Adler v. Hohenberg (Florida) Co. ( 1987 )

OPINION OF THE COURT

PER CURIAM.

This appeal involved the propriety of an award of costs and attorneys fees subsequent to a Judgment for the defendant on the merits.

The Final Order (which is not being appealed) provided in Paragraph 2, as follows:

“That the Court reserves ruling on the award of costs and the award of expert witness fees to be determined on separate hearing along with the previously reservation regarding the award of attorney’s fees herein.”

The Final Order was entered by a predecessor judge and the Judgment for costs and attorney fees was entered by a successor judge, apparently assuming that the predecessor judge had determined that the fees and costs should be awarded. The award of costs and attorney fees was based upon the non-appearance of independent witnesses at deposition. We hold that under Rule 1.380, Rules of Civil Procedure, the successor judge should, after notice, conduct a hearing to determine whether or not the plaintiff caused the witnesses not to appear, that the motion was justified and that there were circumstances which would make an award of expenses just.

Accordingly, the Order awarding costs and attorney fees is reversed with directions to conduct a subsequent hearing in accordance with our opinion.

Reversed and remanded, with directions.