Attorney’s
fees — Bad faith conduct by attorney — Trial court erred in awarding
attorney’s fees and costs incurred in preparation for and attendance at trial
by opposing counsel to be paid by attorney whose actions caused mistrial in
case — Attorney’s dishonest statements to court did not warrant the granting
of a mistrial — Actions of attorney in moving to strike a juror for cause on
morning of trial after wife of attorney’s client had discovered that juror was
a Facebook friend of one of client’s employees, and thereafter giving evasive
and dishonest answers to court regarding basis for striking juror, did not
necessitate mistrial because an alternate juror was available and could have
been substituted for the questionable juror — There is no prohibition against
an attorney researching jurors before, during, and throughout trial so long as
the research does not lead to contact with a juror

PETIA B. TENEV, ESQ., Appellant, v. FREDERICK D. THURSTON,
D.M.D., individually; THURSTON DENTAL ASSOCIATES, P.A., a Florida professional
association; and THURSTON AND ACOSTA DENTAL ASSOCIATES, P.L., a Florida limited
liability company, Appellees. 2nd District. Case No. 2D14-4566. Opinion filed
March 9, 2016. Appeal from the Circuit Court for Polk County; Keith Spoto and
J. Dale Durrance, Judges. Counsel: Petia B. Tenev, Esq., pro se. Matthew Morrow,
St. Petersburg, for Appellant. Hank B. Campbell and William T. McKinley of
Valenti Campbell Trohn Tamayo & Aranda, P.A., Lakeland, for Appellees.

(SLEET, Judge.) Petia B. Tenev challenges the trial court’s
final judgment granting sanctions against her in which the trial court directed
Tenev to pay $68,385.83 in attorneys’ fees and $5853.83 in costs to Frederick
Thurston, D.M.D.; Thurston Dental Associates, P.A.; and Thurston and Acosta
Dental Associates, P.L. (collectively Thurston), who were the plaintiffs below.
Tenev represented the defendants below, Henry Acosta, D.M.D., and Acosta Dental
Associates, P.L. (collectively Acosta). We reverse.

The underlying action involved the separation and winding up
of a dental practice that had been owned by Thurston and Acosta. The
proceedings were bifurcated with the issues of dissolution, wind up, and an
accounting addressed first at a bench trial. The parties then prepared to
address the issue of damages via a jury trial. On May 5, 2014, the parties
selected a jury, including one alternate, and the jury was sworn in. Before
adjourning for the day, the court1 addressed the jurors specifically,
stating:

I
want to remind you that during this overnight recess do not discuss this case
among yourselves or with any other persons, and do not permit anyone to say
anything to you in your presence about the case, do not read or listen to any
reports about the case, and do not do any electronic research on the Internet
or any other electronic devices concerning this case or the location of this
case, and do not have any conversation whatsoever with the attorneys, the
parties, or any of the witnesses who are listed to appear in this case.

On the following morning, before the jurors entered the
courtroom, the court convened to discuss the logistics of the trial with the
parties and counsel. After about thirty minutes of discussion, as the trial
court was about to bring the jurors back into the courtroom, Tenev informed the
court that she wanted to strike a juror for cause because the juror was a
Facebook friend of one of Dr. Acosta’s employees. Initially, the court became
upset and admonished Tenev for violating the aforementioned instruction to the
jurors before adjourning the day before. Then the trial court asked Tenev how
she came to learn this information, and a lengthy discussion ensued during
which Tenev gave three different answers to the inquiry. None of Tenev’s
responses involved any contact with the juror.

After hearing Tenev’s responses, the trial court first
stated that it could strike the questionable juror and proceed to trial with
the alternate juror. Both parties initially agreed, but Thurston then asked for
the court to inquire of both Dr. Acosta’s wife and the juror. The court granted
the request and inquired of the juror, who admitted to being Facebook friends
with Dr. Acosta’s hygienist but stated that she was unaware that the hygienist
worked part time for Acosta and that she did not know anything about the
instant case. Further, the juror stated that she had not had any contact with
any party or attorney involved in the case. Thereafter, the court sent the
juror back to the jury room and inquired of Dr. Acosta’s wife, Katherine Loh.

Loh testified that she found the jury list in Dr. Acosta’s
suit coat the evening before and decided to research the jurors on the
Internet. She discovered that one of the jurors was Facebook friends with the
hygienist. Thereafter, she sent a text to Tenev informing her of the
relationship and asking her to strike the juror. Tenev responded to Loh that
morning via text and asked for the name of the juror. Loh provided the name to
Tenev.

