BANK OF AMERICA, N.A. v. LISA S. DULBERG DE MORALES ( 2020 )


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  •        Third District Court of Appeal
    State of Florida
    Opinion filed December 9, 2020.
    Not final until disposition of timely filed motion for rehearing.
    ________________
    No. 3D19-1782
    Lower Tribunal No. 13-00808
    ________________
    Bank of America, N.A.,
    Petitioner,
    vs.
    Lisa S. Dulberg De Morales, et al.,
    Respondents.
    A Writ of Certiorari to the Circuit Court for Miami-Dade County, Carlos M.
    Guzman, Judge.
    McGuireWoods LLP and Sara F. Holladay-Tobias (Jacksonville), for
    petitioner.
    Jacobs Legal, PLLC and Bruce Jacobs, for respondents.
    Before SCALES, LINDSEY and LOBREE, JJ.
    LOBREE, J.
    Bank of America, N.A. (the “bank”), petitions for a writ of certiorari to quash
    the lower court’s orders deferring ruling on its motion to dismiss and denying its
    alternative motion to stay discovery, sought against Lisa S. Dulberg De Morales (the
    “mortgagor”). We have jurisdiction pursuant to Florida Rule of Appellate Procedure
    9.030(b)(2)(A). Because the bank was entitled to a ruling on its motion to dismiss
    asserting immunity from suit before a ruling could be made compelling additional
    discovery disclosures, we agree that the trial court departed from the essential
    requirements of the law in deferring ruling on the motion to dismiss, compelling the
    discovery at issue, and failing to stay discovery.
    In April 2019, the mortgagor filed the operative, third amended complaint,
    raising two causes of action for purported racketeering and deceptive trade practice
    violations by the bank. The bank immediately moved to dismiss the complaint as
    stemming from acts protected by litigation immunity. In July of that year, at a
    hearing on the bank’s motion to set a hearing on its motion to dismiss, the trial court
    orally ruled that a future hearing would be coordinated with chambers to hear all
    pending motions. The mortgagor propounded discovery requests due August 22,
    2019. She also amended her motion for sanctions and to issue an order to show
    cause against the bank for purported discovery violations and fraud the year before.
    At a subsequent hearing on the bank’s motion to stay discovery pending a
    ruling on its motion to dismiss, the bank again argued that a ruling on its motion to
    dismiss, based on absolute immunity, was required before further discovery and
    other considerations took place, unless the very immunity asserted be defeated. The
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    mortgagor countered that its motion for sanctions and to show cause, alleging fraud
    on the court by the bank in the proceedings, should be heard first or simultaneously
    with the motion to dismiss, and that discovery should proceed regardless, since even
    if the motion to dismiss was successful, “their litigation privilege says [the trial
    court] shouldn’t let me sue them,” but the court could still “handle it through [its]
    inherent contempt powers.” The trial court made an oral ruling deferring both the
    motion to dismiss and the mortgagor’s motion for an order to show cause at a hearing
    to be coordinated by the parties. The trial court reserved ruling on the motion to
    stay, promising a ruling by the end of the day which did not take place.
    Weeks later, the mortgagor propounded more discovery requests. A week
    after the new discovery requests and almost a month since it reserved ruling on the
    motion to stay, the trial court issued an order denying the motion to stay. Because
    the denial of the stay arrived one day before the discovery was due, the bank moved
    for an extension of time to respond to outstanding discovery until twenty-eight days
    after the court’s ruling on its motion to dismiss. The trial court instead extended the
    time to respond to thirty days from its denial of the stay and specifying the date in
    September of 2019 when they were due.
    To be entitled to certiorari relief, the bank “must establish that the trial court’s
    order . . . departed from the essential requirements of law in a way that will cause
    irreparable harm.” Univ. of Miami v. Ruiz ex rel. Ruiz, 
    164 So. 3d 758
    , 763 (Fla. 3d
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    DCA 2015); Bank of New York Mellon v. Figueroa, 
    299 So. 3d 430
    , 433 (Fla. 3d
    DCA 2019), rev. denied, SC20-333, 
    2020 WL 2498181
     (Fla. May 13, 2020).
    Although “[a] party typically cannot invoke an appellate court’s certiorari
    jurisdiction based on the denial of a motion to dismiss,” “when the motion for
    summary judgment hinges on the application of a complete . . . immunity from suit
    . . . requiring a party entitled to that immunity to continue litigating the suit
    constitutes irreparable harm in and of itself.” Ruiz, 164 So. 3d at 763; see also James
    v. Leigh, 
    145 So. 3d 1006
    , 1008 (Fla. 1st DCA 2014) (same).
    Contrary to the bank’s suggestion, we cannot quash the trial court’s oral ruling
    deferring to rule on its motion to dismiss. “[T]his court lacks jurisdiction to review
    orders which have not been reduced to writing.” Rivera v. Dade County, 
    485 So. 2d 17
    , 17 (Fla. 3d DCA 1986); see also Davis v. Heye, 
    743 So. 2d 1200
    , 1200 (Fla. 5th
    DCA 1999) (dismissing petition for certiorari involving only oral ruling, not written
    order). Nevertheless, “[w]hile postponing discovery for a short period of time
    pending determination of material, outstanding motions [is] within the discretion of
    the trial court,” Deltona Corp. v. Bailey, 
    336 So. 2d 1163
    , 1169 (Fla. 1976), a trial
    court’s order denying a stay may qualify for certiorari review, see Spacebox Dover,
    LLC v. LSREF2 Baron, LLC, 
    112 So. 3d 751
    , 752 (Fla. 2d DCA 2013).
