IN THE DISTRICT COURT OF APPEAL THIRD DISTRICT OF FLORIDA CASE NO. 3D12-3051 CARLOS E.

BERMUDEZ, individually, as surviving husband of GLORIA LILIANA BERMUDEZ, deceased, as Personal Representative of the Estate of GLORIA LILIANA BERMUDEZ, deceased, and as father and natural guardian of MATTHEW BERMUDEZ, a minor Petitioners v. JIMMIE BERT, TAMMY GWEN BILLIE and LEWIS TEIN, P.L., MICHAEL R. TEIN and GUY A. LEWIS, Respondents.

RESPONDENTS LEWIS TEIN, P.L., MICHAEL R. TEIN, AND GUY A LEWIS'S RESPONSE TO PLAINTIFFS' EMERGENCY PETITION FOR WRIT OF CERTIORARI
Respondents, Lewis Tein, P.L. ("Lewis Tein"), Michael Tein ("Tein"), and Guy Lewis ("Lewis") hereby submit this response to Plaintiffs' Emergency Petition for Writ of Certioari ("Petition").

INTRODUCTION
In January, 2012 nearly a year before Petitioners filed their Petition the trial court made clear that it would schedule an evidentiary hearing to test 1

Plaintiffs' scandalous accusation that Lewis and Tein committed perjury when they testified that their law firm, Lewis Tein, was not paid by the Miccosukee Indian Tribe (the "Tribe") for representing Defendants, Jimmie Bert ("Bert") and Tammy Gwen Billie ("Billie"), individual members of the Tribe. Plaintiffs have had ample time to conduct discovery. And since making their unfounded allegations, additional information supporting Lewis Tein has come to light including, but not limited to, testimony from Bert -- who was deposed twice after Plaintiffs filed their Petition pursuant to a previously-entered order -- and the recent, post-Petition disclosure of Tribe documents that completely support Lewis Tein's assertion that Billie and Bert paid their own legal fees.' In light of the history of these proceedings and recent disclosures, it is questionable how Plaintiffs continue to advance their attack upon Lewis Tein in good faith. Perhaps not surprisingly, on the eve of Lewis Tein's day in Court, Plaintiffs sought a stay from the trial court and, when the trial court denied it, Plaintiffs filed their Petition and Emergency Motion to Stay The Evidentiary

1 Lewis Tein has filed a Request for Judicial Notice contemporaneously with the filing of this Response to draw attention to the disclosure of documents that have been filed below, including documents that directly support Lewis Tein and undermine the representations made in the Petition and Emergency Motion to Stay filed contemporaneously therewith. Lewis Tein has also requested the Court to take judicial notice of the Motion to Withdraw filed by attorney Andrew Harris and Lewis Tein's response, both at the trial court and in Bermudez v. Bert, et al., Case No. 3D11-588. (See App.13).
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Hearing Scheduled This Morning For the Monday After Thanksgiving, November 26, 2012 ("Emergency Motion to Stay"). The Court should deny the Petition as meritless because Plaintiffs have not demonstrated that the trial court departed from the essential requirements of law by controlling its docket to ensure that the case is advanced timely or that they would suffer irreparable harm by proceeding with the hearing on this limited but significant issue that has impugned the integrity of Lewis Tein.

FACTUAL BACKGROUND
This case arose out of a car accident involving two members of the Miccosukee Tribe of Indians of Florida (the "Tribe"), Billie and Bert, resulting in the unfortunate death of Gloria Liliana Bermudez and injuries to her husband and son. Following entry of judgment against Billie and Bert, the Plaintiffs (Petitioners herein), pursued collection effort resulting in discovery disputes and a sanction against Lewis Tein. Plaintiffs sought to shift responsibility for the judgment to the Tribe by claiming that the Tribe paid Lewis Tein's legal fees (App.1:162;

Cf. App.18:21-22). 2
At a hearing on August 30, 2011 in connection with the fees issue, Tein advised the trial court that the Tribe did not pay Billie and Bert's legal fees. Rather, Tein and Lewis explained to the trial court that Billie and Bert remained
2

Citations to the Appendix are made by reference to the corresponding tab, followed by the page number (App.Tab:Page). 3

fully responsible for the payment of their own legal fees (App.2:195-96). Tein emphasized there was no Indemnity Agreement between the Tribe and Lewis Tein, or between the Tribe and Billie and Bert, Lewis Tein's clients (App.2:197-98). During that same hearing, Tein advised the trial judge that neither he nor Lewis had ever been sanctioned (App.2:199).

