Third District Court of Appeal
State of Florida
Opinion filed January 5, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-1869
Lower Tribunal No. 19-10810
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The Bank of New York Mellon, etc.,
Petitioner,
vs.
Regis Bontoux, et al.,
Respondents.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, Jose
M. Rodriguez, Judge.
Akerman LLP, and Nancy M. Wallace (Tallahassee); Akerman LLP,
and William P. Heller (Fort Lauderdale); Akerman LLP, and Eric M. Levine
(West Palm Beach), for petitioner.
Jacobs Legal, PLLC, and Bruce Jacobs, for respondent Regis
Bontoux.
Before FERNANDEZ, C.J., and GORDO and LOBREE, JJ.
GORDO, J.
The Bank of New York Mellon (“BONYM”) seeks to quash the trial
court’s order granting exceptions to the general magistrate’s report and
recommendation relating to discovery matters in the underlying foreclosure
action. We have jurisdiction. See Fla. R. App. P. 9.030(b)(2). Because the
trial court rejected the report without a sufficient record or a showing that the
general magistrate’s findings were clearly erroneous and compelled
production of overbroad and irrelevant discovery, we find the court departed
from the essential requirements of the law resulting in irreparable harm. We,
therefore, grant the petition for writ of certiorari and quash the order granting
exceptions to the general magistrate’s report.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2019, BONYM instituted proceedings to foreclose on Regis
Bontoux’s property. On January 20, 2021, the trial court referred all
discovery disputes in this action to the general magistrate and directed the
general magistrate to determine whether any objections BONYM raised in
response to Bontoux’s discovery requests were asserted in bad faith.1 The
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In discovery, Bontoux requested BONYM provide information regarding
when, how and by whom a rubberstamped endorsement came to be affixed
to Bontoux’s mortgage note. Bontoux also requested from BONYM certain
servicing history computer screenshots, which Bontoux claimed showed
when the endorsement forgery occurred. BONYM objected to providing the
information and responded that it was not in control or possession of the
screenshots.
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general magistrate heard the pending discovery matters over a two-day
period before issuing a 21-page report and recommendation. The general
magistrate’s report contained factual findings and specifically concluded that
BONYM’s objections to Bontoux’s redundant document requests were not
made in bad faith. As such, the general magistrate sustained, in part,
BONYM’s objections to certain discovery requests.
Bontoux filed exceptions to the general magistrate’s report, but did not
provide a record or written transcript of the relevant proceedings to the trial
court. On June 25, 2021, the trial court heard argument from the parties on
the exceptions and later issued a written order granting Bontoux’s
exceptions. The court found that BONYM’s denial of Bontoux’s discovery
requests was not done in good faith and ordered that the requested
documents be furnished in discovery.
LEGAL ANALYSIS
“Certiorari review of a discovery order is appropriate when it ‘departs
from the essential requirements of law, causing material injury to a petitioner
throughout the remainder of the proceedings below and effectively leaving
no adequate remedy on appeal.’” Harborside Healthcare, LLC v. Jacobson,
222 So. 3d 612, 615 (Fla. 2d DCA 2017) (quoting Bright House Networks,
LLC v. Cassidy,
129 So. 3d 501, 505 (Fla. 2d DCA 2014)). “Although not
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every erroneous discovery order is remediable by certiorari, a writ of
certiorari is ‘an appropriate remedy for discovery orders that depart from the
essential requirements of the law by requiring patently overbroad discovery
. . . .’”
Id. (quoting Life Care Ctrs. of Am. v. Reese,
948 So. 2d 830, 832 (Fla.
5th DCA 2007)). “[A]n order that entitles a party to carte blanche discovery
of irrelevant material demonstrates the type of irreparable harm that may be
remedied via petition for writ of certiorari.”
Id. (quoting Root v. Balfour Beatty
Constr. LLC,
132 So. 3d 867, 869 (Fla. 2d DCA 2014)). We find the
jurisdictional prongs for certiorari review are met in this case.
Next, we consider whether the trial court departed from the essential
requirements of the law.
When a trial court reviews the recommendations of a
general magistrate it takes on the role of an appellate
court. Thus, the trial court’s review . . . is limited to
determining whether the general magistrate’s
findings of fact are supported by competent
substantial evidence, and whether the general
magistrate either made clearly erroneous legal
conclusions or misconceived the legal effect of the
evidence.
Middleton v. Hager,
179 So. 3d 529, 533 (Fla. 3d DCA 2015) (quoting S.V.
v. Dep’t of Child. & Fams.,
178 So. 3d 421, 422–23 (Fla. 3d DCA 2015)).
“Once a trial court appoints a magistrate to . . . make findings, it loses the
prerogative of substituting its judgment for that of the magistrate.” Cerase v.
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Dewhurst,
935 So. 2d 575, 578 (Fla. 3d DCA 2006). “[A] [general
magistrate]’s findings of fact and conclusions of law come to the trial court
clothed with a presumption of correctness, and the trial court may only reject
these findings and conclusions if they are clearly erroneous or if the [general
magistrate] has misconceived the legal effect of the evidence presented.”
Khata v. Belova,
274 So. 3d 1208, 1209 (Fla. 3d DCA 2019) (quoting De
Clements v. De Clements,
662 So. 2d 1276, 1282 (Fla. 3d DCA 1995)).
Further, pursuant to Florida Rule of Civil Procedure 1.490(j), “[a] party
filing exceptions to the magistrate’s report must provide the court in advance
of the hearing a record sufficient to support that party’s exceptions.” If a
party fails to provide the court with a record sufficient to support a party’s
exceptions, the exceptions will be denied. Fla. R. Civ. P. 1.490(h). “A record
ordinarily includes a written transcript of all relevant proceedings.” Fla. R.
Civ. P. 1.490(h).
Bontoux did not furnish the trial court with a transcript of the hearings
before the general magistrate nor did he demonstrate any clear error on the
face of the report and recommendation. The trial court, nonetheless,
overruled all of the general magistrate’s findings based on the attorney’s
argument and extra-record filings from unrelated proceedings. The trial
court’s order failed to address whether the general magistrate’s findings
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were supported by competent, substantial evidence or whether the general
magistrate made clearly erroneous conclusions of law. As such, we find the
order departed from the essential requirements of law.
Petition granted, order quashed.
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