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Ochalek v. Rivera

Florida Court of Appeals, Fourth District

December 20, 2017

GREGORY M. OCHALEK, Appellant,
v.
ANTONIO RIVERA and JOCELYNE GOMEZ, Appellees.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Dale C. Cohen, Judge; L.T. Case No. FMCE07-004184 (37/91).

          Gregory M. Ochalek of Gregory M. Ochalek, P.L.L.C, Miami, for appellant.

          No brief filed on behalf of appellees.

          MAY, J.

         An attorney appeals a sanctions order entered against him. He argues the trial court erred in entering the order because he was not given notice and an opportunity to be heard, and the court failed to make a bad faith finding and articulate the grounds for the sanctions. We agree and reverse.

         The attorney previously represented the mother in a family law dispute. He filed three motions to withdraw. Following his first motion, he filed a limited notice of appearance regarding a discovery matter. He subsequently filed two agreed motions to withdraw, with the final motion reflecting the mother had obtained new counsel and the father was representing himself pro se.

         The mother's new counsel filed a pleading, and the trial court granted the attorney's motion to withdraw. When the father failed to respond to the pleading, the mother's new counsel moved for a default.

         The attorney suggests that although he had withdrawn from representation of the mother, he was still her "non-advocate" counsel. He claims the mother retained him to review her new counsel's billing methods, case progress, and provide "strategic advice." Due to this relationship, the mother asked him to attend the hearing on the motion for default.

         He claims he pulled the docket to prepare for the hearing, and discovered that the mother's new counsel filed a pleading before he withdrew as counsel. He appeared at the hearing on the motion for default and argued that the new counsel had inappropriately filed a pleading before he withdrew and had not filed a notice of appearance or substitution of counsel. He claims to have told the trial court that the Florida Bar had disciplined the new counsel in the past, and the father was unaware of any record activity since the new counsel became the mother's attorney.

         The father filed a motion to strike the mother's pleading six days before the attorney claims to have attended the hearing. In the motion, the father alleged the attorney informed him about the pending motion for default, and he moved for sanctions against the mother's new counsel. He claimed that the new counsel was aware the father was pro se, but served her pleading and default motion on the father's previous lawyer, who had withdrawn.

         The trial court denied the motion for default in light of the father's motion to strike. It also denied the father's motion to strike and for sanctions against the mother's new counsel.

         The mother's new counsel then set the father's deposition. The same day, the attorney filed a notice of appearance so he could attend the deposition. The father failed to appear for the deposition.

         The mother's new counsel then filed a petition for a rule to show cause why the father should not be held in contempt for missing the deposition. She also moved to strike the attorney's new notice of appearance and for sanctions against him. The motion alleged that the ...


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