AMERICAN PRIME TITLE SERVICES, LLC v. ZHI WANG ( 2021 )

Third District Court of Appeal
State of Florida
Opinion filed February 3, 2021.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D20-1153
Lower Tribunal No. 19-4213
________________
American Prime Title Services, LLC,
Petitioner,
vs.
Zhi Wang, et al.,
Respondents.
On Petition for Writ of Certiorari from the Circuit Court for Miami-Dade
County, Veronica A. Diaz, Judge.
Waugh Law, P.A., and Morgan L. Fayocavitz, and Christian W. Waugh
(Orlando), for petitioner.
Payton & Associates, LLC, and Harry A. Payton, and Susan M.
Mohorcic, for respondent Zhi Wang.
Before SCALES, MILLER, and GORDO, JJ.
MILLER, J.
Petitioner, American Prime Title Services, LLC, seeks certiorari review
of a lower court order denying a motion to compel the disclosure of any
settlement agreements executed between respondent, Zhi Wang, and others
in the proceedings below. In the instant petition, American Prime asserts the
trial court effectively eviscerated its affirmative defense of setoff by denying
it access to the settlement amounts prior to a finding of liability. At this
juncture, because the record fails to demonstrate the requisite harm
irremediable on plenary appeal to support relief in certiorari, we dismiss.
BACKGROUND
In 2017, Wang contracted to sell his Miami condominium unit to Sadie
Bofill and Orlando Rodriguez. In the days leading up to the closing, Wang’s
attorney and the title company, Capital Title Group, Inc., were unwittingly
deceived by an electronic impersonation attack. As a result, the funds
advanced for the purchase price of the condominium were wired to a
fraudulent account and never recovered.
Wang filed a lawsuit, grounded in negligence, against American Prime,
acting as settlement agent in the transaction, Capital Title, and his attorney
and her law firm, and, for breach of contract, against the buyers, seeking to
recoup the intercepted monies. In his complaint, Wang initially alleged joint
and several liability against American Prime and Capital Title, but, upon
2
American Prime’s motion, the trial court struck this theory of liability,
determining, instead, that fault would be apportioned among the parties.
Wang settled his claims against his attorney, her law firm, and Capital
Title and then amended the complaint to add a claim for attorney’s fees,
leaving only the buyers and American Prime as active defendants.
Thereafter, American Prime sought production of the settlement amounts.
Wang objected, asserting the amounts were confidential and irrelevant.
American Prime subsequently answered the amended complaint, alleging a
litany of affirmative defenses, including setoff, and formally moved to compel
the settlement agreements, prior to a finding of liability.
Following a duly noticed hearing, the lower court denied the motion,
without prejudice, finding, “[o]nce liability is determined as to [American
Prime] the court will review the matter upon motion and notice of hearing.”
This petition ensued.
STANDARD OF REVIEW
“Common law certiorari lies at the appellate margin, functioning as a
safety net for matters that otherwise would fall through the gaps in Florida’s
appellate system.” Matthew J. Conigliaro, The Continuing Story of Certiorari,
83 Fla. B.J. 38, 38 (2009) (citation omitted). “The judicial policy in favor of
limited certiorari review is based on the notion that piecemeal review of
3
nonfinal trial court orders will impede the orderly administration of justice and
serve only to delay and harass.” Jaye v. Royal Saxon, Inc., 720 So. 2d 214,
215 (Fla. 1998) (citing William A. Haddad, The Common Law Writ of
Certiorari in Florida, 29 U. Fla. L. Rev. 207, 222 (1977)).
Accordingly, “[c]ertiorari is an extraordinary remedy that is available
only in limited circumstances.” Charles v. State, 193 So. 3d 31, 32 (Fla. 3d
DCA 2016). It “is warranted when a nonfinal order: (1) cannot be remedied
on postjudgment appeal, (2) results in material injury for the remainder of the
case, and (3) departs from the essential requirements of law.” A.H. v. Dep’t
of Child. & Fams., 277 So. 3d 704, 706-07 (Fla. 3d DCA 2019) (citing
Fernandez-Andrew v. Fla. Peninsula Ins. Co., 208 So. 3d 835, 837 (Fla. 3d
DCA 2017)). “The first two prongs of the analysis are jurisdictional.” Dade
Truss Co. Inc. v. Beaty, 271 So. 3d 59, 62 (Fla. 3d DCA 2019) (citation
omitted). “If the jurisdictional prongs of the standard three-part test are not
fulfilled, then the petition should be dismissed” as certiorari does not lie.
