., Appellee.
Sonnett Humes, in proper person. Rissman, Barrett, Hurt, Donahue, McLain & Mangan, P.A., and Howard L. Citron and Caroline F. Tabash (Fort Lauderdale), for appellee.
Sonnett Humes, in proper person.
Rissman, Barrett, Hurt, Donahue, McLain & Mangan, P.A., and Howard L. Citron and Caroline F. Tabash (Fort Lauderdale), for appellee.
Before SALTER, LOGUE and LOBREE, JJ.
PER CURIAM.
Sonnett Humes, pro se ("Ms. Humes") appeals an order granting a motion by the appellee, Haresh Solanki, M.D. ("Dr. Solanki"), to strike a purported notice for trial and the resulting orders setting the circuit court case for trial and referring it to mediation. Ms. Humes filed a complaint for medical malpractice against Dr. Solanki in 2017. Her three-page, pro se complaint was ultimately dismissed with prejudice in 2018. Over a year after that dismissal and the closure of the case, Ms. Humes served a notice for trial, which triggered the issuance of computer-generated standard orders setting the case for trial and referring it to mediation.
Dr. Solanki's motion to strike the improperly-filed notice for trial and subsequently-issued orders included (on page 3, paragraph 11.c) a request for the trial court to bar Ms. Humes from making any future filings. The motion was noticed for hearing on March 26, 2019. The captions on the first page of the motion to strike and the caption on the notice of hearing did not include any reference to Dr. Solanki's request for an order barring future filings by Ms. Humes.
After receiving the notice of hearing, Ms. Humes sent two emails to the attorney for Dr. Solanki. In the first email, Ms. Humes stated that she would not attend the noticed hearing, and she requested a rescheduled date in May. When Dr. Solanki's attorney advised her that the trial court had ordered it to be heard at the noticed date and time, Ms. Humes responded:
Bitch please ... the judge gave no order ... it's not in the system ... I'm withdrawing my motion and I'm coming for your client criminally .. him and his doctors friend.... so fuck you and what you have to say ... you not a judge ... This case is closed...
The trial judge heard Dr. Solanki's motion to strike as noticed, and as foreshadowed, Ms. Humes did not appear. During the March 2019 hearing, counsel for Dr. Solanki candidly told the trial judge, "I don't think she meets the vexation [sic] litigant requirement," a reference to the Florida Vexatious Litigant Law, section 68.093, Florida Statutes (2019), another sanction available in certain instances.
The trial court entered an order granting Dr. Solanki's motion and providing:
The subject trial order was inadvertently issued as the matter was previously decided on the merits and closed by the Court. The case shall remain closed and all pending motions filed by [Ms. Humes] are denied as moot. No further motions/pleadings or filings shall be permitted by [Ms. Humes] without being done by a member of the Florida Bar who is in good standing.
This appeal followed.
Although the trial court no doubt meant to confine the preclusion to further filings "in this case," the order did not say that. A bar order issued pursuant to State v. Spencer, 751 So. 2d 47 (Fla. 1999), ordinarily includes such a limitation so that the clerk of the affected tribunal will not accept future filings in that particular case from the pro se party. A pro se party might also erroneously interpret the non-case-specific prohibition in the present case to apply to any "motions/pleadings or filings" in any future judicial proceeding.
Analysis
The issue presented is whether Ms. Humes was afforded adequate notice and due process before being denied her right to represent herself in the case. In criminal post-conviction cases, the format and grounds for an order to show cause for such a bar order are well-settled. Spencer, 751 So. 2d at 48. Several of our sibling district courts have followed the same procedure in civil cases when such a bar order appears to be appropriate. Bolton v. SE Prop. Holdings, LLC, 127 So. 3d 746, 747-48 (Fla. 1st DCA 2013) ; Harris v. Gattie, 263 So. 3d 829, 831-32 (Fla. 2d DCA 2019) ( Spencer process applies to pro se bar orders in civil cases, and an appeal from such an order should be treated as a petition for writ of certiorari); Testa v. Testa, 171 So. 3d 244 (Fla. 4th DCA 2015).
