IN THE DISTRICT COURT OF APPEAL THIRD DISTRICT, STATE OF FLORIDA

Transcription

1 IN THE DISTRICT COURT OF APPEAL THIRD DISTRICT, STATE OF FLORIDA RECEIVED, 12/21/ :21 AM, Mary Cay Blanks, Third District Court of Appeal SOLO AERO CORP., a Florida corporation, vs. Petitioner, AMERICA-CV NETWORK, LLC and AMERICA-CV STATION GROUP, INC., Respondents. / Case No.: 3D Lt. Case No.: CA 06 REPLY TO RESPONSE TO PETITION FOR WRIT OF CERTIORARI eservice@mmlwmiami.com jmcdonald@mmlawmiami.com Florida Bar No Attorneys for Appellant Solo Aero Corp. The Barrister Building 8821 S.W. 69 th Court Miami, FL Telephone: (305) Facsimile: (305)

2 TABLE OF CONTENTS Page The Trial Court Departed From Essential Requirements of the Law in Ordering the Production of the Psychologist s Report... 4 Waiver Issue... 4 Conclusion... 5 Certificate of Service... 6 Certificate of Compliance ii-

3 TABLE OF AUTHORITIES Cases State v. Flamiglietti, 817 So.2d 901, (Fla. 3d DCA 2002)... 4 State v. Topps, 142 So.3d 978, 981 (Fla. 4 th DCA 2014)... 5 Rules Rule 9.210(f)... 4 Florida Statutes Fla. Stat (4)(9)(c) iii-

4 REPLY TO RESPONSE TO PETITION FOR WRIT OF CERTIORARI Petitioner, SOLO AERO CORP. ( Solo ), through undersigned counsel and pursuant to Rule 9.210(f), Florida Rules of Appellate Procedure hereby files this Reply to Respondents Response to Petition for Writ of Certiorari and states as follows: I. The Trial Court departed from the essential requirements of the law in ordering the production of the psychologist s report. Respondents have ignored the central argument made to the trial court and being asserted here: Jesus de Jesus, the patient whose record is being sought, is not a party to this case nor has Solo put Mr. de Jesus mental or emotional condition as an element of Solo s claim. This court has addressed this very issue in State v. Flamiglietti, 817 So.2d 901, (Fla. 3 rd DCA 2002) (en banc). II. Waiver Issue Because Respondents have not demonstrated an exception to the statutory privilege under Fla.Stat (4)(9)(c), the issue of waiver should not be reached. Nevertheless, the testimony of Dr. Boswell is clear that the letter he produced reflecting his treatment of non-party Mr. de Jesus was submitted to the state attorney s office only for purposes of plea negotiation and not expected to be part of the public record (App. 13, p. 5, l , p. 6, l. 1-12). -4-

5 The cases cited by Respondents are all distinguishable. While the quote from State v. Topps, 142 So.3d 978, 981 (Fla. 4 th DCA 2014) is accurate, the Court held the disclosure made in the presence of a third party (police officer) was not voluntary. Similarly, the other cases cited by Respondents are distinguishable on their facts and not applicable to the issue before this court. CONCLUSION Because Respondents theory of damages is insufficient to overcome the statutory privilege, the petition should be granted and the trial court s Order be granted. Respectfully submitted,, P.A. The Barrister Building 8821 S.W. 69 th Court Miami, FL By /s/ -5-

6 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was ed to: Omar Ortega, Esq., Rey Dorta, Esq., Nicole Ruesca, Esq., DORTA & ORTEGA, P.A., rdorta@dortaandortega.com; oortega@dortaandortega.com; nruesca@dortaandortega.com; ymanzini@dortaandortega.com; 3860 S.W. 8 th Street, PH, Coral Gables, FL on December 21, By /s/ -6-

7 CERTIFICATE OF COMPLIANCE The undersigned hereby certifies that this brief complies with the font requirements set forth in Florida Rule of Appellate Procedure by using Times New Roman 14-point font. By /s/ -7-