# Third District Court of Appeal

State of Florida

Opinion filed January 12, 2016.

Not final until disposition of timely filed motion for rehearing.

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No. 3D15- 2813

Lower Tribunal No. 13-4597

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### Kristen N. Toomey,

Petitioner,

vs.



### The Northern Trust Co., Trustee, etc., et al.,

Respondents.

A Writ of Certiorari to the Circuit Court for Miami-Dade County, Bernard

S. Shapiro, Judge

.

Crabtree & Auslander, and Charles M. Auslander and John G. Crabtree and

Brian C. Tackenberg; The Kelley Law Firm and Rohan Kelley and Shane Kelley

(Ft. Lauderdale), for petitioner.

Goldman Felcoski & Stone and Brian Felcoski and Robert W. Goldman;

Laird A. Lile (Naples); Nancy Pond Halula; H. Dockery Teele, Jr. (North

Carolina); Horack Talley Pharr & Lowndes, and Kimberly Sullivan (North

Carolina); William V. Linne (Pensacola); The Virgil Law Firm and J. Eric Virgil;

The Nguyen Law Firm and Hung V. Nguyen, for respondents.

Before SALTER, LOGUE and SCALES, JJ.SALTER, J.

Kristen Toomey seeks a writ of certiorari quashing a circuit court protective

order preventing the deposition of two witnesses noticed by the petitioner in an

effort to preserve their testimony. We grant the petition and quash the order. 1

In the underlying case, The Northern Trust Company, as trustee of the James

L. Knight Charitable Term Trust under agreement dated March 26, 1969, 2 is the

plaintiff in an action seeking construction of the Trust Agreement as provided in

section 736.0201(4)(e), Florida Statutes (2015). Without fully detailing the alleged

ambiguities in the Trust Agreement or considering the legal sufficiency of the

second amended complaint, it is sufficient to characterize the case as one

principally seeking a determination of the manner in which the terminating

distributions from the Knight Trust are to be made to James L. Knight’s greatgrandchildren.

1 We granted the petitioner’s motion to expedite the filing and service of responses

and a reply, as well as our consideration of the issues raised in the petition.

Consistent with the expedited briefing and consideration, we issued an order

granting the petition and quashing the protective order on January 8, 2016, noting

in that order that our more detailed opinion would follow.

2 We refer to The Northern Trust Company in this capacity as “Trustee,” the trust

itself as the “Knight Trust,” and the trust instrument as the “Trust Agreement.”

2The petitioner in this case is one of the great-grandchildren. She is the

granddaughter of Barbara Knight Toomey, who is in turn one of the four surviving

daughters of James L. Knight. Mr. Knight passed away in 1991.

Barbara Knight Toomey is 78 years old and, according to the undisputed

affidavit of her treating physician, suffers from end-stage chronic obstructive

pulmonary disease and emphysema, “both of which are life threatening at this

point in time.” Her treating physician has also expressed the opinions, in the same

affidavit, that a reasonable estimate of her life expectancy is six months (as of

November 6, 2015), and that if she “contracts any pulmonary infection such as

influenza or pneumonia, it could result in her death.”

The petitioner has alleged that Barbara Knight Toomey and Edward Olson

are two living witnesses who had direct conversations with James L. Knight

regarding his intentions in executing the Trust Agreement and regarding the

administration of the Trust. Mr. Olson, an attorney, is also in his seventies. The

petitioner noticed Barbara Knight Toomey and Edward Olson for videotaped

deposition in December 2015, a time when five of the beneficiary defendants in the

case had moved to dismiss the second amended complaint.

Three of those five beneficiary defendants filed a motion for a protective

order striking the notices of deposition of Ms. Toomey and Mr. Olson and staying

all discovery pending rulings on the pending motions to dismiss. The trial court

3granted the motion, apparently in the belief that the motions to dismiss could be

heard in short order and the depositions could proceed after that (if the motions to

dismiss were denied).

Unfortunately, defense counsel coordination and scheduling difficulties

pushed back the hearing on the motions to dismiss to January 28, 2016.

Understandably concerned by the delay, the petitioner (ultimately joined by

thirteen other beneficiary defendants) filed the present petition for certiorari and a

motion to expedite this proceeding on December 11, 2015.

Analysis

“Ordinarily, orders denying discovery are not reviewable by certiorari

because the harm from such orders can generally be rectified on appeal.” Royal

Caribbean Cruises, Ltd. v. Cox

, 974 So. 2d 462, 465 (Fla. 3d DCA 2008) (citing

Ruiz v. Steiner

, 599 So. 2d 196, 197 (Fla. 3d DCA 1992)). However, an exception

to this general rule applies where, as in the present case, “discovery orders cause

irreparable injury to the petitioner.” Id. This Court has held that “the denial of

leave to perpetuate testimony by a terminally ill person is a matter which may be

entertained by petition for writ of certiorari.” Robert v. W.R. Grace & Co.

, 639

So. 2d 1056, 1057 (Fla. 3d DCA 1994) (citing Martin-Johnson, Inc. v. Savage

, 509

So. 2d 1097, 1098-99 (Fla.1987)).

4The depositions were plainly within the general scope of discovery relating

to the allegations in the second amended complaint. Fla. R. Civ. P. 1.280(b). Both

of the witnesses consented to be deposed in Naples, Florida. We are not persuaded

by the argument of a minority of the beneficiary defendants that the motion to

dismiss might be granted, thereby mooting the deposition controversy. The

attorney’s fees and court reporting costs for two videotaped depositions on a

discrete set of issues pale in comparison to the prospect that the testimony of two

potentially important witnesses may be irrevocably lost.

Especially in circumstances involving the denial of the right to take

testimony of an alleged material witness, it has been recognized that

such a denial cannot be remedied on appeal since “there would be no

practical way to determine after judgment what the testimony would

be or how it would affect the result.”

Ruiz

, supra

, at 198 (citing Travelers Indemnity Co. v. Hill

, 388 So. 2d 648, 650

(Fla. 5th DCA 1980)).

And the pending motions to dismiss might be granted in a ruling allowing a

further amendment. What then? Even when a complaint is dismissed, if leave to

amend is granted, the action itself is still alive. Branch v. O’Selmo

, 147 So. 3d

1089, 1093 (Fla. 3d DCA 2014). If this small group of defendants ultimately

prevails in having the second (or later) amended complaint dismissed with

prejudice, or in the improbable event that the videotaped depositions were a

5frivolous exercise, those defendants are not without recourse to recover their

expenditures.

The defendants who sought and obtained the protective order provided

nothing to controvert Barbara Knight Toomey’s lamentable medical prognosis.

They failed to establish any of the grounds under Florida Rule of Civil Procedure

1.280(c) (annoyance, embarrassment, oppression, undue burden or expense)

warranting a protective order.

For these reasons, we find that the petitioner has demonstrated a basis for

granting certiorari and quashing the protective order and stay of discovery as to

Barbara Knight Toomey and Edward Olson.

6