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Filing # 67790666 E-Filed 02/09/2018 05:28:43 PM
IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT OF FLORIDA
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
PHILIP VON KAHLE, CURATOR, on behalf of CASE NO.: 16-21099-CA-44
THE GOVERNOR OF FLORIDA, for the use and
Benefit of the ESTATE OF VICTOR POSNER,
and for All Other Interested Parties,
Plaintiff,
v.
FIDELITY AND DEPOSIT COMPANY OF
MARYLAND,
Defendant and Third-Party Plaintiff,
v.
BRENDA D. NESTOR,
Third-Party Defendant/Cross-Claim
Plaintiff,
Vv.
PHILIP VON KAHLE, individually, MICHAEL
MOECKER AND ASSOCIATES, INC., MMA
OPERATIONS, INC., MOECKER REALTY
AUCTIONS, LLC d/b/a SVN MOECKER
REALTY AUCTIONS, and MOECKER
REALTY, INC.,
Cross-Claim Defendants.
/
THIRD PARTY DEFENDANT/CROSS-CLAIM PLAINTIFE’S
RESPONSE TO PLAINTIFE’S MOTION FOR THE COURT TO
ASSIGN MEDIATOR AND SET MEDIATION DATE
Third Party Defendant/ Cross-Claim Plaintiff, Brenda Nestor (“Nestor”), by and through
undersigned counsel, hereby files her response to Plaintiff's Motion to Set Mediation and appoint
retired Judge Howard Tescher as mediator, and in support states as follows1 Pursuant to this Court’s order dated October 31, 2017, the parties have until March 31,
2018 to attend a second mediation.
2. On January 24, 2018 counsel for Plaintiff Philip Von Kahle (“Von Kahle”) contacted
counsel for Defendant Fidelity and Deposit Company of Maryland (F&D) inquiring as to
proposed mediators for the case. Previously, the parties had used Jon Freud at the request of
Plaintiff for the first mediation and it was believed that he would again mediate the second
mediation.
3 Plaintiff declined to use the same mediator and sought to secure another individual. Even
though Plaintiff has asked for suggested mediators, Plaintiff would not agree to any mediator
proposed by Nestor.
4. Ultimately, Plaintiff's counsel offered two choices, one of which was retired Judge
Howard Tescher, who is located in Broward County. While Defendant F&D eventually agreed,
Nestor did not and does not agree to the use of retired Judge Tescher.
5. Plaintiff e-mailed the parties at 4:27 P.M. on Friday, February 2, 2018 and on the
following Monday, February 5, 2018 at 12:38 P.M. notified both F&D and Nestor that Plaintiff
had selected retired Judge Tescher and reserved March 28, 2018 for the mediation
6 Counsel for Nestor promptly responded and objected to the use of Tescher. Subsequently,
after discussion among counsel for the parties, Nestor proposed seven additional mediators, six
of which are located in Miami-Dade County. Instead, Plaintiff filed their improper Motion to
Assign Mediator.
7 Despite the plethora of choices, the Plaintiff specifically declined to use anyone other
than retired Judge Tescher. Plaintiff's unwavering insistence that retired Judge Tescher should bethe mediator and Plaintiff's seeming unwillingness to come to an agreement as to an acceptable
mediator for all parties is troublesome.
8. Nestor does not agree to use Tescher, a former Broward County Judge, despite his
experience as a mediator, his quick departure from the bench is cause for concern. Apparently
his only experience as a judge was in the domestic violence and he had no experience in the
Probate Division as a neutral.
9. Plaintiff argues in its motion that Nestor is the only party who does not consent to use
retired Judge Tescher and that the refusal is effectively “the tail wagging the dog” as Nestor is a
third-party defendant and a third-party cross-claimant. What Von Kahle forgets to realize is that
but for Nestor, Von Kahle would not have had the ability to line his and his co-horts pockets for
over two years and waste estate assets. Moreover, because if the indemnity claim against Nestor,
she is an integral part of any possible mediation or resolution.
10. Plaintiff attempts to minimalize the effect of the third-party claim and cross-claim on the
main claim; specifically, Plaintiff suggests that the court allow the dispute between Plaintiff and
F&D to be decided regardless of Nestor’s involvement, stating that “the Curator and Fidelity
should be able to mediate their dispute with a mediator of their choice.” See Pl.’s Mot. to
Appoint Mediator, 95.
11 Permitting the Plaintiff and F&D to control the choice of mediator at the exclusion of
Nestor simply because Nestor is a third-party defendant and cross-claim plaintiff is nonsensical
and improper.
