DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

REGINALD WILLIAMS and CHANEL WILLIAMS,

Appellants,

v.

PREPARED INSURANCE COMPANY,

Appellee.

No. 4D18-692

[June 12, 2019]

Appeal 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, for appellants.

Melinda S. Thornton and Scott A. Cole of Cole, Scott & Kissane, P.A., 

Miami, for appellee.

CIKLIN, J.

In this 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. 

After the plaintiffs allegedly suffered damage to their home due to a 

broken pipe, Chanel Williams was put into contact with Ramon Rodriguez, 
2

whom she identified as a “public adjuster.”1 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.”

The 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. 

Before 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 records. 

Rodriguez 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 

1 “Public adjuster” is defined as follows:

A “public adjuster” is any person, except a duly licensed attorney at 

law as exempted under s. 626.860, who, for money, commission, or 

any other thing of value, prepares, completes, or files an insurance 

claim form for an insured or third-party claimant or who, for money, 

commission, or any other thing of value, acts on behalf of, or aids 

an insured or third-party claimant in negotiating for or effecting the 

settlement of a claim or claims for loss or damage covered by an 

insurance contract or who advertises for employment as an adjuster 

of such claims. The term also includes any person who, for money, 

commission, or any other thing of value, solicits, investigates, or 

adjusts such claims on behalf of a public adjuster.

§ 626.854(1), Fla. Stat. (2015).
3

deposition, the insurance company obtained substitute service of 

Rodriguez at the UPS store in Pembroke Pines. Rodriguez did not appear 

for deposition.

The 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.

The 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 address. 

In 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.

A 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 
4

Google search “last night” and found an Orlando address related to Let Us 

Claim Consultants, Inc.

The 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.” 

After the hearing, the plaintiffs and their law firm provided an Orlando 

address for Rodriguez. Of note, the plaintiffs also amended their witness 

list to omit Rodriguez. 

Rodriguez’s deposition was set for August 30. After unsuccessful 

attempts at service but before the deposition date, the insurance company

moved to compel compliance, strike the plaintiffs’ pleadings, and impose 

fees and costs as sanctions, alleging in part that the plaintiffs had 

“outright refused to produce Ramon Rodriguez . . . the person who was 

disclosed on [the law firm’s] Letter of Representation as an agent of the 

firm . . . and a witness disclosed on the Plaintiff’s witness list for trial.” 

The insurance company asserted that its numerous attempts at service at 

the Orlando address were unsuccessful. It further asserted that the

plaintiffs’ law firm had not put Rodriguez on notice that he would be served 

at the Orlando address, as the process server’s notes reflected that on one 

occasion, someone was home but would not answer the door, and on 

another occasion, Rodriguez’s father told the process server that Rodriguez 

was working in Miami.

After the insurance company filed its motion to compel compliance, 

strike pleadings and impose sanctions and before the motion was heard, 

it obtained service on Rodriguez at the Orlando address on August 22. 

Predictably, Rodriguez again failed to appear. The insurance company

filed a supplemental motion reciting that it served Rodriguez on August 22

and, in a separate motion, moved for an order to show cause directed to 

Rodriguez. In its motion, the insurance company pointed out that the 

plaintiffs and their law firm were arranging the scheduled deposition: 

“[Plaintiffs’] counsel provided a better address for Ramon Rodriguez and 

the deposition was coordinated and rescheduled for August 30, 2017.”

Rodriguez failed to appear on August 30 and during a hearing held in 

early 2018, the trial court entertained the insurance company’s motion to

once again compel compliance, strike pleadings, and impose fees as 

sanctions. 
5

Subsequently, the trial court entered a written order striking the 

plaintiffs’ pleadings and imposing fees as sanctions against the plaintiffs’ 

law firm. The court found that based on the letter of representation sent 

by the law firm to the insurance company, Rodriguez was an agent of the 

law firm. The court then recounted the history of the insurance company’s 

attempts to depose Rodriguez, including its July 2017 order compelling 

the plaintiffs to provide another address for Rodriguez and to put 

Rodriguez on notice that he would be served with a subpoena. The court 

then held: “[The insurance company] has been attempting to obtain the 

deposition of witness Ramon Rodriguez, and has been prejudiced by the 

time, expense, and inability to prepare a proper defense at trial based on 

his failure to appear.”

The trial court found that striking of the plaintiffs’ pleadings was the 

only sufficient remedy, and it then addressed and applied the Kozel2

factors first finding that plaintiffs’ counsel and thus the plaintiffs’ law firm 

of record was willfully disobedient:

Strems Law Firm is experienced and has been handling this 

case since the claim was initially reported to [the insurance 

company]. They . . . have repeatedly failed and/or refused to 

(1) assist [the insurance company] in obtaining the deposition 

of Ramon Rodriguez, despite admonitions to warn Ramon 

Rodriguez that ignoring or dodging a subpoena would have 

consequences; (2) appear for duly noticed depositions; and (3) 

participate in meaningful discovery as it pertains to the loss 

consultant who was held out to be an agent of Strems Law 

Firm and the Plaintiffs.

