IN THE SUPREME COURT OF FLORIDA (Before a Referee) THE FLORIDA BAR, CASE NO. Complainant, TFB NO. 2008-10,986(13C) v. WILLIAM M. HOLLAND, JR. Respondent. COMPLAINT THE FLORIDA BAR, Complainant, files this Complaint against William M. Holland, Jr., Respondent, pursuant to Rule 3-3.2(b), Rules Regulating The Florida Bar, and alleges: 1. Respondent is, and at all times pertinent to this Complaint has been, a member of The Florida Bar, subject to the jurisdiction of the Supreme Court of Florida. 2. Respondent represented the Plaintiff, Gloria H. Greenfield, in a civil suit, Gloria H. Greenfield v. William R. Garrett, et al., Case No. Ol-CA-003155, in the Circuit Court of the Thirteenth Judicial Circuit in and for Hillsborough County. 3. pending. Gloria Greenfield died on November 17, 2006, while the case was 4. Respondent became aware of his client's death on or about December 1,2006. 5. Respondent failed to inform the defendants or the court of his client's 6. On or about March 28, 2007, counsel for defendants Patrick A. Abbey death. and Patrick A. Abbey, D.M.D., P.A. ("Abbey") served Respondent with a Notice of Production from Non-Parties, seeking the Plaintiffs medical records from a large number of medical providers. A copy of the Notice of Production from NonParties is attached as Exhibit A. 7. On or about March 30, 2007, counsel for Abbey sent Respondent a letter requesting dates for Plaintiffs deposition in the month of May 2007. A copy of the letter dated March 30, 2007 is attached as Exhibit B. 8. Respondent did not respond to the letter requesting dates for Plaintiffs deposition and on or about May 1, 2007, counsel for Abbey noticed Plaintiffs deposition for May 14, 2007. A copy of Notice of Taking Deposition Duces Tecum is attached as Exhibit C. 9. Respondent did not object or respond to Abbey's Notice of Production from Non-Parties and as a result counsel for Abbey pursued obtaining Plaintiffs medical records from the numerous medical providers stated in the notice. 10. Upon review of Plaintiff s medical records, counsel for Abbey learned of Plaintiff s death and in response filed a suggestion of death of the Plaintiff with the court on or about May 9, 2007. A copy of "Suggestion of Death of Plaintiff Gloria H. Greenfield" filed by counsel for Abbey is attached as Exhibit D. 11. On or about May 10, 2007, in response to receipt of the suggestion of death filed by counsel for Abbey, Respondent filed a suggestion of death with the court, approximately five months after learning of his client's death. A copy of "Suggestion of Parly's Death" filed by Respondent is attached as Exhibit E. 12. Rule 1.260(a), Florida Rules of Civil Procedure, provides that unless a motion for substitution of parties is made within 90 days after death is suggested on the record, the action shall be dismissed as to the deceased party. 13. Respondent failed to disclose his client's death and avoided filing a suggestion of death of his client serving to delay the litigation so as not to trigger the 90-day limitation for making a motion for substitution pursuant to Rule 1.260(a) and subject his client's case to dismissal under said Rule. 14. Counsel for Abbey filed a Motion to Dismiss and Motion for Evidentiary Hearing for Sanctions. 