Adkins v. Sotolongo , 227 So. 3d 717 ( 2017 )

Third District Court of Appeal
State of Florida
Opinion filed September 20, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-916
Lower Tribunal No. 07-18012
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Christa Adkins,
Petitioner,
vs.
Michael Sotolongo,
Respondent.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, George A.
Sarduy, Judge.
Christa Adkins, in proper person.
Abramowitz and Associates, and Evan L. Abramowitz, for respondent
Michael Sotolongo.
Phillips Lanier, PLLC, and Emily Joyce Phillips, as former Guardian ad
Litem.
Before ROTHENBERG, C.J., and LOGUE and LUCK, JJ.
ROTHENBERG, C.J.
What began as a child custody dispute between Christa Adkins, the mother,
and Michael Sotolongo, the father, has now developed into a dispute relating to the
reasonableness of the fees charged by the court-appointed guardian ad litem (“the
guardian”) and the guardian’s attorney and as to what extent Ms. Adkins should be
responsible for those fees. Ms. Adkins, who was ultimately granted full custody of
the minor child, contends that the fees demanded are unreasonable, and the record
appears at least partially to support that belief as the guardian has “corrected” some
of her billings during the litigation over her fees.
The matter currently before this Court is Ms. Adkins’ certiorari petition,
wherein she contends that the trial court departed from the essential requirements
of law, resulting in irreparable harm that cannot be remedied on direct appeal, by
ordering Ms. Adkins, who has been declared to be indigent, to advance the
guardian’s fees and the guardian’s attorney’s fees prior to the taking of the
guardian’s deposition. Ms. Adkins wishes to depose the guardian to address the
basis for the fees demanded by the guardian in connection with the guardian’s
services during the child custody dispute. Because the guardian’s fees have not yet
been paid, the guardian sought, and was granted, an order by the trial court
requiring Ms. Adkins to pay for the fees associated with the taking of the
guardian’s deposition as a prerequisite to actually taking the deposition. In other
words, Ms. Adkins must pay to play.
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We conclude that the trial court’s order both departs from the essential
requirements of law and is in violation of a prior opinion issued by this Court. See
Adkins v. Sotolongo, 197 So. 3d 1233 (Fla. 3d DCA 2016). In Adkins, the trial
court’s order regarding the payment of the guardian’s fees was the subject of the
appeal. In reversing the order, this Court noted:
“[T]here [were] no findings in the order or record on appeal
supporting the [guardian’s] requested fees, what those services were
or their claimed value . . . [and] nothing in the order on appeal or the
record before us to indicate the trial court made any determination of
the Mother’s or Father’s current ability to pay the court-appointed
guardian fees.”
Adkins, 197 So. 3d at 1234-35 (citation and footnote omitted). The opinion further
states: “We do not dispute that the court-appointed guardian is entitled to payment
but require that on remand the trial court determine both the party or parties
responsible for payment of the guardian’s fees and costs and the proper amount
due.” Id. at 1235.
On remand, Ms. Adkins sought discovery, including the guardian’s
deposition, specifically related to the issue on remand—the evidence of the
services performed by the guardian and the reasonableness of her requested fees.
The guardian objected to spending any more of her time without being paid. While
the guardian’s frustration with not having been paid for her services is
understandable, to require Ms. Adkins to pre-pay for the taking of her deposition
was error in this case.
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First, we note that Ms. Adkins has indigency status. Second, the trial court
has not yet determined which of the parties are responsible for the payment of the
guardian’s fees. Third, the trial court has not yet made a determination as to Ms.
Adkins’ ability to pay for either the fees owed or the costs associated with the
discovery deposition of the guardian. It was therefore error to require Ms. Adkins
to pay the guardian’s fees for the deposition and to further require that she pay the
fees in advance.
We conclude that the irreparable harm requirement has been demonstrated.
Certiorari review of a discovery order is permitted when the discovery order
departs from the essential requirements of law, causing material injury to a
petitioner throughout the remainder of the proceedings and effectively leaving no
remedy on appeal. Banco Latino (S.A.C.A.) v. Kimberly, 979 So. 2d 1169 (Fla. 3d
DCA 2008). A trial court’s denial of a party’s right to depose a material witness
has been found to constitute irreparable harm subject to certiorari review. Beekie
v. Morgan, 751 So. 2d 694, 698 (Fla. 5th DCA 2000).