A carefully-reasoned dissent by Judge Rowe, however, provides support for the view that the Spencer procedure "may not be required outside the context of a challenge to a criminal judgment and sentence." Bolton, 127 So. 3d at 749. The dissent concluded that the "inherent authority of the trial court to sanction a litigant who disrupts proceedings before the court" sufficed to warrant the trial court's bar order in the civil case considered in Bolton. Id. at 750.
In several civil cases, the Florida Supreme Court has also followed Spencer before issuing an order barring a pro se civil litigant from further pleadings in a case before that Court unless such filings are signed by a member in good standing of The Florida Bar. Rivas v. Bank of New York Mellon, 239 So. 3d 614, n.2 (Fla. 2018) (" See State v. Spencer, 751 So. 2d 47, 48 (Fla. 1999) (stating that a court must first provide notice and an opportunity to respond before sanctioning a litigant and prohibiting litigant from future pro se filings)."); Lomax v. Taylor, 149 So. 3d 1135, 1136 (Fla. 2014) ; Riethmiller v. Riethmiller, 133 So. 3d 926 (Fla. 2013) ; Stein v. Nationstar Mortgage, LLC, 148 So. 3d 773 (Fla. 2014) (citing Spencer and directing a party to show cause why a bar order should not be issued).
Concluding that the order sought to be reviewed is not an appealable final or non-final order, we treat the notice of appeal and brief as a timely petition for a writ of certiorari (as in Harris and Testa ). We grant the petition and quash the order insofar as it imposed a prohibition on further pro se filings without the issuance of an order to show cause to Ms. Humes, on reasonable notice and with an opportunity for her to respond. In all other respects, the order below did not depart from any essential requirement of law or result in any material injury to Ms. Humes, as the stricken notice was unauthorized (and resulted in the inadvertent issuance of the uniform orders setting trial and mediation).
The petition for writ of certiorari is granted, and the order under review is quashed in part, insofar as the order stated, "No further motions/pleadings or filings shall be permitted by Plaintiff without being done by a member of the Florida Bar who is in good standing."
Petition granted; order quashed in part.
SALTER and LOBREE, JJ., concur.
LOGUE, J. (dissenting)
The plaintiff below who represented herself pro se in this medical malpractice matter appeals the trial court's order that bars her from further pro se filings in this case. She argues the order violates due process.
The majority issues a writ of certiorari quashing the trial court's order even though the pro se plaintiff had actual notice that the trial court might bar her from further pro se filings and an actual opportunity to file a written response and to argue at a hearing in open court. The majority quashes the order based on a new rule it propounds that mechanically requires the trial court in civil cases to always provide the additional notice of a separate order to show cause before barring pro se filings. The majority reasons that, for this purpose, pro se litigants in civil court are analogous to pro se prisoners filing post-conviction motions. I respectfully dissent.
I agree that it is generally a "best practice" for a court to issue an order to show cause before it bars a pro se litigant from further pro se filings. Where I part company with the majority, however, is I believe more harm than good will result from reducing this best practice to a mechanical, rigid rule in civil cases. First, in many cases like this case, the majority's new bright-line rule elevates form over substance and accomplishes little more than "judicial wheel-spinning at its finest." Kates v. Lifter, 84 So. 3d 1093, 1094 (Fla. 3d DCA 2012) (Schwartz, J. concurring).
More fundamentally, the federal and Florida Constitutions and laws afford trial judges much greater levels of discretion than appellate courts for good reason. A trial judge's discretion is necessary to the proper administration of justice where an inflexible rule cannot be fashioned to meet the needs of the endless variations of factual circumstances that arise. In these circumstances, more justice will come from a trial judge's measured exercise of her discretion than the rote imposition of a mechanical rule that fails to account for the individual, varying conditions of litigants. While appellate courts are responsible to oversee the trial courts' exercise of their discretion for abuse, appellate courts also have a paramount duty to protect, defend, and preserve the discretion of the trial judges. In my view, the majority's new bright line rule constitutes an unwarranted and unnecessary appellate interference with the trial courts' discretion, as the facts of this case show.
