Miami Dade College v. Del Pino Allen , 271 So. 3d 1194 ( 2019 )


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  •        Third District Court of Appeal
    State of Florida
    Opinion filed April 24, 2019.
    Not final until disposition of timely filed motion for rehearing.
    ________________
    No. 3D18-2218
    Lower Tribunal No. 15-25946
    ________________
    Miami Dade College,
    Petitioner,
    vs.
    Isabel del Pino Allen,
    Respondent.
    A Writ of Certiorari to the Circuit Court for Miami-Dade County, Miguel
    M. De La O, Judge.
    Allen, Norton & Blue, P.A., and Luke Savage, for petitioner.
    Isabel del Pino Allen, in proper person.
    Before SALTER, LINDSEY, and MILLER, JJ.
    LINDSEY, J.
    Petitioner Miami Dade College seeks certiorari review of the trial court’s
    order denying its Motion for Protective Order, which sought to prevent Respondent
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    Isabel del Pino Allen from deposing the College’s President, Eduardo J. Padron,
    Ph.D. Because the trial court failed to find (1) that Allen had exhausted all
    discovery tools prior to seeking President Padron’s deposition and (2) that the
    information Allen sought from President Padron was necessary and unavailable
    from another source, we grant the petition and quash the order under review.
    I.       PROCEDURAL AND FACTUAL BACKGROUND
    On November 6, 2015, Allen sued the College, alleging, inter alia, that she
    was terminated from her position as a faculty member in violation of Florida’s
    Whistle-blower’s Act. The petition before us stems from Allen’s attempt to depose
    President Padron in order to question him about two letters Allen sent disclosing
    the College’s purported violations.1 In December 2015 and January 2016, Allen
    served interrogatories on the College. Allen did not direct her interrogatories to
    President Padron, and she did not seek information concerning the letters or
    President Padron’s alleged personal involvement in her termination.
    On February 20, 2018, Allen filed an Amended Complaint with three
    additional counts and four new defendants: Drs. Eduardo Padron, Lenore Rodicio,
    Malou Harrison, and Joy Ruff “in their respective official capacity as president of
    MDC, provost of MDC, president of the North Campus of MDC, and MDC's
    Coordinator of Equal Opportunity Programs.” The College moved to dismiss the
    1   Allen did not mention these letters or President Padron in her initial complaint.
    2
    new counts and also moved to strike Padron, Rodicio, Harrison, and Ruff as
    defendants, arguing that there was no stated cause of action for suit against any of
    them. On June 26, 2018, the trial court granted the College’s motion to dismiss
    two of the new counts (Counts II and III) without prejudice.2
    On July 9, 2018, Allen filed an “Amended Counts II and III of Existing
    Complaint,” attempting to restate two of the three recently dismissed claims. Allen
    listed Padron, Rodicio, Harrison, and Ruff as defendants in their “official
    capacity.” The College again moved to dismiss. According to the College, its
    motion to dismiss remains pending.
    On September 28, 2018, Allen filed a Notice of taking Deposition, seeking a
    videotaped deposition of President Padron.       The College filed a Motion for
    Protective Order, arguing that Allen could not show that President Padron had
    “particularized, first-hand knowledge that cannot be obtained from any other
    source[.]” On October 11, 2018, the trial court entered an order denying the
    College’s motion, finding that “Dr. Pardon [sic] has particularized first-hand
    knowledge of material facts.”     The court further determined that Allen was
    “entitled to depose Dr. Padron as to his receipt of her letters and any knowledge he
    has about the circumstances surrounding her termination.”3 Following the denial
    2 Allen voluntarily withdrew the third new count (Count IV), which was a
    defamation claim against Ruff.
    3 The trial court made these factual findings and entered this order without
    conducting a hearing, evidentiary or otherwise.
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    of its Motion for Reconsideration, the College petitioned this Court for certiorari
    review of the trial court’s order denying its Motion for Protective Order.
