Third District Court of Appeal State of Florida
Opinion filed October 25, 2023. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D22-585 Lower Tribunal No. 18-34772 ________________
Costco Wholesale Corporation, etc., Appellant,
vs.
Janetth Vargas, Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Beatrice Butchko, Judge.
Cooney Trybus Kwavnick Peets, and David Cooney (Fort Lauderdale), for appellant.
Fischer Redavid PLLC, and Terry P. Roberts (Hollywood), for appellee.
Before LOGUE, C.J., and EMAS and LINDSEY, JJ.
LOGUE, C.J. Costco Wholesale Corporation appeals two trial court orders awarding
plaintiff Janetth Vargas attorney’s fees and costs. The first order was entered
after Costco failed to comply with an earlier order to provide better responses
to Vargas’ interrogatories. The second order was entered because of the
conduct of Costco’s attorney and corporate representative at a deposition.
Costco argues the trial court abused its discretion in entering these orders.
For the reasons stated below, we affirm.
Background
In 2018, Vargas sued Costco for negligence. She alleged that on
September 23, 2017, she fell on a slippery surface at a Costco store located
at 7795 West Flagler Street, causing her personal injuries.
A. Interrogatory Dispute
During discovery, Vargas issued an interrogatory to Costco relating to
the condition of the location where Vargas fell. Costco objected. Vargas
moved to compel. The trial court overruled Costco’s objection. Costco then
answered the interrogatory by stating, “See objection previously filed.”
Vargas moved to compel again and sought attorney’s fees. In
response, Costco filed the affidavit of a paralegal attesting that the
inadequate answer was a result of her oversight. The trial court granted
Vargas’ motion for fees against Costco “for failing to comply with the prior
2 order” and awarded Vargas $675 in attorney’s fees, payable 30 days after
the expiration of Costco’s time to appeal the order.
B. Deposition Dispute
Also during discovery, Vargas noticed the deposition of Costco’s
corporate representative. The notice initially designated 77 separate topics,
although this number was reduced somewhat after Costco filed a protective
order. The deposition, which took place remotely, began with Vargas’
counsel asking the representative to identify the documents he had reviewed
to prepare for the deposition. Costco’s attorney instructed the representative
to refrain from disclosing anything the attorney had said or “anything that you
and I have exchanged.” The representative testified that the only document
he had reviewed was one of the trial court’s orders.
Vargas’ counsel then asked the representative to provide the “factual
basis for the affirmative defense that the plaintiff was the sole legal cause of
her injuries.” The witness began answering the question by reading from a
document. When Vargas’ counsel interrupted to ask about the document, the
witness testified the document had been prepared by Costco’s attorney and
emailed to him earlier that morning. The document had not been previously
identified. It was then marked as an exhibit. The witness testified that he
3 intended to answer at least certain questions by simply reading from the
document.
He was then asked again to provide the factual basis for one of the
affirmative defenses; he answered by reading from the document; and
Costco’s attorney interjected to state that the witness had read the wrong
answer. Vargas’ attorney ultimately terminated the deposition and brought
the dispute before the trial court. Vargas sought an award of fees and costs
against Costco for the expenses associated with having to cancel the
deposition and obtaining the trial court’s intervention in the dispute.
In response, Costco maintained that it provided the pre-written
answers to the representative, in part, because the document tracked
Costco’s answers to its interrogatories and it “wouldn’t expect the corporate
representative to say something different than what the corporation already
said.”
The trial court ultimately imposed attorney’s fees and costs against
Costco in the amount of $4,785.90, payable 30 days after the expiration of
Costco’s time to appeal the order.
4 Analysis
A. Jurisdiction
We have jurisdiction because the orders are final. Fla. R. App. P.
9.030(b)(1)(a). The orders concern a collateral discovery issue and
misconduct, and they order a specific amount of money be paid by a date
certain. See Saye v. Pieschacon, 750 So. 2d 759, 761 (Fla. 1st DCA 2000)
(“The appeal, insofar as it is from the order awarding attorney's fees and
costs, can proceed, however, despite the lack of a final judgment on the
issue of liability because the order awarding attorney's fees and costs
appears to be a final judgment which is independently appealable.”).
