Fourth DCA urges Supreme Court to allow trial courts to sanction attorneys for reckless misconduct, not just bad faith.  [Added 11/5/10]

    Defendants and Defense Counsel failed to appear for a jury trial.  Plaintiff filed a motion for sanctions.  The motion did not claim that Defense Counsel acted knowingly or with intent.  The trial court granted the motion for sanctions.  The court's order did not find bad faith on the part of Defense Counsel, instead finding that the problem had been caused by counsel's "negligence."  Defendant appealed.

    Reluctantly, the Fourth DCA reversed.  The court noted that, in Moakley v. Smallwood, 826 So.2d 221, 227 (Fla. 2002), the Florida Supreme Court ruled that trial courts had the inherent authority to assess attorney's fees against a lawyer "based upon an express finding of bad faith conduct" that was "supported by detailed factual findings describing the specific acts of bad faith conduct that resulted in the unnecessary incurrence of attorneys’ fees."  Here, the trial court did not make an express finding of bad faith conduct on the part of Defense Counsel; rather, the court found that the Defense Counsel were "merely negligence."  Accordingly, the appeals court was "required to reverse."

    The court, however, went on to state that it was "concerned with the unfairness of this result," where Defense Counsel's "committed misconduct" that was " noncompensable because the defendants’ attorneys’ misconduct did not rise to the level of bad faith."  As a result, the court called upon the Florida Supreme Court to revisit the standard announced in Moakley.  "Given the unfairness of this result, we believe that our supreme court may wish to re-examine Moakley’s requirement of bad faith.  As Justice Wells pointed out in his concurring opinion in Moakley, 'bad faith is not defined' in the majority opinion.  826 So.2d at 228 (Wells, J., concurring).  In our view, 'bad faith' should be defined to include at least both intentional misconduct and reckless misconduct."  (Emphasis by court.)  The court certified the following question as one of great public importance:  "DOES THE DEFINITION OF 'BAD FAITH CONDUCT' IN MOAKLEY V. SMALLWOOD, 826 SO.2D 221 (FLA. 2002), INCLUDE RECKLESS MISCONDUCT WHICH RESULTS IN THE UNNECESSARY INCURRENCE OF ATTORNEYS’ FEES?"  Rivero v. Meister, 46 So.3d 1161 (Fla. 4th DCA 2010).

Court's questioning of criminal defendant went too far and resulted in reversal.  [Added 10/29/10]

    Juvenile was charged with possession of cocaine, resisting arrest, and carrying a concealed weapon.  Juvenile testified at trial.  After his counsel finished questioning Juvenile, the trial court questioned Juvenile. The court's questions included the following:  "Did you have cocaine on you?"  Defense counsel's objection was overruled.  Juvenile was found guilty of possessing cocaine.

    Juvenile appealed, contending "the trial court departed from his role of neutrality when questioning him about the cocaine possession."  The State responded that the court did not abuse its discretion "because a trial judge may question a witness in the interest of justice."  The Third DCA agreed with Juvenile and reversed.

    The trial court went too far in its questioning.  "Here, the trial court actively sought out and questioned whether [Juvenile] had cocaine. The trial court departed from the appearance of neutrality and became an active participant and advocate in the proceedings.  The record clearly shows that defense counsel had finished questioning [Juvenile] when the trial judge sua sponte questioned [Juvenile] to supply essential elements of the prosecution’s case, to wit, the ultimate issue of [Juvenile]’s guilt on the cocaine possession charge.  . . .  [T]he trial court became an advocate for the prosecution, thus depriving [Juvenile] of his right to a fair and impartial trial."  R.O. v. State, 46 So.3d 124 (Fla. 3d DCA 2010).

Trial court erred by sua sponte raising evidentiary objections during trial on damages after default.  [Added 9/24/10]

    Plaintiff sued numerous defendants over injuries allegedly suffered during an altercation.  None of the defendants filed a responsive pleading, so a clerk's default judgment was entered against them.  The case continued to jury trial solely on damages.  During the trial the court sua sponte raised hearsay objections to Plaintiffs' evidence.  The court then entered a written order dismissing the case without prejudice, finding that "Plaintiffs' have no other witnesses than themselves, and they would have to testify about matters that constitute hearsay."  The statute of limitations had run.