    II.   ANALYSIS
    A party seeking certiorari review of a non-final order must first demonstrate
    that the order under review would result in a material injury that cannot be
    corrected on appeal (often referred to as “irreparable harm”). See Miami-Dade
    Cty. v. Dade Cty. Police Benev. Ass'n, 
    103 So. 3d 236
    , 238 (Fla. 3d DCA 2012).
    A finding of irreparable harm is jurisdictional and must be addressed before the
    merits. 
    Id.
     If the jurisdictional requirement is satisfied, petitioner must then
    demonstrate that the trial court departed from the essential requirements of the law.
    
    Id.
    We have jurisdiction to review the trial court’s discovery order. See 
    id.
    (“Orders granting discovery requests have traditionally been reviewed by certiorari
    because once discovery is wrongfully granted, the complaining party is beyond
    relief.” (quoting Horne v. Sch. Bd. of Miami-Dade Cty., 
    901 So. 2d 238
    , 240 (Fla.
    1st DCA 2005))). We therefore address the merits of the Petition—whether the
    trial court departed from the essential requirements of the law when it denied the
    College’s Motion for Protective Order.
    “Before requiring the head of a state agency to testify, a trial court must
    find: 1) the party seeking the testimony has exhausted all discovery tools in an
    4
    attempt to obtain the information sought; and 2) the testimony sought is necessary
    and unavailable from other witnesses.”4       Florida Office of Ins. Regulation v.
    Florida Dep’t of Fin. Servs., 
    159 So. 3d 945
    , 947 (Fla. 1st DCA 2015) (citing
    Dep’t of Agric. & Consumer Servs. v. Broward Cty., 
    810 So. 2d 1056
    , 1058 (Fla.
    1st DCA 2002); Dep’t of Health & Rehabilitative Servs. v. Brooke, 
    573 So. 2d 363
    , 371 (Fla. 1st DCA 1991)); see also Dade Cty. Police Benev. Ass'n, 103 So. 3d
    at 239.
    Because President Padron is an agency head,5 the trial court was required to
    find (1) that Allen had exhausted all other discovery tools prior to seeking
    President Padron’s deposition and (2) that President Padron’s testimony was
    necessary and unavailable from other witnesses. Although the order under review
    found that President Padron has particularized knowledge of material facts, it is
    silent as to whether Allen exhausted all discovery tools or whether President
    4 “Some state and federal courts refer to this doctrine as the ‘apex’ doctrine . . . .”
    Florida Office of Ins. Regulation, 159 So. 3d at 950. Our application of this
    doctrine is limited to the issue before us involving the deposition of a
    governmental officer. See Dade Cty. Police Benev. Ass'n, 103 So. 3d at 239
    (applying the apex doctrine on certiorari to review an order requiring the mayor of
    Miami-Dade County to testify in an unfair labor practice proceeding); cf. Gen. Star
    Indem. Co. v. Atl. Hosp. of Fla., LLC, 
    57 So. 3d 238
    , 239 n.3 (Fla. 3d DCA 2011)
    (declining to apply the apex doctrine to corporate officers but recognizing that the
    doctrine has been applied in Florida “in cases involving the deposition of senior
    state governmental officers”).
    5 Florida’s Administrative Procedures Act defines “agency head” as “the person or
    collegial body in a department or other governmental unit statutorily responsible
    for final agency action.” § 120.52(3), Fla. Stat. (2018).
    5
    Padron’s testimony was necessary and unavailable from another source. Based on
    our review of the record, we determine that Allen did not comply with the
    exhaustion requirement.    Moreover, Allen concedes that at least some of the
    information she seeks regarding President Padron’s involvement was available
    from other witnesses.     Therefore, the trial court departed from the essential
    requirements of the law when it denied the College’s Motion for Protective Order.
