Filing # 21836069 Electronically Filed 12/19/2014 04:27:53 PM

IN THE CIRCUIT COURT OF THE FIFTEENTH

JUDICIAL CIRCUIT IN AND FOR PALM
BEACH COUNTY, FLORIDA
CIVIL DIVISION
CASE NO. 502014CA012272-AO
IBERIABANK, a Louisiana state bank
Plaintiff,
vs.
AUBURN TRACE, LTD., a Florida limited
partnership, et al.,
Defendants.
____________________________________/
AMENDED MOTION FOR PROTECTIVE ORDER
AND OBJECTION TO SUBPOENA FOR DEPOSITION DUCES TECUM
Defendant, CITY OF DELRAY BEACH, FLORIDA (City), by and through the
undersigned counsel, and pursuant to Fla. R. Civ. P. 1.280(c), respectfully moves this Court to
enter an order of protection preventing, and objects to, the taking of the deposition of Shelly
Petrolia, Vice-Mayor of the City, in the above-captioned matter. The requested deposition is
wholly improper at this time and cannot reasonably be anticipated to lead to relevant and
admissible evidence. Accordingly, there is no legitimate basis for the deposition, other than
annoyance, embarrassment, oppression, or undue burden or expense. Defendant City further
states as grounds:
1.

Plaintiff, IBERIABANK, filed its Verified Complaint in the above captioned case

on or about October 8, 2014 alleging counts of Breach of the Note, Foreclosure of the Mortgage
and Assignment of Rents, Breach of the Auburn Management Guaranty, Breach of the Florida
Affordable Housing Guaranty, Breach of the Auburn Trace Joint Venture Guaranty, and Breach
of the Brian Hinners Guaranty. Plaintiff served its Verified Complaint upon Defendant City on
or about October 16, 2014.

2.

Plaintiffs Verified Complaint alleges a relatively straightforward mortgage

foreclosure and breach of contract action involving property located in Palm Beach County,
Florida. Defendant Auburn Trace, LTD (Auburn Trace) executed several promissory notes in
favor of Plaintiff, its predecessors, or assigns. This action arises as Auburn Trace has allegedly
failed to make payments required under the several notes which are secured by a mortgage on the
subject property.
3.

The City is allegedly included as a part of this action solely as a matter of course

because it holds a second or subordinate mortgage on the real property at issue. Paragraph 7 of
Plaintiffs Verified Complaint states in totality, Defendant City may have or claim to have an
interest in the real property that is the subject of this action. Apart from that short and precise
statement, there are no allegations in Plaintiffs Verified Complaint that concern the City or its
agents, and there is absolutely no reference whatsoever to Vice-Mayor Petrolia. This is very
simply a breach of contract action between Plaintiff and Defendant Auburn Trace (and those that
signed guaranty agreements benefitting Auburn Trace).
4.

As of the date of filing this Motion, Defendant Auburn Trace has filed no

responsive pleadings to the Verified Complaint.

5.

Furthermore, no party has filed a pleading in this matter, or even asserted an

argument, in any way implicating the City, Vice-Mayor Petrolia, or any other City agent in the
substantive allegations of Plaintiffs Verified Complaint.
6.

On or about December 16, 2014, counsel for Defendant Auburn Trace filed a

Notice of Taking Deposition Duces Tecum of Shelly Petrolia, Vice Mayor City of Delray
Beach on January 15, 2015 at 2:00 P.M.

7.

The requested deposition of Vice-Mayor Petrolia is both inappropriate and

unwarranted for the following reasons: the deposition is not relevant to the subject matter of the
pending action, Fla. R. Civ. P. 1.280(b)(1); Defendant Auburn Trace has not exhausted, or even
attempted to secure the information through, other means before deposing a member of the
Citys governing body, See Dept of Agric. & Consumer Servs. v. Broward County, 810 So. 2d
1056, 1058 (Fla. 1st DCA 1978); and Vice-Mayor Petrolias motive is irrelevant to any action
taken by the City, See Manatee County v. Estech Gen. Chems. Corp., 402 So. 2d 75, 76 (Fla. 2d
DCA 1981).
8.

The deposition of Vice-Mayor Petrolia is not relevant to any pending action as

required by Florida Rule of Civil Procedure 1.280(b)(1). This rule only allows discovery on
matters that [are] relevant to the subject matter of the pending action, whether it relates to the
claim or defense of the party seeking discovery or the claim or defense of any other party; it
does not authorize discovery that is irrelevant to all pending claims and defenses but concerns a
theoretical and potential future cause of action.
9.

Here, there is no reasonable explanation Defendant Auburn Trace can give as to

why the requested deposition is likely to lead to evidence that is relevant to the pending claims.
To the contrary, the requested deposition is nothing more than a fishing expedition that only
serves to annoy, embarrass, oppress, or unduly burden. In a November 4, 2014 letter to Delray
Beach City Attorney Noel Pfeffer, counsel for Defendant Auburn Trace blatantly declares his
intention to use the discovery process in the pending mortgage foreclosure action to attempt to
build evidence for a claim against the City. See correspondence from Robert A. Sweetapple
dated November 1, 2014, attached hereto as Exhibit A. In his letter, counsel for Defendant
Auburn Trace states:

Thank you for your letter of October 13, 2014. Since my previous
letter to the City I have been investigating matters regarding my
clients first mortgage with Iberia Bank and the Citys interference,
though an elected official and agent, with my clients ability to
refinance that loan.
A foreclosure action has been instituted by Iberia Bank based on a
maturity default. Depositions will establish that the City through
its elected official and agent intentionally interfered in the
Thomas Hinners bankruptcy which prevented and substantially
delayed Brian Hinners ability to effect a refinance of the debt.
The Citys intention to so interfere is a matter of public record.
City elected officials have stated their desire to acquire this
property by acquiring the first mortgage. In this instance the City
is not only a government entity but the second mortgagee. As
such, fiduciary duties and duties of good faith flow to my client.
After the conclusion of discovery, I will be filing a crossclaim
against the City of Delray Beach. All other aspects of your notice
of default are disputed. (Emphasis added).
Counsel clearly desires to use the discovery process in this pending mortgage foreclosure action
to attempt to develop evidence that does not exist regarding a claim that has not been made. 1
10.

Moreover, because [a] municipal corporation speaks only through its records, not

through opinions of individual officers, an individual commissioners motive for taking an

action is not relevant. See Beck v. Littlefield, 68 So. 2d 889, 892 (Fla. 1953). In Manatee County
v. Estech Gen. Chems. Corp, the Second DCA held that the motive for a commissioners vote
and the evidence the commissioner considered in making her decision were not relevant and not
reasonably calculated to lead to relevant evidence. 402 So. 2d at 76. Absent a claim of fraud, the
motive and reasoning of commissioners in voting are entirely irrelevant. See Hillsborough
County v. Pinellas County, 425 So. 2d 1196, 1197 (Fla. 2d DCA 1983).

Here, Defendant

Auburn Trace does not allege that Vice-Mayor Petrolia took any action related to the pending
claim.

Rather, the November 4 letter clearly indicates that counsel believes the City (a

Had the evidence existed and had it been relevant to this, or any, cause of action, the City contends that Defendant
Auburn Trace would have filed such a claim accordingly.

governmental entity) acted in a way that would justify legal action. If that were the case,
information not available from other sources would relate solely to Vice-Mayor Petrolias motive
for action, which is completely irrelevant as the City only acts through the will of a majority of
its Commission.
11.

Even if this Court were to find the deposition relevant for purposes of Rule 1.280,

which it is not, Defendant Auburn Trace has not attempted to gather information from other
sources, as required by Florida law. See Dept of Agric. & Consumer Servs., 810 So. 2d at 1058.
Agency head[s] should not be subject to deposition, over objection, unless and until the
opposing parties have exhausted other discovery and can demonstrate that the agency head is
uniquely able to provide relevant information which cannot be obtained from other sources. Id.
Here, as provided in the November 4 letter quoted above, counsel for Defendant Auburn Trace
explicitly states that the Citys intention to so interfere is a matter of public record. Defendant
Auburn Trace therefore admits that the information it seeks can be obtained from another source
but is still inappropriately attempting to depose a high ranking elected official to bolster a nonexistent cause of action. Allowing high ranking elected officials to be deposed before other
discovery methods are exhausted is detrimental to the efficient operation of local governments as
it means that elected officials can be subjected to deposition for every vote and decision made in
office. Id.
12.

Accordingly, the requested deposition of Vice-Mayor Petrolia is entirely

inappropriate and should not be allowed to proceed.

Should the deposition continue as

scheduled, this Court must give clear instruction to Defendant Auburn Trace regarding proper
topic and scope of questioning.

13.

Pursuant to Fla. R. Civ. P. 1.280(c) and Fla. R. Civ. P. 1.380(a)(4), should the

Court grant this motion, the City is entitled to the reasonable expenses incurred in seeking this
relief, including attorneys fees and costs.
WHEREFORE, Defendant, City of Delray Beach, Florida, respectfully requests that the
Court grant this Amended Motion and enter an Order of Protection preventing Defendant,
Auburn Trace, LTD, from taking the deposition of Shelly Petrolia, Vice-Mayor of the City of
Delray Beach, entitling the City of Delray Beach to fees and costs associated with bringing this
Amended Motion, and ordering such other relief that this Court deems just and appropriate.
I HEREBY CERTIFY that a true and correct copy of the above and foregoing has been
furnished by electronic mail via the Florida Courts E-Filing Portal to: Robert A. Sweetapple,
Esq., 20 S.E. 3rd Street, Boca Raton, FL 33432 at rsweetapple@sweetapplelaw.com; Adrian
Rust, Esq., Rogers Towers, P.A., 818 A1A North, Suite 208, Ponte Vedra Beach, FL, 32082
arust@rtlaw.com, abrandon@rtlaw.com, msalinas@rtlaw.com, and David W. Langley, Esq.,
8551 West Sunrise Blvd., Suite 303, Plantation, FL 33322 at dave@flalawyer.com this 19th day
of December, 2014.
OFFICE OF THE CITY ATTORNEY
CITY OF DELRAY BEACH, FLORIDA
By:

/s/ Michael E. Dutko, Jr.

Michael E. Dutko, Jr.
Assistant City Attorney
dutkom@mydelraybeach.com
Fla. Bar No. 72505
Noel Pfeffer
City Attorney
Pfeffer@mydelraybeach.com
Fla. Bar No. 252999
200 N.W. 1st Avenue
Delray Beach, Florida 33444
(561) 243-7090