B. STEVE BIAS, APPELLANT,
v.
ARTHUR TROLLINGER; FLORIDA POLICE BENEVOLENT ASSOCIATION, A NONPROFIT CORPORATION; BROWARD COUNTY POLICE BENEVOLENT ASSOCIATION, A NONPROFIT CORPORATION; CHARLES J. MCDONALD, GILBERT J. FRAZIER AND THOMAS F. PANZA, APPELLEES
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Appellant failed to appear for a deposition in North Carolina despite proper notice. The lower court imposed attorney's fees and costs as sanctions. The appellate court reversed, finding the court abused its discretion because a subsequent court order superseded the original notice by requiring only "reasonable agreement of counsel" before proceeding.
The court reversed the sanctions order, finding that the September 18, 1980 order requiring agreement of counsel superseded the prior notice setting a specific date and time. Appellant was entitled to rely on the court order and consider the earlier notice cancelled. Under these circumstances, imposing sanctions was an abuse of discretion.
[1] A court may assess attorney's fees and costs against a party as a sanction for failing to appear for a deposition after receiving proper notice, unless the failure is jus…
[2] A subsequent court order requiring a deposition to be taken at a time reasonably agreed upon by counsel supersedes a prior notice setting a specific date, time, and place…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“assessment of costs and attorneys' fees against a party who fails to appear for the taking of his deposition after being served with a proper notice is appropriate "unless the court finds that the failure was justified...."”
Establishes the legal standard for imposing sanctions under Florida Rule of Civil Procedure 1.380(d)
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellant Bias, a party to litigation, lived in North Carolina. On September 12, 1980, the court appointed a commissioner to take Bias's deposition in…
The full statement of facts, procedural history, and disposition for this case are member content.
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HERSEY, Judge.
This appeal raises the question of the propriety of an order assessing attorney’s fee^ and costs against appellant as a sanction for his failure to appear for deposition after notice.
It is clear that assessment of costs and attorneys’ fees against a party who fails to appear for the taking of his deposition after being served with a proper notice is appropriate “unless the court finds that the failure was justified....”, Fla.R.Civ.P. 1.380(d).
Whether justification is shown by the facts of this case is the issue on appeal.
Appellant, a party to this litigation, lived in North Carolina. Appellees obtained an order dated September 12, 1980, appointing a commissioner to take appellant’s deposition in Charlotte, North Carolina. On September 16, 1980, appellees mailed to all counsel of record a notice indicating that appellant’s deposition was to be taken on October 3, Í980. Thereafter appellees appeared ex parte before the court and obtained an order dated September 18, 1980, requiring appellant to appear for the taking of his deposition “at a time reasonably agreed upon by counsel.”
According to a recital in appellees’ Motion to Compel and Impose Sanctions:
This court previously entered an order requiring him to appear in his home county at a reasonable time; the plaintiff’s attorney, along with several other attorneys, travelled from South Florida to Charlotte, North Carolina at the appointed and scheduled time, and Mr. Bias failed to appear. The court, after hearing, entered an order which included the following:
1. The Notice to Impose Sanctions as to attorney’s fees and costs re the aborted deposition of defendant, Steve Bias, is granted to the extent that each party making an appearance at said scheduled deposition shall recover one-half of attorneys fees and costs incurred as a result of making the appearance.
Implicit in the court’s holding is a finding that counsel were equally at fault.
Appellant’s position is that the order of September 18, 1980, established that the deposition would be taken only after agreement of counsel, thereby superceding the prior notice setting a date, time and place. We agree. Appellant was entitled to rely on the court order and to consider the earlier notice cancelled. Under the circumstances it was an abuse of discretion to impose sanctions. We therefore vacate that portion of the order doing so and remand the cause for further proceedings.
REVERSED AND REMANDED.
DOWNEY and MOORE, JJ., concur.