Parkway Bank v. Fort Myers Armature Works, Inc., 658 So. 2d 646, 649 (Fla.
2d DCA 1995). This well-established principle compels our decision today.
LEGAL ANALYSIS
Because the scope, sequence, and timing of discovery are conducted
under the able supervision of the lower tribunal, a great deal must, of
4
necessity, be left to its sound discretion. Friedman v. Heart Inst. of Port St.
Lucie, Inc., 863 So. 2d 189, 193 (Fla. 2003). Further, any abuse of discretion
in refusing to compel discovery is ordinarily rectifiable upon plenary appeal.
Ruiz v. Steiner, 599 So. 2d 196, 197 (Fla. 3d DCA 1992); see also Palmer v.
WDI Sys., Inc., 588 So. 2d 1087, 1088 (Fla. 5th DCA 1991). Consequently,
“certiorari relief is an ‘extremely rare’ remedy that will be provided in ‘very
few’” such cases. Bd. of Trs. of the Internal Improvement Tr. Fund v. Am.
Educ. Enters., LLC, 99 So. 3d 450, 455 (Fla. 2012) (citation omitted); see
Power Plant Ent., LLC v. Trump Hotels & Casino Resorts Dev. Co., LLC, 958
So. 2d 565, 567 (Fla. 4th DCA 2007); Neeley v. CW Roberts Contracting
Inc., 948 So. 2d 844, 844 (Fla. 1st DCA 2007); Duran v. MFM Grp., Inc., 841
So. 2d 500, 501 (Fla. 3d DCA 2003).
One exceedingly narrow exception to the general rule exists where “the
requested discovery is relevant or is reasonably calculated to lead to the
discovery of admissible evidence and the order denying that discovery
effectively eviscerates a party’s claim, defense, or counterclaim.”
Westerbeke Corp. v. Atherton, 224 So. 3d 816, 821 (Fla. 2d DCA 2017)
(quoting Giacalone v. Helen Ellis Mem’l Hosp. Found., Inc., 8 So. 3d 1232,
1234 (Fla. 2d DCA 2009)). Under these particular circumstances, certiorari
relief is appropriate because the harm “is not remediable on appeal [since]
5
there is no practical way to determine after judgment how the requested
discovery would have affected the outcome of the proceedings.” Giacalone,
8 So. 3d at 1234-35 (citations omitted).
In the instant petition, American Prime contends this exception applies,
because the denial of discovery of the settlement amounts wholly
eviscerates its affirmative defense of setoff. Under Florida law, setoff is
statutorily circumscribed. See § 46.015(2), Fla. Stat. (2020); see also
§768.041(2), Fla. Stat. (2020); § 768.31(5)(a), Fla. Stat. (2020). The setoff
statutes are designed to “prevent an award of double damages.” Acadia
Partners, L.P. v. Tompkins, 759 So. 2d 732, 739 (Fla. 5th DCA 2000). Thus,
their application “presupposes the existence of multiple defendants jointly
and severally liable for the same damages.” McCalla v. E.C. Kenyon Constr.
Co., Inc., 183 So. 3d 1192, 1197 (Fla. 1st DCA 2016) (quoting D’Angelo v.
Fitzmaurice, 863 So. 2d 311, 314 (Fla. 2003)).
Against this background, we turn our attention to the procedural
aspects of the relevant setoff statutes. Section 768.041(2), Florida Statutes,
provides, in pertinent part:
At trial, if any defendant shows the court that the plaintiff, or any
person lawfully on her or his behalf, has delivered a release or
covenant not to sue to any person, firm, or corporation in partial
satisfaction of the damages sued for, the court shall set off this
amount from the amount of any judgment to which the plaintiff
6
would be otherwise entitled at the time of rendering judgment and
enter judgment accordingly.
Similarly, section 46.015(2), Florida Statues, contains the following
provision:
At trial, if any person shows the court that the plaintiff, or his or
her legal representative, has delivered a written release or
covenant not to sue to any person in partial satisfaction of the
damages sued for, the court shall set off this amount from the
amount of any judgment to which the plaintiff would be otherwise
entitled at the time of rendering judgment.
Significantly, both statutes concurrently prohibit “the admission at trial of any
evidence of settlement or dismissal of a defendant.” Holmes v. Area Glass,
Inc., 117 So. 3d 492, 494 (Fla. 1st DCA 2013). Our high court has
determined this unambiguous prohibition “admits no exceptions, and
violation of [it] . . . is reversible error.” Id. at 494 (citing Saleeby v. Rocky
Elson Constr., Inc., 3 So. 3d 1078, 1080 (Fla. 2009)).
