Wednesday, February 26, 2014

Fourth District Quashes Order Compelling Deposition Of Defendant Outside Of County of Residence

In Polselli v. Wicker, Smith, O’Hara & Ford, P.A. (4D13-4180), the Fourth District granted a petition for writ of certiorari and quashed the trial court’s order compelling the deposition of the petitioners. The majority opinion stated that "Respondent noticed the petitioners to appear for deposition in their individual capacity. It is well-settled that a defendant must be deposed in the county of his or her work or residence unless the defendant has sought affirmative relief or extraordinary circumstances exist.” The court stated that “Petitioners are not seeking affirmative relief and respondents have failed to demonstrate that extraordinary circumstances exist, which would require petitioners’ appearance in Florida for deposition.” Therefore, the order compelling the deposition to occur in Broward County was quashed.

Judge Warner filed a dissenting opinion, dissenting on two different grounds. Her dissent first stated that "The trial court originally entered an order in August 2013, requiring the petitioners to appear for their depositions in Broward County. Rather than seek review of that order, petitioners failed to appear for the scheduled depositions, prompting a motion to compel and the order now before this court. Their failure to seek timely review of the August 2013 order resulted in a waiver of their right to contest their required appearance in Florida.” Presumably in response to this portion of the dissent, and regarding the motion to dismiss, the majority opinion included a footnote stating: “We deny respondent’s motion to dismiss as the previous directive that the petitioners appear “as scheduled” was issued within an order that permitted their attorneys to withdraw.”

Judge Warner also dissented on the merits. The dissent states "Alternatively, I would deny the petition because petitioners have failed to demonstrate that they are not corporate representatives who can be deposed at the corporate place of business. CVS Caremark Corp. v. Latour109 So. 3d 1232 (Fla. 1st DCA 2013). Based on the foregoing, I cannot conclude that the trial court departed from the essential requirements of law.”


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