Racetrac Petroleum v. Sewell

Third District Court of Appeal
State of Florida
Opinion filed November 19, 2014.
Not final until disposition of timely filed motion for rehearing.
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No. 3D14-974
Lower Tribunal No. 10-38782
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Racetrac Petroleum, Inc.,
Petitioner,
vs.
Elizabeth Sewell, etc.,
Respondent.
On Petition for Writ of Certiorari to the Circuit Court for Miami-Dade
County, Daryl E. Trawick, Judge.
Luks, Santaniello, Petrillo & Jones, and Daniel J. Santaniello and Doreen E.
Lasch (Fort Lauderdale), for petitioner.
Schlesinger Law Offices, P.A., and Sheldon J. Schlesinger and Crane A.
Johnstone (Fort Lauderdale); Burlington & Rockenbach, P.A., and Philip M.
Burlington and Nichole J. Segal (West Palm Beach), for respondent.
Before ROTHENBERG, LOGUE, and SCALES, JJ.
SCALES, J.
Petitioner, RaceTrac Petroleum, Inc. (RaceTrac), defendant below, seeks a
writ of certiorari quashing the trial court’s order denying RaceTrac’s motion for
protective order and granting plaintiff’s motion to compel. Because the standard
for certiorari relief has not been met, RaceTrac’s petition is denied.
I. Facts
In 1997, RaceTrac entered into a contract to purchase real property on
Northeast 8th Street/Campbell Drive (Campbell Drive) in Homestead, Florida for
the purpose of operating a gas station/convenience store.
The purchase and sale contract between RaceTrac (as purchaser) and the
property’s seller conditioned the sale upon the purchaser obtaining approval from
all necessary governmental agencies to construct a median cut on Campbell Drive
to align with the existing curb cut on the southern property line of the subject
property.
The median cut would allow for direct ingress and egress between the
property and the eastbound lanes of Campbell Drive without requiring eastbound
drivers to make a U-turn to access the gas station. In 1999, RaceTrac obtained the
necessary approvals and closed on the property (the subject gas station).
Several years later, in 2010, Respondent, Elizabeth Sewell (Sewell), as legal
guardian of her daughter Crystal Sewell (Crystal), brought suit against RaceTrac to
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recover damages suffered by Crystal in a car accident. The accident occurred in
2007, near the subject gas station.
Sewell alleged that Crystal was traveling east in the left lane of Campbell
Drive when a vehicle rapidly exited the subject gas station, crossed the two
westbound traffic lanes of Campbell Drive, and passed through the break in the
median into Crystal’s eastbound lane. As a result, according to Sewell’s
allegations, Crystal lost control of her car, collided with a palm tree, and was
seriously injured.
Sewell alleged that RaceTrac was negligent for a host of reasons primarily
regarding posting of signage at the subject gas station (e.g., failing to safely direct
and control the vehicles leaving the subject gas station; failing to post appropriate
stop signs at the exit to the subject gas station, or at the median; failing to post
signage at the subject gas station’s exit or on the median facing its exit, advising or
alerting vehicle operators not to cross the westbound traffic lanes on Campbell
Drive; failing to erect signage at the subject gas station’s exit or on the median
instructing motorists that they could only turn left from the subject driveway;
maintaining the driveway markings and arrows that allowed, directed, and
encouraged motorists exiting the subject gas station to cross the westbound lanes
of Campbell Drive; etc.).
3
Pursuant to Florida Rule of Civil Procedure Rule 1.310(b)(6)1, Sewell
noticed RaceTrac seeking to depose: (1) the corporate representative with the most
knowledge of selecting locations for RaceTrac gas stations; and (2) the corporate
representative with the most knowledge of selecting the location for the subject gas
station.2
1 Florida Rule of Civil Procedure 1.310(b)(6) reads as follows:
(b) Notice; method of Taking; Production at Deposition.
....
