       Third District Court of Appeal
                               State of Florida

                         Opinion filed October 10, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D18-1893
                         Lower Tribunal No. 15-13758
                             ________________


                           Nadezda A. Solonina,
                                    Petitioner,

                                        vs.

                    Artglass International, LLC, etc.,
                                   Respondent.



      A Writ of Certiorari to the Circuit Court for Miami-Dade County, Miguel
M. de la O, Judge.

     Weinstein Law, P.A., and Morgan L. Weinstein (Hollywood), for petitioner.

      The Strauss Law Firm, P.A., and David A. Strauss (Fort Lauderdale), for
respondent.


Before ROTHENBERG, C.J., and FERNANDEZ and SCALES, JJ.

     ROTHENBERG, C.J.
      Nadezda A. Solonina (“Nadezda”), the plaintiff below, petitions this Court

for a writ of certiorari to quash the trial court’s order which she contends: (1)

denies her the ability to take the depositions of three key witnesses; and (2) denies

Nadezda, herself, a critical witness, to be present at her own trial. Because we

conclude that the trial court’s order is a departure from the essential requirements

of law which will cause material injury for which there is no adequate remedy on

plenary appeal, we grant the petition and quash the order on review.

                                    Jurisdiction

A. The denial of a party’s right to depose a material witness

      Generally, orders denying discovery are not reviewable by certiorari. Ruiz

v. Steiner, 599 So. 2d 196, 197 (Fla. 3d DCA 1992). The exception to the general

rule is where the discovery order departs from the essential requirements of law,

causing material injury to the petitioner throughout the remainder of the

proceedings and effectively leaving no adequate remedy on appeal. Adkins v.

Sotolongo, 227 So. 3d 717, 719 (Fla. 3d DCA 2017) (citing Banco Latino

(S.A.C.A.) v. Kimberly, 979 So. 2d 1169 (Fla. 3d DCA 2008)).

      A trial court’s denial of a party’s right to depose a material witness has been

found to constitute irreparable harm subject to certiorari review. See Adkins, 227

So. 3d at 719-20; Giacalone v. Helen Ellis Mem’l Hosp. Found., Inc., 8 So. 3d

1232, 1234-35 (Fla. 2d DCA 2009) (footnote omitted) (“[W]hen the requested



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discovery is relevant or is reasonably calculated to lead to the discovery of

admissible evidence and the order denying that discovery effectively eviscerates a

party’s claim, defense, or counterclaim, relief by writ of certiorari is appropriate.

The harm in such cases is not remediable on appeal because there is no practical

way to determine after judgment how the requested discovery would have affected

the outcome of the proceedings.”); Ruiz, 599 So. 2d at 199 (“[I]n 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.”) (internal quotation marks omitted); see also

Bush v. Schiavo, 866 So. 2d 136, 140 (Fla. 2d DCA 2004); Beekie v. Morgan, 751

So. 2d 694, 698 (Fla. 5th DCA 2000); Criswell v. Best W. Int’l, Inc., 636 So. 2d

562, 563 (Fla. 3d DCA 1994).

B. The denial of a party’s motion for a continuance

      “Due process requires that a party be given the opportunity to be heard and

to testify and call witnesses on the party’s behalf . . . and the denial of this right is

fundamental error.” Julia v. Julia, 146 So. 3d 516, 520 (Fla. 4th DCA 2014)

(quoting Pettry v. Pettry, 706 So. 2d 107, 108 (Fla. 5th DCA 1998)). While the

trial court possesses broad discretion in granting or denying a continuance, “there

are instances in which a trial court’s denial of a motion for continuance may be an



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abuse of discretion.” Thompson v. Gen. Motors Corp., 439 So. 2d 1012, 1013 (Fla.

2d DCA 1983).

      In Julia, the Fourth District Court of Appeal noted that “[w]hile courts have

broad authority to control their dockets, trial judges must use this authority to

manage their courtrooms so that the people’s business may be conducted fairly,

efficiently, and expeditiously,” Julia, 146 So. 3d at 522 (internal quotation marks

omitted), and further recognized the difficulty in balancing a party’s right to have

his day in court with the need to manage one’s docket and to consider the interests

of the opposing party. Id. In balancing these competing interests, the court

concluded that where the wife was not afforded the opportunity to present her case

fully, her due process rights were violated. Id. at 518.

      Likewise, the Second District Court of Appeal in Thompson granted

Thompson’s petition for writ of certiorari after the trial court denied his motion for

a continuance due to his counsel’s illness. Thompson, 439 So. 2d at 1013-14. The

Second District found that the trial court had departed from the essential

requirements of law and that it could not say that Thompson would have had an

adequate remedy on appeal because there would be no way to determine how

counsel’s illness affected his performance at trial. Id.