15. On or about November 26, 2007, the trial court entered an Order of Dismissal and Imposing Sanctions against Respondent in response to counsel for Abbey's Motion to Dismiss and for Sanctions. A copy of the November 26, 2007 Order of Dismissal and Imposing Sanctions is attached as Exhibit F. 16. Subsequently, the trial court entered an Order Denying William J. Holland Jr.'s Motion to Dismiss, Motion to Strike and Motion for Rehearing on May 28, 2008, and found that Respondent by his inaction acted in bad faith. The Court reserved jurisdiction to determine the amount of attorney's fees and costs to be awarded. A copy of the Order dated May 28, 2008 is attached as Exhibit G. 17. After an evidentiary hearing on the reservation of jurisdiction over the determination of attorney fees, the court entered an Order on Attorney Fees and Costs on Defendants' Motion to Dismiss and for Sanctions dated January 9, 2009, awarding Abbey $29,503.40 in attorney's fees and costs against Respondent as a monetary sanction. A copy of the Order is attached as Exhibit H. 18. On March 5, 2009, the Court entered an Order Denying Respondent's Motion for Rehearing. On April 6, 2009, Respondent filed a notice of appeal of the trial court's order imposing sanctions, which appeal is pending at the Second District Court of Appeal, Case No. 2D09-1694. 19. By failing to report his client's death to the court and the parties to the litigation and allowing the litigation to proceed without such notice, Respondent committed an act contrary to honesty and justice in violation of Rule 3-4.3, and engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 4-8.4(c), Rules Regulating The Florida Bar. 20. By delaying the filing of a suggestion of death or otherwise notifying the parties and the court of his client's death serving to avoid the consequences of Rule 1.260 Florida Rules of Civil Procedure, Respondent knowingly disobeyed an obligation under the rules of a tribunal in violation of Rule 4-3.4(c). 21. On May 27, 2009, the Thirteenth Judicial Circuit Grievance Committee "C" found probable cause for further disciplinary proceedings, and the presiding member of the grievance committee has approved the instant complaint. 22. By reason of the foregoing, Respondent has violated the following Rules Regulating The Florida Bar: Rule 3-4.3 (commission of any act that is unlawful or contrary to honesty and justice); Rule 4-3.4(c) (a lawyer shall not knowingly disobey an obligation under rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists); and Rule 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation). WHEREFORE, The Florida Bar respectfully requests that Respondent be appropriately disciplined in accordance with The Rules Regulating The Florida Bar. Kenneth Lawrence Marvin Staff Counsel The Florida Bar 651 E. Jefferson Street Tallahassee, Florida 32399-2300 (850)561-5600 Florida Bar No. 200999 Lisa BuzzeWi Hurley Bar Counsel The Florida Bar 4200 George J. Bean Parkway Suite 2580 Tampa, Florida 33607-1496 (813)875-9821 Florida Bar No. 164216 CERTIFICATE OF SERVICE I HEREBY CERTIFY that the original of this Complaint has been furnished by regular U. S. mail to The Honorable Thomas D. Hall, Clerk, the Supreme Court of Florida, 500 South Duval Street, Tallahassee, Florida 323991925; a true and correct copy by U.S. certified mail No.^t^ 22.SO ooo\ *4x>z Return Receipt Requested, and by regular U.S. mail to William M. Holland, Jr., Respondent, at official bar address of 1725 E. 8th Avenue, Tampa, Florida 336053811; a copy to Lisa Buzzetti Hurley, Bar Counsel, The Florida Bar, 4200 George J. Bean Parkway, Suite 2580, Tampa, Florida 33607-1496; and a copy to Lansing C. Scriven, Esq., Designated Reviewer, at 442 W. Kennedy Boulevard, Suite 280, Tampa, Florida 33606-1464; all this \4th day of 2010. Kenneth Lawrence Marvin Staff Counsel NOTICE OF TRIAL COUNSEL PLEASE TAKE NOTICE that the trial counsel in this matter is Lisa Buzzetti Hurley, Bar Counsel, whose address is The Florida Bar, 4200 George J. Bean Parkway, Suite 2580, Tampa, Florida 33607-1496. Respondent need not address pleadings, correspondence, etc. in this matter to anyone other than trial counsel and to Staff Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee. Florida 