12. Plaintiff glosses over the fact that the third-party claim may result in Nestor being
ultimately held liable for amounts agreed to between Plaintiff and F&D, as F&D would be
indemnified by Nestor pursuant to the terms of the bond agreement upon which Plaintiff is suing13. Plaintiff also is interested in a resolution of the claim without Nestor, as it would bolster
Plaintiff's position against Nestor in the Cross-Claim, as Nestor claims that the lawsuit between
Plaintiff and F&D is frivolous.
14. Furthermore, Plaintiffs suggestion that Nestor can simply mediate her Cross-Claim with
another Mediator apart from the mediation involving Plaintiff and F&D is a poorly veiled
attempt to effectively sever the claims, as Plaintiff had previously sought to do and failed, to the
sole benefit of the Plaintiff.
15. Therefore, this court should DENY Plaintiffs motion seeking the appointment of retired
Judge Tescher, but instead require the parties to mutually agree to a mediator or the Court chose
one on its own, preferably with Probate experience.
16. Lastly, despite Plaintiff's certifying that a good faith conference took place between the
parties, no such discussion took place. Specifically, CBL Rule 4.3 requires that “Attorneys must
discuss in person or on the phone” the issues in an attempt to resolve any dispute prior to
submitting it to the Court. Plaintiff never attempted to call the undersigned.
17. Plaintiff, however, merely sent a singular e-mail to counsel for Nestor prior to filing its
motion. Plaintiff specifically states that “I further certify that on February 7, 2018, counsel for
the Curator communicated with Maury Udell, Esq., counsel for Ms. Nestor, via e-mail, but that
the Curator was unable to secure Ms. Nestor’s agreement to the relief requested herein.” See
Pl.’s Mot. to Appoint Mediator, 2-3
18 Plaintiff violated this rule as he made a singular attempt via e-mail and did not, as the rule
requires, have a discussion in person or on the phone. Moreover, Plaintiff sent his singular e-mail
on February 7, 2018 at 10:37 A.M. and filed his motion the following day, February 8, 2018 at
12:59 P.M.19. Therefore, Plaintiff's motion should be DENIED pursuant to the CBL for failing to
adequately comply with the Mandatory Meet and Confer Order.
WHEREFORE, on the basis of the above and foregoing grounds, Cross-Claim Plaintiff,
Brenda Nestor, respectfully requests this Honorable Court DENY Plaintiff's motion and any
other relief the Court deems just and proper.Dated: February 9, 2018
Maury Udell
Beighley, Myrick, Udell & Lynne, PA
Attomeys for Brenda Nestor
150 West Flagler Street
Suite 1800
Miami, FL 33130
305-349-3930 — Phone
notice66@bmulaw.com
By: _/s/
Maury Udell, Esq
mudeli@bmulaw.comCERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing was sent via email
on January 29, 2018, to:
SERVICE LIST
Brett M. Amron, Esq.
Jeremy S. Korch, Esq.
Hayley G. Harrison, Esq.
BAST AMRON LLP
Attorneys for Philip Von Kahle as Curator
SunTrust International Center One Southeast
Third Ave., Suite 1400 Miami, Florida 33131
Telephone: (305) 379-7904
Facsimile: (305) 379-7905
E-mail: bamron@bastamron.com
jkorch@bastamron.com
hharrison@bastamron.com
Scott W. Leeds, Esq.
THE COCHRAN FIRM — SOUTH FLORIDA
Attorneys for Philip Von Kahle as Curator 657
South Drive, Suite 304
Miami Springs, Florida 33166
Telephone: (305) 567-1200
Facsimile: (305) 856-7747
Email: swleeds@cochranfirm.com
William H. Strop, Esq.
Ryan F. Carpenter, Esq.
BECKER & POLIAKOFF, P.A.
Attomeys for Fidelity and Deposit Company of
Maryland
One East Broward Blvd., Ste. 1800
Fort Lauderdale, FL 33301
Telephone: (954) 987-7550
Facsimile: (954) 985-4176
Email: wstrop@bplegal.com
rcarpenter@bplegal.com sgill@bplegal.com
Paul Steven Singerman
Katie Phang
Isaac M. Marcushamer
BERGER SINGERMAN LLP
Attorneys for Philip Von Kahle, individually,
Michael Moecker and Associates, Inc., MMA
Operations, Inc., Moecker Realty Auctions,
LLC d/b/a Svn Moecker Realty Auctions, and
Moecker Realty, Inc.
