Hett v. Barron-Lunde

• Decision Date: 22 January 2020
• Docket Number: Case No. 2D19-40
• Citation: 290 So.3d 565
• Parties: Elma HETT, Petitioner, v. Michele BARRON-LUNDE, as Personal Representative of the Estate of John Barron, deceased, Respondent.
• Court: Florida District Court of Appeals

290 So.3d 565

Elma HETT, Petitioner,

v.Michele BARRON-LUNDE, as Personal Representative of the Estate of John Barron, deceased, Respondent.

Case No. 2D19-40

District Court of Appeal of Florida, Second District.

Opinion filed January 22, 2020.

Kerry E. Mack and Jacqulyn Mack-Majka of Mack Law Firm Chartered, Englewood, for Petitioner.

Christopher D. Smith of Christopher D. Smith, P.A., Sarasota, for Respondent.

SMITH, Judge.

Petitioner, Elma Hett, seeks certiorari review of a discovery order compelling her to produce her personal tax returns and financial information, and ordering the disclosure of nonparty trust records and attorney-client privileged information pursuant to subpoenas served under Florida Rule of Civil Procedure 1.351, on the following nonparties: The Mowry Law Firm, BB&T Company, and Liberty Savings Bank, F.S.B. Because we find the trial court departed from the essential requirements of law in compelling the disclosure of the nonparty trust's financial records without conducting an evidentiary hearing and in compelling disclosure of alleged attorney-client privileged information without conducting an in camera inspection, we grant the petition, in part, and quash, in part, the order below. As to the trial court's discovery order compelling the production of Petitioner's personal financial information, we deny certiorari relief.

I

Following the death of her father John Barron, Respondent, Michelle Barron-Lunde, as personal representative of her father's estate, sued Petitioner, alleging Petitioner wrongfully obtained approximately $200,000 from John Barron's bank accounts after John Barron's mental state began to deteriorate. The complaint raises claims of civil theft, conversion, breach of fiduciary duty, unjust enrichment, and seeks the imposition of a constructive trust. Petitioner, the only named party in the complaint, denied liability and filed a counterclaim seeking, among other relief, compensation for services rendered to John Barron during his lifetime.

During the course of discovery, Petitioner's deposition was taken. Petitioner testified she and John Barron were elderly and had a close relationship spanning twenty years. At the time of John Barron's death, the couple held three joint bank accounts. John Barron designated Petitioner as his health care surrogate; she drove him to his medical and attorney appointments and to the bank, and sometimes cooked meals for him. At some point during their relationship, Petitioner retained an attorney with the Mowry Law Firm to set up a trust (Trust) for John Barron's benefit so he would be financially sound in the event she predeceased him.¹ In her deposition, Petitioner explained that John Barron would write checks to her, which she would deposit into the Trust. Between 2014 and 2016, John Barron required more care and resided in a long-term care facility. In late 2016, Respondent moved John Barron to Maryland where she resided.

After Petitioner's deposition, Respondent served discovery on Petitioner, including a request for the production of her "complete tax returns, including all schedules and attachments, from the year 2012 to present." Petitioner objected to the request for her financial information based on her right to privacy under Article I, section 23 of the Florida Constitution.

In addition, Respondent served nonparty subpoenas on Petitioner's financial institutions along with the law firm who set up the Trust.²

The subpoenas to the two financial institutions sought:

ANY AND ALL DOCUMENTATION INCLUDING FORMS, CHECKS, COPIES OF CHECKS, CANCELLED CHECKS, STATEMENTS, AND/OR CORRESPONDENCE RELATED TO ANY ACCOUNT HELD BY ELMA M. HETT, WHOSE SSN ENDS IN ****, AS AN INDIVIDUAL OR TRUSTEE, DOB *******, FROM JANUARY 2012 THROUGH DECEMBER 2017.

As to the subpoenas directed to the Mowry Law Firm, the discovery sought:

A COPY OF ANY DECLARATION OF TRUST, TRUST AGREEMENT, OR OTHER TRUST DOCUMENT IN WHICH ELMA HETT A/K/A ELMA M. HETT (DOB *****) IS A BENEFICIARY, SETTLOR OR A TRUSTEE. ALL TRUST ACCOUNTINGS ASSOCIATED WITH ANY TRUST IN WHICH ELMA HETT A/K/A ELMA M. HETT (DOB *****) IS A BENEFICIARY, SETTLOR OR A TRUSTEE. ANY DOCUMENT INDICATING OR DESCRIBING A DEPOSIT INTO OR A DISBURSEMENT FROM ANY TRUST IN WHICH ELMA HETT A/K/A ELMA M. HETT (DOB *****)

IS A BENEFICIARY, SETTLOR OR A TRUSTEE.