32399-2300. IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FORHILLSBOROUOH COUNTY, FLORIDA GLORIA H. GREENFIELD, Plaintiff, Case No. 01-003155 v. % WILLIAM R. GARRETT, WILLIAM R. GARRETT, D.D.S., P.A., PATRICK A. ABBEY, PATRICK A. ABBEY, D.M.D., PA, UNIVERSITY COMMUNITY HOSPITAL, INC. d/b/a UNIVERSITY COMMUNITY HOSPITAL, Division C Defendants, NOTICE OF PRODUCTION FROM NON-PARTIES TO; William M. Holland, Jr., Esq. 1725 E. Eighth Avenue Tampa, FL 33605-3811 NOTICE IS HEREBY GIVEN that, in accordance with Rule 1.351 of the Florida Rules of Civil Procedure, after ten (10) days from the date of service of this notice, if service is by delivery, or fifteen (15) days from the date of service, if service is by mail, and if no objection is received from any party, the undersigned attorney will issue or apply to the clerk of this court for issuance of the attached subpoena(s) directed to the persons listed below, who are not parties, to produce the items listed at the time and place specified in each subpoena. Records Custodians For: 1. Albertson's Pharmacy 5371 Ehrlich Road Tampa, Florida 33625 2. Armenia Surgery Center 4703 North Armenia Avenue Tampa, Florida 33603 3. Associates Pathology of St. Joseph's Hospital 4600 North Habana Avenue Suite 19A Tampa, FL 33603-2706 4. Bay Area Oncology 4301 North Habana Avenue Suite 1 Tampa, Florida 33607 5. Cardiology Center of Tampa Dr. Ohara 13701 Bruce B. Downs Boulevard #101 Tampa, Florida 33613 6. Care View Radiology Centers 14999 North Dale Mabry Highway Suite 150 Tampa, Florida 33 618 7. Cosmetic & Reconstructive Surgery Center Berger Lewis, M.D. 2901 St. Isabel Street, Suite 2C Tampa, Florida 33607-6385 8. Eckerd 5360 Ehrlich Road Tampa, Florida 33624-6976 9. Feldman, Randy DBS 1773 West Fletcher Avenue Tampa, Florida 33612-1820 10. Fletcher Medical Center Pharmacy 3000 East Fletcher Avenue Tampa, Florida 33613 11. Fouraker, Bradley MD Gstalder, Roger MD 12901 Bruce B. Downs Boulevard MDC33 Tampa, Florida 33612 EXHIBIT 12. LabCorp 5610 West LaSalle Street Tampa, Florida 33607-1770 13. Mozingo, David W., MD University of Florida Shands Healthcare Hospital 1600 SW Archer Rd Gainesville, FL 32610 14. SDI Radiology 4516 North Armenia Tampa, Florida 33 603 15. South Florida Anesthesia Dr. Moreno 6285 Sunset Drive South Miami, Florida 33143 16. St. Joseph's Diagnostic Center 14310 North Dale Mabry Highway Suite 100 Tampa, Florida 33618 17. Sylvester Comprehensive Cancer Center - University of Miami Hospital & Clinics Weed, Donald T. MD 1475 NW 12TH Avenue Suite 4027 Miami, Florida 33136 18. Tampa Bay Women's Care 5840-B West Cypress Street Tampa, Florida 33607 19. Tampa Hearing Services, Inc. 450 East Fletcher Avenue Suite 350 Tampa, Florida 33613 20. University Medical Service Association, Inc. 3500 East Fletcher Avenue Suite 410 Tampa, Florida 33613 21. USF Eye Institute 2020 Laurel Drive Tampa, Florida 33612 22. Vale, Fernando MD Harbourside Med Tower 4 Columbia Drive, Suite 730 Tampa, Florida 33606 Respectfully submitted, BAVOL JUDGE, P.A. ^/t*v Brian R^enjief (EBNi^9730) Charle/D/Bavp^BN: 776701) 400 N. AgjJefDrive, Suite 2500 P.O. Boxl440 Tampa, Florida 33601-1440 813-221-7111; 813-221-7112 (fax) Attorneys for Defendant, PATRICK A. ABBEY, D.M.D. