SCOTTY'S, INC., PETITIONER,
v.
MARIA OLIVIERI, RESPONDENT
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The court held that the petitioner failed to demonstrate the trial court's order compelling discovery departed from the essential requirements of law.
[1] An appellate court must presume the correctness of a trial court's ruling when the petitioner fails to provide a transcript of the hearing on the motion to compel discove…
[2] The burden is on the petitioner to demonstrate that a trial court's discovery order constitutes a departure from the essential requirements of law.
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Join FLexlaw to unlock all legal intelligenceOlivieri sued Scotty's for injuries from a slip and fall. The trial court ordered Scotty's to produce an accident report attached to a loss notice, wh…
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W. SHARP, Judge.
Scotty’s, Inc. (Scotty’s) petitions this court for a writ of certiorari to quash the trial court’s order compelling discovery. Olivieri sued Scotty’s for damages she suffered resulting from a slip and fall on Scotty’s premises. The trial court, after a hearing, ordered Scotty’s to produce a copy of an accident report which had been attached to Scotty’s General Liability Loss Notice, but which had not been furnished to Olivieri pursuant to an earlier oral ruling.
There is apparently a dispute in this case as to whether the. report is privileged as Scotty’s work product,1 and whether Olivieri made a sufficient showing of need and undue hardship. Although a contested hearing was held concerning this matter, no transcript of the hearing on the motion to compel was furnished to us. Absent a transcript, we must assume that either no proper objection was made by Scotty’s or that a sufficient showing of need and undue hardship was made. Inapro, Inc. v. Alex Hofrichter, P.A., 665 So. 2d 279 (Fla. 3d DCA 1995), rev. dismissed, 675 So. 2d 120 (Fla. 1996). See also Arthur v. Gibson, 654 So. 2d 983 (Fla. 5th DCA 1995) (certiorari denied where petitioner failed to supply transcript of hearing, so correctness of trial court’s ruling must be presumed).
The burden of showing the appellate court that the trial court’s order departed from the essential requirements of law is on the petitioner, Scotty’s. Petitioner failed to carry that burden in this case.
Petition for Writ of Certiorari DENIED.
GRIFFIN, C.J., and THOMPSON, J., concur. . Winn-Dixie Stores, Inc. v. Nakutis, 435 So. 2d 307 (Fla. 5th DCA 1983), rev. denied, 446 So. 2d 100 (Fla. 1984), holds that incident reports prepared in anticipation of litigation are work product and under rule 1.280(b)(2). Thus, production of such reports can only be compelled after a showing of need and inability to obtain the substantial equivalent without undue hardship. See also Intercontinental Properties, Inc. v. Samy, 685 So. 2d 1035 (Fla. 3d DCA 1997).
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Citator
Cited By
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Tampa Med. Assocs., Inc. v. The Est. OF Hilda Claramunt Torres, 903 So. 2d 259 (Fla. 2d DCA 2005)…foundation. The Estate argues that without a transcript of the telephonic hearing, this court must assume that it made the showing necessary to entitle it to obtain the disputed documents. Ordinarily, we would agree. See Scotty’s, Inc. v. Olivieri, 713 So. 2d 1020, 1021 (Fla. 5th DCA 1998) (“Absent a transcript, we must assume that either no proper objection was made by Scotty’s or that a sufficient showing of need and undue hardship was made.”). However, the circumstances in this case are more akin to those…
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Jackson v. York Hannover Nursing Ctrs., 876 So. 2d 8 (Fla. 5th DCA 2004)…onfront this subject. See, e.g., Acosta v. Creative Group Invs., Inc., 756 So. 2d 193 (Fla. 3d DCA 2000); Almodovar v. Almodovar, 754 So. 2d 861 (Fla. 3d DCA 2000); Scarlett v. Scarlett, 736 So. 2d 125 (Fla. 5th DCA 1999); Scotty’s Inc. v. Olivieri, 713 So. 2d 1020 (Fla. 5th DCA 1998); Hill v. Hill, 706 So. 2d 406 (Fla. 5th DCA 1998). While there are other issues raised by the Personal Representative, we conclude that none merit reversal. AFFIRMED. PETERSON and THOMPSON, JJ., concur. . Fabre v. Marin, 623…
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Aldrich v. Est. OF Grace M. Aldrich, 886 So. 2d 338 (Fla. 5th DCA 2004)…transcript of the hearing or an approved statement of the evidence and proceedings pursuant to rule 9.200(b)(4) of the Florida Rules of Appellate Procedure results in a failure to sustain the burden of proving any error); Scotty’s, Inc. v. Olivieri, 713 So. 2d 1020 (Fla. 5th DCA 1998)(holding that, absent transcript, the appellate court will assume that a sufficient showing was made to support the order entered below). PETITION DENIED. ORFINGER and MONACO, JJ., concur.…
Authorities Cited
- Winn-Dixie Stores, Inc. v. Varsenig Nakutis, 435 So. 2d 307 (Fla. 5th DCA 1983)
- Intercontinental Props., Inc. v. Reynold Samy, 685 So. 2d 1035 (Fla. 3d DCA 1997)
- Arthur v. Gibson, 654 So. 2d 983 (Fla. 5th DCA 1995)
- Dowdell v. State, 665 So. 2d 279 (Fla. 1st DCA 1995)
- Inapro, Inc. v. Alex Hofrichter, P.A., 665 So. 2d 279 (Fla. 3d DCA 1995)