Otis Elevator Company, a Connecticut for profit corporation, Coastal Elevator Service Corp., a Florida for profit corporation, Louis Carl Devincentis, individually etc. v. Catherine Craig-Myers, Individually and as Personal Representative of the Estate of Robert Myers , 264 So. 3d 408 ( 2019 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D18-2825
_____________________________
OTIS ELEVATOR COMPANY, a
Connecticut For Profit
Corporation, COASTAL ELEVATOR
SERVICE CORP., a Florida For
Profit Corporation, LOUIS CARL
DEVINCENTIS, individually and
as an employee of Otis Elevator
Company, JAMES DUDA,
individually and as an employee
of Otis Elevator Company,
DANIEL HUNTER, individually
and as an employee of Otis
Elevator Company, and ROBERT
MOWREY, individually and as an
employee of Otis Elevator
Company,
Petitioners,
v.
CATHERINE CRAIG-MYERS,
individually and as personal
representative of the Estate of
Robert Myers,
Respondent.
_____________________________
Petition for Writ of Certiorari—Original Jurisdiction.
February 28, 2019
PER CURIAM.
DENIED.
B.L. THOMAS, C.J., and ROBERTS, J., concur; OSTERHAUS, J.,
concurs with opinion.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
OSTERHAUS, J., concurring.
Petitioners mount a convincing argument that Respondent
provided no evidence establishing a prima facie case for the
application of the crime-fraud exception. They are correct that
before a trial court reviews attorney-client communications in
camera to determine whether the crime-fraud exception applies, it
must first determine that the party invoking the exception has
presented evidence establishing such a prima facie case. See First
Union Nat’l Bank v. Turney, 824 So. 2d 172, 183 (Fla. 1st DCA
2001), reh’g denied (Jan. 17, 2002); see also Butler, Pappas,
Weihmuller, Katz, Craig, LLP v. Coral Reef of Key Biscayne
Developers, Inc., 873 So. 2d 339, 342 (Fla. 3d DCA 2003); First
Union Nat’l Bank of Fla. v. Whitener, 715 So. 2d 979, 982 (Fla. 5th
DCA 1998). Here, there was no evidence of an attorney’s advice
being sought to aid the client’s crime or fraud. And so, in camera
review of the privileged documents should not have been ordered.
See Fla. Mining & Materials Corp. v. Cont’l Cas. Co., 556 So. 2d
518, 519 (Fla. 2d DCA 1990) (holding that a party “must allege and
produce prima facie evidence that petitioners affirmatively sought
the advice of counsel to procure a fraud” and declaring that a ruling
that evidence of fraud itself suffices “would literally eliminate the
attorney-client privilege in any suit where there was any
allegation of fraud or misrepresentation”).
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In spite of this apparent error, however, certiorari relief is not
available right now to fix it. Because the trial court has not ordered
anything to be disclosed to Respondent, nor determined if
Respondent or her counsel will ever see any of the privileged
documents, certiorari relief is premature. See Poston v. Wiggins,
112 So. 3d 783, 786 (Fla. 1st DCA 2013) (citing Cape Canaveral
Hosp., Inc. v. Leal, 917 So. 2d 336, 339-40 (Fla. 5th DCA 2005)
(denying as premature a certiorari petition seeking review of an
order requiring the submission of documents for an in camera
inspection)).
_____________________________
Kenneth B. Bell and Lauren V. Purdy of Gunster Yoakley &
Stewart, P.A., Tallahassee, for Petitioners.
Philip J. Padovano of Brannock & Humphries, Tallahassee, and
Maegen Peek Luka of Brannock & Humphries, Tampa; Sidney L.
Matthew of Sidney L. Matthew, P.A., Tallahassee, for Respondent.
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