10 Fla. L. Weekly Supp. 974a
Civil procedure — Discovery — Failure to comply — Sanctions — Due process — Error to deny motion for sanctions which related to post-judgment discovery violations without affording movant an opportunity to be heard
WILLIAM MAHERS, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee. Circuit Court, 12th Judicial Circuit (Appellate) in and for Sarasota County. Case No. 2000-CA-12007-NC. L.C. Case No. 96-CC-1326-NC. September 11, 2003. Appeal from the Sarasota County Court, Judith M. Goldman, Judge. Counsel: O. Perry Tanksley, Sarasota, for Appellant. Michael C. Clarke, Reynolds & Stowell, P.A., St. Petersburg, for Appellee.
(TITUS, Judge.) This case is before the court on an appeal of the Order on Plaintiff’s Motion for Fees and Costs for Failure to Admit and for Failure to Make Discovery (the “Order”) entered by the Sarasota County Court. The Order denied the relief sought by appellant/plaintiff Mahers. The court has carefully reviewed the briefs and the record, has heard the arguments of counsel, and is otherwise duly advised in the premises.
In the lower court proceeding, Mahers filed Plaintiff’s Motion for Fees and Costs for Failure to Admit and for Failure to Make Discovery (the “Motion”) in order to sanction Allstate Insurance Company (“Allstate”) pursuant to Florida Rule of Civil Procedure 1.380(c). Mahers’s Motion relates to discovery violations which occurred in the course of pursuing his claim for attorney’s fees and costs after the Final Judgment on the merits was entered. The Motion was filed after the court entered the Final Judgment on Fees and Costs. The court entered the Order denying the Motion without a hearing and stated “the Court hereby finds that it entered its Final Judgment on Fees and Costs on July 14, 2000, recorded July 17, 2000. . .”
Mahers argues that the procedure that the court followed was a denial of due process because he did not have the opportunity to present and argue the merits of his claim to entitlement of an award of attorney’s fees and costs pursuant to Rule 1.380(c). Further, Mahers argues that the hearing which led to the Final Judgment on Fees and Costs was for fees and costs incurred in pursuit of the Final Judgment on the merits, not the Motion seeking sanctions for post-judgment discovery violations. Upon due consideration, this court agrees that the lower court erred in that it denied due process to Mahers by denying the Motion without giving Mahers an opportunity to be heard. It is therefore
ORDERED AND ADJUDGED that the Order is hereby reversed and the case is remanded to the lower court for proceedings consistent with this opinion.
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