BARBARA BOYD, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ILA ESKRIDGE AND SHEILA TURNER, PETITIONER,
v.
PHEO, INC. D/B/A PHEO MEDICAL CENTER AND D/B/A LAKE FOREST MEDICAL CENTER, PHEO MED, LIMITED PARTNERSHIP, D/B/A LAKE FOREST MEDICAL CENTER, WINTER HAVEN HOMES, INC., AS GENERAL PARTNER OF PHEO MED, LIMITED PARTNERSHIP, AND CARE CENTERS MANAGEMENT GROUP, INC., RESPONDENTS

Fla. 1st DCA | 1995-11-21
No. 95-3693
JOANOS, MICKLE and VAN NORTWICK, JJ., concur.
664 So. 2d 294 Florida District Court of Appeal, First District (1995) Positive Treatment
Cited by 39 cases

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Holding

The court held that the trial court's order prohibiting ex parte communications with certain employees did not cause irreparable harm, thus certiorari review was not warranted.


Headnotes

[1] Certiorari is an extraordinary remedy requiring a showing that an order departs from the essential requirements of law, resulting in material injury for which there is no…

[2] Orders that deny discovery are generally not reviewable by certiorari due to the absence of irreparable harm.

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Facts & Procedural History

Plaintiff's counsel sought to engage in ex parte communications with current and former employees of a nursing home. The trial court issued a protecti…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Barbara Boyd, the personal representative of the estate of Ila Eskridge, seeks certiorari review of an order prohibiting her counsel from engaging in ex parte communications with any of respondents’ employees who personally participated in the care of Eskridge. We decline to exercise our certiorari jurisdiction to review this order, but write to explicate our reasons for this decision.

Petitioner is the plaintiff in an action against respondents, the owner and operator of the nursing home in which Eskridge formerly resided. After being advised that petitioner’s counsel intended to make ex parte contact with current and former employees of the nursing home, respondents moved for a protective order, arguing that Rule 4-4.2 of the Rules Regulating the Florida Bar prohibited such contact, and relying on the decision in Barfuss v. Diversicare Corp. of America, 656 So. 2d 486 (Fla. 2d DCA 1995) in support of this conclusion. Petitioner opposed this motion, arguing that Reynoso v. Greynolds Park Manor, Inc., 659 So. 2d 1156 (Fla. 3d DCA 1995) allowed ex parte contact with former employees of a party under circumstances such as this.

The trial court thereafter entered its order partially granting the motion for protective order, finding that Rule 4-4.2 precluded ex parte contact with present and former employees who directly participated in the care of the decedent, but that the rule did not preclude ex parte contact with former employees who did not directly participate in such care. Petitioner now asks that this court quash the trial court’s order and align itself with the position of the Third District Court of Appeal in Reynoso.

As petitioner correctly states, both the Barfuss and Reynoso courts invoked certiorari jurisdiction to review interlocutory orders such as the one at issue here, and reached conflicting conclusions regarding the propriety of such orders.

Petitioner argues that such review is likewise warranted in this circumstance, but without addressing the merits of the trial court’s order, we are compelled to conclude that the exercise of this court’s certiorari jurisdiction is not warranted. Certiorari is an extraordinary remedy, the entitlement to which is dependent upon a showing that the order for which review is sought departs from the essential requirements of law, resulting in a material injury for which there is no adequate remedy by appeal. Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla.1987).

We conclude in this instance that petitioner has failed to demonstrate the likelihood of irreparable harm arising from the trial court’s order. As evidenced by decisions such as Esman v. Board of Regents, 425 So. 2d 156 (Fla. 1st DCA 1983), this court has adhered to the view that orders having the effect of denying discovery are almost invariably not reviewable by certiorari because of the absence of irreparable harm. Petitioner nonetheless relies on decisions of other district courts of appeal to suggest that because the trial court’s order has the effect of denying essential discovery and there would be no practical way to determine after judgment what the testimony would have been and how it would have affected the result, irreparable harm has been demonstrated. See, e.g., Ruiz v. Steiner, 599 So. 2d 196 (Fla. 3d DCA 1992) and cases cited therein.

