Writs, Lies, & Videotape: Law Offices of Robin Bresky Prevails in Certiorari Proceeding Over Timing of Production of Store Video Surveillance Showing Plaintiff’s Injury

Whole Foods Market Group, Inc. v. Classie, 4D13-43

The Law Offices of Robin Bresky successfully defended a petition for writ of certiorari filed by the defendant in a personal injury action. The writ involved important questions about the timing of production of surveillance videos in personal injury cases. Our client, the plaintiff, sued for injuries she alleged occurred in the defendant’s store. The plaintiff sought to compel production of the defendant’s store surveillance video that showed the incident. The defendant refused to provide the plaintiff the video until after the plaintiff’s deposition. The trial court granted the plaintiff’s motion requiring the defendant to provide the video prior to the deposition. The defendant sought certiorari review in the Fourth DCA.

On appeal, the defendant argued that it was not required to turn the video over to the plaintiff prior to her deposition. The defendant articulated its fear that the plaintiff might alter her testimony after watching the videotape, and its position that it was entitled to the plaintiff’s untainted recollection of events in the deposition. The defendant relied upon the Florida Supreme Court’s decision in Dodson v. Persell, 390 So. 2d 704 (1980), where the Court held that video surveillance of a personal injury plaintiff taken by a private investigator after the accident could be withheld until after the plaintiff’s deposition.

We argued in opposition that the case fell squarely under the Fourth DCA’s holding in Target Corp. v. Vogel, 41 So. 3d 962 (Fla. 4th DCA 2010). We maintained that the Fourth DCA clearly held in Vogel that store surveillance showing a plaintiff’s injury occurring presented a different situation than videos taken by private investigators hired to obtain surveillance of a plaintiff after an accident. We maintained that the Fourth DCA in Vogel had decided that a trial court had the discretion to order production of the store surveillance video prior to the plaintiff’s deposition.

The Fourth DCA entered an order denying the petition for writ of certiorari. This result protected the trial court’s beneficial ruling for our client that she be allowed to view the videotape of her injury prior to her deposition.

City of Riviera Beach v. State of Florida
Case No. 4D10-4522

The office of the state attorney subpoenaed information from the City of Riviera Beach that included the names of confidential informants the City had used. The trial court ordered the City to comply with the subpoena. The City filed a petition for writ of certiorari in the court of appeal seeking to quash the order. The Fourth DCA held that no privilege for confidential informants protected the information the state attorney requested in the subpoena. Additionally, the Fourth DCA held that the state attorney’s investigative subpoena did not implicate the right to privacy under Article I, section 23 of the Florida Constitution. The Fourth DCA noted that both the City and the state attorney are required by statute to keep the information confidential. The Fourth DCA therefore determined that there was no departure from the essential requirements of law, denied the City’s petition, and held the state attorney was entitled to the names of the confidential informants under section 27.04, Florida Statutes (2010).

United Automobile Ins. Co. v. Millennium Radiology, LLC
Case No: 4D11-3248

United Automobile Insurance Company (“United”) appealed a county court order to the circuit court sitting in its appellate capacity. The circuit court panel believed that the order was not appealable as originally rendered, and issued an order to United to show cause why the appeal should not be dismissed. The circuit court then allowed United to obtain a corrected final order, but provided that the appeal would be dismissed if United failed to obtain the corrected final order before the record was transmitted. This was impossible because the record had already been transmitted at the time the circuit court issued that order. United obtained a corrected final order and filed an amended notice of appeal within five days. The circuit court still dismissed the appeal.

On certiorari review, the Fourth DCA held that the circuit court departed from the essential requirements of law and denied United due process by dismissing the appeal, since it was literally impossible for United to have complied with the order. The Fourth DCA granted the petition.

Arafat v. U-Haul Center Margate, 4D10-1179
June 22, 2011

The Fourth District addressed a writ of certiorari challenging a circuit court’s dismissal of an appeal as untimely. Arafat filed a complaint in small claims county court for $5,000 based on a statement of claim for items that were removed from her storage unit. The court entered judgment for the defendants on May 21, 2009. Arafat filed a motion for rehearing on June 1, 2009 but did not actually serve it until June 3, 2009.  The trial court denied the motion but ruled the denial would not take effect until September 1, 2009.  On September 24, 2009 Arafat filed a notice of appeal.  The defendants moved to dismiss the appeal, arguing that Arafat’s motion for rehearing was untimely and that because the judgment came from a nonjury trial, Florida Rule of Civil Procedure 1.530 mandates that a motion for rehearing be filed within ten days of the final judgment.  The circuit court agreed and dismissed the appeal.
On appeal, the Fourth District noted that Florida Small Claims Rule 7.180 provides that a motion for new trial must be filed within ten days. Florida Rule of Civil Procedure 1.530 provides that a motion for new trial or rehearing must be served within ten days. Because this case originated in small claims, and because the Florida Small Claims Rules do not incorporate Florida Rule of Civil Procedure 1.530, the Fourth District held that the motion for rehearing was timely. Florida Small Claims Rule 7.230 provides that appeals from small claims court shall be governed by the Florida Rules of Appellate Procedure. Under Florida Rule of Appellate Procedure 9.020(h), an authorized and timely motion for new trial or rehearing tolls rendition of the order of the trial court until disposition of the motion. The Fourth District quashed the dismissal of the appeal and remanded the case to be decided on the merits.