Joara Freight Lines, Inc., v Perez, et. al., No.3D15-292 (Fla. 3d DCA 2015)
This case is based upon some peculiar facts that rarely occur. This is a personal injury case where the plaintiff and the defendant are husband and wife but their interests diverge due to corporate capacity. The wife is both a spouse plaintiff and a corporate defendant. Though not a surprise, this case also has an insurance company involved to protect its financial interest.
Though the case facts are not central to this ultimate legal opinion, the facts are somewhat colorful and not often encountered. In order to delve into the law of mandamus and referral to a special master, the facts will not be discussed. The curious reader, however, may want to read the well written opinion if only for full flavor.
What will be discussed are this opinion’s key points that touch upon procedural matters central to every appointment of a special master and the ensuing appellate remedy surrounding the appointment of a special master.
After much wrangling, the trial judge (not named in the opinion) was faced with a motion to appoint a receiver. However, before the trial court held a hearing on the receiver motion, it sua sponte entered an order appointing a special master. Two days later, the petitioner filed a motion for clarification and a motion to strike the special master. The motion to strike and the argument before the trial court clearly indicated that the petitioner objected to the special master’s appointment.
Special and General Master Appointments and the Use of Mandamus as a Vehicle to Attack the Appointment
Judge Barbara Lagoa, writing for the panel, takes the reader through a concise, yet beneficial analysis of the law of special magistrates and the proper use of the extraordinary writ of mandamus. Concerning either general masters or special magistrates, Judge Lagoa wrote that because referral to a special magistrate requires consent of the parties, a trial court should not appoint a special master without consent of the parties. See ,e.g., Gielchinsky v. Vibo Corp., 5 So.3d 785 (Fla. 3d DCA 2009).
Judge Lagoa also pointed out that a trial judge cannot appoint a special master sua sponte. Further, as the opinion makes clear, Rule of Civil Procedure 1.490(c) mandates that consent to appoint a master, general or special, is required by all parties. Therefore, as in this case, when a party objects, the appointment is error.
Because the order appointing the special master is interlocutory in nature, Judge Lagoa briefly explains why mandamus, an extraordinary writ, versus an appeal, is the proper appellate vehicle to assert appellate jurisdiction. Essentially, the opinion states that either the writ of mandamus (to command a specific act) or writ of prohibition (to prevent an act) is a proper remedy when the trial court refers a matter to a master without the consent of all the parties. Pesut v. Miller, 773 So.2d 1185, (Fla. 2d DCA 2000). However, it is worth noting that the Third District has allowed a regular appeal concerning an objection to a special master.Rosenberg v Morales., 804 So.2d 622 (Fla. 3d DCA 2002)
Practical Advice for the Trial Lawyer
Sometimes going before a general or special master is a very good process for the parties. Often times, due to a judge’s crowded docket, the only way to move your case efficiently is to have a master hear the issues and issue a report and recommendation to the trial judge. Thereafter, there is a process to contest the report and recommendation including appellate remedies. However, there may be instances where seeking the appointment of a master is not always the best choice, and a myriad of reasons which go beyond the scope of this article.
In the situation where a master is not desirable, this case is a textbook example of how lawyers need to object to the appointment of a special or general master. Without an objection, a lawyer may be forced to have issues heard by general or special masters.
Should an objecting lawyer seek appellate review of the appointment next, the most appropriate appellate review procedure is to petition for a writ of mandamus or prohibition. That will trigger appellate review and, as in this case, if there was an objection there will be a concomitant reversal of the appointment.
This article was first published on the Law.com Network on April 13, 2015.