ROBERT C. NUCCI, M.D., AND ROBERT C. NUCCI, M.D., P.A., PETITIONERS,
v.
EVELYN SIMMONS, RESPONDENT

Fla. 2d DCA | 2009-09-11
No. 2D09-658
CASANUEVA, C.J., and SILBERMAN, J., Concur.
20 So. 3d 388 Florida District Court of Appeal, Second District (2009) Positive Treatment
Cited by 16 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Dr. Nucci sought to depose and disqualify Ms. Simmons' counsel, Attorney Tindall, claiming he was a material witness to billing arrangements for medical treatment. The trial court denied both motions, but the appellate court held that while disqualification was properly denied, the trial court erred by failing to separately consider whether to allow the deposition of opposing counsel using the correct legal standard.


Holding

The court affirmed the denial of the motion to disqualify counsel because nothing in the record showed Tindall was listed as a potential witness by either party. However, the court reversed the denial of the motion to compel deposition, holding that the trial court was required to separately consider whether to allow Dr. Nucci to depose Tindall as an alleged material witness using the proper legal standard, rather than simply linking the deposition decision to the disqualification analysis.


Headnotes

[1] A trial court's denial of a motion to compel the deposition of an alleged material witness is reviewable by writ of certiorari when the alleged harm is irreparable.

[2] The denial of the right to take the testimony of an alleged material witness cannot be remedied on appeal, as there is no practical way to determine after judgment what t…

Previewing 2 of 6 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

Key Quotes

“Certiorari review 'is appropriate when a discovery order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal.'”

Establishes the standard for certiorari review of discovery orders and why such review is appropriate for deposition denials.

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Ms. Simmons was injured in a traffic accident and treated by Dr. Nucci through a billing arrangement negotiated between Dr. Nucci and her attorney, Na…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
DAVIS, Judge.

DAVIS, Judge.

Robert C. Nucci, M.D., P.A., and Robert C. Nucci, M.D. (collectively “Dr. Nucci”), defendants below, petition for certiorari review of the trial court’s order denying their motion to disqualify Evelyn Simmons’ counsel and the motion to compel her counsel’s deposition. We deny the petition as it relates to the denial of the motion to disqualify. However, because the trial court was required to separately consider, whether to allow Dr. Nucci to depose counsel, we grant the petition as to that issue.

Ms. Simmons was injured in a traffic accident, which led to litigation unrelated to the instant petition. Nathaniel W. Tin-dall, II, represented Ms. Simmons in that litigation and arranged for her to be treated by Dr. Nucci. Although the subject of some dispute, Dr. Nucci may have been part of a Blue Cross and Blue Shield insurance network at the time the treatment began. However, regardless of his actual status with the insurance network, the payment he received for the treatment of Ms. Simmons occurred through a separate billing arrangement.1 This arrangement was handled through Attorney Tindall’s office and never directly involved Ms. Simmons.

Sometime after Dr. Nucci received payment for Ms. Simmons’ treatment, it was determined that Dr. Nucci may still have been a part of the insurance network at the time of the treatment. Upon this discovery, Ms. Simmons, through Attorney Tindall, filed a multicount complaint alleging damages stemming from Dr. Nucci’s failure to bill Ms. Simmons through the insurance network rather than through the independent arrangement.

In defending against the complaint, Dr. Nucci sought to depose Attorney Tindall, alleging that he possessed nonprivileged information related to the billing arrangements and payment for Ms. Simmons’ treatment. The trial court orally granted Attorney Tindall’s motion for a protective order without prejudice to Dr. Nucci showing that an actual business relationship existed with Attorney Tindall that might entitle him to the deposition. *390Based on Dr. Nucci’s contention that he and Attorney Tindall were in a business relationship and that Ms. Simmons’ deposition contained statements that she had no knowledge of the arrangements for her treatment, Dr. Nucci moved to compel the deposition of Attorney Tindall. In the same motion, he also sought to disqualify Attorney Tindall from representing Ms. Simmons because he was a necessary witness at trial. Following an evidentiary hearing, the trial court denied the motion to disqualify, concluding that Attorney Tindall’s testimony was not required for the claims that related to whether Dr. Nucci should have billed Ms. Simmons through the insurance network.2 The trial court also denied Dr. Nucci’s motion to compel Attorney Tindall’s deposition, specifically stating that the two motions “go hand in hand.” The trial court further recognized that the rulings could change depending upon the direction and focus of the claims on which the parties proceeded.

