Third District Court of Appeal

State of Florida 

Opinion filed September 14, 2022.

Not final until disposition of timely filed motion for rehearing.

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No. 3D22-674

Lower Tribunal No. 17-2962

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Seaway Biltmore, Inc., et al.,

Petitioners,

vs.

Grace Abuchaibe,

Respondent.

On Petition for Writ of Certiorari from the Circuit Court for MiamiDade County, Pedro P. Echarte, Jr., Judge.

Jackson Lewis P.C. and Pedro J. Torres-Díaz and Shayla N. Waldon, 

for petitioners.

Law Offices of Sina Negahbani and Sina Negahbani, for respondent.

Before LINDSEY, HENDON and LOBREE, JJ. 

HENDON, J. 
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Petitioners Seaway Biltmore, Inc. (“Seaway”) and The Biltmore 

Limited Partnership (“Biltmore”) (collectively, the “Petitioners” or 

“Defendants”), file this petition for certiorari seeking to quash the trial 

court’s non-final order adopting the special magistrate’s report and 

imposing discovery sanctions on the Petitioners. We dismiss the petition 

for lack of certiorari jurisdiction. 

Facts

Grace Abuchaibe (“Respondent” or “Plaintiff”) was a reservations 

agent at the Biltmore from 2005 through 2011. In 2011, she was fired and 

filed a complaint with the EEOC for age-based discrimination and 

retaliation. In March 2012, the parties signed a negotiated settlement 

agreement (“NSA”) resolving all of the claims. The NSA required the 

Biltmore to reinstate her to her former position, provide her with access to 

training, among other things, and also contained an anti-retaliation clause. 

In 2015, Respondent allegedly committed misconduct by engaging in a 

public argument with the Biltmore’s chief information officer about an issue 

she was having with her computer. Citing prior episodes of misconduct, the 
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Biltmore terminated her.1 The Respondent then filed a two-count complaint 

against the Petitioners.

In her original complaint, the Respondent included claims for breach 

of contract based on the NSA and for unlawful retaliation under Title VII of 

the Civil Rights Act (“Title VII”). Her amended complaint included 

allegations that the Petitioners failed to consider her for, or outright rejected 

her for, multiple promotions or job transfer opportunities and issued her 

sham warnings. Respondent also alleged for the first time, in paragraph 14 

of the amended complaint, that the Petitioners failed to provide her with, or 

disregarded her requests for, a parking space in the covered garage and 

failed to timely/properly assist her with computer issues and/or intentionally 

caused work problems for her. 

The Respondent asked for various records and documents during 

discovery. The Petitioners responded with objections, and failed to timely 

produce, or produce at all, several classes of discovery items. Further, the 

Respondent alleged that the Petitioners had deliberately failed to preserve 

certain records, which the Petitioners allege have been lost or inadvertently 

1 The Respondent then filed a complaint with the EEOC for age 

discrimination and retaliation. In 2016, the EEOC issued a notice of right to 

sue, but was unable to conclude that the Respondent established statutory 

violations. 
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deleted. After an unsatisfactory response to a second request for 

production, which contained unproduced material that overlapped with the 

first request, the Respondent filed a motion to compel production. 

After hearings on the Respondent’s motion to compel production, the 

trial court granted the Respondent’s motion and ordered the Petitioners to 

comply by producing all responsive documents. The trial court specifically 

found that the Petitioners had hindered and delayed discovery. The trial 

court appointed a special magistrate to consider all further discovery 

matters and to issue a report and recommendation on the imposition of 

sanctions.2

The special magistrate heard testimony over four days. The special 

magistrate found that some of the discovery not supplied by the Petitioners 

was not intentional, but rather a result of the application of existing 

document retention policies and, under the circumstances, sanctions were 

not warranted. On the other hand, the special magistrate concluded that 

2 In its order, the trial court stated: 

The Court specifically again finds that the Defendants have 

played games with discovery, and failed to produce clearly 

relevant items. The Court is not amused by Defendant’s [sic] 

arguments and responses, and the ongoing efforts by the 

Defendants to hinder and delay Plaintiff’s legitimate and long 

outstanding discovery. 
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the Petitioners’ outright deletion of, or failure to maintain, other materials 

was troublesome. The magistrate recommended imposition of sanctions for 

spoliation of evidence, finding: 

