IN THE DISTRICT COURT OF APPEAL SECOND DISTRICT, LAKELAND, FLORIDA. L.T. Case No CA-4619 PETITION FOR WRIT OF CERTIORARI OR MANDAMUS

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1 IN THE DISTRICT COURT OF APPEAL SECOND DISTRICT, LAKELAND, FLORIDA SALTWATER HOME RESOURCES, INC., Petitioner, L.T. Case No CA-4619 v. Case No.: 2D12- UNITED SERVICES AUTOMOBILE ASSOCIATION and HONORABLE PETER DUBENSKY, Respondents. / PETITION FOR WRIT OF CERTIORARI OR MANDAMUS Petitioner, SALTWATER HOME RESOURCES, INC. ( Saltwater ), by and through its undersigned counsel, petition this Court for a Writ of Certiorari vis a vis the lower court s April 2, 2012 Order granting the Motion to Appoint Magistrate of Respondent, UNITED SERVICES AUTOMOBILE ASSOCIATION ( USAA ), and directing the parties to resolve their discovery disputes before a magistrate in the face of Petitioner s objections. Alternatively, Petitioner petitions this Court for a Writ of Mandamus, to compel the Honorable Peter Dubensky, the presiding judge in the lower court proceeding ( Judge Dubensky ), to adjudicate the parties discovery disputes himself, without referral to a magistrate. In support, Petitioner would show:

2 BASIS FOR THIS COURT S JURISDICTION 1. Petitioner challenges an Order of the lower court entered on April 2, 2012, which grants Respondent s Motion to Appoint Magistrate and requires the parties to resolve their discovery disputes via a magistrate in lieu of a ruling from the lower court. 2. This Court has jurisdiction to grant certiorari and/or mandamus pursuant to Fla.R.App.Pro (b)(3). See Urbanek v. Hopkins, 65 So. 3d 645 (Fla. 4th DCA 2011); Rosenberg v. Morales, 804 So. 2d 622 (Fla. 3d DCA 2002); Hulett Enviro. Svcs, Inc. v. Advantage Pest Related Svcs., Inc., 778 So. 2d 478 (Fla. 4th DCA 2001) Pesut v. Miller, 773 So. 2d 1185 (Fla. 2d DCA 2000). FACTS: BACKGROUND 3. Saltwater entered a contract with a third-party named Mark Griggs, an insured of USAA. Pursuant to that contract, Griggs assigned the benefits of a postloss claim to Saltwater after his home was damaged by hail. Saltwater, the assignee of benefits, filed suit against USAA after it denied coverage. See Appendix to Petition, The lower court case has proceeded in a relatively normal way. USAA filed an Answer, then a Motion for Summary Judgment, which the lower court denied. See Appendix to Petition, 2, Meanwhile, the parties had discovery disputes on both sides, to 2

3 include motions to compel the other side s corporate representative to submit to deposition. See Appendix to Petition, 4, Rather than conducting a hearing on those motions, the lower court granted USAA s Motion to Appoint Magistrate, see Appendix to Petition, 6, even in the face of Saltwater s written objection, see Appendix to Petition, 7, and verbal objections in open court. See Appendix to Petition, Notably, the lower court made this ruling without reading the case law of Saltwater s undersigned counsel, as cited herein, and, respectfully, without even allowing the undersigned to be heard. Even when the undersigned pointed to case law which did not allow such a ruling, the lower court invited Saltwater to bring the instant proceeding. See Appendix to Petition, Additionally, the lower court expressly declined to rule on these motions, putting off such a ruling until after the magistrate presided over depositions. See Appendix to Petition, This timely petition ensued. ARGUMENT 10. Fla.R.Civ.P (c) provides: No reference shall be to a magistrate, either general or special, without the consent of the parties. 11. This Court, as well as its sister courts, have routinely granted 3

4 certiorari, mandamus, or both, where the lower court refers the parties to a magistrate without the consent of all parties. See Urbanek, Hulett, and Rosenberg, supra. This Court s decision in Pesut, for example, is precisely on point. In that case, this Court noted discovery deteriorated to a level of conduct that would not be tolerated on an elementary school playground. 773 So. 2d at Nonetheless, this Court granted the petition for writ of mandamus, explaining: Id. The trial judge believed he had inherent authority to appoint this special master, perhaps as a method to preserve his own sanity, in light of Slatcoff v. Dezen, 74 So. 2d 59 (Fla. 1954). Whatever limited vitality may remain in Slatcoff, it does not authorize a trial court to appoint a special master to handle discovery disputes over the objection of a party. 12. Saltwater s undersigned counsel respectfully submits that the discovery in the lower court case had not deteriorated to a level of conduct that would not be tolerated on an elementary school playground. Regardless, even if the lower court disagreed, the lower court could not refer the parties to a magistrate without Saltwater s consent. See id. 13. Notably, when presented with this case (in the limited time the undersigned was given to argue the point), the lower court refused to follow it, indicating only that this was an opportunity for this Court to revisit its ruling in Pesut. 4

5 14. Respectfully, Pesut and its progeny were binding on the trial court. Saltwater made its objections to a magistrate clear, see Appendix to Petition, 7 and 8, and the lower court was prohibited from entering the Order at issue in the face of these objections. 15. This is a black-and-white issue. The Order at bar required the consent of all parties, yet Saltwater plainly did not consent. As such, the Order should be quashed, either via mandamus or certiorari. CONCLUSION 16. In light of the foregoing, this Court should grant certiorari or mandamus, quash the Order at issue, and direct the lower court to adjudicate the parties discovery disputes itself, without input from a magistrate. 5

6 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via U.S. Mail to Honorable Peter Dubensky, 1051 Manatee Ave. W., Bradenton, FL and Angela Roush, Esq., W. Carmen St., Suite 2120, Tampa, FL on this day of April, Mark P. Stopa, Esquire FBN: STOPA LAW FIRM 447 Third Ave. N. Suite 405 Tampa, FL Telephone: (727) ATTORNEY FOR PETITIONER CERTIFICATE OF FONT COMPLIANCE I HEREBY CERTIFY that the instant Petition complies with the font requirements of Fla.R.App.P (l). Mark P. Stopa, Esquire 6