The trial court observed that plaintiffs’ counsel failed to appear at the 

August 30, 2017 deposition and that his non-appearance indicated

plaintiffs’ counsel “was aware, or strongly suspected, that the deposition 

would not proceed.” Additionally, the court made a finding that counsel 

had previously been sanctioned:

Although the Court has previously reserved as to the issue of 

the amount of fees and costs to be awarded, the Court has 

specifically granted a Motion to Compel Better Address and 

for Sanctions regarding Ramon Rodriguez. The Court has also 

found that Ramon Rodriguez, upon proper notice, should be 

compelled to come before the Court and demonstrate good 

cause for his failure to appear. Considering that Ramon 

2 Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993).
6

Rodriguez has been held out as an agent of the Plaintiffs and 

Strems Law Firm, a sanction against him is a sanction against 

the Plaintiffs and Strems Law Firm.

Notably, as to the plaintiffs themselves, the trial court did not find that the 

plaintiffs were involved in any act of disobedience, but it observed that “the 

Plaintiffs[] retained Ramon Rodriguez as their public adjuster and failed to 

produce the public adjuster agreement and contract.”

The trial court then found that the insurance company was prejudiced

by the conduct of the plaintiffs and their law firm, as it had incurred 

significant fees and costs and had “been deprived of testimony by the first 

person who saw the loss after the Plaintiffs themselves.” The court further 

found that the plaintiffs’ counsel did not provide “reasonable justification”

for “non-compliance.” The court rejected the plaintiffs’ and law firm’s

assertion that they provided all addresses they could find for Rodriguez. 

The trial court found that Rodriguez was an agent of the Strems law firm

and summed up its findings by holding that the delay in the litigation 

negatively impacted the judicial administration of the case, as the matter

had to be postponed. The court found that no other sanction but striking 

the pleadings would remedy the noncompliance. The court also imposed 

fees and costs, payable by the plaintiffs’ law firm, for bad faith conduct. 

In a separate order, the trial court granted the insurance company’s 

second motion for better address, and it ordered the plaintiffs to provide a 

better address within ten days. The court ultimately entered a final 

judgment in favor of the insurance company.

On appeal, the plaintiffs argue that the order under our review should 

be reversed because the trial court failed to identify the order or rule the 

law firm failed to obey, erred in sanctioning them for conduct of a nonparty, and made findings not supported by the record. 

Analysis

“Florida Rule of Civil Procedure 1.380 governs sanctions for failure to 

comply with discovery orders and provides that a trial court may enter ‘[a]n 

order striking out pleadings,’” among other remedies. Precision Tune Auto 

Care, Inc. v. Radcliffe, 804 So. 2d 1287, 1290 (Fla. 4th DCA 2002)

(alteration in original); see also Fla. R. Civ. P. 1.380. A trial court’s 

imposition of sanctions for discovery violations is reviewed for an abuse of 

discretion. See id. “While sanctions are within a trial court’s discretion, 

it is also well established that dismissing an action for failure to comply 

with orders compelling discovery is ‘the most severe of all sanctions which 
7

should be employed only in extreme circumstances.’” Ham v. Dunmire, 

891 So. 2d 492, 495 (Fla. 2004) (quoting Mercer v. Raine, 443 So. 2d 944, 

946 (Fla. 1983)). “[A] deliberate and contumacious disregard of the court’s 

authority will justify application of this severest of sanctions, as will bad 

faith, willful disregard or gross indifference to an order of the court, or 

conduct which evinces deliberate callousness.” Id. (quoting Mercer, 443 

So. 2d at 946).

To ensure that a party and an attorney of record’s mere negligence

during the discovery process does not result in dismissal of a complaint 

with prejudice, the Florida Supreme Court has developed a required 

procedure. In Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993), the supreme 

court “articulated a test identifying six factors pertinent in the 

determination of whether a dismissal with prejudice is a warranted 

response to an attorney’s behavior.” Ham, 891 So. 2d at 496. The court 

must consider the following:

1) whether the attorney’s disobedience was willful, deliberate, 

or contumacious, rather than an act of neglect or 

inexperience; 2) whether the attorney has been previously 

sanctioned; 3) whether the client was personally involved in 

the act of disobedience; 4) whether the delay prejudiced the 

opposing party through undue expense, loss of evidence, or in 

some other fashion; 5) whether the attorney offered 

reasonable justification for noncompliance; and 6) whether 

the delay created significant problems of judicial 

administration.

Id. (quoting Kozel, 629 So. 2d at 818). “Upon consideration of these 

factors, if a sanction less severe than dismissal with prejudice appears to 

be a viable alternative, the trial court should employ such an alternative.” 

Id. (quoting Kozel, 629 So. 2d at 818). 

Finding a wholesale dismissal was the only reasonable option, the trial 

court entered an order striking the plaintiffs’ pleadings. The order under 

appeal contains 29 paragraphs of factual findings which essentially 

recount the history of the insurance company’s attempts to depose 

Rodriguez, and Rodriguez’s continued failure to appear for deposition even 

after he was subpoenaed. 