However, the order in this case does not prevent petitioner irom engaging in discovery. Rather, it merely precludes her use of investigative techniques less formal than those called for in the rules governing discovery. Nothing in the order precludes petitioner from utilizing common discovery techniques to identify respondents’ current and former employees (as it appears she has already done), and petitioner is not precluded from then deposing any witnesses she so identifies. In this regard, we reject petitioner’s assertion that certiorari review is warranted because the trial court’s order lessens her ability to prepare her case and increases the cost of litigation. Cf., Continental Equities, Inc. v. Jacksonville Transportation Authority, 558 So. 2d 154 (Fla. 1st DCA 1990) (the burden and expense of an allegedly unnecessary trial is not irreparable harm for purposes of certiorari analysis).

Finally, we acknowledge that this court has recently granted certiorari relief in a factual circumstance somewhat similar to this case. In Alachua General Hospital v. Stewart, 649 So. 2d 357 (Fla. 1st DCA 1995), the defendant hospital requested authorization to conduct ex parte interviews with certain physicians who had allegedly acted as its agents in rendering medical care to the plaintiffs ward. On legal grounds distinct from those at issue here, the trial court denied this request, but this court granted certiorari review and quashed the trial court’s order.

However, under the facts of that case, the trial court’s order effectively precluded the defendant from privately discussing the case with individuals whose actions were allegedly by the plaintiff to be a basis for imposing vicarious liability on the hospital. For purposes of determining whether irreparable harm has been caused so as to warrant certiorari review, such a situation is obviously distinguishable from a situation in which the trial court precludes a plaintiff from conducting ex parte communications with former employees of the defendant, but does not preclude the plaintiff from engaging in formal discovery involving those same individuals.

For the foregoing reasons, we conclude that petitioner has failed to demonstrate that the trial court’s order results in irreparable harm, and the petition for writ of certiorari is therefore DENIED.

JOANOS, MICKLE and VAN NORTWICK, JJ., concur.


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Cited By (21 total)

  • CQB v. The Bank OF NEW York Mellon, 177 So. 3d 644 (Fla. 1st DCA 2015)
    …Savage, 509 So. 2d 1097, 1098-99 (Fla.1987)). This Court “has adhered to the view that orders having the effect of denying discovery are almost invariably not reviewable by certiorari because of the absence of irreparable harm.” Boyd v. Pheo, Inc., 664 So. 2d 294, 295 (Fla. 1st DCA 1995); see also Goslin v. Preisser, 148 So. 3d 869, 870 (Fla. 1st DCA 2014) (“We do not have jurisdiction to review the order by certiorari because the order merely denies a discovery request and any resulting harm can be remedied…
  • Eutsay v. State, 103 So. 3d 181 (Fla. 1st DCA 2012)
    …Williams v. Oken, 62 So. 3d 1129, 1134 (Fla.2011). As stated previously by this Court, “orders having the effect of denying discovery are almost invariably not reviewable by certiorari because of the absence of irreparable harm.” Boyd v. Pheo, Inc., 664 So. 2d 294, 295 (Fla. 1st DCA 1995). Unlike situations where a trial court erroneously compels the exchange of information (the proverbial “cat out of the bag” orders), the harm done by the failure to provide information can be corrected on appeal in most case…
  • Neeley v. CW Roberts Contracting, 948 So. 2d 844 (Fla. 1st DCA 2007)
    …rcuit court denying his motions to compel discovery. As we have repeatedly observed, orders having the effect of denying discovery are almost invariably not reviewable by certiorari because of the absence of irreparable harm. See Boyd v. Pheo, Inc., 664 So. 2d 294 (Fla. 1st DCA 1995); Esman v. Bd. of Regents, 425 So. 2d 156 (Fla. 1st DCA 1983). Inasmuch as any error by the circuit court will be readily remediable on appeal, this case presents no basis for departing from this general rule. Accordingly, the pet…

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