Girten v. Bouvier, 3807

• Decision Date: 16 August 1963
• Docket Number: No. 3807,3807
• Citation: 155 So.2d 745
• Parties: Larry B. GIRTEN, Petitioner, v. Mary J. BOUVIER and Maurice J. Bouvier, Respondents.
• Court: Florida District Court of Appeals

Page 745

155 So.2d 745

Larry B. GIRTEN, Petitioner, v. Mary J. BOUVIER and Maurice J. Bouvier, Respondents.

No. 3807.

District Court of Appeal of Florida, Second District.

Aug. 16, 1963.

James M. Adams, of Jones, Adams, Paine & Foster, West Palm Beach for petitioner.

Sam D. Phillips, Jr., of Phillips & Hathaway, West Palm Beach, for respondents.

PER CURIAM.

During the pre-trial process in the course of an action at law, petitioner, Larry B. Girten, defendant below, propounded various written interrogatories pursuant to rule 1.27, Florida Rules of Civil Procedure, 30 F.S.A. These numbered thirty; subsections and subsidiary questions under many of them brought the total to more than seventy. Plaintiff, Mary J. Bouvier, a respondent, filed objections; and several of these were sustained via order of the trial court, while the bulk of the objections were overruled. ¹

Respondent, as plaintiffs, were suing the defendant-petitioner for injuries claimed to have been received by Mary J. Bouvier as a result of petitioner's allegedly negligent operation of a motor vehicle. By his answer, petitioner denied the negligence and the injuries and asserted the affirmative defense of contributory negligence. By stipulation of the parties, request has been made that this court consider only the matters raised by the petition with respect to the respondent Mary J. Bouvier, Maurice J. Bouvier having died since commencement of this suit.

Petitioner states that the interrogatories were filed for the purpose of discovering facts of the alleged accident, the present medical condition of the respondent, her past medical history, the names of possible witnesses, and pertinent background information concerning the respondent. Objections adverted generally to all the interrogatories; grounds asserted were that the information sought was irrelevant and privileged, that the questions were too broad, and that they were filed for harassment.

It is petitioner's position that the trial court's ruling in sustaining respondent's objections does not conform to the essential requirements of law, that an appeal after final judgment would afford no adequate and complete remedy since, if he should prevail, a new trial would result; further, that the lack of information sought will cause him material injury throughout the subsequent proceedings in that it is needed for preparation of his case for trial.

In considering a petition for writ of certiorari to review an interlocutory order at law, we are constrained to observe that an appellate court should exercise caution, lest it intrude upon the trial jurisdiction of the court whose order is challenged. As the court observed in Board of Commissioners of State Institutions v. Tallahassee Bank & Trust Co., Fla.App.1958, 101 So.2d 411, 412, 'It is not the function of an appellate court to inject itself into the middle of a lawsuit and undertake to direct the trial judge in the conduct of the case.' This is consonant with the comment made by the Florida Supreme Court in Charles Sales Corp. v. Rovenger, Fla.1956, 88 So.2d 551, 553, '* * * the trial court has a wide discretion in its treatment of discovery problems which we will not ordinarily disturb.'

Review other than by appeal from a final judgment is limited. In an action at law, interlocutory appeal is permitted only from specifically categorized orders. Rule 4.2, Florida Appellate Rules, 31 F.S.A. Other than this, appeal must be from a final judgment. Common-law certiorari, a discretionary writ, ordinarily will not be issued by an appellate court to review interlocutory orders in a suit at law, since such errors as are made in it may be corrected on appeal. Only in exceptional cases, such as those where the lower court acts without or in excess of jurisdiction, or where the interlocutory order does not conform to the essential requirements of law and may reasonably cause material injury throughout the subsequent proceedings for which the remedy by appeal will be inadequate, will the appellate court exercise its discretionary power to issue the writ. See Wolf v. Industrial Supply Corp., Fla.1952, 62 So.2d 30; Kauffman v. King, Fla.1956, 89 So.2d 24; Taylor v. Board of Public Instruction of Duval County, Fla.App.1961, 131 So.2d 504. Where the remedy of appeal exists, this right ordinarily serves as a sufficient impediment to the obtaining of review by certiorari, although it may not be as convenient. 5 Fla.Jur., Certiorari, section 9, page 492; Tart v. State, 1928, 96 Fla. 77, 117 So. 698.

