Hernando Co. School Board v. Nazar
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
JANUARY TERM 2006
HERNANDO COUNTY
SCHOOL BOARD,
Appellant,
v.
CASE NO. 5D05-1623
PAUL NAZAR and
ALISON NAZAR,
Appellee.
________________________________/
Opinion filed February 17, 2006
Appeal from the Circuit Court
for Hernando County,
Daniel Merritt, Sr., Judge.
John D. Jopling, Elizabeth M. Collins and
David M. Delaney of Dell Graham, P.A.,
Gainesville, for Appellant.
Peter M. Capua of Lorenzo & Capua,
Miami, for Appellee.
PALMER, J.
ON MOTION FOR SANCTIONS
The Hernando County School Board has filed a motion with this court
seeking the imposition of sanctions against appellee, Paul Nazar, and his
counsel, Peter Capua, for their failure to appear at court-ordered appellate
mediation. Concluding that Paul Nazar and Attorney Capua failed to comply with
this court’s Order of Referral to Mediation without good cause, we grant the
motion and impose the sanctions set forth herein.
By order dated June 22, 2005, this court referred the instant matter to
appellate mediation. The Order of Referral specifically provided:
Parties with full settlement authority and counsel are
required to attend mediation in person unless
excused from attendance by the court. Failure of an
attorney or party to appear for a duly scheduled
mediation conference or otherwise comply with the
Appellate Mediation Program Procedures, without
good cause, may result in imposition of sanctions by
this court, including the striking of any party’s briefs,
denial of oral argument or dismissal of the appeal.
Mediation in this matter was scheduled for September 2, 2005 in
Hernando County. The mediator chosen by the parties traveled to the mediation
from Orlando. Counsel for the Hernando County School Board traveled from
Gainesville for the mediation, while representatives of the Hernando County
School Board traveled from Palatka and Brooksville.
Paul Nazar did not appear for the scheduled mediation. Attorney Capua
did not appear in person for the mediation, although he attempted to appear by
telephone. While no motion was filed with this court seeking to excuse the
personal appearance of either Paul Nazar or Capua, Capua contacted the
mediator’s office and sought to be excused from appearing personally at the
mediation. The mediator could not, and thus did not, excuse the personal
appearance of either Capua or Paul Nazar due to this court’s order which
expressly stated that personal attendance can only be excused by the court.
In his reply to the instant motion for sanctions, Capua states that his
inability to personally attend the mediation was the result of certain medical
problems and a doctor appointment. However, he never brought those matters to
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the attention of this court prior to the mediation, nor sought court permission to
be excused from personal attendance at the mediation. The failure of Paul Nazar
to appear in person at the mediation allegedly resulted from his need to travel out
of state to help relatives victimized by Hurricane Katrina. However, once again,
no such facts were brought to the attention of this court prior to the scheduled
mediation, nor was a motion filed by Nazar seeking permission to be excused
from personal attendance at the mediation.
Having failed to seek permission from this court to be excused from
appearing, or to show good cause for their failure to appear at the mediation,
imposition of sanctions are appropriate against both Paul Nazar and Capua. See
Holler v. De Hoyos, 898 So. 2d 1216 (Fla. 5th DCA 2005); Harrelson v. Hensley,
891 So. 2d 635 (Fla. 5th DCA 2005).
Accordingly, Paul Nazar and Capua are hereby each ordered to pay fifty
percent of the following amounts as sanctions within 30 days from the date of this
opinion: 1) all fees charged by the mediator in connection with this appellate
mediation; and, 2) reasonable attorney’s fees and costs incurred by Hernando
County School Board in preparing for and attending the appellate mediation and
filing the motion for sanctions. Capua is prohibited from charging the sanctions
imposed against him to his client.
If the parties cannot agree on the reasonable amount of costs and
attorney’s fees, the trial judge in this matter is hereby appointed as a
commissioner to conduct an evidentiary hearing and determine the reasonable
amount of those fees and costs. Any dispute over the reasonable amount of
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attorney’s fees and costs shall not delay the obligation to timely pay the fees set
forth in paragraph one above. Failure to make the payments ordered herein may
result in further sanctions by this court.
MOTION GRANTED; SANCTIONS IMPOSED.
PLEUS, C.J., and SHARP, W., J., concur.
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