Case: Phyllis Steinberg v. Winn-Dixie Stores

Case No.: 4D13-619

Date: Aug. 28, 2013

Case type: Civil practice, appeals, torts

Court: Fourth District Court of Appeal

Author of opinion: Judge Carole Y. Taylor

Lawyers for petitioner: Bard D. Rockenbach and Adam J. Richardson, Burlington & Rockenbach, West Palm Beach, and Alan C. Anchell, Law Offices of Alan C. Anchell, Fort Lauderdale

Lawyers for respondents: Helen Ann Hauser, Restani, Dittmar & Hauser, Coral Gables, and James Henry Wyman, Hinshaw & Culbertson, Coral Gables

Panel: Judges Taylor, Robert M. Gross, Melanie G. May

They agreed on at least one point — it’s rarely proper to call opposing counsel as a witness — but the certainty ended there in a case where a lawyer-turned-witness was disqualified for what he heard during his pre-suit investigation.

Attorneys on each side of a lawsuit never agree on everything. It’s the nature of the adversarial system. Less often will a successor trial judge significantly deviate from the course charted by a predecessor. If it does happen, odds are it won’t be on the court’s own motion.

Same goes for an appellate court that effectively reverses itself, first denying a petition for certiorari, only to grant a motion for rehearing less than two months later.

It all happened in Phyllis Steinberg’s case.

She sued Winn-Dixie Stores Inc. in 2009 after breaking her tibia and shoulder outside of one of its supermarkets. She claimed she tripped and fell on an access ramp on holes left exposed when a wobbly railing was removed.

Steinberg also sued the property owner, G&I VI South Florida Portfolio SPE LLC, and the property manager, Equity One Realty & Management FL Inc. Winn-Dixie filed cross-claims against G&I.

The details of who removed the rail, when it was removed and who was informed about its removal are in dispute — details critical for a jury to apportion fault among the defendants upon finding negligence.

Steinberg retained Fort Lauderdale attorney Alan C. Anchell. The former defense lawyer hired an architect, his brother Bruce Anchell, to investigate the case before filing suit. They visited the store a few days after the incident to inspect the property. Store manager Reggie Rigaud spoke with Alan Anchell while Bruce Anchell took notes.

During their depositions, Rigaud and Bruce Anchell offered different versions of the conversation. Alan Anchell indicated he was present when Rigaud made the unfavorable statements that his brother described during deposition.

The previous judge allowed the defendants, over objection, to take Alan Anchell’s deposition but denied Winn-Dixie’s motion to disqualify him from representing Steinberg.

In October 2011, the case was designated complex and transferred to a new division where the successor judge revisited the disqualification issue at two hearings. When trial counsel for G&I and Equity One indicated Alan Anchell would be called as a witness, Winn-Dixie’s argued to exclude his testimony.

The pivotal order came in January.

“He cannot argue his own credibility issues before the finder of fact and at the same time represent his client under rules promulgated by The Florida Bar. As distasteful as it is for Mr. Anchell to be disqualified, it is equally distasteful for the court to have to enter this order. The orderly administration of justice always has to prevail.”

The order allowed Anchell to stay on the case but disqualified him from participating in the trial.

At that point, he brought in Burlington & Rockenbach. Partner Bard D. Rockenbach and associate Adam J. Richardson were successful in persuading the Fourth DCA to quash the disqualification order.

Rockenbach said: “The relationship between a client and an attorney is very personal, and Florida courts will protect that relationship absent very extraordinary circumstances. Those circumstances did not exist in this case.”

Richardson added, “The Fourth District has ensured that an attorney’s decision to investigate his client’s case can’t be used by the other party for mere tactical benefit.”

On appeal, Winn-Dixie responded to the petition with a confession of error, leaving the heavy lifting to Helen Ann Hauser, a partner with Restani, Dittmar & Hauser in Coral Gables.

One of her arguments relied on the tipsy coachman rule, providing the court with an option to deny the petition under a different rationale than the trial court’s.

While Steinberg’s attorney focused on a Bar rule dealing “where ‘the lawyer is likely to be a necessary witness on behalf of the client,’ an even more compelling basis for Anchell’s disqualification was the longstanding principle that, where the attorney will be a witness at trial on a significant issue and his testimony is likely to be adverse to the client’s position, disqualification is mandated,” Hauser argued in her response brief.

The Fourth DCA denied Steinberg’s petition without explanation June 7.

Steinberg asked for rehearing. Her attorneys suggested the court misapprehended two points of law limiting the circumstances in which a trial court can disqualify: when the lawyer is likely to be a necessary witness on behalf of the client and when the lawyer is likely to provide testimony that is adverse to the client.

Taylor wrote, “Steinberg does not intend to call her trial counsel as a witness on her behalf. Moreover, he is not a necessary witness. Essentially, the same facts can be elicited at trial from the testimony of the private investigator, who was present when the store manager was interviewed.”

Likewise, the court did not see Anchell’s anticipated testimony as sufficiently adverse to his client’s interests. G&I and Equity One argued his testimony would establish Winn-Dixie’s primary responsibility, undermining Steinberg’s negligence allegations against them.

With the disqualification question resolved, the case comes alive again in Broward Circuit Court. Much of the discovery is complete, but no trial date has been set. Hauser said G&I and Equity One still intend to call Anchell as a witness when the time comes.

Anchell hopes the clarification in the law sends a message.

“It’s important for lawyers on both sides to go out there and investigate their cases as quickly as possible and understand the implications of inspections,” he said.

That’s squares with the Florida Supreme Court’s comment on the rule requiring meritorious claims and contentions.

“What is required of lawyers … is that they inform themselves about the facts of their clients’ cases and the applicable law and determine that they can make good faith arguments in support of their clients’ positions.”