Jorge Rodriguez, et al v. Dinette Showcase, Inc.

Filing

Opinion issued by court as to Appellant William Nicholas Charouhis. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. Motion for sanctions filed by Appellee Pebb Enterprises Shoppes of Delray Ltd is GRANTED. [6950298-2].

Case: 13-11551

Date Filed: 02/06/2014

Page: 1 of 6

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-11551
Non-Argument Calendar
________________________
D.C. Docket No. 9:00-cv-08552-KLR
ASSOCIATION FOR DISABLED
AMERICANS, INC., et al.,
Plaintiffs,
JORGE LUIS RODRIGUEZ,
WILLIAM NICHOLAS CHAROUHIS,
Plaintiffs - Appellants,
v.
PEBB ENTERPRISES SHOPS OF DELRAY
LTD.
DINETTE SHOWCASE, INC.,
d.b.a. Shoppes of Delray and Dinnette Lady,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 6, 2014)

Case: 13-11551

Date Filed: 02/06/2014

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Before MARTIN, KRAVITCH and ANDERSON, Circuit Judges.
PER CURIAM:
William Nicholas Charouhis, Esq., plaintiffs’ counsel in the underlying
Americans with Disabilities Act (ADA) suit, appeals the district court’s order
imposing sanctions against him. Appellee Pebb Enterprises Shops of Delray Ltd.
(Pebb) has filed a separate motion in this court for sanctions. After thorough
review, we affirm the district court’s sanctions order and impose further sanctions
for Charouhis’s conduct in this appeal.
I.
In 2000, Charouhis represented Jorge Luis Rodriguez in a suit against
Dinette Showcase, Inc. (Dinette), and Pebb, contending there were several ADA
violations at a shopping center Pebb owned in Delray Beach, Florida. Charouhis
properly served Dinette, but never served Pebb. The district court issued a January
2001 order to show cause as to why the claim against Pebb should not be
dismissed. When Charouhis failed to respond or serve Pebb, the district court
dismissed the complaint as to Pebb.
About a year later, on April 26, 2002, the ADA plaintiffs and Dinette
entered into a settlement agreement and submitted to the court a Joint Notice of
Settlement and Request for Dismissal. The district court accordingly dismissed the
remainder of the case on May 6 but retained jurisdiction to enforce the Dinette
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settlement agreement. On May 24, Pebb entered into a separate agreement with
the plaintiffs, agreeing to remedy certain ADA violations on Pebb’s property. The
agreement was not filed with the district court because Pebb was no longer a party
to the litigation.
On August 30, 2011, Charouhis contacted Pebb’s counsel of record claiming
Pebb had failed to comply with its agreement and threatening to file suit to enforce
it. Pebb’s counsel responded to Charouhis, and the two ultimately agreed to meet
at some unspecified date in the future to address the problems Charouhis identified.
Thereafter, however, communication between the parties ceased. Instead of
continuing negotiations, Charouhis filed a Motion for Court Enforcement of
Stipulation for Settlement and Request for Evidentiary Hearing. In the motion,
Charouhis represented falsely that Pebb was a party to the Dinette settlement that
resulted in the court’s May 6, 2002, entry of dismissal in which it retained
jurisdiction to enforce the settlement agreement. When Pebb failed to respond
(because it had never been served in the matter), the court issued an order to show
cause why the motion should not be granted by default. Pebb’s counsel never
received either Charouhis’s motion or the show-cause order.
After the district court entered its order to show cause, Charouhis filed a
sworn declaration in which he again represented that Pebb was a party to the
underlying ADA case. Hearing nothing from Pebb, the court entered a default
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judgment on January 10, 2012, consisting of $178,080.62 in damages, attorneys’
fees, and costs. Thereafter, Charouhis obtained a writ of garnishment and a freeze
on Pebb’s operating account.
Pebb’s counsel, stating he first learned of the proceedings when Pebb
discovered its bank account was frozen, contacted Charouhis and explained that he
never received the new filings. Pebb’s counsel demanded that Charouhis
voluntarily move to vacate the judgment and writ of garnishment, but Charouhis
refused. As a result, Pebb filed a motion to vacate the judgment and garnishment,
along with a motion for sanctions. The district court granted the motion to vacate.
After permitting Charouhis time to respond and conducting a hearing on the
motion for sanctions (that was twice rescheduled at Charouhis’s request), the court
granted the motion. Charouhis appeals.
II.
On appeal, Charouhis contends the district court failed to make the requisite
bad-faith finding before imposing sanctions under its inherent authority. We
review a district court’s imposition of sanctions pursuant to its inherent powers for
an abuse of discretion. Kornhauser v. Comm’r of Soc. Sec., 685 F.3d 1254, 1258
(11th Cir. 2012). “This means that unless we find that the district court has made a
clear error of judgment, or has applied the wrong legal standard, we will not
disturb its decision.” Id.
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“Invocation of a court’s inherent power requires a finding of bad faith.” In
re Moz, 65 F.3d 1567, 1575 (11th Cir. 1995). Here, although the court could have
been more detailed in its analysis, the transcript of the sanctions hearing shows it
made a finding of bad faith “based upon a whole history of wrongdoing in this
court and in the Middle District” of Florida. Throughout the hearing, the court
explained that Charouhis either lied to the court or recklessly failed to investigate
facts he asserted or that were essential to the legal positions he took. And, when
Pebb filed a motion for sanctions, Charouhis repeatedly delayed a hearing on the
matter. Pebb’s counsel also pointed out – and the court acknowledged – that
Charouhis has a documented history of misconduct in Florida federal courts.
Together, these findings support the district court’s imposition of sanctions against
Charouhis. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (stating that
sanctions are appropriate “when a party shows bad faith by delaying or disrupting”
proceedings and noting that the “power [to punish] reaches both conduct before the
court and that beyond the court’s confines,” including “disobedience to the orders
of the Judiciary, regardless of whether such disobedience interfered with the
conduct of the” proceedings before a particular court). 1
III.

1

Charouhis also contends Judge Ryskamp must recuse himself from any further proceedings on
remand. Because there is no need for remand, however, we do not address this argument.
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After Charouhis filed his brief in this appeal, Pebb filed a motion for
sanctions against Charouhis and his law firm, William Nicholas Charouhis &
Associates, P.A. We agree with Pebb that Charouhis’s brief is rife with deliberate
misrepresentations of the facts. Although we generally afford parties significant
latitude in crafting appellate briefs, we cannot countenance such intentional,
misleading statements. Accordingly, Pebb’s motion for sanctions pursuant to
Federal Rule of Appellate Procedure 38 and Eleventh Circuit Rule 27-4 is
GRANTED. Pebb is ordered to submit an accounting of costs incurred, including
attorneys’ fees, in pursuing this appeal within 21 days of the date of this order.
Thereafter, Charouhis will have 10 days from the date of Pebb’s submission to
contest the reasonableness of the amounts Pebb seeks. The court will then issue an
award of single costs and fees to Pebb by separate order.
AFFIRMED WITH DIRECTIONS.

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