B. Standard of Review
This Court reviews the imposition of fees and costs for failure to comply
with an order compelling discovery and for misconduct for abuse of
discretion. Roco Tobacco (USA), Inc. v. Fla. Div. of Alcoholic Beverages,
934 So. 2d 479, 481 (Fla. 3d DCA 2004); Philip Morris USA Inc. v. Cohen,
340 So. 3d 498, 503 (Fla. 4th DCA 2022). “Reviewing courts apply a
‘reasonableness test’ to determine if the trial court has abused its discretion,
which provides that if reasonable people could differ as to the propriety of
the trial court's action, the action is not unreasonable, and no abuse of
discretion has occurred.” Ham v. Dunmire, 891 So. 2d 492, 495 (Fla. 2004).
5 C. Interrogatory Dispute
Florida Rule of Civil Procedure 1.380(b)(2) states that upon failing to
comply with a trial court order compelling discovery, the trial court:
shall require the party failing to obey the order to pay the reasonable expenses caused by the failure, which may include attorneys' fees, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
(emphasis added).
After being ordered to provide Vargas with better answers, Costco
simply renewed its prior objection that had already been overruled. Costco
explains this action as the error of a paralegal rather than the attorney who
submitted the answers. We find no abuse of discretion in the trial court
declining to accept this explanation. Without belaboring all its problems, we
note that Costco does not contest that the attorney’s fees at issue were
incurred because of Costco’s failure to obey the trial court’s order. See
Herold v. Comput. Components Int’l, Inc., 252 So. 2d 576, 580 (Fla. 4th DCA
1971) (“In the case where a party refuses to answer, a mere failure to comply
with an order of the court compelling an answer may result in sanctions under
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Third District Court of Appeal State of Florida
Opinion filed October 25, 2023. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D22-585 Lower Tribunal No. 18-34772 ________________
Costco Wholesale Corporation, etc., Appellant,
vs.
Janetth Vargas, Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Beatrice Butchko, Judge.
Cooney Trybus Kwavnick Peets, and David Cooney (Fort Lauderdale), for appellant.
Fischer Redavid PLLC, and Terry P. Roberts (Hollywood), for appellee.
Before LOGUE, C.J., and EMAS and LINDSEY, JJ.
LOGUE, C.J. Costco Wholesale Corporation appeals two trial court orders awarding
plaintiff Janetth Vargas attorney’s fees and costs. The first order was entered
after Costco failed to comply with an earlier order to provide better responses
to Vargas’ interrogatories. The second order was entered because of the
conduct of Costco’s attorney and corporate representative at a deposition.
Costco argues the trial court abused its discretion in entering these orders.
For the reasons stated below, we affirm.
Background
In 2018, Vargas sued Costco for negligence. She alleged that on
September 23, 2017, she fell on a slippery surface at a Costco store located
at 7795 West Flagler Street, causing her personal injuries.
A. Interrogatory Dispute
During discovery, Vargas issued an interrogatory to Costco relating to
the condition of the location where Vargas fell. Costco objected. Vargas
moved to compel. The trial court overruled Costco’s objection. Costco then
answered the interrogatory by stating, “See objection previously filed.”
Vargas moved to compel again and sought attorney’s fees. In
response, Costco filed the affidavit of a paralegal attesting that the
inadequate answer was a result of her oversight. The trial court granted
Vargas’ motion for fees against Costco “for failing to comply with the prior
2 order” and awarded Vargas $675 in attorney’s fees, payable 30 days after
the expiration of Costco’s time to appeal the order.
B. Deposition Dispute
Also during discovery, Vargas noticed the deposition of Costco’s
corporate representative. The notice initially designated 77 separate topics,
although this number was reduced somewhat after Costco filed a protective
order. The deposition, which took place remotely, began with Vargas’
counsel asking the representative to identify the documents he had reviewed
to prepare for the deposition. Costco’s attorney instructed the representative
to refrain from disclosing anything the attorney had said or “anything that you
and I have exchanged.” The representative testified that the only document
he had reviewed was one of the trial court’s orders.
Vargas’ counsel then asked the representative to provide the “factual
basis for the affirmative defense that the plaintiff was the sole legal cause of
her injuries.” The witness began answering the question by reading from a
document. When Vargas’ counsel interrupted to ask about the document, the
witness testified the document had been prepared by Costco’s attorney and
emailed to him earlier that morning. The document had not been previously
identified. It was then marked as an exhibit. The witness testified that he
3 intended to answer at least certain questions by simply reading from the
document.