In reconciling these two seemingly competing provisions, trial courts
defer claims of setoff predicated upon settlement as unripe until such time
as liability has been found, but before judgment is rendered. See Allen v.
State Farm Fla. Ins. Co., 198 So. 3d 871, 874 (Fla. 2d DCA 2016) (“[A] setoff,
if any, would not come into play until the jury found State Farm liable and
determined the amount of damages.”); Anderson v. Vander Meiden ex rel.
Duggan, 56 So. 3d 830 (Fla. 2d DCA 2011) (finding that where liability had
7
been established settlement documents were discoverable); see also
Dionese v. City of W. Palm Beach, 500 So. 2d 1347, 1348 (Fla. 1987) (“A
post-trial hearing was held to determine the proper method of set-off as
required by section 768.041(2), Florida Statutes.”); Addison Constr. Corp. v.
Vecellio, 240 So. 3d 757, 768 (Fla. 4th DCA 2018) (acknowledging setoff is
part of post-judgment proceedings as “[i]f courts were required to delve into
the scope of undifferentiated settlement agreements for the purposes of
making a setoff determination, then post-judgment proceedings would turn
into a second trial”); Nationsbank, N.A. v. KPMG Peat Marwick LLP, 813 So.
2d 964, 965 (Fla. 4th DCA 2002) (noting the “court adjusted the jury’s award
with setoffs” after trial); Anderson v. Ewing, 768 So. 2d 1161, 1166 (Fla. 4th
DCA 2000) (stating appellant should have requested a setoff in his post-trial
motion); Mikes v. City of Hollywood, 687 So. 2d 1381, 1383 (Fla. 4th DCA
1997) (describing the issue of setoff was determined during a post-trial
hearing). Indeed, as was observed by our sister court in Felgenhauer v.
Bonds, 891 So. 2d 1043, 1045 (Fla. 2d DCA 2004), setoff “is a determination
regarding damages to be made by the court after the verdict is rendered.”
(Citation omitted).
Here, the trial court was charged with carefully weighing the public
interest in protecting the confidentiality of the settlement process against the
8
countervailing need for disclosure, given the procedural posture of the
dispute. The case remains in its infancy and American Prime has not yet
been found liable. Evincing a comprehensive understanding of the
intricacies of the setoff statutes, the court penned a crucial caveat in the
challenged order, inviting the parties to relitigate the disclosure of the
settlement amounts following a finding of liability. This passage,
demonstrating “the epitome of the exercise of judicial discretion,” indubitably
paves the way for future litigation regarding the amounts after liability is found
but before damages are determined. State v. Moss, 194 So. 3d 402, 409
(Fla. 3d DCA 2016) (Shepherd, J., dissenting). Further, any error associated
with the timing and sequencing of discovery is subject to plenary review.
Given these circumstances, we conclude American Prime has failed to
make a threshold showing of harm irremediable on appeal. Thus, restrained
1
by our scope of review, we dismiss the petition for lack of jurisdiction.
Petition dismissed.
GORDO, J., concurs.
1
In the absence of irreparable harm, we decline to address the substantive
issues raised in the dissent. See PDK Labs., Inc. v. U.S. D.E.A., 362 F.3d
786, 799 (D.C. Cir. 2004) (Roberts, J. concurring) (“[I]f it is not necessary to
decide more, it is necessary not to decide more.”).
9
AMERICAN PRIME TITLE SERVICES, LLC V. WANG, 3D20-1153
SCALES, J. (dissenting)
I respectfully dissent because I would deny, rather than dismiss,
American Prime Title Services, LLC’s (“American Prime”) petition for writ of
certiorari. The trial court’s discovery order prevents American Prime access
to the settlement information regarding the settlements reached between
plaintiff Zhi Wang and American Prime’s co-defendants in this action. I am
persuaded that the order eviscerates American Prime’s affirmative defense
of setoff, resulting in irreparable harm to American Prime that cannot be
remedied on plenary appeal. Nevertheless, because the trial court relied
upon binding precedent in entering the discovery order, see Allen v. State
Farm Florida Insurance Co., 198 So. 3d 871 (Fla. 2d DCA 2016), the trial
court did not depart from the essential requirements of the law. I would,
however, certify conflict with Allen as well as a case relied upon by the Allen
court, Wal-Mart Stores, Inc. v. Strachan, 82 So. 3d 1052 (Fla. 4th DCA
2011).
