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Filing #64064502 E-Filed 11/10/2017 05:24:33 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT,
IN AND FOR ORANGE COUNTY, FLORIDA
MARCELO DIAZ, as Personal Representative CASE NO: 2008-CA-11228-O
of the Estate of HERMINIA DIAZ,
Plaintiff,
VS.
HARINATH SHEELA, M.D.; DIGESTIVE
AND LIVER CENTER OF FLORIDA, P.A.
Defendants,
/
PLAINTIFF’S COUNSEL, MARIA TEJEDOR, ESQ., MOTION TO
VACATE/RECONSIDERATION OF CONTEMPT ORDER FOR APPROACHING THE
ELMO
COME NOW Plaintiffs counsel, Maria Tejedor, Esq., by and though her undersigned
counsel, and hereby files this Motion to Vacate Contempt Order and Motion for Rehearing, and
in support thereof, state as follows:
Preliminary Argument
1. On August 21, 2017, the second trial of this matter commenced against the
remaining Defendants HARINATH SHEELA, M.D., and DIGESTIVE LIVER
CENTER OF FLORIDA, P.A., before your Honor, Judge Renee A. Roche.
Plaintiff's counsel, Maria Tejedor, is being held in direct criminal contempt for
walking up to the Elmo, during trial, to assist Mr. Block with an exhibit. Ms.
Tejedor did not insult your Honor, nor speak back to your Honor.
On November 8, 2017, two months after the alleged misconduct occurred, your
Honor filed a written Order holding Ms. Tejedor, in direct criminal contempt for
allegedly violating her order prohibiting “loud talking at counsel table in the
presence of the Jury; gesturing, gesticulating, and making inappropriate facial
expressions during witness testimony; speaking directly to opposing counsel in
the presence of the Court, and approaching or speaking to co-counsel while co-
counsel was in the midst of examining a witness.”
The trial transcript reflects that Ms. Tejedor did not say a word at the time she
approached the Elmo to assist Mr. Block with the exhibit.
At no time during the trial was Mr. Block, Mr. Fontella, Ms. Bannon, or Mr.
Diez-Arguelles held in contempt. Moreover, Mr. Fontella was not held in
contempt for placing the advertisement on the Elmo before showing Plaintiff's
counsel, where your Honor stated, “I have to say I am really surprised. That
surprises me. You never, ever put — you don’t show a witness a document without
showing it first to the other side, and you most certainly do not throw something
up in front of the jury without showing it to the other side and giving them the
opportunity to object.” Moreover she stated, “I actually almost screamed to get
that off of there.”
The facts and record reflect that singling out Ms. Tejedor was not supported by
the record and was arbitrary and capricious.
However, the record at trial reflects that the only Order actually made by this
Court with regards to potentially finding a party in contempt and fining the party
$500.00, was as follows:
Let me just make one brief statement. I would say that this trial has
been plagued with some examples of poor behavior, unprofessionalism,
and I want to be specific and clear about what is out of order and not
acceptable to the Court.
Cross talking to one another in the presence of the court is in
permissible. Cross talking mean do you speak directly to each other and
not through the court. Interrupting is not permissible. Continuing to argue
with the court after the court has made a ruling is not permissible. Courts
are to be spoken to with respect and in a manner set forth in the rules of
civil procedure and the rules of evidence and the rules of professional
conduct.
The next time one of those specific rules is violated, I will I don't
hold that person in contempt or certainly order them to send $500 to the
people of the state of Texas to assist in their recovery from the hurricane.
The next time it will be for $500 for the dogs and cats and other animals
that are getting that are suffering. And then we'll go back to people and we
will go back to dogs and cats, and then we'll just see how that happens.
Moreover, when the judge entered the contempt order, Ms. Tejedor, was simply
assisting Mr. Block with the Elmo. Mr. Tejedor was not cross talking, did not
interrupt, and did not continue to argue with the court, matters which were subject
to a $500.00 fine and contempt order. Therefore, there was no “next time” that
resulted in Ms. Tejedor violating the above Courts order. Additionally, at no time
did Ms. Tejedor loud talk in the presence of the jury, gesture, gesticulate, or make
inappropriate facial expressions at the jury, she did not speak directly to opposing
counsel in the presence of the Court, and she did not speak to co-counsel while
co-counsel was in the midst of examining a witness.
Ms. Tejedor at no time meant to intentionally upset your Honor or intend to
violate any verbal orders. The written order states that Ms. Tejedor offered “no
reason why such a finding should be made.” This is not supported by the record.
Ms. Tejedor turned to Mr. Diez-Arguelles and asked him to be her attorney and to
assert her 5" Amendment right. Mr. Diez-Arguelles did just that. Thereafter, Mr.
Diez-Arguelles requested that your Honor hold a mitigation hearing pursuant to
the Constitution and the direct criminal contempt rules. The Court ruled that Ms.
Tejedor was not entitled to a mitigation hearing regarding the direct criminal
contempt.
10. The Plaintiff is eighty-three (83) years of age and the only survivor entitled to
recover damages for the wrongful death of his wife Herminia Diaz to whom he
was married 35 years. The case was first tried in April, 2013. At the beginning of
the third week, of the first trial, the Court granted the Defendants’ motion for
mistrial alleging they would be unable to conclude their case in a week. The
Plaintiff objected to the mistrial and argued the motions were not well raised as
they were raised when the Defendant heard a question from the jury which was
not favorable to their case. In order to avoid the foregoing conclusion, the parties
were repeatedly cautioned by this Court to complete this trial in a timely manner.
11 For this trial period commencing on August 21, 2017, the Plaintiff requested
fifteen (15) days to try the case and this was reduced four and one — half (4 1/2)
days: the Court was unavailable for two (2) day, Labor day Holiday, and because
or Hurricane Irma. Plaintiff also lost a half day on the second Monday of trial.
Defense Counsel, Roger Fontella, advised the Court the previous Monday that an
expert was only available on the second Monday of Trial. Plaintiff rearranged
calling experts during their case in chief and planned a cross-examination.
Plaintiff learned on late Sunday night that Mr. Fontella was no longer calling his
expert. Plaintiff had already made drastic changes to the scheduling of their expert
witnesses and lost significant time during their case in chief. Accordingly,
Plaintiff's counsels were very consciousness of the time constraints prior to and
throughout this trial, and sought to avoid all unnecessary delays and interruptions.
Facts Warranting Reversal of Contempt Order
12. On September 7, 2017, this Court held Ms. Tejedor in Criminal Contempt, when
Co-counsel, Rick Block, needed Ms. Tejedor’s assistance with the ELMO and an
exhibit which resulted in Ms. Tejedor approaching the ELMO where Mr. Block
was located to assist with the same. Previously, the Court and the Deputies had
displayed disapproval of Plaintiff's counsel nurse Kristen Thorne assisting with
the exhibits and ELMO and sitting next to the ELMO, as she was a non-lawyer
and directed her remain in the gallery nowhere near the ELMO or exhibit.
13 At one point when the Nurse was at the ELMO assisting with exhibits, your
Honor told her to go back to the gallery as she had not assisted with an exhibit for
a long period of time. Nurse Thorne was brought to trial and given the
responsibility of assisting counsel with exhibits and the ELMO as she had
custody, control and knowledge of the medical records needed by the lawyers.
This is a medical negligence case involving thousands of pages of medical records
from many healthcare providers.
14 At all times material to the proceedings, Maria D. Tejedor, Esq., Carlos R. Diez-
Arguelles, Esq., and Eric Block, Esq. served as trial counsel for the Plaintiff.
15 Due to the numerous medical records involved, Plaintiff's counsel(s), at various
point during the trial, required assistance from co-counsel(s) or their staff to
manage the decedent’s medical records in order to efficiently present evidence to
the jury and avoid any delays.
16. On September 7, 2017, Mr. Block conducted a brief cross-examination of the
Defendant. Approximately 15-20 minutes after commencing his cross-
examination, Mr. Bock attempted to utilize the ELMO in the courtroom to present
a portion of the decedent’s medical record to the jury. This evidence was
necessary to continue Mr. Block’s cross-examination.
not at the ELMO and therefore unable to provide him with
17 The nurse was
assistance utilizing the ELMO. The Nurse was in the gallery far from the ELMO
where she had been ordered by the Court and Deputies to remain. Mr. Block
Block
turned to Ms. Tejedor siting at counsel table and it was obvious that Mr.
initiate any
needed assistance with the Elmo and the exhibits. Ms. Tejedor did not
the
conversation and the Court did not find Mr. Block in contempt for needing
assistance of Ms. Tejedor. Ms. Tejedor approached the ELMO to assist her co-
e
counsel with the presentation of the exhibit and the ELMO so he could continu
his cross examination. At no time did Ms. Tejedor cross talk, interrupt, or argue
with the Court.
displeasure
18 As Ms. Tejedor approached the ELMO, the Court did not show any
with her or her conduct of approaching the ELMO.
Court. At
19 Moreover, Ms. Tejedor did not cross talk, or continue to argue with the
no point in time did Ms. Tejedor speak to Mr. Block while approaching the
ELMO. She did not sigh or make any noises of displeasure. She made no facial
expressions of disdain. Ms. Tejedor did not loud talk in the presence of the jury,
jury, she did
gesture, gesticulate, or make inappropriate facial expressions at the
did
not speak directly to opposing counsel in the presence of the Court, and she
.
not speak to co-counsel while co-counsel was in the midst of examining a witness
20. At the point Ms. Tejedor was approaching the ELMO, Defendant objected, stating
“[a]ll of this going back and forth with two attorneys.” See Trial Transcript,
195:12-13. The facts are undisputed that there was no going back and forth
between the attorneys. The undisputed fact is Ms. Tejedor approaching the Elmo
to assist with exhibits and not to talk to co-counsel while he was questioning a
witness, while co-counsel was having problems with the Elmo and exhibit. No
conversation was taking place.