The Criminal Contempt Controversy

On September 2, 2011, Plaintiffs served a Motion for Criminal Contempt Against Michael R. Tein and Plaintiffs' Motion for Sanctions Against Guy A. Lewis ("Plaintiffs' Motion for Contempt") (App. 3). Plaintiffs asserted therein that at the August 30, 2011 hearing, Tein misrepresented to the trial judge that he had never been sanctioned. Plaintiffs based this assertion upon two orders from Miccosukee Tribal Courts dated April 12, 2007 and June 25, 2007 (See App.3:4-5;

see also Exhs. 2 and 3 attached thereto).

Lewis Tein responded to the Motion for Contempt on September 6, 2011 and refuted Plaintiffs' charges by filing a sworn affidavit from Billy Cypress, who served as Chairman of the Miccosukee Tribe of Indians of Florida during the relevant time-period and through 2009 (App.4). Cypress swore that as Chairman, he served as chief of Tribal justice, including its appellate component, and that as chief arbiter of all questions of Miccosukee Indian Law and Procedure, he had reviewed and vacated the referenced April 12 and June 25, 2007 sanctions orders 4

App.8:2). In support of their position, Lewis Tein filed affidavits executed by Billie, Cypress, Bert, and Tribe Accounting Supervisor/Finance Officer Julio Martinez, who each swore that Billie and Bert were solely responsible for legal fees paid to Lewis Tein (See App.8:Comp. Exhs. A-B). Specifically, Cypress explained through his affidavit that he directed the Tribe to write checks to pay Lewis Tein in the nature of advances that were charged against Billie and Bert's distributions as members of the Tribe (App.8:Comp. Exh. A). Martinez corroborated Cypress's testimony and explained that Billie and Bert, like many members of the Tribe who lived on the reservation, did not have checking accounts. Thus, in his capacity as Finance Officer, and with the approval of the Tribe's Business Council, he directed the Tribal accounting staff to write checks to Lewis Tein, and he confirmed such payments were charged against Billie and Bert's tribal distributions or booked as loans to Billie and Bert to be deducted from future distributions (App.8: Comp. Exh. A, Martinez Aff., 4;

See also App.8:2).

Lewis Tein's Motion for Sanctions Pursuant to Section 57.105, Fla. Stat. Lewis Tein also filed Defendants' Motion for Sanctions pursuant to Section 57.105, Florida Statutes ("Motion for Sanctions") (App.9). Through the Motion for Sanctions, Lewis Tein asserted that Plaintiffs' Motion for Rehearing, Plaintiffs' Supplemental Motion for Rehearing, 1.540 Motion, and Motion for Rehearing of 6

as "illegal, null, and void" based upon bias on the part of the Tribal hearing officer who imposed the sanction (See App.4:2,5). On September 16, 2011, the trial court denied the Motion for Contempt (App.5).

Plaintiffs' Motions for Rehearing of the Order Denying Their Contempt Motion
Shortly after the trial judge denied the Motion for Contempt, Plaintiffs filed a Motion for Rehearing ("Plaintiffs' Motion for Rehearing") (App.6) and, on October 21, 2011, filed their Supplemental Motion for Rehearing Regarding the August 30, 2011 Hearing and Order Issued on September 13, 2011 ("Plaintiffs' Supplemental Motion for Rehearing") (App.7). In the Plaintiffs' Supplemental Motion for Rehearing, Plaintiffs challenged Lewis Tein's representation that Billie and Bert, rather than the Tribe, remained completely responsible for legal fees. Plaintiffs argued that they acquired "newly discovered evidence" supporting a claim of fraud on the Court -- copies of checks written by the Tribe that seemed to suggest payment by the Tribe to Lewis Tein (App. 7:2). Lewis Tein filed its Omnibus Response to Motion for Relief, Motions for Rehearing and Supplemental Motion for Rehearing ("Omnibus Response") (App.8), clarifying that the "5 years' worth of heavily redacted checks" attached to Plaintiffs' Supplemental Motion for Rehearing had nothing to do with the current litigation, but related "to dozens of matters" that Lewis Tein handled during the years their firm represented the Tribe and other individual Tribe members. (See
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the trial court's order denying criminal contempt and sanctions were all defeated by the undisputed affidavits signed by Cypress, Martinez, Billie, and Bert corroborating Tein's in-court representation that Billie and Bert were solely responsible for legal fees -- not the Tribe.

