GILDA ROSENBERG, APPELLANT,
v.
ILEANA MORALES, APPELLEE
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Gilda Rosenberg appeals an order adopting a special master's recommendation to value shares in a closely-held corporation. The court reverses because the trial court referred the valuation matter to the special master without Rosenberg's consent, violating Florida Rule of Civil Procedure 1.490(c).
A trial court cannot refer such matters to a special master without the consent of both parties. Florida Rule of Civil Procedure 1.490(c) is clear on this requirement, and Rosenberg's repeated objections demonstrate she did not consent to the special master determining valuation.
[1] A trial court cannot refer matters to a special master without the consent of both parties.
[2] A party's objection to a special master's valuation hearing, even after consenting to the special master for discovery disputes, is sufficient to prevent the referral.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Florida Rule of Civil Procedure 1.490(c) is very clear that the trial court cannot refer matters to a special master without the consent of both parties.”
Establishes the controlling legal rule that both parties must consent to special master referral
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Join FLexlaw to unlock all legal intelligenceIleana Morales filed a petition to dissolve Gilly Vending, Inc., a corporation owned equally by Morales and Rosenberg. Rosenberg filed a notice to pur…
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RAMIREZ, J.
We deny rehearing, but withdraw our opinion of November 21, 2001, and substitute the following opinion to clarify our denial of attorney’s fees discussed in Part II.
Gilda Rosenberg, defendant below, appeals an order adopting the recommendation of the special master regarding the valuation of Ileana Morales’ shares in Gilly Vending, Inc. Because Rosenberg did not consent to the referral to the special master, we reverse.
I.
Morales filed a Petition of Dissolution of Gilly Vending, Inc., a corporation in which she and Rosenberg owned equal shares. Rosenberg then filed a Notice of Election to Purchase Shares. After the parties failed to reach agreement on the value of Morales’ shares, it became the trial court’s duty to value those shares. Instead, the court referred the evidentiary hearings concerning valuation to the special master it had previously appointed to deal with discovery disputes. Although Rosenberg’s counsel had previously consented to the special master overseeing discovery, he objected to the special master determining the value of Morales’ shares.
Florida Rule of Civil Procedure 1.490(c) is very clear that the trial court cannot refer matters to a special master without the consent of both parties. See Hulett Env. Serv., Inc. v. Advantage Pest Related Serv., Inc., 778 So. 2d 478 (Fla. 4th DCA 2001); Meenan v. Newman, 662 So. 2d 1320 (Fla. 3d DCA 1995). The record here shows that Rosenberg’s counsel objected repeatedly to the special master conducting the hearing on valuation. Even the Recommendation of Special Master states that “[t]his referral was done over the objection of the Defendants.”
We therefore reverse with instructions that Rosenberg be afforded her day in court.
II.
Rosenberg has moved for sanctions pursuant to section 57.105, Florida Statutes (2000). However, the referral to the special master was made on June 10, 1999. The effective date of the revision to section 57.105 is October 1, 1999. Thus, any sane- tions would have to be assessed under the old statute, which required a finding that the lawsuit was frivolous “from its inception.” Davis v. Christmas, 705 So. 2d 38 (Fla. 3d DCA 1997). Under no circumstances would such a finding be warranted in this case. See also Vasquez v. Provincial South, Inc., 795 So. 2d 216, 218 (Fla. 4th DCA 2001) (stating that “the principal expansion of section 57.105 refocused the time for measurement of frivolity from merely the inception of the action, to the entire pendency of the case”). We therefore deny any sanctions under section 57.105.
Reversed and remanded for further proceedings consistent with this opinion.
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Ileana Morales v. Gilda Rosenberg, 919 So. 2d 476 (Fla. 3d DCA 2005)…s court (Appeal I), Rosenberg challenged the referral to the special master, and we reversed based upon the well-established principle that a trial court may not refer a matter to a special master absent consent of the parties. Rosenberg v. Morales, 804 So. 2d 622, 623-24 (Fla. 3d DCA 2002). We also awarded appellate fees and costs to Rosenberg pursuant to Florida Rule of Appellate Procedure 9.410 on the ground that Morales forced Rosenberg to maintain a clearly meritless and unnecessary appeal. See Fla. R.Ap…
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Ileana Morales v. Gilda Rosenberg, 879 So. 2d 1237 (Fla. 3d DCA 2004)…ms motion for sanctions under section 57.105 but reversed the final judgment, concluding that the trial court had erred as a matter of law when it referred the valuation matter to the special master without Rosenberg’s consent. Rosenberg v. Morales, 804 So. 2d 622 (Fla. 3d DCA 2002)(Case No. 00-2021). By separate order the district court granted Rosenberg’s motion for fees and costs and remanded to the trial court to fix the amount [Order I, February 6, 2002], After the mandate issued, Morales sought to main…
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Lisette Arellano Bisson v. Arellano, 844 So. 2d 648 (Fla. 3d DCA 2003)…this court’s holding in Arellano v. Bisson, 761 So. 2d 365 (Fla. 3d DCA 2000). However, we reverse the fee award ordering plaintiffs’ attorney to pay fees as this attorney did not file the initial complaint in this action. See Rosenberg v. Morales, 804 So. 2d 622 (Fla. 3d DCA 2002); Inc. v. Party Prods., II, Inc., 738 So. 2d 515 (Fla. 3d DCA 1999). It is undisputed that this case is controlled by the 1995 version of section 57.105, that stated: The court shall award a reasonable attorney’s fee to be paid t…
Authorities Cited
- Justo Vasquez v. Provincial S., Inc., 795 So. 2d 216 (Fla. 4th DCA 2001)
- Davis v. Marvene M. Christmas, 705 So. 2d 38 (Fla. 3d DCA 1997)
- Meenan v. Newman, 662 So. 2d 1320 (Fla. 3d DCA 1995)
- Hulett Env't Servs., Inc. v. Advantage Pest Related Servs., Inc., 778 So. 2d 478 (Fla. 4th DCA 2001)