Opinion
No. 3D20-205
07-01-2020
FAIR HAVENS CENTER, LLC, etc., et al., Petitioners, v. ESTATE OF Dumitru NICULA, etc., Respondent.
Quintairos, Prieto Wood & Boyer, P.A., Thomas A. Valdez (Tampa) and Terrell K. Anderson, for petitioners. Robert Garven (Coral Springs); Law Office of Kenneth R. Segal, P.A., and Kenneth Segal (Coral Springs), for respondent.
Quintairos, Prieto Wood & Boyer, P.A., Thomas A. Valdez (Tampa) and Terrell K. Anderson, for petitioners.
Robert Garven (Coral Springs); Law Office of Kenneth R. Segal, P.A., and Kenneth Segal (Coral Springs), for respondent.
Before EMAS, C.J., and FERNANDEZ, and GORDO, JJ.
FERNANDEZ, J.
Fair Havens Center, LLC, et al., ("Fair Havens") petitions this Court for a writ of certiorari to quash the trial court's order compelling the production of financial worth documents that Fair Havens claims are statutorily protected under Florida Statute section 400.0237 (2016) and that are not reasonably calculated to lead to relevant admissible evidence pertaining to the cause of action framed by the pleadings. We grant the petition finding that the trial court departed from the essential requirements of law. The trial court improperly compelled production of the requested documents, on the assumption that the documents are public record, without: 1) determining the relevancy of the requested documents to the issue framed by the pleading, 2) taking any steps to protect the information, or 3) providing specific findings or explanations to support its ruling.
Dumitru Nicula ("Nicula") resided at Fair Havens nursing home for three months in 2014. While residing at Fair Havens, Nicula slipped and fell resulting in his death. Respondent Estate of Dumitru Nicula, through its personal representative, Lucia Husar ("Husar"), brought suit against Fair Havens, under section 400.023, Florida Statutes (2016), alleging negligence and/or violations of resident's rights when Nicula died as a result of the slip and fall. Husar requested a deposition of a Fair Havens corporate representative and production of all cost reports, statements of revenue, statement of expenses, balance sheets, ownership interest and payments, RUG scores, and occupational salaries, staffing, and nursing care costs for the years 2014 to 2016. Fair Havens moved for a protective order, on the grounds that: 1) the discovery sought was irrelevant to the causes of action and claims of damages pled in the complaint; 2) the discovery sought was overly broad, unduly burdensome, and not calculated to lead to the discovery of admissible evidence regarding Husar's allegations of negligence or violations of Nicula's rights for his slip and fall; and 3) there are limitations of financial discovery established by the Florida Constitution, Florida Legislature, and Florida Supreme Court to prevent this kind of intrusion at this stage in the proceedings.
To establish that the requested information is relevant to the claims framed in the pleadings, Husar proffered an affidavit of Ernest Tosh ("Tosh"), the manager of Full Financials, LLC, a company that performs financial and staffing analysis of nursing homes. Tosh asserted that the requested cost reports are public record and that Full Financials, LLC, already had all cost reports submitted by every nursing home in the United States for the relevant years at issue in this case.
At the hearing for Fair Havens's Motion for Protective Order, the trial court noted that neither party had taken depositions in the four years since the case had been filed, and it appeared that Husar wanted to "delve into the financial affairs of the defendant [Fair Havens] before [ ] even find[ing] out what happened." On the assumption that the requested documents are public record and that Husar already possessed the information, the trial court denied Fair Havens's motion, allowed Husar to take the deposition of the Fair Havens Corporate Representative, and ordered the production of all the requested documents. After moving for reconsideration of the trial court's order, Fair Havens filed this petition for writ of certiorari.