The Court's Rulinji on Plaintiffs' Motion for Rehearinji

On January 10, 2012, the trial court entered an Order on Plaintiffs' Motion to Reconsider the Court's Ruling of December 12, 2011, which expressly allowed Plaintiffs to take additional depositions but made clear that such discovery would be limited to "the issue presented, which is Plaintiffs' claim that Mr. Tein and Mr. Lewis committed perjury when they testified that they were not paid by the Miccosukee Indian Tribe for their representation of the Defendants." (App.10). An evidentiary hearing was originally scheduled for May 3-4, 2012 and on February 21, 2012, Lewis Tein provided Plaintiffs' counsel with a list of intended witnesses (App.11). On or about April 25, 2012, the trial court entered an Order on Plaintiffs' Motion for Continuance of Evidentiary Hearing and rescheduled the hearing for "a future date." (App.12).

Lewis Tein's Deposition of Bernardo Roman

To further refute Plaintiffs' accusations of perjury and demonstrate the veracity of Lewis and Tein's representations, Lewis Tein deposed Bernardo Roman, the Tribe's current counsel, who, as this Court noted in a prior proceeding, 7

"elected to insert himself into the post-judgment discovery contretemps" by providing the checks to Plaintiffs' counsel -- actions the Honorable Judge Shepherd characterized as "mystifying." Miccosukee Tribe of Indians of Fla. v.

Bermudez, 92 So. 3d 232, 234 (Fla. 3d DCA 2012). 3

Lewis Tein's Due Process Evidentiary Hearing on Perjury Accusations

Faced with the ongoing scandalous accusations against their good name and reputation, on September 11, 2012, Lewis Tein filed its Motion to Set Evidentiary Hearing on "Perjury" Accusations and a Request for Special Set Hearing Before Judge Ronald Dresnick (App.14). On or about September 13, the trial court scheduled a hearing for November 26, 2012 at 10:30 a.m. (App.15). On November 7, 2012, Plaintiffs filed a Motion to Continue Evidentiary Hearing Scheduled for November 26, 2012, expressing concern that counsel for Lewis Tein had set that evidentiary hearing to address "only one of Plaintiffs' motions," arguing that "[i]t makes no sense to conduct an evidentiary hearing" that only addresses one of Plaintiffs' motions while "ignoring the principal motions"
3 In addition to Roman's mystifying actions in disclosing the checks in the first

place, since the filing of the Petition, the Tribe has produced internal documents supporting Lewis Tein's representations to the trial court that the checks constituted proceeds of loans or advances by the Tribe to Billie and Bert against their distributions. Lewis Tein has filed a separate Request for Judicial Notice of Court Records Relevant to Issues Raised In Petition for Writ of Certiorari, dated Jan. 9, 2013, which includes Tribal financial documents and Council minutes that confirm Lewis Tein's longstanding contention that any funds provided by the Tribe represented loans or advances against Billie and Bert's annual distributions to enable Billie and Bert to pay for legal representation (See App.13). 8

an approach that Plaintiffs contended "would be a waste of Plaintiffs' and this Court's resources." (See App.16:2-3). The Court denied the request, in an Order dated November 13, 2012, and reiterated the scope of the hearing would cover the same topics as set forth in its September 13 Notice of Hearing App.17:1-2 with App.15). (Compare

Plaintiffs' Request to Postpone Lewis Tein's Evidentiary Hearinji

At a hearing addressing several pending discovery matters on November 21, 2012, Plaintiffs argued before the trial judge that the evidentiary hearing scheduled for Monday, November 26, 2012 should be postponed in order to enable the Plaintiffs to obtain more discovery relating to the perjury accusation and, specifically, Plaintiffs' Motion for Rehearing and Plaintiffs' Supplemental Motion for Rehearing. Plaintiffs' counsel asserted that he was still attempting to obtain discovery in connection with the issue of whether the Defendants or the Tribe were paying the legal fees at issue and that they were still searching for the original retainer agreement between Billie and Bert and Lewis Tein (App.18:26). Lewis Tein asserted, on the other hand, that Plaintiffs had sufficient time to complete discovery, including deposing both Lewis and Tein on October 9, 2011 and again on November 19, 2011 (App.18:44, 49). Furthermore, Lewis and Tein, who were both working for different law firms when they started representing