21 The Court subsequently dismissed the jury, and then began contempt proceedings
without notice. The Court said “Ms. Tejedor, please state a reason why the Court
should not find you in contempt for disobeying the repeated admonition to stay in
your seat and away from counsel who is questioning a witness in the presence of
the jury.” See transcript 196:21-25. The Court never issued an order Plaintiff
counsel could not use the ELMO, assist co-counsel with technology or provide
co- counsel with an exhibit when asked by the same. Doing so would impede
Plaintiffs Counsel from effectively presenting their case.
22 Due to the fact of the pending charge of criminal contempt, Mr. Diez-Arguelles
apologized to the Court and stated that Ms. Tejedor was “Just trying to move the
cross-examination.” See Trial Transcript, 196:3-4. Mr. Block also apologized,
informing the Court that it was his fault. Since he was the one who turned to her
and asked her to provide the exhibit and assist. In response, tis Court stated that
“[i]t doesn’t matter. It really doesn’t matter.” See Trial Transcript, 196:6-8.
23. Without any further opportunity for Mr. Diez-Arguelles to show cause, present
evidence, or explain why Ms. Tejedor should not be held in contempt, this Court
found Ms. Tejedor in criminal contempt, as follows:
So no reason having been given,’ the Court finds Ms. Tejedor in
contempt and orders her to pay a fine of 500 dollars before the end
of the week, and the Court will assess more fines if necessary.
See Trial Transcript, 196:20-24.
24 Mr. Diez-Arguelles then immediately requested a hearing in order to present
mitigating evidence. In response to Mr. Diez-Arguelles requests, the Court stated
as follows:
This is direct criminal contempt.
You're not entitled to a hearing on direct criminal contempt.
You're entitled to a hearing on indirect criminal contempt, but this
is direct. And so it really is the question of conduct that occurs that
has been interfering with the fair administration of justice, and I
believe at this point, having spoken to counsel repeatedly, that that
is the only option the Court has at this point.
See Trial Transcript, 197:3-11.
25 Although Mr. Diez-Arguelles tried to inform the Court that such a hearing was
required before the adjudication of guilt under the Florida Rules of Criminal
Procedure, this Court advised all counsel that the Court has already made its
findings.
26. Mr. Diez-Arguelles argued: “Judge, you never instructed us that we could not
pass exhibits on the ELMO board at any time. You never instructed us that we
couldn’t do that, so that’s why I need a hearing your Honor.” See Trial Transcript,
197:12-16.
the
' Ms. Tejedor through her attorney asserted her 5" Amendment constitutional rights and her attorney advised
Court that she was entitled to a mitigation hearing, and the Court stated that she was not entitled to a hearing.
8
27. Mr. Diez- Arguelles further argued: “Your Honor, the direct criminal contempt
rules, the defendant shall be given the opportunity to present evidence of excuse
and/ or mitigating circumstances.” See Trial Transcript, 199-200: 22-1.
28 However, at no time during the trial of this matter did the Honorable Renee Roche
Order or instruct Maria D. Tejedor that she was not allowed to approach the
ELMO, provide co-counsel an exhibit when asked for assistance by the same or
assist with technology while co -counsel conducted his cross examination.
29 At the time Ms. Tejedor was found in criminal contempt, Mr. Diez-Arguelles, and
members of the Plaintiffs counsels firm, Mr. Eric Block, Ms. Christina Arguelles,
Ms. Kristen Thorn, and Ms. Alexandra Alligood, were present in the courtroom.
As material witnesses to this matter, Plaintiffs co-counsels and staff have
submitted affidavits testifying to the facts provided herein and attached hereto.
Legal Requirements for Direct Criminal Contempt
30. A simple review of the affidavits and transcripts show that Ms. Tejedor did not
cross talk, did not interrupt, and did not argue with the Court. Additionally, this is
the first case that the undersigned is aware of that an attorney has been held in
direct criminal contempt for approaching an Elmo and helping with an exhibit.
31 A court's power to hold a party in contempt is an extraordinary remedy that must
be exercised cautiously, sparingly, and with great restraint. Rhodes v. State, 817
So.2d 1089 (Fla. 2d DCA 2002); see also, Plank v. State, 190 So. 3d 594, 605
(Fla. 2016); P.J. v. State, 327 So.2d 881, 882 (Fla. 3d DCA 1976). Thus, courts
have held that a contempt order is only proper in egregious circumstances
constituting a willful and intentional violation of a court's order or where
necessary to prevent an actual, direct obstruction of, or interference with the
administration of justice. Florida v. Johnson, 676 So. 2d 408, 411 (Fla. 1996);
Florida Ventilated Awing Co. v. Dickson, 67 So.2d 218, 219 (Fla. 1953); State v.
Peacock, 152 So. 616 (1934).
32 An accused facing the possibility of direct criminal contempt is entitled to
constitutional protections of due process, and strict compliance with the
procedural requirements of the criminal contempt rule is necessary to ensure that
those procedural due process rights are safeguarded. U.S. Const. Amend. 14;
Fla.R.Crim.P. 3.830; Searcy v. State, 971 So. 2d 1008 (Fla. 3rd DCA 2008).
33. Rule 3.830 provides:
A criminal contempt may be punished summarily if the court saw
or heard the conduct constituting the contempt committed in the
actual presence of the court. The judgment of guilt of contempt
shall include a recital of those facts on which the adjudication of
guilt is based. Prior to the adjudication of guilt, the judge shall
inform the defendant of the accusation against the defendant and
inquire as to whether the defendant has any cause to show why he
or she should not be adjudged guilty of contempt by the court and
sentenced therefor. The defendant shall be given the opportunity to
present evidence of excusing or mitigating circumstances. The
judgment shall be signed by the judge and entered of record.
Sentence shall be pronounced in open court.
34. The U.S. Constitution in conjunction with this rule requires that prior to any
adjudication of guilt, the court must follow six fundamental requirements:
I. Direct criminal contempt may be punished summarily if the
court saw or heard the conduct constituting the contempt
committed in the actual presence of the court.
IL. The judgment of guilt shall include a recital of those facts upon
which the adjudication of guilt is based.
Ill. Prior to the adjudication of guilt, the judge shall inform the
defendant of the accusation against him and inquire as to whether
10
he has any cause to show why he should not be adjudged guilty of
contempt by the court and sentenced therefor.
IV. The defendant shall be given the opportunity to present
evidence of excusing or mitigating circumstances.
V. The judgment shall be signed by the judge and entered on the
record.
VI. The sentence shall be pronounced in open court?
Al-Hakim y. State, 53 So.3d 1171, 1173 (Fla. 2d DCA 2011) rev'd in part on other
grounds; J.A.H. v. State, 20 So. 3d 425, 427 (Fla. Ist DCA 2009); See also, Peters
y, State, 626 So.2d 1048, 1050 (Fla. 4th DCA 1993)
35 Strict compliance with the requirements of Rule 3.830 is mandatory. See, ¢.g.,
Johnson y. State, 584 So.2d 95, 96 (Fla. Ist DCA 1991) (reversing order of
contempt that referenced numerous pages of trial transcript because it was not a
“recital of the facts” as required by rule 3.830); Peters v. State, 626 So.2d 1048,
1050 (Fla. 4th DCA 1993) (reversing contempt judgment on the grounds that the
trial court failed to provide the appellant with prior notice of the charge of
contempt and also failed to give him an opportunity to explain before imposing
sentence).
36 Any failure to follow the procedural requirements in direct criminal contempt
proceedings under this rule is fundamental error and an objection in the trial court
is not required to preserve the issue for appellate review, as evidenced in the
following cases:
? As previously discussed, Ms. Tejedor was not given a proper chance to explain herself. The mitigating
circumstances should have been pulling the verbal order from the record, allowing the testimony of Mr. Block, and
the testimony set forth in the attached affidavits.
li
Honig v. Cigna Ins. Co., 687 So.2d 922 (Fla. 2d DCA 1997)(If the
offending conduct were to constitute contempt, it would be direct criminal
contempt, contemnor was not offered opportunity to present evidence of
excuse or mitigation, and trial court did not make sufficient findings of
fact to support judgment of direct criminal contempt);
Nunes v. State, 434 So.2d 366 (Fla. 4th DCA 1983)(Where court did not
sufficiently advise defendant as to what he was being held in contempt for,
and court denied defendant's request for evidentiary hearing on matter,
court erred in finding defendant guilty of direct criminal contempt);
Hutcheson y. State, 903 So.2d 1060, 1062 (Fla. Sth DCA 2005)( trial
court's failure to afford the defendant an opportunity to present mitigating
evidence, or to discuss why the trial court should or should not impose a
particular sentence, after asking the defendant to show cause why he
should not be held in direct criminal contempt constitutes fundamental
error);
Sanjurjo v. State, 677 So.2d 965, 966 (Fla. 3d DCA 1996) (in a case
strikingly similar to the dual contempts imposed in the instant case, the
Court held that the trial judge did not allow the defendant the opportunity
to present evidence of excusing or mitigating circumstances with respect
to either of the two contempt “adjudications,” and sentences, as required
by the Rule);
Davis v, State, 575 So.2d 288 (Fla. 34 DCA 1991)(The court adjudicated
defendant guilty of direct criminal contempt and pronounced sentence,
12
over defense counsel's objection that defendant was entitled to a hearing.