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to William M. Holland, Jr., Esq., 1725 E, 8th Avenue - Ybor City, Tampa, Florida 33605 and Lori M. Dorman, Esq., 601 12th Street West, Bradenton, Florida 34205, by regular U.S. Mail, and this <?'SLdayof March, 2007. EXHIBIT BRIAN R.DENNEY ATXOKNXIVB AX LAW [email protected] March 30, 2007 William M, Holland, Jr., Esquire 1725 East 8th Avenue Tampa, Florida 33605 Re: Greenfield, Gloria N, v. Abbey, Patrick A., D.M.D., et al. Claim No. 604307 Our File No. 100-001 Dear Mr. Holland; Please provide me with dates for your client's deposition in the month of May 2007, •within five (5) business days. If for any reason you are unable to provide dates within this tune frame, please notify me immediately. Should you have any questions or comments regardbg this matter, please contact me at your earliest convenience. Very truly yours, BAVOL JUDGE, P.A. BRD:cjs 400 NORTH A-snjjaY Dnivit • SUITID B6OQ • TAMPA, FLORIDA S36DE F.O. Box 1440 • TAMPA, FLORIDA 83601-1440 TDMU-BOjni 813.221.7111 • ITAX 81S.EE1.711E IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL cnicuit DSf AND FORHDLLSBOROUGH COUNTY,'. GLORIA H. GREENFIELD, MAY 03 2007 Plaintiff, CLERK OF CIRCUIT COURT §18 WWftll&JTY, FL HILL v. WILLIAM R GARRETT, WILLIAM R GARRETT, D.D.S., P.A, PATRICK A. ABBEY, PATRICK A. ABBEY, D.M.D., P.A, UNIVERSITY COMMUNITY HOSPITAL, INC. d/b/a UNIVERSITY COMMUNITY HOSPITAL, Division C Defendants. NOTICE OF TAKING PEPOSITION PUCES TECUM PLEASE TAKE NOTICE that Defendants, PATRICK A ABBEY and PATRICK A. ABBEY, D.M.D., P.A, will take the deposition, upon oral examination, of the person named below, at the time, date and place indicated: DATE/TIME DEPONENT LOCATION Monday, May 14, 2007 @ 9:30 a,m. GLORIA H. GREENFIELD Michael Musetta & Associates, Inc. 201N. Franklin Street One Tampa City Center, Suite 3400 • ~ Tampa, FL 33602 813-221-3171 Said deposition wiJl be taken before a duly qualified Notary Public or officer authorized by law to take depositions in the State of Florida, and shall continue from day to day until completed. This deposition is being taken for the purpose of discovery, for use at trial, or for such other purposes as are permitted under the rules of Court. In connection with said deposition, deponent is directed to produce at said time and place the following: 1. Complete copies of all medical records, diagnostic films, medical reports, or any other documents generated by or from any of your medical providers regarding your medical condition^) between the year 2003 and lie present 2. Any and all documents pertaining to health insurance, including, but not limited .to, policies, claims, correspondence, and any other document or thing related to your health insurance from the year 2000 to the present. (See Definition, of "Document" in Attachment "A"). Respect&lly submitted, SAW. Charles D. Bavol (FBN: 776701) 400 N. Ashley Drive, Suite 2500 P.O. Box 1440 Tampa, Florida 33601-1440 813-221-7111; 813-221-7112 (fax) Attorneys for Defendant, PATRICK A. ABBEY, D.M.D. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to William M. Holland, Jr., Esq., 1725 E. 8th Avenue - Ybor City, Tampa, Florida 33605 and Lori M. Dorman, Esq., 601 12m Street West, Bradenton, Florida 34205, by regular U.S. mail, this /I**" day of May, 2007. Attorney ATTACHMENT "A" DEFINITIONS AND GJUIDELDSIES A. The term "document" shall mean and include, but not be limited to, any and all letters, correspondence, memoranda, notes, ledgers, medical records, diagnostic films, X-rays, CT scans, tapes, charts, reports, financial statements, computer printouts of all computer stored and retrievable data, bills, invoices, receipts, and any and all other •writings, typings, printings or drafts or copies or reproduction thereof) irrespective or form, in the possession, custody or control of Gloria EL Greenfield, and any of her agents or representatives. B. The term "you" or "your" shall mean Gloria H. Greenfield and her agents, representatives, attorneys, experts, investigators, officers, directors and all other persons acting or purporting to act on behalf of Gloria EL Greenfield, for any purpose whatsoever. C. In the event you withhold any document as privileged, you are requested to provide defendants, at the tune the requested documents are produced, a list