PRESLEY LAW AND ASSOCIATES, P.A., PETITIONER,
v.
ROBERTA SUE CASSELBERRY F/K/A SUE C. BERLINGER; BRUCE D. BERLINGER; SUNTRUST BANK, AS GARNISHEE; AND RICHARD K. INGLIS, AS GARNISHEE, RESPONDENTS

Fla. 2d DCA | 2014-10-01
No. 2D13-5507
VILLANTI and SLEET, JJ., Concur.
148 So. 3d 144 Florida District Court of Appeal, Second District (2014) Positive Treatment
Cited by 3 cases

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Holding

The court held that a trial court departed from the essential requirements of law by ordering the production of a third party's records without evidence of their relevancy.


Headnotes

[1] Certiorari is an appropriate remedy for a trial court's departure from the essential requirements of law when the aggrieved party has no adequate remedy on appeal.

[2] A trial court departs from the essential requirements of law by ordering the production of records from a third party without evidence establishing the relevancy of those…

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Facts & Procedural History

A former wife subpoenaed billing records from a law firm representing third-party garnishees in her garnishment action against her former husband. The…

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Opinion of the Court
DAVIS, Chief Judge.

DAVIS, Chief Judge.

Presley Law and Associates, P.A., is a law firm representing the interests of certain third parties associated in various capacities with funds in which Bruce Berlinger, the Former Husband, has an interest as a trust beneficiary. In this proceeding, Presley seeks certiorari review of the denial of a motion for protective order seeking to prevent the production of its records. Because the trial court departed from the essential requirements of law in ordering production from a third party with no adequate remedy on appeal, we grant the petition for writ of certiorari.

The records at issue were subpoenaed by Roberta Casselberry, the Former Wife, when she sought garnishment from the holders of certain trust accounts following her receipt of a judgment against the Former Husband during the dissolution of their marriage. As part of her collection efforts, the Former Wife initiated a garnishment action related to funds in certain trusts in which the Former Husband had an interest. She also sought to recover from the Former Husband her attorney’s fees generated from these collection efforts, and she requested records from Presley as related to the time spent in representation of the various actions.

As relevant to the instant action, the Former Wife subpoenaed trust records from Presley solely in its representative capacity of two third-party garnishees— SunTrust Bank and an individually named special trustee.1 Presley sought a protective order — claiming work product, attorney-client privilege, lack of relevancy, and privacy — in an attempt to protect the firm from having to turn over its billing and related records stemming from its representation of the parties to the trust during the earlier dissolution proceeding. This motion was denied after a hearing.2

*146Presley argues that the trial court departed from the essential requirements of law by requesting the production of billing records from third parties for the sole purpose of the Former Wife’s attempting to establish the reasonableness of the fees and hours expended by her own attorneys in the earlier proceeding against the Former Husband. Presley further argues that the trial court failed to find that the requested items were relevant. The Former Wife, however, maintains that the documents became relevant when the Former Husband argued against the amount of fees she sought in her action to collect unpaid alimony.3

We conclude that the trial court here departed from the essential requirements of law because no evidence of relevancy was presented to establish how the firm’s billing records for representation that is clearly related to the interests of third parties are related to the Former Wife’s purpose in seeking to establish the reasonableness of the amount of the fees she incurred in the action against her Former Husband. See Rowe v. Rodriguez-Schmidt, 89 So.3d 1101,1104 (Fla. 2d DCA 2012) (“[T]he trial court departed from the essential requirements of the law because it ordered production of a nonparty’s financial information without considering any evidence regarding its relevance.”). Additionally, certiorari relief is appropriate for this departure because there is no adequate remedy on appeal available for Presley or the nonparties it represents. Id. Whether these records are actually relevant is a matter to be determined by the trial court. We merely find that it was a departure from the essential requirements of law to order the records’ production without first requiring evidence establishing their relevancy. Accordingly, we grant the petition for writ of certiorari.

Granted.

VILLANTI and SLEET, JJ., Concur.


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Citator

Cited By

  • Inglis v. Casselberry, 200 So. 3d 206 (Fla. 2d DCA 2016)
    …Berlinger, 133 So. 3d at 962 n. 1. . This court has previously quashed a discovery order between the parties on the basis that there was no evidence establishing the relevancy of the documents requested. Presley Law & Assocs., P.A. v. Casselberry, 148 So. 3d 144 (Fla. 2d DCA 2014). In relation to the garnishment proceedings and her resulting request for attorneys' fees, the former wife sought discovery of information from attorney Michael Presley (one of the trustees in this case) and his firm, Presley had…
  • …t in the business."). A trial court departs from the essential requirements of the law when it orders the disclosure of a nonparty's1 financial records without any evidentiary inquiry as to its relevance. Presley Law & Assocs., P.A. v. Casselberry, 148 So. 3d 144, 146 (Fla. 2d DCA 2014); Rowe, 89 So. 3d at 1103-04. Simply conducting a 1 We acknowledge that at least one court has declined to adopt a per se rule requiring trial courts to always conduct an evidentiary hearing before ordering a party to the pro…

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