Published: July / August 2015
By: Matt Triggs and Jonathan Galler
Rule 1.380(b)(1): Failure to Comply with Order
There is a rule of civil procedure for every scenario, right? Well … not quite.
Recently, the Fourth District Court of Appeal reversed a trial court order because the rule of procedure upon which it was based was inapplicable, and there was no alternative rule for the Court to rely upon instead.
In CB Condominiums, Inc. v. GRS South Florida, Inc., 2015 WL 2393329 (Fla. 4th DCA May 20, 2015), the Fourth District reviewed a trial court order granting a motion for sanctions under rule 1.380(b)(1). The plaintiff had filed the motion against several non-parties and their attorney in connection with post-judgment proceedings to collect on a judgment.
The motion for sanctions arose out of the plaintiff’s efforts to obtain discovery from the non-parties. The plaintiff served subpoenas for deposition duces tecum on the records custodian of the non-party entities and, in response, the non-parties filed a motion to quash or, alternatively, for a protective order precluding the production of the records sought and relieving the records custodian from any obligation to appear for deposition. The trial court denied the motion to quash and ordered the deposition to take place within 60 days.
The records custodian appeared for the deposition but did not bring any of the requested records with him. The custodian testified at his deposition that, based on instructions from the non-parties’ attorney, he had not even looked for the requested records but that they were at his office and that he could print copies and return with them within an hour. The defendant’s attorney, however, “refused to cooperate, directed the records custodian not to retrieve the documents, and argued that the [non-parties] would not produce the documents without a court order.” CB Condominiums, 2015 WL 2393329 at *1. This led to the filing of the motion for sanctions.
Rule 1.3801(b)(1), upon which the motion for sanctions was premised, provides that “[i]f a deponent fails to be sworn in or to answer a question after being directed to do so by the court, the failure may be considered a contempt of the court.” The trial court granted the motion for sanctions on the grounds that it had previously denied the non-parties’ motion to quash and “court orders can’t be ignored.” CB Condominiums, 2015 WL 2393329 at *2.
The Fourth District reversed because the records custodian did not refuse to be sworn in and did not fail to answer any questions – the requisite misconduct under rule 1.380(b)(1). Indeed, the plaintiff was forced to concede that neither of the events described in rule 1.380(b)(1) had occurred, but it argued that the sanctions order was nevertheless appropriate as “compensatory civil contempt sanctions” for failure to comply with the trial court’s order denying the motion to quash. The Fourth District rejected that argument, holding that it could not affirm a sanctions order entered against a non-party on those grounds in the absence of a finding of contempt.
The Court relied on Pevsner v. Frederick, 650 So. 2d 262 (Fla. 4th DCA 1995). There, the Fourth District held that even where a non-party witness failed to answer deposition questions, the trial court’s imposition of sanctions was improper because the trial court had declined to hold the non-party witness in contempt as provided for under rule 1.380(b)(1). The alternative option of awarding sanctions under rule 1.380(b)(2) was unavailable because that subsection is limited in its application to parties and their agents.
Similarly, in CB Condominiums, the Fourth District was compelled to reverse the sanctions order at issue because the specific misconduct described in rule 1.380(b)(1) had not occurred, and the alternative sanctions under rule 1.380(b)(2) are unavailable as to non-parties.
Recognizing the merits of the trial court’s instincts that “court orders can’t be ignored,” but frustrated by the lack of a rule of procedure applicable to the instant circumstances, the Fourth District’s opinion expressly encourages the civil rules committee to propose an amendment to rule 1.380 to address this apparent gap in the rules governing sanctions for discovery-related violations.
Matt Triggs is a partner in the litigation department of Proskauer Rose LLP and the head of the department in Boca Raton. Jonathan Galler is a senior counsel in the department. Both concentrate their practices in commercial and probate litigation.