In Ruiz v. Steiner, 599 So. 2d 196, 198-99 (Fla. 3d DCA 1992), this Court
noted that certiorari review of orders denying discovery has been granted in
circumstances involving the denial of the right to take testimony of an alleged
material witness because such a denial generally cannot be remedied on appeal
since “there would be no practical way to determine after judgment what the
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testimony would be or how it would affect the result.” (quoting Travelers Indem.
Co. v. Hill, 388 So. 2d 648, 650 (Fla. 5th DCA 1980)); see also Giacalone v. Helen
Ellis Mem’l Found., Inc., 8 So. 3d 1232, 1234-35 (Fla. 2d DCA 2009) (“[W]hen
the requested discovery is relevant or is reasonably calculated to lead to the
discovery of admissible evidence and the order denying that discovery effectively
eviscerates a party’s claim, defense, or counterclaim, relief by writ of certiorari is
appropriate. The harm in such cases is not remediable on appeal because there is
no practical way to determine after judgment how the requested discovery would
have affected the outcome of the proceedings”) (footnote omitted).
Although the trial court has not prohibited Ms. Adkins from taking the
guardian’s deposition, because of Ms. Adkin’s indigency status, the trial court has
effectively precluded it. Ms. Adkins has been declared indigent in both the circuit
court and this Court. She receives public assistance for herself and her two
children. The record also reflects that Ms. Adkins, who is deeply in debt, has had
to borrow money ($10,000) from her elderly father to pay for legal assistance and
to pay her share of a former guardian ad litem’s outstanding fees. She is currently
representing herself.
The trial court’s order denying Ms. Adkin’s motion to compel the guardian’s
deposition and the guardian’s responses to interrogatories and request for
production, and the order granting the guardian’s motion for a protective order
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effectively preclude Ms. Adkins from any meaningful opportunity to mount a
defense to the guardian’s fees, which Ms. Adkins contends were incurred in bad
faith and not supported in fact. We also note that when Ms. Adkins attempted to
cross-examine the guardian regarding her fees at the February 22, 2017 hearing,
the trial court precluded the cross-examination and told Ms. Adkins she needed to
take a discovery deposition of the guardian. However, Ms. Adkins’s attempts to
comply with the trial court’s ruling have been stymied by the trial court’s March
30, 2017 order granting the guardian’s motion for a protective order from the
discovery deposition.
In conclusion, the trial court’s order denying Ms. Adkin’s discovery requests
and requiring her to advance the guardian’s and the guardian’s attorney’s fees
before she may take the guardian’s deposition—all of which goes to the heart of
Ms. Adkin’s defense—is a departure from the essential requirements of law. The
irreparable harm prong has also been demonstrated. Without being able to conduct
discovery, the opportunity to prepare a defense to the fees demanded will be
materially impacted, which harm cannot be remedied on plenary appeal because
there would be no practical way to determine what evidence would have been
obtained had the discovery been permitted. We also find that the trial court’s order
violates the substance and intent of this Court’s opinion in Adkins, which ordered
that upon remand, the trial court was to determine which of the parties would be
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responsible for the payment of the guardian’s fees and costs and the proper amount
due. We, therefore, grant the petition.
Petition granted.
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LUCK, J., concurring:
The majority opinion grants the petition for writ of certiorari because “[a]
trial court’s denial of a party’s right to depose a material witness has been found to
constitute irreparable harm subject to certiorari review.” Maj. Op. at 4. I concur
because the majority opinion faithfully applies our precedent.1 I write separately
because in my view we have stretched our certiorari jurisdiction too far in
reviewing mid-litigation orders denying discovery depositions.
“Certiorari review of a discovery order is permitted,” as the majority opinion
correctly explains, “when the discovery order departs from the essential
requirements of law, causing material injury to a petition throughout the remainder
of the proceedings and effectively leaving no remedy on appeal.” Id. “The second
and third elements are sometimes referred to as irreparable harm, and [t]he
1 See, e.g., Sabol v. Bennett, 672 So. 2d 93, 94 (Fla. 3d DCA 1996) (“This court
has previously 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 since there would be no practical way to determine after
judgment what the testimony would be or how it would affect the result. (quotation
omitted)); Medero v. Fla. Power & Light Co., 658 So. 2d 566, 567 (Fla. 3d DCA
1995) (“[C]ertiorari review of orders denying discovery has been granted where it
was found that the injury caused by the order was irreparable. 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.” (citation and quotation omitted)); Ruiz v.
