S.W. Fla. Paradise Prop., Inc. v. Segelke

111 So.3d 268

S.W. FLORIDA PARADISE PROPERTY, INC., a Florida corporation, Petitioner,

v.Gary D. SEGELKE and Cheryl S. Warner, Respondents.

No. 2D12–4539.

District Court of Appeal of Florida, Second District.

April 17, 2013.

Billy Joe L. McFarland, Cape Coral, for Petitioner.

Albert J. Tiseo, Jr., of Goldman, Tiseo & Sturges, P.A., Port Charlotte, for Respondents.

WALLACE, Judge.

S.W. Florida Paradise Property, Inc., a Florida corporation (Paradise Property), petitions for certiorari review of the circuit court's order denying its motion for protective order and ruling that all of its postjudgment pleadings “will be treated as a nullity” because of a default and a judgment after default entered against Paradise Property in the underlying action. Because the order under review will cause irreparable harm to Paradise Property and imposes a procedural bar that does not flow from a default, we grant the writ and quash the order.

Respondents' predecessor in interest obtained a default and a final judgment of foreclosure after default against Paradise Property in the underlying mortgage foreclosure action. After the clerk of the court sold the subject property, the Respondents obtained a deficiency judgment against Paradise Property. In postjudgment enforcement proceedings, the Respondents served a subpoena duces tecum for deposition in aid of execution on Hernan Pineda as president and registered agent of Paradise Property. The subpoena required Mr. Pineda to appear for deposition in Charlotte County, Florida, and to produce at the deposition his “personal financial, business and property records and all other papers, passbooks, titles, registrations, record books, and books of account which tend to disclose the extent and nature of financial interest, property and property rights owned by you, either individually, jointly and/or beneficially,” among other things. Notably, Mr. Pineda is not a party to the underlying action, and the deficiency judgment does not name him as a judgment debtor. The deficiency judgment is against Paradise Property only, not against Mr. Pineda.¹

Paradise Property filed a motion for protective order seeking to require Mr. Pineda's deposition to be held in Lee County, where he resides, and to protect him from being required to produce his personal financial records.² At the hearing on Paradise Property's motion, the circuit court found that the default previously entered against Paradise Property in the underlying mortgage foreclosure action precluded Paradise Property from filing any pleadings or making any argument concerning any postjudgment matter in the case. Accordingly, it entered an order striking or denying Paradise Property's motion without considering it on the merits.³ The order states further that Paradise Property is precluded from filing any more pleadings in the action and that any pleadings it files “will be treated as a nullity.”

“A petition for writ of certiorari is the appropriate method to review a discovery order when the order departs from the essential requirements of the law, causes material injury throughout the remainder of the proceedings below, and effectively leaves no adequate remedy on appeal.” Segarra v. Segarra, 932 So.2d 1159, 1160 (Fla. 3d DCA 2006) (citing Nussbaumer v. State, 882 So.2d 1067, 1071 (Fla. 2d DCA 2004)). Here, the circuit court denied Paradise Property's motion for protective order without considering its merits, thereby denying Paradise Property procedural due process. Not only did the circuit court decline to consider Paradise Property's motion for protective order on the merits, it ruled that any pleading filed by Paradise Property in the underlying matter would “be treated as a nullity,” thereby prospectively denying Paradise Property procedural due process throughout the remainder of the underlying proceedings. Such a complete denial of due process to Paradise Property in connection with the proceedings in aid of execution constitutes the type of irreparable harm that is subject to certiorari review. See K.G. v. Fla. Dep't of Children & Families, 66 So.3d 366, 368 (Fla. 1st DCA 2011) (observing in the context of a petition for certiorari review from a shelter order that if the mother's allegation that she was denied an opportunity to be heard on the petition were true, it would concern the type of harm that would be irreparable unless immediately addressed; otherwise “the entire proceeding [would be] based on a denial of [the mother's] due process rights”).

Moreover, Mr. Pineda is not a party to the underlying action, and he should not be required to risk contempt for failure to appear at his deposition or for failing to produce the requested documents before having the opportunity to challenge the subpoena duces tecum for deposition. See Briggs v. Salcines, 392 So.2d 263, 266 (Fla. 2d DCA 1980); see also Nussbaumer, 882 So.2d at 1072 (citing Briggs for the foregoing proposition). If Mr. Pineda is wrongfully required to produce his personal financial records or if he is wrongfully required to appear for deposition somewhere other than his county of residence, he would not be able to obtain relief from that harm on subsequent appeal. See Rappaport v. Mercantile Bank, 17 So.3d 902, 906 (Fla. 2d DCA 2009) (observing “that the disclosure of personal financial information may cause irreparable harm to a person forced to disclose it, in a case in which the information is not relevant” (quoting Straub v. Matte, 805 So.2d 99, 100 (Fla. 4th DCA 2002))); Triple Fish Am., Inc. v. Triple Fish Int'l, L.C., 839 So.2d 913, 914 n. 1 (Fla. 5th DCA 2003) (“Certiorari review is available to review trial court orders requiring that depositions take place at an erroneous location.”); see also Briggs, 392 So.2d at 266 (observing that a nonparty has no adequate remedy for harm caused by an erroneous discovery order on appeal from a final judgment because he or she is not a party to the proceeding in which the final judgment will be entered). Accordingly, the jurisdictional element for certiorari review is satisfied.

We also conclude that the circuit court's order departs from the essential requirements of the law. The circuit court prevented Paradise Property from challenging the subpoena or from filing any other pleadings in the case. In so doing, the circuit court adopted a drastically expansive view of the consequences of a default that departs from the essential requirements of the law.

A default admits liability as claimed in the pleading by the party...