IN THE DISTRICT COURT OF APPEAL FOR THE THIRD DISTRICT OF FLORIDA

Transcription

1 IN THE DISTRICT COURT OF APPEAL FOR THE THIRD DISTRICT OF FLORIDA CASE NO.: 3D LOWER CASE NO.: CA (24) RECEIVED, 1/12/2017 2:42 PM, Mary Cay Blanks, Third District Court of Appeal VICTORIA BUSTILLOS, AS TRUSTEE OF THE S.W. 210 AVENUE FAMILY LAND TRUST, vs. Petitioner/Defendant, OMAR CORRALES BATISTA, Respondent/Plaintiff. / MOTION FOR SANCTIONS PURSUANT TO FLA. STAT Respondent, OMAR CORRALES BATISTA ( Batista ), through counsel and pursuant to Fla. Stat (2), hereby moves for sanctions against (i) Petitioner, VICTORIA BUSTILLOS AS TRUSTEE OF THE SW 210 AVENUE FAMILY LAND TRUST ( Trustee ), and (ii) her counsel, Vestalia Aylsworth, Esq., and in support says: 1. On December 16, 2015, Batista served a request for production (the RFP ) on Trustee, wherein Batista requested the Trustee produce the land trust. 2. On November 18, 2016, the lower court entered an order requiring the Trustee produce the land trust to Batista after the Trustee redact[s] any financial

2 Page 2 of 6 information of the participants or parties to the [land trust] should it choose to do so by December 5, Therefore, the Trustee had 11 months between December 16, 2015 and November 18, 2016 to raise any and all (i) legal objections, legal privileges or defenses the Trustee deemed appropriate to avoid having to produce the land trust and (ii) objections to the procedure or forum in which the trial court was resolving the Trustee s legal objections, privileges and defenses. 4. To this end, the Trustee raised a series of objections and privileges in her following filings: (i) a March 31, 2016 objection to the RFP; (ii) a September 5, 2016 amended objection to the RFP; and (iii) a September 21, 2016 second amended objection to the RFP. 5. The Trustee also had the opportunity during the 53-minute special set hearing on November 4, 2016 to raise any and all (i) legal objections, legal privileges or defenses the Trustee deemed appropriate to avoid having to produce the land trust and (ii) objections to the procedure or forum in which the trial court was resolving the Trustee s legal objections, privileges and defenses. 6. On November 18, 2016, the trial court entered a written order rejecting all of the Trustee s objections, privileges, and arguments and requiring the Trustee produce the redacted land trust to Batista by December 5, 2016.

3 Page 3 of 6 7. On December 5, 2016 (i.e., the last possible day that the trial court s order gave the Trustee to produce the land trust), the Trustee then commenced an original proceeding seeking the issuance of a petition for writ of certiorari in the Third District Court of Appeal. 8. Instead of promptly and diligently pursuing the certiorari petition proceedings to completion, on December 5, 2016, the Trustee also filed a Motion for Evidentiary Rehearing/Reconsideration in the trial court (the Unauthorized Rehearing Motion ). As of the date of this motion for sanctions, the Trustee has not set the Unauthorized Rehearing Motion for hearing or requested an evidentiary hearing date from the trial court even though over two weeks have passed from the date the Unauthorized Rehearing Motion was filed. 9. The Unauthorized Rehearing Motion raises all of the arguments made in the Trustee s previous filings and during the November 4, 2016 special set hearing, but for the first time requested that she be able to orally articulate all of these same arguments during an evidentiary hearing. The Trustee was never prevented from demanding an evidentiary hearing any time before the conclusion of the November 4, 2016 special set hearing. Yet the Trustee elected not to request an evidentiary hearing until December 5, 2016 (i.e., after she lost the November 4, 2016 hearing, after the November 18, 2016 order was entered requiring

4 Page 4 of 6 production of the land trust by December 5, 2016, and after she used up the full amount of time the lower court gave her in that order to produce the land trust). 10. The day after Batista filed his response to the Trustee s certiorari petition on December 15, 2016 (i.e., 10 days after the Trustee filed the Unauthorized Rehearing Motion and commenced the appellate proceeding), the Trustee filed a Notice/Motion to Stay Appeal Pursuant to Rule 9.020(i) in the Third District Court of Appeal on December 16, 2016 (the Appellate Stay Motion ), which asked the appellate court to hold the original proceedings in the appellate court in abeyance until the trial court disposes of the Unauthorized Rehearing Motion. 11. In light of the foregoing, it is clear that the preponderance of the evidence proves that the Trustee filed the Appellate Stay Motion primarily for the purpose of unreasonable delay in her desperation to delay the court-ordered production of the redacted land trust. 12. At all times the Trustee has argued before the trial court and this Court, communicated to the undersigned, and filed the aforementioned documents through Vestalia Aylsworth, Esq., Florida Bar Number ( Ms. Aylsworth ). 13. This includes the Appellate Stay Motion, which was signed and filed by Ms. Aylsworth on behalf of the Trustee.

5 Page 5 of The Trustee and Ms. Aylsworth should be sanctioned for filing the Appellate Stay Motion primarily for the purpose of unreasonable delay. WHEREFORE, Batista respectfully requests that this Court enter an order (i) granting this motion; (ii) sanctioning the Trustee and her Trustee (i.e., Ms. Aylsworth); (iii) awarding attorneys fees to be paid by the Trustee and her Trustee (i.e., Ms. Aylsworth) to Batista; and (iv) granting Batista such other and further relief as this Court deems just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above and foregoing was served via this 12th day of January, 2017 upon (i) Linda M. Reck, Esq. and Michele L. Stocker, Esq. of Greenburg Traurig, P.A., Counsel for HSBC Bank USA, at reckl@gtlaw.com and FLservice@gtlaw.com; (ii) Carlos D. Lerman, Esq. of Lerman & Whitebook, P.A., Counsel for HSBC Bank USA, at Carlos@lwlawfla.com and lizbeth@lwlawfla.com; (iii) Vanessa Tuttle, Esq. of Law Offices of Daniel C. Consuegra, Counsel for HSBC Bank USA, at attorneynotice@consuegralaw.com; (iv) Todd A. Armbruster, Esq. of Moskowitz, Mandell, Salim & Simowitz, P.A. at relit@mmsslaw.com and tarmbruster@mmsslaw.com; and (v) Vestalia Aylsworth, Esq. of Aylsworth & Aylsworth LLP, Counsel for Yuniel Rouco and Victoria Bustillos as Trustee of 21150

6 Page 6 of 6 S.W. 210 Avenue Family Land Trust, at va@aylsworthllp.com and vestalia@live.com. RENNERT VOGEL MANDLER & RODRIGUEZ, P.A. Attorneys for Omar Corrales Batista Miami Tower, Suite S.E. Second Street Miami, Florida Telephone (305) Facsimile (305) By /s/ Thomas S. Ward Thomas S. Ward Florida Bar No