Toomey v. the Northern Trust Co., Etc. , 2016 Fla. App. LEXIS 391 ( 2016 )

Third District Court of Appeal
State of Florida
Opinion filed January 12, 2016.
Not final until disposition of timely filed motion for rehearing.
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No. 3D15-2813
Lower Tribunal No. 13-4597
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Kristen N. Toomey,
Petitioner,
vs.
The Northern Trust Co., Trustee, etc., et al.,
Respondents.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, Bernard
S. Shapiro, Judge.
Crabtree & Auslander, and Charles M. Auslander and John G. Crabtree and
Brian C. Tackenberg; The Kelley Law Firm and Rohan Kelley and Shane Kelley
(Ft. Lauderdale), for petitioner.
Goldman Felcoski & Stone and Brian Felcoski and Robert W. Goldman;
Laird A. Lile (Naples); Nancy Pond Halula; H. Dockery Teele, Jr. (North
Carolina); Horack Talley Pharr & Lowndes, and Kimberly Sullivan (North
Carolina); William V. Linne (Pensacola); The Virgil Law Firm and J. Eric Virgil;
The Nguyen Law Firm and Hung V. Nguyen, for respondents.
Before SALTER, LOGUE and SCALES, JJ.
SALTER, J.
Kristen Toomey seeks a writ of certiorari quashing a circuit court protective
order preventing the deposition of two witnesses noticed by the petitioner in an
effort to preserve their testimony. We grant the petition and quash the order.1
In the underlying case, The Northern Trust Company, as trustee of the James
L. Knight Charitable Term Trust under agreement dated March 26, 1969,2 is the
plaintiff in an action seeking construction of the Trust Agreement as provided in
section 736.0201(4)(e), Florida Statutes (2015). Without fully detailing the alleged
ambiguities in the Trust Agreement or considering the legal sufficiency of the
second amended complaint, it is sufficient to characterize the case as one
principally seeking a determination of the manner in which the terminating
distributions from the Knight Trust are to be made to James L. Knight’s great-
grandchildren.
1 We granted the petitioner’s motion to expedite the filing and service of responses
and a reply, as well as our consideration of the issues raised in the petition.
Consistent with the expedited briefing and consideration, we issued an order
granting the petition and quashing the protective order on January 8, 2016, noting
in that order that our more detailed opinion would follow.
2 We refer to The Northern Trust Company in this capacity as “Trustee,” the trust
itself as the “Knight Trust,” and the trust instrument as the “Trust Agreement.”
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The petitioner in this case is one of the great-grandchildren. She is the
granddaughter of Barbara Knight Toomey, who is in turn one of the four surviving
daughters of James L. Knight. Mr. Knight passed away in 1991.
Barbara Knight Toomey is 78 years old and, according to the undisputed
affidavit of her treating physician, suffers from end-stage chronic obstructive
pulmonary disease and emphysema, “both of which are life threatening at this
point in time.” Her treating physician has also expressed the opinions, in the same
affidavit, that a reasonable estimate of her life expectancy is six months (as of
November 6, 2015), and that if she “contracts any pulmonary infection such as
influenza or pneumonia, it could result in her death.”
The petitioner has alleged that Barbara Knight Toomey and Edward Olson
are two living witnesses who had direct conversations with James L. Knight
regarding his intentions in executing the Trust Agreement and regarding the
administration of the Trust. Mr. Olson, an attorney, is also in his seventies. The
petitioner noticed Barbara Knight Toomey and Edward Olson for videotaped
deposition in December 2015, a time when five of the beneficiary defendants in the
case had moved to dismiss the second amended complaint.
Three of those five beneficiary defendants filed a motion for a protective
order striking the notices of deposition of Ms. Toomey and Mr. Olson and staying
all discovery pending rulings on the pending motions to dismiss. The trial court
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granted the motion, apparently in the belief that the motions to dismiss could be
heard in short order and the depositions could proceed after that (if the motions to
dismiss were denied).
Unfortunately, defense counsel coordination and scheduling difficulties
pushed back the hearing on the motions to dismiss to January 28, 2016.
Understandably concerned by the delay, the petitioner (ultimately joined by
thirteen other beneficiary defendants) filed the present petition for certiorari and a
motion to expedite this proceeding on December 11, 2015.
Analysis
“Ordinarily, orders denying discovery are not reviewable by certiorari
because the harm from such orders can generally be rectified on appeal.” Royal
Caribbean Cruises, Ltd. v. Cox, 974 So. 2d 462, 465 (Fla. 3d DCA 2008) (citing
Ruiz v. Steiner, 599 So. 2d 196, 197 (Fla. 3d DCA 1992)). However, an exception
to this general rule applies where, as in the present case, “discovery orders cause
irreparable injury to the petitioner.” Id. This Court has held that “the denial of
leave to perpetuate testimony by a terminally ill person is a matter which may be
entertained by petition for writ of certiorari.” Robert v. W.R. Grace & Co., 639
So. 2d 1056, 1057 (Fla. 3d DCA 1994) (citing Martin-Johnson, Inc. v. Savage, 509
So. 2d 1097, 1098-99 (Fla.1987)).
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The depositions were plainly within the general scope of discovery relating
to the allegations in the second amended complaint. Fla. R. Civ. P. 1.280(b). Both
of the witnesses consented to be deposed in Naples, Florida. We are not persuaded
by the argument of a minority of the beneficiary defendants that the motion to
dismiss might be granted, thereby mooting the deposition controversy. The
attorney’s fees and court reporting costs for two videotaped depositions on a
discrete set of issues pale in comparison to the prospect that the testimony of two
potentially important witnesses may be irrevocably lost.
Especially 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.”
Ruiz, supra, at 198 (citing Travelers Indemnity Co. v. Hill, 388 So. 2d 648, 650
(Fla. 5th DCA 1980)).
And the pending motions to dismiss might be granted in a ruling allowing a
further amendment. What then? Even when a complaint is dismissed, if leave to
amend is granted, the action itself is still alive. Branch v. O’Selmo, 147 So. 3d
1089, 1093 (Fla. 3d DCA 2014). If this small group of defendants ultimately
prevails in having the second (or later) amended complaint dismissed with
prejudice, or in the improbable event that the videotaped depositions were a
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frivolous exercise, those defendants are not without recourse to recover their
expenditures.
The defendants who sought and obtained the protective order provided
nothing to controvert Barbara Knight Toomey’s lamentable medical prognosis.
They failed to establish any of the grounds under Florida Rule of Civil Procedure
1.280(c) (annoyance, embarrassment, oppression, undue burden or expense)
warranting a protective order.
For these reasons, we find that the petitioner has demonstrated a basis for
granting certiorari and quashing the protective order and stay of discovery as to
Barbara Knight Toomey and Edward Olson.
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