Nunes v. Herschman, No. 4D19-2798

• Court: Court of Appeal of Florida (US)
• Writing for the Court: Levine, C.J.
• Citation: 310 So.3d 79
• Parties: Alex NUNES, Appellant, v. Valerie HERSCHMAN, individually and in her capacity as guardian for Shirley Fiterman, the Ward, and Brian O'Connell, in his capacity as guardian for Shirley Fiterman, the Ward, Appellees.
• Decision Date: 06 January 2021
• Docket Number: No. 4D19-2798

310 So.3d 79

Alex NUNES, Appellant,
v.
Valerie HERSCHMAN, individually and in her capacity as guardian for Shirley Fiterman, the Ward, and Brian O'Connell, in his capacity as guardian for Shirley Fiterman, the Ward, Appellees.

No. 4D19-2798

District Court of Appeal of Florida, Fourth District.

[January 6, 2021]

Josh M. Bloom, Marshall A. Adams, and Amber L. Ruocco of Lubell & Rosen, LLC, Fort Lauderdale, for appellant.

Jack J. Aiello and Holly L. Griffin of Gunster, Yoakley & Stewart, P.A., West Palm Beach, for appellee Valerie Herschman, individually.

Christopher W. Kammerer of Kammerer Mariani PLLC, West Palm Beach, for appellee Valerie Herschman, in her capacity as guardian for Shirley Fiterman, the Ward.

Levine, C.J.

310 So.3d 81

An employee was subpoenaed to appear for deposition. After giving unfavorable testimony about his employer at the deposition, the employer terminated that employee. The employee filed a complaint alleging, in part, a cause of action under section 92.57, Florida Statutes (2017), which states that "[a] person who testifies in a judicial proceeding in response to a subpoena may not be dismissed from employment because of the nature of the person's testimony ...." The trial court dismissed the employee's cause of action, finding that a deposition is not a judicial proceeding pursuant to the statute. We agree. The statute covers only those who testify in a judicial proceeding, and not those in other types of legal proceedings, like depositions. Thus, we affirm.

According to the allegations in the third amended complaint, Alex Nunes ("the employee") worked as a caregiver for a married couple. When the husband passed away, the employee continued to care for the wife. A guardianship was later established for the wife. Subsequently, a legal battle ensued between the adult children, Valerie Herschman ("the employer") and Brian O'Connell, over the guardianship. As a result of the ongoing lawsuit, the employee appeared for a subpoenaed deposition. During the deposition, the employee gave unfavorable testimony regarding the employer, who was the current guardian. Ten days after his subpoenaed deposition testimony, the employer terminated the employee.

The employee filed an action against the employer as guardian for retaliation in violation of Florida's whistleblower statute (count 1) and against the employer, both in her individual capacity and as guardian, for violation of section 92.57, Florida Statutes (2017) (count 2). The employer moved to dismiss the complaint. As to count 2, the employer argued that dismissal was warranted for failure to state a cause of action because a deposition is not a judicial proceeding under section 92.57. The employee filed a response in opposition, arguing that a deposition is a judicial proceeding in the context of litigation privilege, under the Florida Rules of Judicial Administration, and for purposes of perjury in an official proceeding under section 837.011, Florida Statutes (2017).

The trial court dismissed only count 2, agreeing with the reasoning of Speights v. Palmer Hall Floors, Inc. , 1993 WL 632265 (Fla. 4th Cir. Ct. Dec. 17, 1993), which relied on the Florida Supreme Court's decision in Palm Beach Newspapers, Inc. v. Burk , 504 So. 2d 378, 384 (Fla. 1987), to determine what constitutes a "judicial proceeding."¹

We review the trial court's order dismissing a cause of action under the de novo standard of review. Bell v. Indian River Memorial Hosp. , 778 So. 2d 1030, 1032 (Fla. 4th DCA 2001). Issues of statutory construction are also reviewed de novo. Kelly v. Green Tree Servicing, LLC , 300 So. 3d 244, 245 (Fla. 4th DCA 2020).

When interpreting a statute, one first considers the text of the statute. Lopez v. Hall , 233 So. 3d 451, 453 (Fla. 2018). We look to the intent of legislature only when the statute is not clear and unambiguous. Id.

310 So.3d 82

Florida's appellate courts have for decades routinely framed the statutory construction task in general (for all cases) as starting with the "legislative intent as polestar" maxim. We next explain that "legislative intent" is discerned "primarily from the text of the statute." This construct improperly and confusingly elevates a secondary rule of construction to a primary position, but is harmless in most cases because we regularly explain that intent is determined primarily from the text of the statute—and that the inquiry should end with the text when it is clear and unambiguous. However, there is a potential harm.

Schoeff v. R.J. Reynolds Tobacco Co. , 232 So. 3d 294, 313-14 (Fla. 2017) (Lawson, J., concurring) (citations omitted). Thus, the text of the statute is our primary concern.

The statute at issue, section 92.57, Florida Statutes (2017), states as follows:

92.57. Termination of employment of witness prohibited

A person who testifies in a judicial proceeding in response to a subpoena may not be dismissed from employment because of the nature of the person's testimony or because of absences from employment resulting from compliance with the subpoena. In any civil action arising out of a violation of this section, the court may award attorney's fees and punitive damages to the person unlawfully dismissed, in addition to actual damages suffered by such person.

(emphasis added).

The question for our review is whether a deposition is a judicial proceeding. Initially, the statute applies only to a "person who testifies in a judicial proceeding in response to a subpoena ...." Id. Where a person does not testify pursuant to a subpoena, section 92.57 would not apply. Wiggins v. S. Mgmt. Corp. , 629 So. 2d 1022, 1024 (Fla. 4th DCA 1993). Neither party disputes that the employee's testimony was pursuant to a subpoena.

The statute itself does not define judicial proceeding. Where the legislature has not defined words in a statute, the language should be given its plain and ordinary meaning. Sch. Bd. of Palm Beach Cty. v. Survivors Charter Sch., Inc. , 3 So. 3d 1220, 1233 (Fla. 2009). The plain and ordinary meaning of a word or phrase can be ascertained by referring to the dictionary definition. Id. Black's Law Dictionary (11th ed. 2019) defines a "judicial proceeding" as "[a]ny court proceeding; any proceeding initiated to procure an order or decree, whether in law or in equity." In contrast, Black's defines a "deposition" as "[a] witness's out-of-court testimony that is reduced to writing (usu. by a court reporter) for later use in court or for discovery purposes" or as "[t]he session at which such testimony is recorded." The word "judicial" itself has been defined as "of, relating to, or by...