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Fla. L. Weekly D882aTop of Form
Fla. L. Weekly D882aTop of Form
Torts
— Automobile accident — Rear end collision — Discovery — Depositions —
Trial court departed from essential requirements of law by granting plaintiff’s
motion for protective order to prohibit deposition of her minor son, who was
sitting in front seat at time of accident and a material witness as to circumstances
in vehicle at time of impact and to plaintiff’s day-to-day activities and how
accident affected plaintiff
— Automobile accident — Rear end collision — Discovery — Depositions —
Trial court departed from essential requirements of law by granting plaintiff’s
motion for protective order to prohibit deposition of her minor son, who was
sitting in front seat at time of accident and a material witness as to circumstances
in vehicle at time of impact and to plaintiff’s day-to-day activities and how
accident affected plaintiff
AKHNOUKH A. AKHNOUKH and SIMON
BISHOY AKHNOUKH, Petitioners, v. MICHELLE BENVENUTO, Respondent. 2nd District.
Case No. 2D16-4018. Opinion filed April 19, 2017. Petition for Writ of
Certiorari to the Circuit Court for Pinellas County; John A. Schaefer, Judge.
Counsel: Jeffrey D. Jensen of Unice Salzman Jensen, P.A., Trinity, for
Petitioners. Courtney A. Umberger of Barnes Trial Group, Tampa, for Respondent.
BISHOY AKHNOUKH, Petitioners, v. MICHELLE BENVENUTO, Respondent. 2nd District.
Case No. 2D16-4018. Opinion filed April 19, 2017. Petition for Writ of
Certiorari to the Circuit Court for Pinellas County; John A. Schaefer, Judge.
Counsel: Jeffrey D. Jensen of Unice Salzman Jensen, P.A., Trinity, for
Petitioners. Courtney A. Umberger of Barnes Trial Group, Tampa, for Respondent.
(SILBERMAN, Judge.) In this
negligence action arising from a motor vehicle accident, Akhnoukh A. Akhnoukh
and his son, Simon Bishoy Akhnoukh, the Defendants below (collectively, the
Defendants), seek certiorari review of the trial court’s nonfinal order that
grants Plaintiff Michelle Benvenuto’s motion for a protective order to prohibit
the deposition of a witness, her minor son. We grant certiorari relief and
quash the order that prohibits the deposition.
negligence action arising from a motor vehicle accident, Akhnoukh A. Akhnoukh
and his son, Simon Bishoy Akhnoukh, the Defendants below (collectively, the
Defendants), seek certiorari review of the trial court’s nonfinal order that
grants Plaintiff Michelle Benvenuto’s motion for a protective order to prohibit
the deposition of a witness, her minor son. We grant certiorari relief and
quash the order that prohibits the deposition.
On May 10, 2014, Benvenuto was
stopped at the exit of a gas station, waiting to turn right onto U.S. 19. While
stopped in the driveway, Benvenuto’s vehicle was rear-ended by a vehicle
operated by Simon Akhnoukh and owned by his father. Benvenuto’s son was the
only passenger in the vehicle with Benvenuto and was sitting in the front
passenger seat. He was eight years old at the time of the accident.
stopped at the exit of a gas station, waiting to turn right onto U.S. 19. While
stopped in the driveway, Benvenuto’s vehicle was rear-ended by a vehicle
operated by Simon Akhnoukh and owned by his father. Benvenuto’s son was the
only passenger in the vehicle with Benvenuto and was sitting in the front
passenger seat. He was eight years old at the time of the accident.
Benvenuto subsequently filed her
negligence action seeking damages for personal injuries. Among the Defendants’
affirmative defenses were that Benvenuto was negligent and that she failed to
use a fully operational seatbelt. The Defendants sought to depose Benvenuto’s
minor son, and Benvenuto filed a motion for protective order. The motion
alleged that the minor was not injured in the accident or a party to the
lawsuit and that he could not contribute any meaningful testimony relevant to
the action. The motion further alleged that to require the minor to submit to a
deposition would “result in unnecessary annoyance, embarrassment, burden, and
expense.”
negligence action seeking damages for personal injuries. Among the Defendants’
affirmative defenses were that Benvenuto was negligent and that she failed to
use a fully operational seatbelt. The Defendants sought to depose Benvenuto’s
minor son, and Benvenuto filed a motion for protective order. The motion
alleged that the minor was not injured in the accident or a party to the
lawsuit and that he could not contribute any meaningful testimony relevant to
the action. The motion further alleged that to require the minor to submit to a
deposition would “result in unnecessary annoyance, embarrassment, burden, and
expense.”
