              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED


                                            IN THE DISTRICT COURT OF APPEAL

                                            OF FLORIDA

                                            SECOND DISTRICT


PETIA B. TENEV, ESQ.,                       )
                                            )
             Appellant,                     )
                                            )
v.                                          )   Case No. 2D14-4566
                                            )
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.                     )
                                            )

Opinion filed March 9, 2016.

Appeal from the Circuit Court for Polk
County; Keith Spoto and J. Dale Durrance,
Judges.

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 court 1 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.




              1Trialwas 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.


                                           -2-
              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




                                            -3-
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.




                                              -4-
              "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

                                            -5-
              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.



                                             -6-
                   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

                                                -7-
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

                                             -8-
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.




                                           -9-
