DANIEL S. PESUT, INDIVIDUALLY; DANIEL S. PESUT, AS GUARDIAN OF JENNIFER PESUT, A MINOR CHILD; SHARON A. PESUT, INDIVIDUALLY; VIRGINIA CARAHOFF PE-SUT, INDIVIDUALLY; DESTINY FINANCIAL SERVICES, INC., A FLORIDA CORPORATION; DESTINY FINANCIAL, INC., A FLORIDA CORPORATION; DESTINY FINANCIAL SERVICES GROUP, INC., A FLORIDA CORPORATION; GULFSIDE GROUP, INC., A FLORIDA CORPORATION; CYOD, L.L.C., A FLORIDA LIMITED LIABILITY CORPORATION; FIRST USA FINANCIAL, INC., A FLORIDA CORPORATION; PAUL HOFFMAN, INDIVIDUALLY; TERRANCE LANGHAM, INDIVIDUALLY; AND MARILYN LANGHAM, INDIVIDUALLY, PETITIONERS,
v.
SUZANNE V. MILLER, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF GORDON R. TAYLOR, DECEASED; SUZANNE V. MILLER, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF HELEN R. TAYLOR, DECEASED; SUZANNE V. MILLER, AS TRUSTEE OF THE REVOCABLE TRUST AGREEMENT OF GORDON R. TAYLOR, DATED DECEMBER 5, 1990; AND SUSAN MILLER, INDIVIDUALLY, RESPONDENT
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Petitioners sought a writ of mandamus to prevent a trial court from requiring them to resolve discovery disputes before a special master without their consent. The court held that under Florida law, a trial court lacks the authority to appoint a special master for discovery disputes without the consent of all parties, and granted the writ of mandamus.
A trial court lacks the inherent authority to appoint a special master to handle discovery disputes over the objection of a party. While Slatcoff remains cited as law, it does not authorize appointment of a special master for discovery disputes without party consent, as required by Florida Rule of Civil Procedure 1.490(c).
[1] A trial court cannot appoint a special master to resolve discovery disputes over the objection of a party, absent statutory authority.
[2] The consent of all parties is required for the reference of issues to a special master under Florida Rule of Civil Procedure 1.490.
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Join FLexlaw to unlock all legal intelligence“The consent of all parties is required for any reference to a special master.”
Establishes the fundamental requirement from Florida Rule of Civil Procedure 1.490 commentary that all parties must agree to special master appointment
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Join FLexlaw to unlock all legal intelligenceRespondent filed a lawsuit against Daniel S. Pesut and others alleging that Pesut, as a financial advisor, took unfair advantage of Helen R. Taylor an…
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ALTENBERND, Judge.
The Petitioners seek a writ of certiorari, prohibition, or mandamus to prevent the trial court from requiring them to resolve discovery disputes before a special master. The Petitioners did not consent to the reference of these issues to the special master. See Fla. R. Civ. P. 1.490(c). Precedent requires that we grant the writ of mandamus and compel the trial court to resolve these disputes without the help of the special master. See Honor v. Hinckley, 584 So. 2d 1129 (Fla. 4th DCA 1991); Taylor v. Taylor, 569 So. 2d 1389 (Fla. 4th DCA 1990); Bathurst v. Turner, 533 So. 2d 939 (Fla. 3d DCA 1988).
The Respondent filed a lawsuit against Daniel S. Pesut and several other defendants essentially alleging that Mr. Pesut, in his role as financial advisor, took unfair advantage of Helen R. Taylor and Gordon R. Taylor, both of whom are now deceased. Even from the limited record before this court, it is clear that discovery deteriorated to a level of conduct that would not be tolerated on an elementary school playground. Exasperated, the trial judge appointed a special master on June 1, 2000, to resolve all discovery disputes except for the imposition of sanctions. The parties are required to bear the initial cost of the special master under a pro rata formula, and the prevailing party is entitled to recover its costs for the master in the final judgment.
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). In 1954 and until the major revision of article V in 1972, circuit court judges had constitutional power to appoint “court commissioners” to perform functions similar to those performed by special masters. See, e.g., art. V, § 6(4), Fla. Const. (1969); art. V, § 14; Fla. Const. (1885). Circuit court judges no longer have this constitutional power. The supreme court’s 1984 commentary to Florida Rule of Civil Procedure 1.490 cites Slatcoff with a “see” signal, suggesting that the case is still good law. It is cited, however, for the proposition that
[t]he consent of all parties is required for any reference to a special master. Special masters may be used as provided by statute even with the rule change.
Fla. R. Civ. P. 1.490 (ct. commentary, 1984 amend.). No statute is involved in this case. 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.
We express no opinion as to the source or reason for the extensive discovery disputes in this case. It is likely that these disputes will consume valuable court resources. In the absence of a system comparable to the federal court model in which magistrates resolve most discovery disputes for the judges, the burden falls upon the trial judge to cope with this problem. The trial court, of course, has various sanctions it can impose against recalcitrant litigants.
Petition for Writ of Mandamus granted.
PARKER, A.C.J., and WHATLEY, J„ Concur.
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Novartis Pharms. Corp. v. Carnoto, 798 So. 2d 22 (Fla. 4th DCA 2001)…r certiorari. Mandamus lies to compel a trial court to resolve issues without a special master when the trial court has referred such issues to resolution by special master without the consent of both sides to a dispute. See, e.g., Pesut v. Miller, 773 So. 2d 1185 (Fla. 2d DCA 2000); Hanor v. Hinckley, 584 So. 2d 1129 (Fla. 4th DCA 1991); Taylor v. Taylor, 569 So. 2d 1389 (Fla. 4th DCA 1990); Bathurst v. Turner, 533 So. 2d 939 (Fla. 3d DCA 1988). These authorities are based on rule 1.490(c), Florida Rules of…
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Gielchinsky v. Vibo Corp., 5 So. 3d 785 (Fla. 3d DCA 2009)…withdrew his consent to have a special magistrate and moved to dispense with the special magistrate’s services. Consent of the parties is required to refer any matter to a special magistrate. See Fla. R. Civ. P. 1.490(c). See also Pesut v. Miller, 773 So. 2d 1185 (Fla. 2d DCA 2000); Miller v. Lifshutz, 558 So. 2d 195 (Fla. 4th DCA 1990). Concomitantly, if a party withdraws his consent, as Giel-chinsky did here with good cause due to financial reasons, then it logically follows that the matter is no longer ap…
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Wash. Park Props., LLC v. Estrada, 996 So. 2d 892 (Fla. 4th DCA 2008)…aintiffs’ filing of the third amended complaint. The fact remains that unless the parties agree, the arbitration issue cannot be referred to the general magistrate and must be heard by the trial court. See Fla. R. Civ. P. 1.490(c); Pesut v. Miller, 773 So. 2d 1185 (Fla. 2d DCA 2000). This is true notwithstanding that the same attorney represented both the contractors and the new defendants. The plaintiffs argue that the contractors’ attorney agreed at the December 11, 2007 hearing to have their new motions h…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Slatcoff v. Dezen, 74 So. 2d 59 (Fla. 1954)
- State v. Johnson, 533 So. 2d 939 (Fla. 3d DCA 1988)
- State v. Wayda, 533 So. 2d 939 (Fla. 3d DCA 1988)
- Hanor v. The Honorable Harry G. Hinckley, Jr., 584 So. 2d 1129 (Fla. 4th DCA 1991)
- Taylor v. Taylor, 569 So. 2d 1389 (Fla. 4th DCA 1990)
- Jenkins v. State, 569 So. 2d 1389 (Fla. 4th DCA 1990)