4th DCA (Melanie Bell)
The Fourth District Court of Appeal on Thursday sided with two California hoteliers, barring a law firm from forcing them to be deposed in Florida.
Wicker Smith O’Hara McCoy & Ford persuaded Broward Circuit Judge Thomas Lynch IV to compel Remo Polselli and his wife, Hanna Karcho, to be deposed in Florida in a lawsuit seeking payment for legal services.
In a 2-1 split, the majority said, “It is well-settled that a defendant must be deposed in the county of his or her work or residence unless the defendant has sought affirmative relief or extraordinary circumstances exist.”
Judge Martha Warner dissented by noting Lynch entered his order in August 2013 and the defendants didn’t seek review.
“Petitioners failed to appear for the scheduled depositions, prompting a motion to compel and the order now before this court. Their failure to seek timely review of the August 2013 order resulted in a waiver of their right to contest their required appearance in Florida,” Warner said.
The judges in the majority were Jonathan Gerber and Mark Klingensmith.
Polselli’s and Karcho’s attorney, Chase Berger of the Berger Firm in Hollywood, said he was pleased the court reinforced Florida law that a defendant can’t be compelled to appear outside their county of residence.
Instead, the couple will be deposed in Laguna Beach, Calif., where their company, California Hotels Corp., is based.
Berger said the underlying dispute involved state litigation involving a hotel they once owned in Lauderdale-by-the-Sea.
According to court records, the couple was embroiled in a Comerica Bank’s foreclosure against Ocean 4660 LLC, owner of the 147-room Lauderdale Beachside Hotel. It was auctioned in December for $17 million.
“Wicker Smith wound up withdrawing, and there was a fee dispute,” Berger said.
Polselli has a litigious history. In 2003, he pleaded guilty to failing to pay payroll taxes collected from employees and failing to pay income taxes or file returns on income earned in 1995-1996 as owner of a Michigan hotel. He was sentenced to 27 months in federal prison and ordered to pay $2.9 million in restitution.
On the corporate website, Polselli referred to the charges and imprisonment as the darkest moment of his life, but said he learned from it and “was reinvigorated to begin anew.”
Shelley Leinicke, a Wicker Smith partner in Fort Lauderdale, represented the law firm. She did not respond to a request for comment by deadline.