HENRY TIEN v. AKERMAN LLP (and the terminated AKERMAN, SENTERFITT & EIDSON, P.A.)

H
      Third District Court of Appeal
                               State of Florida

                          Opinion filed May 5, 2021.
       Not final until disposition of timely filed motion for rehearing.

                            ________________

                             No. 3D19-0281
                        Lower Tribunal No. 15-7219
                           ________________


                               Henry Tien,
                                  Appellant,

                                     vs.

   Akerman LLP (and the terminated Akerman, Senterfitt &
                      Eidson, P.A.),
                                 Appellees.



     An Appeal from the Circuit Court for Miami-Dade County, Thomas J.
Rebull, Judge.

     Henry Tien, in proper person.

      Kubicki Draper, P.A., and G. William Bissett, Caryn L. Bellus, and
Bretton C. Albrecht, for appellee Akerman LLP.


Before EMAS, C.J., and LINDSEY, and MILLER, JJ.

     LINDSEY, J.
     Pro se Appellant Henry Tien (Plaintiff below) appeals from an order

entering final summary judgment in favor of Appellee Akerman, LLP

(Defendant below). Tien also challenges adverse discovery orders and

orders granting partial summary judgment in favor of Akerman.         Tien’s

underlying tort claims arose from his forcible removal from the SunTrust

International Center in September of 2010. We affirm. 1

     While in the lobby of the SunTrust International Center for a deposition

in an unrelated matter, Henry Tien began wielding a metal chair and shouting

at the opposing counsel in the unrelated matter.        James Bramnick, a

managing partner at Akerman, asked Tien to leave the premises.             A

receptionist then contacted a security guard, William Rivera. Rivera forcibly




1
  Tien filed two prior appeals from the same underlying case. This Court
treated Tien’s appeal from two non-final orders as a petition for writ of
certiorari and denied relief in Tien v. Akerman, LLP, 

286 So. 3d 810

(Fla. 3d
DCA 2019). And this Court per curiam affirmed Tien’s appeal of two final
judgments awarding discovery sanctions in Tien v. Akerman, LLP, 

299 So.
3d

378 (Fla. 3d DCA 2020). Tien also filed a subsequent fourth appeal from
an order granting fees and costs, which this Court dismissed for lack of
jurisdiction. Tien v. Akerman LLP, 

298 So. 3d 604

(Fla. 3d DCA 2019).

                                     2
removed Tien from the building. 2 Rivera was not an Akerman employee, but

rather an employee of Red Coats, Inc. 3

     At issue in this appeal is Tien’s two-count complaint against Akerman.

Count I is labeled “negligent use of excessive force” and alleges Akerman

was negligent for failing to prevent, or was otherwise liable for, Rivera’s

alleged use of excessive force in escorting Tien off the premises. Count II is

labeled “Akerman negligently use (and allowing onto Akerman’s premises),

a security guard” who allegedly had a violent or checkered past. Both counts

seek the same damages: “lost [sic] of future earning capacity”; “pain and

suffering”; “costs of needed, past, present, future medical care, future

medical monitoring, hospital fees, costs of maintenance and upkeep of his

residences in Gables Estates and South Miami”; “costs related to future



2
 Tien sued Rivera in state court. The suit against Rivera was dismissed for
Tien’s failure to timely serve process. Tien filed two appeals in the suit
against Rivera. The first was dismissed as premature. Tien v. Rivera, 

210
So. 3d 679

(Fla. 3d DCA 2016). In Tien v. Rivera, 

259 So. 3d 98

(Fla. 3d
DCA 2018), this Court per curiam affirmed the dismissal of Tien’s action
against Rivera.
3
  Tien sued Red Coats in federal court. Tien asserted Red Coats was liable
for Rivera’s alleged battery. The Red Coats suit culminated in a jury trial.
The jury found Rivera’s actions met the elements of a battery. However, no
liability was imposed against Red Coats because the jury also found Rivera’s
actions were fully justified as being in self-defense and/or in the defense of
others. The verdict and resulting defense judgment were affirmed on appeal.
See Tien v. Red Coats, Inc., 

753 Fed. Appx. 768

(11th Cir. 2018).

                                      3
disabilities that will appear”; “costs related to this lawsuit”; “attorney’s fees

(as damages) and costs in other lawsuits against third parties that Tien had

to file to protect his interests and legal rights resulting from the negligence”;

and “future economic loss from inability to work due to injuries from the

negligence[.]”

      Roughly eighteen months into discovery, Tien served his first discovery

requests in September of 2016. Although trial had not been set, Tien sought

what amounted to comprehensive witness and exhibit lists for trial. Akerman

objected to such requests as premature and improper.            Tien moved to

compel discovery in October 2017, in a motion which sought to overrule

Akerman’s objections to his September 2016 discovery requests. Tien’s

motion to compel sought depositions of multiple Akerman employees, some

of whom were not identified by name, e.g., “[a]ll persons Akerman intends to

call as its witnesses at trial” and “[t]he assistants and paralegals[.]” Akerman

filed a motion for protective order in response. Regarding Bramnick (whom

Tien did specifically identify), Akerman emphasized that Bramnick already

provided Tien a deposition in Tien’s suit against Red Coats.

