Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Phillips v. Leon County Public Works and Preferred Government Claims Solutions

Florida Court of Appeals, First District

July 9, 2019

Patricia Phillips, Appellant,
v.
Leon County Public Works and Preferred Government Claims Solutions and Mary Elizabeth Cruickshank, Appellees.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          Date of Accident: June 25, 2012.

          On appeal from an order of the Judge of Compensations Claims. John J. Lazzara, Judge.

          Randall T. Porcher of Morgan & Morgan, Tallahassee, for Appellant.

          Mary E. Cruickshank of DuBois & Cruickshank, P.A., Tallahassee, for Appellees.

          Per Curiam.

         Patricia Phillips ("Claimant") appeals on procedural grounds the Judge of Compensation Claims' ("JCC") order denying, without hearing, her motion for sanctions under section 440.32(3), Florida Statutes (2017). Claimant alleges that the Employer/Serving Agent's (E/SA) attorney, Cruickshank, raised an improper and unfounded discovery objection in a motion for protective order. The JCC denied Claimant's motion for sanctions, finding: (1) the E/SA's motion for protective order was previously denied, in part; (2) the motion for sanctions was untimely; and (3) did not comply with the procedural requirements of Florida Administrative Code Rule 60Q-6.125. Because we find the JCC's reasons for denial contrary to the statutory language of section 440.32(3) and based on an improper application of the administrative rule, we reverse and remand for a hearing on the merits.

         I.

         The underlying dispute here involved the amount of attorney's fees and costs payable to Claimant's attorney by the E/SA pursuant to a prior order. During discovery and in preparation for the deposition of the E/SA's expert, the Claimant's attorney, Porcher, sent a subpoena duces tecum to the expert, requesting documents related to the fee dispute. In response, attorney Cruickshank sent a proposed motion for protective order objecting to production of the requested documents. Porcher then sent an email to Cruickshank asking for a contact to resolve the dispute. Cruickshank did not respond to the email and filed the motion for protective order with the JCC. The motion asserted work product privilege concerning communications between herself and the expert "to the extent that [such documents] exist." Cruickshank attests she had "personally conferred or used good-faith efforts to confer with opposing counsel in an effort to resolve the issues." Porcher objected because, among other things, Cruickshank had not prepared a privilege log so that he could determine what documents existed and the specific reasons for the withholding. He further argued that, contrary to her certification, Cruickshank had made no good faith effort to contact him or to resolve the issue despite his attempts to do so.

         At the hearing on the motion for protective order, Cruickshank argued that, "whether there are, or are not any documents" responsive to the subpoena, all such documents were privileged. The JCC denied the motion for protective order in part, allowing Cruickshank the opportunity to file a privilege log disclosing any documents withheld and to produce all others. Although the E/SA's expert witness was deposed almost immediately following the JCC's ruling, Cruickshank did not provide a privilege log to Porcher. When the parties convened for the deposition of the E/SA's fee expert, Cruickshank produced several documents in response to the subpoena including a one-page letter between Cruickshank and the fee expert establishing a rate of pay per hour. No documents were identified to Porcher that were withheld as containing work product or other privileged information.

         Several weeks later, the Claimant filed the subject motion for sanctions. The motion requested sanctions pursuant to section 440.32(3), which states:

The signature of an attorney [on a pleading, motion, or other paper] constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. . . . If a pleading, motion, or other paper is signed in violation of this section, the [JCC] or any court having jurisdiction of proceedings, upon motion or upon its own initiative, shall impose upon the person who signed it an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee.

         The E/SA argue that the motion for sanctions was untimely because the motion for protective order- the underlying basis for sanctions - had previously been ruled upon by the JCC. More specifically, because rule 60Q-6.125(4)(a) creates a 21-day "safe harbor" period to allow for the withdrawal or correction of a sanctionable pleading, the Claimant's motion for sanctions, to be timely, had to be filed while the motion for protective order was pending. The JCC denied the Claimant's motion for sanctions finding that the E/SA's motion for protective order was denied, in part, and the motion for sanctions was untimely and noncompliant with rule 60Q-6.125. In a motion for rehearing, the Claimant asserted, among other points, that section 440.32(3) is not a prevailing party provision and that the JCC's description of the ruling on the motion for protective order "did not tell the whole story" as Cruickshank was instructed by the JCC to prepare a privilege log which she did not do. The Claimant also reiterated that the motion for sanctions was not untimely under section 440.32(3), and an evidentiary hearing was necessary so that the claim for sanctions could be heard on its merits. Finally, the Claimant argued that if rule 60Q-6.125(4)(a) applied, Cruickshank was required to take some type of corrective action under the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.