I. RELEVANT BACKGROUND, THE TRIAL COURT ORDER, AND
THE MAJORITY OPINION
Wang sued a multitude of defendants, alleging that the defendants
were negligent in allowing a thief to steal the purchase money the buyer had
paid for Wang’s property. Wang’s damages (alleged in his amended
complaint to be $158,508.99) are fixed, liquidated and entirely economic in
nature. 2 Wang settled with most of the defendants, leaving American Prime,
the transaction’s settlement agent, as the lone defendant. Notwithstanding
American Prime’s affirmative defense alleging entitlement to a setoff – for
the amounts the settling defendants paid to Wang for the same negligence
claim pending against American Prime below – the trial court, relying upon
Allen, denied American Prime’s motion to compel Wang to produce the
settlement information.
In determining that the subject discovery order does not meet the
jurisdictional threshold for granting certiorari relief, the majority cites the
three substantive statutes – quoting two of them – that expressly provide
American Prime with a right to a setoff. Majority Opinion at *6-7. Yet, the
majority reasons that “any error associated with the timing and sequencing
of discovery is subject to plenary review.” Id. at *9. Specifically, both because
the case is in its infancy and the trial court’s discovery order states that it will
2
Because the defendants’ acts are alleged to have caused Wang to suffer a
single injury – i.e., the theft of sales proceeds to which Wang was entitled –
the defendants are “joint tortfeasors.” Grobman v. Posey, 863 So. 2d 1230,
1234 (Fla. 4th DCA 2003). Because the damages allegedly suffered by
plaintiff are definite, pecuniary losses, they are “economic damages.”
Alvarez v. All Star Boxing, Inc., 258 So. 3d 508, 512 (Fla. 3d DCA 2018).
11
revisit the setoff issue after liability is determined at trial, the majority
concludes that American Prime has suffered no irreparable harm, and
dismisses the petition for lack of jurisdiction. Id. I view the case somewhat
differently.
II. ANALYSIS
A. The Setoff Defense and Irreparable Harm
As the majority notes, three Florida statutes provide non-settling
defendants with the substantive right to have deducted from any judgment
entered against them, the amount paid by settling defendants for the same
claim made against the non-settling defendants:
• “At trial, if any person shows the court that the plaintiff . . . has
delivered a written release or covenant not to sue to any
person in partial satisfaction of the damages sued for, the
court shall set off this amount from the amount of any
judgment to which the plaintiff would be otherwise entitled at
the time of rendering judgment.” § 46.015(2), Fla. Stat. (2020).
• “At trial, if any defendant shows the court that the plaintiff . . .
has delivered a release or covenant not to sue to any person,
firm, or corporation in partial satisfaction of the damages sued
for, the court shall set off this amount from the amount of any
judgment to which the plaintiff would be otherwise entitled at
the time of rendering judgment and enter judgment
accordingly.” §768.041(2), Fla. Stat. (2020).
• “When a release or a covenant . . . is given in good faith to
one of two or more persons liable in tort for the same injury . .
. it reduces the claim against the others to the extent of any
amount stipulated by the release or the covenant, or in the
12
amount of the consideration paid for it, whichever is the
greater[.]” § 768.31(5)(a), Fla. Stat. (2020).
A non-settling defendant must allege entitlement to setoff as an
affirmative defense or the right is waived. See JoJo’s Clubhouse, Inc. v. DBR
Asset Mgmt., Inc., 860 So. 2d 503, 504 (Fla. 4th DCA 2003). And, the plain
text of the setoff statutes clearly dictates that the non-settling defendant
establish the right to setoff at trial. See § 46.015(2), Fla. Stat. (2020);
§768.041(2), Fla. Stat. (2020). While such settlement information is not
admissible to the jury, see § 46.15(3), Fla. Stat. (2020); § 768.041(3), Fla.
Stat. (2020), it is most assuredly admissible to the trial court to establish the
right to, and amount of, the setoff.
Indeed, in Addison Construction Corp. v. Vecellio, 240 So. 3d 757, 766
(Fla. 4th DCA 2018), the court carefully compared the text of the settlement
agreements to claims alleged by the plaintiff in order to determine the scope
of the setoff. Similarly, in Cornerstone SMR, Inc. v. Bank of America, N.A.,
163 So. 3d 565, 569 (Fla. 4th DCA 2015) and Escadote I Corp. v. Ocean
Three Limited Partnership, 211 So. 3d 1059, 1061 (Fla. 3d DCA 2016) the
text of the release documents proved critical to determining whether the
setoff defense was applicable.