(6) In the notice a party may name as the deponent a public or private
corporation, a partnership or association, or a governmental agency,
and designate with reasonable particularity the matters on which
examination is requested. The organization so named shall designate
one or more officers, directors, or managing agents, or other persons
who consent to do so, to testify on its behalf and may state the matters
on which each person designated will testify. The persons so
designated shall testify about matters known or reasonably available
to the organization. This subdivision does not preclude taking a
deposition by any other procedure authorized in these rules.
2 It appears from the record that Sewell served subpoenas on RaceTrac seeking to
depose corporate representatives with the “most knowledge” on the specified
topics. First, we note that “[r]ule 1.310(b)(6) does not require—or for that matter
even contemplate—that the corporation produce the witness with the ‘most
knowledge’ on the specified topic(s) . . . .” Carriage Hills Condo., Inc. v. JBH
Roofing & Constructors, Inc., 109 So. 3d 329, 334 (Fla. 4th DCA 2013). Second,
we note that although Sewell subpoenaed RaceTrac seeking to depose corporate
representatives with knowledge on the specified topics, both parties characterize
such subpoenas as notices of deposition pursuant to rule 1.310(b)(6). For ease of
reference, throughout this opinion, we will refer to such subpoenas as rule
1.310(b)(6) notices. See Logitech Cargo, U.S.A., Corp. v. JW Perry, Inc., 817 So.
2d 1033 (Fla. 3d DCA 2002) (quashing trial court’s order that required defendant
to subpoena, rather than simply notice, under rule 1.310(b)(6), corporate
representatives of plaintiff).
4
In response to Sewell’s rule 1.310(b)(6) notice, RaceTrac identified Lesliegh
Batchelor, director of real estate, as the appropriate corporate representative.3
Batchelor began working for RaceTrac in 1994 as a real estate
representative. Batchelor was promoted to a vice president of real estate in
approximately 1997.4 Batchelor ceased employment with RaceTrac in 2000, and
returned to work at RaceTrac in 2005 as the manager of real estate.5
Sewell took Batchelor’s deposition at RaceTrac’s corporate offices in
Atlanta. During her deposition, Batchelor testified that several potential sites for
the subject gas station, including the subject site, were selected in 1994, prior to
her employment with RaceTrac. Batchelor testified that Mark Hunter, who was
another vice president of real estate until he left the company in 1998, was the
person initially tasked with selecting potential sites for the subject gas station.
Batchelor also testified that Max Lenker, president of RaceTrac, was involved in
the site selection process of the subject site.
3 Sewell also noticed RaceTrac seeking to depose the corporate representative with
the most knowledge of designing RaceTrac gas stations. RaceTrac identified Max
McBrayer, who was vice president of engineering when RaceTrac purchased the
property, as the appropriate corporate representative. Sewell deposed McBrayer.
4 In approximately 1997, Batchelor was promoted to a vice president of real estate
to replace Mark Hunter, who was then a vice president of real estate. Hunter
ceased employment with RaceTrac in approximately 1998. Batchelor was
promoted prior to Hunter’s departure.
5In 2013, Batchelor’s job title technically changed from manager of real estate to
director of real estate, although her job duties did not change.
5
According to Batchelor’s testimony, after Hunter narrowed down potential
locations for the subject gas station, Lenker would visit potential sites and evaluate
the sites based on certain criteria, such as proximity to a limited access road, traffic
count, and visibility.
Batchelor further testified that Carl Bolch, Jr., who was another vice
president of real estate during the relevant time, was also involved in the site
selection and approval process for the subject gas station.
Currently, Hunter is no longer employed by RaceTrac; Lenker is still
RaceTrac’s president, and Bolch is now RaceTrac’s CEO.
Ostensibly, because Batchelor testified that Hunter, Lenker, and Bolch were
involved in the selection of the subject gas station’s location, Sewell’s counsel
deemed it necessary to take the depositions of these three high-level current and
former RaceTrac officers.
RaceTrac resisted Sewell’s attempts to take these depositions, resulting in
RaceTrac filing a motion for protective order and Sewell filing a motion to compel.