      The lower court granted Akerman’s motion for protective order and

denied Tien’s motion to compel depositions—except as to Bramnick. In its

January 3, 2018 discovery order (at issue in this appeal), the lower court



                                       4
allowed Tien ten days to show good cause to re-depose Bramnick and to

submit areas of inquiry not already covered by Bramnick’s testimony in the

Red Coats case. Tien wanted to depose Bramnick on issues ranging from

Akerman’s corporate history to the extent of Tien’s claimed injuries. Tien

never sought or obtained a hearing or ruling on his response to the show

cause order, nor did he further pursue a second deposition of Bramnick.

     Tien eventually produced discovery that revealed he sought

$1,275,000.00 for past loss wages and a diminished future earning capacity

up to age 95 for an additional $13,800,000.00. 4 Akerman filed eight motions

for partial summary judgment to address the following categories of

damages being claimed by Tien:

     1.   Past Lost Wages and Future Lost Earning Capacity;
     2.   Attorney’s Fees and Costs;
     3.   Past and Future Transportation Expenses;
     4.   Future Health and Life Insurance Premiums;
     5.   Damages Related to Tien’s Mother’s Real Property;
     6.   Future Personal Expenses;
     7.   Future Medical Expenses; and
     8.   Educational Expenses.




4
  Tien sought damages for, among other things, the following: real estate
taxes on two homes owned by his mother; homeowners’ association fees
and insurance; a new car every six years complete with car insurance; and
sums for contemplated attendance at law school and medical school.

                                     5
       The lower court entered orders granting each of Akerman’s eight

motions for partial summary judgment on Tien’s damages claims. Akerman

also moved for summary judgment regarding liability. Tien filed nothing in

response. Akerman argued the three lawsuits Tien had filed against Red

Coats, Rivera, and Akerman were all based on the exact same 2010 incident

in Akerman’s lobby, relied on the same essential allegations, and sought the

same damages for the same alleged injuries. Akerman contended it could

not be held liable for Rivera’s actions in allegedly injuring Tien when a federal

jury’s verdict had already established that Rivera’s actions were fully

justified.   The lower court granted Akerman’s motion for final summary

judgment on the issue of liability. Tien did not move for rehearing. This

appeal followed.

      Discovery orders are reviewed for abuse of discretion. Am. S. Co. v.

Tinter, Inc., 

565 So. 2d 891

, 892 (Fla. 3d DCA 1990). Orders granting

summary judgment are reviewed de novo. Volusia County v. Aberdeen at

Ormond Beach, L.P., 

760 So. 2d 126

, 130 (Fla. 2000).

       On the record before us, we can find no abuse of discretion with

respect to the lower court’s January 2018 discovery order granting

Akerman’s motion for protective order and denying Tien’s motion to compel

depositions. Tien has failed to provide a transcript of the December 2017



                                       6
hearing during which the subject discovery motions were discussed and has

thus failed to meet his burden to establish reversible error. See Applegate

v. Barnett Bank of Tallahassee, 

377 So. 2d 1150

(Fla. 1979). Notably, this

Court gave Tien roughly nine months to supplement the record, but Tien

never provided hearing transcripts with the documents he eventually filed.

Instead, Tien supplemented with items never filed in the lower court, resulting

in this Court striking those supplemental records in an order entered on

October 9, 2020. Furthermore, Tien never sought nor obtained a hearing or

a ruling on his response to the show cause portion of the January 2018

discovery order and never further pursued a second deposition of Bramnick,

thereby waiving the right to appeal those particular portions of the discovery

order. See P.D.K., Inc. v. Madeline, 

291 So. 3d 134

, 136 (Fla. 4th DCA 2020)

(“To preserve an issue for appeal, a party must obtain a ruling from the trial

court.”).

      Tien argues the lower court erred when it denied his motion to continue

the summary judgment hearing. 5 Because Tien never obtained an order


5
 Tien moved to continue both the special set hearing and the trial. However,
Tien’s motions to continue were neither sworn nor supported by affidavit.
They further failed to identify any outstanding discovery or articulate any
reason supporting a continuance. Instead, Tien relied on his own unsworn,
self-serving assertions that he purportedly needed a minimum of at least six
months to respond to Akerman’s summary judgment motions, and at least
another full year to prepare for trial. The lower court denied Tien’s motion to

                                      7
denying his motion to continue the summary judgment hearing, that issue is

not preserved. See

id. at 136

(explaining that appellate courts “should not

have to guess whether or not a trial court made a ruling”). Thus, we reject

Tien’s argument that the lower court abused its discretion in failing to

continue the hearing.

     Irrespective of Tien’s failure to file a response in opposition to

Akerman’s motion for summary judgment, we find the record before us

affords no legal basis for reversal.       As such, we affirm without further

discussion.   Tien’s arguments in opposition to the lower court’s orders

granting partial summary judgment (regarding his damages) are rendered

moot by our determination that the order granting Akerman’s motion for final

summary judgment was properly entered.

     For the reasons set forth above, we affirm the lower court in all

respects.

     Affirmed.




continue trial. The lower court never specifically ruled on Tien's motion for
continuance of the summary judgment hearing and held the hearing as
scheduled.

                                       8

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