Steiner, 599 So. 2d 196, 198 (Fla. 3d DCA 1992) (“[T]he denial of the right to take
testimony of an alleged material witness . . . 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.” (quotation omitted)).
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establishment of irreparable harm is a condition precedent to invoking certiorari
jurisdiction.” Hernandez v. Fla. Peninsula Ins. Co., 211 So. 3d 1126, 1128 (Fla. 3d
DCA 2017) (quotations omitted; alteration in original).
In our cases granting certiorari review where the trial court denied a party
the right to depose a material witness, the only rationale we have given for meeting
the jurisdictional-irreparable-harm standard has been 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.” Ruiz,
599 So. 2d at 198 (quotation omitted). Judge Padovano has explained the
weaknesses of this rationale as it applies to mid-litigation discovery disputes:
The reason most often given for allowing review of an order denying
discovery is that the appellate court would not know what the
information was that was excluded and, as a consequence, the court
would not know how the information might have affected the outcome
of the case. This argument has some practical appeal but it also has
two weaknesses. First, it is an argument that could be made about any
order denying discovery. The danger in applying the rationale of the
argument too freely is that it might convert an extraordinary remedy
into a routine step in the process. Second, the argument fails to take
full account of the remedies that are available on direct appeal. In
many cases it may be an adequate remedy to reverse the judgment for
a new trial to be conducted with the benefit of the discovery
previously denied.
Philip J. Padovano, Florida Appellate Practice § 30:5 (2016 ed.) (footnote omitted).
I agree with Judge Padovano because there are practical ways, pre-judgment,
the party seeking to depose a material witness can present that witness’s testimony
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to preserve the argument that the lack of deposition affected the result. The party
seeking to depose the material witness can: (1) proffer the questions and
anticipated testimony; (2) have the attorney proffer the harm caused in preparing
the case for trial; (3) subpoena the material witness for trial and question the
witness outside the presence of the jury; (4) subpoena the material witness for trial
and ask the deposition questions in front of the jury; (5) take the deposition after
trial in support of a new trial motion; (6) ask that the material witness be ordered to
present an affidavit of anticipated testimony; or (7) seek some combination of
these things. Using these tools, we regularly review as an issue on final appeal
whether there was a reasonable probability an error affected the result of the trial
(the harmless error standard) based on proffered testimony that was excluded. We
could easily do the same for the harmful denial of a discovery deposition.
Ms. Adkins’s case presents a good example. The trial court effectively
(because of imposed costs) denied her the right to depose a material witness in
advance of the evidentiary hearing on guardianship fees. Ms. Adkins could have
proffered the questions she would have asked at the deposition and what the
anticipated answers would have been. Ms. Adkins could have called the material
witness to testify at the evidentiary hearing, asked the same questions she would
have asked at the deposition, and pointed out to the trial court how she was
prejudiced by not having that information in advance of the hearing. Either way,
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we would know pre-judgment what the deposition testimony would have been and
how it would have affected Ms. Adkins’s preparation for, and the result of, the
hearing.
Because it is difficult to show that trial court error cannot be fixed as part of
a final appeal, the “general rule” is that orders denying discovery are ordinarily not
reviewable by certiorari. Ruiz, 599 So. 2d at 197. This general rule is consistent
with our constitutional structure limiting direct appeals of nonfinal orders, and
saving everything else for final appeal. See Fla. Const. art. V, § 4(b)(1) (“District
courts of appeal shall have jurisdiction to hear appeals, that may be taken as a
matter of right, from final judgments or orders of trial courts . . . . They may
review interlocutory orders in such cases to the extent provided by rules adopted
by the supreme court.”); Fla. R. App. P. 9.130(a)(3) (“Appeals to the district courts
of appeal of non-final orders are limited . . . .”). Loosening our certiorari
jurisdiction to review all improper denials of material witness depositions, as we
have done, is a backdoor way around the constitutional limitation on appeals from
nonfinal orders, and usurps the Florida Supreme Court’s authority to designate
certain nonfinal orders as appealable.
If I were writing on a clean slate, instead of a blanket rule finding irreparable
harm in all cases where the trial court denied a deposition of a material witness, I
would look on a case-by-case basis whether the discovery error caused a material
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injury to the petitioner that affected the rest of the proceedings, and that cannot be
remedied on direct appeal. However, there being no clean slate, the majority
opinion correctly applies our district’s case law, and I join it.
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