RaceTrac argued that rule 1.310(b)(6) provides the mechanism for a
corporate entity to identify the person with knowledge of the relevant matters, and,
because Batchelor provided the information requested (as identified in Sewell’s
rule 1.310(b)(6) deposition notice), Sewell could not compel the depositions of
additional corporate representatives.
6
Essentially, RaceTrac argued that, unless the rule 1.310(b)(6) designee fails
to give the information requested, a plaintiff may not compel the deposition of any
other corporate representatives, even if such other corporate representatives were
identified by the rule 1.310(b)(6) designee as having knowledge of the same
subject matter.
A general magistrate held a hearing on Sewell’s motion to compel and
RaceTrac’s motion for protective order. The magistrate issued a report and
recommendation granting Sewell’s motion to compel and denying RaceTrac’s
motion for protective order.
RaceTrac filed exceptions to the general magistrate’s order, and, on April 3,
2014, the trial court overruled RaceTrac’s exceptions and adopted the general
magistrate’s report and recommendations. Pursuant to Florida Rule of Civil
Procedure 1.280(c)(2)6, however, the trial court limited the depositions of Hunter,
Lenker, and Bolch to one hour each.
6 Florida Rule of Civil Procedure 1.280(c) reads, in its entirety, as follows:
(c) Protective Orders. Upon motion by a party or by the person from
whom discovery is sought, and for good cause shown, the court in
which the action is pending may make any order to protect a party or
person from annoyance, embarrassment, oppression, or undue burden
or expense that justice requires, including one or more of the
following: (1) that the discovery not be had; (2) that the discovery
may be had only on specified terms and conditions, including a
designation of the time or place; (3) that the discovery may be had
only by a method of discovery other than that selected by the party
seeking discovery; (4) that certain matters not be inquired into, or that
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RaceTrac now petitions this Court to enter a writ of certiorari quashing the
trial court’s order.
II. Standard for Certiorari Review of Discovery Orders
A party petitioning for certiorari review of a discovery order must
demonstrate that the contested order: (1) departs from the essential requirements of
the law; (2) results in a material injury for the remainder of the case; (3) cannot be
corrected on postjudgment appeal. Bd. of Trustees of the Internal Improvement
Trust Fund v. Am. Educ. Enters. LLC, 99 So. 3d 450, 454 (Fla. 2012).
Trial courts are accorded broad discretion in the treatment of discovery
problems, and such orders reviewed pursuant to a petition for writ of certiorari will
not be overturned absent departure from the essential requirements of law. See
Nestor v. Posner-Gerstenhaber, 857 So. 2d 953, 955 (Fla. 3d DCA 2003)
(“Because the trial court has broad discretion in discovery matters . . . and there
the scope of the discovery be limited to certain matters; (5) that
discovery be conducted with no one present except persons designated
by the court; (6) that a deposition after being sealed be opened only by
order of the court; (7) that a trade secret or other confidential research,
development, or commercial information not be disclosed or be
disclosed only in a designated way; and (8) that the parties
simultaneously file specified documents or information enclosed in
sealed envelopes to be opened as directed by the court. If the motion
for a protective order is denied in whole or in part, the court may, on
such terms and conditions as are just, order that any party or person
provide or permit discovery. The provisions of rule 1.380(a)(4) apply
to the award of expenses incurred in relation to the motion.
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has been no clear departure from the essential requirements of law which results in
a miscarriage of justice, we deny certiorari review.”) (citation omitted).
III. Analysis
As framed by RaceTrac, the issue on certiorari review is whether rule
1.310(b)(6) prevents a party from deposing officers not identified by the
corporation in response to a rule 1.310(b)(6) notice when the rule 1.310(b)(6)
designee testifies that other officers in the company have the same or similar
knowledge.7,8
RaceTrac argues that its production of witnesses who had personal
knowledge of the subjects designated in Sewell’s rule 1.310(b)(6) notices fully
complied with the requisites of the rule, and the trial court departed from the
7 Sewell disputes RaceTrac’s characterization of Hunter, Lenker, and Bolch as
having the “same or similar” knowledge as Batchelor. According to Sewell,
Hunter, Lenker, and Bolch have knowledge that is “unique” from Batchelor’s
knowledge.