The closest the trial court came to identifying a discovery violation 

related to the plaintiffs’ law firm by finding that the law firm “ha[s] 

repeatedly failed and/or refused to (1) assist [the insurance company] in 

obtaining the deposition of Ramon Rodriguez, despite admonitions to warn 
8

Ramon Rodriguez that ignoring or dodging a subpoena would have 

consequences; (2) appear for duly noticed depositions; and (3) participate 

in meaningful discovery as it pertains to the loss consultant who was held 

out to be an agent of [the law firm].”

As to the law firm, it appears the trial court based sanctions in part on 

the failure of the law firm to appear for Rodriguez’s August deposition. But 

the court identified no authority requiring the law firm to appear. The 

court found that the law firm’s waiver of appearance at the deposition 

indicated the law firm “was aware, or strongly suspected, that the 

deposition would not proceed,” and that the law firm thus engaged in 

misconduct. Rodriguez exhibited a pattern of not appearing at 

depositions, so it was not necessarily unreasonable for the law firm to 

waive its appearance at the Orlando deposition. The law firm’s election to 

not appear at the deposition does not equate to misconduct and the trial 

court’s findings are not supported by the record. 

The trial court also seemed to base sanctions on the failure of the law 

firm or plaintiffs to participate in meaningful discovery, but the court did 

not identify any discovery orders the plaintiffs violated. We have scoured 

the record and find nothing which would support the trial court’s order or 

its decision to involuntarily dismiss the lawsuit. 

To the extent the trial court found that the law firm failed to obey the 

court’s order and inform Rodriguez that he was required to be available for 

a subpoena, the record reveals no evidence supporting such a finding.

Finally, to the extent the trial court was focused on the law firm’s failure 

to produce Rodriguez for a deposition, the trial court did not cite to any 

authority requiring the law firm to do so and we ourselves are unaware of 

any. Rodriguez is not the type of witness a party is required to produce, 

such as an expert or corporate representative. Cf. State Farm Mut. Auto. 

Ins. Co. v. Swindoll, 54 So. 3d 548, 552 (Fla. 3d DCA 2011); Precision Tune 

Auto Care, 804 So. 2d at 1288. He is a fact witness. While sanctions can 

be based on a party’s failure to provide an address for its witness, see 

Jones v. Publix Super Markets, Inc., 114 So. 3d 998, 1004 (Fla. 5th DCA 

2012), the trial court’s findings reflect that the law firm did provide a valid 

address—the Orlando address—and that Rodriguez was served there. The 

trial court did not find that the Orlando address was not provided in a 

timely fashion.

The trial court also erred in basing a finding of noncompliance on a 

determination that Rodriguez was an agent of the law firm. The original

letter of representation sent by the law firm to the insurance company
9

provided that the insurance company could speak to “Rodriguez or any of 

our agents” about specified topics. To the extent the letter of 

representation sent by the law firm to the insurance company gives the 

appearance of an agency relationship between the firm and Rodriguez, the 

evidence and record was insufficient to establish that Rodriguez’s failure 

to appear for deposition fell within the scope of any such agency 

relationship.

Ironically, because the trial court’s finding of a discovery violation was 

erroneous and unsupported by the record, there was never a need for the 

trial court to engage in a Kozel analysis in the first instance. 

The trial court also sanctioned the plaintiffs by imposing fees and costs 

based on its inherent authority to award fees for bad faith litigation. The 

trial court’s discretion to exercise its inherent authority to impose 

attorney’s fees for bad faith conduct is reviewed for an abuse of discretion. 

See Goldman v. Estate of Goldman, 166 So. 3d 927, 929 (Fla. 3d DCA 

2015). Aside from fees based on statute, rule, or contract, trial courts have 

the “inherent authority . . . to assess attorneys’ fees for the misconduct of 

an attorney in the course of litigation.” Moakley v. Smallwood, 826 So. 2d 

221, 224 (Fla. 2002). “The inequitable conduct doctrine permits the award 

of attorney’s fees where one party has exhibited egregious conduct or acted 

in bad faith.” Bitterman v. Bitterman, 714 So. 2d 356, 365 (Fla. 1998). But 

the “doctrine is rarely applicable,” and is “reserved for those extreme cases 

where a party acts ‘in bad faith, vexatiously, wantonly, or for oppressive 

reasons.’” Id. (quoting Foster v. Tourtellotte, 704 F.2d 1109, 1111 (9th Cir. 

1983)).

Because the trial court erred in striking the plaintiffs’ pleadings based 

on their law firm’s “failure” to produce Rodriguez for deposition, it follows 

that it also erred in imposing attorney’s fees based on the same theory. 

The record does not support a finding of bad faith against the plaintiffs’ 

law firm. 

The plaintiffs also challenge the validity of the February 2018 order 

requiring them to provide a “better” address for Rodriguez. We agree with 

the plaintiffs that the trial court erred in entering the order, as the 

plaintiffs had already provided an address and Rodriguez was served at 

that address.

Based on the foregoing, we reverse and remand for further proceedings. 

The remaining issues raised on appeal are either moot, unpreserved, or 

without merit and we decline to address them.
10

Reversed and remanded.

TAYLOR and LEVINE, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.