EXPERT INSTALLATION SERVICE, INC., PETITIONER,
v.
PATRICIA FUERTE, HAMMOCKS MANOR HOMES, INC., POOL TECH OF MIAMI, INC., ROBICO SHUTTERS, INC., AND F.D.I. BUILDERS, INC., RESPONDENTS
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Expert Installation Service, Inc. sought certiorari to overturn a trial court's protective order that prohibited Expert from deposing Patricia Fuerte, a plaintiff in a personal injury lawsuit. The Third District Court of Appeal granted the petition, holding that a newly-added defendant cannot be denied the opportunity to depose a material witness even if that witness was previously deposed by another party.
The court held that the trial court departed from the essential requirements of law by granting the protective order. A party that is added as a defendant after initial discovery cannot be denied the right to depose a material witness, even if that witness has already been deposed by other parties.
[1] An order denying a party the right to depose a material witness inflicts harm that cannot be corrected on appeal, making it reviewable by certiorari.
[2] A defendant added to a lawsuit after a plaintiff's initial deposition should not be denied the opportunity to depose the plaintiff, who is a material witness.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“an order which has the effect of denying a party the right to depose an alleged material witness inflicts the type of harm that cannot be corrected on appeal”
Establishes the standard for when protective orders denying depositions are reviewable by certiorari despite the general rule that discovery orders are not ordinarily reviewable
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Join FLexlaw to unlock all legal intelligenceFuerte purchased hurricane shutters that allegedly fell on her in her garage, causing injury. She filed a personal injury lawsuit naming several defen…
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COPE, C.J.
Expert Installation Service, Inc. (“Expert”) petitions for a writ of certiorari to quash an order granting Patricia Fuerte’s (“Fuerte”) motion for protective order prohibiting petitioner from taking her deposition. We grant the petition and quash the trial court’s protective order. Fuerte is a plaintiff in a personal injury lawsuit against several defendants, including Expert. Fuerte purchased hurricane shutters for her home. She claims the hurricane shutters were delivered and stored in her garage in a negligent manner. The shutters fell on her, resulting in injury.
Fuerte’s deposition was begun on March 1, 2004 and completed on August 20, 2004. However, Expert was not a party to the lawsuit until March of 2005 when Robico Shutters, Inc. filed a Fourth Party Complaint against petitioner for contribution and indemnity. More importantly, Fuerte then filed a Second Amended Complaint adding petitioner as a defendant.
Expert filed a notice of taking Fuerte’s deposition. Fuerte filed a motion for protective order arguing that her deposition had already been taken for over seven hours so that it was unlikely petitioner would have any new questions and, if so, those could be asked by written interrogatories. In addition, Fuerte argued that Expert and Robico Shutters, Inc., a defendant in the case at the time of her deposition and who was represented at the deposition, share common ownership because they share the same principal, their offices are in the same location, and several employees have worked for both companies. Although the two corporations are under common ownership, they are separate corporations and represented by separate counsel in this lawsuit. The trial court granted the protective order, and this petition for certiorari follows.
“[A]n order denying discovery is not ordinarily reviewable by certiorari. ...” Medero v. Florida Power & Light Co., 658 So. 2d 566, 567 (Fla. Sd DCA 1995) (citation omitted). However, this court has recognized that an order which has the effect of denying a party the right to depose an alleged material witness inflicts the type of harm that cannot be corrected on appeal. Id. Oral depositions are considered essential by most trial attorneys. Beekie v. Morgan, 751 So. 2d 694, 697 (Fla. 5th DCA 2000). Here, Fuerte chose to add Expert as a defendant and Expert should not be denied the opportunity to take the deposition of Fuerte who is undoubtedly a material witness.
The cases relied upon by Fuerte are readily distinguishable. The decision in Cricket Club, Inc. v. Basso, 384 So. 2d 908 (Fla. 3d DCA 1980), involved the trial court’s discretion in denying a request to depose a plaintiff where default had been entered against defendant, plaintiff had submitted to a compulsory physical examination, and discovery on damages was propounded through written interrogatories. The present case is not a default case. In American Southern Co. v. Tinter, Inc., 565 So. 2d 891 (Fla. 3d DCA 1990) there was no abuse of discretion in granting a protective order where a defendant attended two depositions, failed to ask any questions, and later sought to depose the same witnesses. That is not the situation here.
We conclude that the trial court departed from the essential requirements of law and quash the order now before us.
Petition granted.
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Shindorf v. Bell, 207 So. 3d 371 (Fla. 2d DCA 2016)…en, the denial of a plaintiffs right to take a defendant’s deposition would fall squarely within the purview of an appellate court’s certiorari jurisdiction, as our sister courts have recognized. See, e.g., Expert Installation Serv., Inc. v. Fuerte, 933 So. 2d 1231, 1233 (Fla. 3d DCA 2006) (“Here, Fuerte chose to add Expert as a defendant and Expert should not be denied the opportunity to take the deposition of Fuerte who is undoubtedly a material witness.”); Beekie v. Morgan, 751 So. 2d 694, 698 (Fla. 5th DCA…
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Somarriba v. Javed S. ALI and Isaac A. Velazquez, 941 So. 2d 526 (Fla. 3d DCA 2006)…tify. Subsequently, the trial court granted Velazquez’s motion for a protective order and this petition for certiorari follows. “An order denying discovery is not ordinarily reviewable by certiora-ri.... ” Expert Installation Serv., Inc. v. Fuerte, 933 So. 2d 1231, 1233 (Fla. 3d DCA 2006) (quoting Medero v. Fla. Power & Light Co., 658 So. 2d 566, 567 (Fla. 3d DCA 1995)). However, we have found that an order prohibiting the taking of a material witness’ deposition inflicts the type of harm that can not be reme…
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Marshall v. Buttonwood BAY Condo. Ass'n, Inc., 118 So. 3d 901 (Fla. 3d DCA 2013)…und that an order prohibiting the taking of a material witness’s deposition inflicts the type of harm that cannot be remedied on final appeal. See, e.g., Somarriba v. Ali, 941 So. 2d 526 (Fla. 3d DCA 2006); Expert Installation Serv., Inc. v. Fuerte, 933 So. 2d 1231 (Fla. 3d DCA 2006); Medero, 658 So. 2d 566; Criswell v. Best W. In’l, Inc., 636 So. 2d 562 (Fla. 3d DCA 1994); see also Beekie v. Morgan, 751 So. 2d 694 (Fla. 5th DCA 2000). Accordingly, this Court has jurisdiction to issue the writ because denying…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Herman v. Herman, 751 So. 2d 694 (Fla. 3d DCA 2000)
- Medero v. Fla. Power & Light Co., 658 So. 2d 566 (Fla. 3d DCA 1995)
- Matrascia v. State, 384 So. 2d 908 (Fla. 3d DCA 1980)
- Sanders v. State, 565 So. 2d 891 (Fla. 3d DCA 1990)
- Tamiami Range & GUN Shop, Inc. v. Weissman, 565 So. 2d 891 (Fla. 3d DCA 1990)