Intervenors in the case contend plaintiffs out of state for the summer are ‘playing games’ and that in-person depositions are more effective
Twelfth Judicial Circuit Court Judge Stephen Walker has granted a June 20 motion in one of the Siesta Key hotel lawsuits, allowing the plaintiffs to undergo depositions out-of-state via Zoom.
“The interests of justice will not be compromised in any way” by the remote handling of those proceedings, Walker told the two attorneys participating in the June 24 hearing, which lasted less than 13 minutes.
The plaintiffs had sought a “protective order,” to ensure that the depositions could be handled via Zoom. The intervenors, who are the developers and owners of the property where the hotel projects are planned, opposed the motion.
This is the second time that Walker — who also is presiding over the other Siesta hotel lawsuit — has ruled against intervenors. In late April, he denied the intervenors’ motion to accelerate the timeline for the trial in the complaint filed by Siesta resident Lourdes Ramirez in November 2021. Although the intervenors’ attorneys in that case argued that the parties could be ready for trial this year, and they indicated a long delay could lead to much higher construction costs for the projects, Walker decided to stick with his May 2023 trial date. He cited a judicial precedent that one of Ramirez’s attorneys had noted in fighting the intervenors’ arguments.
In the June 24 hearing, Shane Costello, a partner in the Tampa firm Hill Ward Henderson, represented the intervenors. Gunnar Westergom of the Tampa firm Smolker Matthews addressed the court on behalf of the plaintiffs.
Costello had argued that the requests of three of the plaintiffs were “purely a strategy tactic to gain an advantage by avoiding in-person depositions …”
The plaintiffs in this case are James Wallace III, Robert Sax, the Marina Del Sol Condominium Association and 222 Beach Road Owners Association. The depositions that were the focus of the hearing involve Sax, Wallace and Steve Blaising, who is president of the 222 Beach Road Owners Association.
In their complaint, they contend that the County Commission last year erred in eliminating the counting of hotel and motel rooms — for the purpose of residential density countywide — by amending the county’s Unified Development Code (UDC), which contains all of the county’s land-use and zoning regulations. Instead, they contend, the commissioners needed to change the county’s Comprehensive Plan, which guides growth in the community.
Any amendment to the Comprehensive Plan requires a supermajority vote of the commission, whereas a 3-2 vote is sufficient to pass a UDC amendment.
Wallace, Sax and the two homeowners associations further contend that the plans for the two hotels on Siesta Key, which the commissioners approved on split votes on Oct. 27 and Nov. 2, 2021, violated the Comprehensive Plan.
They cited Comprehensive Plan Future Land Use Policy 2.9.1, which limits residential density on the barrier islands to the level as of March 13, 1989.
One hotel — proposed to encompass five floors over three levels of parking, with 170 rooms — would be built on four parcels located between Beach Road and Calle Miramar, on the edge of Siesta Village. The second project involves a seven-story hotel with 120 rooms that would be constructed at the intersection of Old Stickney Point Road and Peacock Road, in what is known as the “South Bridge Area” of Siesta Key.
In regard to the Calle Miramar project, the primary owner is a New York City resident, while the developer is RE/MAX Realtor Robert Anderson Jr. The principal property owner and developer of the south Siesta hotel is Siesta businessman and chiropractor Dr. Gary Kompothecras. The commissioners on Nov. 2, 2021 also approved his plans for a five-story parking garage, with retail spaces on the ground floor, to complement the hotel and provide parking for guests as well as members of the public.
Although the complaint was filed against Sarasota County, Assistant County Attorney David Pearce did not participate in the June 24 hearing. Westergom told Judge Walker that he had communicated with Pearce, who agreed that the county “doesn’t seem to have too much of a role in the issues for [that proceeding].”
During the hearing, Costello, on behalf of the intervenors, maintained that the plaintiffs’ position regarding the taking of the depositions via Zoom was “inconsistent with correspondence setting these depositions.” The plaintiffs had agreed to in-person depositions, he told Judge Walker, but they had insisted that the attorneys for the intervenors travel to “various states up North,” where Wallace, Sax and Blaising are living this summer.
Costello further contended that “in-person depositions … tend to be more effective than Zoom depositions.”
When Costello tried to show the judge email correspondence regarding those points, Walker told him, “Let’s not spend time on that.”
The ‘standing’ issue and ‘playing games’
Walker did ask Costello to explain “why you believe there’s some prejudice to you by conducting a deposition via Zoom versus in-person.”