Billie and Bert, testified they did not have a copy of the original retainer agreement. (App.18:45). The trial judge denied the request to continue the hearing and ruled that the hearing would proceed. (App.18: 49-50). The trial judge observed that he had specially set the hearing, rescheduled an ongoing trial in another matter to address the Lewis Tein issue, and had already continued the hearing. (App.18:36). The trial judge cautioned that he was "beyond patience" and had made clear that the gist of the hearing would be to address the various motions and response that related to the single, overriding issue of whether Lewis and Tein committed perjury. (See App.18:39). Following the hearing, the trial judge entered an order clarifying the scope of the hearing so as to reflect his intent to address the various collateral motions connected to the Lewis Tein perjury accusations. (App.19). Rather than proceed with the hearing, Plaintiffs filed the Petition accompanied by the Emergency Motion to Stay. In the Petition, Petitioners asserted, albeit without a supporting appendix, that the trial judge departed from the essential requirements of law by denying the verbal request to continue the hearing.

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ARGUMENT

I.

PETITIONERS MUST MEET A VERY HIGH BURDEN TO OBTAIN THE EXTRAORDINARY WRIT OF CERTIORARI.
As a threshold matter, Petitioners must meet a very high burden to obtain the

"extraordinary" remedy of a writ of certiorari. See, e.g., Broward County v. G.B. V. Int'l, Ltd., 787 So. 2d 838, 842 (Fla. 2001) ("The writ never was intended to redress mere legal error, for common law certiorari-above all-is an extraordinary remedy, not a second appeal."). Certiorari is appropriate "in very limited circumstances" where a party demonstrates that a trial court's order represented "(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case[,] (3) that cannot be corrected on postjudgment appeal." Bd. of Trustees of Internal Improvement Trust Fund v. Am. Educ. Enterprises, LLC, 99 So. 3d 450, 454 (Fla. 2012). See also Allstate Ins. Co. v. Boecher, 733 So. 2d 993, 999 (Fla. 1999) (describing certiorari as an "'extraordinary remedy that should not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of non-final orders.") (internal citations omitted).

II.

THE TRIAL COURT DID NOT DEPART FROM THE ESSENTIAL REQUIREMENTS OF LAW BECAUSE IT IS WELL-SETTLED THAT A TRIAL COURT HAS THE INHERENT AUTHORITY TO CONTROL ITS OWN DOCKET.
It is not surprising that after levying scandalous and baseless accusations

against Lewis Tein and creating a media maelstrom, Plaintiffs are reluctant to 11

allow the trial court to bring an end to these proceedings. Indeed, although over one year has elapsed since Plaintiffs first raised the specter of perjury, they have not produced or discovered a shred of support for this accusation. On the contrary, continuing discovery has shed more light on these circumstances and supported Lewis Tein's position that Billie and Bert, not the Tribe, remained responsible for the legal fees that are at the heart of this controversy. Plaintiffs have not demonstrated the high burden for certiorari relief based upon the trial judge's decision to proceed with the hearing rather than entertain further delays. A "departure from the essential requirements of law" means "a violation of a clearly established principle of law resulting in a miscarriage of justice.'" Abbey v. Patrick, 16 So. 3d 1051, 1053-54 (Fla. 1st DCA 2009). To demonstrate entitlement to certiorari relief, a party must do something more than demonstrate an erroneous application of the law. See id. at 1054. The trial judge did not depart from the essential requirements of law. On the contrary, he reasonably exercised his inherent authority to control his docket and move the languishing issue toward closure. See SR Acquisitions-Florida City, LLC v. San Remo Homes at Florida City, LLC, 78 So. 3d 636, 638 (Fla. 3d DCA 2011) ("A trial court has broad discretion to manage its docket...."); Rodriguez v. Thermal Dynamics, Inc., 582 So. 2d 805, 806 (Fla. 3d DCA 1991) (affirming the

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"right and duty" of the trial court's "exercise of its inherent authority to manage and control its docket" by ordering dismissal for lack of prosecution). Florida Rule of Judicial Administration 2.545(b) requires trial judges to "take charge of all cases at an early stage in the litigation" and to "control the progress of the case thereafter until the case is determined." See Wilson v.

