United States District Court, S.D. Florida
TIC PARK CENTER, 9 LLC, a Delaware limited liability company, Plaintiff,
MICHAEL MANUEL CABOT, et al., Defendants.
ORDER ON PLAINTIFF'S MOTION TO COMPEL
G. TORRES United States Magistrate Judge
matter is before the Court on TIC Park Center, 9 LLC's
(“Plaintiff”) motion to compel against Mark
Wojnar (“Mr. Wojnar”), Patricia Wojnar
(“Mrs. Wojnar”) (collectively, the
“Wojnars”), and Jeffrey K. Miller (“Mr.
Miller”), Park Centre Med-Suites, LLC, Gardens
Med-Suites, LLC, and Medical Practice Operations, Inc.
(collectively, the “Miller Defendants”). [D.E.
162]. The Miller Defendants responded to Plaintiff's
motion on May 22, 2018 [D.E. 163] to which Plaintiff replied
on May 30, 2018. [D.E. 164]. Therefore, Plaintiff's
motion is now ripe for disposition. After careful
consideration of the motion, relevant authority, and for the
reasons discussed below, Plaintiff's motion is
GRANTED in part and DENIED in
commenced this action to seek remedies in relation to a 2014
loss of a multi-million dollar investment in commercial
property (the “Property”) in Miami Gardens,
Florida. The gist of Plaintiff's Complaint is that the
Miller Defendants engaged in leasing schemes to steal money
from the Property and then concealed the leasing schemes and
aided the Property's ultimate loss to foreclosure.
is a qualified and accredited investor who purchased a tenant
in common interest in the Property in 2007. As part of that
purchase, Plaintiff entered into a property and asset
management agreement regarding the Property with Mariner
Property Management Services, LLC, which was controlled by
Cabot and Mr. Wojnar. Mariner Property Management Services,
LLC managed the Property from 2007 until April 2011, when
Plaintiff and other tenants in common selected a new manager
for the Property. Midgard Management, Inc. began managing the
Property in April 2011.
alleges that Mariner Property Management Services, LLC, Cabot
and Mr. Wojnar violated their duties under the Property
Management Agreement and a separate Tenant in Common
Agreement by entering into two fraudulent leases with Park
Center Med-Suites, LLC and Garden Med-Suites, LLC in 2010 -
who then subleased the Property to other tenants. Cabot and
Mr. Wojnar purportedly used the Mariner Entities as a facade
for their own personal economic benefit and harbored monies
wrongfully taken from Plaintiff's Property, including
through an entity established in their wives' names.
result of those subleases, Plaintiff alleges that $130, 000
in rental income that otherwise would have been paid to the
Property between 2011 and 2012 was diverted from the Property
to the owner of those two entities, Mr. Miller, and $164,
848.59 in broker commissions was paid to WTK Realty, LLC,
which Plaintiff alleges were disguised payments of Property
income to Cabot and Mr. Wojnar. In other words, Mr. Miller
allegedly acted through alter egos that made payments of
unlawfully obtained monies to Miller's primary business
entity, Medical Practice Operations, Inc.
(“MPO”). After Midgard Management, Inc. took over
the management of the Property in April 2011, it brought
eviction actions against Park Centre Med-Suites, LLC and
Garden Med-Suites, LLC.
other defenses to Plaintiff's complaint, the Miller
Defendants claim (1) that their actions are protected by the
business-judgment rule, (2) that their actions are
commercially reasonable, (3) that the Property suffered from
the recent economic recession rather than misconduct, and (4)
that there was inadequate capital for the Property to meet
its financial obligations.
are two issues to address in Plaintiff's motion to
compel. The first issue is directed against the Miller
Defendants and the Wojnars for their failure to cooperate in
producing their income tax returns. As background,
Plaintiff's motion relates to a prior Order that we
issued on February 12, 2018 [D.E. 147], where we found that
income tax returns were relevant to the disposition of this
case. We therefore granted Plaintiff's prior motion and
compelled the Wojnars to provide written authorization forms
for the release of their tax returns within seven (7) days
from the date of that Order. The second issue presented is
Plaintiff's motion to compel better responses and
documents from Mrs. Wojnar because she failed to timely
respond to Plaintiff's discovery requests or produce a
privilege log. We will address both issues in turn.
begin with the first issue that the Miller Defendants and the
Wojnars failed to provide their income tax returns. In our
February 12, 2018 Order, we compelled the Wojnars to execute
authorization forms for the release of their income tax
returns by February 19, 2018. Neither timely executed a
release. Plaintiff claims that when they finally did, the
authorization forms were defective and that the Internal
Revenue Service (the “IRS”) rejected them.
Plaintiff suggests that the Wojnars either deliberately
misspelled their names on the authorization forms or that the
IRS rejected the returns for another reason. As such,
Plaintiff alleges that the Wojnars have refused to cooperate
in obtaining their income tax returns and that they must be
compelled to provide additional authorization forms.
initial matter, Plaintiff's motion to compel against the
Wojnars is unclear because it makes conclusory assertions
that the Wojnars knowingly filed defective authorizations and
then retreats from that accusation to allege that the reason
for the IRS denial is still unknown. In any event, it appears
that the Wojnars have not provided revised authorization
forms for their income tax returns once it became known on
April 13, 2018 that the IRS rejected the initial request.
Because revised authorization forms are necessary to obtain
the Wojnars' income tax returns, Plaintiff's motion
to compel is GRANTED and the Wojnars are
compelled to provide the necessary items within seven (7)
days from the date of this Order.
the Miller Defendants, Plaintiff suggests that the release of
their tax returns have encountered an administrative delay
and that they have refused to (1) place any phone calls to
the IRS, (2) obtain the items from accountants, or (3) submit
written taxpayer requests to the IRS. Because the Miller
Defendants have failed to produce the information requested,
Plaintiff concludes that its motion to compel must be
motion against the Miller Defendants fails because they have
fully complied with their discovery obligations. By
Plaintiff's own admission, the Miller Defendants signed
their authorization forms and provided them to Plaintiff. It
appears that Plaintiff wants the Miller Defendants to do more
to expedite the process, but the time needed to process the
returns is within the sole purview of the IRS - not the
Miller Defendants. In other words, there is nothing left for
the Miller Defendants to do. And although the IRS has not
moved swiftly in producing the tax returns requested, the
Miller Defendants have ...