PAPA JOHN'S USA, INC., A FOREIGN PROFIT CORPORATION, AND LORENA GONZALEZ vs PAULA MOORE

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
PAPA JOHN'S USA, INC., A FOREIGN PROFIT
CORPORATION, and LORENA GONZALEZ,
Petitioners,
Case No. 5D22-716
v. LT Case No: 2018-CA-002908-O
PAULA MOORE,
Respondent.
________________________________/
Opinion filed July 15, 2022
Petition for Certiorari Review of Order
From the Circuit Court for Orange County,
Kevin B. Weiss, Judge.
Todd R. Ehrenreich, David L. Luck and
Michael J. Ellis of Lewis Brisbois Bisgaard &
Smith, LLP, Coral Gables, for Petitioners.
Brian J. Lee, of Morgan & Morgan,
Jacksonville, for Respondent.
COHEN, J.
Papa John’s USA, Inc. and Lorena Gonzalez, defendants below
(collectively, “Petitioners”), seek certiorari relief from the trial court’s order
granting Paula Moore’s (“Respondent”) motion for sanctions, to compel, and
to invoke the rule of sequestration. For the reasons discussed below, we
grant the petition and quash the order.
In 2015, Gonzalez, while working as a delivery driver for Papa John’s,
was involved in an automobile accident with Respondent, who was a
passenger in the other vehicle. Thereafter, Respondent filed suit against
Petitioners for negligence. In June 2021, Respondent took the deposition of
Papa John’s corporate representative, Robert Duncan. Duncan testified that,
in preparation for his deposition, he had not personally interviewed Gonzalez
but instead reviewed her deposition testimony and other relevant materials.
On cross-examination, defense counsel sought to elicit from Duncan another
reason why he had not personally communicated with Gonzalez prior to his
deposition. Duncan explained that he had asked Tai Phetsanghane,
defense’s co-counsel, to contact Gonzalez on his behalf to gather some
additional facts; and after speaking with Phetsanghane, he had no additional
questions for Gonzalez.
Plaintiff’s counsel then sought to inquire into “everything” that Duncan
had discussed with Phetsanghane, to which defense counsel objected based
on attorney-client privilege. The deposition was eventually terminated after
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the parties could not agree on the scope of any follow-up questioning
regarding communications between Duncan and Phetsanghane.
Respondent then filed her motion for sanctions, to compel, and to
invoke the rule of sequestration, arguing that defense counsel’s questioning
of Duncan regarding his communication with Phetsanghane waived the
attorney-client privilege and that Duncan’s deposition should continue
without any objection on that basis. She also sought sanctions for defense
counsel’s improper instructions not to answer questions on that matter and
for unilaterally terminating the deposition. Finally, Respondent sought to
sequester attorney Phetsanghane to prevent his communication with
Duncan and to depose Phetsanghane at a later date. In response,
Petitioners argued that attorney-client privilege was not waived and that
Respondent’s attempt to delve into the substance of the communications, as
opposed to merely the facts learned by Duncan, was prohibited. Petitioners
also moved for a protective order against sequestering Phetsanghane,
asserting that doing so would be unduly burdensome and deposing him
would further intrude on attorney-client privilege.
The trial court granted Respondent’s motion, finding that attorney-
client privilege had been waived by defense counsel’s line of questioning. It
ordered Duncan’s deposition to continue and permitted Respondent to ask
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questions regarding what was discussed between Duncan and
Phetsanghane, along with any related questions that may follow. The trial
court also granted Respondent’s request for sequestration, thereby
preventing Phetsanghane from attending the continued deposition or from
communicating with Duncan in the interim. Finally, the trial court awarded
sanctions by ordering Petitioners to pay Respondent’s attorney’s fees in
connection with the motion.
Petitioners timely filed this petition for writ of certiorari, contending the
trial court departed from the essential requirements of law by finding that the
attorney-client privilege was waived and by permitting Respondent to inquire
into the substance of the specific communications between Duncan and
Phetsanghane. Petitioners maintain that the proper remedy is to allow
Respondent to question Duncan about the underlying factual information that
was gathered from that conversation. We agree.
“We will grant certiorari only if Petitioners establish: (1) a departure
from the essential requirements of the law; (2) resulting in material injury for
the remainder of the trial; (3) that cannot be corrected on post-judgment
appeal.” Cowan v. Gray, 47 Fla. L. Weekly D274, D274 (Fla. 5th DCA Jan.
