County Civil Court: APPELLATE PROCEDURE – Jurisdiction - Petition for writ of certiorari to review pretrial discovery order denying motion for protective order.  Petitioner failed to demonstrate irreparable harm which is a jurisdictional prerequisite for certiorari review.  Trial court has broad discretion in matters associated with pretrial discovery.  Petition dismissed; petitioner's motion for appellate attorney's fees denied.  Effie Ward v. D.A.N. Joint Venture, III, L.P., No. 09-000059AP-88A (Fla. 6th Cir. App. Ct. March 16, 2010).

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

EFFIE WARD

      Petitioner,                                                                                    Appeal No.:09-000059AP-88A

                                                                                                UCN: 522009AP000059XXXXAP                                                  

                                                                                               

v.

 

                                                                                               

D.A.N. JOINT VENTURE, III, L.P.,

      Respondent.                    

______________________________________/

 

ORDER DISMISSING PETITION FOR WRIT OF CERTIORARI; DENYING

RENEWED MOTION FOR ATTORNEY'S FEES AND COSTS

 

            THIS MATTER came before the Court on Effie Ward's Petition for Writ of Certiorari filed pursuant to Florida Rule of Appellate Procedure 9.030(c) and 9.100, on December 16, 2009; and "Renewed Motion for Attorney's Fees and Costs" filed on February 10, 2010.  The Court, having considered the petition, the response, the reply, appendices, the motion, and applicable law, finds as follows:

Procedural History

            In the underlying action, Plaintiff/Petitioner Effie Ward filed a complaint in County Court on March 26, 2009, against Defendant/Respondent D.A.N. Joint Venture, III, L.P. (hereinafter "D.A.N."), for allegedly violating the Florida Consumer Collection Practices Act while attempting to collect a consumer debt from Ward.[1]  Ward filed a notice of taking deposition duces tecum of the limited partnership to be conducted in Tampa.  D.A.N. filed a motion for protective order stating that the deposition should be conducted in D.A.N.'s principle place of business, Newton Falls, Trumbull County, Ohio.  It was asserted that D.A.N. has no offices in Florida. 

            A hearing was conducted on October 14, 2009.  The trial court considered argument of counsel and the affidavit in support of the motion of record.  D.A.N. was directed to file a more complete affidavit in support the allegation that D.A.N.'s principle place of business is in Newton Falls, Trumbull County, Ohio.  The second affidavit of D.A.N. account officer Clare Hickman dated October 26, 2009, was filed in the underlying case.  

            On November 16, 2009, an order granting the motion for protective order was entered.  The trial court concluded that the principle place of business for D.A.N. is Newton Falls, Ohio.  The order directed that the deposition shall take place in Newton Falls, Ohio, and Ward is permitted to take the deposition by telephone.

Analysis

            To obtain certiorari relief, a petitioner must demonstrate that the trial court order departs from the essential requirements of law, that it causes material injury, and that the petitioner lacks an adequate remedy on appeal.  Dees v. Kidney Group, LLC, 16 So. 3d 277, 279 (Fla. 2d DCA 2009).  The third element of irreparable harm is a jurisdictional prerequisite for certiorari review.  Id.  Additionally, in the case of an order regarding discovery, the trial court has broad discretion.  It is not the role of the appellate court to disturb a trial court’s exercise of discretion in matters associated with pretrial discovery in the absence of an evident abuse of that power.  Lorei v. Smith, 464 So. 2d 1330, 1333 (Fla. 2d DCA 1985). 

            The trial court order permits Ward to take the deposition of a representative of the limited partnership by telephone, if desired.  Ward has failed to demonstrate irreparable harm.  See generally Town of Orange City v. Thayer, 34 So. 573, 574 (Fla. 1903)(discussing the failure to prove irreparable injury); Air Ambulance Network, Inc. v. Floribus, 511 So. 2d 702, 702 (Fla. 3d DCA 1987)(same).  The petition must be dismissed because Ward has failed meet the jurisdictional requirement that she demonstrate irreparable harm.  Further, because Ward is not the prevailing party in this petition, the renewed motion for attorney's fees and costs shall be denied.

            Accordingly, it is

            ORDERED AND ADJUDGED that the petition for writ of certiorari is DISMISSED.

            IT IS FURTHER ORDERED AND ADJUDGED that the Renewed Motion for Attorney's Fees and Costs is DENIED.

            DONE AND ORDERED in Chambers, in Clearwater, Pinellas County, Florida, this ____ day of _____________, 2010.

 

 

Original order entered on March 16, 2010 by Circuit Judges Linda R. Allan, George W. Greer,

and John A. Schaefer.

 

 

Copies furnished to:

 

Mark T. Tischhauser, Esq.

Richard Peck, LV, Esq.

2005 Pan Am Circle Dr., Ste. 200

Tampa, FL 33607

 

Dale T. Golden, Esq.

2124 W. Kennedy Blvd., Ste. A

Tampa, FL 33606

 

Hon. Dorothy Vaccaro



[1]   Ward v. D.A.N. Joint Venture, III, L.P., Case No. 09-02802CO-42.