DONALD J. SEGUI AND ST. JOSEPH'S BENEVOLENT ALLIANCE, INC., APPELLANTS,
v.
DAVID MARGRILL, APPELLEE
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The Florida District Court of Appeal, Fifth District, granted appellants' motion for sanctions against appellee David Margrill for his failure to appear at court-ordered appellate mediation, imposing attorney's fees and mediator fees totaling $1,484.50.
The court held that sanctions are appropriate for Margrill's failure to appear because a party's actual physical presence at mediation is often critical to its success, and counsel cannot substitute for a party regardless of settlement authority. The court imposed sanctions including reasonable attorney's fees and mediator fees.
[1] A party's failure to appear at court-ordered appellate mediation, without good cause, may result in the imposition of sanctions.
[2] A party's actual presence at mediation is often critical to its success, and counsel, regardless of settlement authority, is not a substitute for the party's attendance.
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Join FLexlaw to unlock all legal intelligence“We required Margrill to attend mediation because a party's actual presence at mediation is often critical to its success. Counsel is clearly not a "party", regardless of whether he or she is given authority to settle by the client.”
Establishes the court's core reasoning for requiring party attendance and rejecting the attorney's substitute attendance argument.
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Join FLexlaw to unlock all legal intelligenceThe court ordered this case to appellate mediation by order dated November 13, 2002, requiring parties with full settlement authority and counsel to a…
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PER CURIAM.
Appellants, Donald J. Sequi and St. Joseph’s Benevolent Alliance, Inc., have filed a motion with this court requesting the imposition of sanctions against appellee, David Margrill, for his failure to appear at court-ordered appellate mediation. Concluding that Margrill’s failure to appear violated this court’s mediation order, we grant the motion.
By order dated November 13, 2002, this court referred this case to appellate mediation. That order specifically stated that “parties with full settlement authority and counsel are required to attend mediation, unless excused from attendance by the mediator. Failure of an attorney or party to appear for a duly scheduled mediation conference or otherwise comply with the appellate mediation program procedures, without good cause, may result in imposition of sanctions by this court ..
Margrill admits he failed to appear for the mediation. Yet, in response to appellants’ request for sanctions, he contends that the imposition of sanctions is not appropriate because his attorney attended the mediation with “full settlement authority.” He further contends that sanctions are not warranted since, during the mediation he could have been contacted at all times by telephone, although he does not contend that he had requested or received permission from this court or the mediator to attend by telephone. We reject these arguments as meritless. We required Margrill to attend mediation because a party’s actual presence at mediation is often critical to its success. Counsel is clearly not a “party”, regardless of whether he or she is given authority to settle by the client.
Appropriate sanctions for a party’s failure to comply with the court’s order include the award of reasonable attorney’s fees and mediator fees. Although the order of referral to mediation does not specifically list the award of attorney’s fees as one possible sanction, no such specific reference is required. See Carbino v. Ward, 801 So. 2d 1028 (Fla. 5th DCA 2001)(award-ing appellate attorney’s fees as a sanction for failure to appear at a mediation, although such fees were not specifically referenced in the sanction rule).
Appellants’ motion for sanctions specifically sought attorney’s fees in the amount of $1,384.50 and mediator fees in the amount of $100.00. Margrill’s response to the motion did not contest the reasonableness of those fees. Accordingly, we hereby impose sanctions in those amounts and direct Margrill to make payment of $1,484.50 to appellants’ counsel within 15 days from the date of this opinion.
MOTION GRANTED.
SAWAYA, PLEUS and ORFINGER, JJ., concur.
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Mash v. Lugo, 49 So. 3d 829 (Fla. 5th DCA 2010)…excuse the failure to attend of the appellees and a representative of their insurer. (By its express terms, subsection (a)(3) excludes an insurer’s outside counsel from being considered the insurance carrier’s representative.) In Segui v. Margrill, 844 So. 2d 820 (Fla. 5th DCA 2003), this court awarded sanctions against a party when only his counsel appeared at mediation, rejecting an argument that his appearance was not necessary because his counsel had full authority to settle. As the court noted: “We requ…
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See Williams v. Udell (9th Cir. Ct. App. Div. 2009)…re a sanction); Corbino v. Ward, 801 So. 2d 1028 (Fla. 5th DCA 2001)(Fla. R. Civ. P. 1.720 mandated imposition of mediator’s costs and attorney’s fees against party who failed to appear at mediation conference without good cause); Segui v. Margrill, 844 So. 2d 820 (Fla. 5th DCA 2003)(granting appellant’s motion for sanctions and imposing mediator’s costs and appellate attorney’s fees where party failed to appear at courtordered appellate mediation conference). Dismissal of a plaintiff’s claim or entry of fina…
Authorities Cited
- Carbino v. Gaylon Earl Ward, 801 So. 2d 1028 (Fla. 5th DCA 2001)