Fourth DCA Judge Cory Ciklin. Photo: Melanie Bell/ALM.

Coral Gables attorney Scot Strems averted sanctions in a contract dispute case as the Fourth District Court of Appeal ruled that he and two homeowner plaintiffs weren't to blame for an elusive witness who never appeared for a deposition.

In a dispute with their insurance company, the plaintiffs claimed the only service address they could find for their witness, a loss consultant, was a Pembroke Pines UPS store. But defendant Prepared Insurance Co. suggested the plaintiffs hadn't looked in earnest and alleged a deliberate attempt to stop the witness from being served.

The trial court had sided with Prepared Insurance Co., represented by Melinda S. Thornton and Scott A. Cole of Cole, Scott & Kissane in Miami and Hope C. Zelinger of Bressler, Amery & Ross in Fort Lauderdale. Broward Circuit Judge Michael L. Gates sanctioned the plaintiffs and the Strems Law Firm, striking their pleadings and hitting them with attorney fees for bad-faith litigation.

But the Fourth DCA disagreed, finding no evidence of bad faith, and ruling the plaintiffs and their counsel shouldn't have shouldered blame for the no-show witness.

“We have scoured the record and find nothing which would support the trial court's order or its decision to involuntarily dismiss the lawsuit,” the opinion said.

Plaintiffs appellate counsel Melissa A. Giasi of Sivyer Barlow & Watson in Tampa said the case is an “egregious example” of what she feels is a common problem for her clients.

“There's been a trend with certain insurance carriers, where it appears that they, through their attorneys, pursue sanctions as a dismissal, as opposed to letting a case be litigated on its merits,” Giasi said.

In Giasi's mind, it wasn't clear why the witness was important to the defense's case.

“I don't know why they were so desperate to talk to him,” she said.

Lawyers for Prepared Insurance did not respond to requests for comment by deadline.

The deposition that never was

The case stated when homeowners Reginald Williams and Chanel Williams sued their insurer in August 2015 after they were denied coverage for $28,000 in water-pipe damage. Once retained, Strems Law Firm connected their clients with “loss consultant” Roman Rodriguez, according to Wednesday's opinion.

Rodriguez, a corporate representative from Let Us Claim Consultants Inc., ended up on both parties' witness lists for depositions. But he wasn't easy to pin down. The UPS store mailbox Rodriguez had listed as his address on his estimate proved fruitless, as did another potential address the defense found — this time in Miramar, according to the opinion.

Rodriguez's December 2015 scheduled deposition date came and went without him. The trial court issued an order to show cause, and then rescheduled the deposition, but that also yielded nothing.

Prepared Insurance moved for sanctions. It alleged the homeowners and their lawyers had failed to provide discovery and had never showed up for a deposition, along with “their own loss consultants.”

The defense also moved to compel a “better address,” accusing the homeowners of knowingly giving a useless one. As punishment, it sought fees and costs.

Melissa Giasi of Giasi Law in Tampa. Courtesy photo

The case has cost thousands so far, according to plaintiffs appellate counsel Giasi, who claimed sanctions were never warranted.

“I can't tell you how many times fingers get pointed at attorneys representing the insured for not appearing at depositions,” she said. “So I liked that the court pointed out that it was not suspicious, it was perfectly reasonable for them not to go because [Rodriguez] hadn't shown up.”

Nearly two years later, in June 2017, plaintiffs lawyer Strems announced at a hearing that he'd found an Orlando address connected to Rodriguez's employer ”last night,” according to the opinion. He gave that address to the defense, but the Fourth DCA said it was “of note” that he then took Rodriguez off his witness list. The defense eventually served Rodriguez, according to the opinion, but not before trying several times to find him at the Orlando address.

Strems did not respond to a request for comment by deadline.

When Rodriguez still didn't appear for the deposition, the opinion said Judge Gates “entertained” the defendant's motion for fees, finding that the defense was prejudiced by a waste of time and resources.

Fourth DCA Judge Cory J. Ciklin penned the reversal, with Judges Carole Y. Taylor and Spencer D. Levine concurring.

Read the court opinion:

 

More on appeals:

Court Sides With Broward Lawyer in Lengthy Fee Dispute With Friend Turned Client

$1.2 Million Attorney Fee Award Upheld in 24th Year of South Florida Contract Dispute