Civil procedure — Discovery — Depositions — Non-residents
— Trial court should not have entered order compelling non-resident defendants
to travel to Florida for depositions where defendants were not seeking
affirmative relief and plaintiffs failed to demonstrate existence of
extraordinary circumstances which would require defendants’ appearance in
Florida for deposition

REMO POLSELLI and HANNA KARCHO, Petitioners, v. WICKER, SMITH, O’HARA, McCOY
& FORD, P.A., Respondent. 4th District. Case No. 4D13-4180. February 26,
2014. Petition for Writ of Certiorari to the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Thomas M. Lynch, IV, Judge; L.T. Case No.
13-7356 05. Counsel: Chase A. Berger and Jennifer A. Chunn of Berger Firm, P.A.,
Hollywood, for petitioners. Shelley H. Leinicke of Wicker, Smith, O’Hara, McCoy
& Ford, P.A., Fort Lauderdale, for respondent.

(Per Curiam.) The petitioners seek certiorari review of an order that compels
them, as California residents, to travel to Broward County, Florida, for their
depositions. We grant the petition and quash the order. Teledyne Indus., Inc.
v. Mustang Ranch Aircraft, Inc., 753 So. 2d 785 (Fla. 3d DCA 2000); Ayer
v. Bush, 696 So. 2d 1333 (Fla. 4th DCA 1997); Donahoo v. Matthews,
660 So. 2d 391 (Fla. 5th DCA 1995); Fortune Ins. Co. v. Santelli, 621 So.
2d 546 (Fla. 3d DCA 1993); see also CVS Caremark Corp. v. Latour, 109 So.
3d 1232, 1234-35 (Fla. 1st DCA 2013) (citing Triple Fish Am., Inc. v. Triple
Fish Int’l, L.C., 839 So. 2d 913, 914 n.1 (Fla. 5th DCA 2003)).

Respondent law firm sued the petitioners individually, together with the
business entities with which they are involved, for unpaid legal services
provided to those entities. 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.
See Fla. R. Civ. P. 1.410(e)(2); Dan Euser Waterarchitecture, Inc. v.
City of Miami Beach, 112 So. 3d 683, 684 (Fla. 3d DCA 2013); Ayer,
696 So. 2d at 1333; Espana v. Redneris, 661 So. 2d 1295 (Fla. 4th DCA
1995). 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.

Petition granted and order quashed.1 (Gerber and Klingensmith, JJ., concur. Warner, J.,
dissents with opinion.)

__________________

1We 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.

__________________

(Warner, J., dissenting.) I would grant respondent’s motion to dismiss this
petition as untimely. 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. I would, therefore, grant respondent’s motion to dismiss this petition
as untimely. See Bensonhurst Drywall, Inc. v. Ledesma, 583 So. 2d 1094
(Fla. 4th DCA 1991); see also Decktight Roofing Servs. Inc. v. Amwest Sur.
Ins., 841 So. 2d 667, 668 (Fla. 4th DCA 2003). 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. Latour, 109 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.