8 The parties stipulate that Florida has not adopted the “apex doctrine,” which
effectively shields upper level executives and corporate officers from depositions
absent a showing that such top executives and officers have unique or special
knowledge of the events in question and that the party seeking the deposition is
unable to obtain the information from using a less intrusive means. See Gen. Star
Idem. Co. v. Atl. Hospitality of Fla., LLC, 57 So. 3d 238, 239 n.3 (Fla. 3d DCA
2011) (noting that 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 .
. . .”).
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essential requirements of law by allowing Sewell to depose other RaceTrac officers
who may also have personal knowledge of those subjects. We disagree.
In 1972, rule 1.310(b)(6) was amended to conform with Federal Rule of
Civil Procedure 30(b)(6) (as amended in 1970). The rule now permits the
deposition of a legal entity through a representative knowledgeable as to
specifically identified issues. After receiving the rule 1.310(b)(6) notice, the entity
must designate the appropriate person or persons to be deposed on the issues
identified in the notice. In re Florida Bar: Rules of Civil Procedure, 265 So. 2d 21,
30 (Fla. 1972) (Committee Note to 1972 amendment); Plantation-Simon Inc. v.
Bahloul, 596 So. 2d 1159, 1160 (Fla. 4th DCA 1992).
Importantly, rule 1.310(b)(6) expressly provides that the outlined procedure
is not exclusive: “This subdivision does not preclude taking a deposition by any
other procedure authorized in these rules.” Fla. R. Civ. P. 1.310(b)(6). Thus, the
rule appears to contemplate the ability of a party to take additional depositions of
corporate representatives, albeit subject to all general discovery provisions of rule
1.280.
If a witness identified by an entity pursuant to a rule 1.310(b)(6) notice is
deposed, and identifies another person associated with the entity who may also
have knowledge of the same subject matter identified in the rule 1.310(b)(6)
notice, the trial court is almost always in a better position than the appellate court
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to determine whether the deposing party is entitled to depose the identified person.
Cf. Plantation-Simon, 596 So. 2d at 1161 (“[T]he trial judge is given discretion to
determine whether either party is misusing this discovery device [simple notice to
the corporate party] . . . . [I]f the trial judge finds that seriatim depositions of
corporate officers has [sic] created a burden on the corporate party, the court is
empowered to alleviate that burden in a proper case by, e.g., limiting the
examining party to the designation procedure.”).
In such circumstances, rule 1.280(c), governing protective orders, gives the
trial court significant discretion in determining whether such potentially
cumulative depositions should occur, and, if so, what restrictions should be
imposed. See Waite v. Wellington Boats, Inc., 459 So. 2d 425, 426 (Fla. 1st DCA
1984) (“Trial courts must be accorded broad discretion in the treatment of
discovery problems through the employment of the protective provisions
contemplated by Rule 1.280.”).
In this case, while the trial court allowed the potentially cumulative
depositions, the trial court restricted each deposition to no longer than an hour to
mollify the alleged disruption of RaceTrac’s corporate operations and limit the
potentially redundant or irrelevant testimony.
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Hence, while we are not unsympathetic to RaceTrac’s position, on this
record, we cannot conclude that the trial court departed from the essential
requirements of law.9
IV. Conclusion
Because RaceTrac has not established that the trial court departed from the
essential requirements of law, its petition for certiorari is denied.
Petition denied.
9 Our conclusion is based exclusively on the elements we are required to consider
in reviewing whether to grant a petition seeking a writ of certiorari challenging a
discovery order. We offer no opinion as to the relevance of the testimony of the
three corporate officers involved in the purchase of the property almost a decade
before a car accident occurred off of the property; that issue is not before us.
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