Petitioner filed an objection to the three subpoenas raising the following grounds: (1) the requests interfere with a nonparty's right to privacy under Article I, section 23 of the Florida Constitution ; (2) the requests sought documents relating to Petitioner as trustee; however, Petitioner, as trustee, is not a party to the underlying litigation, nor is any other grantor or settlor of the trust; and (3) the subpoena to the law office seeks information protected by the attorney-client privilege. The Mowry Law Firm also filed an objection stating it has served as Petitioner's estate planning attorneys for over five years and she had not provided consent for the turnover of records under rule 4-1.6 of the Rules Regulating the Florida Bar.³

In compelling Petitioner's personal financial records, the trial court found them relevant to the claims of theft and breach of fiduciary duty. The trial court also found the Trust records relevant, reasoning:

[I]t cannot fairly be said that [Petitioner] should be considered an unrelated third party by virtue of her potential status as a trustee of the subject account funds. As such, she is not entitled to a full evidentiary hearing when the relevance of the documents is readily apparent and she has been afforded notice and an opportunity to be heard on this threshold issue.

Finally, as to the Mowry Law Firm records, the order compelled the disclosure but was silent as to the issue of privilege.

II

To invoke the extraordinary relief of certiorari a party must "demonstrate that the contested order constitutes ‘(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case[,] (3) that cannot be corrected on postjudgment appeal.’ " Bd. of Trs. of Internal Improvement Trust Fund v. Am. Educ. Enters., LLC, 99 So. 3d 450, 454 (Fla. 2012) (quoting Reeves v. Fleetwood Homes of Fla., Inc., 889 So. 2d 812, 822 (Fla. 2004) ). "An order compelling the production of documents by a nonparty is reviewable by certiorari because he or she has no adequate remedy by appeal." Rowe v. Rodriguez-Schmidt, 89 So. 3d 1101, 1103 (Fla. 2d DCA 2012) (quoting Rappaport v. Mercantile Bank, 17 So. 3d 902, 905 (Fla. 2d DCA 2009) ). Certiorari is also the proper method for seeking review of an order compelling disclosure of information that is claimed to be protected by attorney-client privilege. See Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla. 1995) ("Discovery of certain kinds of information ‘may reasonably cause material injury of an irreparable nature’....This includes ‘cat out of the bag’ material that could be used to injure another person or party outside the context of the litigation, and material protected by privilege, trade secrets, work product, or involving a confidential informant may cause such injury if disclosed." (quoting Martin–Johnson, Inc. v. Savage, 509 So. 2d 1097, 1100 (Fla. 1987) )); Kobi Karp Architecture & Interior Design, Inc. v. Charms 63 Nobe, LLC, 166 So. 3d 916, 920 (Fla. 3d DCA 2015) (finding under specific facts of the case, a discovery order requiring an architect's clients to produce "voluminous, patently irrelevant information" would result in material injury of an irreparable nature). Furthermore, a party is not entitled to a "trolling exercise through the confidential and potentially privileged records of a non-party." Rousso v. Hannon, 146 So. 3d 66, 69 (Fla. 3d DCA 2014) (granting certiorari where party sought nonparty and privileged records in possession of attorney).

Where a trial court orders the disclosure of a nonparty's financial information without considering any evidence regarding its relevance, the trial court departs from the essential requirements of law. Rowe, 89 So. 3d at 1103. The consideration of evidence suggests, as some courts including this court have held, the necessity for an evidentiary hearing to determine the relevancy of the documents. See Id.; Spry v. Prof'l Emp'r Plans d/b/a IHOP, 985 So. 2d 1187, 1188 (Fla. 1st DCA 2008) ; Vega v. Swait, 961 So. 2d 1102, 1104 (Fla. 4th DCA 2007) ; but see 2245 Venetian Court Bldg. 4, Inc. v. Harrison, 149 So. 3d 1176, 1181 (Fla. 2d DCA 2014) (where relevancy is "readily apparent ... an evidentiary hearing is not necessary" (citing Elsner v. E–Commerce Coffee Club, 126 So. 3d 1261, 1264 (Fla. 4th DCA 2013) ("rejecting the argument that ‘a trial court must always conduct an evidentiary hearing before it may order financial discovery from a party’ and holding that where the requested financial information was relevant to the issues as framed by the pleadings, trial court did not depart from the essential requirements of the law in ordering disclosure"))).

Similarly, a trial court departs from the essential requirements of law when ordering the disclosure of purportedly privileged documents before addressing whether a privilege applies, without conducting an in camera inspection. Snyder v. Value Rent–A–Car, 736 So. 2d 780, 782 (Fla. 4th DCA 1999) ; see also Patrowicz v. Wolff, 110 So. 3d 973, 974-75 (Fla. 2d DCA 2013) (quashing an order compelling production of documents without first reviewing them to determine whether attorney-client privilege applied); AG Beaumont 1, LLC v. Wells Fargo Bank, N.A., 160 So. 3d 510, 512 (Fla. 2d DCA 2015) (quashing order compelling production of documents containing allegedly privileged material absent in camera review); Marshalls of M.A., Inc. v. Witter, 186 So. 3d 570 (Fla. 3d DCA 2016).

III

We first address the discoverability of the requested personal financial information of Petitioner, individually, from the nonparty banks. Petitioner argues Respondent failed...