Here, there are five key facts. First, the pro se plaintiff was placed on actual notice that the trial court might bar her from further pro se filings by the written motion of the Appellee, the defendant doctor, who expressly asked for that relief. Second, the trial court gave the pro se plaintiff an actual opportunity to file a response and to be heard in open court by ordering the motion set for hearing. Third, the relief requested by the defendant doctor was clearly warranted given the pro se plaintiff's abuse of the litigation process from start to finish. Fourth, the order was entered – not at an early stage of the case – but a year after the case had already been dismissed with prejudice and closed on grounds of res judicata because of an earlier lawsuit. Finally, the order bars the pro se plaintiff from further filings only in this case.
In these circumstances, the trial court's bar order constitutes a thoughtful and proportionate exercise of discretion that shielded the defendant doctor, the court system, and, frankly, the pro se plaintiff, who would otherwise be at risk of causing more legal harm to herself and incurring other sanctions including monetary ones. To quash this modest order, the majority creates a new universal requirement that the former best practice of issuing orders-to-show cause must be mechanically applied in all civil cases.
In support of its new universal requirement, the majority analogizes pro se civil litigants to pro se prisoners filing post-conviction motions. I do not find this analogy to be well taken. It is certainly true that the Supreme Court requires courts to issue a show cause order before the court bars pro se prisoners in post-conviction cases from filing further repetitive and frivolous petitions. See State v. Spencer, 751 So. 2d 47 (Fla. 1999). The Supreme Court in its wisdom, however, imposed that requirement only in prisoner cases, not in civil cases like the subject case. Id. at 48-49 ("The precise issue before us is whether a trial court must first provide a litigant notice and a reasonable opportunity to respond before prohibiting further pro se attacks on his or her conviction and sentence as a sanction for prior repeated and frivolous motions.").
In doing so, the Justices emphasized circumstances peculiar to post conviction cases, including the petitioners are incarcerated prisoners whose most fundamental liberty interests are at stake; the petitioners are usually representing themselves only because they are no longer entitled to appointed counsel and cannot afford counsel; and, post-conviction cases present unique problems regarding the establishment of the "complete record" often needed for further habeas review in federal court. Id.
Because the rationale of Spencer was that an inflexible rule was needed to address the circumstances peculiar to pro se prisoner post-conviction cases, the rationale of Spencer does not support the imposition of a similar inflexible rule in civil cases where those circumstances do not occur. On this point, I find highly persuasive Judge Lori S. Rowe's insightful dissent in Bolton v. SE Prop. Holdings, LLC, 127 So. 3d 746, 750 (Fla. 1st DCA 2013) (Rowe, J., dissenting) (explaining the holding in Spencer does not apply to civil cases because (1) "the supreme court in Spencer did not require application of its holding beyond the context of a challenge to a criminal judgment and sentence"; (2) "in a criminal action, two important constitutional interests are at stake: liberty and access to the courts"; and (3) "imposing the requirements of Spencer in this case unreasonably interferes with the inherent authority of the trial court to sanction a litigant who disrupts proceedings before the court." (citing Jackson v. Fla. Dep't of Corrections, 790 So. 2d 398, 400–01 (Fla. 2001) )).
In fact, comparing the circumstances of the pro se plaintiff in this case with the pro se prisoner in Spencer shows the problem of creating one bright line rule that covers both. By expanding Spencer to all civil cases, the majority requires the courts to treat a pro se plaintiff in a civil case – one who had actual notice that the trial court might bar her from further pro se filings, who had an actual opportunity to file a written response and to argue at a hearing in open court, and who was at risk of being barred only in a case that had already been dismissed with prejudice on res judicata grounds – as if she were a pro se prisoner who had no notice or opportunity to be heard on the issue of whether she should be barred from further pro se filings and who might be barred from all future challenges to her incarceration. A bright line rule that robotically eliminates the discretion of the trial courts to recognize the vastly different circumstances of these litigants is simply not warranted.
I respectfully dissent.