In her deposition of June 14, 2016,
Benvenuto stated that she and her son lived together. He remembered the details
of the accident, but they had not spoken about it recently. She testified that
she was at a complete stop when her vehicle was rear-ended and that she was
wearing her seatbelt. Benvenuto also described the pain she was experiencing to
her neck and shoulder every day. But, since the accident, she had gone to Busch
Gardens with her son and ridden adult rollercoasters; however, she could not
remember the names of the rollercoasters that she rode.
Benvenuto stated that she and her son lived together. He remembered the details
of the accident, but they had not spoken about it recently. She testified that
she was at a complete stop when her vehicle was rear-ended and that she was
wearing her seatbelt. Benvenuto also described the pain she was experiencing to
her neck and shoulder every day. But, since the accident, she had gone to Busch
Gardens with her son and ridden adult rollercoasters; however, she could not
remember the names of the rollercoasters that she rode.
On August 24, 2016, the trial court
conducted a hearing on the motion for protective order. At the hearing,
Benvenuto’s counsel asserted that the minor was only eight years old at the
time of the accident and was eleven years old at the time of the hearing.
Counsel sought a protective order “just because of his age, lack of maturity,
experience” and argued that “minors are especially susceptible to intimidation
during a deposition.” Counsel further questioned what the minor could “provide
in terms of clarity” in this rear-end crash.
conducted a hearing on the motion for protective order. At the hearing,
Benvenuto’s counsel asserted that the minor was only eight years old at the
time of the accident and was eleven years old at the time of the hearing.
Counsel sought a protective order “just because of his age, lack of maturity,
experience” and argued that “minors are especially susceptible to intimidation
during a deposition.” Counsel further questioned what the minor could “provide
in terms of clarity” in this rear-end crash.
Defense counsel stated that the
minor was an eyewitness to the accident and was sitting in the front passenger
seat. Thus, counsel asserted that the minor could “testify as to the forces of
impact and the moments leading up to the accident.” Also, the minor could
“testify about the state of [his mother’s] general health and the activities
that she does on a day-to-day basis.”
minor was an eyewitness to the accident and was sitting in the front passenger
seat. Thus, counsel asserted that the minor could “testify as to the forces of
impact and the moments leading up to the accident.” Also, the minor could
“testify about the state of [his mother’s] general health and the activities
that she does on a day-to-day basis.”
The trial court granted the motion
for protective order and stated the following:
for protective order and stated the following:
I don’t
think an 11-year-old who was eight at the time should be questioned in this
case, a car accident case, and then get into the state of health of his mom. So
I’m going to grant the motion. That’s without prejudice. If we get close to
trial and you go, Judge, we’ve got to have his testimony because of these
incredible conflicts on this one issue, but I’m not going to have a kid talking
about his mom’s health either.
think an 11-year-old who was eight at the time should be questioned in this
case, a car accident case, and then get into the state of health of his mom. So
I’m going to grant the motion. That’s without prejudice. If we get close to
trial and you go, Judge, we’ve got to have his testimony because of these
incredible conflicts on this one issue, but I’m not going to have a kid talking
about his mom’s health either.
The trial court did not hear any
evidence concerning the minor’s lack of maturity, experience, or how the
deposition could be detrimental to him. The Defendants seek certiorari review
of the nonfinal order that grants the motion for protective order without
prejudice.
evidence concerning the minor’s lack of maturity, experience, or how the
deposition could be detrimental to him. The Defendants seek certiorari review
of the nonfinal order that grants the motion for protective order without
prejudice.
To be entitled to certiorari relief
from a pretrial discovery order the petitioner must show “(1) a departure from
the essential requirements of the law, (2) resulting in material injury for the
remainder of the trial (3) that cannot be corrected on postjudgment appeal.” Rogan
v. Oliver, 110 So. 3d 980, 982 (Fla. 2d DCA 2013) (quoting Parkway Bank
v. Fort Myers Armature Works, Inc., 658 So. 2d 646, 648 (Fla. 2d DCA
1995)). The second and third prongs are jurisdictional. Id. Certiorari
jurisdiction generally exists to review the denial of a motion to compel the
deposition of a material witness. Id.; Nucci v. Simmons, 20 So.
