12 Fla. L. Weekly Supp. 667a
Civil procedure — Discovery — Depositions — Non-party witness — Failure to appear based on communication from opposing counsel’s office advising witness that she did not need to appear — Sanctions — Attorney’s fees and costs incurred as result of bad faith conduct
ISOMED DIAGNOSTICS CORPORATION, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 6th Judicial Circuit in and for Pinellas County. Case No. 04-4657-CO-54. March 4, 2005. Karl B. Grube, Judge. Counsel: Michelle Muir, for Plaintiff. Elizabeth E. Andrews, Kingsford & Rock, P.A., Tampa, for Defendant.
ORDER GRANTING DEFENDANT’S AMENDED MOTION FOR SANCTIONS
THIS CAUSE having come on to be heard on February 22, 2005, on Defendant’s Amended Motion for Sanctions, and after having heard argument of counsel, and otherwise being duly advised in the premises, the Court finds as follows:
FINDINGS OF FACT
The Court makes the following findings of fact:
1. The Defendant properly noticed a non-party witness for an August 26, 2004 deposition.
2. That deposition was mutually coordinated with counsel for the Plaintiff, and the non-party witness was served with a subpoena for the proceeding.
3. After the deposition was coordinated, counsel for the Plaintiff filed an Amended Motion to Consolidate for Discovery Purposes Only, Motion for Protective Order, Objection to Exhibit “A” of the Duces Tecum Attachment, and Motion to Appoint a Special Master. That Motion did, in part, address the deposition of this non-party witness.
4. The non-party witness did not file any objections, herself, to the Notice of Taking Deposition and/or the duces tecum portion of that Notice.
5. On August 25, 2004, counsel for Plaintiff sought an emergency hearing on that Motion, which was denied.
6. Neither the non-party witness nor counsel for the Plaintiff appeared on August 26, 2004 for the deposition.
7. The non-party witness has advised that she did not appear based on a communication from the Plaintiff’s counsel’s office, advising her that she did not need to.
CONCLUSIONS OF LAW
8. The Court hereby adopts the foregoing findings of fact to the extent they encompass conclusions of law or mixed findings of law.
9. A trial court possesses the inherent authority to assess attorney’s fees as a sanction against an attorney for the attorney’s bad faith conduct during the course of litigation. See, e.g., Moakley v. Smallwood, 826 So.2d 221 (Fla. 2002).
THEREFORE, it is hereby ORDERED AND ADJUDGED that:
Defendant’s Amended Motion for Sanctions is GRANTED. It is held that the hours and costs found in the Amended Affidavit of Attorney’s Fees and Costs filed by counsel for STATE FARM were reasonable and necessary and related to the conduct. As such, this Court awards STATE FARM a total sum of $907.23 as sanctions for the bad faith conduct.
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