16 Fla. L. Weekly Supp. 626b
Online Reference: FLWSUPP 167SMIT2
Insurance — Personal injury protection — Discovery — Failure to comply — Sanctions — Error to impose discovery sanctions on insurer without prior notice and without making express findings of bad faith or egregious conduct — Order granting discovery sanctions is quashed where trial court found that attorney’s six-month delay in filing motion for relief from admissions that occurred due to neglect of prior counsel did not result in prejudice to medical provider, and two prior discovery violations that occurred under prior counsel could not serve as predicate for invoking court’s inherent authority to sanction improper conduct as deterrent to future misconduct
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Defendant/Petitioner, vs. GOLDEN GLADES OPEN MRI & IMAGING CENTER, L.C. d/b/a FOUNTAIN IMAGING a/a/o WARNELL SMITH, Plaintiffs/Respondents. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 08-62067. L.T. Case No. 05-006262 COCE 49. May 16, 2009. Counsel: Thomas L. Hunker, United Automobile Insurance Company, Office of the General Counsel, Miami. Joseph R. Dawson.
ORDER GRANTING PETITION FOR WRIT OF CERTIORARI
(ROBERT B. CARNEY, J.) THIS CAUSE came before this Court, sitting in its appellate capacity, upon Petitioner, United Automobile Insurance Company’s, (hereafter “UAIC”), timely petition of the trial court’s order awarding discovery sanctions to Respondent, Golden Glades Open MRI Imaging Center, L.C.’s, (hereafter “GGMRI”). Having considered the petition, the record on appeal, applicable law, and being otherwise fully advised in the premises, this Court opines as follows:
FACTS
Petitioner is the defendant in an action to recover personal injury protection (PIP) insurance benefits. On September 25, 2008, Petitioner filed a Motion for Relief from Supplemental Admissions together with Petitioner’s tardy response to Respondent’s request for admissions and an affidavit of Petitioner’s current trial counsel, Orlando Ortiz, Esq. In his affidavit, Ortiz explained that he inherited this case in March 2008 from Petitioner’s prior trial counsel, who had resigned during the time frame that the admissions were due to be filed. Upon review of the file, Ortiz noticed that Petitioner’s prior trial counsel had inadvertently neglected to respond to Respondent’s request for admissions. Accordingly, Ortiz moved for relief from the technical admissions.
Petitioner’s motion was set for hearing on September 26, 2008. Following the hearing, the trial court rendered its order granting Petitioner’s motion for relief from admissions. The trial court determined that Respondent failed to demonstrate prejudice resulting from the tardy response.
In addition, the court, on its own motion, awarded sanctions of $1,250.00 to Respondent. In support of the sanctions award, the court stated that the six months that elapsed between the time that Ortiz took over the file and the time that he filed the motion for relief from admissions was an “inordinate amount of time.” The court also found that two previous orders had been entered addressing discovery violations by Petitioner on August 5, 2005 and June 13, 2006. According to the court, these findings reflected willful and contumacious conduct under Florida Rule of Civil Procedure 1.380(a)(4) and (c). The court also stated that it “has the inherent authority to sanction improper conduct as a deterrent to future misconduct, notwithstanding the fact that prior notice was not provided to Defendant and Plaintiff had not affirmatively requested this relief from the Court.”
Petitioner filed a Motion for Reconsideration. On December 17, 2008, the Court denied Petitioner’s motion as to the granting of sanctions, but granted it as to the amount. The Court ordered that a hearing be set to determine the amount.ANALYSIS
The trial court’s order awarding discovery sanctions without notice to Petitioner violated Petitioner’s due process rights. As the Fourth District held in Wildwood Properties, Inc. v. Archer of Vero Beach, Inc., 621 So. 2d 691 (Fla. 4th DCA 1993) (A-7):
A party to be sanctioned for discovery violations must first be given notice and an opportunity to be heard and offer mitigating or extenuating evidence as to why discovery did not take place. Kuechenberg v. Creative Interiors, Inc., 424 So. 2d 145 (Fla. 4th DCA 1982). Failure to give adequate notice and opportunity to be heard constitutes a violation of due process. Donner v. Smith, 517 So. 2d 709 (Fla. 4th DCA 1987).
Wildwood, 621 So. 2d at 692 (emphasis added). In Wildwood, the Court reversed the sanctions order because no notice was given.
In the present case, the trial court expressly stated that“prior notice was not provided to Defendant.”However, the court determined that notice was not required under its “inherent authority to sanction improper conduct as a deterrent to future misconduct.”
This Court recently reversed a sanctions order based on the same reasoning in Barnes v. Pro Imaging, Inc. a/a/o Liz Monestime, 15 Fla. L. Weekly 981b (Fla. 17th Circuit Appellate 2008) (A-8). In Barnes, this Court held that:
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) [A-9]. 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.
Id. (emphasis added). Under Barnes, a trial court may not impose sanctions pursuant to its inherent authority unless it makes express findings of bad faith or egregious conduct.
As in Barnes, the order at issue in the instant case does not contain findings of “egregious conduct” or “bad faith.” Instead, the trial court focused on the fact that a mere six months transpired before Ortiz filed the motion for relief from admissions. The trial court awarded sanctions even though it expressly determined that this delay did not result in prejudice to Respondent. The court also noted that two previous orders had been entered addressing discovery violations by Petitioner on August 5, 2005 and June 13, 2006. However, Ortiz was not the cause of those violations because he did not take over the file until March 2008. Therefore, the two prior discovery violations could not serve as a predicate for invoking the court’s “inherent authority to sanction improper conduct as a deterrent to future misconduct.”
Based on the foregoing, the trial court’s order granting discovery sanctions is QUASHED.