Because there is nothing in the appendices provided to this court to show that either party has listed Attorney Tin-dall as a potential witness, we find no departure from the essential requirements of law in the trial court’s denial of the motion to disqualify counsel.3 Additionally, we agree with the trial court’s reasoning that the motion to compel deposition is related to the request for disqualification of counsel. However, the trial court should separately have considered whether to allow Dr. Nucci the opportunity to depose Attorney Tindall because the issues related to disqualification of counsel are distinguishable from those involved in the taking of opposing counsel’s deposition.

“Certiorari review ‘is appropriate when a discovery order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal.’ ” Harley Shipbuilding Corp. v. Fast Cats Ferry Serv., LLC, 820 So.2d 445, 448 (Fla. 2d DCA 2002) (quoting Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995)). An order denying a motion to compel deposition of a witness is reviewable through petition for writ of certiorari where the alleged harm is irreparable. Medero v. Fla. Power & Light Co., 658 So.2d 566, 567 (Fla. 3d DCA 1995).

In circumstances involving the denial of the right to take testimony of an alleged material witness, it has been recognized that such a denial cannot be remedied on appeal since “there would be no practical way to determine after judgment what the testimony would be or how it would affect the result.”

Id. (quoting Travelers Indem. Co. v. Hill, 388 So.2d 648, 650 (Fla. 5th DCA 1980)).

In the instant case, Dr. Nucci alleged that Attorney Tindall was a necessary witness to certain claims and affirmative defenses set forth in the pleadings because the entire treatment agreement was negotiated between Attorney Tindall and Dr. Nucci without providing any details to Ms. Simmons. In his motion, Dr. Nucci identifies the type of information that Attorney Tindall possessed that would be discoverable. Although Dr. Nucci’s motion described Attorney Tindall as a necessary witness rather than a material wit*391ness, the details of the motion support the conclusion that even if he is not an essential witness to each claim or affirmative defense, he at least meets the definition of a material witness.4 “A material witness is one who possesses information ‘going to some fact affecting the merits of the cause and about which no other ivitness might testify.’ ” Sardinas v. Lagares, 805 So.2d 1024, 1026 (Fla. 3d DCA 2001) (quoting Wingate v. Mach, 117 Fla. 104, 157 So. 421, 422 (1934)).

The trial court’s reasons for denying the motion to disqualify do not appear to set forth sufficient cause to deny the right to depose an alleged material witness. See Medero, 658 So.2d at 567 (“The order under review departs from the essential requirements of law because the trial court made no finding, and there is nothing in the record before us, to rebut the suggestion ... that [the witness] is a material witness; and there was no finding of good cause to preclude this particular deposition.”). While Ms. Simmons might be able to prosecute her claim and Dr. Nucci might defend against the claim without either party calling Attorney Tindall to testify at trial, that is not the test the trial court should have used to determine whether Dr. Nucci has the right to depose Attorney Tindall as a material witness.

We recognize that deposing opposing counsel is fraught with concern. See Scottsdale Ins. Co. v. Camara De Comercio Latino-Americana De Los Estados Unidos, Inc., 813 So.2d 250, 252 (Fia. 3d DCA 2002) (“[D]eposing opposing counsel in the midst of an ongoing proceeding is generally offensive to our adversarial system and is an extraordinary step which will rarely be justified.”). However, there is no absolute prohibition to the practice. See Young, Stem & Tannenbaum, P.A. v. Smith, 416 So.2d 4, 5 (Fla. 3d DCA 1982) (“The order entered by the trial court precludes the taking of any deposition of [opposing counsel]. Such an order ... is overly broad and departs from the essential requirements of law. Only those communications which actually fall under the attorney/client privilege are protected.” (citation omitted)).