This did not constitute sufficient notice and opportunity to present
evidence);
Royster v. State, 668 So.2d 346 (Fla. 1st DCA 1996)(Court held that
defendant was improperly held in direct criminal contempt, where trial
court failed to inquire as to whether defendant had any cause to show why
he should not be adjudicated guilty of contempt and failed to give
defendant opportunity to present excusing or mitigating evidence, as
required by the Rules of Criminal Procedure);
Clark y. State, 625 So.2d 68 (Fla. Ist DCA 1993)(Defendant was
improperly held in direct criminal contempt, based on an outburst during
his criminal trial, where the trial judge failed to inquire as to whether
defendant had any cause as to why he should not be adjudged guilty of
contempt and failed to give defendant opportunity to present excusing or
mitigating circumstances, and where the judgment did not include a recital
of facts on which adjudication of guilt of contempt was based);
Patz v. State, 691 So.2d 66 (Fla. 3d DCA 1997) (Failure to afford
contemnor opportunity to present evidence to mitigate his sentence was
fatal to adjudication and sentence for contempt of court);
Royster v. State, 668 So.2d 346 (Fla. Ist DCA 1996) (Defendant was
improperly held in direct criminal contempt, where trial court failed to
inquire as to whether defendant had any cause to show why he should not
be adjudicated guilty of contempt and failed to give defendant opportunity
13
to present excusing or mitigating evidence, as required by Rules of
Criminal Procedure);
O'Neal v. State, 501 So.2d 98 (Fla. Ist DCA 1987)(Before a party is
adjudged in contempt of court, he must be put on notice of what the
consequences of his words or action may be so that he may avert those
consequences by explaining his conduct).
37. Upon reversing a lower courts finding of criminal contempt, the Florida Supreme
Court in In re Little, 404 U.S. 553 (1972), explained the purpose of a courts
contempt power as follows:
[T]he law of contempt is not made for the protection of, judges who
may be sensitive to the winds of public opinion. Judges are
supposed to be men of fortitude, able to thrive in a hardy climate.
Trial courts must be on guard against confusing offenses to their
sensibilities with obstruction to the administration of justice. To
resolve otherwise would entrap the court into punishing personally
offending comments which do not qualify as contempt, and
thereby chill those First Amendment freedoms intolerably.
Inve Little, 404 U.S. 553 (1972)(internal citations omitted).
38 Eaton v. City of Tulsa, 415 U.S. 697 (1974)(Held that where it was not charged
that witness disobeyed any valid court order, talked loudly, acted boisterously, or
attempted to prevent judge or any other officer of court from carrying on his court
duties, witness’ use of expletive “chicken shit” in referring to an alleged assailant
could not be held to constitute an imminent threat to the administration of justice
and could not constitutionally support conviction for criminal contempt).
Legal Argument
39 The Court’s Contempt Order should be vacated as this Court has failed to comply
with the requirements of the Florida Rules of Criminal Procedure, Florida case
14
law, or due process rights afforded to Ms. Tejedor by the United States
Constitution. Courts of this state have repeatedly recognized that any failure to
follow the procedural requirements in contempt proceedings under Florida Rule
of Criminal Procedure 3.830 is fundamental error and an objection in the trial
court is not required to preserve the issue for appellate review. See, @.g.,
Hutcheson y. State, 903 So.2d 1060, 1062 (Fla. Sth DCA 2005); Garrett v. State,
876 So.2d 24, 25 (Fla. Ist DCA 2004).
The Court’s Criminal Contempt Order Must be Vacated Where There is no Record to
Support that Counsel Acted Willfully or Intentionally to Hinder the Orderly Functions of
the Court
40. As a threshold matter, the evidence in this case does not demonstrate that Ms.
Tejedor acted willfully or intentionally—beyond a reasonable doubt—to hinder
the administration of justice.
41 Criminal contempt requires proof beyond a reasonable doubt of “a willful,
intentional, or substantial interference and/or interruption of the orderly conduct
of the court's business.” MJ. v. State, 202 So.3d 112, 113 (Fla. Sth DCA 2016)
(citing Berman y. State, 751 So.2d 612, 614 (Fla. 4th DCA 1999)).
42 When a finding of criminal contempt is based upon the violation of a court order,
there must be requisite proof to demonstrate that “(1) the contemnor had notice of
the order, (2) the order was directed at the contemnor, and (3) the contemnor
unequivocally and intentionally disobeyed the order or acted in gross dereliction
of the order to such an extent that intent can be presumed.” § 38.23, Fla. Stat.
(2015); MJ. v. State, 202 So.3d at 113(citing Smith y. State, 954 So.2d 1191,
15
1194 (Fla. 3d DCA 2007) (quoting Barnes v. State, 588 So.2d 1076,1077(Fla. 4th
DCA)).
43 A party may not be held in contempt for violation of a provision of an order
which is not explicit, clear and precise, so as to make a party aware of its
command and direction as applied to a given circumstance. See Powerline
Components, Inc. v. Mil-Spec Components, Inc., 720 So.2d 546, 548 (Fla. 4th
DCA 1998); Carnival Corp. y. Beverly, 744 So.2d 489, 496-497 (Fla. Ist DCA
1999).
44 In the instant matter, this Court had not previously entered a “explicit, clear, and
precise” Order prohibiting the conduct that constituted the basis for finding Ms.
Tejedor in contempt: essentially Ms. Tejedor approaching the Elmo to help with
Exhibits.
45 During the trial of this matter, this Court issued numerous rulings demonstrating
the Court’s ability to provide clear and unambiguous orders. For example, during
the trial, Plaintiff's surgical expert Dr. David Mayer, the Court advised the
witness and Plaintiffs counsel twice on the issue of contempt. First the Court
stated “[iJf [Dr. Mayer is] not here tomorrow morning at 8:30 for cross-
examination, I'm going to hold him in direct criminal contempt.” See Transcript
112: 6-10. Second the Court stated to Plaintiff's expert Dr. Mayer “[y]ou respond
to me like that one more time and I will hold you in contempt. Do you
understand?” See Transcript 121: 4-7. The court also entered the order at issue in
this case that cross talking, interrupting, and arguing back to the Court were not
permitted.
16
46. The Court had never previously provided notice to Ms. Tejedor by way of any
order that prohibited her from assisting with an exhibit when asked by co-counsel,
operating or assisting anyone experiencing difficulties when using technological
devices in the courtroom, such as the ELMO, when presenting evidence to the
jury.
47. As a result of Ms. Tejedor not receiving any notice by way of a Court Order of the
specific prohibited conduct, there is no evidence demonstrating that Ms. Tejedor
willfully or intentionally acted to embarrass the Court or obstruct the
administration of justice.
48 Moreover, there is no sufficient evidence to infer Ms. Tejedor’s intent from her
actions as the Court had not previously entered an express and unambiguous order
prohibiting her conduct. See Linowitz v. State, 498 So.2d 1315 (Fla. 3d DCA
1986)(affirming lower courts finding of contempt where attorney's actions of
reading transcripts of a grand jury proceedings prior to transcripts’ being ordered
disclosed, permitted inference that attorney intended to hinder administration of
justice). Here, assisting with an exhibit on the Elmo does not hinder justice.
49, To the contrary, the available evidence demonstrates that Ms. Tejedor’s actions
were intended to actually further the administration of justice. Specifically, in
attempting to assist with the ELMO, Ms. Tejedor’s actions were intended to
expedite the presentation of evidence in order to ensure this trial concluded in a
timely manner pursuant to this Court’s repeated requests.
50. In Carroll v. State, 327 So.2d 881 (Fla. 34 DCA 1976), the trial court held
defense counsel in criminal contempt after defense counsel had asked potential
17
jurors questions such as “whether they wanted to sock it to the insurance company
and whether they had dealings with people who were trying to get money to
which they were not entitled” during voir dire. Jd. On appeal, the court reversed
after reviewing the record and finding that the defense counsel had not been
specifically warned or cautioned by the trial court that if he continued with the
same manner of questioning he would be found in criminal contempt. /d. Here,
the Court never advised Ms. Tejeder that she would be held in contempt for
approaching the Elmo and helping with exhibits.
51 In Breslin v. State, 456 So.2d 1201 (Fla. 3d DCA 1984), the court upheld a trial
courts adjudication of criminal contempt entered after defense counsel made
grossly improper remarks made repeatedly during trial despite the trial court’s
specific warnings to the contrary given by the judge.
52. Like the facts in Carroll, but unlike those found in Breslin, in the instant matter
Ms. Tejedor was not given specific warnings prohibiting her from operating or
assisting with the ELMO. Accordingly, the Court’s Order of contempt should be
vacated as the evidence in this matter is insufficient to support a finding of direct
criminal contempt.
There was no Instruction Given that Ms. Tejedor was not AHowed to Approach the Elmo.
53. The second requirement of Rule 3.830 mandates that a court must provide notice
of the charge of contempt and the facts on which the charge is based. McRoy v.
State, 31 So.3d 273 (Fla. Sth DCA 2010).
