Garvin v. Tidwell

126 So. 3d 1224, 2012 WL 5232224, 2012 Fla. App. LEXIS 18508
CourtDistrict Court of Appeal of Florida
DecidedOctober 24, 2012
DocketNo. 4D11-2712
StatusPublished
Cited by7 cases

This text of 126 So. 3d 1224 (Garvin v. Tidwell) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Garvin v. Tidwell, 126 So. 3d 1224, 2012 WL 5232224, 2012 Fla. App. LEXIS 18508 (Fla. Ct. App. 2012).

Opinion

McMANUS, F. SHIELDS, Associate Judge.

Appellant appeals an order denying her motion to rescind a mediated settlement agreement because the appellee’s discovery responses failed to disclose an advertisement and other information potentially adverse to the defense. Because we find that appellee violated her discovery obli[1226]*1226gations, and the trial court abused its discretion in denying the motion, we reverse.

Appellee owned a ten-year-old quarter horse named “Buster,” whom she boarded at a stable. In June, 2009, after observing appellant ride other horses at the stable, appellee asked appellant, an experienced equestrian, if she would ride Buster. Appellant had limited her riding to docile horses in recent years, so she asked appel-lee several times whether Buster had ever exhibited any dangerous behavior. Appel-lee replied, “No.” During appellant’s third ride on Buster, he reared up on his hind legs, bolted off at a fast gallop, then stopped suddenly and abruptly changed directions. As a result, appellant fell off the horse, hit a fence, and fell to the ground. She suffered injuries to her back which required surgery.

Appellant filed a complaint against ap-pellee alleging negligence and negligent misrepresentation. Specifically, appellant alleged that Buster had a long and well-known history of bucking and running away with riders and appellee negligently failed to disclose Buster’s dangerous propensities.

During discovery, appellant sent one set of interrogatories and requests to produce. The discovery was reasonably calculated to produce the names of persons with any knowledge of facts at issue, the subject matter of their knowledge, and any “model, plat, map, drawing, motion picture, videotape, or photograph pertaining to any fact or issue involved.” One interrogatory asked for the names of persons and any documents concerning the care, maintenance, and training of the horse including feeding, medical issues, and riding. The request to produce sought statements and also documents identified in answers to interrogatories.

Appellee answered the discovery by giving twenty names and producing four photographs. Appellee objected to producing statements and documents identified in the answer to interrogatories on grounds of work product privilege. No privilege log was filed. No statements or documents were identified.

Appellant never filed a motion to compel in response to any of appellee’s answers. Appellant did depose appellee and her daughter, who was Buster’s primary caregiver. They testified of some incidences of Buster being “spooked” or “bucking,” mostly as a young horse, but said that was not a “characteristic.” Buster’s personality was described as “a gentleman” who was “lazy, if anything.” Appellee moved for summary judgment on the grounds that the only testimony was that Buster was a good horse.

The parties went to mediation and settled in the fall of 2010. Soon thereafter, appellant’s counsel received an unmarked envelope containing a magazine advertisement for a dietary supplement for horses dated “Spring 2010.” This advertisement featured a page about the horse calming successes of the supplement “Ex Stress,” featuring a color picture of Buster. The advertisement identified Buster’s owner as appellee. The advertisement quoted ap-pellee as saying that she decided to give Ex Stress to her horse, Buster, because he “can be a little difficult at times.” Appel-lee is quoted as saying, “What a difference it made in him. Ever since he’s been on it, we’ve had nothing but great rides.”

Appellee had not produced this advertisement in response to appellant’s discovery requests or mentioned use of any calming supplements. Neither appellee nor her daughter mentioned Buster’s use of calming supplements or “difficult” behavior during their depositions.

When asked by appellant’s counsel, ap-pellee’s counsel admitted that he and his client were in possession of the Ex Stress advertisement at the time of the deposi[1227]*1227tions and when they responded to the interrogatories and requests for production.

Appellant moved to reopen discovery and rescind the mediation agreement and for sanctions. She supported the motion with a verified memorandum. Appellee filed a response in which she contended the Ex Stress advertisement was not responsive to the discovery requests and was not inconsistent with the depositions. The trial court denied appellant’s motion to rescind the mediation agreement and for sanctions, and granted appellee’s motion to enforce the settlement.1

Requirement of Good Faith Discovery

Florida courts have long recognized that one of the primary functions of discovery is to enable parties to enter settlement negotiations with an understanding of their chances of success at trial.

A primary purpose in the adoption of the Florida Rules of Civil Procedure is to prevent the use of surprise, trickery, bluff and legal gymnastics. Revelation through discovery procedures of the strength and weaknesses of each side before trial encourages settlement of cases and avoids costly litigation. Each side can make an intelligent evaluation of the entire case and may better anticipate the ultimate results.

Surf Drugs, Inc. v. Vermette, 236 So.2d 108, 111 (Fla.1970).

“[L]awyers, out of respect for the adversary system, should make good faith efforts to comply with one another’s reasonable discovery requests.” Summit Chase Condo. Ass’n, Inc. v. Protean Investors, Inc., 421 So.2d 562, 564 (Fla. 3d DCA 1982). “Evasive or incomplete” answers can amount to a failure to answer and may also warrant the imposition of sanctions. Herold v. Computer Components Int’l, Inc., 252 So.2d 576, 579 (Fla. 4th DCA 1971). In Smith v. University Medical Center, Inc., 559 So.2d 393, 395 (Fla. 1st DCA 1990), the court found that the appel-lee had “disregarded his obligation to comply with discovery” by failing to “disclose the housekeeping map at issue after several discovery requests.”

In Schlapper v. Maurer, 687 So.2d 982 (Fla. 5th DCA 1997), the Fifth District concluded that counsel for a co-defendant had violated his “obligation not to lie about or misrepresent facts critical to the case” when he untruthfully represented to plaintiffs counsel that “[the co-defendant] had nothing to do with the treatment of [the plaintiff].” Schlapper, 687 So.2d at 984. Based on this representation, “the attorney for [the plaintiff] did not oppose the summary judgment which dismissed [the co-defendant] from the case.” Id.

In Leo’s Gulf Liquors v. Lakhani, 802 So.2d 337 (Fla. 3d DCA 2001), the Third District discussed the importance of honesty in discovery. Although this case is procedurally distinguishable from the ease at bar, the court’s discussion of discovery obligations is still relevant. The court explained that,

[witnesses who give sworn testimony by way of interrogatories, at depositions, pretrial hearings and trial, swear or affirm to tell the truth, the whole truth, and nothing but the truth. We expect and will settle for nothing less. Lawyers who advise their clients and/or witnesses to mince words, hold back on necessary clarifications, or otherwise obstruct the truth-finding process, do so at their own, and the clients’ peril.

[1228]*1228Leo’s Gulf Liquors, 802 So.2d at 343.

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Cite This Page — Counsel Stack

Bluebook (online)
126 So. 3d 1224, 2012 WL 5232224, 2012 Fla. App. LEXIS 18508, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garvin-v-tidwell-fladistctapp-2012.