    In her Response to the College’s Petition, Allen states that she has
    “concluded all other discovery,” including serving two sets of interrogatories and
    taking depositions “of the other named defendants in the case.” While it is true
    that Allen served two sets of interrogatories on the College, not a single
    interrogatory was directed to President Padron, nor did the interrogatories seek
    information concerning the letters that Allen sent to President Padron or President
    Padron’s alleged personal involvement in Allen’s termination. Further, Allen did
    not serve requests for production or any other discovery directed to President
    Padron concerning the letters or his knowledge of the circumstances surrounding
    her termination. With respect to the depositions of the other named defendants,
    Allen seems to concede, in her response to the College’s Motion for Protective
    Order, that she was able to obtain some of the information she seeks from
    President Padron from other witnesses: “Allen has already presented ample
    6
    evidence to prove that MDC and Defendant Padron violated Florida’s Whistle-
    blower’s Act . . . .”
    In short, Allen has not shown, and the trial court did not find, that she had
    exhausted all other discovery tools in an attempt to obtain the information she
    seeks from President Padron or that the information was necessary and unavailable
    from another source. We therefore grant the Petition for Writ of Certiorari and
    quash the order under review.
    Petition granted; order quashed.
    SALTER, J., concurs.
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    Miami Dade College v. Isabel del Pino Allen
    Case No. 3D18-2218
    MILLER, J. (specially concurring)
    While I agree with the result reached by the majority, I see no principled
    basis for broadly invoking reference to the “apex doctrine.”          Thus, I write
    separately.
    Compelling Dr. Eduardo Padron, an agency head, to appear for deposition,
    in his official capacity, without the requisite showing of necessity, detrimentally
    affects “the efficient operation of the [executive] branch and government as a
    whole,” thus, creating material injury irremediable on postjudgment appeal.
    Miami-Dade Cty. v. Dade Cty. Police Benevolent Ass’n, 
    103 So. 3d 236
    , 238 (Fla.
    3d DCA 2012); see also Fla. Office of Ins. Regulation v. Fla. Dep’t of Fin. Servs.,
    
    159 So. 3d 945
    , 952-53 (Fla. 1st DCA 2015) (“The time spent preparing and
    testifying in this case will take away from the Insurance Commissioner's duties and
    responsibilities as an agency head for the state of Florida, and the precedent served
    by compelling him to testify will create ‘a significant deterrent to qualified
    candidates seeking public service positions.’”) (citation omitted); City of Sterling
    Heights Gen. Emps.’ Ret. Sys. v. Prudential Fin., Inc., No. 2:15-mc-0146 WBS
    AC, at *2 (E.D. Cal. Dec. 24, 2015) (“[B]ecause the head of a government agency
    could have all of his or her time monopolized by discovery in lawsuits to which
    8
    they are not even parties, if they could be compelled to testify every time the
    agency carried out its responsibilities,” restraints on such depositions are proper.).
    The trial court strayed from the essential requirements of law by allowing the
    deposition to proceed, despite Allen’s failure to demonstrate that Dr. Padron was
    uniquely able to provide relevant information, which could not be obtained from
    other sources, and that she had exhausted other means of discovery. See Dep’t of
    Agric. and Consumer Servs. v. Broward Cty., 
    810 So. 2d 1056
    , 1058 (Fla. 1st
    DCA 2002) (“[T]he agency head should not be subject to deposition, over
    objection, unless and until the opposing parties have exhausted other discovery and
    can demonstrate that the agency head is uniquely able to provide relevant
    information which cannot be obtained from other sources.”); see also Pardo v.
    State, 
    596 So. 2d 665
    , 666 (Fla. 1992) (“[I]n the absence of interdistrict conflict,
    district court decisions bind all Florida trial courts.”); see, e.g., Siegle v. Lee Cty.,
    
    198 So. 3d 773
    , 777 (Fla. 2d DCA 2016) (“No such contrary binding authority
    exists . . . the circuit court’s ruling . . . constituted a departure from the essential
    requirements of the law.”); State v. Walsh, 
    204 So. 3d 169
    , 171 (Fla. 1st DCA
    2016) (“The circuit court [engaged in profound] error by . . . fail[ing] to follow
    binding precedent of a sibling court.”). Thus, I agree certiorari relief is warranted.
    However, “[b]ecause ‘[t]his is a sufficient ground for deciding this case . . . the
    cardinal principle of judicial restraint . . . counsels us to go no further.” Pintado v.
