15 Fla. L. Weekly Supp. 981b
Insurance — Personal injury protection — Discovery violation — Failure to pay sanction — Abuse of discretion to impose additional sanction on insurer’s attorney for insurer’s failure to pay sanction for discovery violation without affording attorney notice — Although personal imposition of sanctions on non-party attorneys is not provided for in rule 1.380, courts have inherent authority to impose attorney’s fees against attorneys but should do so only sparingly, cautiously, and upon finding of egregious conduct or action in bad faith — Abuse of discretion to impose sanctions on insurer’s attorney without express finding of bad faith conduct that resulted in unnecessary incurrence of attorney’s fees
MONICA D. BARNES, Appellant, vs. PRO IMAGING, INC., a/a/o LIZ MONESTIME, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 07-6059 CACE 18. L.T. Case No. 06-3967 COCE 49. July 24, 2008. Counsel: Lara J. Edelstein, United Automobile Insurance Company, Office of the General Counsel, Coral Gables. Joseph R. Dawson, Dawson & Finkelstein, LLP, Fort Lauderdale.
OPINION
(JOHN T. LUZZO, J.) THIS CAUSE came before this Court, sitting in its appellate capacity, upon Appellant’s, Monica D. Barnes, (hereafter “Barnes”), timely appeal of the trial court’s order granting Appellee’s, Pro Imaging, Inc., (hereafter “Pro Imaging”) Motion to Compel Payment of Sanctions and for additional Sanctions and Third Motion to Compel Better Answers to Interrogatories. Having considered the Appellant’s Initial brief, the record on appeal, applicable law, and being otherwise fully advised in the premises, this Court opines as follows:
Barnes was the attorney of record representing United Automobile Insurance Company (UAI), the defendant, in the underlying case Pro Imaging, Inc. v. United Automobile Insurance Company, 06-3976 COCE (49). The trial court found Barnes personally responsible for her client’s failure to comply with the court’s January 19, 2007 order in which it imposed monetary sanctions for a discovery violation. In its January 19, 2007 order, the trial court imposed an $800.00 sanction on UAI ordering it to pay within fifteen days of the order. UAI failed to timely submit its payment pursuant to the order and Pro Imaging filed a motion seeking additional sanctions against UAI. Upon receipt of Pro Imaging’s motion, Barnes advised her client, UAI of their failure to make the payment. UAI then issued a check which was received prior to the trial court’s hearing on the appellee’s motions.
At a hearing held on March 16, 2007, the trial court determined that Barnes was responsible for UAI’s failure to timely comply with the court’s January 19, 2007 order and imposed a $1,000 fine on Barnes. At the hearing the trial court questioned Barnes extensively in order to determine whether Barnes was personally responsible or her client. Barnes refused to opine about whom she believed was responsible for the failure; however, she did testify that she had followed company protocol and had advised the client of its obligation, but failed to remind the client as the due date approached.
The standard of review for a court’s imposition of a sanction is abuse of discretion. Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983). Appellant argues that the trial court abused its discretion in imposing a sanction order against Barnes personally where (1) rule 1.380(b) Fla. Civ. P., does not apply to a party’s attorney for a party’s failure to comply with an order, (2) the trial court failed to make an express finding of bad faith conduct and to support it by detailed factual findings described the specific acts of bad faith and (3) due process was violated where there was no notice and an opportunity to be heard as required. This Court addresses the first issue as dispositive.
The imposition of sanctions for discovery violations is governed by Florida Rule of Civil Procedure 1.380. In addition to providing for the imposition of sanctions for discovery violations the rule also provides for additional sanctions for failure to comply with court orders. It is important to the application of this rule that the sanctions are imposed upon a party to the action. The rule is not applicable to non-parties and as such is not applicable to party’s counsel. Rule 1.380(b)(2) authorizes action against “. . .a party or an officer, director, or managing agent of the party”, Fla.R.Civ.P. 1.380(b)(2), or other authorized persons representing the corporation. Thus, the trial court improperly applied rule 1.380 to defendant’s attorney.
The trial court was obligated to determine whether the party against whom sanctions are sought is responsible for the discovery violation. This finding is critical to determining whether or not to impose sanctions on a party. If, as in the present case, the trial court finds that the party is not responsible the trial court simply does not impose sanctions on that party. It is an abuse of its discretion for the trial court to impose such sanctions on another individual or entity that it deems responsible without affording that party proper notice.
Despite the notice issue and that the personal imposition of sanctions on an attorney is not provided for within Fla.R.Civ.P. 1.380 there are circumstances where the trial court may impose such sanctions on attorneys. Florida courts have the inherent authority to impose attorney’s fees against an attorney despite the absence of a specific rule or statute authorizing such an imposition. See Moakley v. Smallwood, 826 So. 2d 221 (Fla. 2002). The imposition of such fees must be done sparingly and cautiously by the court and should be done only upon the finding of egregious conduct or action in bad faith. Id. at 225.
Moakley further states that the court must make an express finding of bad faith conduct that is supported by detailed factual findings. Id. at 227. These factual findings must describe specific acts of bad faith conduct that resulted in the unnecessary incurrence of attorney fees. The trial court’s order and hearing transcript lacks such findings. The general focus of the transcript was a dialogue between the trial court and Barnes in which the trial court attempts to determine fault for the failure to comply with the court’s order. No express findings of fact were made and, as such, the imposition of sanctions upon the attorney was an abuse of discretion.
Based upon the foregoing, the trial court’s order is accordingly REVERSED and REMANDED for further proceedings consistent herewith.
