Rivero v. Meister, No. 4D09-2555 (Fla. 4th DCA Nov. 3, 2010)

The Defendant and his attorney failed to appear for a properly scheduled jury trial, the Court then continued the trial and the Plaintiff moved for sanctions.

After noting that the Court could have held the trial without the Defendant’s present, the Fourth DCA found that the Defendant’s actions in failing to appear for trial constituted negligence rather than bad faith.  As such, under Moakley v. Smallwood, 826 So. 2d 221, 226 (Fla. 2002), the conduct was not sanctionable pursuant to the Court’s inherent powers.
The Fourth DCA continued, in dicta, to state that it believed, for law and economics reasons, that the burden for even negligent conduct should be able to be shifted from the innocent party to the negligent party at the discretion of the trial court and certified for the Florida Supreme Court the following question:
DOES THE DEFINITION OF “BAD FAITH CONDUCT” IN MOAKLEY V. SMALLWOOD, 826 SO.2D 221 (FLA. 2002), INCLUDE RECKLESS MISCONDUCT WHICH RESULTS IN THE UNNECESSARY INCURRENCE OF ATTORNEYS’ FEES?