54. In reversing the lower court, the appellate court further found that there was not
sufficient evidence to support a finding of contempt beyond a reasonable doubt
18
where the contemptor’s actions, although annoying, embarrassed, hindered, or
obstructed the court’s administration of justice or lessened the lower court’s
authority or dignity. McRoy v. State, 31 So.3d 273 (Fla. Sth DCA 2010)(citing
Gidden vy. State, 613 So.2d 457, 460 (Fla. 1993)).
55 Similar to the court in McRoy, the Court in this matter failed to provide a specific
oral or written recital of the underlying facts supporting the Courts finding of
contempt. The Order does not reflect any notice that Ms. Tejedor could not
approach the Elmo to assist with exhibits. Accordingly, on this basis alone the
Court’s Order of Contempt must be vacated.
The Court’s Criminal Contempt Order Must be Vacated Where the Court Failed to
Provide the Accused an Opportunity to be Heard in Violation of Due Process
56. Rule 3.830 provides that the accused be given the opportunity to be heard and to
present mitigating evidence prior to adjudication. Ms. Tejedor was deprived of
this constitutional right. Despite Mr. Diez-Arguelles’ repeated requests for a
hearing, the Honorable judge ruled that Ms. Tejedor was not entitled to a hearing
on direct criminal contempt.
57 Uniformly, the First, Second, Third, Fourth, and Fifth district courts of appeal
have reverse both the judgment and sentence upon finding error in a direct
contempt proceeding for the failure to provide an opportunity to present evidence
of excusing or mitigating circumstances. See, e.g., McCrimager v. State, 919
So.2d 673, 674 (Fla. 1st DCA 2006); Rhoads v. State, 817 So.2d 1089, 1092 (Fla.
2d DCA 2002); Sanjuro v. State, 677 So.2d 965, 966 (Fla. 3d DCA 1996); Bouie
y. State, 784 So.2d 521, 523 (Fla. 4th DCA 2001); Hutcheson v. State, 903 So.2d
1060 (Fla. Sth DCA 2005).
19
58. Merely asking a defendant facing a charge of direct criminal contempt if he
wishes to explain his behavior does not meet the procedural requirement that he
be given an opportunity to present evidence. Searcy v. State, 971 So.2d 1008
(Fla. 3d DCA 2008), review denied 988 So.2d 622.
59 In Hutcheson, a trial court found a witness in direct criminal contempt after the
witness gave contradictory testimony during a probation revocation proceeding.
Hutcheson, 903 So.2d at 1061. In response, the witness raised numerous
challenges to the trial court, including that the trial court had not complied with
rule 3.830. On appeal, the court found that the witness was “asked why he should
not be held in contempt, and was then cut off when he began to offer an
explanation for that statement, with the court announcing it was finding him in
contempt.” Jd. at 1062. The appellate court reversed, holding that the lower court
did not comport with the procedural due process requirements of rule 3.830. /d. In
the instant case, Mr. Diez-Arguelles was cut off when he attempted to request a
hearing to present mitigating evidence. Additionally, the court denied Mr. Diez-
Arguelles’ request to lay a sufficient record.
60. Ms. Tejedor was not given an opportunity to present evidence of excusing or
mitigating circumstances, or to discuss why the trial judge should or should not
impose a particular sentence, contrary to rule 3.830. Keeton v. Bryant, App. 5
Dist., 877 So.2d 922 (Fla. Sth DCA 2004)( “The provisions of rule 3.830 define
the essence of due process in criminal contempt proceedings and must be
scrupulously followed.); Davis v. State, 575 So.2d 288 (Fla. 3d DCA 1991)(The
court adjudicated defendant guilty of direct criminal contempt and pronounced
20
sentence, over defense counsel's objection that defendant was entitled to a
hearing. This did not constitute sufficient notice and opportunity to present
evidence); Royster v. State, 668 So.2d 346 (Fla. 1st DCA 1996)(Court held that
defendant was improperly held in direct criminal contempt, where trial court
failed to inquire as to whether defendant had any cause to show why he should
not be adjudicated guilty of contempt and failed to give defendant opportunity to
present excusing or mitigating evidence, as required by the Rules of Criminal
Procedure); Nunes v. State, 434 So.2d 366 (Fla. 4th DCA 1983)(Where court did
not sufficiently advise defendant as to what he was being held in contempt for,
and court denied defendant's request for evidentiary hearing on matter, court erred
in finding defendant guilty of direct criminal contempt); Patz v. State, 691 So.2d
66(Fla. 3d DCA 1997)(Failure to afford contemnor opportunity to present
evidence to mitigate his sentence was fatal to adjudication and sentence for
contempt of court).
61 Moreover, counsel for Ms. Tejedor, Mr. Diez-Arguelles was not allowed to finish
offering a response to the Court’s requests to show cause.
62 Accordingly, this Court should vacate the Order of Contempt, or in the
alternative, permit Ms. Tejedor to have a hearing in order to offer mitigating
evidence.
Counsel’s Conduct Did Not Warrant Finding of Direct Criminal Contempt
63. Ms. Tejedor’s conduct does not evidence an incursion upon the dignity and
authority of this Court.
21
64. “The purpose of criminal contempt is ‘to punish assaults or aspersions upon the
authority and dignity of a court or judge,’ not to avenge personal affronts.” Smith
y. State, 954 So.2d 1191 (Fla. 3d 2007)(quoting Krueger v. State, 351 So.2d 47
(Fla. 3d DCA 1977)).
65 The power to punish for contempt should be cautiously and sparingly exercised.
Bryant v. State, 851 So.2d 823 (Fla. 2d DCA 2003). The provocation constituting
the basis of contempt “must never be slight, doubtful, or of shifting
interpretations... [t]he occasion should be real and necessary, not murky, and not
ameliorated in some less formal manner.” Schenck v. State, 645 So.2d 71, 74 (Fla.
4th DCA 1994).“Trial courts ... must be on guard against confusing offenses to
their sensibilities with obstruction to the administration of justice.” Mann v. State,
476 So. 2d 1369, 1374 (Fla. 2d DCA 1985)(citing Craig v. Harney, 67 S. Ct.
1249, 1255(1947)).
Conclusion
66 Ultimately, as a result of failing to comply with the strict procedural requirements
this Court has committed error.
67 Furthermore, Plaintiffs have attached the affidavits of Mr. Diez-Arguelles, Mr.
Eric Block, Ms. Christina Arguelles, Ms. Alexandra Alligood, and Ms. Kristen
Thorn.
68 Based upon the above arguments, this Court should vacate and/or reconsider the
Order of Contempt.
WHEREFORE Ms. Tejedor respectfully request this Court vacate and/or reconsider
their November 8, 2017, Order of Contempt.
22
CERTIFICATE OF SERVICE
been furnished
I HEREBY CERTIFY that a true and correct copy of the foregoing has
ez, Esq,
via Florida State e-portal service to Wendy F. Lumish, Esq., and Alina Alonso Rodrigu
Gables, FL, Rogelio J. Fontela, Esq., Sh A. Bannon,
Two Alahambra Plaza, Suite 800, Coral
0, Tallahassee, FL 32317, and . Block, at
Esq., 1591 Summit Lake Drive, Sui
eservice@ericblocklaw.com on this lay of November.
Carlos 2) elles, Esq.
FBN 969
Di ficlles & Tej or
Orth Mills Avy
Orlando, FL 3289
(407)705-2880,
Email: mail heorlandolawyers.com
23
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT,
IN AND FOR ORANGE COUNTY, FLORIDA
MARCELO DIAZ, as Personal Representative CASE NO: 2008-CA-11228-O
of the Estate of HERMINIA DIAZ
Plaintiff,
Vv.
HARINATH SHEELA, M.D.; DIGESTIVE
AND LIVER CENTER OF FLORIDA, P.A.
Defendants,
/
AFFIDAVIT OF CARLOS R. DIEZ-ARGUELLES, ESQ.
STATE OF FLORIDA
COUNTY OF ORANGE
Before me, the undersigned authority, Carlos R. Diez-Arguelles, personally appeared, who
had been duly sworn, deposes and says:
1. Iam an attorney licensed in the State of Florida and I am in good standing with the Florida
bar. I have practiced law for thirty (30) years and I have faced hundreds of judges in varying
jurisdictions. I have over thirty (30) years of experience in personal injury, wrongful death,
and medical malpractice litigation. I am a board certified civil trial lawyer and recognized
among Florida’s top 100 trial lawyers. I am also recognized as an AV rated lawyer and have
served on the Board of Directors of the Academy of the Florida Trial Lawyers. Additionally,
I served on the Professional Ethics Committee of the Florida Bar as well as the local
Grievance Committee of the Ninth Judicial Circuit.
I am legal counsel to Plaintiffs in the above-captioned matter.
I have personal knowledge of the matters deposed to herein.
I have been present in the courtroom for all proceedings concerning the above referenced
trial that began on August 21, 2017.
At no time during the trial did the Honorable Renee A. Roche hold Mr. Eric Block, Esq., Mr.
Roger Fontella, Esq., Ms. Shylie Bannon, Esq., or myself held in contempt.
At no time while I have been present in the courtroom has the Honorable Renee Roche
ordered or instructed my co-counsel, Maria D. Tejedor, that she was not allowed to approach
the Elmo or assist with technology during direct or cross examination.
The only order given in the courtroom that was subject to a $500.00 criminal contempt fine
was for cross talking, interrupting, and continuing to argue with the court.
