## Facts

- The School Board sued D’s and D’s Transport & Equipment, Inc. for trespass and breach of contract and obtained final judgment, later followed by a fee judgment.
- Michael D. Brown, an attorney, represented D’s and D’s and filed notices of appeal from both judgments.
- While the appeals were pending, the School Board noticed a deposition in aid of execution for a corporate representative of D’s and D’s.
- Brown informed opposing counsel he could not attend the scheduled deposition; opposing counsel asked Brown to propose alternative dates and stated Brown should attend as scheduled (or obtain a protective order) if earlier alternatives were unavailable.
- Brown did not propose alternative dates, did not seek a protective order, and neither Brown nor D’s and D’s appeared for the deposition.
- The School Board moved for sanctions and an order compelling discovery; the trial court set an evidentiary hearing on an order to show cause.
- At the hearing, no witnesses were sworn, no testimony was taken under oath, and no affidavits or other competent evidence were introduced; the discussion consisted largely of attorney argument and unsworn representations.
- The trial court sanctioned Brown personally for fees and costs incurred due to the failed deposition, based on factual findings drawn from the unsworn representations.

## Issues

1. Whether a trial court may impose sanctions against an attorney when the factual basis for sanctions is derived solely from unsworn attorney statements and argument rather than competent evidence in the record.

## Decision

- The appellate court reversed the order imposing sanctions against Brown personally and remanded.
- The court held that the trial court improperly relied on unsworn statements and argument of counsel to make the factual findings necessary to support sanctions.
- The court indicated that sanctions may be reconsidered only on a proper evidentiary record.

## Legal Principles

- An attorney’s unsworn statements and argument at a hearing are not evidence.
- Factual findings supporting sanctions must rest on competent record evidence (e.g., sworn testimony, affidavits, or properly admitted documents).
- The absence of an objection does not convert unsworn attorney representations into evidence; the court must ensure an adequate evidentiary basis for sanctions.

## Conclusion

The sanction order was reversed because the trial court’s factual findings were based solely on unsworn attorney representations, which cannot support sanctions without competent evidence in the record.


Brown v. Sch. Bd. of Palm Beach Cnty., 855 So. 2d 1267 (Fla. 4th DCA 2003)