He was then asked again to provide the factual basis for one of the
affirmative defenses; he answered by reading from the document; and
Costco’s attorney interjected to state that the witness had read the wrong
answer. Vargas’ attorney ultimately terminated the deposition and brought
the dispute before the trial court. Vargas sought an award of fees and costs
against Costco for the expenses associated with having to cancel the
deposition and obtaining the trial court’s intervention in the dispute.
In response, Costco maintained that it provided the pre-written
answers to the representative, in part, because the document tracked
Costco’s answers to its interrogatories and it “wouldn’t expect the corporate
representative to say something different than what the corporation already
said.”
The trial court ultimately imposed attorney’s fees and costs against
Costco in the amount of $4,785.90, payable 30 days after the expiration of
Costco’s time to appeal the order.
4 Analysis
A. Jurisdiction
We have jurisdiction because the orders are final. Fla. R. App. P.
9.030(b)(1)(a). The orders concern a collateral discovery issue and
misconduct, and they order a specific amount of money be paid by a date
certain. See Saye v. Pieschacon, 750 So. 2d 759, 761 (Fla. 1st DCA 2000)
(“The appeal, insofar as it is from the order awarding attorney's fees and
costs, can proceed, however, despite the lack of a final judgment on the
issue of liability because the order awarding attorney's fees and costs
appears to be a final judgment which is independently appealable.”).
B. Standard of Review
This Court reviews the imposition of fees and costs for failure to comply
with an order compelling discovery and for misconduct for abuse of
discretion. Roco Tobacco (USA), Inc. v. Fla. Div. of Alcoholic Beverages,
934 So. 2d 479, 481 (Fla. 3d DCA 2004); Philip Morris USA Inc. v. Cohen,
340 So. 3d 498, 503 (Fla. 4th DCA 2022). “Reviewing courts apply a
‘reasonableness test’ to determine if the trial court has abused its discretion,
which provides that if reasonable people could differ as to the propriety of
the trial court's action, the action is not unreasonable, and no abuse of
discretion has occurred.” Ham v. Dunmire, 891 So. 2d 492, 495 (Fla. 2004).
5 C. Interrogatory Dispute
Florida Rule of Civil Procedure 1.380(b)(2) states that upon failing to
comply with a trial court order compelling discovery, the trial court:
shall require the party failing to obey the order to pay the reasonable expenses caused by the failure, which may include attorneys' fees, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
(emphasis added).
After being ordered to provide Vargas with better answers, Costco
simply renewed its prior objection that had already been overruled. Costco
explains this action as the error of a paralegal rather than the attorney who
submitted the answers. We find no abuse of discretion in the trial court
declining to accept this explanation. Without belaboring all its problems, we
note that Costco does not contest that the attorney’s fees at issue were
incurred because of Costco’s failure to obey the trial court’s order. See
Herold v. Comput. Components Int’l, Inc., 252 So. 2d 576, 580 (Fla. 4th DCA
1971) (“In the case where a party refuses to answer, a mere failure to comply
with an order of the court compelling an answer may result in sanctions under
Rule 1.380 and no willful disregard or deliberate intent to disobey is required
to be shown.”).
6 D. Deposition Dispute
Costco argues that a corporate representative should be allowed to
have a document with relevant information on him or her as the
representative may not have personal knowledge of each designation topic.
Indeed, a corporate representative does not need to have personal
knowledge of the information requested. Sybac Solar, GMBH v. 6th St. Solar
Energy Park of Gainesville, LLC, 217 So. 3d 1068, 1071 (Fla. 2d DCA 2017).
But there are two problems here: (1) the document that the witness intended
to consult during the deposition (indeed to read from) was not disclosed
when opposing counsel asked for such documents; and (2) Costco’s
attorney coached the representative during the opposing counsel’s
examination to provide only the answers the lawyer had written down for him.
See R.J. Reynolds Tobacco Co. v. Morales, 237 So. 3d 1093 (Fla. 3d DCA
2017) (holding the trial court did not depart from essential requirements of
law when it entered sanctions for coaching a witness during the other
attorney’s examination). See also Florida Bar v. James, 329 So. 3d 108 (Fla.
2021) (sanctioning an attorney who texted a witness instructions on how to
answer questions during a remote deposition).
These problems are in no way justified by Costco’s desire to ensure its
representative’s answers stayed consistent with Costco’s answers to
7 interrogatories. To the contrary, exploring such inconsistencies is one
function of a deposition.
For these reasons, we conclude the trial court did not abuse its
discretion in imposing fees and costs against Costco for the conduct of its
representative and attorney at the corporate representative’s deposition.
Affirmed.