Rogan v. Oliver

• Decision Date: 10 April 2013
• Docket Number: No. 2D12–3935.,2D12–3935.
• Citation: 110 So.3d 980
• Parties: Terrance ROGAN, Valerie Rogan, and Ronald Kay, Petitioners, v. James OLIVER, Respondent.
• Court: Florida District Court of Appeals

110 So.3d 980

Terrance ROGAN, Valerie Rogan, and Ronald Kay, Petitioners,

v.James OLIVER, Respondent.

No. 2D12–3935.

District Court of Appeal of Florida,

Second District.

April 10, 2013.

Anne C. Sullivan of Cole, Scott & Kissane, P.A., Miami; and Ron M. Campbell of Cole, Scott & Kissane, P.A., Bonita Springs, for Petitioners.

Eric J. Vasquez of Law Offices of Eric J. Vasquez, Naples, for Respondent.

VILLANTI, Judge.

Terrance Rogan, Valerie Rogan, and Ronald Kay (the Petitioners) petition this court to issue a writ of certiorari to quash the trial court's order that denied their motion to compel the depositions of two attorneys who were formerly counsel to the Majors Homeowner's Association. Because the trial court applied the incorrect law in determining whether the attorney/client privilege had been waived, we grant the petition and remand for further proceedings.

Respondent James Oliver sued the Petitioners for defamation under various theories of liability. According to Oliver—a past president of the Association—the Petitioners made written and oral statements accusing him of abusing his position when he was president and using Association funds for personal projects. Oliver alleged that these statements were false and injurious to his reputation in the community. The Petitioners raised the affirmative defense of truth.

During his deposition, Oliver testified that he relied on the advice of the Association's prior counsel—attorneys Ashley Lupo and Gregory Marler—in determining whether certain actions taken by him and the others on the Association's board of directors were authorized and proper. The Petitioners then sought to depose Lupo and Marler concerning the advice they gave the Association's board members, including Oliver. Oliver objected, contending that the communications between the Association's board and Lupo and Marler were protected by attorney/client privilege and asserting that neither he nor the prior board would waive that privilege. In addition, he argued that some of the communications were made to him in his individual capacity and so were protected by his attorney/client privilege. The Petitioners filed a motion to compel the depositions of Lupo and Marler, which the trial court denied. The Petitioners now ask this court to quash this order by way of a writ of certiorari.

The standard by which a petition for writ of certiorari is reviewed is quite narrow. A petitioner seeking a writ of common law certiorari “must establish (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.” Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648 (Fla. 2d DCA 1995). Elements two and three constitute a jurisdictional test, and “[i]f the jurisdictional prongs of the standard three-part test are not fulfilled, then the petition should be dismissed rather than denied.” Id. at 649.

Generally, certiorari jurisdiction exists to consider the denial of a motion to compel the deposition of a material witness. See Nucci v. Simmons, 20 So.3d 388, 390 (Fla. 2d DCA 2009). As this court explained:

“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.’ ”

Id. (quoting Medero v. Fla. Power & Light Co., 658 So.2d 566, 567 (Fla. 3d DCA 1995)). 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.’ ”

Duran v. MFM Grp., Inc., 841 So.2d 500, 501 (Fla. 3d DCA 2003) (quoting Wingate v. Mach, 117 Fla. 104, 157 So. 421, 422 (1934)). Thus, the jurisdictional test in this type of case hinges on whether the individual sought to be deposed possesses information about which no other witness could properly testify.

Here, the Petitioners have asserted that Lupo and Marler are material witnesses because they, and only they, can testify as to what information and/or advice they gave the board of directors, including Oliver, concerning the propriety of the board's actions. While Oliver argues that the management company employees could testify as to what they were told by Lupo and Marler, that testimony would constitute inadmissible hearsay. Thus, Lupo and Marler appear to be material witnesses in this case, and any error in the order prohibiting their depositions cannot be corrected on postjudgment appeal. Hence, we have jurisdiction to consider the merits of the petition.

Turning to those merits, it becomes apparent that the trial court departed from the essential requirements of the law by applying the incorrect law.

It is by now well established, and undisputed by the parties to this case, that the attorney-client privilege attaches to corporations as well as to individuals. Upjohn Co. v. United States, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). Both for corporations and individuals, the attorney-client privilege serves the function of promoting full and frank communications between attorneys...