GREGORY M. OCHALEK, Appellant,
ANTONIO RIVERA and JOCELYNE GOMEZ, Appellees.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Dale C. Cohen, Judge; L.T. Case No.
Gregory M. Ochalek of Gregory M. Ochalek, P.L.L.C, Miami, for
brief filed on behalf of appellees.
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.
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.
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.
attorney suggests that although he had withdrawn from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.
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.
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.
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.
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.
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 ...