Charles D. Ogden d/b/a East Coast Countertops and All Wood Cabinets, Appellant(s), v. Sharon DiFelice, Appellee(s). (2025)

BY ORDER OF THE COURT:

SANCTIONS ORDER

Pursuant to an Order to Show Cause dated May 29, 2025, a hearing was held before this Court on June 11, 2025, to determine whether sanctions should be imposed against Attorney Jason L. Harr, Florida Bar No. 0194336, of Daytona Beach, Florida, for filing frivolous briefs and pursuing a frivolous appeal. Following an earlier Order to Show Cause in this case dated April 25, 2025, Attorney Harr had filed a written response that reiterated arguments that this Court previously determined to be frivolous positions that were not factually or legally supportable, in which he argued that his briefs and the appeal were not frivolous.

In summary, this Court determined that Attorney Harr's claim below and on appeal--that Appellee had sued the wrong defendant, Charles D. Ogden--was completely at odds with the answer filed on behalf of Ogden, in which Ogden admitted that he had entered into a contract with Appellee and had been paid to remodel Appellee's kitchen. Appellee sued Ogden alleging that the remodeling job was poorly done and resulted in a breach of their written contract. Final judgment was entered in Appellee's favor following a bench trial.

Attorney Harr was not trial counsel but was retained after the time to appeal the final judgment had expired. Attorney Harr filed a motion to set aside the final judgment, claiming that Appellee never entered into a contract with Charles D. Ogden, despite Ogden's admission in his answer and the fact that Ogden never raised any such issue in any pleading, or during his attendance and personal participation at the bench trial that took place. The trial court denied the motion to set aside the judgment. Attorney Harr appealed the denial of that motion to this Court, where he persisted with his same unsupportable arguments.

At the June 11, 2025 hearing, Attorney Harr appeared and participated both personally and through his retained counsel. Counsel for Appellee appeared in person and participated in the hearing.

At the outset of the hearing, the Court inquired of Attorney Harr and his counsel whether they would now concede that the briefs filed and the appeal pursued by Attorney Harr were indeed frivolous. Both Attorney Harr and his counsel conceded unequivocally that the briefs and appeal were completely frivolous. Attorney Harr admitted that he based the arguments in his brief on what his client related, rather than a proper review of the record. This Court accepted the concession and advised that it was not going to base any consideration of sanctions on what took place in the trial court.

Attorney Harr read a statement to the Court during this hearing in which he apologized to all concerned, accepted full responsibility, advised that he had taken several continuing legal education courses in the days just before the hearing, and said that he had offered to refund his fee to his client. In lieu of a referral to The Florida Bar, his counsel suggested that perhaps Attorney Harr could voluntarily perform community service by doing pro bono legal services through the local legal aid society.

While we accept Attorney Harr's apology and acknowledge that taking CLE courses regarding ethics and appellate procedure is a step in the right direction, we have determined that certain sanctions are called for.

First, Attorney Harr is ordered to pay the reasonable attorney's fees and costs incurred by Appellee in this appeal and to provide proof of payment to this Court. If Attorney Harr and Appellee can agree on an amount for those fees and costs, written proof of payment shall be filed by Attorney Harr with this Court within thirty (30) days of this order. If the parties cannot agree on an amount, the matter is hereby remanded and shall be submitted to the trial court to determine that issue following proper notice and hearing. In that event, written proof of payment shall be filed by Attorney Harr with this Court within thirty (30) days of the written order setting Appellee's fees and costs.

Second, Attorney Harr is ordered to pay $100.00 (one hundred dollars) as a fine or sanction to the Clerk of this Court within thirty (30) days from the date of this Order.

Third, this Order is a public acknowledgement that Attorney Harr filed frivolous briefs and pursued a frivolous appeal which had absolutely no factual or legal support, and which contained statements of fact that were at odds with the pleadings and the record.

Fourth, Attorney Harr is hereby referred to The Florida Bar for the purpose of conducting further inquiry and taking such action, if any, as The Florida Bar deems appropriate. The Clerk of this Court is directed to forward to The Florida Bar a copy of the Briefs, Appendix to the Initial Brief, Opinion, Orders to Show Cause, Response to Order to Show Cause, the link to the recording on YouTube of the June 11, 2025, hearing before this Court, and a copy of this Sanctions Order.

I fully agree that sanctions are necessary in this case. Those sanctions should include the payment of reasonable attorney's fees and costs and a $100 fine. They should also include a public acknowledgement that Attorney Harr filed a frivolous appeal. But I would not refer Attorney Harr to The Florida Bar.

I hereby certify that the foregoing is (a true copy of) the original Court order.

JAY, J., concurring in part and dissenting in part.