At no time during this trial did Ms. Tejedor talk loudly at counsel table in the presence of the
jury, gesture, gesticulate, or make inappropriate facial expressions during witness testimony,
speak directly to opposing counsel in the presence of the Court. These comments by the
judge were directed to myself, and not Ms. Tejedor.
At no time did Ms. Tejedor talk loudly at counsel table in the presence of the jury, gesture,
gesticulate, or make inappropriate facial expressions during witness testimony, speak directly
to opposing counsel in the presence of the Court or argue with the Court prior to or at the
time the Court held Ms. Tejedor in contempt. In fact, Ms. Tejedor never spoke at all when
she approached the Elmo to assist Mr. Block with an exhibit.
10 After observing Ms. Tejedor approach the Elmo, Mr. Fontella made a “two attorney”
objection. Immediately, following the objection, the Honorable Renee Roche commenced a
proceeding for d
Preview
Filing #64064502 E-Filed 11/10/2017 05:24:33 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA MARCELO DIAZ, as Personal Representative CASE NO: 2008-CA-11228-O of the Estate of HERMINIA DIAZ, Plaintiff, VS. HARINATH SHEELA, M.D.; DIGESTIVE AND LIVER CENTER OF FLORIDA, P.A. Defendants, / PLAINTIFF’S COUNSEL, MARIA TEJEDOR, ESQ., MOTION TO VACATE/RECONSIDERATION OF CONTEMPT ORDER FOR APPROACHING THE ELMO COME NOW Plaintiffs counsel, Maria Tejedor, Esq., by and though her undersigned counsel, and hereby files this Motion to Vacate Contempt Order and Motion for Rehearing, and in support thereof, state as follows: Preliminary Argument 1. On August 21, 2017, the second trial of this matter commenced against the remaining Defendants HARINATH SHEELA, M.D., and DIGESTIVE LIVER CENTER OF FLORIDA, P.A., before your Honor, Judge Renee A. Roche. Plaintiff's counsel, Maria Tejedor, is being held in direct criminal contempt for walking up to the Elmo, during trial, to assist Mr. Block with an exhibit. Ms. Tejedor did not insult your Honor, nor speak back to your Honor. On November 8, 2017, two months after the alleged misconduct occurred, your Honor filed a written Order holding Ms. Tejedor, in direct criminal contempt for allegedly violating her order prohibiting “loud talking at counsel table in the presence of the Jury; gesturing, gesticulating, and making inappropriate facial expressions during witness testimony; speaking directly to opposing counsel in the presence of the Court, and approaching or speaking to co-counsel while co- counsel was in the midst of examining a witness.” The trial transcript reflects that Ms. Tejedor did not say a word at the time she approached the Elmo to assist Mr. Block with the exhibit. At no time during the trial was Mr. Block, Mr. Fontella, Ms. Bannon, or Mr. Diez-Arguelles held in contempt. Moreover, Mr. Fontella was not held in contempt for placing the advertisement on the Elmo before showing Plaintiff's counsel, where your Honor stated, “I have to say I am really surprised. That surprises me. You never, ever put — you don’t show a witness a document without showing it first to the other side, and you most certainly do not throw something up in front of the jury without showing it to the other side and giving them the opportunity to object.” Moreover she stated, “I actually almost screamed to get that off of there.” The facts and record reflect that singling out Ms. Tejedor was not supported by the record and was arbitrary and capricious. However, the record at trial reflects that the only Order actually made by this Court with regards to potentially finding a party in contempt and fining the party $500.00, was as follows: Let me just make one brief statement. I would say that this trial has been plagued with some examples of poor behavior, unprofessionalism, and I want to be specific and clear about what is out of order and not acceptable to the Court. Cross talking to one another in the presence of the court is in permissible. Cross talking mean do you speak directly to each other and not through the court. Interrupting is not permissible. Continuing to argue with the court after the court has made a ruling is not permissible. Courts are to be spoken to with respect and in a manner set forth in the rules of civil procedure and the rules of evidence and the rules of professional conduct. The next time one of those specific rules is violated, I will I don't hold that person in contempt or certainly order them to send $500 to the people of the state of Texas to assist in their recovery from the hurricane. The next time it will be for $500 for the dogs and cats and other animals that are getting that are suffering. And then we'll go back to people and we will go back to dogs and cats, and then we'll just see how that happens. Moreover, when the judge entered the contempt order, Ms. Tejedor, was simply assisting Mr. Block with the Elmo. Mr. Tejedor was not cross talking, did not interrupt, and did not continue to argue with the court, matters which were subject to a $500.00 fine and contempt order. Therefore, there was no “next time” that resulted in Ms. Tejedor violating the above Courts order. Additionally, at no time did Ms. Tejedor loud talk in the presence of the jury, gesture, gesticulate, or make inappropriate facial expressions at the jury, she did not speak directly to opposing counsel in the presence of the Court, and she did not speak to co-counsel while co-counsel was in the midst of examining a witness. Ms. Tejedor at no time meant to intentionally upset your Honor or intend to violate any verbal orders. The written order states that Ms. Tejedor offered “no reason why such a finding should be made.” This is not supported by the record. Ms. Tejedor turned to Mr. Diez-Arguelles and asked him to be her attorney and to assert her 5" Amendment right. Mr. Diez-Arguelles did just that. Thereafter, Mr. Diez-Arguelles requested that your Honor hold a mitigation hearing pursuant to the Constitution and the direct criminal contempt rules. The Court ruled that Ms. Tejedor was not entitled to a mitigation hearing regarding the direct criminal contempt. 10. The Plaintiff is eighty-three (83) years of age and the only survivor entitled to recover damages for the wrongful death of his wife Herminia Diaz to whom he was married 35 years. The case was first tried in April, 2013. At the beginning of the third week, of the first trial, the Court granted the Defendants’ motion for mistrial alleging they would be unable to conclude their case in a week. The Plaintiff objected to the mistrial and argued the motions were not well raised as they were raised when the Defendant heard a question from the jury which was not favorable to their case. In order to avoid the foregoing conclusion, the parties were repeatedly cautioned by this Court to complete this trial in a timely manner. 11 For this trial period commencing on August 21, 2017, the Plaintiff requested fifteen (15) days to try the case and this was reduced four and one — half (4 1/2) days: the Court was unavailable for two (2) day, Labor day Holiday, and because or Hurricane Irma. Plaintiff also lost a half day on the second Monday of trial. Defense Counsel, Roger Fontella, advised the Court the previous Monday that an expert was only available on the second Monday of Trial. Plaintiff rearranged calling experts during their case in chief and planned a cross-examination. Plaintiff learned on late Sunday night that Mr. Fontella was no longer calling his expert. Plaintiff had already made drastic changes to the scheduling of their expert witnesses and lost significant time during their case in chief. Accordingly, Plaintiff's counsels were very consciousness of the time constraints prior to and throughout this trial, and sought to avoid all unnecessary delays and interruptions. Facts Warranting Reversal of Contempt Order 12. On September 7, 2017, this Court held Ms. Tejedor in Criminal Contempt, when Co-counsel, Rick Block, needed Ms. Tejedor’s assistance with the ELMO and an exhibit which resulted in Ms. Tejedor approaching the ELMO where Mr. Block was located to assist with the same. Previously, the Court and the Deputies had displayed disapproval of Plaintiff's counsel nurse Kristen Thorne assisting with the exhibits and ELMO and sitting next to the ELMO, as she was a non-lawyer and directed her remain in the gallery nowhere near the ELMO or exhibit. 13 At one point when the Nurse was at the ELMO assisting with exhibits, your Honor told her to go back to the gallery as she had not assisted with an exhibit for a long period of time. Nurse Thorne was brought to trial and given the responsibility of assisting counsel with exhibits and the ELMO as she had custody, control and knowledge of the medical records needed by the lawyers. This is a medical negligence case involving thousands of pages of medical records from many healthcare providers. 14 At all times material to the proceedings, Maria D. Tejedor, Esq., Carlos R. Diez- Arguelles, Esq., and Eric Block, Esq. served as trial counsel for the Plaintiff. 15 Due to the numerous medical records involved, Plaintiff's counsel(s), at various point during the trial, required assistance from co-counsel(s) or their staff to manage the decedent’s medical records in order to efficiently present evidence to the jury and avoid any delays. 