On appeal, Fair Havens argues that that trial court departed from the essential requirements of law and caused irreparable harm when: 1) it allowed the deposition of the corporate representative; 2) ordered the production of the financial worth documents, without determining the relevancy of the documents to the issues framed by the pleadings; 3) ordered the production of the documents without taking steps to protect the information; and 4) permitted production of financial worth discovery despite the prohibition established by section 400.0237(1)(c). Fair Havens further contends that without specific findings from the trial court, this Court is left to "guess at the basis of discovery" for each document. Thus, we agree with Fair Havens that certiorari is proper to review the trial court's order compelling discovery.
"[R]eview by certiorari is appropriate when a discovery order departs from the essential requirements of law, causing injury to the petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal." Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla. 1995). Certiorari is appropriate to review discovery of privileged information because once this information is disclosed, there is no adequate remedy on appeal. See Harborside Healthcare, LLC v. Jacobson, 222 So. 3d 612, 615 (Fla. 2d DCA 2017).
Where the parties disagree on the relevancy of the financial discovery to the issues framed by the pleadings, the party seeking discovery must offer evidence to support the relevancy of the financial discovery he or she seeks. See Spry v. Prof'l Emplr. Plans, 985 So. 2d 1187, 1188-89 (Fla. 1st DCA 2008). The trial court relied on Tosh's statements regarding the relevancy and public nature of the requested documents in compelling Fair Havens to produce the requested financial worth documents. However, "regardless of the expertise of the witness, generally, and his familiarity with legal concepts relating to his specific field of expertise, it is not the function of the expert witness to draw legal conclusions." Crown Custom Homes, Inc. v. Sabatino, 18 So. 3d 738, 741 (Fla. 2d DCA 2009). Additionally, neither Full Financials, LLC, Tosh, nor Husar have made these documents they claim to be public record available to Fair Havens. Although respondent may have been entitled to some of the financial information requested to the extent that the information supports its claim of inadequate staffing, the trial court should have conducted a hearing to establish whether the requested documents are relevant to that aspect of the cause of action and are therefore discoverable. See Elsner v. E-Commerce Coffee Club, 126 So. 3d 1261, 1263-64 (Fla. 4th DCA 2013) (declining to adopt a per se rule requiring trial courts to conduct evidentiary hearings before ordering financial discovery but noting that a hearing may be necessary to establish the relevancy of the requested financial information to the issues framed by the pleadings).
Likewise, once the trial court overruled Fair Havens's objections and compelled discovery of the documents, Fair Havens was entitled to prepare a privilege log and claim that certain documents are privileged. See Morton Plant Hosp. Ass'n v. Shahbas, 960 So. 2d 820, 826 (Fla. 2d DCA 2007). Because the trial court failed to specifically address Fair Havens's objections, this Court was left to "guess at the basis for discovery." See E. Bay NC, LLC v. Estate of Djadjich, 273 So. 3d 1141, 1144 (Fla. 2d DCA 2019).
Finally, Fair Havens argues that the statutory protections under Florida Statute section 400.0237 prohibit discovery of the requested financial worth documents. However, section 400.0237(1) limits the discovery of financial worth information until the claimant obtains leave to amend his or her complaint to assert a claim for punitive damages. To bring a claim for punitive damages under this section, there must be "a showing by admissible evidence ... that provides a reasonable basis for recovery of such damages." See § 400.0237(1), Fla. Stat. (2016). Thus, this section makes clear that discovery of financial worth may not proceed until a pleading on punitive damages is approved by the court. See § 400.0237(1)(c), Fla. Stat. (2016). Here, however, Husar claims that she is not seeking punitive damages, and instead, asserts that the requested documents are necessary to prove the negligence claim. As we previously mentioned, documents containing financial information may indeed be subject to discovery; however, the burden is on the party seeking discovery to establish that the documents are relevant or reasonably calculated to lead to the discovery of relevant, admissible evidence. The trial court should have conducted a hearing to determine the relevancy of the requested documents to the issues framed by the pleadings.
Consequently, we grant Fair Havens's petition for writ of certiorari and quash the trial court's order compelling the production of financial worth documents.
Petition for writ of certiorari granted, order quashed.