DAYTONA BEACH - Sanctions have been lifted - possibly temporarily - against a Florida lawyer accused of violating pretrial directions from a Brevard County judge during a personal injury trial.
The penalty facing Brian Oltchick and his firm - Garrison, Yount, Forte & Mulcahy - would require them to pay for the costs a plaintiff and her attorneys paid for what ended up a mistrial because of Oltchick's questioning.
The case was brought in 2017 by Terry Parenti and her husband Mica over a hit-and-run accident. They sued Auto Club Insurance Company of Florida, wanting more than was offered for Terry's injuries.
Oltchick noted, though, Parenti had already filed a lawsuit in 1999 alleging injuries to her neck and back. He wanted to tell the jury that Parenti had already sued decades earlier over the same injuries.
But Judge Curt Jacobus felt jurors tend to dislike litigious plaintiffs. He ruled pretrial that Oltchick would limit his questioning to whether Parenti had ever suffered injuries to her neck and back in the past and not whether she had filed a lawsuit over them.
Oltchick brought up the issue again shortly before a trial began in 2023 and was denied. Parenti was the very first witness. Oltchick asked her if she had ever made a claim for her previous injuries.
"Mr. Oltchick's sole reason for the question was to inform the jury that Plaintiff was involved in prior litigation," Jacobus ruled Feb. 22, 2023. Plaintiffs counsel objected after the question and asked for a mistrial.
Oltchick claimed he was allowed to mention any "claim," not "lawsuit."
"The use of the word 'claim' was a machination to alert the jury to an interference of prior lawsuits," Jacobus wrote. "Substituting 'claim' for 'lawsuit' was Attorney Oltchick's attempt to bypass the Court's ruling."
A mistrial was granted. Sanctions were entered against Oltchick and the Garrison Yount firm, ordering an evidentiary hearing to determine how much they owed plaintiffs counsel for the time they spent on the trial.
Oltchick asked Jacobus to reconsider, but the judge did not change his mind. An appeal to the Fifth District Court of Appeal followed.
A four-page order on Aug. 16 addressed five issues, agreeing with Oltchick on one - that Jacobus violated Oltchick's due process rights by not holding a hearing at which he could defend his actions.
"(T)he opportunity to be heard regarding the imposition of sanctions is a right to respond to the notice of sanctions," the Fifth Circuit ruled.
"Arguments made regarding the subject of the sanctions (here the propriety of the ruling on the motion in limine), which are made prior to the imposition of sanctions are not part of the response to a sanctions order.
"Thus, for the sanction here to be appropriate, we would have to hold that appellants' right to respond was sufficiently met by the colloquy immediately following the court's announcement of its intent to impose sanctions or by appellants' motion for rehearing and reconsideration."
So, Judge Jacobus will now hear Oltchick's defense, formally. Oltchick might not find much sympathy there, given Jacobus' sanctions ruling and the fact Oltchick moved to disqualify him from the case.
Oltchick argued Jacobus' comments in open court created a "genuine fear" of prejudice against Auto Club, his client. Regarding the contested motion about the prior lawsuit, Auto Club said he "appeared to argue on behalf of Plaintiffs for the exclusion of evidence of prior lawsuits."
Parenti has settled her case against Auto Club.