final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael L. Gates, Judge; L.T. Case No.
15-14454 CACE (12).
Melissa A. Giasi of Sivyer Barlow & Watson, P.A., Tampa,
Melinda S. Thornton and Scott A. Cole of Cole, Scott &
Kissane, P.A., Miami, for appellee.
breach of homeowners insurance contract suit, Prepared
Insurance Company ("the insurance company") was
unable to procure the presence of an initial witness who was
listed by Reginald and Chanel Williams ("the
plaintiffs") but later omitted from their witness list.
The insurance company, and ultimately the trial court, placed
fault on the plaintiffs and their law firm for the
witness's refusal to appear for deposition. As a
sanction, the trial court (1) struck the plaintiffs'
pleadings, and (2) imposed sanctions on the plaintiffs'
law firm for bad faith litigation. We agree with the
plaintiffs that the plaintiffs and their law firm cannot be
held accountable for the failure of a non-party to appear for
a deposition. Additionally, the trial court failed to
identify any rule or court order that the plaintiffs and
their attorneys failed to obey. We reverse.
the plaintiffs allegedly suffered damage to their home due to
a broken pipe, Chanel Williams was put into contact with
Ramon Rodriguez, whom she identified as a "public
adjuster." The plaintiffs then retained the Strems
Law Firm ("the law firm"), which sent the insurance
company a letter advising of its retention and providing
contact information for Rodriguez, whom the law firm
identified as "our loss consultant."
insurance company ultimately denied the plaintiffs' home
damage claim based on its inability to "properly
investigate" the incident. Thereupon the plaintiffs sued
the insurance company for breach of contract.
the plaintiffs filed their trial witness list, the insurance
company sought to depose Rodriguez. It issued notices of
deposition duces tecum directed to both Rodriguez and an
unnamed corporate representative of the company with whom
Rodriguez was affiliated, Let Us Claim Consultants, Inc.
Assuming that Rodriguez would appear for deposition as the
corporate representative of Let Us Claim Consultants, Inc.,
the insurance company attempted service of Rodriguez at a
Pembroke Pines address which turned out to be a UPS store.
Eventually, the insurance company obtained substitute service
of Rodriguez at a Miramar address discovered by the insurance
company through a search of Florida Division of Corporations
did not appear for the December 2015 deposition, and based on
the insurance company's motions for rule to show cause,
the trial court issued orders to show cause directed to
Rodriguez and "the corporate representative" of Let
Us Claim Consultants, Inc. For case management purposes, the
trial court directed the insurance company to re-notice the
depositions and set the show cause hearing for a date after
the depositions. The insurance company re-noticed the
depositions for May 2016. For this deposition, the insurance
company obtained substitute service of Rodriguez at the UPS
store in Pembroke Pines. Rodriguez did not appear for
insurance company moved for sanctions and to strike the
plaintiffs' breach of insurance contract pleadings,
alleging in part that the plaintiffs failed to appear for
deposition, failed to provide discovery, and that "their
own Loss Consultants have failed to appear for
deposition." The trial court entered an agreed order in
which it provided that the motion was granted in part and
denied in part and directed the plaintiffs as a sanction to
reimburse the insurance company a small amount of money. The
order did not identify the portions of the motion that were
granted and denied.
litigation stretched into 2017. As the trial date approached,
the plaintiffs, in January of 2017, listed an
engineer/general contractor as their expert witness and
asserted that he would testify as to the cost and scope of
repairs necessary based on his inspection of the property and
information and photographs provided by the plaintiffs. In
their trial witness list, the plaintiffs also named Rodriguez
as a fact witness and provided Rodriguez's Pembroke Pines
June, in response to a motion to show cause, the trial court
entered an order directing Rodriguez and the corporate
representative of Let Us Claim Consultants, Inc. to appear
for deposition within twenty days or appear before the court
on July 6 to explain why they should not be held in contempt.
Also in June, the insurance company moved to compel a
"better address and for sanctions." The insurance
company asserted that in April, the plaintiffs provided the
Pembroke Pines address for Rodriguez, but the insurance
company's substitute service of Rodriguez at that
address, which it had come to discover was a UPS store, had
not resulted in Rodriguez appearing for deposition. The
insurance company further alleged that the plaintiffs'
listing of a UPS store address established that they
"knowingly provided an address at which personal service
cannot be effectuated, rather than providing a proper service
address for their witness, and have further refused to
produce their witness for deposition, requiring [the
insurance company] to subpoena Ramon Rodriguez." The
insurance company requested the court direct the plaintiffs
to "provide a proper service address for Ramon
Rodriguez, or produce [him] for deposition," and it
sought fees and additional costs as a sanction.
hearing was held, during which counsel for the plaintiffs
asserted that the Pembroke Pines address it provided was the
address on Rodriguez's estimate and that his law firm did
not realize it was an incorrect address. Plaintiffs'
counsel also stated that he had conducted a Google search
"last night" and found an Orlando address related
to Let Us Claim Consultants, Inc.
trial court directed plaintiffs' counsel to "provide
[the insurance company] with an address within ten days from
the date hereof and to call Mr. Rodriguez and say that
there's a subpoena coming, and if he dodges it, then
we'll take it up directly with him and he may be down
here with BSO."
the hearing, the plaintiffs and their law firm provided an
Orlando address for Rodriguez. Of note, the plaintiffs also