Salamon, 923 So. 2d 363, 369 (Fla. 2005) (J. Pariente, concurring) (quoting the predecessor rule, Fla. R. Jud. Admin. 2.085(b)). Because of the heavy volume of litigation in Florida courts, which are heavily constrained by finite resources, trial court judges "must be managers as well as adjudicators," and therefore "have an obligation to ensure that cases do not languish on the docket." Id. (quoting FusterEscalona v. Wisotsky, 781 So. 2d 1063, 1066 (Fla. 2000) (Harding, J., specially concurring)). Plaintiffs have not cited a single statute or rule of procedure the trial court violated, and have fallen far short of meeting the high burden for certiorari. The trial court acted well within its broad authority when it proceeded with a hearing specially set months in advance, after postponing it previously, following a period of months in which all sides had engaged in considerable discovery. (See App. 18: 36). As the trial court made clear: "I understand your position that you're still trying to obtain discovery. And my position, is, we're moving forward." (App.18:49-50). 13

Plaintiffs have also failed to demonstrate the trial court departed from the essential requirements of law because the order denying a continuance promoted efficient, fair, and orderly movement of the litigation. Trial judges must use their inherent authority to manage their courtrooms "fairly, efficiently, and expeditiously." See Smith v. Smith, 964 So. 2d 217, 219 (Fla. 2d DCA 2007). "The "bedrock principle" underlying the rules of civil procedure is the desire to promote the orderly movement of litigation." Totura & Co. v. Williams, 754 So. 2d 671, 678 (Fla. 2000). Specifically, Fla. R. Civ. P. 1.010 directs that Florida's rules of civil procedure "shall be construed to secure the just, speedy, and inexpensive determination of every action." See Wilson v. Salamon, 923 So. 2d 363, 370 (Fla. 2005); See also Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993) (identifying purpose as "encourag[ing] the orderly movement of litigation"); Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983) (observing that "[t]he purpose of the rules of civil procedure is to promote the orderly movement of litigation"); Amlan, Inc. v. Detroit Diesel Corp., 651 So. 2d 701, 704-05 (Fla. 4th DCA 1995) (citing Mercer for proposition that "[t]he purpose of the Rules of Civil Procedure is to promote the orderly movement of litigation"). Moreover, contrary to the assertions contained in the Petition (and the Emergency Motion to Stay), the trial court did not "unilaterally" or "sua sponte" set the evidentiary hearing on the morning of November 21 or only days in 14

advance, as Petitioners have represented to this Court. (See App.20:4,

TT 7, 8, 12).

Both of these assertions are belied by the history of these proceedings. The trial court actually scheduled the hearing after Lewis Tein filed a Notice of Hearing at the court's direction, following Lewis Tein's September hearing request (See

App.14; App.15). This was months -- not days -- before the scheduled hearing. In an order dated November 13, 2012, the court once again reiterated the same scope of issues as it had earlier established in its September 13 Notice of Hearing (App.17:1-2, Cf. App.15). Indeed, the trial judge made this clear to Plaintiffs at the November 21, 2012 hearing when they sought the continuance: I'm not I'm not listen. My I I have I THE COURT: thought I made it pretty clear I'm not going to continue it. I have specially set this. I've got two days set aside. I did it long ago. I don't know how long ago. MR. ELEGANT: Months ago. THE COURT: I had continued it at least twice before that, I think. I know for sure once, probably twice before that. It is an extreme inconvenience for the Court to specially set long matters. (App. at 18: 36). As the colloquy continued: THE COURT: [T]his case falls on the last day of a three-week trial period I mean the last week of a three-week trial period. Right after a holiday, a two-day holiday. And it was a short week to begin with. MR. ELEGANT: Correct.

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THE COURT: I mean, it was like a nothing week. So what I had to do was move a trial that said: "We can't go in week two because of Thanksgiving plans and everything." I moved them to Week 2 anyway, so I would have the time aside for you. I didn't want anything to interfere with your hearing. (App.18: 36-37). Also contrary to Plaintiffs' contention, the "two Defendants who are the central witnesses" -- Lewis and Tein -- have not "steadfastly refused to answer discovery" or failed to appear for depositions. (See App.20: 3, 5). Lewis Tein has already produced approximately 80,000 pages of documents, and Plaintiffs have deposed both Lewis and Tein -- twice -- prior to the trial court's Order Denying Continuance and prior to Plaintiffs' Petition and Emergency Motion for Stay. The trial court did not depart from the essential requirements of law when it managed its docket fairly, efficiently, and expeditiously by ordering both sides to proceed with the evidentiary hearing as scheduled. Compare Smith, 964 So. 2d at 219 (noting procedural due process requires a right to be heard, and "[t]he trial court has a duty to control the proceedings, ensuring that both sides have a fair share of the court's time") with (App.16:2-3) (Plaintiffs' argument that lilt makes no sense to conduct an evidentiary hearing" that only addresses one of Plaintiffs' motions while "ignoring the principal motions" because it "would be a waste of Plaintiffs' and this Court's resources"). This Court should deny the Petition.

