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Parties Sanctioned for Failure to Attend Appellate Mediation

Posted: January 6, 2012 Filed under: Case Law, Commentary

The lesson to be learned from today’s opinion from Florida’s Fifth District Court of Appeal is simple: Do what the Court orders you to do.

In Carden & Associates, Inc. v. C.O.D. Trees Partnership, No. 5D11-2960 (Fla. 5th DCA Jan. 6, 2012), the Court applied a straightforward interpretation of Florida Rule of Appellate Procedure 9.720(a), which “provides that, unless changed by order of the court, a party is deemed to appear at a mediation conference if certain persons are physically present, including ‘the party or its representative,’ the party’s ‘counsel of record,’ and ‘a representative of the insurance carrier for an insured party.'” Neither of the appellants (the appealing parties) attended; instead, only their insurance company representative and attorney appeared. And no motion was filed requesting to excuse the parties’ personal appearance.

The Court said, “The law is clear that, absent being excused by the court, the party must appear at mediation and a representative of the insurance company cannot take the party’s place.” Accordingly, the Court awarded sanctions and required the parties to pay (1) all fees charged by the mediator in connection with this appellate mediation; and, (2) C.O.D.’s reasonable costs and attorneys’ fees incurred in preparing for and attending the appellate mediation and filing the instant motion for sanctions – all within 30 days.

Note to attorneys: This case is a good example of the danger inherent in considering the person with the purse your client rather than the person actually named in the lawsuit. Excusing or failing to require the client’s attendance at mediation may put you on the hook for the sanctions via a malpractice claim.

Admitted: Florida, Kansas, New Mexico (inactive)