United States District Court, M.D. Florida, Jacksonville Division
JOHN F. TOMASIC and KATHERINE A. HOOVER, Owners of Sunny, Plaintiffs,
BRAD EUBANKS, SOUTHERN DRYDOCK, INC., DIP, Insured, and TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, Defendants.
REPORT AND RECOMMENDATION 
C. RICHARDSON UNITED STATES MAGISTRATE JUDGE
CAUSE is before the Court on the following motions,
which were referred to the undersigned for a report and
(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).
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.
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 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.)
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.)
November 17, 2017, Mr. Conroy sent a letter to Ms. Hoover,
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.)
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.)
on November 30, 2017, Mr. Conroy sent a letter to Mr.
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,
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.)
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' ...