3d 388, 390 (Fla. 2d DCA 2009).
from a pretrial discovery order the petitioner must show “(1) a departure from
the essential requirements of the law, (2) resulting in material injury for the
remainder of the trial (3) that cannot be corrected on postjudgment appeal.” Rogan
v. Oliver, 110 So. 3d 980, 982 (Fla. 2d DCA 2013) (quoting Parkway Bank
v. Fort Myers Armature Works, Inc., 658 So. 2d 646, 648 (Fla. 2d DCA
1995)). The second and third prongs are jurisdictional. Id. Certiorari
jurisdiction generally exists to review the denial of a motion to compel the
deposition of a material witness. Id.; Nucci v. Simmons, 20 So.
3d 388, 390 (Fla. 2d DCA 2009).
In
circumstances involving the denial of the right to take testimony of an alleged
material witness, it has been recognized that such a denial cannot be remedied
on appeal since “there would be no practical way to determine after judgment
what the testimony would be or how it would affect the result.”
circumstances involving the denial of the right to take testimony of an alleged
material witness, it has been recognized that such a denial cannot be remedied
on appeal since “there would be no practical way to determine after judgment
what the testimony would be or how it would affect the result.”
Nucci, 20 So. 3d at 390 (quoting Medero v. Fla. Power &
Light Co., 658 So. 2d 566, 567 (Fla. 3d DCA 1995)).
Light Co., 658 So. 2d 566, 567 (Fla. 3d DCA 1995)).
Benvenuto contends that certiorari
review is premature because the grant of the protective order is without
prejudice and thus does not foreclose a deposition of her son at a later time.
However, the trial court ruled that it would not allow a deposition on issues
of the mother’s health and that, in any event, a deposition would only be
allowed if there were, for example, “incredible conflicts on this one issue.”
Thus, it appears that the trial court would not allow a deposition under
circumstances when the defense would be entitled to take one of a material
witness.
review is premature because the grant of the protective order is without
prejudice and thus does not foreclose a deposition of her son at a later time.
However, the trial court ruled that it would not allow a deposition on issues
of the mother’s health and that, in any event, a deposition would only be
allowed if there were, for example, “incredible conflicts on this one issue.”
Thus, it appears that the trial court would not allow a deposition under
circumstances when the defense would be entitled to take one of a material
witness.
Florida Rule of Civil Procedure
1.310(a) provides that after commencement of the action a party may take a deposition
of any person. Rule 1.280(c) provides that a party or person from whom
discovery is sought may seek a protective order and that the trial court may
issue an order that denies or restricts discovery “for good cause shown.” When
“justice requires,” the court may issue an “order to protect a party or person
from annoyance, embarrassment, oppression, or undue burden or expense.” Id.
The party seeking the protective order has the burden to show good cause. Bush
v. Schiavo, 866 So. 2d 136, 138 (Fla. 2d DCA 2004).
1.310(a) provides that after commencement of the action a party may take a deposition
of any person. Rule 1.280(c) provides that a party or person from whom
discovery is sought may seek a protective order and that the trial court may
issue an order that denies or restricts discovery “for good cause shown.” When
“justice requires,” the court may issue an “order to protect a party or person
from annoyance, embarrassment, oppression, or undue burden or expense.” Id.
The party seeking the protective order has the burden to show good cause. Bush
v. Schiavo, 866 So. 2d 136, 138 (Fla. 2d DCA 2004).
When a party has been denied the
right to depose an alleged material witness without a finding of good cause to
preclude the deposition, the trial court departs from the essential
requirements of law. See Nucci, 20 So. 3d at 391; Medero,
658 So. 2d at 567. “A material witness is one who possesses information ‘going
to some fact affecting the merits of the cause and about which no other
witness might testify.’ ” Nucci, 20 So. 3d at 391 (quoting Sardinas
v. Lagares, 805 So. 2d 1024, 1026 (Fla. 3d DCA 2001)).
right to depose an alleged material witness without a finding of good cause to
preclude the deposition, the trial court departs from the essential
requirements of law. See Nucci, 20 So. 3d at 391; Medero,
658 So. 2d at 567. “A material witness is one who possesses information ‘going
to some fact affecting the merits of the cause and about which no other
witness might testify.’ ” Nucci, 20 So. 3d at 391 (quoting Sardinas
v. Lagares, 805 So. 2d 1024, 1026 (Fla. 3d DCA 2001)).
