FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D18-2825

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OTIS ELEVATOR COMPANY, a

Connecticut For Profit 

Corporation, COASTAL ELEVATOR 

SERVICE CORP., a Florida For 

Profit Corporation, LOUIS CARL 

DEVINCENTIS, individually and 

as an employee of Otis Elevator 

Company, JAMES DUDA,

individually and as an employee 

of Otis Elevator Company,

DANIEL HUNTER, individually 

and as an employee of Otis 

Elevator Company, and ROBERT 

MOWREY, individually and as an 

employee of Otis Elevator 

Company,

Petitioners,

v.

CATHERINE CRAIG-MYERS,

individually and as personal 

representative of the Estate of 

Robert Myers,

Respondent.

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Petition for Writ of Certiorari—Original Jurisdiction.

February 28, 2019
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PER CURIAM.

DENIED. 

B.L. THOMAS, C.J., and ROBERTS, J., concur; OSTERHAUS, J., 

concurs with opinion.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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OSTERHAUS, J., concurring.

Petitioners mount a convincing argument that Respondent 

provided no evidence establishing a prima facie case for the 

application of the crime-fraud exception. They are correct that 

before a trial court reviews attorney-client communications in 

camera to determine whether the crime-fraud exception applies, it 

must first determine that the party invoking the exception has 

presented evidence establishing such a prima facie case. See First 

Union Nat’l Bank v. Turney, 824 So. 2d 172, 183 (Fla. 1st DCA 

2001), reh’g denied (Jan. 17, 2002); see also Butler, Pappas, 

Weihmuller, Katz, Craig, LLP v. Coral Reef of Key Biscayne 

Developers, Inc., 873 So. 2d 339, 342 (Fla. 3d DCA 2003); First 

Union Nat’l Bank of Fla. v. Whitener, 715 So. 2d 979, 982 (Fla. 5th 

DCA 1998). Here, there was no evidence of an attorney’s advice 

being sought to aid the client’s crime or fraud. And so, in camera 

review of the privileged documents should not have been ordered. 

See Fla. Mining & Materials Corp. v. Cont’l Cas. Co., 556 So. 2d 

518, 519 (Fla. 2d DCA 1990) (holding that a party “must allege and 

produce prima facie evidence that petitioners affirmatively sought 

the advice of counsel to procure a fraud” and declaring that a ruling 

that evidence of fraud itself suffices “would literally eliminate the 

attorney-client privilege in any suit where there was any 

allegation of fraud or misrepresentation”).
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In spite of this apparent error, however, certiorari relief is not 

available right now to fix it. Because the trial court has not ordered 

anything to be disclosed to Respondent, nor determined if 

Respondent or her counsel will ever see any of the privileged 

documents, certiorari relief is premature. See Poston v. Wiggins, 

112 So. 3d 783, 786 (Fla. 1st DCA 2013) (citing Cape Canaveral 

Hosp., Inc. v. Leal, 917 So. 2d 336, 339-40 (Fla. 5th DCA 2005)

(denying as premature a certiorari petition seeking review of an 

order requiring the submission of documents for an in camera 

inspection)).

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Kenneth B. Bell and Lauren V. Purdy of Gunster Yoakley & 

Stewart, P.A., Tallahassee, for Petitioners.

Philip J. Padovano of Brannock & Humphries, Tallahassee, and 

Maegen Peek Luka of Brannock & Humphries, Tampa; Sidney L. 

Matthew of Sidney L. Matthew, P.A., Tallahassee, for Respondent.