21 Fla. L. Weekly Supp. 977a
Online Reference: FLWSUPP 2109FERNInsurance — Personal injury protection — Attorney’s fees — Discovery — Depositions — Failure to attend — Sanctions — Where medical provider’s representative failed to attend deposition in aid of execution of final judgment for attorney’s fees and costs, representative is ordered to appear for deposition, complete fact information sheet, and pay costs incurred due to his failure to appear — Representative’s failure to stay in contact with his attorney does not negate his responsibility to appear for deposition
BEST MEDICAL HEALTHCARE SOLUTIONS, LLC. (as assignee of Ricardo Fernandez), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 11-CC-003880. April 21, 2014. Honorable Gaston J. Fernandez, Judge. Counsel: Stuart B. Yanofsky, Stuart B. Yanofsky, P.A. Plantation, for Plaintiff. Jarod L. Gilbert, Andrews & Manno, P.A., Tampa, for Defendant.
ORDER ON DEFENDANT’S MOTION FOR ORDERTO SHOW CAUSE, MOTION FOR CONTEMPTAND MOTION FOR SANCTIONS
THIS CAUSE having come before this Court on April 8, 2014 on “Defendant’s Motion for Order to Show Cause, Motion for Contempt and Motion for Sanctions”, and this Court having heard arguments of counsel and being otherwise fully advised, this Court finds the following:
This is a PIP suit involving the above captioned parties. On September 7, 2012, this Court executed and entered a Final Judgment for Attorney’s Fees and Costs in Favor of Defendant. This final judgment was recorded pursuant to Florida law. On April 23, 2013, in an effort to collect its judgment, Defendant served a “Notice of Taking Deposition Duces Tecum In Aid of Execution” pursuant to Fla. R. Civ. P. 1.560(a). This notice required Plaintiff representative Erisman Gonzalez to attend Defendant’s deposition on September 18, 2013. However, Mr. Gonzalez failed to appear for said deposition.
On December 19, 2013, Defendant filed a “Motion for Order to Show Cause, Motion for Contempt and Motion for Sanctions.” In this motion, Defendant requested, inter alia, that Erisman Gonzalez be ordered to show cause why he should not be held in contempt for failing to appear for his scheduled deposition. Defendant also requested reasonable attorneys’ fees and costs incurred in Mr. Gonzalez’ failure to attend the deposition and for litigating this motion. At hearing, Defendant modified its position and requested an Order: 1) compelling Plaintiff’s representative to submit to a deposition, 2) compelling Plaintiff’s representative to complete a fact information sheet pursuant to Fla. R. Civ. P. 1.560(b), and 3) requiring Plaintiff to pay the associated fees and costs incurred by Mr. Gonzalez’ failure to attend his deposition pursuant to Fla. R. Civ. P. 1.380(d) which included litigating this motion. In response, Plaintiff’s counsel argued that he has been unable to make contact with Mr. Gonzalez.
Fla. R. Civ. P. 1.380(d) states in pertinent part:
(d) Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection. If a party or an officer, director, or managing agent of a party or a person designated under rule 1.310(b)(6) or 1.320(a) to testify on behalf of a party fails (1) to appear before the officer who is to take the deposition after being served with a proper notice, . . . the court in which the action is pending may take any action authorized under paragraphs (A), (B), and (C) of subdivision (b)(2) of this rule. . . Instead of any order or in addition to it, the court shall require the party failing to act to pay the reasonable expenses caused by the failure, which may include attorneys’ fees, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. . .
In this case, Plaintiff was properly served through his counsel with a “Notice of Taking Deposition Duces Tecum In Aid of Execution” and Plaintiff failed to appear for same. This Court does not find that Plaintiff’s failure to stay in contact with his attorney is sufficient justification to negate Plaintiff’s responsibility to attend this deposition. Furthermore, this Court finds that an Order compelling Plaintiff to appear for a deposition is appropriate under the facts and circumstances of this case.
Lastly, Defendant also requested that Plaintiff complete a fact information sheet pursuant to Fla. R. Civ. P. 1.560(b) which states:
(b) Fact Information Sheet. In addition to any other discovery available to a judgment creditor under this rule, the court, at the request of the judgment creditor, shall order the judgment debtor or debtors to complete form 1.977, including all required attachments, within 45 days of the order or such other reasonable time as determined by the court. Failure to obey the order may be considered contempt of court.
Based upon the evidence presented, this Court agrees with Defendant that Plaintiff as a judgment debtor shall be required to complete form 1.977 within 45 days of this order.
Based on the foregoing, it is ORDERED AND ADJUDGED:
1. Defendant’s Motion is Granted In Part and Denied In Part.
2. Plaintiff shall submit to a deposition by a date no later than 60 days from the execution of this Order.
3. Counsel for Plaintiff and Defendant shall coordinate a mutually convenient date and time for said deposition.
4. Plaintiff shall complete form 1.977(b), including all required attachments, within 45 days of this order.
5. Plaintiff shall pay Defendant the reasonable attorneys’ fees and costs incurred in Plaintiff’s failure to appear for the September 18, 2013 deposition, and for obtaining this Order.
6. Jurisdiction will be reserved to determine the amount of reasonable attorneys’ fees and costs incurred by Defendant.
* * *