of the documents withheld. IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR fflLLSBOROUOH COUNTY, FLORIDA GLORIA H. GREENFIELD, Plaintiff, v, Case No. 01-003155 WILLIAM R. GARRETT, WILLIAM R. GARRETT, D.D.S., P.A., PATRICK A. ABBEY, PATRICK A. ABBEY, D.M.D., P.A., UNIVERSITY COMMUNITY HOSPITAL, INC. d/b/a UNIVERSITY COMMUNITY HOSPITAL, Division C Defendants, SUGGESTION OF DEATH OF PLAINTIFF GLORIA H. GREENFIELD PLEASE TAKE NOTICE that Defendants, PATRICK A. ABBEY and PATRICK A. ABBEY, D.M.D., P.A., file with the Court and have served upon all parties this notice that Plaintiff Gloria H. Greenfield died November 17,2006 at Tampa General Hospital in Tampa, Florida. BAVOL JUDGE, P.A. Charles D. Bavol (FBN: 776701) 400 N. Ashley Drive, Suite 2500 P.O. Box 1440 Tampa, Florida 33601-1440 813-221-7111; 813-221-7112 (fax) Attorneys for Defendant, PATRICK A. ABBEY, D.M.D. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to William M. Holland, Jr., Esq., 1725 E. 8th Avenue - Ybor City, Tampa, Florida 33605 and Lori M. Dorman, Esq., 601 12th Street West, Bradenton, Florida 34205, by regular U.S. mail, this ^^"day of May, 2007. Attorney May 10 2007 545PM WM HOLLAND JR A l IY No.U/i)/ Y- \ IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, STATE OF FLORIDA CIVIL DIVISION GLORIA N. GREENFIELD, Plaintiff, vs. WILLIAM R, GARRETT, WILLIAM R. GARRETT, D.D.S., P.A., PATRICK A. ABBEY, PATRICK A. ABBEY, D.M.D., P.A., UNIVERSITY COMMUNITY HOSPITAL, INC., d/b/a UNIVERSITY COMMUNITY HOSPITAL, Defendants. CASE NO.; 01-3155 DIVISION: C SUGGESTION OF PARTY'S DEATH GLORIA N. GREENFIELD, Plaintiff in the above-styled cause, died on November 17, 2006. CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail and Facsimile transmission this 10th day of May 2007 to: Brian R, Denney Lori Dorman Charles D. Bavol 601 12th St. W 400 N, Ashley Drive, Ste, 2500 Bradenton, FL 34205 P.O. Box 1440 Attorney for William R. Tampa, FL 33601-1440 Garrett Attorney for Patrick A. Abbey, D.M.D Pax: 941/745-2866 Pax: 813/221-7112 William M. Holland, Jr. 1725 E. 8th Ave. Tampa, Florida 33605 (813)988-9894 FBN; 36952 Attorney for Plaintiff EXHIBIT **t I IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA CIVIL DIVISION GLORIA H. GREENFIELD, Plaintiff, vs. CASE NO. 01-3155 DIVISION C WILLIAM R. GARRETT, WILLIAM R. GARRETT, D.D.S., P.A., PATRICK A. ABBEY, PATRICK A. ABEY, D.M.D., P.A., UNIVERSITY COMMUNITY HOSPITAL, INC., d/b/a UNIVERSITY COMMUNITY HOSPITAL, Defendants. ORDER OF DISMISSAL AND IMPOSING SANCTIONS THIS CAUSE coming before the Court on the Defendants' Motion to Dismiss and for Sanctions and the Court having considered the oral and written argument of counsel, it is hereby ORDERED AND ADJUDGED: 1. The named Plaintiff is deceased, and no party has been substituted after the filing of a Suggestion of Death. Based upon the record and the argument presented, the cause is dismissed with prejudice, 2. Defendants' Motion for Sanctions is granted. Long after learning of his client's death, counsel for plaintiff willfully failed to inform the Court and opposing counsel. As a result, Defense counsel expended unnecessary time and effort in conducting discovery regarding Plaintiffs medical condition. Consequently, the Court finds that imposition of sanctions against Plaintiff's counsel is appropriate. Counsel has a duty to expedite litigation, to be candid with the Court, and to be fair to opposing Page 1 of 2 counsel. Rules of Professional Conduct 4-3.2; 4-3.3 and 4.3.4. The Court reserves jurisdiction to conduct a hearing to determine the amount of monetary sanctions. DONE AND ORDERED this day of November, 2007. MOV 2 6 2007 JAMES M. BARTON. SI CIRCUIT JUDGE HON. JAMES M. BARTON, II CIRCUIT JUDGE copies to: William M. Holland, Jr., Esq. 1725 E. 