With respect to the IT tickets and related emails requested by 

Plaintiff that were not produced because of their unavailability 

due to the June, 2016 change in computer software and 

permanent deletion of such records by Defendants, the Special 

Magistrate specifically finds that (1) the evidence existed at 

one time; (2) Defendants had a duty to preserve the 

evidence; and (3) the evidence was crucial to the Plaintiff’s 

prima facie case in this matter. 

The undersigned also finds that Defendants were well-aware 

of their obligation to preserve such evidence and that 

Defendants’ destruction of these IT records in 2016 was with 

knowledge of its consequences to Plaintiff in proving her 

claims. The Special Magistrate finds that such actions by 

Defendants were done, in whole or in part, with the intent 

to deprive Plaintiff of the information lost. Accordingly, the 

Special Magistrate finds and recommends that the Court, 

pursuant to Fla. R. Civ. P. 1.380(e) and Florida law regarding 

spoliation of evidence, presume that the lost IT information 

was unfavorable to Defendants and instruct the jury that it 

must presume that the absent information was unfavorable 

to Defendants.

(emphasis added). The special magistrate also recommended imposing 

sanctions against the Petitioners for their violation of the trial court’s orders 

to timely produce all the documents ordered by certain deadlines. The 

recommended sanctions included charging the Petitioners with the costs 
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and fees of the special magistrate, and half of the Respondent’s legal fees 

for the four days of hearings before the special magistrate.

The Petitioners filed their objections to the report, the sanctions 

imposed, and specifically to the recommendation that the trial court instruct 

the jury that it should presume the Petitioners intentionally destroyed IT 

records to deprive the Respondent of relevant information. After due 

consideration, the trial court approved, ratified, and adopted the special 

magistrate’s report and recommendation. 

On petition for certiorari, the Petitioners contend that instructing the 

jury that it must presume that the unproduced emails and IT documentation 

was unfavorable to the Respondent creates an unrebuttable presumption, 

and that such a jury instruction will preclude the Petitioners from offering 

material evidence, causing irreparable injury to the Petitioners that cannot 

be remedied on appeal. We disagree. 

“When the trial court reviews the magistrate's report to resolve an 

exception, . . . a trial court must accept the magistrate's findings of fact if 

they are supported by competent, substantial evidence.” Coriat v. Coriat, 

306 So. 3d 356, 358 (Fla. 3d DCA 2020) (citing In re Drummond, 69 So. 3d 

1054, 1056 (Fla. 2d DCA 2011)); Martinez-Olson v. Est. of Olson, 328 So. 
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3d 14, 18 (Fla. 3d DCA 2021) (holding a trial court's decision to accept or 

reject a general magistrate's report and recommendations is reviewed for 

an abuse of discretion). Thus, this Court's certiorari review of the trial 

court's non-final order is limited to whether the trial court departed from the 

essential requirements of law in conducting its review of the special 

magistrate's report and recommendations, resulting in irreparable harm to 

the petitioner that cannot be remedied on direct appeal. S.V. v. Dep't of 

Child. & Fams., 178 So. 3d 421, 423 (Fla. 3d DCA 2015). The 

establishment of irreparable harm is a condition precedent to invoking 

certiorari jurisdiction. Miami–Dade Cnty. v. Dade Cnty. Police Benevolent 

Ass’n, 103 So. 3d 236, 238 (Fla. 3d DCA 2012).

We consider whether the trial court’s adoption of the special 

magistrate’s recommendation – that the jury be instructed to presume the 

missing documentation was intentionally destroyed – constitutes 

irreparable injury that cannot be remedied on appeal. We conclude it does 

not. 

