JANACE K. DOOLITTLE A/K/A KATHY DOOLITTLE, PETITIONER,
v.
JULIE CHASE SHUMER, ET AL, RESPONDENTS
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.
An indefinite abatement of an entire civil action based on a blanket assertion of the Fifth Amendment privilege by one defendant is a departure from the essential requirements of law, especially as to co-defendants not facing criminal charges.
[1] A civil action may not be indefinitely abated against co-defendants who are not asserting a Fifth Amendment privilege against self-incrimination.
[2] A trial court should employ the least intrusive means to fashion relief when considering a motion to abate a civil action due to a party's assertion of the Fifth Amendmen…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligencePlaintiff sued for injuries from a dog attack. One defendant, Julie Shumer, was criminally charged for the incident and moved to abate the civil actio…
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.
Explore caselaw by topic → Browse Order Of Abatement cases and more on FLexlaw
Petitioner, the plaintiff below, seeks a writ of certiorari to quash an indefinite order of abatement of her civil action against Respondents. In the action below, Petitioner seeks damages- from the Respondents for injuries she sustained as a result of a dog attack. Respondents, Julie Shumer and Frank Shumer, are the alleged owners of the dog that attacked Petitioner and her dog, resulting in the death of Petitioner’s dog. The third Respondent, Kenneth Samuel Savage, was employed by the Shumers to walk the dog.
Approximately six weeks after the Respondents filed their answer and several affirmative defenses to the complaint,1 Julie Shumer was criminally charged for actions arising from the same incident that gave rise to the civil action.2 Julie Shumer thereafter filed a motion to abate the civil action “until such time that [she] can testify without compromising her privilege against self-incrimination,” or in the alternative, for the entry of a protective order precluding her from having to respond to *781any discovery or requests for future deposition until her criminal case has been completed. The parties, by tacit agreement and without court intervention, took no action in the case for several months. Petitioner then filed a motion pursuant to section 768.72, Florida Statutes (2013), for leave to amend her complaint to add a claim for punitive damages. A hearing was held on the .motion to amend and on Respondent’s motion to abate. At the hearing, the parties agreed to postpone addressing the motion to amend and, after hearing argument, the court abated the entire action “until further order of the court.” In addition, the court scheduled a status conference for 90 days after entry of the September 15, 2014 abatement order.
Petitioner contends that the indefinite order of abatement of the entire case based upon Julie Shumer’s blanket assertion of the Fifth Amendment privilege against self-incrimination is a departure from the essential requirements of law that will cause her irreparable harm. We agree and grant the writ in part.
“It is settled law that the privilege against self-incrimination may be properly asserted during discovery proceedings if the civil litigant has reasonable grounds to believe that direct answers to deposition or interrogatory questions would furnish a link in the chain of evidence needed to prove a crime against him.” Childs v. Solomon, 615 So.2d 865, 866 (Fla. 3d DCA 1993) (citing Rainerman v. Eagle Nat’l Bank, 541 So.2d 740 (Fla. 3d DCA 1989)). The trial court, however, in considering a request for abatement should exercise the least intrusive means in fashioning relief, keeping in mind that a plaintiffs legitimate need to proceed expe-' ditiously must also be given weight. Kerben v. Intercontinental Bank, 573 So.2d 976, 978 (Fla. 5th DCA 1991); State v. Antonucci, 590 So.2d 998, 1000 (Fla. 5th DCA 1991). The challenged order, contrary to Respondent’s assertion, does not simply delay the case for a finite period.3 Rather, it abates the entire action “until further order of the court.” Moreover, the order applies not only to Julie Shumer, but also to her Co-Respondents who are not being criminally prosecuted. No reason was provided at the hearing why the Petitioner should be precluded from at least pursuing discovery against the Co-Respondents.
We quash the order as to the Co-Respondents because we find that an abatement as to them departs from the essential requirements of law.4 Article I, Section 2 of the Florida Constitution provides that justice shall be administered without denial or delay. However, we deny the petition as to Respondent, Julie Shumer, without prejudice to Petitioner seeking further relief if the trial court, after the upcoming status conference, either indefinitely stays the case against her, or does not otherwise consider a less intrusive means to safeguarding Respondent’s Fifth Amendment privilege.5
*782PETITION FOR WRIT OF CERTIO-RARI GRANTED in part; DENIED in part; and ORDER QUASHED, in part.
ORFINGER and BERGER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Delisi v. Smith, 423 So. 2d 934 (Fla. 2d DCA 1982)
- Rainerman v. Eagle Nat'l Bank OF Miami, 541 So. 2d 740 (Fla. 3d DCA 1989)
- Zola Klein v. The Royale Grp., Ltd., 524 So. 2d 1061 (Fla. 3d DCA 1988)
- Kerben v. Intercontinental Bank, 573 So. 2d 976 (Fla. 5th DCA 1991)
- State v. Antonucci, 590 So. 2d 998 (Fla. 5th DCA 1991)
- Eller Media Co. v. Serrano, 761 So. 2d 464 (Fla. 3d DCA 2000)
- Childs v. Solomon, 615 So. 2d 865 (Fla. 3d DCA 1993)