16. On September 7, 2017, Mr. Block conducted a brief cross-examination of the Defendant. Approximately 15-20 minutes after commencing his cross- examination, Mr. Bock attempted to utilize the ELMO in the courtroom to present a portion of the decedent’s medical record to the jury. This evidence was necessary to continue Mr. Block’s cross-examination. not at the ELMO and therefore unable to provide him with 17 The nurse was assistance utilizing the ELMO. The Nurse was in the gallery far from the ELMO where she had been ordered by the Court and Deputies to remain. Mr. Block Block turned to Ms. Tejedor siting at counsel table and it was obvious that Mr. initiate any needed assistance with the Elmo and the exhibits. Ms. Tejedor did not the conversation and the Court did not find Mr. Block in contempt for needing assistance of Ms. Tejedor. Ms. Tejedor approached the ELMO to assist her co- e counsel with the presentation of the exhibit and the ELMO so he could continu his cross examination. At no time did Ms. Tejedor cross talk, interrupt, or argue with the Court. displeasure 18 As Ms. Tejedor approached the ELMO, the Court did not show any with her or her conduct of approaching the ELMO. Court. At 19 Moreover, Ms. Tejedor did not cross talk, or continue to argue with the no point in time did Ms. Tejedor speak to Mr. Block while approaching the ELMO. She did not sigh or make any noises of displeasure. She made no facial expressions of disdain. Ms. Tejedor did not loud talk in the presence of the jury, jury, she did gesture, gesticulate, or make inappropriate facial expressions at the did not speak directly to opposing counsel in the presence of the Court, and she . not speak to co-counsel while co-counsel was in the midst of examining a witness 20. At the point Ms. Tejedor was approaching the ELMO, Defendant objected, stating “[a]ll of this going back and forth with two attorneys.” See Trial Transcript, 195:12-13. The facts are undisputed that there was no going back and forth between the attorneys. The undisputed fact is Ms. Tejedor approaching the Elmo to assist with exhibits and not to talk to co-counsel while he was questioning a witness, while co-counsel was having problems with the Elmo and exhibit. No conversation was taking place. 21 The Court subsequently dismissed the jury, and then began contempt proceedings without notice. The Court said “Ms. Tejedor, please state a reason why the Court should not find you in contempt for disobeying the repeated admonition to stay in your seat and away from counsel who is questioning a witness in the presence of the jury.” See transcript 196:21-25. The Court never issued an order Plaintiff counsel could not use the ELMO, assist co-counsel with technology or provide co- counsel with an exhibit when asked by the same. Doing so would impede Plaintiffs Counsel from effectively presenting their case. 22 Due to the fact of the pending charge of criminal contempt, Mr. Diez-Arguelles apologized to the Court and stated that Ms. Tejedor was “Just trying to move the cross-examination.” See Trial Transcript, 196:3-4. Mr. Block also apologized, informing the Court that it was his fault. Since he was the one who turned to her and asked her to provide the exhibit and assist. In response, tis Court stated that “[i]t doesn’t matter. It really doesn’t matter.” See Trial Transcript, 196:6-8. 23. Without any further opportunity for Mr. Diez-Arguelles to show cause, present evidence, or explain why Ms. Tejedor should not be held in contempt, this Court found Ms. Tejedor in criminal contempt, as follows: So no reason having been given,’ the Court finds Ms. Tejedor in contempt and orders her to pay a fine of 500 dollars before the end of the week, and the Court will assess more fines if necessary. See Trial Transcript, 196:20-24. 24 Mr. Diez-Arguelles then immediately requested a hearing in order to present mitigating evidence. In response to Mr. Diez-Arguelles requests, the Court stated as follows: This is direct criminal contempt. You're not entitled to a hearing on direct criminal contempt. You're entitled to a hearing on indirect criminal contempt, but this is direct. And so it really is the question of conduct that occurs that has been interfering with the fair administration of justice, and I believe at this point, having spoken to counsel repeatedly, that that is the only option the Court has at this point. See Trial Transcript, 197:3-11. 25 Although Mr. Diez-Arguelles tried to inform the Court that such a hearing was required before the adjudication of guilt under the Florida Rules of Criminal Procedure, this Court advised all counsel that the Court has already made its findings. 26. Mr. Diez-Arguelles argued: “Judge, you never instructed us that we could not pass exhibits on the ELMO board at any time. You never instructed us that we couldn’t do that, so that’s why I need a hearing your Honor.” See Trial Transcript, 197:12-16. the ' Ms. Tejedor through her attorney asserted her 5" Amendment constitutional rights and her attorney advised Court that she was entitled to a mitigation hearing, and the Court stated that she was not entitled to a hearing. 8 27. Mr. Diez- Arguelles further argued: “Your Honor, the direct criminal contempt rules, the defendant shall be given the opportunity to present evidence of excuse and/ or mitigating circumstances.” See Trial Transcript, 199-200: 22-1. 28 However, at no time during the trial of this matter did the Honorable Renee Roche Order or instruct Maria D. Tejedor that she was not allowed to approach the ELMO, provide co-counsel an exhibit when asked for assistance by the same or assist with technology while co -counsel conducted his cross examination. 29 At the time Ms. Tejedor was found in criminal contempt, Mr. Diez-Arguelles, and members of the Plaintiffs counsels firm, Mr. Eric Block, Ms. Christina Arguelles, Ms. Kristen Thorn, and Ms. Alexandra Alligood, were present in the courtroom. As material witnesses to this matter, Plaintiffs co-counsels and staff have submitted affidavits testifying to the facts provided herein and attached hereto. Legal Requirements for Direct Criminal Contempt 30. A simple review of the affidavits and transcripts show that Ms. Tejedor did not cross talk, did not interrupt, and did not argue with the Court. Additionally, this is the first case that the undersigned is aware of that an attorney has been held in direct criminal contempt for approaching an Elmo and helping with an exhibit. 31 A court's power to hold a party in contempt is an extraordinary remedy that must be exercised cautiously, sparingly, and with great restraint. Rhodes v. State, 817 So.2d 1089 (Fla. 2d DCA 2002); see also, Plank v. State, 190 So. 3d 594, 605 (Fla. 2016); P.J. v. State, 327 So.2d 881, 882 (Fla. 3d DCA 1976). Thus, courts have held that a contempt order is only proper in egregious circumstances constituting a willful and intentional violation of a court's order or where necessary to prevent an actual, direct obstruction of, or interference with the administration of justice. Florida v. Johnson, 676 So. 2d 408, 411 (Fla. 1996); Florida Ventilated Awing Co. v. Dickson, 67 So.2d 218, 219 (Fla. 1953); State v. Peacock, 152 So. 616 (1934). 32 An accused facing the possibility of direct criminal contempt is entitled to constitutional protections of due process, and strict compliance with the procedural requirements of the criminal contempt rule is necessary to ensure that those procedural due process rights are safeguarded. U.S. Const. Amend. 14; Fla.R.Crim.P. 3.830; Searcy v. State, 971 So. 2d 1008 (Fla. 3rd DCA 2008). 33. Rule 3.830 provides: A criminal contempt may be punished summarily if the court saw or heard the conduct constituting the contempt committed in the actual presence of the court. The judgment of guilt of contempt shall include a recital of those facts on which the adjudication of guilt is based. Prior to the adjudication of guilt, the judge shall inform the defendant of the accusation against the defendant and inquire as to whether the defendant has any cause to show why he or she should not be adjudged guilty of contempt by the court and sentenced therefor. The defendant shall be given the opportunity to present evidence of excusing or mitigating circumstances. The judgment shall be signed by the judge and entered of record. Sentence shall be pronounced in open court. 34. The U.S. Constitution in conjunction with this rule requires that prior to any adjudication of guilt, the court must follow six fundamental requirements: I. Direct criminal contempt may be punished summarily if the court saw or heard the conduct constituting the contempt committed in the actual presence of the court. IL. The judgment of guilt shall include a recital of those facts upon which the adjudication of guilt is based. Ill. Prior to the adjudication of guilt, the judge shall inform the defendant of the accusation against him and inquire as to whether 10 he has any cause to show why he should not be adjudged guilty of contempt by the court and sentenced therefor. IV. The defendant shall be given the opportunity to present evidence of excusing or mitigating circumstances. V. The judgment shall be signed by the judge and entered on the record. VI. The sentence shall be pronounced in open court? Al-Hakim y. State, 53 So.3d 1171, 1173 (Fla. 2d DCA 2011) rev'd in part on other grounds; J.A.H. v. State, 20 So. 3d 425, 427 (Fla. Ist DCA 2009); See also, Peters y, State, 626 So.2d 1048, 1050 (Fla. 4th DCA 1993) 35 Strict compliance with the requirements of Rule 3.830 is mandatory. See, ¢.g., Johnson y. State, 584 So.2d 95, 96 (Fla. Ist DCA 1991) (reversing order of contempt that referenced numerous pages of trial transcript because it was not a “recital of the facts” as required by rule 3.830); Peters v. State, 626 So.2d 1048, 1050 (Fla. 4th DCA 1993) (reversing contempt judgment on the grounds that the trial court failed to provide the appellant with prior notice of the charge of contempt and also failed to give him an opportunity to explain before imposing sentence). 