Smithwick v. TELEVISION 12, 98-2147.

Citation730 So.2d 795
Decision Date30 March 1999
Docket NumberNo. 98-2147.,98-2147.
PartiesWalter SMITHWICK, III, M.D., Appellant, v. TELEVISION 12 OF JACKSONVILLE, INC., d/b/a WTLV Channel 12, Appellee.
CourtCourt of Appeal of Florida (US)

John R. Saalfield and Harvey L. Jay, III, of Saalfield, Coulson, Shad & Jay, P.A., Jacksonville, for Appellant. D. Gray Thomas and Wm. J. Sheppard of Sheppard and White, P.A., Jacksonville, for Appellee.

WEBSTER, J.

Appellant (Smithwick) seeks review of two orders entered in this medical malpractice action. The first directed Smithwick to return previously filed discovery documents which the trial court had earlier permitted Smithwick to remove from the court file pursuant to an agreement reached between Smithwick and the plaintiffs following settlement of the action. The second denied Smithwick's subsequent motion either to seal the documents or to excise portions of them. Smithwick argues that the documents ceased to be "judicial records" once the trial court permitted him to remove them from the court file and that, therefore, Florida Rule of Judicial Administration 2.051, which addresses public access to judicial records, was inapplicable. In the alternative, he argues that, even if they remained judicial records for purposes of rule 2.051, the trial court abused its discretion when it denied his motion either to seal the documents or to excise portions of them. We affirm.

I. Procedural History

Irene and Leroy Barber filed a medical malpractice action against Smithwick (who is a vascular surgeon), and others. As amended, the complaint alleged that, while Mrs. Barber was "under Dr. Smithwick's care, Dr. Smithwick was suffering from chronic alcoholism and was impaired in his ability to provide appropriate care to Mrs. Barber"; and that, as a proximate result of Smithwick's "alcoholism and impaired condition," Mrs. Barber suffered the amputation of her left leg and other injuries and damages. Smithwick denied all of the material allegations of the amended complaint.

During the course of the litigation, the parties engaged in considerable discovery. Many of the discovery documents, including several depositions and accompanying exhibits, were filed by plaintiffs' attorney, without objection from any of the defendants. Ultimately, court-ordered mediation resulted in settlement of the action. The day following mediation, and while the action remained pending, the parties entered into a stipulation permitting Smithwick's attorney to remove all discovery documents from the court file. A proposed order to that effect was presented to the trial judge, who signed it. Smithwick's attorney also obtained permission to take the court file to his office, where he promptly removed all discovery documents from the file.

Days after the order permitting Smithwick's attorney to remove all discovery materials from the file had been entered, and while the action remained pending, appellee (TV-12) filed a motion to intervene and a motion for access to judicial records. In the former motion, TV-12 claimed that it had tried to examine the court file, only to find that it had been removed from the courthouse, and that requests for review of the file made to Smithwick's attorney had been refused. According to TV-12, this constituted a denial of public access to judicial records. In the latter motion, TV-12 argued that, notwithstanding its removal from the courthouse, the file remained a public record pursuant to Florida Rule of Judicial Administration 2.051, and it demanded immediate access to the file. Following a hearing at which the trial court granted the motion to intervene, counsel for TV-12 was permitted to examine the file, and learned that all of the discovery documents had been removed. TV-12 immediately filed an amended motion requesting access to the removed documents, and an emergency motion for a temporary injunction, to prevent the destruction of the documents before its motion could be heard. Only after TV-12 had been permitted to intervene for the purpose of seeking access to the discovery documents did the plaintiffs file a notice of voluntary dismissal.

A hearing was subsequently held on the amended motion filed by TV-12, following which the trial court ordered Smithwick's attorney to return the discovery documents previously removed from the file. Smithwick then filed a motion for rehearing, and a motion asking the trial court either to seal the discovery documents or to excise portions of them, pursuant to Florida Rule of Judicial Administration 2.051. In the latter motion, he asserted that the relief requested was appropriate because the documents "contain[ed] confidential and sensitive information of a personal nature that w[ould] tend to embarrass" him and his family, and other information that was "unreliable" and "irrelevant hearsay."

