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