8th Avenue Tampa, Florida 33605 Lori M. Dorman, Esq. 601 12lh Street West Bradenton, Florida 34205 Charles D.Bavol, Esq. P.O. Box 1440 Tampa, Florida 33601-1440 Page 2 of 2 IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR fflLLSBOROUGH COUNTY, FLORIDA GLORIA H. GREENFIELD, Plaintiff, vs. CASE NO. 01-3155 DIVISION C WILLIAM R. GARRETT, WILLIAM R. GARRETT, D.D.S., P.A., PATRICK A. ABBEY, PATRICK A. ABBEY, D.M.D., P.A., UNIVERSITY COMMUNITY HOSPITAL, INC., d/b/a UNIVERSITY COMMUNITY HOSPITAL, Defendants. ORDER DENYING WILLIAM J. HOLLAND. JR.'S MOTION TO DISMISS. MOTION TO STRIKE AND MOTION FOR REHEARING THIS CAUSE coming before the Court on William J. Holland, Jr.'s Motion for Rehearing on Order Imposing Sanctions, Motion to Dismiss and Motion to Strike, and the Court having considered the written and oral argument of counsel, it is hereby ORDERED AND ADJUDGED: FACTS On April 13, 2001, Respondent Attorney William Holland, Jr. (hereinafter, "Respondent") filed the above-styled case seeking damages from Defendants based on allegations of medical malpractice. Plaintiff died on November 17, 2006. After learning of his client's death shortly after its occurrence; Respondent on December 6, 2006 caused to be recorded a quitclaim deed whereby Plaintiff conveyed a parcel of real property to a corporation owned by Respondent. EXHIBIT f\ G In March, 2007, Defendants Patrick A. Abbey and Patrick A. Abbey, D.M.D. (hereinafter "Defendants") sent Respondent a letter requesting deposition dates for Plaintiff and served Respondent with a Notice of Production from Non-parties seeking Plaintiffs medical records. Respondent did not respond to the letter or the Request for Production. Respondent set Plaintiffs deposition for May 14, 2007. Upon review of Plaintiffs medical records, Defendants learned of Plaintiffs death. After Defendants filed a Motion to Dismiss and for Sanctions as well as a suggestion of death, Respondent filed a suggestion of death. The Court entered an Order of Dismissal and subsequently, after an evidentiary hearing, entered an Order of Dismissal and Imposing Sanctions. Respondent has filed a Motion for Rehearing and Motion for Dismissal and to Strike. CONCLUSIONS OF LAW The issue is whether the Court may sanction an attorney who learns of a client/party's death and fails to promptly file a suggestion of death pursuant to Fla. R. Civ. Pro. 1.260. The Court concludes that sanctions may be imposed under the facts of this case. The law imposes a duty to disclose the death of a party to the adverse party. Davis v. Evans. 132 So. 2d 476, 481 (Fla. 1st DCA 1961); cert, den.. 136 So. 2d 348 (Fla. 1961). Davis construed a similarly worded predecessor to Rule 1.260 and held that even a non-party may be estopped in the pending case by failing to inform litigants of a party's death. The Court quoted the ancient legal maxim, "One who is silent when he ought to speak will not be heard to speak when he ought to be silent." Other Florida courts have recognized the duty to inform attorneys of record of the decedent's death. In re: Estate of Ortolano. 766 So. 2d 330 (Fla. 4th DCA 2000). In Scutieri v. Miller. 584 So. 2d 15 (Fla. 3rd DCA 1991), the Court held that when an attorney suggests the death of a party, the attorney must also provide information concerning the estate, personal representative and next of kin, if known. While no Florida court has addressed the precise issue framed herein, other state and federal courts have squarely held that an attorney must notify opposing parties of the client/party's death. Virzi v. Grand Truck Warehouse & Cold Storage Co.. 571 F. Supp. 507, 512 (E.D. Mich. 1983); Harris v. Jackson. 192 S.W. 3rd 297, 305 (Ky. 2006); In the Matter of Forrest. 