36 Any failure to follow the procedural requirements in direct criminal contempt proceedings under this rule is fundamental error and an objection in the trial court is not required to preserve the issue for appellate review, as evidenced in the following cases: ? As previously discussed, Ms. Tejedor was not given a proper chance to explain herself. The mitigating circumstances should have been pulling the verbal order from the record, allowing the testimony of Mr. Block, and the testimony set forth in the attached affidavits. li Honig v. Cigna Ins. Co., 687 So.2d 922 (Fla. 2d DCA 1997)(If the offending conduct were to constitute contempt, it would be direct criminal contempt, contemnor was not offered opportunity to present evidence of excuse or mitigation, and trial court did not make sufficient findings of fact to support judgment of direct criminal contempt); Nunes v. State, 434 So.2d 366 (Fla. 4th DCA 1983)(Where court did not sufficiently advise defendant as to what he was being held in contempt for, and court denied defendant's request for evidentiary hearing on matter, court erred in finding defendant guilty of direct criminal contempt); Hutcheson y. State, 903 So.2d 1060, 1062 (Fla. Sth DCA 2005)( trial court's failure to afford the defendant an opportunity to present mitigating evidence, or to discuss why the trial court should or should not impose a particular sentence, after asking the defendant to show cause why he should not be held in direct criminal contempt constitutes fundamental error); Sanjurjo v. State, 677 So.2d 965, 966 (Fla. 3d DCA 1996) (in a case strikingly similar to the dual contempts imposed in the instant case, the Court held that the trial judge did not allow the defendant the opportunity to present evidence of excusing or mitigating circumstances with respect to either of the two contempt “adjudications,” and sentences, as required by the Rule); Davis v, State, 575 So.2d 288 (Fla. 34 DCA 1991)(The court adjudicated defendant guilty of direct criminal contempt and pronounced sentence, 12 over defense counsel's objection that defendant was entitled to a hearing. This did not constitute sufficient notice and opportunity to present evidence); Royster v. State, 668 So.2d 346 (Fla. 1st DCA 1996)(Court held that defendant was improperly held in direct criminal contempt, where trial court failed to inquire as to whether defendant had any cause to show why he should not be adjudicated guilty of contempt and failed to give defendant opportunity to present excusing or mitigating evidence, as required by the Rules of Criminal Procedure); Clark y. State, 625 So.2d 68 (Fla. Ist DCA 1993)(Defendant was improperly held in direct criminal contempt, based on an outburst during his criminal trial, where the trial judge failed to inquire as to whether defendant had any cause as to why he should not be adjudged guilty of contempt and failed to give defendant opportunity to present excusing or mitigating circumstances, and where the judgment did not include a recital of facts on which adjudication of guilt of contempt was based); Patz v. State, 691 So.2d 66 (Fla. 3d DCA 1997) (Failure to afford contemnor opportunity to present evidence to mitigate his sentence was fatal to adjudication and sentence for contempt of court); Royster v. State, 668 So.2d 346 (Fla. Ist DCA 1996) (Defendant was improperly held in direct criminal contempt, where trial court failed to inquire as to whether defendant had any cause to show why he should not be adjudicated guilty of contempt and failed to give defendant opportunity 13 to present excusing or mitigating evidence, as required by Rules of Criminal Procedure); O'Neal v. State, 501 So.2d 98 (Fla. Ist DCA 1987)(Before a party is adjudged in contempt of court, he must be put on notice of what the consequences of his words or action may be so that he may avert those consequences by explaining his conduct). 37. Upon reversing a lower courts finding of criminal contempt, the Florida Supreme Court in In re Little, 404 U.S. 553 (1972), explained the purpose of a courts contempt power as follows: [T]he law of contempt is not made for the protection of, judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate. Trial courts must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice. To resolve otherwise would entrap the court into punishing personally offending comments which do not qualify as contempt, and thereby chill those First Amendment freedoms intolerably. Inve Little, 404 U.S. 553 (1972)(internal citations omitted). 38 Eaton v. City of Tulsa, 415 U.S. 697 (1974)(Held that where it was not charged that witness disobeyed any valid court order, talked loudly, acted boisterously, or attempted to prevent judge or any other officer of court from carrying on his court duties, witness’ use of expletive “chicken shit” in referring to an alleged assailant could not be held to constitute an imminent threat to the administration of justice and could not constitutionally support conviction for criminal contempt). Legal Argument 39 The Court’s Contempt Order should be vacated as this Court has failed to comply with the requirements of the Florida Rules of Criminal Procedure, Florida case 14 law, or due process rights afforded to Ms. Tejedor by the United States Constitution. Courts of this state have repeatedly recognized that any failure to follow the procedural requirements in contempt proceedings under Florida Rule of Criminal Procedure 3.830 is fundamental error and an objection in the trial court is not required to preserve the issue for appellate review. See, @.g., Hutcheson y. State, 903 So.2d 1060, 1062 (Fla. Sth DCA 2005); Garrett v. State, 876 So.2d 24, 25 (Fla. Ist DCA 2004). The Court’s Criminal Contempt Order Must be Vacated Where There is no Record to Support that Counsel Acted Willfully or Intentionally to Hinder the Orderly Functions of the Court 40. As a threshold matter, the evidence in this case does not demonstrate that Ms. Tejedor acted willfully or intentionally—beyond a reasonable doubt—to hinder the administration of justice. 41 Criminal contempt requires proof beyond a reasonable doubt of “a willful, intentional, or substantial interference and/or interruption of the orderly conduct of the court's business.” MJ. v. State, 202 So.3d 112, 113 (Fla. Sth DCA 2016) (citing Berman y. State, 751 So.2d 612, 614 (Fla. 4th DCA 1999)). 42 When a finding of criminal contempt is based upon the violation of a court order, there must be requisite proof to demonstrate that “(1) the contemnor had notice of the order, (2) the order was directed at the contemnor, and (3) the contemnor unequivocally and intentionally disobeyed the order or acted in gross dereliction of the order to such an extent that intent can be presumed.” § 38.23, Fla. Stat. (2015); MJ. v. State, 202 So.3d at 113(citing Smith y. State, 954 So.2d 1191, 15 1194 (Fla. 3d DCA 2007) (quoting Barnes v. State, 588 So.2d 1076,1077(Fla. 4th DCA)). 43 A party may not be held in contempt for violation of a provision of an order which is not explicit, clear and precise, so as to make a party aware of its command and direction as applied to a given circumstance. See Powerline Components, Inc. v. Mil-Spec Components, Inc., 720 So.2d 546, 548 (Fla. 4th DCA 1998); Carnival Corp. y. Beverly, 744 So.2d 489, 496-497 (Fla. Ist DCA 1999). 44 In the instant matter, this Court had not previously entered a “explicit, clear, and precise” Order prohibiting the conduct that constituted the basis for finding Ms. Tejedor in contempt: essentially Ms. Tejedor approaching the Elmo to help with Exhibits. 45 During the trial of this matter, this Court issued numerous rulings demonstrating the Court’s ability to provide clear and unambiguous orders. For example, during the trial, Plaintiff's surgical expert Dr. David Mayer, the Court advised the witness and Plaintiffs counsel twice on the issue of contempt. First the Court stated “[iJf [Dr. Mayer is] not here tomorrow morning at 8:30 for cross- examination, I'm going to hold him in direct criminal contempt.” See Transcript 112: 6-10. Second the Court stated to Plaintiff's expert Dr. Mayer “[y]ou respond to me like that one more time and I will hold you in contempt. Do you understand?” See Transcript 121: 4-7. The court also entered the order at issue in this case that cross talking, interrupting, and arguing back to the Court were not permitted. 16 46. The Court had never previously provided notice to Ms. Tejedor by way of any order that prohibited her from assisting with an exhibit when asked by co-counsel, operating or assisting anyone experiencing difficulties when using technological devices in the courtroom, such as the ELMO, when presenting evidence to the jury. 47. As a result of Ms. Tejedor not receiving any notice by way of a Court Order of the specific prohibited conduct, there is no evidence demonstrating that Ms. Tejedor willfully or intentionally acted to embarrass the Court or obstruct the administration of justice. 48 Moreover, there is no sufficient evidence to infer Ms. Tejedor’s intent from her actions as the Court had not previously entered an express and unambiguous order prohibiting her conduct. See Linowitz v. State, 498 So.2d 1315 (Fla. 3d DCA 1986)(affirming lower courts finding of contempt where attorney's actions of reading transcripts of a grand jury proceedings prior to transcripts’ being ordered disclosed, permitted inference that attorney intended to hinder administration of justice). Here, assisting with an exhibit on the Elmo does not hinder justice. 49, To the contrary, the available evidence demonstrates that Ms. Tejedor’s actions were intended to actually further the administration of justice. Specifically, in attempting to assist with the ELMO, Ms. Tejedor’s actions were intended to expedite the presentation of evidence in order to ensure this trial concluded in a timely manner pursuant to this Court’s repeated requests. 50. In Carroll v. State, 327 So.2d 881 (Fla. 34 DCA 1976), the trial court held defense counsel in criminal contempt after defense counsel had asked potential 17 jurors questions such as “whether they wanted to sock it to the insurance company and whether they had dealings with people who were trying to get money to which they were not entitled” during voir dire. Jd. On appeal, the court reversed after reviewing the record and finding that the defense counsel had not been specifically warned or cautioned by the trial court that if he continued with the same manner of questioning he would be found in criminal contempt. /d. Here, the Court never advised Ms. Tejeder that she would be held in contempt for approaching the Elmo and helping with exhibits. 51 In Breslin v. State, 456 So.2d 1201 (Fla. 3d DCA 1984), the court upheld a trial courts adjudication of criminal contempt entered after defense counsel made grossly improper remarks made repeatedly during trial despite the trial court’s specific warnings to the contrary given by the judge. 52. Like the facts in Carroll, but unlike those found in Breslin, in the instant matter Ms. Tejedor was not given specific warnings prohibiting her from operating or assisting with the ELMO. Accordingly, the Court’s Order of contempt should be vacated as the evidence in this matter is insufficient to support a finding of direct criminal contempt. There was no Instruction Given that Ms. Tejedor was not AHowed to Approach the Elmo. 53. The second requirement of Rule 3.830 mandates that a court must provide notice of the charge of contempt and the facts on which the charge is based. McRoy v. State, 31 So.3d 273 (Fla. Sth DCA 2010). 