    9
    Miami-Dade Cty. Hous. Agency, 
    20 So. 3d 929
    , 933 (Fla. 3d DCA 2009)
    (Shepherd, J., concurring) (citation omitted); see also Menendez v. W. Gables
    Rehab. Hosp., LLC, 
    123 So. 3d 1178
    , 1181 n.2 (Fla 3d DCA 2013) (“[I]f it is not
    necessary to decide more, it is necessary not to decide more.”) (alteration in
    original) (quoting PDK Labs., Inc. v. U.S. D.E.A., 
    362 F.3d 786
    , 799 (D.C. Cir.
    2004) (Roberts, J., concurring)).
    Nevertheless, the majority assigns the nomenclature “apex doctrine” to the
    above-cited standard, and in doing so, conflates the apex doctrine, a judicially-
    created rule shielding upper level executives and corporate officials from
    discovery, with Florida’s two-pronged agency-head deposition test. As a threshold
    matter, the apex doctrine was not relied upon in the proceedings below or
    advanced by the parties in their briefs. As “[a] party may not rely on this Court to
    make his arguments for him,” sua sponte reliance upon the apex doctrine
    contravenes principles of judicial restraint. Rorke v. Savoy Energy, LP, 
    677 N.W.2d 45
    , 51 (Mich. Ct. App. 2003); see also Wright v. City of Miami Gardens,
    
    200 So. 3d 765
    , 780 (Fla. 2016) (Canady, J., concurring in result only) (“It is not
    within the province of [this Court] to overturn the ruling of a lower court on a
    ground that has not been urged by the party challenging the lower court’s
    decision.”); Miami-Dade Cty. v. Omnipoint Holdings, Inc., 
    863 So. 2d 195
    , 200-01
    (Fla. 2003) (holding the District Court of Appeal “exceeded the proper scope of . . .
    10
    review when it, sua sponte” passed on “an issue neither party raised in any phase
    of the proceedings.”); Allan D. Vestal, Sua Sponte Consideration in Appellate
    Review, 
    27 Fordham L. Rev. 477
    , 494 (1958) (“When considered sua sponte . . .
    [n]either party has had any opportunity to consider the matter, and both are now
    bound by res judicata grounded on considerations which represent not well
    reasoned positions for the litigants, but rather only the fortuitous decision of a
    wayward court.”).
    Further, numerous opinions, including those from this Court, acknowledge
    that the apex doctrine has yet to be adopted in Florida. See Remington Lodging &
    Hosp., LLC v. Southernmost House, LTD., 
    206 So. 3d 764
    , 765 n.1 (Fla. 3d DCA
    2016) (“No Florida appellate decision has adopted the apex doctrine.”); Racetrac
    Petroleum, Inc. v. Sewell, 
    150 So. 3d 1247
    , 1251 n.8 (Fla. 3d DCA 2014) (“The
    parties stipulate that Florida has not adopted the ‘apex doctrine.’”); Gen. Star
    Indem. Co. v. Atl. Hosp. of Fla., LLC, 
    57 So. 3d 238
    , 239 n.3 (Fla. 3d DCA 2011)
    (noting “this Court has not expressly adopted the ‘apex doctrine.’”); Citigroup Inc.
    v. Holtsberg, 
    915 So. 2d 1265
    , 1269 (Fla. 4th DCA 2005) (“[N]o reported Florida
    appellate court opinion has expressly adopted the [apex] doctrine.”).       Finally,
    under the apex deposition doctrine, the movant is required to append an affidavit
    denying knowledge of relevant facts. Holtsberg, 915 So. 2d at 1270 (“[E]ven if the
    doctrine were to apply, the instant petition would have to be denied because [the]
    11
    motion was not accompanied by the officials’ affidavits denying any knowledge of
    relevant facts.”). Here, Dr. Padron did not file such an affidavit, nor could he,
    according to the findings of the trial court.
    Accordingly, although I agree we should grant a writ of certiorari and quash
    the discovery order entered below, to the extent the majority suggests existing
    precedent reflects the adoption of the apex doctrine, I decline to join the majority’s
    reasoning.
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