The trial court granted Smithwick's motion for rehearing, following which it heard further argument from counsel, and reviewed the discovery documents in camera. In its subsequent order denying Smithwick's motion either to seal the documents or to excise portions of them, the trial court noted that Smithwick argued that the documents were "entitled to protection from public scrutiny" because the information in them would injure "innocent third parties"; would violate "Smithwick's privacy rights"; would violate "the statutorily protected medical peer review process"; and was "so scandalous and impertinent as to be inadmissible in evidence." The trial court "opined" that, because Smithwick had failed to object when the documents were filed, he had probably waived any right he might otherwise have had to complain. It then "conclude[d]" that, on the merits, Smithwick was not entitled to prevail because neither the potential embarrassment nor the potential injury to innocent third parties was so great as to warrant denial of public access to the documents; mere possible inadmissibility of some evidence did not preclude public access to it; and the peer review confidentiality privilege was not implicated, because all of the challenged information had come from sources external to the peer review process. This appeal follows.

On appeal, Smithwick makes two alternative arguments: (1)that the trial court erred when it ordered the discovery documents returned to the court file because, once the documents had been removed from the file, they were no longer "judicial records" for purposes of Florida Rule of Judicial Administration 2.051 and, therefore, TV-12 (and the public generally) no longer had any right of access to them; and (2) that, if the trial court did correctly order the documents returned to the file, it abused its discretion when it subsequently denied his motion either to seal the documents or to excise portions of them. In support of his first argument, the only legal basis suggested by Smithwick for the initial order permitting him to remove the discovery documents from the court file is Florida Rule of Judicial Administration 2.075(h), which he contends authorized the trial court to release the documents to his attorney. However, he did not make that argument in the trial court. In fact, the argument first appears in his reply brief. Therefore, we will not consider it. See, e.g., Tillman v. State, 471 So.2d 32, 35 (Fla.1985)

(to be preserved for review, the specific legal argument raised on appeal must have been presented to the trial court); General Mortgage Assoc. v. Campolo Realty & Mortgage Corp., 678 So.2d 431 (Fla. 3d DCA 1996) (an appellate court will not consider an argument first presented in a reply brief). Even if we were to reach the merits, this argument would be unavailing.

II. The Order Directing Return of the Documents

Florida Rule of Judicial Administration 2.075 is titled "Retention of Court Records." It deals with the time when, and the conditions under which, "court records" (including files) may be destroyed or otherwise disposed of. The subdivision upon which Smithwick seeks to rely reads:

(h) Release of Court Records. This rule does not limit the power of the court to release exhibits or other parts of court records that are the property of the person or party
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6 cases
  • State v. Wooten, 4D18-2636
    • United States
    • Florida District Court of Appeals
    • November 28, 2018
    ...of fact and must extend its order no further than the circumstances require."); Smithwick v. Television 12 of Jacksonville, Inc. , 730 So.2d 795, 798 (Fla. 1st DCA 1999) (applying abuse of discretion standard in ruling on motion to seal). The public right to access judicial records or docum......
  • Seccia v. State, 1D97-3046.
    • United States
    • Florida District Court of Appeals
    • April 5, 2001
    ...we are obliged to construe rules in a manner that will prevent their conflict with the constitution. Smithwick v. Television 12 of Jacksonville, Inc., 730 So.2d 795, 798 (Fla. 1st DCA 1999). Moreover, the rule of lenity requires that any ambiguity in the guidelines be construed in favor of ......
  • Palm Beach Newspapers, Inc. v. Limbaugh
    • United States
    • Florida District Court of Appeals
    • December 30, 2005
    ...of Clearwater, 863 So.2d 149, 155 (Fla.2003) (personal e-mails on government computers are not public records); Smithwick v. Television 12, 730 So.2d 795, 798 (Fla. 1st DCA 1999) (where trial court erroneously allowed discovery documents to be removed from court file, the documents must be ......
  • Brown & Williamson Tobacco Corp. v. Carter
    • United States
    • Florida District Court of Appeals
    • April 16, 2003
    ...401 So.2d 1322, 1323-24 (Fla.1981); Keech v. Yousef, 815 So.2d 718, 719-20 (Fla. 5th DCA 2002); Smithwick v. Television 12 of Jacksonville, Inc., 730 So.2d 795, 797 (Fla. 1st DCA 1999). In this case, the matter was not only not raised in the trial court by Brown & Williamson, it was never r......
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