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Shao ex rel Shao v. HCA Health Services of Tennessee, Inc.

Court of Appeals of Tennessee, Nashville

September 16, 2019

STEVEN SHAO EX REL ELIZABETH SHAO
v.
HCA HEALTH SERVICES OF TENNESSEE, INC. ET AL.

          Session August 13, 2019

          Appeal from the Circuit Court for Davidson County No. 16C2469 Don R. Ash, Senior Judge.

         All claims on the plaintiff's case in chief in this case have been non-suited. This is an appeal only from three orders for sanctions entered against plaintiff's attorney. In the first order, the trial court awarded opposing counsel attorney's fees and prohibited the attorney from making any threatening, insulting, or embarrassing communications regarding opposing counsel. In the second and third orders, the trial court found that the attorney had continued the prohibited conduct, suspending him from the practice of law in the Circuit Courts of Davidson County for a total of 240 days and awarding opposing counsel their attorney's fees. The attorney appealed the three orders. We affirm.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and Remanded

          Brian P. Manookian, Nashville, Tennessee, Pro se. [1]

          C. J Gideon, Jr. and J. Blake Carter, Nashville, Tennessee, for the appellee, HCA Health Services Of Tennessee, Inc. d/b/a Summit Medical Center.

          Phillip North, J. Eric Miles and Matthew J. Buchbinder, Nashville, Tennessee, for the appellees, Toby Smith and Middle Tennessee Pulmonary Associates, PLLC.

          Arnold B. Goldin, J., delivered the opinion of the Court, in which J. Steven Stafford, P.J., W.S., and Carma Dennis McGee, J., joined.

          OPINION

          ARNOLD B. GOLDIN, JUDGE.

         Background and Procedural History

         This appeal arises from a healthcare liability action filed on September 16, 2016, in the Circuit Court of Davidson County (the "trial court"), in which Plaintiff Steven Shao, the surviving husband of Elizabeth Shao, sued Toby Smith, M.D., Middle Tennessee Pulmonary Associates, PLLC, and HCA Health Services of Tennessee, Inc., doing business as Summit Medical Center; however, the only issues before this Court pertain to three orders entered by the trial court that imposed various sanctions against Mr. Shao's counsel, Brian Manookian. In the underlying healthcare liability action, Defendants Dr. Smith and Middle Tennessee Pulmonary Associates, PLLC were originally represented by Nashville attorney Michael Geracioti of the firm Levine, Orr and Geracioti. Several months after the case was filed, Mr. Geracioti unexpectedly passed away on the morning of March 16, 2017. On that same day, at 12:48 PM, Mr. Manookian's partner, Brian Cummings, sent an email to Mr. Geracioti's associate, expressing his condolences and alerting her to outstanding items due in several cases. Then, at 3:58 p.m., on the same day, Messrs. Cummings and Manookian filed a Motion for Default Judgment against Mr. Geracioti's clients, Dr. Smith and Middle Tennessee Pulmonary Associates, PLLC. Four days later, on March 20, 2017, Mr. Manookian sent a letter to Mr. Geracioti's associate, threatening to assert an $8, 000, 000 claim against her clients, her law firm, and the estate of Mr. Geracioti. A hearing was subsequently held, and, on April 24, 2017, the trial court entered an order, denying Messrs. Cummings and Manookian's Motion for Default Judgment. Additionally, the trial court publically reprimanded Messrs. Cummings and Manookian "for conduct that is unbecoming [of] members of the Bar and officers of the court[, ]" stating the following:

This Court is profoundly disappointed in the conduct of plaintiff's counsel and the timing and manner in which the Motion for Default was presented. Being a zealous advocate does not mean that one abandons all sense of professionalism, courtesy and common decency. It is clear that counsel for plaintiff was attempting to gain a tactical advantage by aggressively pursuing the claim for default on the very day of Mr. Geracioti's death[.]

         On August 17, 2017, attorney C.J. Gideon, counsel for Defendant HCA Health Services of Tennessee, mailed a letter to Mr. Manookian setting forth alleged deficiencies in discovery responses. Mr. Manookian responded via email on August 19, 2017. The contents of Mr. Manookian's August 19, 2017 email-which referenced Mr. Gideon's son and daughter-served as the basis for a motion for sanctions against Mr. Manookian, filed by Mr. Gideon on August 24, 2017.[2] The trial court held a hearing on the motion on September 21, 2017 and, on September 28, 2017, Judge Thomas Brothers entered an order sanctioning Mr. Manookian (the "September 2017 Order"). In the September 2017 Order, the trial court found that Mr. Manookian's August 19, 2017 email "can only be construed as a threat against the livelihood of Mr. Gideon's child." The trial court continued: "At a minimum this communication was a thinly veiled threat to embarrass Mr. Gideon, his child, and his family. It can also be viewed as a blatant act of attempted intimidation meant to secure some tactical advantage over opposing counsel." Finding Mr. Manookian's conduct "repellent and shameful[, ]" the trial court prohibited Mr. Manookian "from making any communication to counsel in this case that threatens, insults, disparages, demeans, or embarrasses them and/or their family members" and awarded Mr. Gideon $5, 550.00 in attorney's fees.[3]

         Following Mr. Geracioti's death, Phillip North of the law firm North, Pursell & Ramos, PLC was substituted as counsel of record for Defendants Dr. Smith and Middle Tennessee Pulmonary Associates, PLLC. On June 15, 2018, Mr. North filed a motion for sanctions against Mr. Manookian due to an email sent by the latter to the former on Good Friday, March 30, 2018. The email is reproduced, in part, as follows:

Counsel,
I am E-Mailing to provide written notice that Plaintiff intends to pursue sworn testimony regarding ex parte statements made by [Judge] Brothers about this case . . . via affidavit from the Honorable Hamilton Gayden.
In addition . . . Plaintiff does not oppose:
1. Judge Gayden disclosing his actual experience, and resulting opinion, of Phillip North's reputation for truthfulness, honesty and fidelity; and/or
2. Judge Gayden disclosing his actual experience, and resulting opinion, on Phillip North's propensity for dishonesty, exaggeration, and falsehood.

         I hope you have a wonderful and relaxing Easter weekend.

         In the email, Mr. Manookian copied all counsel in the case as well as the Special Master for the Circuit Courts of Davidson County. After Mr. North filed the June 15, 2018 motion for sanctions, Mr. Manookian sent another email to Mr. North on June 22, 2018, wherein he alleged that Mr. North had falsified the certificate of service on the June 15, 2018 motion for sanctions.[4] This email served as the basis for another motion for sanctions against Mr. Manookian, filed by Mr. North on July 20, 2018. On July 31, 2018, the Tennessee Supreme Court ordered that the June 15 and July 20, 2018 motions for sanctions be heard by Senior Judge Don Ash.[5] On September 28, 2018, Judge Ash granted both motions, suspending Mr. Manookian from the practice of law in Davidson County Circuit Courts for 60 days and awarding Mr. North his attorney's fees in the amount of $37, 164.00 (the "September 2018 Order").[6] Additionally, the trial court ordered Mr. Manookian to complete an ethics course "focusing on civility and professionalism." Regarding Mr. Manookian's civility and professionalism, the trial court stated the following:

Sadly, Mr. Manookian has traveled down a path where he has chosen to continue verbal attacks on opposing counsel rather than to follow a judge's explicit orders. He has been reprimanded by a court, instructed to stop this unprofessional behavior, and forced to pay attorney fees for his actions; yet, he continues this vendetta. His actions not only damage his ...

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