NELSON DURAN, PETITIONER,
v.
MFM GROUP, INC., FRANK FERRER, WILLIAM DANIEL LAMEY, A.K.A. W. DANIEL LAMEY, RESPONDENTS
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Petitioner Nelson Duran sought certiorari review of a discovery order denying his motion to compel deposition testimony from a former MFM employee regarding financial information. The court denied certiorari, finding that Duran failed to demonstrate a departure from essential requirements of law that cannot be remedied on plenary appeal.
Certiorari is denied because: (1) as a general rule, discovery denials can be remedied on plenary appeal; (2) the exception for material witnesses does not apply here since other witnesses can testify to the same financial information; and (3) Duran has not demonstrated a violation of clearly established law resulting in miscarriage of justice, particularly since he is not entitled to the financial information until his status as a shareholder is established.
[1] Certiorari is generally not available to review orders denying discovery, as any error can be remedied on plenary appeal.
[2] Exceptions to the general rule against certiorari review of discovery denials exist when a material witness possesses unique information affecting the merits of the case.
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Join FLexlaw to unlock all legal intelligence“As a general rule, certiorari will not be granted to review an order denying discovery since any error in denying the requested discovery can be remedied on plenary appeal.”
Establishes the foundational principle that discovery denials are generally not subject to certiorari review.
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Join FLexlaw to unlock all legal intelligenceDuran brought a breach of fiduciary duty case against MFM Group and its principals. During discovery, Duran sought to depose a former MFM employee to …
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PER CURIAM.
Petitioner, Nelson Duran (“Duran”), seeks certiorari review of a non-final discovery order denying his motion to compel deposition testimony from a non-party witness in a breach of fiduciary duty case brought against respondents MFM Group, Inc., Frank Ferrer, and William Daniel Lamey (hereafter collectively referred to as “MFM”). We deny certiorari finding Duran has failed to demonstrate a departure from the essential requirements of law that cannot be remedied on plenary appeal.
During the course of discovery, Duran sought to depose a former employee of MFM in order to obtain financial information. The former employee appeared for deposition but was instructed by MFM’s counsel not to answer certain financial questions based upon the accountant-client privilege. See § 473.316, Fla. Stat. (2002).
Duran’s counsel then terminated the deposition and filed a motion to compel the former employee’s testimony regarding MFM’s financial statements and other financial matters. The trial court denied the motion, noting the former employee did have a current certified public accountant license, and was licensed at the time he gave the deposition. Duran now seeks certiorari review from the adverse order. As a general rule, certiorari will not be granted to review an order denying discovery since any error in denying the requested discovery can be remedied on plenary appeal. See Palmer v. WDI Systems, Inc., 588 So. 2d 1087 (Fla. 5th DCA 1991). Exceptions are made only in those cases involving a material witness who possesses information “going to some fact affecting the merits of the cause and about which no other witness might testify.” Wingate v. Mach, 117 Fla. 104, 157 So. 421, 422 (1934); see also Lifemark Hospitals of Florida, Inc. v. Hernandez, 748 So. 2d 378 (Fla. 3d DCA 2000)(expert medical witness required to be deposed because her testimony was material to a central issue in the case).
Such is not the case here. No showing has been made that the former employee is the only source for the financial information sought by Duran. To the contrary, it appears there are many other witnesses who can testify to the same information, including, but not limited to, the two individual defendants as well as the outside accountant who prepared MFM’s taxes.
In any event, Duran is not entitled to certiorari review because he has not demonstrated that the denial of his motion constitutes “a violation of a clearly established principle of law resulting in a miscarriage of justice.” Combs v. State, 436 So. 2d 93, 96 (Fla.1983). Duran’s claims against MFM are premised upon his ability to establish his status as a shareholder. Until that status is conclusively established, Duran is not entitled to MFM’s financial information. See Universal Eng’g Testing Co., Inc. v. Israel, 707 So. 2d 900 (Fla. 5th DCA 1998). Since Duran is not entitled to the information until his disputed status as a shareholder has been resolved, there is no departure from the essential requirements of law.
Accordingly, for the reasons stated above, we deny the petition for certiorari. See Sardinas v. Lagares, 805 So. 2d 1024 (Fla. 3d DCA 2001); Universal Eng’g Testing Co., Inc. v. Israel, 707 So. 2d at 900; Bared & Co., Inc. v. McGuire, 670 So. 2d 153 (Fla. 4th DCA 1996); Palmer v. WDI Systems, Inc., 588 So. 2d at 1087.
Certiorari denied.
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Rogan v. Oliver, 110 So. 3d 980 (Fla. 2d DCA 2013)…Power & Light Co., 658 So. 2d 566, 567 (Fla. 3d DCA 1995)). A material witness is one “who possesses information ‘going to some fact affecting the merits of the cause and about which no other witness might testify.’ ” [*983] Duran v. MFM Grp., Inc., 841 So. 2d 500, 501 (Fla. 3d DCA 2003) (quoting Wingate v. Mach, 117 Fla. 104, 157 So. 421, 422 (1934)). Thus, the jurisdictional test in this type of case hinges on whether the indi-vidual sought to be deposed possesses information about which no other witness co…
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Lifemark Hosps. OF Fla. v. Izquierdo, 899 So. 2d 478 (Fla. 3d DCA 2005)…e no practical way to determine after judgment what the testimony would be or how it would affect the result.’ ” Sabol, 672 So. 2d at 94 (citations omitted); see also Bush v. Schiavo, 866 So. 2d 136, 140 (Fla. 2d DCA 2004); Duran v. MFM Group, Inc., 841 So. 2d 500, 501 (Fla. 3d DCA 2003). Moreover, by agreeing to the production of the North Dade Center records, the plaintiffs have waived any objection that may have existed to the deposition of Dr. Aponte on the basis of psychotherapist-patient or other privil…
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Chavarria v. Bautista, 922 So. 2d 245 (Fla. 3d DCA 2006)…accident which occurred on or about August 21, 2001. The petition takes issue with an Order dated August 4, 2005, denying Plaintiffs Fourth motion to compel better answers to Plaintiffs expert interrogatories. We stated in Duran v. MFM Group, Inc., 841 So. 2d 500, 501 (Fla. 3d DCA 2003) that “[a]s a general rule, certiorari will not be granted to review an order denying discovery since any error in denying the requested discovery can be remedied on plenary appeal.” Although there are exceptions to that rule,…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Combs v. State, 436 So. 2d 93 (Fla. 1983)
- The Bared & Co., Inc. v. McGUIRE, 670 So. 2d 153 (Fla. 4th DCA 1996)
- Wingate v. Otto Mach, 117 Fla. 104 (Fla. 1934)
- Sardinas v. Claridania Lagares, 805 So. 2d 1024 (Fla. 3d DCA 2001)
- Palmer v. WDI Sys., Inc., 588 So. 2d 1087 (Fla. 5th DCA 1991)
- Lifemark Hosps. OF Fla., Inc. v. Inez Hernandez and Lenin Hernandez, 748 So. 2d 378 (Fla. 3d DCA 2000)
- Universal Eng'g Testing Co., Inc. v. Israel, 707 So. 2d 900 (Fla. 5th DCA 1998)