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3D12-0911 Opinion

3D12-0911 Opinion

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Published by Rumpole21
Order On Limited Registry
Order On Limited Registry

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Published by: Rumpole21 on Aug 07, 2012
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06/18/2014

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Third District Court of Appeal
State of Florida, January Term, A.D. 2012
Opinion filed June 20, 2012.Not final until disposition of timely filed motion for rehearing.________________No. 3D12-911Lower Tribunal No. 00-25711________________
Jimmie Bert, et al.,
Petitioners,vs.
Carlos Bermudez, et al.,
Respondents.A Case of Original Jurisdiction – Prohibition.Lewis Tein and Guy A. Lewis and Michael Tein, for petitioners.Ramon M. Rodriguez, for respondents.Before WELLS, C.J., and SHEPHERD and ROTHENBERG, JJ.ROTHENBERG, J.
 
 
2Tammy Owen Billie and Jimmy Bert (“the defendants”) and their currentcounsel, Lewis Tein, PL (“the Lewis Tein law firm”), petition this Court for a writprohibiting Judge Ronald Dresnick from presiding over the post-judgment mattersstill pending before the trial court. Because the trial court’s comments, when readin the context in which they were made, do not require disqualification, we denythe petition.The underlying lawsuit arose out of a tragic accident that occurred onTamiami Trail ten years ago. The accident, in which Gloria Liliana Bermudez waskilled and her husband Carlos Bermudez and their minor child were injured,resulted in a $3.177 million judgment rendered on August 5, 2009, against thedefendants, who are members of the Miccosukee Tribe of Indians of Florida (“theMiccosukee Tribe” or “the Tribe”). On July 21, 2011, nearly two years later,Judge Michael Genden, who was sitting in for Judge Dresnick, granted theplaintiffs’ motion for attorney’s fees, filed pursuant to section 57.105, FloridaStatutes, as a sanction against the defendants and the Lewis Tein law firm forvarious objections to discovery, delay tactics, and other discovery abuses theycommitted to hinder the plaintiffs’ post-judgment collection efforts, which to datehave resulted in the failure to collect even one cent on the judgment. Specifically,Judge Genden found the defendants’ general objections to discovery requests toproduce documents that in fact did not exist, for example, tax returns, and the
 
 
3refusal, over a two-year period, to answer interrogatories regarding documents thatdid not exist, entitled the plaintiffs to recoupment of their attorney’s fees as asanction. Judge Genden’s order was not appealed.On August 30, 2011, Judge Dresnick conducted a lengthy evidentiaryhearing to determine the sanction amount. At this hearing, Andrew Harris, whoprovided trial support to appellate counsel for the plaintiffs in this case, testified asto the value of the legal work provided to the plaintiffs; opined that the number of hours expended and the fees charged were reasonable; and speculated that theLewis Tein law firm probably billed two to three million dollars in the post-trialphase of the case. While cross-examining Mr. Harris, Mr. Tein asked him thefollowing questions:And, in fact, would it surprise you to know that we haven’tbeen paid a cent in this case for over a year?. . . .And, in fact, it doesn’t surprise you because you know that theDefendants don’t have the money to pay the judgment. That’s beenyour - - what you found, right?. . . .Do you want to withdraw your statement on direct, that youthink we’ve billed two to $3 million in the post trial phase of this case,to make sure that the Court isn’t prejudiced at all by that?. . . .And you’re not contending to Judge Dresnick that we’ve beenpaid by the Miccosukee Tribes of Indians, are you?After Mr. Harris responded that yes, he did believe the Lewis Tein law firmwas directly paid by the Miccosukee Tribe in this case, Mr. Tein asked, “Do you

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