ABRAHAM RIESS, APPELLANT,
v.
AARON GOLDMAN AND KAY SWEET, D/B/A GOLDMAN & SWEET, APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Abraham Riess appealed a summary judgment entered against him in a landlord-tenant dispute over unpaid rental installments. The trial court struck his answer and counterclaim as a sanction for failure to appear at a deposition, then awarded attorney's fees without jury submission, which the appellate court found to be procedural error.
The court reversed the summary judgment and remanded, holding that before striking pleadings as a discovery sanction, the defendant was entitled to an order directing appearance for deposition and a rule to show cause upon failure to comply. Additionally, the issue of attorney's fees must be determined by a jury when a jury trial is requested, as attorney's fees are not an ordinary item of costs.
“Before the trial court was authorized to take such a serious sanction as striking the defendant's pleadings, the defendant was entitled to an order directing him to appear for the taking of his depositions.”
Establishes the procedural requirement for a rule to show cause before imposing the sanction of striking pleadings.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePlaintiffs sued defendant to recover rental installments under a written lease and sought attorney's fees as provided therein. Defendant answered and …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Constructive Eviction cases and more on FLexlaw
This appeal involves the correctness of a summary judgment entered for the plain*185'tiffs, and the fixing of attorney’s fees by •the court without submitting the issue to :a jury.
The plaintiffs in the trial court sued the defendant to recover rental installments due under a written lease, together with •costs and attorney’s fees as provided in the lease. The defendant answered and counterclaimed for constructive eviction and •sought damages. Issue being joined, the plaintiffs noticed the defendant for taking This depositions. The defendant moved for a protective order. Upon the hearing on the motion, the court entered the following •order:
J|< ijs ‡ *
'“ORDERED AND ADJUDGED:
“1. That the Motion for Protective Order be taken under advisement, and that no Order of this Court will be entered In connection therewith for ten (10) days from the date of this Order.
£ ‡ ‡ % &
“3. That Plaintiffs may re-set the scheduled deposition, and if Defendant fails to appear personally or with his physician, Plaintiffs may move herein for a Ride requiring the Defendant to show cause before this Court, on a date and at a time certain, why said Defendant should not submit himself for the taking of said deposition, then and there to appear with his physician before the undersigned, in default of which this Court may enter such Orders, including the striking of the Counterclaim, as to the Court seems reasonable and proper under the circumstances.” [emphasis added]
Sjc 5}i * sfc * £
Thereafter, the plaintiffs duly noticed the talcing of depositions; the defendant failed to appear, his counsel submitting a letter that he was physically unable to do so. Notwithstanding the prior order of the court, as quoted above, and without issuing a rule to show cause, the trial court struck the answer and counterclaim and rendered a summary judgment as to the rental installments and proceeded to determine the amount of attorney’s fees without submitting the matter to a jury, as requested in the answer. We find error and reverse.
Before the trial court was authorized to take such a serious sanction as striking the defendant’s pleadings, the defendant was. entitled to an order directing him to appear for the taking of his depositions. See: State Road Department v. Hufford, Fla.App. 1964, 161 So.2d 35; Hyman v. Schwartz, Fla.App. 1965, 177 So.2d 750; Remington Construction Co. v. Hamilton Electric, Inc., Fla.App. 1965, 181 So.2d 183. That was particularly so in the instant case, where the protective order had indicated that in the event of his failure to appear a rule to show cause would be issued. It is also apparent that the issue as to the amount of attorney’s fees should be determined by a jury, as should any other damages arising from breach of contract be determined when a jury trial is requested. Attorney fees, generally, are not an item of cost. See: Ritters Hotel, Inc. v. Sidebotham, 142 Fla. 171, 194 So. 322; Ronlee, Inc v. P. M. Walker Co., Inc., Fla.App.1961, 129 So.2d 175; Sork v. United Benefit Life Insurance Company, Fla.App.1964, 161 So2d 54; 8 Fla.Jur., Costs, § 38; 9 Fla.Jur., Damages, § 77; 25 C.J.S. Damages § 50c, p. 784.
Therefore, the summary judgment here under review is hereby reversed and this cause is remanded to the trial court with instructions to reinstate the answer and counterclaim and for further proceedings.
This opinion is not to be construed as preventing the trial judge from imposing sanctions against the defendant for failure to respond to discovery, even striking his pleadings upon appropriate order for noncompliance.
Reversed and remanded, with directions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Commodore Plaza AT Century 21 Condo. Ass'n, Inc. v. Cohen, 350 So. 2d 502 (Fla. 3d DCA 1977)…erly recoverable as a part of damages in a breach of contract case and, as such, are to be determined by the jury where a case is tried by a jury. Wabash Fire and Casualty Company v. Holloway, 139 So. 2d 145 (Fla. 3rd D.C.A. 1962); Riess v. Goldman, 196 So. 2d 184 (Fla. 3rd D.C.A. 1967); Grayson v. Fishlove, 266 So. 2d 38 (Fla. 3rd D.C.A. 1972); Franklin v. Boyd, 272 So. 2d 191 (Fla. 3rd D.C.A. 1972); Schulman v. Cort Aviation Corporation, 330 So. 2d 114 (Fla. 3rd D.C.A. 1976); Newcombe v. South Florida Busin…
-
Newcombe v. S. Fla. Bus. Negotiators, Inc., 340 So. 2d 1192 (Fla. 2d DCA 1976)…earth of authority as to whether it is proper for the court to award attorney’s fees following a jury verdict. The sole cases we have located on this point are Ronlee, Inc. v. P. M. Walker Co., 129 So. 2d 175 (Fla.3d DCA 1961), and Riess v. Goldman, 196 So. 2d 184 (Fla.3d DCA 1967), both of which hold that such fees must be awarded by the [*1194] jury.1 We agree with the rationale of these cases decided by our sister court. In a jury trial a claim for attorney’s fees predicated upon a provision in the contrac…
-
The Prudential Ins. Co. OF Am. v. Lamm, 218 So. 2d 219 (Fla. 3d DCA 1969)…d, citing State ex rel. Royal Ins. Co. v. Barrs, supra, that attorney’s fees are to be computed in determining the jurisdictional amount of the Civil Court of Record—even though only “reasonable fees” were sought. Cf. Riess v. Goldman, Fla.App.1967, 196 So. 2d 184; and Ortiz v. Ortiz, Fla.App.1967, 208 So. 2d 857. When the trial court determined that the total amount of these judgments would exceed its jurisdictional limits, it should have transferred the cause to the appropriate forum. [See] Henry’s Drive-I…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ritter's Hotel, Inc. v. Sidebothom, 142 Fla. 171 (Fla. 1940)
- Ronlee, Inc. v. P. M. Walker Co., Inc., 129 So. 2d 175 (Fla. 3d DCA 1961)
- Remington Constr. Co., Inc. v. Hamilton Elec., Inc., 181 So. 2d 183 (Fla. 3d DCA 1965)
- State Rd. Dep't of Fla. v. Hufford, 161 So. 2d 35 (Fla. 1st DCA 1964)
- Hyman v. Schwartz, 177 So. 2d 750 (Fla. 3d DCA 1965)
- Busby v. State, 161 So. 2d 54 (Fla. 3d DCA 1964)