    Plaintiffs appealed, contending "that the trial court's dismissal order must be reversed because the trial court improperly participated in the trial and invaded the province of the jury by sua sponte preventing them from presenting evidence."  The Fifth DCA agreed and reversed.  "[I]t was improper for the trial court to interject itself into the trial below by making evidentiary objections during the course of [Plaintiffs' case-in-chief, and to thereafter determine that the evidence of damages was insufficient to support the entry of a damage award."  Ramos v. Casey, 44 So.3d 211 (Fla. 5th DCA 2010).

Trial court committed reversible error in criminal case by reading testimony back to jury without giving defense counsel notice or opportunity to participate.  [Added 1/17/10]  --  White v. State, 31 So.3d 816 (Fla. 2d DCA 2010).

Criminal conviction is reversed because trial judge departed from position of neutrality through comments to witness.  [Added 1/17/10]  --  Seago v. State, 23 So.3d 1269 (Fla. 2d DCA 2010).

Trial judge abused her discretion by granting continuance in foreclosure case because she didn't want defendants to lose their house.  [Added 10/6/09]  --  Republic Federal Bank, N.A. v. Doyle, 19 So.3d 1053 (Fla. 3d DCA 2009).

Trial court erred in denying criminal defendant's motion for continuance in order to prepare for DNA expert witness.  [Added 8/18/09]  --  Pickel v. State, 32 So.3d 638 (Fla. 4th DCA 2009).  NOTE:  See also Jones v. State, 32 So.3d 706 (Fla. 4th DCA 2010).

Judge may order DUI probationers to attend victim impact panel course presented by MADD, where course fee will help MADD fund local operations.  [Added 2/21/09]  --  Judicial Ethics Advisory Opinion 2009-02.

Trial court did not abuse its discretion in dismissing plaintiff's case due to fraud on court.  [Added 1/28/08]  --  Ramey v. Haverty Furniture Companies, Inc., 993 So.2d 1014 (Fla. 2d DCA 2008).

Ethically permissible for judge, at parties' request, to recommend mediator in adversarial probate proceeding.  [1/24/08]  --  Judicial Ethics Advisory Opinion 2008-1 (January 8, 2008).

Defendant's sentences reversed because they were imposed by judge other than judge who accepted plea, where it was not shown that substitution of judges was "necessary."  [Added 12/20/07]  --  Kramer v. State, 970 So.2d 468 (Fla. 2d DCA 2007).  See also Ingram v. State, 977 So.2d 605 (Fla. 4th DCA 2007) (error for successor judge to impose sentence absent necessity or emergency; "[m]ere convenience cannot justify sentencing by a substitute judge").

Criminal conviction reversed because trial court did not grant continuance after granting defendant's motion to discharge appointed counsel.  [Added 9/5/07]  --  Sessions v. State, 965 So.2d 194 (Fla. 4th DCA 2007).

court did not abuse discretion in dismissing action with prejudice based on determination that plaintiff repeatedly gave material false testimony.  [Added 8/24/07]  --  Jesse v. Commercial Diving Academy of Jacksonville, Inc., 963 So.2d 308 (Fla. 1st DCA 2007).

Criminal conviction reversed because trial judge dismissed juror who asked a lot of questions.  [Added 5/3/07]  --   Washington v. State, 955 So.2d 1165 (Fla. 1st DCA 2007).

Unethical for drug court judge to seek or accept from lawyers or law firms donations of "incentive gifts" to be given to defendants as rewards.  [Added 3/23/07]  --  Judicial Ethics Advisory Opinion 2007-05.

Court did not err in denying criminal defense lawyer's motions to withdraw.  Fondura v. State, 940 So.2d 489 (Fla. 3d DCA 2006).

Court erred in awarding F.S. 57.105 fees and sanctions against lawyer for conduct occurring before determinative legal issue had been decided in that District.  Global Heir and Asset Locators, Inc. v. First NLC Financial Services, LLC, 936 So.2d 1216 (Fla. 4th DCA 2006).  NOTE:  The court did not comment on any lawyer advertising questions that might relate to Asset Locator's relationship with and regular recommendation of Lawyer.  (See, e.g., Florida Ethics Opinion 97-3.) 

Judge may not accept litigants' offer to reimburse expenses incurred by judge in presiding over depositions in another country.  Judicial Ethics Advisory Opinion 2006-22.

Court abused discretion by limiting criminal defense counsel's closing argument to 20 minutes in sexual battery case.  Curry v. State, 930 So.2d 849 (Fla. 2d DCA 2006).

