McMahan v. McMahan
McMahan v. McMahan
Opinion of the Court
In this dissolution of marriage action, the wife, Karen S. McMahan, filed a motion for leave to take the deposition of the husband, James F. McMahan, Jr., and requested that the court permit her to personally attend the husband’s deposition. At the time the motion was filed, the husband was incarcerated in the Baker County Jail. The wife’s motion was advanced pursuant to the last sentence of Florida Rule of Civil Procedure 1.310(a) and specifically alleged that jail officials had “indicated” that she would not be allowed to attend the deposition. While the trial court granted her motion for leave to take the husband’s deposition, the court denied the wife’s re
The wife also moved to continue the final hearing on her petition for dissolution of marriage and to reset the applicable pre-trial deadlines. The trial court denied her motion for continuance. The wife filed the instant petition for writ of certiorari to review the rulings on her motion for leave to take the husband’s deposition and motion for continuance.
In determining whether we may properly invoke our certiorari jurisdiction,
“[C]ommon law certiorari is an extraordinary remedy and should not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of non-final orders.” Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1098 (Fla. 1987); see also Belair v. Drew, 770 So.2d 1164, 1166 (Fla. 2000); Jaye v. Royal Saxon, Inc., 720 So.2d 214, 214-15 (Fla. 1998).... “A non-final order for which no appeal is provided by [Florida] Rule [of Appellate Procedure]. 9.130 is reviewable by petition for certio-rari only in limited circumstances.” Martin-Johnson, Inc., 509 So.2d at 1099; see also Brooks v. Owens, 97 So.2d 693, 695 (Fla. 1957).... Limited certiorari review is based upon the rationale that “piecemeal review of nonfinal trial court orders will impede the orderly administration of justice and serve only to delay and harass.” Jaye, 720 So.2d at 215.
Id. at 454 (ellipses and emphasis in original) (quoting Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla. 2004)). To be entitled to certiorari review, “[t]he petitioning party must demonstrate that the contested order constitutes ‘(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case[,] (3) that cannot be corrected on postjudgment appeal.’.” |d. (bracketed comma provided in Bd. of Trs.) (quoting Reeves, 889 So.2d at 822 (quoting Bd. of Regents v. Snyder, 826 So.2d 382, 387 (Fla. 2d DCA 2002))). “ ‘The last two elements are jurisdictional and must be analyzed before the court may even consider the first element.’ ” Id. (quoting Williams v. Oken, 62 So.3d 1129, 1132 (Fla. 2011)); see also Jaye, 720 So.2d at 215 (holding that finding the petitioning party has “suffered an irreparable harm that cannot be remedied on direct appeal” is a “condition precedent to invoking a district, court’s certiorari jurisdiction”); Agency for Health Care Admin. v. S. Broward Hosp. Dist., 206 So.3d 826, 828 (Fla. 1st DCA 2016) (same).
Addressing, first, the trial court’s order on the wife’s motion to appear at the husband’s deposition, there is support for the conclusion that a trial court’s decision to prohibit a party’s personal attendance at the taking of another party’s deposition can cause irreparable harm. See Ferrigno v. Yoder, 495 So.2d 886, 887 (Fla. 2d DCA 1986). Specifically, Ferrigno recognized that once a deposition has taken place outside of the presence of the aggrieved party, the opportunity to cure the purported error—i.e., the attendance at the other party’s deposition—“will have passed.” Id. Consistent with this reasoning, the wife’s petition adequately, alleges irreparable harm because once the husband’s deposition occurs outside of her presence, the
As to the remaining element of our certiorari analysis, the wife has thé burden of demonstrating that the trial court’s order constitutes a departure from the essential requirements of the law. S. Broward Hosp. Dist., 206 So.3d at 827-28. “A departure from the essential requirements of the law ... is something more than a simple legal error.” Fassy v. Crowley, 884 So.2d 359, 363-64 (Fla. 2d DCA 2004). “The inquiry is not as concerned ‘with the mere existence of legal error as much as with the seriousness of the error.’ ” Id. at 364 (quoting Combs v. State, 436 So.2d 93, 95 (Fla. 1983)). The “misapplication of the correct law or an erroneous interpretation of a law does not rise to the necessary level.” Id. (citing Ivey v. Allstate Ins. Co., 774 So.2d 679, 682-83 (Fla. 2000)). Instead, the standard requires “a violation of a clearly established principle of law resulting in a miscarriage of justice.” Id. (citing Combs, 436 So.2d at 96).
Here, the husband was incarcerated at the time the wife filed her motion to take the husband’s deposition. As a result, the wife’s motion was predicated on the last sentence ofirule 1.310(a), which states, in pertinent part, that “[t]he deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.”
In evaluating the trial court’s exercise' Of discretion under rule 1.310(a), it is important to remember that the wife’s motion alleged that jail officials indicated she would not be allowed to attend the husband’s deposition.' By denying the wife’s motion to be physically present at the deposition—but by allowing her to attend teléphonically—-the trial court struck a reasonable balance between the rules at
We turn next to the wife’s second claim in her petition—that the trial court departed from the essential requirements of the law when it denied her motion to continue the final hearing and to reset the pre-trial deadlines because it did not follow the procedures set forth under Florida Rule of Civil Procedure 1.440. Shortly after the wife filed her petition for writ of certiorari, this Court’s motions panel issued an order staying further proceedings in the trial court pending final disposition of the current petition. The stay removed the wife’s dissolution action from the trial court’s January 19,2017, calendar, which is the essence of the relief sought in the second claim of the wife’s petition. . As a result, this part of the wife’s petition is moot. See Rupp v. HMC Assets, LLC, 213 So.3d 1126 (Fla. 1st DCA 2017) (Mem.).
Because the wife has failed to demonstrate that the trial court departed from the essential requirements of law as to her first claim, and because her second claim is moot, the wife’s petition for writ of certio-rari is DENIED.
. Art. V, § 4(b)(3), Fla. Const.; Fla. R. App. P. 9.030(b)(2)(A).
. The quoted portion of the rule references "a person confined in prison.” However, because it was never raised by the wife or addressed by the trial judge, we are not confronted with the issue of what constitutes a "prison” under the provisions of rule 1.310(a).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.