Rather than making a motion to strike the juror and proceed
to trial with the alternate juror, Thurston moved for a mistrial and argued
that there was no way he could receive a fair trial given that Tenev and Loh
had attempted to make improper contact with a juror. Tenev argued that the
court should excuse the juror and proceed with the alternate juror because
there was no evidence of any improper contact between herself and any juror.
The court found that Tenev had acted in bad faith, and it granted a mistrial.
However, the court did not find that Tenev had made any contact with the juror
or that trial could not proceed with the remaining panel of jurors. Thurston
filed a motion for sanctions, alleging that Tenev’s dishonesty and improper
juror research caused the mistrial. Following a hearing, the trial court
granted the motion and ordered Tenev to pay for Thurston’s counsel’s fees and
costs for preparation and attendance at the trial and prosecution of their
motion for sanctions.

On appeal, Tenev first argues that the trial court’s
imposition of sanctions must be reversed because the court failed to make
specific findings as to the grounds for the sanctions. However, the trial court
did make a specific finding that Tenev was dishonest in answering the court’s
inquiry about the basis for striking the juror and such does constitute an
ethical violation between Tenev and the court. But the court failed to make
specific findings as to any bad faith acts committed by Tenev that were so
prejudicial as to vitiate the entire trial and necessitate a mistrial. Although
counsel for Thurston’s frustration with Tenev is palpable from the record,
Thurston did not provide the trial court with a sufficient legal basis to grant
the mistrial.

“We review an order imposing sanctions for abuse of
discretion.” Rush v. Burdge, 141 So. 3d 764, 766 (Fla. 2d DCA 2014).
“[A] trial court possesses the inherent authority to impose attorneys’ fees
against an attorney for bad faith conduct.” Moakley v. Smallwood, 826
So. 2d 221, 226 (Fla. 2002). However, that authority is not unfettered or
without limits; the court must strike a balance “between condemning as
unprofessional or unethical litigation tactics undertaken solely for bad faith
purposes, while ensuring that attorneys will not be deterred from pursuing
lawful claims, issues, or defenses on behalf of their clients or from their
obligation as an advocate to zealously assert the clients’ interests.” Id.
Accordingly

the
trial court’s exercise of the inherent authority to assess attorneys’ fees
against an attorney must be based upon an express finding of bad faith conduct
and must be supported by detailed factual findings describing the specific acts
of bad faith conduct that resulted in the unnecessary incurrence of attorneys’
fees. Thus, a finding of bad faith conduct must be predicated on a high degree
of specificity in the factual findings.

Id. at
227.

In
the instant case, the trial court made the following findings in its written
order:

With
regard to Plaintiffs’ Motion for Sanctions against Defendants’ counsel, Petia
Tenev, Esquire, the court specifically finds that her bad faith conduct leading
up to, during and even subsequent to the jury trial which began on May 5, 2014,
and which mistried on May 6, 2014, reflects an intentional, consistent, deliberate,
and contumacious disregard for [the trial] court’s authority. In particular the
conduct of Defendant’s counsel pertaining to her May 6, 2014, request to
disqualify a juror for cause after the jury was sworn on May 5, 2014, well
establishes her unethical and willful disregard of or gross indifference to the
authority of the court. As clearly reflected in the transcript, in the history
of this case, and as asserted in Plaintiffs’ Motion for Sanctions, Ms. Tenev’s
actions, including her admitted dishonesty to the court’s direct questioning,
mandates sanctioning . . . .

The bulk of the trial court’s findings lack the high degree
of specificity required to support the imposition of sanctions. However, the
court arguably makes a sufficiently detailed finding upon which to sanction
Tenev for being dishonest before the court. But a review of the record before
us clearly establishes that Tenev’s dishonesty was not a litigation tactic
undertaken solely for bad faith purposes. Tenev initially set out to notify the
court of a potentially biased juror before trial commenced. Such was her duty
as an officer of the court, and she clearly was not attempting to unduly delay
or protract litigation or to seek an unfair advantage against Thurston.
However, the aggressive inquiry by the trial court as to the legal basis for
her motion to strike the juror was met with inarticulate, evasive, and
dishonest answers. As a consequence, she violated her oath as an attorney to be
honest before a tribunal. See R. Regulating Fla. Bar 4-3.3(a)(1) (“A
lawyer shall not knowingly . . . make a false statement of fact or law to a
tribunal.”); 4-8.4(c) (“A lawyer shall not . . . engage in conduct involving
dishonesty, fraud, deceit, or misrepresentation.”).