Here, it appears that the minor is a
material witness as to the circumstances in Benvenuto’s vehicle at the time of
impact, including the force of impact and whether she was wearing a seat belt.
Benvenuto contends that her son is not a material witness because the
Defendants can obtain the same information from her, essentially forcing the
Defendants to take Benvenuto’s view of the circumstances without the ability to
verify the accuracy of her assertions. This court has found a witness to be
material even when the relevant information could be obtained from a party. See
Nucci, 20 So. 3d at 390. Although Dr. Nucci, the defendant, was aware of
the negotiations between himself and Attorney Tindall regarding a billing
arrangement, this court determined that Tindall met the definition of a
material witness. Id. at 390-91. Similarly, the minor is a material
witness to the circumstances in Benvenuto’s vehicle at the time of the
accident.
material witness as to the circumstances in Benvenuto’s vehicle at the time of
impact, including the force of impact and whether she was wearing a seat belt.
Benvenuto contends that her son is not a material witness because the
Defendants can obtain the same information from her, essentially forcing the
Defendants to take Benvenuto’s view of the circumstances without the ability to
verify the accuracy of her assertions. This court has found a witness to be
material even when the relevant information could be obtained from a party. See
Nucci, 20 So. 3d at 390. Although Dr. Nucci, the defendant, was aware of
the negotiations between himself and Attorney Tindall regarding a billing
arrangement, this court determined that Tindall met the definition of a
material witness. Id. at 390-91. Similarly, the minor is a material
witness to the circumstances in Benvenuto’s vehicle at the time of the
accident.
In addition, the minor is the only
other person who lives with Benvenuto, and he would have unique knowledge of
his mother’s day-to-day activities and how the accident affected her.
Furthermore, Benvenuto was unable to state at deposition which rollercoasters
she rode after the accident. The Defendants suggest that the minor may know
which rollercoasters he rode with his mother. This would allow the Defendants
to establish that despite her injuries and ongoing pain Benvenuto rode
rollercoasters of specific speeds and G-force intensities.
other person who lives with Benvenuto, and he would have unique knowledge of
his mother’s day-to-day activities and how the accident affected her.
Furthermore, Benvenuto was unable to state at deposition which rollercoasters
she rode after the accident. The Defendants suggest that the minor may know
which rollercoasters he rode with his mother. This would allow the Defendants
to establish that despite her injuries and ongoing pain Benvenuto rode
rollercoasters of specific speeds and G-force intensities.
The trial court did not require
Benvenuto to establish good cause for the protective order. She based her
argument on her son’s age, lack of maturity, and experience but provided no
evidence. She also did not provide any evidence of how the taking of the
deposition may be detrimental to her son. The trial court made no findings of
good cause and departed from the essential requirements of law in prohibiting
the deposition. See Nucci, 20 So. 3d at 391; Medero, 658
So. 2d at 567. Thus, we grant the petition and quash the trial court’s order
granting the motion for protective order. The trial court in its discretion may
take protective measures if necessary for the minor’s well-being, such as
requiring that the deposition take place before the court or a magistrate.
Benvenuto to establish good cause for the protective order. She based her
argument on her son’s age, lack of maturity, and experience but provided no
evidence. She also did not provide any evidence of how the taking of the
deposition may be detrimental to her son. The trial court made no findings of
good cause and departed from the essential requirements of law in prohibiting
the deposition. See Nucci, 20 So. 3d at 391; Medero, 658
So. 2d at 567. Thus, we grant the petition and quash the trial court’s order
granting the motion for protective order. The trial court in its discretion may
take protective measures if necessary for the minor’s well-being, such as
requiring that the deposition take place before the court or a magistrate.
Petition granted and order quashed.
(LaROSE and SLEET, JJ., Concur.)
(LaROSE and SLEET, JJ., Concur.)
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