Mediation: Florida Appellate Court Sanctions No-Shows, Again (Web)

In Doorstep Beverages of Longwood Inc. v. Collier, et al., No. 5D05-3392, 2006 Fla. App. LEXIS 6814 (Fla. 5th DCA May 5, 2006)(available at the Opinions link at http://www.5dca.org), Florida's Fifth District Court of Appeal granted appellant Doorstep Beverages’ original motion for the imposition of sanctions against appellee, Willie J. Collier, for his failure to appear in person at court-ordered appellate mediation.

But the Fifth District, in a unanimous panel opinion by Judge William D. Palmer, held that Collier’s attorney would have to pay the sanctions, because of the attorney’s failure to inform Collier.

The court ordered Collier's attorney, Robert C. Power, an associate in Orlando, Fla.’s Bogin, Munns & Munns, to pay within 30 days from the opinion date: 1) all fees charged by the mediator in connection with the appellate mediation; and 2) to opposing counsel, reasonable attorney's fees and costs incurred in preparing for and attending the appellate mediation and filing of the sanctions motion.

The parties' litigation was referred to appellate mediation by court order dated Nov. 19, 2005. The referral order specifically provided attendance by parties with full settlement authority and counsel. Failure to appear without good cause, the order stated, might result in sanctions.

After Collier failed to appear at the court-ordered appellate mediation, Doorstep Beverages filed a motion seeking the imposition of sanctions.

Although attorney Power never filed a motion excusing his client's failure to appear at the mediation, he took the fall for his client. After admitting that he didn’t inform client Collier that physical attendance at the appellate mediation was mandatory, Power also asked the court to impose the sanction against him personally.

Judge Palmer gave him his wish.

It wasn't the first time Palmer imposed a sanction of this nature. Judge Palmer and the Fifth District have a history of imposing sanctions on no-shows.

In 2001, in Carbino v. Ward, 844 So.2d 820 (Fla 5th DCA 2001), Judge Palmer imposed sanctions against a defendant who failed to appear at a mediation in an automobile accident negligence case. Carbino was the first case in a line of mediation participation matters in which a Fifth District panel has imposed sanctions for failing to appear to a court-ordered mediation. See also Holler v. De Hoyos, 898 So. 2d 1216 (Fla. 5th DCA 2005); Harrelson v. Hensley, 891 So. 2d 635 (Fla. 5th DCA 2005).)

For more information on other Florida appellate opinions imposing sanctions for failure to appear at court-ordered mediation, see "Appellate Mediation No-Show Sanctions Help Solidify a Florida Court Program" 23 Alternatives 106 (June 2005)(available free for CPR Institute members via the link at http://www.cpradr.org/alt_scrn.asp?M=5.3 ).

This also is the second time this year that Judge Palmer has imposed sanctions for failing to appear at a court-ordered mediation. In Hernando County School Board v. Nazar, 2006 Fla. App. LEXIS 1996 (Fla. 5th DCA 2006)(available athttp://www.5dca.org/Opinions/Opin2006/021306/5D05-1623.op.pdf), appellant sought the imposition of sanctions against appellee, Paul Nazar, and his attorney, Peter Capua, of Miami’s Lorenzo & Capua, for their failure to appear at court-ordered appellate mediation. Nazar alleged that he had to help relatives victimized by Hurricane Katrina.

But, like Collier in Doorstep Beverages, Nazar failed to file a motion seeking permission to be excused from the mediation. Since Nazar informed the court of his excuse after the scheduled mediation, he was sanctioned.

Nazar’s attorney Capua attempted to appear by telephone. But the referral order mandated an in-person appearance, so he too was sanctioned.

Unsurprisingly, the mediator did not excuse the failure to appear of either Capua or Nazar, after the mediator had traveled to Hernando County from Orlando for the mediation.

–John Ousley, CPR Intern