1450 Brickell Avenue, Ste. 1900
Miami, FL 33131
Telephone: (305) 755-9500
Facsimile: (305) 714-4340
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Filing # 67790666 E-Filed 02/09/2018 05:28:43 PM IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT OF FLORIDA IN AND FOR MIAMI-DADE COUNTY, FLORIDA PHILIP VON KAHLE, CURATOR, on behalf of CASE NO.: 16-21099-CA-44 THE GOVERNOR OF FLORIDA, for the use and Benefit of the ESTATE OF VICTOR POSNER, and for All Other Interested Parties, Plaintiff, v. FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Defendant and Third-Party Plaintiff, v. BRENDA D. NESTOR, Third-Party Defendant/Cross-Claim Plaintiff, Vv. PHILIP VON KAHLE, individually, MICHAEL MOECKER AND ASSOCIATES, INC., MMA OPERATIONS, INC., MOECKER REALTY AUCTIONS, LLC d/b/a SVN MOECKER REALTY AUCTIONS, and MOECKER REALTY, INC., Cross-Claim Defendants. / THIRD PARTY DEFENDANT/CROSS-CLAIM PLAINTIFE’S RESPONSE TO PLAINTIFE’S MOTION FOR THE COURT TO ASSIGN MEDIATOR AND SET MEDIATION DATE Third Party Defendant/ Cross-Claim Plaintiff, Brenda Nestor (“Nestor”), by and through undersigned counsel, hereby files her response to Plaintiff's Motion to Set Mediation and appoint retired Judge Howard Tescher as mediator, and in support states as follows1 Pursuant to this Court’s order dated October 31, 2017, the parties have until March 31, 2018 to attend a second mediation. 2. On January 24, 2018 counsel for Plaintiff Philip Von Kahle (“Von Kahle”) contacted counsel for Defendant Fidelity and Deposit Company of Maryland (F&D) inquiring as to proposed mediators for the case. Previously, the parties had used Jon Freud at the request of Plaintiff for the first mediation and it was believed that he would again mediate the second mediation. 3 Plaintiff declined to use the same mediator and sought to secure another individual. Even though Plaintiff has asked for suggested mediators, Plaintiff would not agree to any mediator proposed by Nestor. 4. Ultimately, Plaintiff's counsel offered two choices, one of which was retired Judge Howard Tescher, who is located in Broward County. While Defendant F&D eventually agreed, Nestor did not and does not agree to the use of retired Judge Tescher. 5. Plaintiff e-mailed the parties at 4:27 P.M. on Friday, February 2, 2018 and on the following Monday, February 5, 2018 at 12:38 P.M. notified both F&D and Nestor that Plaintiff had selected retired Judge Tescher and reserved March 28, 2018 for the mediation 6 Counsel for Nestor promptly responded and objected to the use of Tescher. Subsequently, after discussion among counsel for the parties, Nestor proposed seven additional mediators, six of which are located in Miami-Dade County. Instead, Plaintiff filed their improper Motion to Assign Mediator. 7 Despite the plethora of choices, the Plaintiff specifically declined to use anyone other than retired Judge Tescher. Plaintiff's unwavering insistence that retired Judge Tescher should bethe mediator and Plaintiff's seeming unwillingness to come to an agreement as to an acceptable mediator for all parties is troublesome. 8. Nestor does not agree to use Tescher, a former Broward County Judge, despite his experience as a mediator, his quick departure from the bench is cause for concern. Apparently his only experience as a judge was in the domestic violence and he had no experience in the Probate Division as a neutral. 9. Plaintiff argues in its motion that Nestor is the only party who does not consent to use retired Judge Tescher and that the refusal is effectively “the tail wagging the dog” as Nestor is a third-party defendant and a third-party cross-claimant. What Von Kahle forgets to realize is that but for Nestor, Von Kahle would not have had the ability to line his and his co-horts pockets for over two years and waste estate assets. Moreover, because if the indemnity claim against Nestor, she is an integral part of any possible mediation or resolution. 10. Plaintiff attempts to minimalize the effect of the third-party claim and cross-claim on the main claim; specifically, Plaintiff suggests that the court allow the dispute between Plaintiff and F&D to be decided regardless of Nestor’s involvement, stating that “the Curator and Fidelity should be able to mediate their dispute with a mediator of their choice.” See Pl.’s Mot. to Appoint Mediator, 95. 