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Tomasic v. Eubanks

United States District Court, M.D. Florida, Jacksonville Division

May 31, 2018

JOHN F. TOMASIC and KATHERINE A. HOOVER, Owners of Sunny, Plaintiffs,
v.
BRAD EUBANKS, SOUTHERN DRYDOCK, INC., DIP, Insured, and TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, Defendants.

          REPORT AND RECOMMENDATION [1]

          MONTE C. RICHARDSON UNITED STATES MAGISTRATE JUDGE

         THIS CAUSE is before the Court on the following motions, which were referred to the undersigned for a report and recommendation:

(1) Plaintiffs' Motion to Set Aside the Mediation Agreement of October 26, 2017 and Order Binding Arbitration (“Motion to Set Aside”) (Doc. 184), Defendant Travelers Property Casualty Company of America's Opposition thereto (“Travelers' Opposition”) (Doc. 186), Defendant Southern Drydock, Inc.'s Notice of Joining in Travelers' Opposition and Supplemental Opposition to Plaintiffs' Motion to Set Aside (“Southern's Opposition”) (Doc. 187), and Defendant Brad Eubanks's Opposition to Plaintiffs' Motion to Set Aside and Motion to Enforce Settlement (“Eubanks's Opposition and Motion to Enforce”) (Doc. 189); Plaintiffs' Notice to the Court That the Mediation Agreement Expired After Thirty Days (“Plaintiffs' Notice to the Court”) (Doc. 191) and Travelers' Response thereto (Doc. 193);
(2) Travelers' Motion for Sanctions Against Plaintiffs (“Travelers' Motion for Sanctions”) (Doc. 188) and Plaintiffs' Response thereto (Doc. 192);
(3) Eubanks's Motion for Award of Attorney's Fees Pursuant to § 57.105, Florida Statutes (“Eubanks's Motion for Fees”) (Doc. 194) and Plaintiffs' Response thereto (Doc. 196).

         For the reasons stated herein, the undersigned RECOMMENDS that Plaintiffs' Motion to Set Aside (Doc. 184) be DENIED, Eubanks's Motion to Enforce (Doc. 189) be GRANTED, Travelers' Motion for Sanctions (Doc. 188) be DENIED, and Eubanks's Motion for Fees (Doc. 194) be DENIED.

         I. Relevant Background

         On October 26, 2017, all individual parties and their respective counsel and representatives participated in a court-ordered mediation with stipulated mediator Terrance Schmidt. (Docs. 139, 182.) A Mediated Settlement Agreement was reached, which provided, in relevant part, that Travelers will pay to Plaintiffs an agreed-upon sum[2] in full and complete settlement of all of Plaintiffs' claims in this action against all Defendants within 30 days from Plaintiffs' execution and delivery of a release in a form satisfactory to counsel for Defendants. (See Doc. 200.) After the Mediator's Report was filed on October 30, 2017, the Court entered an Order directing the Clerk to terminate all pending motions and administratively close the case, and directed the parties to file, by December 29, 2017, a joint stipulation of dismissal or other appropriate documents to close out the file. (Docs. 182, 183.)

         On October 27, 2017, defense counsel sent to Plaintiffs a Settlement Agreement and Release of All Claims, to be signed and forwarded to the mediator along with a Joint Stipulation for Dismissal and a proposed order thereon. (See Doc. 186.) Both Plaintiffs signed the Stipulation for Dismissal. (See id.) By correspondence dated November 7, 2017, Plaintiff Hoover advised Mr. Conroy (Travelers' counsel): “My husband is unable to go to a notary or sign papers. He is quite ill, but does not want further medical treatment. I am enclosing two copies of the agreement signed in Mr. Schmidt's office. It is the best I can do.” (Doc. 186-1.) She enclosed a copy of the Settlement Agreement and Release of All Claims that she signed before a notary on October 31, 2017 and a copy of the same Settlement Agreement and Release of All Claims that she signed for Mr. Tomasic on November 7, 2017, albeit without a power of attorney. (See Doc. 201.) The Release spelled out the terms of the settlement and included a confidentiality clause. (See id.)

         On November 17, 2017, Mr. Conroy sent a letter to Ms. Hoover, stating:

My assistant, Jazmin, has attempted to reach out to you on numerous occasions, since last Friday, November 10, 2017 to establish contact, but has not had a response. In coordination with Ms. Winicki [Southern's counsel], we would like to have Mr. Tomasic execute the release and exchange settlement funds. . . . We will send a notary to your house for Mr. Tomasic's convenience to execute the release. . . .

(Doc. 186-2 at 1.)

         On November 21, 2017, he followed up with another letter:

Pursuant to your conversation with my assistant Jazmin Vera today, you informed her that Mr. Tomasic is presently in the hospital, that Mr. Tomasic has not executed the settlement agreement and was possibly having second thoughts in executing same. Please be reminded that this was already settled as to the dollar amount at the mediation on October 26, 2017. My office would like to coordinate Mr. Tomasic's signature with a notary, by arranging to have a notary sent to your home if you wish and if that would be convenient for Mr. Tomasic. . . .

(Id. at 2.)

         Then, on November 30, 2017, Mr. Conroy sent a letter to Mr. Tomasic, stating:

As you know the court entered an order based on the mediator's report that the case settled. The parties are required to file a stipulation on or before December 29, 2017.
Although Dr. Hoover has executed the release, we have not yet received a notarized release from you. Ms. Winicki has been funded with the settlement funds. All we require is a signed and notarized release. We have offered to send a notary to your house to accommodate you.

(Id. at 4.)

         On December 1, 2017, Plaintiff Hoover, Ms. Winicki and Mr. Conroy had a telephone conference, at which Ms. Hoover advised, for the first time, that Plaintiffs would be moving the Court to vacate the settlement agreement and for a new mediator, because Plaintiffs allegedly entered into the settlement agreement under duress. (Doc. 186 at 4.) This phone call was Plaintiffs' ...


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