Case law specifically suggests that in certain instances the taking of a deposition of opposing counsel should be allowed in order to determine whether a motion to disqualify that counsel should ultimately be granted. See Quality Air Conditioning Co. v. Vrastil, 895 So.2d 1236, 1238 (Fla. 4th DCA 2005) (“[T]he motion for disqualification alone, without the deposition transcript .., does not meet the burden of demonstrating the necessity of his testimony as a witness.... ”); Singer Island Ltd. v. Budget Constr. Co., 714 So.2d 651, 652 (Fla. 4th DCA 1998) (“If petitioner had waited until after he had deposed opposing counsel, he might have been able to develop more of a record to support his motion to disqualify.”). The trial court here does not appear to have taken any of these considerations into account when denying the motion to depose.

Because the trial court departed from the essential requirements of law in failing to use the correct analysis for determining whether to deny the motion to depose Attorney Tindall, and because Dr. Nucci would have no adequate remedy on appeal, we grant the petition with regard to Dr. Nucci’s motion to depose. Accordingly, we lift the stay that was entered pending this court’s review and quash only the portion *392of the trial court’s February 2, 2009, oi'der denying the motion to compel deposition. We remand the matter for the trial court to reconsider that portion of the motion using the proper standard to determine whether Dr. Nucci is entitled to depose Attorney Tindall. We deny the petition as it relates to the portion of the order denying the motion to disqualify Attorney Tin-dall but note that our denial is without prejudice to the trial court’s reconsideration of the issue based on any future motion that may be filed as a result of information obtained from the deposition of Attorney Tindall or because he is otherwise identified by the parties as a witness at trial.

Denied in part; granted in part; order quashed; remanded.

CASANUEVA, C.J., and SILBERMAN, J., Concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (11 total)

  • Rogan v. Oliver, 110 So. 3d 980 (Fla. 2d DCA 2013)
    …e-part test are not fulfilled, then the petition should be dismissed rather than denied.” Id. at 649. Generally, certiorari jurisdiction exists to consider the denial of a motion to compel the deposition of a material witness. See Nucci v. Simmons, 20 So. 3d 388, 390 (Fla. 2d DCA 2009). As this court explained: “In circumstances involving the denial of the right to take testimony of an alleged material witness, it has been recognized that such a denial cannot be remedied on appeal since ‘there would be no…
  • Shindorf v. Bell, 207 So. 3d 371 (Fla. 2d DCA 2016)
    …onal requisites for certiorari review. Rogan v. Oliver, 110 So. 3d 980, 982 (Fla. 2d DCA 2013) (“Generally, certiorari jurisdiction exists to consider the denial of a motion to compel the deposition of a material witness.”); Nucci [*373] v. Simmons, 20 So. 3d 388, 390 (Fla. 2d DCA 2009) (“In circumstances involving the denial of the right to take testimony of an alleged material witness ... such a denial cannot be remedied on appeal since ‘there would be no practical way to determine after judgment what the…
  • Bill Kasper Constr. Co., Inc. v. Morrison, 93 So. 3d 1061 (Fla. 5th DCA 2012)
    …s motion to compel non-party to produce adverse documents, which were material with no available substitutes and there was no way to make post-judgment determination as to how [*1066] absence of documents affected outcome of case); Nucci v. Simmons, 20 So. 3d 388, 390 (Fla. 2d DCA 2009) (quashing order denying defense motion to depose plaintiffs attorney when trial court applied wrong analysis and error could not be corrected on plenary appeal); Sabol v. Bennett, 672 So. 2d 93, 94-95 (Fla. 3d DCA 1996) (gran…

Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited (11 total)

View all 11 cited authorities →

Full citator, related cases, and AI research tools

Open in FLexlaw