Aurora Bank v. Cimbler
| Decision Date | 17 June 2015 |
| Docket Number | Nos. 3D14–2872,3D14–2873.,s. 3D14–2872 |
| Citation | 166 So.3d 921 |
| Parties | AURORA BANK, etc., et al., Petitioners, v. Saul CIMBLER and Florida Mediation, LLC, Respondents. |
| Court | Florida District Court of Appeals |
166 So.3d 921
AURORA BANK, etc., et al., Petitioners
v.
Saul CIMBLER and Florida Mediation, LLC, Respondents.
Nos. 3D14–2872
3D14–2873.
District Court of Appeal of Florida, Third District.
June 17, 2015.
Rumberger, Kirk & Caldwell, and Suzanne Barto Hill, Candy L. Messersmith and Kevin R. Gowen, Orlando, for petitioners.
Thomas P. Murphy, for respondents.
Before ROTHENBERG, FERNANDEZ and SCALES, JJ.
Opinion
SCALES, J.
On this bizarre set of facts, Aurora Bank n/k/a Nationstar Mortgage, petitioner here and plaintiff below (“the Bank”), seeks both (i) certiorari review of the trial court's order compelling discovery, and (ii) a writ of prohibition seeking to prohibit the trial court from further exercising its jurisdiction over this case and imposing sanctions against the Bank and its counsel. We consolidated the Bank's two petitions, and, for the reasons expressed below, grant both petitions.
I. Background Facts
In June 2012, the Bank filed a foreclosure action against defendant Zenaida Hechevarria Otamendi. Throughout the litigation, the Bank was represented by the law firm of Ronald R. Wolfe & Associates, P.L. (“the Wolfe Law Firm”).
On April 16, 2014, the trial court ordered the parties to mediation. The defendant suggested the parties use Saul Cimbler, a Florida Supreme Court certified circuit-civil mediator. Mr. Cimbler is the president of Florida Mediation & Arbitration, LLC (“Florida Mediation”) (throughout this opinion, Mr. Cimbler and Florida Mediation are collectively referred to as “Mr. Cimbler”). The defendant's counsel contacted Mr. Cimbler to arrange the mediation, and, on April 23, 2014, Mr. Cimbler served the parties with a Notice of Mediation. The notice scheduled the mediation for April 29, 2014, at 2:00 p.m.
In an email dated April 24, 2014 (from the Wolfe Law Firm to the defendant), the Bank objected to using Mr. Cimbler as a mediator. The parties agreed to use an alternate mediator.
Apparently, Mr. Cimbler was not timely notified that his mediation services would not be necessary. Consequently, on April 29, 2014, Mr. Cimbler filed a Motion for Sanctions pursuant to Florida Rule of Civil Procedure 1.720(f) ( “First Motion for Sanctions”). Mr. Cimbler's motion requested that the trial court impose sanctions against the Bank's counsel (the Wolfe Law Firm) for what Mr. Cimbler characterized as the Bank's unilateral cancellation of the scheduled mediation “for tactical or other internal reasons.” Mr. Cimbler sought the cost of the canceled mediation and collection fees.
On April 30, 2014, the trial court conducted a hearing on Mr. Cimbler's First Motion for Sanctions.1 The trial court granted the First Motion for Sanctions and ordered the Wolfe Law Firm to pay Mr. Cimbler $1,250 for “the cost of the cancelled mediation and costs of bringing this matter before the court....” (“the First Sanctions Order”).
The Bank (through its counsel) filed a timely motion for rehearing of the First Sanctions Order, arguing that it did not unilaterally cancel the mediation for tactical or internal reasons. The Bank argued: (i) the mediation was not set by agreement of the parties; (ii) the Bank promptly objected to using Mr. Cimbler as a mediator; (iii) the defendant agreed to use an alternate mediator; (iv) the mediation was canceled by the defendant; and (v) the First Motion for Sanctions was improperly filed by Mr. Cimbler because Mr. Cimbler is not eligible to practice law and is therefore not qualified to appear on behalf of Florida Mediation.
In response to the Bank's motion for rehearing, Mr. Cimbler filed a Second Motion for Sanctions in which Mr. Cimbler also requested a “judicial inquiry” (“Second Motion for Sanctions and Request for
Judicial Inquiry”). In this motion, Mr. Cimbler requested that the trial court “conduct a judicial inquiry to establish the existence of, or pattern by the Wolfe Law Firm of prior instances of similar conduct impacting the orderly administration of justice and to met [sic] out the sanctions commensurate with its findings.”
Mr. Cimbler then propounded two sets of interrogatories and two sets of requests for production directed at the Bank and the Wolfe Law Firm. In these discovery requests, Mr. Cimbler sought, inter alia: (i) information and documents related to the Bank's motion for rehearing; (ii) information and documents relating to the Bank's or the Wolfe Law Firm's internal process for selecting and retaining mediators for the past five years; (iii) a specific reason why the Bank or the Wolfe Law Firm decided to exclude Mr. Cimbler from mediating this action; and (iv) for the past five years, each date, case number, and person involved in preventing Mr. Cimbler from being engaged or retained as a mediator in any case involving the Bank or the Wolfe Law Firm.
The Bank (through its counsel) moved for protective orders asserting that the discovery requests were improper as Mr. Cimbler was not a party to the action. The motions for protective orders further argued that the requested information was irrelevant, confidential, or privileged. The trial court deferred ruling on the motions for protective orders.
Meanwhile, Mr. Cimbler filed a Motion to Intervene in the foreclosure case, requesting that the trial court permit him to intervene in the action for purposes of propounding discovery.
On July 31, 2014, the trial court conducted a hearing on Mr. Cimbler's Motion to Intervene and the Bank's motions for protective orders. The trial court granted Mr. Cimbler's Motion to Intervene “for purposes of discovery[,]” and without addressing the Bank's privilege objections, denied the Bank's motions for protective orders.
On September 3, 2014, a consent final judgment was entered in the underlying foreclosure case, ending the litigation between the Bank and the defendant.
On September 19, 2014, the Bank filed a notice of withdrawal of its motion for rehearing of the First Sanctions Order, believing that such withdrawal would end any need for further judicial labor of this case.
On September 19, 2014, the trial court conducted a hearing on Mr. Cimbler's Second Motion for Sanctions and Request for Judicial Inquiry (that was filed in response to the Bank's motion for rehearing of the First Sanctions Order). The trial court ordered that the issues of sanctions and judicial inquiry be tolled until responses to the discovery were provided. The order compelled discovery responses to be served no later than September 29, 2014.
Thereafter, on September 26, 2014, the Bank provided some, but not all, of the requested discovery. Regarding the information it did not provide,...
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