21, 2022) (citing State Farm Mut. Auto. Ins. v. Knapp, 234 So. 3d 843, 848
(Fla. 5th DCA 2018)). The order on appeal satisfies the second and third
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elements, providing us with jurisdiction. Id. (“We first examine the second
and third elements to determine our jurisdiction.” (citation omitted)); see also
Montanez v. Publix Super Mkts., Inc., 135 So. 3d 510, 512 (Fla. 5th DCA
2014) (“An order that erroneously compels a party to produce privileged
information is a classic example of a discovery order subject to certiorari
review because the harm caused by the disclosure of privileged information
is irreparable.” (citation omitted)).
The trial court departed from the essential requirements of law by
finding that attorney-client privilege had been waived and by granting
Respondent broad permission to question Duncan about his
communications with Phetsanghane. “A client has a privilege to refuse to
disclose, and to prevent any other person from disclosing, the contents of
confidential communications when such other person learned of the
communications because they were made in rendition of legal services to
the client.” § 90.502(2), Fla. Stat. (2021). However, “A person who has a
privilege against disclosure of a confidential matter or communication waives
the privilege if the person . . . voluntarily discloses or makes the
communication when he or she does not have a reasonable expectation of
privacy, or consents to disclosure of, any significant part of the matter or
communication.” § 90.507, Fla. Stat. (2021). Still,
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The client does not waive the privilege by testifying
generally in the case or testifying as to facts that were
the subject of the consultation with his or her
attorney, but if the client or attorney testifies as to
privileged communications in part, this serves as a
waiver as to the remainder of the privileged
consultation or consultations about the same subject.
Coates v. Akerman, Senterfitt & Eidson, P.A., 940 So. 2d 504, 511 (Fla. 2d
DCA 2006) (internal quotations omitted) (citation omitted).
A review of the relevant deposition testimony demonstrates that
defense counsel did not ask questions of Duncan regarding the substance
of the privileged communication, nor did Duncan’s answers reveal the same.
As such, the attorney-client privilege was not waived. Moreover, the trial
court’s order permits Respondent to inquire into far more than just the factual
information Duncan learned during his communication with Phetsanghane.
See Carnival Corp. v. Romero, 710 So. 2d 690, 694 (Fla. 5th DCA 1998)
(“Although the communications between an attorney and client are
privileged, the underlying facts are discoverable.”). We agree with Petitioners
that Respondent may inquire into only the factual information Duncan
gathered during the communication.
Finally, the trial court’s reliance on our decision in Marrero v. Rea, 312
So. 3d 1041 (Fla. 5th DCA 2021), was misplaced. That case involved a
scenario in which plaintiff’s counsel voluntarily became a witness by filing an
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affidavit concerning his authority to settle the case, which served as a waiver
of attorney-client privilege as to that issue. Id. at 1050–51 (“[T]he trial court
failed to apply the concept of waiver of that privilege to the extent
Respondent and his attorney had already testified in affidavits to Attorney
Panagakis’ lack of settlement authority.” (citing Lender Processing Servs.,
Inc. v. Arch Ins. Co., 183 So. 3d 1052, 1062–64 (Fla. 1st DCA
2015) (explaining attorney-client privilege waived when one party challenges
settlement by asserting that counsel had no authority to settle))). Those
circumstances are clearly not present in the instant case.
Accordingly, we quash the order on appeal because the trial court
departed from the essential requirements of law in granting Respondent’s
motion. 1
PETITION GRANTED; ORDER QUASHED.
EVANDER, J., concurs.
NARDELLA, J., concurs in part and dissents in part, with opinion.
1
We also quash the remaining portions of the trial court’s order on
sequestration and sanctions, as those rulings stemmed from its erroneous
decision on the attorney-client privilege issue.
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5D22-716
LT Case No: 2018-CA-002908-O
NARDELLA, J., concurring in part; dissenting in part.
I join the majority in quashing the trial court’s order granting
Respondent’s motion to compel testimony protected by the attorney-client
privilege. Restrained by the limits of certiorari jurisdiction, I would not reach
the remaining portions of the trial court’s order on sequestration and
sanctions.
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