54. In reversing the lower court, the appellate court further found that there was not sufficient evidence to support a finding of contempt beyond a reasonable doubt 18 where the contemptor’s actions, although annoying, embarrassed, hindered, or obstructed the court’s administration of justice or lessened the lower court’s authority or dignity. McRoy v. State, 31 So.3d 273 (Fla. Sth DCA 2010)(citing Gidden vy. State, 613 So.2d 457, 460 (Fla. 1993)). 55 Similar to the court in McRoy, the Court in this matter failed to provide a specific oral or written recital of the underlying facts supporting the Courts finding of contempt. The Order does not reflect any notice that Ms. Tejedor could not approach the Elmo to assist with exhibits. Accordingly, on this basis alone the Court’s Order of Contempt must be vacated. The Court’s Criminal Contempt Order Must be Vacated Where the Court Failed to Provide the Accused an Opportunity to be Heard in Violation of Due Process 56. Rule 3.830 provides that the accused be given the opportunity to be heard and to present mitigating evidence prior to adjudication. Ms. Tejedor was deprived of this constitutional right. Despite Mr. Diez-Arguelles’ repeated requests for a hearing, the Honorable judge ruled that Ms. Tejedor was not entitled to a hearing on direct criminal contempt. 57 Uniformly, the First, Second, Third, Fourth, and Fifth district courts of appeal have reverse both the judgment and sentence upon finding error in a direct contempt proceeding for the failure to provide an opportunity to present evidence of excusing or mitigating circumstances. See, e.g., McCrimager v. State, 919 So.2d 673, 674 (Fla. 1st DCA 2006); Rhoads v. State, 817 So.2d 1089, 1092 (Fla. 2d DCA 2002); Sanjuro v. State, 677 So.2d 965, 966 (Fla. 3d DCA 1996); Bouie y. State, 784 So.2d 521, 523 (Fla. 4th DCA 2001); Hutcheson v. State, 903 So.2d 1060 (Fla. Sth DCA 2005). 19 58. Merely asking a defendant facing a charge of direct criminal contempt if he wishes to explain his behavior does not meet the procedural requirement that he be given an opportunity to present evidence. Searcy v. State, 971 So.2d 1008 (Fla. 3d DCA 2008), review denied 988 So.2d 622. 59 In Hutcheson, a trial court found a witness in direct criminal contempt after the witness gave contradictory testimony during a probation revocation proceeding. Hutcheson, 903 So.2d at 1061. In response, the witness raised numerous challenges to the trial court, including that the trial court had not complied with rule 3.830. On appeal, the court found that the witness was “asked why he should not be held in contempt, and was then cut off when he began to offer an explanation for that statement, with the court announcing it was finding him in contempt.” Jd. at 1062. The appellate court reversed, holding that the lower court did not comport with the procedural due process requirements of rule 3.830. /d. In the instant case, Mr. Diez-Arguelles was cut off when he attempted to request a hearing to present mitigating evidence. Additionally, the court denied Mr. Diez- Arguelles’ request to lay a sufficient record. 60. Ms. Tejedor was not given an opportunity to present evidence of excusing or mitigating circumstances, or to discuss why the trial judge should or should not impose a particular sentence, contrary to rule 3.830. Keeton v. Bryant, App. 5 Dist., 877 So.2d 922 (Fla. Sth DCA 2004)( “The provisions of rule 3.830 define the essence of due process in criminal contempt proceedings and must be scrupulously followed.); Davis v. State, 575 So.2d 288 (Fla. 3d DCA 1991)(The court adjudicated defendant guilty of direct criminal contempt and pronounced 20 sentence, over defense counsel's objection that defendant was entitled to a hearing. This did not constitute sufficient notice and opportunity to present evidence); Royster v. State, 668 So.2d 346 (Fla. 1st DCA 1996)(Court held that defendant was improperly held in direct criminal contempt, where trial court failed to inquire as to whether defendant had any cause to show why he should not be adjudicated guilty of contempt and failed to give defendant opportunity to present excusing or mitigating evidence, as required by the Rules of Criminal Procedure); Nunes v. State, 434 So.2d 366 (Fla. 4th DCA 1983)(Where court did not sufficiently advise defendant as to what he was being held in contempt for, and court denied defendant's request for evidentiary hearing on matter, court erred in finding defendant guilty of direct criminal contempt); Patz v. State, 691 So.2d 66(Fla. 3d DCA 1997)(Failure to afford contemnor opportunity to present evidence to mitigate his sentence was fatal to adjudication and sentence for contempt of court). 61 Moreover, counsel for Ms. Tejedor, Mr. Diez-Arguelles was not allowed to finish offering a response to the Court’s requests to show cause. 62 Accordingly, this Court should vacate the Order of Contempt, or in the alternative, permit Ms. Tejedor to have a hearing in order to offer mitigating evidence. Counsel’s Conduct Did Not Warrant Finding of Direct Criminal Contempt 63. Ms. Tejedor’s conduct does not evidence an incursion upon the dignity and authority of this Court. 21 64. “The purpose of criminal contempt is ‘to punish assaults or aspersions upon the authority and dignity of a court or judge,’ not to avenge personal affronts.” Smith y. State, 954 So.2d 1191 (Fla. 3d 2007)(quoting Krueger v. State, 351 So.2d 47 (Fla. 3d DCA 1977)). 65 The power to punish for contempt should be cautiously and sparingly exercised. Bryant v. State, 851 So.2d 823 (Fla. 2d DCA 2003). The provocation constituting the basis of contempt “must never be slight, doubtful, or of shifting interpretations... [t]he occasion should be real and necessary, not murky, and not ameliorated in some less formal manner.” Schenck v. State, 645 So.2d 71, 74 (Fla. 4th DCA 1994).“Trial courts ... must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice.” Mann v. State, 476 So. 2d 1369, 1374 (Fla. 2d DCA 1985)(citing Craig v. Harney, 67 S. Ct. 1249, 1255(1947)). Conclusion 66 Ultimately, as a result of failing to comply with the strict procedural requirements this Court has committed error. 67 Furthermore, Plaintiffs have attached the affidavits of Mr. Diez-Arguelles, Mr. Eric Block, Ms. Christina Arguelles, Ms. Alexandra Alligood, and Ms. Kristen Thorn. 68 Based upon the above arguments, this Court should vacate and/or reconsider the Order of Contempt. WHEREFORE Ms. Tejedor respectfully request this Court vacate and/or reconsider their November 8, 2017, Order of Contempt. 22 CERTIFICATE OF SERVICE been furnished I HEREBY CERTIFY that a true and correct copy of the foregoing has ez, Esq, via Florida State e-portal service to Wendy F. Lumish, Esq., and Alina Alonso Rodrigu Gables, FL, Rogelio J. Fontela, Esq., Sh A. Bannon, Two Alahambra Plaza, Suite 800, Coral 0, Tallahassee, FL 32317, and . Block, at Esq., 1591 Summit Lake Drive, Sui eservice@ericblocklaw.com on this lay of November. Carlos 2) elles, Esq. FBN 969 Di ficlles & Tej or Orth Mills Avy Orlando, FL 3289 (407)705-2880, Email: mail heorlandolawyers.com 23 IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA MARCELO DIAZ, as Personal Representative CASE NO: 2008-CA-11228-O of the Estate of HERMINIA DIAZ Plaintiff, Vv. HARINATH SHEELA, M.D.; DIGESTIVE AND LIVER CENTER OF FLORIDA, P.A. Defendants, / AFFIDAVIT OF CARLOS R. DIEZ-ARGUELLES, ESQ. STATE OF FLORIDA COUNTY OF ORANGE Before me, the undersigned authority, Carlos R. Diez-Arguelles, personally appeared, who had been duly sworn, deposes and says: 1. Iam an attorney licensed in the State of Florida and I am in good standing with the Florida bar. I have practiced law for thirty (30) years and I have faced hundreds of judges in varying jurisdictions. I have over thirty (30) years of experience in personal injury, wrongful death, and medical malpractice litigation. I am a board certified civil trial lawyer and recognized among Florida’s top 100 trial lawyers. I am also recognized as an AV rated lawyer and have served on the Board of Directors of the Academy of the Florida Trial Lawyers. Additionally, I served on the Professional Ethics Committee of the Florida Bar as well as the local Grievance Committee of the Ninth Judicial Circuit. I am legal counsel to Plaintiffs in the above-captioned matter. I have personal knowledge of the matters deposed to herein. I have been present in the courtroom for all proceedings concerning the above referenced trial that began on August 21, 2017. At no time during the trial did the Honorable Renee A. Roche hold Mr. Eric Block, Esq., Mr. Roger Fontella, Esq., Ms. Shylie Bannon, Esq., or myself held in contempt. At no time while I have been present in the courtroom has the Honorable Renee Roche ordered or instructed my co-counsel, Maria D. Tejedor, that she was not allowed to approach the Elmo or assist with technology during direct or cross examination. The only order given in the courtroom that was subject to a $500.00 criminal contempt fine was for cross talking, interrupting, and continuing to argue with the court. At no time during this trial did Ms. Tejedor talk loudly at counsel table in the presence of the jury, gesture, gesticulate, or make inappropriate facial expressions during witness testimony, speak directly to opposing counsel in the presence of the Court. These comments by the judge were directed to myself, and not Ms. Tejedor. At no time did Ms. Tejedor talk loudly at counsel table in the presence of the jury, gesture, gesticulate, or make inappropriate facial expressions during witness testimony, speak directly to opposing counsel in the presence of the Court or argue with the Court prior to or at the time the Court held Ms. Tejedor in contempt. In fact, Ms. Tejedor never spoke at all when she approached the Elmo to assist Mr. Block with an exhibit. 10 After observing Ms. Tejedor approach the Elmo, Mr. Fontella made a “two attorney” objection. Immediately, following the objection, the Honorable Renee Roche commenced a proceeding for d