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III. PARTIES DO NOT HAVE THE RIGHT TO UNFETTERED, UNLIMITED DISCOVERY SIMPLY BECAUSE AFTER NEARLY A YEAR OF SEARCHING THEY HAVE NOT FOUND SUPPORT FOR THEIR ACCUSATIONS.
Moreover, Plaintiffs have not, and cannot, cite any authority suggesting that a litigant has a right to unfettered, unlimited discovery, particularly when the trial judge already compelled discovery on the issue at hand (See, e.g., App.17; App.18:35; App.21; App.22). Plaintiffs have had ample time to complete discovery but have found nothing to support their perjury charge. On the contrary, all documents uncovered during the discovery process support Lewis Tein's position that Billie and Bert remained responsible for their fees. Moreover, the cases Petitioners cite in support of their argument are inapposite (See Petition at 7-10). For example, Southern Bell Telephone and Telegraph Company v. Welden, 483 So. 2d 487 (Fla. 1st DCA 1986), involves a case where a party filed a motion for relief from a judgment pursuant to Fla. R. Civ. P. 1.540 following a jury trial alleging fraudulent testimony by the plaintiff. The trial court denied the petitioner's request to conduct discovery, and also declined the request for an evidentiary hearing. Southern Bell, 483 So. 2d at 489. The First District reversed, holding that, when a party presents a "colorable entitlement to rule 1.540(b)(3) relief, a formal evidentiary hearing on the motion, as well as permissible discovery prior to the hearing, is required." Id. In stark contrast to Southern Bell, Petitioners here were trying to prevent an evidentiary 17

hearing after "permissible discovery" had already been completed. Southern Bell does not support Plaintiffs' argument. Similarly, Plaintiffs cite a series of cases for the proposition that denial of an opportunity to depose a defendant warrant certiorari relief. (See Petition at 8-11). None of these cases are applicable, however, because Plaintiffs have already deposed relevant witnesses in conjunction with this matter, including Lewis and Tein twice. (See Petition at 8) (citing Pelekis v. Florida Keys Boys Club, 302 So. 2d 447 (Fla. 3d DCA 1974) and Pearlman v. Pearlman, 425 So. 2d 666 (Fla. 3d DCA 1983) for the proposition that Rule 1.540(b) requires an evidentiary hearing, fair discovery, and deposition of party opponents and other key witnesses). Plaintiffs also assert that "[r]ecent appellate decisions continue to confirm" that Rule 1.540(b) entitles a moving party to discovery "to address evidence of fraud or misconduct" (Petition at 11). The statement is true as a general proposition of law, but inapplicable here. The trial judge is providing Plaintiffs with their day in court, but Plaintiffs seek to delay. See Petition at 11 (citing Wolff v. Star Realty Trust No. 12549, Corp., 2011 WL 554851, at *1, 2 (Fla. 3d DCA Nov. 16, 2011), Risch v. Bank of America, 72 So. 3d 161, 162 (Fla. 2d DCA 2011), and Robinson v. Weiland, 936 So. 2d 777, 781-82 (Fla. 5th DCA 2006) (noting
.

that Rule 1.540 relief requires an evidentiary hearing and permissible discovery prior to that hearing). 18

In Power Plant Entertainment, LLC v. Trump Hotels & Casino Resorts Development Co., LLC, 958 So. 2d 565 (Fla. 4th DCA 2007) (en banc) -- a case Plaintiffs cite (Petition at 4) -- the court emphasizes that litigants should not file "petitions from denials of fishing expeditions." See Power Plant Ent., LLC, 958 So. 2d at 567. This language is pertinent. As the trial court correctly observed: [T]o keep continuing things to get the Court -- to make your case perfect, in your eyes perfect, all right, isn't going to happen. It's never going to be perfect. Nothing in this world is perfect. We'll move as best we can. (App.18:37) The court was authorized to control its docket, weigh the concerns of all the parties, and limit discovery because, "[a]s is always the case, the scope and limitation of discovery is within the broad discretion of the trial court." Friedman v. Heart Inst. of Port St. Lucie, Inc., 863 So. 2d 189, 194 (Fla. 2003); see also SCI Funeral Services of Florida, Inc. v. Light, 811 So. 2d 796, 798 (Fla. 4th DCA 2002). The trial court below acted in accordance with all applicable legal authority when it declined yet another postponement so that Plaintiffs could try and perfect their case. The trial court did not depart from the essential requirements of law, and this Court should deny Plaintiffs' request.