In Public Health Trust of Dade County v. Valcin, 507 So. 2d 596, 599 

(Fla. 1987), the Florida Supreme Court struck down the conclusive 

presumption of liability when records are shown to be missing due to 

deliberate acts or omissions of the defendant. Valcin adopted a rebuttable 
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presumption of negligence in a medical malpractice action premised on a 

showing that missing documents hindered the plaintiff's “ability to establish 

a prima facie case.” Id. at 599. According to Valcin, where evidence 

necessary to prove a prima facie case is missing due to actions of a party, 

an essential element of a claim may be presumed, shifting the burden to 

the opposing party to dis-prove that element. Compare, Palmas Y Bambu, 

S.A. v. E.I. Dupont De Nemours & Co., 881 So. 2d 565, 581–82 (Fla. 3d 

DCA 2004) (finding Valcin inapplicable where defendants’ ability to 

establish a prima facie case was not hindered by the loss of the 

documentation). “In those extremely rare instances that the evidence 

establishes an intentional interference with a party's access to critical . . . 

records, a wide range of sanctions is available to the trial court under 

Florida Rule of Civil Procedure 1.380(b)(2). Valcin, 507 So. 2d at 599; see 

also Mercer v. Raine, 443 So. 2d 944 (Fla.1983).

In Martino v. Wal–Mart Stores, Inc., 908 So. 2d 342, 346 (Fla. 2005), 

the Florida Supreme Court further explained that the presumption only 

applied when “the absence of the records hinders [the plaintiff's] ability to 

establish a prima facie case.” Id. This rebuttable presumption shifted the 

burden of proof under section 90.302(2) so that the presumption “is not 

overcome until the trier of fact believes that the presumed [negligence] has 
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been overcome by whatever degree of persuasion is required by the 

substantive law of the case.” Id. at 600–01 (quoting Caldwell v. Div. of Ret., 

372 So. 2d 438, 440 (Fla. 1979)).

In Pena v. Bi-Lo Holdings, LLC, 304 So. 3d 1254 (Fla. 3d DCA 2020), 

the plaintiff claimed spoliation because she made a pre-suit request to 

preserve surveillance footage and the defendant neglected to preserve the 

relevant physical evidence captured by the cameras. This Court ultimately 

affirmed the lower court’s dismissal of the spoliation claim, but 

acknowledged that “there is some precedent supporting the proposition that 

notification of potential litigation triggers the obligation to preserve crucial 

evidence.” Id. at 1258; see Nationwide Lift Trucks, Inc. v. Smith, 832 So. 

2d 824, 826 (Fla. 4th DCA 2002) (stating that “[c]ases in which evidence 

has been destroyed, either inadvertently or intentionally, are discovery 

violations” that may be subject to sanctions). Even in the absence of a 

legal duty, the spoliation of evidence may result in an adverse inference 

against the party that discarded or destroyed the evidence. League of 

Women Voters of Fla. v. Detzner, 172 So. 3d 363, 391 (Fla. 2015). If the 

evidence was negligently destroyed, a rebuttable presumption of liability 

may arise. Id. at 347; see also Golden Yachts, Inc. v. Hall, 920 So. 2d 777, 

781 (Fla. 4th DCA 2006) (“[A]n adverse inference may arise in any situation 
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where potentially self-damaging evidence is in the possession of a party 

and that party either loses or destroys the evidence.”) (quoting Martino at 

1257)). (emphasis added).

In the Petitioners’ case, the trial court found competent, substantial 

evidence in the record that the Petitioners were aware of potential litigation 

via the NSA, and had a duty to preserve the relevant IT information. The 

trial court found the record sufficient to support the presumption3 that the 

3 As explained in Palmas Y Bambu, S.A. v. E.I. Dupont De Nemours & Co., 

881 So. 2d 565, 582 (Fla. 3d DCA 2004):

A presumption differs from an inference. An inference is a 

logical deduction of fact that the trier of fact draws from 

existence of another fact or group of facts. Whether the inferred 

fact is found to exist will be decided by the trier of fact. A 

presumption is stronger; it compels the trier of fact to find the 

presumed fact if it finds certain basic facts to be present. Even if 

a court finds that a presumption is not present in a particular 

situation, an inference of the same fact can be drawn if it is 

supported logically by the evidence.