    The mortgagor is correct that the trial court had inherent authority to consider
    her motion for sanctions even after a dismissal, such as would have resulted from a
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    favorable ruling on the bank’s motion, as part of its jurisdiction over ancillary
    matters. See, e.g., Cutler v. Cutler, 
    84 So. 3d 1172
    , 1173 (Fla. 3d DCA 2012) (citing
    Tobkin v. State, 
    777 So. 2d 1160
    , 1163-64 (Fla. 4th DCA 2001)); see also
    Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 
    950 So. 2d 380
    , 384 (Fla.
    2007) (“[T]he justification behind immunizing defamatory statements applies
    equally to ‘other misconduct occurring during the course of a judicial proceeding’ .
    . . [and] adequate remedies still exist for misconduct in a judicial proceeding, most
    notably the trial court’s contempt power.”) (quoting Levin, Middlebrooks, Mabie,
    Thomas, Mayes Mitchell, P.A. v. U.S. Fire Ins. Co., 
    639 So. 2d 606
    , 608-09 (Fla.
    1994)).
    Given the purpose of the immunity asserted, the potentially dispositive nature
    of the motion, and the circumstances, the trial court abused its discretion in failing
    to stay discovery until it ruled on the bank’s motion to dismiss. Although the expense
    of continued litigation is ordinarily not a harm that warrants certiorari relief, it may
    lie in cases where the immunity asserted is from litigation altogether, and not just
    from liability. See, e.g., Tucker v. Resha, 
    648 So. 2d 1187
    , 1189 (Fla. 1994) (“[A]n
    order denying qualified immunity is ‘effectively unreviewable on appeal from a final
    judgment,’ as the public official cannot be ‘re-immunized’ if erroneously required
    to stand trial or face the other burdens of litigation.”) (quoting Mitchell v. Forsyth,
    
    472 U.S. 511
    , 527 (1985) (emphasis added); DelMonico v. Traynor, 
    116 So. 3d
                            5
    1205, 1215 (Fla. 2013) (litigation immunity is “from suit” altogether); Citizens Prop.
    Ins. Corp. v. San Perdido Ass’n, 
    104 So. 3d 344
    , 353 (Fla. 2012) (litigation immunity
    intended to prevent party from becoming involved in lawsuit altogether); O’Brien v.
    Exposito, 
    824 So. 2d 954
    , 955 (Fla. 3d DCA 2002) (certiorari available where party
    “will effectively lose [its] entitlement to . . . immunity if the case proceeds to trial,
    thereby causing irreparable injury”); Fla. Fish & Wildlife Conservation Comm’n v.
    Jeffrey, 
    178 So. 3d 460
    , 465 (Fla. 1st DCA 2015) (certiorari available against order
    denying officer’s assertion of qualified immunity but not against denial of state’s
    assertion of sovereign immunity, since potentially immune individual’s continued
    litigation is harm different from state’s continued exposure to litigation).
    Moreover, the same failure sufficiently shows that “the trial court departed
    from the essential requirements of the law.” Jeffrey, 178 So. 3d at 465-67 (granting
    certiorari against order deferring ruling on motion asserting qualified immunity); see
    also James, 145 So. 3d at 1008; 1 compare Maris Distrib. Co. v. Anheuser-Busch,
    Inc., 
    710 So. 2d 1022
    , 1025 (Fla. 1st DCA 1998) (granting certiorari against
    discovery stay only because it was “premature and without good cause”), with
    McCabe v. Foley, 
    233 F.R.D. 683
    , 685 (M.D. Fla. 2006) (“A request to stay
    discovery pending a resolution of a motion is rarely appropriate unless resolution of
    the motion will dispose of the entire case.”); and Theodore D’Apuzzo, P.A. v. United
    1
    We do not express any view on the merits of the bank’s pending motion to dismiss.
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    States, No. 16-62769-Civ, 
    2017 WL 3098713
    , at *2 (S.D. Fla. Apr. 11, 2017) (“A
    brief stay of discovery will not cause any prejudice to [the plaintiff], who will have
    sufficient opportunity to conduct discovery if his claims advance.”), and Rice v.
    Haines, 
    111 So. 3d 305
    , 305-06 (Fla. 5th DCA 2013) (granting stay of lower court
    discovery during certiorari proceedings where “denial of a stay will cause irreparable
    harm in the form of disclosure of the very things which are the subject of the pending
    petition”).
    Because even the mortgagor’s counsel correctly noted below that the motion
    to dismiss could dispose of the entire case, just not of other ancillary issues, a stay
    was not only appropriate, but required under the facts of this case. Accordingly, we
    grant the petition, quash the trial court’s order denying a stay and requiring
    discovery responses, and remand for further proceedings consistent with this
    opinion.
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