Fla v. Bermudez

• Decision Date: 19 July 2012
• Docket Number: Nos. 3D12–842,3D12–871.,s. 3D12–842
• Citation: 92 So.3d 232
• Parties: MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, etc., Appellant, v. Carlos BERMUDEZ, et al., Appellees.
• Court: Florida District Court of Appeals

92 So.3d 232

MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, etc., Appellant,

v.Carlos BERMUDEZ, et al., Appellees.

Nos. 3D12–842, 3D12–871.

District Court of Appeal of Florida, Third District.

May 23, 2012.

Rehearing Denied July 19, 2012.

Bernardo Roman III, for petitioner.

Lewis Tein, and Guy A. Lewis, Michael R. Tein and Susan Capote; Ramon M. Rodriguez, for respondents.

Before WELLS, C.J., and SHEPHERD and ROTHENBERG, JJ.

SHEPHERD, J.

The Miccosukee Tribe of Indians of Florida, a federally recognized Indian Tribe, petitions this Court for certiorari relief from an order denying the Tribe's Motion for Protective Order and to Quash Subpoena for Deposition issued to Tribal Officer and General Counsel Bernardo Roman III, Esquire. We deny the petition.

The petition in this case emanates from a contentious series of post-judgment proceedings in execution on a $3.177 million dollar judgment rendered on August 5, 2009, against Miccosukee Tribe members, Tammy Gwen Billie and Jimmie Bert, arising out of a tragic automobile accident, which occurred on the Tamiami Trail in western Miami–Dade County ten years earlier. Gloria Liliana Bermudez died in the crash, and her husband, Carlos Bermudez, and their minor son, Matthew Bermudez, were injured. There have been no fewer than twenty post-judgment motions for sanctions since the judgment was rendered,including criminal contempt, slung by the parties' counsel against each other under the guise of the parties themselves. The plaintiffs have yet to realize any recovery on the judgment. The Tribal defendants assert penury.

The slice of this unseemly clash which appears before us arises from a sua sponte order by the trial court to Lewis Tein, PL, most prominently Michael Tein, to justify a statement he made to the trial court under oath on August 30, 2011, that the Miccosukee Tribe did not pay for the firm's services in the defense of the tribe members in the wrongful death case.¹ This order, in turn, was animated by an earlier order entered by the trial judge, awarding $3500 in attorney fees against Lewis Tein, PL, pursuant to section 57.105(2) of the Florida Statutes (2011), for discovery abuse and delay for first objecting to a post-judgment execution discovery request and, after the objections were overruled, responding that there were no such documents. See First Healthcare Corp. v. Hamilton, 740 So.2d 1189, 1193 n. 2 (Fla. 4th DCA 1999), disapproved of on other grounds by Fla. Convalescent Ctrs. v. Somberg, 840 So.2d 998 (Fla.2003) (finding such conduct to constitute discovery abuse and improper delaying tactics) (citing Greenleaf v. Amerada Hess Corp., 626 So.2d 263, 264 n. 1 (Fla. 4th DCA 1993)). The court in the earlier order expressly stated the amount of the sanction would have been “significantly different”—the plaintiffs claimed they incurred $150,000 in unnecessary attorney fees and costs litigating the subject matter of the request for production over a two-year span—if “Mr. Lewis and/or Mr. Tein [were] in fact representing the Miccosukee Tribe in attempting to avoid paying this judgment,” and the Tribe “was paying for [the] representation” of the defendants.

A few days after the trial court sanction order was entered against Lewis Tein, PL, Miccosukee officer and Tribal counsel, Bernardo Roman III, for reasons mystifying to us—plaintiffs' counsel made clear in these post-judgment proceedings he is pursuing theories he believes would make the Tribe liable to satisfy the judgment as well—supplied plaintiffs' counsel with copies of checks drawn on the Miccosukee Tribe General Account payable to Lewis Tein, PL, in the amount of $3,111,567.63, for the defense of Tammy Gwen Billie and Jimmie Bert in the Bermudez wrongful death and personal injury litigation, from May 2005 through April 2010. At oral argument on this petition, Mr. Roman represented that the Miccosukee Tribe had duly authorized him, as their counsel, to deliver the checks to plaintiffs' counsel and that indeed, the Tribe itself paid Lewis Tein, PL's, fees and costs for the defense of Tammy Gwen Billie and Jimmie Bert. In sharp contrast to Mr. Roman's representations, Lewis Tein, PL, has placed in the record the affidavits of Interim Miccosukee Tribe Chairman (1989–2009), Billy Cypress, and former Miccosukee Tribe Accounting Supervisor/Finance Officer (1990–2009), Julio Martinez, averring that Tammy Billie and Jimmie Bert, together with his wife, Louise Bert, “were solely responsible for Lewis Tein's legal fees,” and “[i]n all cases, those payments were either (a) charged against their distributions on a current basis, or (b) loans from the Tribe to them against future distributions.”

Thankfully, it is not our job to decide the truth of the statements made, or determine whether Mr. Tein committed perjury, or Mr. Lewis or Lewis Tein, PL, are guilty of related misdeeds. It is our task to determine only whether the trial court departed from the essential requirements of law by denying Mr. Roman's Motion for Protective Order and to Quash [His] Subpoena for Deposition. This is a case in which the facts easily drive the conclusion that there is no departure.

It is true, as Bernardo Roman III, argues on his own behalf, the Tribe has sovereign immunity from suit, and this extends to protect the Tribe from complying with subpoenas. See United States v. James, 980 F.2d 1314, 1319 (9th Cir.1992). However, Tribal members in their individual capacity have no sovereign immunity. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 59, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). At such a deposition, the witness can refuse to answer questions, for example, about Tribal practices and policies and, if these were the only plausible reasons for taking the deposition, a court might deny a motion to compel attendance of a witness altogether. Knox v. U.S. Dep't of the Interior, No. 4:09–CV–162–BLW, 2012 WL 465585, at *1 (D.Idaho Feb. 13, 2012). In this case, however, Mr. Roman offers no plausible argument that the inquiry desired to be made of him—solely whether Lewis Tein, PL's, legal bills were paid by the Tribe or the individual defendants—is in any way related to Tribe practices and policies, and thus sufficient to raise the specter of immunity.²

Mr. Roman seeks to render Knox inapplicable to our case on the ground that in Knox, the Shoshone Bannock Tribe asked and were granted the right to file an amicus brief accompanied by declarations of three of their tribal members, triggering the order authorizing a deposition limited to the topics covered in the declarations, whereas the activity of the Tribe in this case was extra record activity. We are not persuaded by the distinction. Mr. Roman has made plain that his duly authorized act of providing the checks to plaintiffs' counsel was intended to influence ongoing litigation in our state courts. With the Tribe's blessing, he has elected to insert...