Charles W. Ehrhardt, Florida Evidence § 301.1, at 89–90 (2003) 

(footnotes omitted) (emphasis added); see also 2 J. Wigmore, 

Evidence § 285, at 192 (James H. Chadbourn rev., 1979). 

Unlike a Valcin presumption, an inference generally will not 

support a jury instruction:

It is important to note that an adverse inference from the 

failure to produce evidence is different than the Valcin

[Public Health Trust of Dade County v. Valcin, 507 So. 2d 

596 (Fla. 1987)] rebuttable presumption. If the actions of the 

opposing party cause evidence to be lost that is necessary 

to prove a prima facie case, the Valcin presumption shifts 

the burden of proof to ensure that a jury decides the issue of 

negligence. In essence, the Valcin presumption supplies an 
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Petitioners intended to deprive the Respondent of relevant information, and 

the trial court did not abuse its discretion by adopting the special 

magistrate’s report and recommendation. Nothing in the case law indicates 

that at this point, a negative presumption instruction will preclude the 

Petitioners’ ability to present evidence and argument against the 

presumption that the loss of IT records was intentional; certainly, the trial 

court has not barred the Petitioners from countering the presumption at 

trial.4 As there is no indication that the negative presumption will cause 

essential element of the case—negligence—and shifts to the 

defendant the burden of proving that he or she was not 

negligent. The adverse inference merely allows counsel to 

argue to the jury the inference that the evidence was lost 

because it was damaging to the opposing party's case. The 

jury may accept or reject the inference as it sees fit.

6 Florida Practice, Personal Injury & Wrongful Death Actions § 

26.6 (2004 ed.)

4 The Petitioners rely on cases that are not factually applicable, cases in 

which an adverse presumption was not an issue or instruction, but in which 

the trial court outright barred presentation of critical testimony or evidence. 

See, e.g., Solonina v. Artglass Int'l, LLC, 256 So. 3d 971, 972 (Fla. 3d DCA 

2018) (finding irreparable harm where trial court barred the plaintiff from 

taking depositions of key witnesses, and to be present at her own trial); 

Marrero v. Rea, 312 So. 3d 1041, 1048 (Fla. 5th DCA 2021) (finding 

irreparable harm where trial court barred party from critical discovery); 

Beekie v. Morgan, 751 So. 2d 694, 698 (Fla. 5th DCA 2000) (finding error 

was not remediable on appeal since there was no practical way to 

determine after judgment how denial of opportunity to depose defendant 

affected outcome of trial).
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irreparable injury that cannot be remedied on appeal, the Petitioners have 

not met their burden on petition for certiorari. 

Finally, the trial court’s ratification and acceptance of the special 

magistrate’s fees and costs recommendations does not amount to 

irreparable injury. The determination that an award of fees as a discovery 

violation sanction is appropriate does not in itself demonstrate material 

harm or irreparable injury. Rydell v. Rutter, 834 So. 2d 883, 884 (Fla. 5th 

DCA 2002). A partial award of costs and fees as sanctions (especially 

where there was clear warning that severe sanctions could be imposed) for 

the failure to timely and fully comply with the court’s discovery orders is not 

an abuse of discretion. See Malone v. Costin, 410 So. 2d 569 (Fla. 1st 

DCA 1982). In Malone, the First District Court of Appeal held that an 

interlocutory order granting attorney's fees and costs on a motion to compel 

discovery was not a non-final order which could be reviewed by appeal or 

certiorari. The First District noted that when seeking a writ of certiorari, 

petitioner has a heavy burden of showing that there was a clear departure 

from the essential requirements of law which would result in irreparable 

harm. The First District stated that even if compliance with a court order is 

costly, that, in and of itself, would not provide a basis for certiorari review. 
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Indeed, as the fees and costs in this case have not yet been reduced to a 

fixed amount, the Petitioners have shown no irreparable injury at this point. 

We therefore dismiss the petition for certiorari based on the 

Petitioners’ failure to prove the threshold element of irreparable injury on 

either of the grounds presented. 

Petition dismissed.