11 Permitting the Plaintiff and F&D to control the choice of mediator at the exclusion of Nestor simply because Nestor is a third-party defendant and cross-claim plaintiff is nonsensical and improper. 12. Plaintiff glosses over the fact that the third-party claim may result in Nestor being ultimately held liable for amounts agreed to between Plaintiff and F&D, as F&D would be indemnified by Nestor pursuant to the terms of the bond agreement upon which Plaintiff is suing13. Plaintiff also is interested in a resolution of the claim without Nestor, as it would bolster Plaintiff's position against Nestor in the Cross-Claim, as Nestor claims that the lawsuit between Plaintiff and F&D is frivolous. 14. Furthermore, Plaintiffs suggestion that Nestor can simply mediate her Cross-Claim with another Mediator apart from the mediation involving Plaintiff and F&D is a poorly veiled attempt to effectively sever the claims, as Plaintiff had previously sought to do and failed, to the sole benefit of the Plaintiff. 15. Therefore, this court should DENY Plaintiffs motion seeking the appointment of retired Judge Tescher, but instead require the parties to mutually agree to a mediator or the Court chose one on its own, preferably with Probate experience. 16. Lastly, despite Plaintiff's certifying that a good faith conference took place between the parties, no such discussion took place. Specifically, CBL Rule 4.3 requires that “Attorneys must discuss in person or on the phone” the issues in an attempt to resolve any dispute prior to submitting it to the Court. Plaintiff never attempted to call the undersigned. 17. Plaintiff, however, merely sent a singular e-mail to counsel for Nestor prior to filing its motion. Plaintiff specifically states that “I further certify that on February 7, 2018, counsel for the Curator communicated with Maury Udell, Esq., counsel for Ms. Nestor, via e-mail, but that the Curator was unable to secure Ms. Nestor’s agreement to the relief requested herein.” See Pl.’s Mot. to Appoint Mediator, 2-3 18 Plaintiff violated this rule as he made a singular attempt via e-mail and did not, as the rule requires, have a discussion in person or on the phone. Moreover, Plaintiff sent his singular e-mail on February 7, 2018 at 10:37 A.M. and filed his motion the following day, February 8, 2018 at 12:59 P.M.19. Therefore, Plaintiff's motion should be DENIED pursuant to the CBL for failing to adequately comply with the Mandatory Meet and Confer Order. WHEREFORE, on the basis of the above and foregoing grounds, Cross-Claim Plaintiff, Brenda Nestor, respectfully requests this Honorable Court DENY Plaintiff's motion and any other relief the Court deems just and proper.Dated: February 9, 2018 Maury Udell Beighley, Myrick, Udell & Lynne, PA Attomeys for Brenda Nestor 150 West Flagler Street Suite 1800 Miami, FL 33130 305-349-3930 — Phone notice66@bmulaw.com By: _/s/ Maury Udell, Esq mudeli@bmulaw.comCERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing was sent via email on January 29, 2018, to: SERVICE LIST Brett M. Amron, Esq. Jeremy S. Korch, Esq. Hayley G. Harrison, Esq. BAST AMRON LLP Attorneys for Philip Von Kahle as Curator SunTrust International Center One Southeast Third Ave., Suite 1400 Miami, Florida 33131 Telephone: (305) 379-7904 Facsimile: (305) 379-7905 E-mail: bamron@bastamron.com jkorch@bastamron.com hharrison@bastamron.com Scott W. Leeds, Esq. THE COCHRAN FIRM — SOUTH FLORIDA Attorneys for Philip Von Kahle as Curator 657 South Drive, Suite 304 Miami Springs, Florida 33166 Telephone: (305) 567-1200 Facsimile: (305) 856-7747 Email: swleeds@cochranfirm.com William H. Strop, Esq. Ryan F. Carpenter, Esq. BECKER & POLIAKOFF, P.A. Attomeys for Fidelity and Deposit Company of Maryland One East Broward Blvd., Ste. 1800 Fort Lauderdale, FL 33301 Telephone: (954) 987-7550 Facsimile: (954) 985-4176 Email: wstrop@bplegal.com rcarpenter@bplegal.com sgill@bplegal.com Paul Steven Singerman Katie Phang Isaac M. Marcushamer BERGER SINGERMAN LLP Attorneys for Philip Von Kahle, individually, Michael Moecker and Associates, Inc., MMA Operations, Inc., Moecker Realty Auctions, LLC d/b/a Svn Moecker Realty Auctions, and Moecker Realty, Inc. 1450 Brickell Avenue, Ste. 1900 Miami, FL 33131 Telephone: (305) 755-9500 Facsimile: (305) 714-4340