Costello first replied that he believed the emails showed that the attorneys for the plaintiffs “were willing to make their clients available for in-person depositions. They did not object to [that],” though the intervenors’ attorneys would have had to travel to Wisconsin, Pennsylvania and Indiana for the proceedings, Costello pointed out.
“Then, when we called their bluff,” Costello continued, and scheduled the in-person depositions. Then the plaintiffs’ attorneys said their clients would participate only via Zoom, he added.
“Also, in consideration of this issue, the court should take into consideration the nature of this case,” Costello told Walker. “They’re challenging the legal validity” of the County Commission’s approval of the hotel projects, Costello added of the plaintiffs. “The plaintiffs are bringing this action as alleged residents of Siesta Key with standing,” Costello said. “Standing is a big issue in this case. … Generally speaking, these plaintiffs have to show that they are adversely affected to a greater degree than others in the county,” in being able to fight the commission’s votes last year.
Costello was referring to a portion of state law regarding complaints such as the type the plaintiffs have filed against Sarasota County. If the plaintiffs cannot prove they would be affected more significantly by the construction of the hotels than other persons would be, then the court has to rule that they have no right to challenge the County Commission decisions.
“I’m familiar with the history [of the case],” Walker told Costello.
“And now they can’t be bothered to give a deposition in Sarasota County,” Costello said of Wallace, Sax and Blaising. “They claim in their motion [regarding the depositions] that they don’t even reside in Sarasota County,” Costello stressed.
At that point, Wallace, who was watching the hearing, tried to interject that he had not made such a claim, but Walker responded immediately: “Mr. Wallace, you will notinterrupt these proceedings!”
The Sarasota News Leader heard Wallace start to reply, but then he stopped.
Costello added, that in regard to Wallace’s deposition, Wallace “alleges he lives in Wisconsin.” However, Costello emphasized, “He also claims homestead exemption for tax benefits in Sarasota County.”
“Absolutely appropriate things for you to raise in motions,” Walker responded. “You still have not told me what the prejudice is to you,” he continued.
“Since we implemented Zoom depositions,” Walker added, “I have steadfastly implemented Zoom depositions, and I have never required anyone to appear in person for a deposition. … Because, if nothing else, it saves resources; it saves money and assists with the coordination and scheduling of time. So unless you’re able to articulate some type of prejudice to you in your ability to conduct a deposition [via Zoom],” he told Costello, he would grant the motion of the plaintiffs.
“I don’t think I can say it is [prejudicial],” Costello replied. “I can say that it is less effective and more difficult to take a deposition of an opposing party via zoom. … The interests of justice here, I think, are promoted by allowing us to take their depositions in person.”
“They’re playing games here for litigation/strategic purposes and that shouldn’t be entertained,” Costello stressed.
“We entirely disagree that we are playing games here,” plaintiffs’ attorney Westergom told Walker. Both Wallace and Sax agreed to the taking of the depositions in the states where they live in the summer, Westergom continued. They wanted “to avoid the unnecessary burden and risk to their health of travel,” Westergom added.
In his motion asking the judge to rule in favor of the Zoom depositions, Westergom noted a Florida Supreme Court administrative order issued on Jan. 8 of this year; he included it as an exhibit with the motion. That order, which Westergom termed a mandate, said that parties “in trial court proceedings who have the capability to participate by electronic means must do so if requested by a party and all rules of procedure that limit or prohibit use of the same are suspended absent a finding by the presiding judge that the interests of justice require the proceeding to be in person” [emphasis in the motion].”
During the hearing, Westergom quoted from an email that Assistant County Attorney Pearce had sent him, saying that Pearce did not care “ ‘if the actual deposition takes place on the moon so long as the county is able to also attend via Zoom.’”
Then Walker made it clear that he would be ruling for the plaintiffs.
Referring to Zoom, he added, “This platform is one good thing that has emerged from this awful pandemic. The money that has been saved, and the effectiveness of being able to conduct not just depositions but mediations and other things … is dramatic. … There’s no downside …”
Nonetheless, Walker told Costello, “This doesn’t compromise any arguments that you will be able to make.”
Given the “quality of the lawyers that are in this case,” Walker added, “I have no concern at all that these depositions will be thorough and that everything will be covered. … Justice is enhanced by moving forward on this platform under the circumstances with witnesses that are out of state.”