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IV. PLAINTIFFS HAVE NOT MET THEIR BURDEN OF DEMONSTRATING IRREPARABLE HARM THAT CANNOT BE REMEDIED ON PLENARY APPEAL. Plaintiffs have failed to establish the requisite jurisdictional showing that they have suffered irreparable harm that cannot be corrected on appeal because it is well-settled in Florida that an order denying discovery does not meet this preliminary test. Vicorp Restaurants, Inc. v. Aridi, 510 So. 2d 1082, 1083 (Fla 1st DCA 1987) review denied, 519 So. 2d 988 (Fla. 1987). See also Marshall v. Anderson, 459 So. 2d 384 (Fla. 3d DCA 1984) ("ordinary situation in which discovery is denied rather than required" does not satisfy the required showing of injury that cannot be remedied by an eventual appeal); Am. S. Co. v. Tinter, Inc., 565 So. 2d 891, 893 (Fla. 1st DCA 1990) (certiorari generally may not be utilized to remedy orders denying discovery "because such orders, if in error, can be rectified upon plenary appeal.") (citing Industrial Tractor Company v. Bartlett, 454 So. 2d 1067 (Fla. 5th DCA 1984)); Esman v. Bd. of Regents of State of Fla., 425 So. 2d 156, 157 (Fla. 1st DCA 1983) (denying the "extraordinary writ" because the challenged discovery order did not "cause material injury through subsequent proceedings for which the remedy by appeal will be inadequate."). This is not a circumstance in which Plaintiffs have been deprived of the opportunity to engage in discovery or depose the defendants or other relevant witnesses, such that extraordinary relief might be warranted to prevent irreparable

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harm. See, e.g., Adventure Marine & Outdoor, Inc. v. Brennan, 807 So. 2d 780 (Fla. 1st DCA 2002) (denying certiorari relief, noting "[t]his is not a case where the trial court has prevented a litigant from deposing the other party or a material witness."); Young, Stern & Tannenbaum, P.A. v. Smith, 416 So. 2d 4, 5 (Fla. 3d DCA 1982) (granting certiorari where a trial court's protective order shielded plaintiff from taking any depositions of defense counsel); Ruiz v. Steiner, 599 So. 2d 196 (Fla. 3d DCA 1992) ("[A]n order denying discovery is ordinarily not reviewable by certiorari because the harm from such orders, as a general rule, can be rectified upon plenary appeal," but drawing a distinction in cases where parties are denied any opportunity to depose an alleged material witness, in which case certiorari might be granted). 4 Cf. Petition at 4 (quoting Power Plant Entertainment, LLC v. Trump Hotels & Casino Resorts Development Co., LLC, 958 So. 2d 565,

567 (Fla. 4th DCA 2007) (en banc)) (stating a "good example' of the "serious type of error which would warrant review" was a case in which the trial court did not permit the claimant to depose the defendant). Rather than pinpointing any specific harm, Plaintiffs merely resort to generalities, suggesting the trial court erred because "[t]he full avenue of discovery

"A material witness is one who possesses information going to some fact affecting the merits of the cause and about which no other witness might testify." Sardinas v. Lagares, 805 So. 2d 1024, 1026 (Fla. 3d DCA 2001). Because Petitioners have not identified a single "material witness" the court below deprived them of deposing, no certiorari relief can be granted. See id.
4

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must be permitted, as to all matters regarding the evidence" (Petition at 11), and that the trial court, by proceeding with the hearing "denied the Plaintiffs any opportunity to fully uncover the evidence presented by the Defendants' [sic] and defense counsel's [sic]." (Petition at 10). As noted above, Plaintiffs' claim to have been denied "any opportunity to fully uncover" evidence is baseless and directly contradicted by Plaintiffs' own concession at the hearing below that they have already deposed Defendants Lewis and Tein twice (See App.18:32-33, 38) and Bert (App.18:33) -- all upon Plaintiffs' request. Indeed, even at the hearing in which the court issued the order under review, the trial court granted Plaintiffs' motion to compel, and ordered a response "instanter," as well as directing the parties to proceed with Bert's continued deposition (App.18: 32). See also App.17. Similarly, Plaintiffs' vague assertions of future "irreparable harm without further discovery" are also overstated and demonstrably refuted by the trial court's docket, which demonstrates that discovery has been proceeding during the pendency of the matter currently before this Court -- despite Plaintiffs' claims to have been deprived of any such opportunity by the court's order. (See Petition at 11). 5 There is simply no credible basis to conclude that Plaintiffs have been

