SONSON v. HEARN, 34 Fla. L. Weekly D1469 (Fla. 4th DCA July 29, 2009)

4th DCA overturned trial court’s dismissal of case as sanction for Plaintiffs’ failure to attend own deposition where record lacked sufficient evidence that Plaintiff, rather than Plaintiff’s attorney, was responsible for failure to appear.  Court found that the trial judge should have performed additional six part analysis for sanctions where the attorney, and not the client, is responsible for the non-compliance pursuant to Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993).


The case also provides an interesting footnote for the trial attorney:

In Leon Shaffer Golnick Advertising, Inc. v. Cedar, 423 So. 2d 1015, 1017 (Fla. 4th DCA 1982), this court made its position clear:

[T]he practice we wish to see terminated is that of attorneys making unsworn statements of fact at hearings which trial courts may consider as establishing facts. It is essential that attorneys conduct themselves as officers of the court; but their unsworn statements do not establish facts in the absence of stipulation. Trial judges cannot rely upon these unsworn statements as the basis for making factual determinations; and this court cannot so consider them on review of the record.