       Third District Court of Appeal
                               State of Florida

                          Opinion filed March 25, 2015.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D15-292
                         Lower Tribunal No. 12-36911
                             ________________

                         Joara Freight Lines, Inc.,
                                    Petitioner,

                                        vs.

  Jose Perez, Arazay Diaz, Jorge Garcia, and Gerardo Sotolongo,
                                  Respondents.


     A Case of Original Jurisdiction – Mandamus.

      Wadsworth Huott, LLP, and Christopher W. Wadsworth and Ronnie
Guillen; Charles M-P George, for petitioner.

      Beckham & Beckham, P.A., and Pamela Beckham, for respondents Jose
Perez and Arazay Diaz.


Before WELLS, ROTHENBERG, and LAGOA, JJ.

     LAGOA, J.

     Petitioner, Joara Freight Lines, Inc. (“Joara Freight” or “Petitioner”), seeks a

petition for a writ of mandamus directing the trial court to strike the Order
Appointing Special Master. Because we find that the referral to the special master

was made without the consent and over the objection of Joara Freight in

contravention of Florida Rule of Civil Procedure 1.490(c), we grant the relief

sought.

I.    FACTUAL AND PROCEDURAL HISTORY

      Respondent, Jose Perez (“Perez”), alleges he was injured on September 23,

2010, when a tractor-trailer vehicle owned by Joara Freight pinned Perez between

the vehicle and a concrete barrier. At the time of the accident, Perez’s wife and

Respondent, Arazay Diaz (“Diaz”), was the sole officer, employee, and agent of

Joara Freight.

      Respondents Perez and Diaz filed suit against Joara Freight, alleging several

acts of negligence committed by the corporation while it was under the exclusive

control of Diaz in her corporate capacity.     Diaz had herself served with the

Summons and Complaint as “Trustee and former President” of Joara Freight, and

subsequently proceeded to retain counsel—Carlos O. Fernandez (“Fernandez”)—

to represent Joara Freight.   Joara’s Freight’s insurance carrier, Tower Group

Companies, retained Wadsworth Huott, LLP (“Wadsworth”), to represent its

interests throughout the litigation. As a result, Diaz, in her corporate capacity,

maintained an attorney-client relationship with Fernandez and Wadsworth, and




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maintained an attorney-client relationship with Ramon M. Rodriguez, who served

as personal counsel for Diaz and her husband, Perez.

       Due to the potential conflicts of interests associated with these various

representations, Wadsworth filed several motions to dismiss, as well as a motion to

disqualify co-counsel Fernandez, which the trial court denied on February 5, 2014.

Fernandez then filed a motion to disqualify Wadsworth on March 5, 2014, and a

hearing was held on December 9, 2014. During the hearing, the trial court denied

Fernandez’s motion to disqualify, and Wadsworth again raised the conflict of

interest issue to the trial court, indicating that Joara Freight would have to move

the court to appoint a guardian ad litem for Joara Freight. In response, the trial

court stated, “I’m going to save you all some time. I’m not going to disqualify

anybody. I think it’s a good idea to appoint a guardian ad litem or receiver or

whatever it is just so that there is—this is a very unusual situation.” The trial court

provided the parties approximately one week to either agree on the individual who

would serve as the guardian ad litem, or to respectively nominate individuals to the

trial court.

       On December 18, 2014, Wadsworth, on behalf of Joara Freight, filed a

Motion for Appointment of Receiver, and on December 19, 2014, Rodriguez, on

behalf of Diaz and Perez, submitted the names of two individuals as potential

appointees. Joara Freight’s motion was scheduled to be heard on January 26,



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2014; however, on January 7, 2014, the trial court entered an order appointing

Scott W. Leeds, Esq. (“Leeds”) as Special Master.

      On January 9, 2015, Joara Freight filed a Motion for Clarification and to

Strike Special Master, asserting that at no time prior to the trial court’s order did

any party file a motion seeking the appointment of a special master, and that the

special master was appointed without the consent of Joara Freight. The trial court

denied both Joara Freight’s motion to strike the special master and its motion for

appointment of a receiver. This petition ensued.

II.   ANALYSIS

      Florida Rule of Civil Procedure 1.490(c) specifically states that “[n]o

reference shall be to a magistrate, either general or special, without the consent of

the parties.” Because a referral to a special magistrate requires the consent of the

parties, a trial court has a duty to refrain from appointing a special master absent

this consent. See, e.g., Gielchinsky v. Vibo Corp., 5 So. 3d 785, 785 (Fla. 3d DCA

2009); Garcia v. Garcia, 958 So. 2d 947, 949 (Fla. 3d DCA 2007); Pesut v. Miller,

773 So. 2d 1185, 1186 (Fla. 2d DCA 2000); Hanor v. Hinckley, 584 So. 2d 1129,

1130 (Fla. 4th DCA 1991); Taylor v. Taylor, 569 So. 2d 1389, 1389 (Fla. 4th DCA

1990); Murphy v. Murphy, 558 So. 2d 532, 532 (Fla. 4th DCA 1990); Miller v.

Lifshutz, 558 So. 2d 195, 196 (Fla. 4th DCA 1990); Bathurst v. Turner, 533 So. 2d

939, 941 (Fla. 3d DCA 1988). Moreover, a trial court cannot appoint a special



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master on its own motion. See Pesut, 773 So. 2d at 1186; Prater v. Lehmbeck, 615

So. 2d 760, 761 (Fla. 4th DCA 1993); Bathurst, 553 So. 2d at 940-41.

      Respondents argue that the petition for a writ of mandamus should be denied

because petitioner has an adequate legal remedy by appeal. We find this argument

without merit as “[m]andamus lies to compel a trial court to resolve issues without

a special master when the trial court has referred such issues to resolution by

special master without the consent of both sides to a dispute.” Novartis Pharm.

Corp. v. Carnoto, 798 So. 2d 22, 22 (Fla. 4th DCA 2001); see also Washington

Park Props., LLC v. Estrada, 996 So. 2d 892, 894 (Fla. 4th DCA 2008) (finding

that “both prohibition and mandamus are available remedies when the trial court

refers a matter to a general master without the consent of all the parties”); Pesut,

773 So. 2d at 1186; Bathurst, 533 So. 2d at 941-42. Through the filing of Joara

Freight’s Motion for Clarification and to Strike Special Master—and subsequent

argument before the presiding trial court judge—the record establishes Joara

Freight’s explicit objection to the appointment of the special master.1

       Because the record shows that Joara Freight did not consent to the

appointment of Leeds as special master, we grant the Petition for Writ of




1We note, however, that a “‘timely objection’ may come at any time before the
hearing before the general master commences.” Wilson v. McKay, 568 So. 2d
102, 103 (Fla. 3d DCA 1990) (quoting Bathurst, 533 So. 2d at 941 n.4).

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Mandamus and direct the trial court to vacate its order of referral to the special

master and proceed consistent with this opinion.

      PETITION GRANTED.




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