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                   Application of the Law to the Instant Case

      This case involves a contract dispute between the parties. Nadezda claims to

be the only witness with personal knowledge of the terms of the contract and thus

she claims she is a necessary witness at trial. Nadezda also submitted an affidavit

outlining her counsel’s unsuccessful attempts to depose three material witnesses.

Specifically, she explained that her counsel attempted on several occasions to

coordinate the depositions of these witnesses with defense counsel but on each

occasion her counsel was advised that the witnesses were unavailable. Then, after

counsel was finally able to coordinate the depositions of these three witness for

March 21 and March 23, 2018, the depositions were cancelled due to the

withdrawal of the defendant’s counsel. Further inquiries regarding the availability

of the witnesses went unanswered by both the witnesses and the defendant’s new

counsel.

      The trial was initially set for September 25, 2018. Nadezda’s trial counsel,

however, informed the trial court that he had a prepaid vacation in which he would

be out of the country from September 11, 2018 until September 25, 2018 and that

Nadezda, her husband, and her three children would be on a prepaid trip around the

world from August 16, 2018 until May 31, 2019. On August 17, 2018 the trial

court rescheduled the trial to September 27, 2018. Thus, although it appears that

the trial court attempted to accommodate trial counsel’s vacation time by resetting



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the trial for two days after his return, the trial court reset the trial during a period of

time in which the trial court knew that Nadezda would not be available.

       Based on these facts, we conclude that the trial court’s order departs from

the essential requirements of law resulting in irreparable harm. First, Nadezda’s

counsel has not been able to depose three material witnesses based on the

witnesses’ and opposing counsel’s unavailability. Without being able to conduct

meaningful discovery, Nadezda’s counsel will not be able to properly prepare his

case and “there is no practical way to determine after judgment how the requested

discovery would have affected the outcome of the proceedings.” Giacalone, 8 So.

3d at 1234-35; see also Ruiz, 599 So. 2d at 198 (finding that the denial of the right

to take the deposition of an alleged material witness generally cannot be remedied

on appeal because there is no practical way to determine after judgment how that

denial may have affected the verdict).

       Although the trial court has not prohibited Nadezda from deposing these

three alleged material witnesses, because her trial counsel has no ability to depose

them prior to trial because he is out of the country, the trial court has in effect

precluded them. See Adkins, 227 So. 3d at 720 (finding that because Ms. Adkins

was declared indigent and she was being required to advance the guardian’s and

the guardian’s attorney’s fees prior to the taking of the guardian’s deposition, the

trial court had effectively precluded the taking of the deposition).



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      Second, and more importantly, when the trial court continued the trial, it

reset the trial date to September 27, 2018 even though the trial court was fully

aware that Nadezda, who is the plaintiff and a material witness, would be out of

the country and unable to attend her own trial. The re-setting of the trial during a

period of time in which the trial court knew Nadezda would not be available,

effectively denies Nadezda her day in court and is thus a denial of her right to due

process. As previously stated: “Due process requires that a party be given the

opportunity to be heard and to testify and call witnesses on the party’s behalf . . .

and the denial of this right is fundamental error.” Julia, 146 So. 3d at 520 (quoting

Pettry v. Pettry, 706 So. 2d 107, 108 (Fla. 5th DCA 1998)). “The opportunity to

be heard must be ‘full and fair, not merely colorable or illusive.’” Julia, 146 So. 3d

at 520 (quoting Pelle v. Diners Club, 287 So. 2d 737, 738 (Fla. 3d DCA 1974));

see also Pelle, 287 So. 2d at 738 (concluding that Pelle was denied the protection

of his constitutionally guaranteed right to due process of law where the trial court

failed to provide Pelle with the opportunity to present his case-in-chief).

      We additionally note that the request by Nadezda for a continuance was not

open-ended.    Her request was specific and finite.       Continuing the case until

Nadezda returns will provide her trial counsel with enough time to compel

attendance of the witnesses for their depositions and the opportunity to call

Nadezda as a witness. Thus, we agree with our sister court in Thompson, that



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“[w]hile we are loath to interfere with trial scheduling, we hold that the trial court

departed from the essential requirements of law in refusing to grant the [requested]

continuance.” Id. at 1013.

                                    Conclusion

      The trial court departed from the essential requirements of law by granting

Nadezda’s motion for a continuance of the trial but then re-scheduling the trial for

a date the trial court knew she would not be available. We also conclude that the

trial court’s trial order, which requires Nadezda’s counsel to proceed to trial

without having deposed three material witnesses and without the plaintiff,

Nadezda, who is also a material witness, will cause material injury throughout the

remainder of the proceedings that cannot be remedied on direct appeal. We,

therefore, grant the petition, quash the order on review, and remand for further

proceedings consistent with this opinion.

      Petition granted.




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