Bert v. Bermudez

95 So. 3d 274, 2012 WL 2327734, 2012 Fla. App. LEXIS 9868
CourtDistrict Court of Appeal of Florida
DecidedJune 20, 2012
DocketNo. 3D12-911
StatusPublished
Cited by2 cases

This text of 95 So. 3d 274 (Bert v. Bermudez) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bert v. Bermudez, 95 So. 3d 274, 2012 WL 2327734, 2012 Fla. App. LEXIS 9868 (Fla. Ct. App. 2012).

Opinion

ROTHENBERG, J.

Tammy Owen Billie and Jimmy Bert (“the defendants”) and their current counsel, Lewis Tein, PL (“the Lewis Tein law firm”), petition this Court for a writ prohibiting Judge Ronald Dresnick from presiding over the post-judgment matters still pending before the trial court. Because the trial court’s comments, when read in the context in which they were made, do not require disqualification, we deny the petition.

The underlying lawsuit arose out of a tragic accident that occurred on Tamiami Trail ten years ago. The accident, in which Gloria Liliana Bermudez was killed and her husband Carlos Bermudez and their minor child were injured, resulted in a $8,177 million judgment rendered on August 5, 2009, against the defendants, who are members of the Miecosukee Tribe of Indians of Florida (“the Miecosukee Tribe” or “the Tribe”). On July 21, 2011, nearly two years later, Judge Michael Genden, who was sitting in for Judge Dresnick, granted the plaintiffs’ motion for attorney’s fees, filed pursuant to section 57.105, Florida Statutes, as a sanction against the defendants and the Lewis Tein law firm for various objections to discovery, delay tactics, and other discovery abuses they committed to hinder the plaintiffs’ post-judgment collection efforts, which to date have resulted in the failure to collect even one cent on the judgment. Specifically, Judge Genden found the defendants’ general objections to discovery requests to produce documents that in fact did not exist, for example, tax returns, and the refusal, over a two-year period, to answer interrogatories regarding documents that did not exist, entitled the plaintiffs to re-coupment of their attorney’s fees as a sanction. Judge Genden’s order was not appealed.

On August 30, 2011, Judge Dresnick conducted a lengthy evidentiary hearing to determine the sanction amount. At this hearing, Andrew Harris, who provided trial support to appellate counsel for the plaintiffs in this case, testified as to 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 the Lewis Tein law firm probably billed two to three million dollars in the post-trial phase of the case. While cross-examining Mr. Harris, Mr. Tein asked him the following questions:

And, in fact, would it surprise you to know that we haven’t been paid a cent in this case for over a year?
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And, in fact, it doesn’t surprise you because you know that the Defendants don’t have the money to pay the judgment. That’s been your — what you found, right?
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Do you want to withdraw your statement on direct, that you think 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?
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And you’re not contending to Judge Dresnick that we’ve been paid by the Miecosukee Tribes of Indians, are you?

[276]*276After Mr. Harris responded that yes, he did believe the Lewis Tein law firm was directly paid by the Miccosukee Tribe in this case, Mr. Tein asked, “Do you have any evidence of that? ... And what evidence do you have that the Miccosukee Tribe paid a cent to us in this case?” Mr. Harris responded that he had no evidence because the Lewis Tein law firm did not provide the billing records requested, but he believed it was unlikely the law firm represented the defendants pro bono.

Subsequently, Mr. Tein testified under oath at this same hearing as follows:

Our client is not the Miccosukee Tribe. The Miccosukee Tribe is not a party to this case.
The affidavit ... is true. They [Tammy Billie and Jimmy Bert] have been responsible for our fees and they— they — at that time they had been paying our fees.
By January’ ll[sic] they had run up a — a receivable. They hadn’t paid since, my recollection is, August of 2010. And we haven’t been paid anything since August of 2010.
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But it would be mixing the responsibilities of the Tribe with the responsibilities of the Defendants for a judgment. That would be the equivalent of saying that if someone is from Nicaragua, that the Nicaraguan, the wealthy Nicaraguan government has a responsibility to step in and pay the fee.
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What [sanctions] you impose on me and the firm will come right out of my and Mr. Lewis’ pocket. Miccosukee Tribe will not be paying it. Tammy and Jimmie will not be paying it. And I want to make sure that’s — that’s clear.

On September 13, 2011, the trial court entered its sanction order. Although the plaintiffs requested a sanction in excess of $150,000 to cover the fees they incurred in their post-judgment collection efforts and proceedings, Judge Dresnick awarded only $3500 based primarily on Mr. Tein’s representations that: the Lewis Tein law firm represented the named defendants, not the Tribe, in this case; they were not trying to protect the Tribe from paying the judgment, as they were merely representing their individual clients who happen to be Miccosukee Tribe members; and the Tribe in no way was paying for this representation. Judge Dresnick specifically noted that, if “Mr. Lewis and/or Mr. Tein was in fact representing the Miccosukee Tribe in attempting to avoid paying this judgment the Court can assure both sides that the result of this order would have been significantly different.”

Shortly after Judge Dresnick issued his September 13, 2011, order awarding sanctions in the amount of $3500, counsel for the plaintiffs received sixty-one cancelled checks issued by the Tribe to the Lewis Tein law firm totaling $3.1 million for professional services rendered by the Lewis Tein law firm, in which it appears that at least $2 million was paid for the law firm’s representation of the defendants in this lawsuit.

After the plaintiffs received the can-celled checks for payments made directly by the Tribe to the Lewis Tein law firm, several individuals executed sworn affidavits stating that these payments were either charged against the defendants’ tribal distributions, or as loans from the Tribe to them against future distributions. Tammy Billie stated that the Lewis Tein law firm represented her since 2005 in this case as well as in other matters; she is solely responsible for paying the Lewis Tein law firm for her share of the fees; her sole income is from her tribal distributions and from various jobs she performs on the [277]*277reservation; and the checks issued by the Tribe to the law firm are charged against her current distributions and loans against future distributions. Billy Cypress, interim Chairman of the Tribe from 1987 to 1989, and Chairman from 1989 to December 2009, stated in his affidavit that the defendants were solely responsible for the fees charged by the Lewis Tein law firm; he directed the Tribe to write checks to pay these legal fees; and the payments were against the defendants’ current distributions and loans against future distributions. Julio Martinez, the Accounting Supervisor/Finance Officer for the Tribe from 1990 to 2009, stated the same in his affidavit.

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Related

Miccosukee Tribe of Indians of South Florida v. Bermudez
145 So. 3d 157 (District Court of Appeal of Florida, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
95 So. 3d 274, 2012 WL 2327734, 2012 Fla. App. LEXIS 9868, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bert-v-bermudez-fladistctapp-2012.