Both the trial court and the majority leave open the door that the
requested settlement records may be relevant at a later stage in the litigation,
13
presumably only if, and when, American Prime is found liable. But this
conclusion ignores its practical implications. A non-settling defendant, such
as American Prime, that is being sued for liquidated, purely economic,
damages should know the extent of its potential liability sooner, rather than
later. Knowledge of such potential liability dictates both settlement and
litigation strategy. I fear the majority’s resolution allows Wang, with the
imprimatur of the court, to “hide the ball,” putting American Prime in an
unenviable position of defending this action from inception through a jury trial
without ever knowing the extent of its potential liability. Because American
Prime must plead entitlement to setoff as an affirmative defense and then
establish this right “at trial,” I cannot fathom how the harm caused by the trial
court’s discovery order preventing disclosure of Wang’s settlement
information is anything but “irreparable.”
I view the requested settlement documents in this case – where Wang
seeks to recover purely economic, finite, liquidated damages stemming from
the theft of sales proceeds – as essential to American Prime’s setoff defense.
I, therefore, conclude that the trial court’s discovery order eviscerates
American Prime’s setoff defense, resulting in irreparable harm to American
Prime that is not remediable on plenary appeal. See Giacalone v. Helen Ellis
Mem’l Hosp. Found., Inc., 8 So. 3d 1232, 1234 (Fla. 2d DCA 2009) (“[W]hen
14
the requested discovery is relevant or is reasonably calculated to lead to the
discovery of admissible evidence and the order denying that discovery
effectively eviscerates a party’s claim, defense, or counterclaim, relief by writ
of certiorari is appropriate.”) (footnote omitted). 3
B. No Departure from the Essential Requirements of Law
Even though I view the trial court’s discovery order as causing
American Prime irreparable harm, the trial court’s order does not depart from
the essential requirements of law. In fact, the trial court cited to, and relied
upon, precedent that was binding upon it. See Citizens Prop. Ins. Corp. v.
Sampedro, 275 So. 3d 744, 746 (Fla. 3d DCA 2019) (citing Pardo v. State,
596 So. 2d 665, 666 (Fla. 1992) and recognizing that the decision from
another Florida district court is “binding on the trial court in the absence of
binding authority from this Court”).
The discovery order (and, regrettably, the majority opinion) cites to
Allen, a case in which our sister court granted certiorari relief, and quashed
a discovery order that required the Allens (the plaintiffs) to disclose to State
Farm (the non-settling defendant) the settlement amounts received from a
3
To the extent a plaintiff has confidentiality concerns regarding requested
settlement documents, obviously, the trial can take necessary steps to
preserve any confidentiality associated with the settlement documents. See
Fla. R. Civ. P. 1.280(c).
15
settling defendant for what appears to have been the same sinkhole
damages claim that the Allens brought against State Farm. Allen, 198 So. 3d
at 875. The Allen court concluded that, unless such settlement documents
were relevant to the non-settling defendant’s liability, discovery of the
settlement documents was premature because such information would come
into play for setoff purposes only after a determination that State Farm was
liable. Id. at 873-74. Allen also makes short shrift of State Farm’s argument
that the information was needed to strategize settlement options: “[T]he
purpose of discovery is to obtain admissible evidence or information
reasonably calculated to lead to admissible evidence. Aiding State Farm with
its potential settlement strategy and ability to negotiate a favorable
settlement with the [plaintiffs] does not appear reasonably calculated to lead
to admissible evidence.” Id. at 874.
In light of Allen, American Prime faced an uphill battle in obtaining from
the trial court an order compelling Wang to disclose the amounts Wang has
received from the settling defendants. Indeed, the trial court was bound by
Allen and did not depart from the essential requirements of law by following
it.
C. Critique of Allen and Strachan
16
For the reasons stated above, I disagree with the Allen court’s
conclusion that settlement information is relevant only after there has been
a determination of the non-settling defendant’s liability. The plain text of the
substantive setoff statutes – requiring the setoff defense be established “[a]t
trial” 4 – makes the information plainly relevant; and it is certainly admissible,
even if not to the jury. Further, a defendant being sued for purely economic,
finite, liquidated damages is entitled to know the potential extent of that
liability at the earliest opportunity possible, and the Allen court’s dismissal of
the practical consequences of its ruling is unfortunate.