Nevertheless, we conclude that the dishonest answers Tenev
gave to the trial court during the conference before the commencement of
opening statements did not adversely impact the proceedings in any material way
such that a fair trial could not be had for both parties. And Tenev’s actions
certainly did not result in Thurston incurring additional attorneys’ fees and
costs. When a trial court awards attorneys’ fees as a sanction against an
attorney, “the amount of the award of attorneys’ fees must be directly related
to the attorneys’ fees and costs that the opposing party has incurred as a
result of the specific bad faith conduct of the attorney.” Moakley, 826
So. 2d at 227.

The trial court determined that Tenev’s actions caused the
ultimate mistrial of the case and awarded “all reasonable attorneys’ fees and
costs incurred for preparation for and attendance at jury trial.” This was an
abuse of discretion because the only detailed factual finding of bad faith on
the part of Tenev — the dishonest statements to the court — did not warrant a
mistrial. “[A] mistrial should not be granted unless an absolute legal
necessity to do so exists.” Gatten v. Zachar, 932 So. 2d 543, 544 (Fla.
5th DCA 2006) (quoting Ratley v. Batchelor, 599 So. 2d 1298, 1302 (Fla.
1st DCA 1991)); White v. Consol. Freightways Corp. of Del., 766 So. 2d
1228, 1232 (Fla. 1st DCA 2000) (same); see also Duest v. State,
462 So. 2d 446, 448 (Fla. 1985) (“[A] mistrial is appropriate only when the
error committed was so prejudicial as to vitiate the entire trial.”).

Once Tenev brought the issue of a potentially biased juror
to the trial court’s attention, the court questioned both Loh and the juror,
revealing no evidence of any improper contact with any of the jurors on the
part of Tenev or Loh. Trial had not commenced, and an agreed upon alternate
juror was available and could have been substituted for the questionable juror.
The remaining jury panel, including the alternate, had been sequestered during
the hearing on the request to strike, and there was no indication that Thurston
could not have received a fair trial with the alternate juror seated. In moving
for mistrial, counsel for Thurston argued that the jurors had been waiting
three hours and were aware that one juror had been questioned by the court. But
a jury having to wait while a trial court hears a motion is not so prejudicial
to one party or the other so as to create an absolute legal necessity for a
mistrial.

Furthermore, in granting the mistrial, the trial court made
much of the fact that Tenev had disobeyed its instruction to do no research on
the case. But the pretrial instruction to refrain from discussions or research
about the case and to avoid any contact with witnesses and parties was directed
to the jurors — not the attorneys or the parties — and could not be a basis
for the imposition of sanctions against Tenev. There is no prohibition in
Florida law against an attorney researching jurors before, during, and
throughout a trial so long as the research does not lead to contact with a
juror. An attorney is not obligated to inform the court of such research unless
it affects the fairness of the trial and the administration of justice.

In this case, the research was initiated by a party’s spouse
who was also a witness under subpoena to testify. When the result of the
research was relayed to Tenev, she had an obligation to inform the court of a
potentially biased juror who had a relationship with her client’s employee, and
she satisfied that obligation. Even had Tenev immediately stated that it was
Loh who had made the Facebook discovery, the trial court still would have had
to conduct a hearing and inquire of Loh and the potentially biased juror. And
although the trial court also seemed to take exception to the fact that Tenev
did not bring the issue to the trial court’s attention until thirty minutes
into the morning’s proceedings, nothing about that time delay exacerbated the
situation or changed the fact that the alternate juror could have been seated
in place of the potentially biased juror.

Review of the record demonstrates that the trial court
conducted numerous motion hearings, patiently dealt with Tenev’s repetitive
arguments, and expeditiously ruled on the legal issues. However, it appears
that Tenev’s motion to strike this juror on the morning of trial was the
proverbial straw that broke the camel’s back. The court’s frustration is
evident in its order granting sanctions; however, none of Tenev’s actions
warranted the granting of Thurston’s motion for mistrial. Her dishonesty about
the juror research did not directly affect Thurston’s incurrence of attorneys’
fees and costs in preparation for and attendance at the jury trial. And the
fees and costs Thurston did incur in seeking sanctions were the result of its
own motion. At the hearing on the sanctions motion, Thurston presented no
evidence or argument to establish that it had been prejudiced in any way by the
three conflicting answers Tenev gave regarding the juror research. As such, we
must reverse the trial court’s order in its entirety.

Reversed. (ALTENBERND and LUCAS, JJ., Concur.)

__________________

1Trial was conducted before Judge
Dale Durrance, and he entered the mistrial and issued the order imposing
sanctions. However, Judge Keith Spoto conducted the hearing on and entered the
order setting the amount of sanctions.

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