Court's failure to grant continuances earns reversal of judgments.  Second DCA.  M.F. v. State, 920 So.2d 1252 (Fla. 2d DCA 2006) (juvenile case); Fifth DCA.  Myers v. Siegel, 920 So.2d 1241 (Fla. 5th DCA 2006) (civil case).

Counsel's appearance in criminal trial takes precedence over civil case per rule;  court erred in proceeding with civil case in counsel's absence.  Garmon v. Garmon, 920 So.2d 209 (Fla. 4th DCA 2006).

Judge acted within discretion in denying continuance due to counsel's conduct, be erred in striking party's only 2 witnesses.  Taylor v. Mazda Motor of America, Inc., 934 So.2d 518 (Fla. 3d DCA 2005).

Judicial Ethics Advisory Committee opines on judge's ethical duties when lawyer, notary, and client are involved in possible perjury.  Judicial Ethics Advisory Committee Opinion 2005-16.

Not error for court to sign proposed judgment exactly as submitted 2 weeks prior, where both parties had chance to submit proposals.  DeMello v. Buckman, 914 So.2d 1090 (Fla. 4^th DCA 2005).  NOTE:  See also Bryan v. Bryan, 930 So.2d 693 (Fla.3d DCA 2006) (trial court's failure to make oral findings of fact or conclusions of law at final hearing, where both parties submitted proposed final judgments and had opportunity to respond; no appearance that trial court did not exercise its independent professional judgment).

Trial court's expression of frustration, rebuke of counsel, and comments on evidence warrant reversal in civil case.  Vaughn v. Progressive Casualty Ins. Co., 907 So.2d 1248 (Fla. 5th DCA 2005).

Judge's imposition of harsher sentence than offered in plea discussion does not, of itself, equate to "vindictiveness."  Jamerson v. State, 888 So.2d 49 (Fla. 5th DCA 2004).

Court must specifically find "willful noncompliance" with court order before dismissing complaint with prejudice as discovery sanction.  Kinney v. R.H. Halt Associates, Inc., 884 So.2d 400 (Fla. 2d DCA 2004).

Not permitting defendant to confer with counsel during short recess violated right to counsel under Florida Constitution, but was harmless error.  Leerdam v. State, 891 So.2d 1046 (Fla. 2d DCA 2004).

Judges did not abuse discretion by denying continuances in criminal trials.  Lawson v. State, 884 So.2d 540 (Fla. 4th DCA 2004); Savage v. State, 880 So.2d 809 (Fla. 5th DCA 2004).

Repeated interruptions by trial judge during cross-examination and closing argument warrant reversal of criminal conviction.  Barnes v. State, 875 So.2d 789 (Fla. 3d DCA 2004).

Trial court's adoption of party's proposed judgment verbatim without making required findings on remand requires reversal.  Walker v. Walker, 873 So.2d 565 (Fla. 2d DCA 2004).  NOTE:  See also Carlton v. Carlton, 888 So.2d 121 (Fla. 4th DCA 2004) (no indication that trial court considered issues prior to entering final judgment where judge signed verbatim version of order submitted by one party, and other party had no opportunity to object to proposed order prior to its verbatim adoption by court; "Perlow [v. Berg-Perlow, 875 So.2d 383 (Fla. 2004)] specifically condemned this practice").

Dismissal with prejudice as discovery sanction reversed due to lack of specific findings, including no finding of at least partial client fault.  Bank One, N.A. v. Harrod, 873 So.2d 519 (Fla. 4^th DCA 2004).  NOTE:  The Second and Fifth DCA recently reached similar conclusions regarding the necessity of client involvement in the disobedience in order to support a dismissal of the case.  See Jimenez v. Simon, 879 So.2d 13 (Fla. 2d DCA 2004); American Express v. Hickey, 869 So.2d 694 (Fla. 5^th DCA 2004).

Limited jurisdiction of JCCs does not include authority to sanction lawyers for violating Rules of Professional Conduct.  Pace v. Miami-Dade County School Board, 868 So.2d 1286 (Fla. 1^st DCA 2004).

Without announcing findings or conclusions on record, trial court erred by accepting proposed final judgment from one spouse in dissolution case and almost immediately signing it verbatim.  Perlow v. Berg-Perlow, 875 So.2d 383 (Fla. 2004) (revised opinion).

Trial court's dismissal of complaint with prejudice as discovery violation sanction affirmed.  Ham v. Dunmire, 855 So.2d 1238 (Fla. 1^st DCA 2003).