A succinct yet comprehensive summary upon the subject of reviewability of errors and irregularities may be found in 5 Fla.Jur., Certiorari, section 33, pages 532, 533:

"Mere errors' are not reviewable on certiorari. For example, nonfundamental errors of judgment, of procedure, or as to the law applicable to the facts are not remediable by certiorari. The reviewing court thus has no power in certiorari proceedings to inquire into alleged errors in admitting or rejecting evidence, in giving or refusing charges to the jury, in giving weight to testimony, in making rulings on the pleadings or other rulings during the trial, or in other matters of procedure. This is true even though the error might be reversible on appeal. Especially is it true if the judgment, though irregular, affords substantial justice to the parties. But certiorari review does extend to substantial errors that are calculated to materially injure the complaining party. Thus, serious irregularities or material fundamental errors in applying the law may be a ground for quashing a judgment. For instance, an error that it so flagrant as to constitute a departure from the essential requirements of the law, or that renders the judgment illegal or void, not merely erroneous, makes the judgment quashable.'

It is thus seen that power to review an intermediate order does not comprehend errors by the trial court in the making of rulings on the pleadings (see also Welsh v. Tropical Roofing Co., Fla.App.1961, 127 So.2d 894; Longo v. Collins, Fla.App.1958, 106 So.2d 1), nor as to the law applicable to the facts; neither will an appellate court review alleged errors in admitting or rejecting evidence or in making of rulings on other matters of procedure, even though the error might be reversible on appeal. Nonfundamental errors of judgment or of procedure cannot, therefore, become the subject of a proceeding such as this.

Petitioner has cited two cases in support of his position, Boucher v. Pure Oil Co., Fla.App.1957, 101 So.2d 408; and Suez Co. v. Hodgins, Fla.App.1962, 137 So.2d 231. In the Boucher case, it was held that the order was reviewable on certiorari and that defendant was not entitled on discovery to inquire whether plaintiff or her attorney knew of any statute, ordinance, or regulation controlling the installation of gasoline storage tanks or the delivery of petroleum products to them. The court stated that, absent compelling reasons, the rules of discovery could not be made the vehicle through which counsel for a litigant may be required to divulge work product resulting from his labors and ingenuity in preparing his case. The proceeding before this court does not concern divulgence of work product. The Suez case, denying review of the challenged order, was cited for the general principle which we have heretofore stated, that only in exceptional cases will certiorari be granted for review of an interlocutory order at law. This same principle was recognized in the Boucher case.

If the matters here protested were adjudged as error, it cannot be said that they are fundamental or are of such a substantial nature as would be calculated to cause material injury to the petitioner, nor so flagrant as to constitute a departure from the essential requirements of law. If on appeal the order complained of is held to be reversible, the cause will be remanded for a proper trial and petitioner will be afforded any relief to which he, under law, may be entitled. As we have stated, petitioner asserts that his case will be damaged in that the information sought through the eliminated interrogatories is needed in preparation of his defense. It it be true that the trial court was in error, then this is subject to correction on appeal after final judgmemt has been on appeal after final judgment has been

The allowing of certiorari in a case such as this could carry the potentiality of multitudinous petitioner for review of allegedly erroneous rulings. As to interrogatories, these could be posed for review, even though many were required by the court to be answered, some of them containing much the same information as those that fell by the wayside. There could be cases wherein merely a few or perhaps even only one had been successfully objected to, or where their substance was inconsequential or repetitive or where some other reason would render their omission harmless.

We do not find that the interrogatories which are the subject of this petition bring it either within the rule of exceptional cases or within a situation which would require 'special dispensation' as in Kilgore v. Bird, 1942, 149 Fla. 570, 6 So.2d 541, so characterized in Wolf v. Industrial Supply Corp., supra. Our decision to deny certiorari does not mean that the petitioner will be precluded from propounding at the trial the interrogatories which were successfully objected to; neither does it preclude the trial court from ruling upon these as to their propriety under the situation then presented; nor is the petitioner precluded from raising the question of correctness of the interlocutory order here assailed upon appeal from final judgment, should he feel aggrieved by such judgment.

The petition for writ of certiorari is denied.

SMITH, C. J., and KANNER, J., concur.

SHANNON, J., dissents.

SHANNON, Judge (dissenting).

I regret that I must dissent from the majority opinion, but I feel that the petitioner's writ of certiorari...