Opinion
No. 3D19-1784
12-04-2019
MIAMI-DADE COUNTY, Petitioner, v. Roberto Artiles MOREJON, et al., Respondents.
Abigail Price-Williams, Miami-Dade County Attorney, and Christopher A. Angell, Assistant County Attorney, for petitioner. Law Offices of Sean M. Cleary, P.A., and Sean M. Cleary ; Joel S. Perwin, P.A., and Joel S. Perwin, for respondent Roberto Artiles Morejon; Clyde & Co US LLP, and Barry L. Davis, and David A. Wagner, for respondents Martex Corporation and Maintenance Authority Professional Services, Inc. d/b/a Maps, Inc.
Abigail Price-Williams, Miami-Dade County Attorney, and Christopher A. Angell, Assistant County Attorney, for petitioner.
Law Offices of Sean M. Cleary, P.A., and Sean M. Cleary ; Joel S. Perwin, P.A., and Joel S. Perwin, for respondent Roberto Artiles Morejon; Clyde & Co US LLP, and Barry L. Davis, and David A. Wagner, for respondents Martex Corporation and Maintenance Authority Professional Services, Inc. d/b/a Maps, Inc.
Before LINDSEY, HENDON and GORDO, JJ.
GORDO, J.
Miami-Dade County, a non-party to the proceedings below, petitions for a writ of certiorari quashing the trial court's order denying its motion for protective order. Respondents Martex Corporation and Maintenance Authority Professional Services Inc. (collectively, "Respondents") listed County Building Official Jamie Gascon as an expert witness. The County sought to preclude the parties to the underlying action from taking Mr. Gascon's testimony as he was neither a fact witness nor a retained expert. The County argues that the trial court departed from the essential requirements of the law by compelling Mr. Gascon to testify as an expert without having been paid fees and by allowing Respondents to call him as a fact witness when he has no personal knowledge of the case. For the reasons that follow, we grant the petition and quash the trial court's order.
Although Roberto Artiles Morejon is also listed as a respondent in this petition, the term "Respondents" throughout this opinion refers only to Martex Corporation and Maintenance Authority Professional Services Inc. Mr. Artiles Morejon's response to the petition states that he agrees with the petition and does not seek to take Mr. Gascon's testimony.
Respondents filed a motion to strike Mr. Artiles Morejon's response to the petition given his failure to comply with Florida Rule of Appellate Procedure 9.360(a). Our granting of the petition renders Respondents' motion moot.
FACTUAL AND PROCEDURAL BACKGROUND
In October of 2016, Ernesto Artiles was working on the roof of a warehouse owned by Respondent Martex. While on the roof, Mr. Artiles stepped through a skylight and fell to the floor of the warehouse. Mr. Artiles died as a result of his injuries.
Roberto Artiles Morejon, Mr. Artiles's father, sued Respondents alleging that Respondents' failure to obtain certain permits from the County created the dangerous condition that caused his son's death. Neither the County nor its building official, Mr. Gascon, is a party to those proceedings.
Respondents listed Mr. Gascon as an expert witness for trial. In response, Mr. Artiles Morejon sought to depose Mr. Gascon. The County filed a motion for protective order seeking to preclude the parties from eliciting testimony from Mr. Gascon, as he was neither a retained expert nor a proper fact witness. The trial court denied that motion. This petition followed.
AVAILABILITY OF RELIEF BY CERTIORARI
"To invoke the certiorari jurisdiction of this court, a petitioner must demonstrate a departure from the essential requirements of the law which results in a material injury for which there is no adequate remedy on appeal." State v. Hernandez, 278 So. 3d 845, 848 (Fla. 3d DCA 2019) (quoting State v. Styles, 962 So. 2d 1031, 1032 (Fla. 3d DCA 2007) ). "The requirements of material harm and the lack of a remedy on appeal are jurisdictional." Id. (quoting State v. Welch, 94 So. 3d 631, 634 (Fla. 2d DCA 2012) ). "Certiorari is the appropriate method to review [an] order entered in connection with discovery proceedings." Fortune Ins. Co. v. Santelli, 621 So. 2d 546, 547 (Fla. 3d DCA 1993). Where the trial court's denial of a motion for protective order grants discovery, that decision is reviewable through certiorari. Greenstein v. Baxas Howell Mobley, Inc., 583 So. 2d 402, 403 (Fla. 3d DCA 1991). We have jurisdiction.
Next, we consider whether the trial court's order departed from the essential requirements of the law. It is well-settled that an unretained expert cannot be compelled to render an expert opinion where he lacks knowledge of the facts of the case. See, e.g., Meltzer v. Coralluzzo, 499 So. 2d 69, 70 (Fla. 3d DCA 1986) ; Young v. Metro. Dade Cty., 201 So. 2d 594, 596 (Fla. 3d DCA 1967). A court errs in compelling an expert "to testify when he ha[s] not been retained by the part[ies] and ha[s] no specific knowledge of the case, in contrast to general knowledge [he] may have by virtue of being an expert." Kridos v. Vinskus, 483 So. 2d 727, 732 (Fla. 4th DCA 1985) (on rehearing). Moreover, a County employee cannot testify as an expert without the County's explicit authorization. See §§ 2-11(a), (c), Miami-Dade Cty. Code of Ordinances. The parties did not retain Mr. Gascon as an expert and the County has not agreed to permit Mr. Gascon to testify. Therefore, Mr. Gascon cannot testify as an expert witness.
Although Respondents listed Mr. Gascon as an expert witness, they argue to this Court that he is actually a fact witness despite having "specialized knowledge obtained through his work experience." Respondents contend Mr. Gascon would be testifying to "statements of fact on when and how permits for roofing and skylights are applied for and obtained in Miami-Dade County." Based on that, it is evident that Respondents seek to elicit expert testimony of County procedure. On the record before us, it is clear that Mr. Gascon does not have any personal knowledge of the subject warehouse or related permitting. Thus, Mr. Gascon is not qualified to testify as a fact witness under section 90.701, Florida Statutes (2019).
Florida Rule of Civil Procedure 1.390 defines an expert witness as "one possessed of special knowledge or skill about the subject upon which called to testify."
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Mr. Gascon was not a retained expert, had not been authorized by the County to testify, and did not possess any personal knowledge of the underlying proceedings. As such, the County demonstrated good cause for issuance of a protective order. See Fla. R. Civ. P. 1.280(c) ; Office of Att'y Gen. v. Millennium Commc'ns & Fulfillment, Inc., 800 So. 2d 255, 258 (Fla. 3d DCA 2001) (citing Medina v. Yoder Auto Sales, Inc., 743 So. 2d 621, 623 (Fla. 2d DCA 1999) ). In allowing Respondents to elicit testimony from Mr. Gascon under these circumstances, the trial court departed from the essential requirements of the law resulting in material injury irremediable on plenary appeal.
Petition granted and order quashed.