What is most troubling about Allen, though, is its citation to, without
appropriate qualification of, Wal-Mart Stores, Inc. v. Strachan, 82 So. 3d
1052 (Fla. 4th DCA 2011). Id. at 874-75. In Strachan, the plaintiffs sued for
damages resulting from a car accident involving an alleged tire failure.
Strachan, 82 So. 3d at 1053. The four defendants were the car manufacturer,
the car dealer, the tire manufacturer, and Wal-Mart which sold the tire to the
plaintiffs. Id. At mediation, the plaintiffs settled with all defendants except
Wal-Mart. Id. Citing its entitlement to a setoff of the amounts paid by the
settling defendants, Wal-Mart sought to compel the plaintiffs to disclose the
settlement amounts they had been paid by the settling defendants. Id. After
4
§ 46.015(2), Fla. Stat. (2020); §768.041(2), Fla. Stat. (2020).
17
the trial court denied Wal-Mart’s motion to compel, Wal-Mart sought certiorari
relief from the district court. Our sister court dismissed Wal-Mart’s petition,
concluding that, even if the trial court had erred in denying Wal-Mart the
sought discovery, Wal-Mart failed to demonstrate the requisite irreparable
harm. Id. at 1054. But, despite dismissing Wal-Mart’s petition, the Strachan
court, nevertheless, discusses at length the trial court’s rationale for denying
the discovery (see below), and reaches the merits of Wal-Mart’s petition,
concluding: “Wal-Mart has not shown that the discovery order departed from
the essential requirements of law.” Id.
I find it troublesome that the Strachan court suggests (and seems to
support the underlying trial court’s express conclusion) that the Florida
Legislature, through its adoption of pure apportionment of damages among
joint tortfeasors in negligence actions, abolished sub silencio the statutory
right to a setoff in negligence cases. Id. at 1054, n.1. The Legislature did no
such thing.
While section 768.81(3) of the Florida Statutes abolishes the doctrine
of joint and several liability and requires judgments to be entered against
each defendant based on the defendant’s percentage of fault (i.e., pure
apportionment), the Legislature has never abolished any of the three
substantive statutes that provide defendants with a right to a setoff. In fact,
18
the pure apportionment statute (section 768.81(3)) rests in Part II of Chapter
768, governing damages in negligence actions. Section 768.71(3) of the
Florida Statutes, addressing the applicability of Part II of Chapter 768,
provides that “[i]f a provision of this part is in conflict with any other provision
of the Florida Statutes, such other provision shall apply.” Ergo, to the extent
section 768.81(3) conflicts with the statutory provisions establishing the
substantive right to a setoff (i.e., sections 46.015(2), 768.041(2), and
768.31(5)(a)), the right to such a setoff endures.
Because I find Strachan’s suggestion that the Legislature abolished
the right to setoff highly dubious, and because Allen cites Strachan as
persuasive authority, any future reliance on either case by the lower courts
to deny settlement discovery to a non-settling defendant being sued for
purely economic, finite, liquidated damages is, in my estimation, misplaced. 5
5
Citing extensively to both Strachan and Allen, Wang’s briefing below, and
to us, argues that the settlement information sought by American Prime is
not relevant because American Prime’s right of setoff has been abolished by
the Legislature’s adoption of pure apportionment. The trial court’s discovery
order, though, does not seem to expressly adopt this rationale. While the
majority opinion does cite to Allen (as authority for the proposition that trial
courts are to apply the setoff after liability is found and prior to entering
judgment), the majority does not reach this issue because of its conclusion
that this Court lacks jurisdiction to review the merits of the discovery order.
Majority Opinion at *9 (recognizing that “any error associated with the timing
and sequencing of discovery is subject to plenary review”).
19
D. Certification of Conflict with Allen and Strachan
I disagree with the conclusions in Allen and Strachan that a non-
settling defendant, who is being sued for the same claim and same damages
as the settling defendant, suffers no irreparable harm by a trial court’s order
prohibiting the non-settling defendant access to the settlement information. I
would certify conflict with both Allen and Strachan.
III. CONCLUSION
Because the trial court’s discovery order preventing American Prime
access to the requested settlement documents results in irreparable harm,
but did not depart from the essential requirements of law, I would deny, rather
than dismiss, American Prime’s petition. Because such a ruling would
conflict with the certiorari opinions of our sister courts in Strachan and Allen,
I would also certify conflict with both Allen and Strachan.
20