Lewis Tein has also requested the Court to take notice of deposition notices illustrating that Petitioners have already had the opportunity to engage in more discovery, further undercutting any possible claim of irreparable harm. 22

entirely deprived of discovery or otherwise irreparably harmed as a result of the court's order. Nonetheless, Plaintiffs also assert, without any citation or legal analysis, that "Plaintiffs' due process rights are hindered" by the trial court's order denying postponement of the evidentiary hearing. (See Petition at 11). Plaintiffs are wrong in their generalized and unsupported assertion, because the trial court fulfilled its due process obligations by ordering that the parties proceed with the full evidentiary hearing after giving notice months in advance, during which time both parties engaged in discovery. State Dept. of Fin. Services v. Branch Banking & Trust Co., 40 So. 3d 829, 833 (Fla. 1st DCA 2010) (the right to procedural due process includes the right to "a full hearing before a court having jurisdiction of the matter, the right to introduce evidence at a meaningful time and in a meaningful manner, and judicial findings based upon that evidence.") (citing Brinkley v. County of Flagler, 769 So. 2d 468, 472 (Fla. 5th DCA 2000)). Plaintiffs have not even approached the necessary jurisdictional showing that the trial court's refusal to permit additional discovery inflicted irreparable harm that cannot be remedied on appeal. Without that requisite threshold showing, Florida law is clear that certiorari relief is not available.

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CONCLUSION
For the reasons articulated herein, the Court should deny the Petition. Respectfully submitted, CARLTON FIELDS, P.A. Attorneys for Respondents 100 SE Second Street, Suite 4200 Miami, Florida 33131 Telephone: (305) 530-0050 Facsimile: (305) 530-0055

By: Jack R. Reiter Florida Bar No. 0028304 jreiter@carltonfields.com Paul Calli Florida Bar No. 994121 pcalli@carlfontfields.com Christopher B. Corts Florida Bar No. 91374 cbcorts@carltonfields.com

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via U. S. Mail and email on this

IVO.,

day of January, 2013, to: Bernardo Roman, III, Esq. Miccosukee Tribe of Indians of Florida P.O. Box 440021, Tamiami Station Miami, FL 33144 bromanlaw@bellsouth.net yesenia@bromanlaw.com yinet@bromanlaw.corn yumy@bromanlaw.corn Counsel for Miccosukee Tribe

Ramon M. Rodriguez, Esq. RAMON M. RODRIGUEZ, P.A. 782 N.W. Lejeune Rd., Ste. 537 Miami, FL 33126 rrnr.lawoffice@att.net Maria L. Rubio, Esq. 9100 South Dadeland Boulevard One Datran Center - Suite 1510 Miami, FL 33156 pleadings@marialrubio.com maggie@marialrubio.com Counsel for Petitioners Jose M. Herrera, Esq. 2350 Coral Way, Suite 201 Miami, Florida 33145 jmh@herreralawfirm.com vrodriguez@herreralawfirm.corn gaguilera@herreralawfirm.com Counsel for Respondent Jimmie Bert Served via U.S. Regular Mail: The Honorable Ronald C. Dresnick 73 W. Flagler Street Room DCC 1307 Miami, FL 33130

Ira M. Elegant, Esq. Buchbinder & Elegant, P.A. 46 SW 1 st Street, 4th Floor Miami, FL 33130 ielegant@belaw.cc pgreen@belaw.cc office-manager@belaw.cc Co-counsel for Respondent Lewis Tein Served via U.S. Regular Mail: Tammy Gwen Billie HC61 W2600 Ochopee, FL 34141 By: Jack R. Reiter Florida Bar No. 0028304

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CERTIFICATE OF COMPLIANCE
The undersigned hereby certifies that this response complies with the font requirements set forth in Florida Rule of Appellate Procedure 9.210 by using Times New Roman 14-point font.

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