730 A. 2d 340 (N.J. 1999). As the Court in the Virzi decision stated: "Although each lawyer has a duty to contend, with zeal, for the rights of his client, he also owes an affirmative duty of candor and frankness to the Court and to opposing counsel when such a major event as the death of the plaintiff has taken place." Virzi, supra, at p. 512 Here, as the result of Respondent's failure to disclose the death of his client more than five months after learning of her demise, Defendants incurred substantial, unnecessary costs and attorney's fees in conducting needless discovery. The facts as detailed above establish that, for the second time in this litigation, Respondent has acted in bad faith. * Defendants are entitled to recover their fees and costs caused by Respondent's bad faith inaction. Moakley v. Smallwood. 826 So. 2d 221 (Fla. 2002). Respondent also has moved to dismiss and strike Defendants' motion for sanctions because the fees and costs sought by Defendants have been paid by Defendants' liability insurer. * In a September 1, 2005 Amended Order Denying Defendants' Motions to Dismiss for Failure to Prosecute, the Court concluded that Respondent filed, in bad faith, multiple notices of taking deposition solely to avoid a dismissal for failure to prosecute. A predecessor judge in a May 13, 2003 Order on Defendants' Motion to Dismiss found that Respondent's failure to comply with the Chapter 766 presuit requirements constituted unconscionable and unjustified neglect. EXHIBIT Cr Even if Respondent's allegation is true, Defendants are not barred from recovery. Aspen v. Bavless. 564 So. 2d 1081 (Fla. 1990); Plant v Podesta. 579 So. 2d 205 (Fla. 3rd DC 1991). CONCLUSION Based on the foregoing, 1. Defendants' Motions for Rehearing and to Dismiss and Strike are denied. 2. The Court retains jurisdiction to determine the amount of attorney's fees and costs to be awarded. DONE AND ORDERED this nf^aiffi ?\ ft HON. JAMES M. BARTON, H CIRCUIT JUDGE copies to: Nancy J. Stewig, Esq. Charles Bavol, Esq. Lori R. Dorman, Esq. Thomas F. Granahan, n, Esq. EXHIBIT . if JUDGE' f" IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA GLORIA H. GREENFIELD, Plaintiff, v. Case No. 01-003155 WILLIAM R. GARRETT, WILLIAM R. GARRETT, D.D.S., P.A., PATRICK A. ABBEY, PATRICK A. ABBEY, D.M.D., P.A., UNIVERSITY COMMUNITY . HOSPITAL, INC. d/b/a UNIVERSITY COMMUNITY HOSPITAL, Division C Defendants. ORDER ON ATTORNEY FEES AND COSTS ON DEFENDANTS' MOTION TO DISMISS AND FOR SANCTIONS The matter having come on to be heard upon Defendants Patrick A. Abbey and Patrick A. Abbey, DJVLD.'s Motion to Dismiss and For Sanctions and upon this Court's Order of May 28, 2008 retaining jurisdiction to determine the amount of attorney's fees and costs to be awarded, and the Court having reviewed the filings hi the matter, including the Affidavits of Michael C. Addison and Nancy J. Stewig and attachments, the post-hearing submission of William M. Holland, Jr., and an evidentiary hearing having been held November 12, 2008 wherein the Court heard sworn testimony from Nancy J. Stewig, Michael C. Addison and William M. Holland, Jr., and being otherwise fully advised in the premises; HEREBY ORDERED and ADJUDGED: Defendants, PATRICK A. ABBEY and PATRICK A. ABBEY, D.M.D., P. A., recover from WILLIAM M. HOLLAND, JR. the sum of $26,837.92 in legal fees, $1,265.48 in costs, and $1,400.00 for the fees of expert Michael C. Addison, making a total of $29,503.40 for which let execution issue. DONE AND ORDERED in Chambers at Tampa, Hillsbordpgh County, Florida this '. ORiqiiWALSIGNED day of January, 2009. JAN 9 - rnng Honorable James M. Barton, II Circuit Judge Conformed copies to: Nancy J. Stewig, Esq. Thomas Granahan, Esq. William M. Holland, Jr., Esq. CUITJUDC
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