IN THE SUPREME COURT OF FLORIDA CASE NO. SC FIRST DISTRICT CASE NO. 1D L.T. CASE NO CA WENDY HABEGGER, Petitioner, vs.

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1 Filing # Electronically Filed 03/26/ :24:29 AM RECEIVED, 3/26/ :28:40, John A. Tomasino, Clerk, Supreme Court IN THE SUPREME COURT OF FLORIDA CASE NO. SC FIRST DISTRICT CASE NO. 1D L.T. CASE NO CA WENDY HABEGGER, Petitioner, vs. UNIVERSITY OF WEST FLORIDA BOARD OF TRUSTEES; DAVID DICKEY; SINCLAIR COMMUNICATIONS LLC d/b/a WEAR-TV 3, Respondent. RESPONDENT UWF S AMENDED BRIEF ON JURISDICTION PAMELA E. LANGHAM Pamela E. Langham, P.A. Florida Bar No Baybridge Drive Gulf Breeze, FL pam@langham.net Attorney for UWF

2 PREFACE The Respondent, UNIVERSITY OF WEST FLORIDA BOARD OF TRUSTEES, will be referred to throughout this brief as Respondent or UWF. The Petitioner, WENDY HABEGGER, will be referred to throughout this brief as Petitioner or Plaintiff. Citations to A refer to the Appendix to Petitioner s Amended Brief on Jurisdiction. Citations to PABJ refer to the Petitioner s Amended Brief on Jurisdiction. ii

3 TABLE OF CONTENTS PREFACE... ii TABLE OF CONTENTS... iii TABLE OF CITATIONS... iv STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT ARGUMENT AND CITATIONS OF AUTHORITY...3 I. There has been no question certified to be of great public importance..3 II. III. The decision of the First District does not expressly and directly conflict with a decision of another district court of appeal or of the Supreme Court on the same question of law...5 The decision of the First District does not expressly affect a class of constitutional or state officers CONCLUSION...9 CERTIFICATE OF COMPLIANCE...11 CERTIFICATE OF SERVICE...11 iii

4 TABLE OF CITATIONS CASES: Allstate Ins. Co. v. Langston, 655 So. 2d 91(Fla. 1995)... 4 Dept. of Ag. & Consumer Services v. Broward County, 810 So.2d 1056 (Fla. 1 st DCA 2002)..6, 7, 8 Estes v. City of N. Miami Beach, 227 So.2d 33 (Fla. 1969) 4 Horne v. Sch.Bd., 901 So.2d 238 (Fla. 1 st DCA 2005) 6, 7 Miami-Dade County v. Dade County Police Benevolent Ass n, 103 So.3d 236 (Fla. 3 rd DCA 2012) 6, 8 Reaves v. State, 485 So.2d 829, 830 (Fla. 1986).. 1 Spradley v. State, 293 So.2d 697 (Fla. 1974) 9 Wells v. State, 2014 Fla. LEXIS 138 (Fla. Jan. 16, 2014)... 1 STATUTES: Art. V, Sec. 3(b)(3), Fla. Const....4, 5 iv

5 STATEMENT OF THE CASE AND FACTS In all petitions seeking this Court's discretionary jurisdiction pursuant to Article V, section 3(b)(3), the Court may only consider those facts contained within the four corners of the district court's majority opinion. Wells v. State, 2014 Fla. LEXIS 138 (Fla. Jan. 16, 2014), citing Reaves v. State, 485 So.2d 829, 830 (Fla. 1986). The Petitioner s Amended Brief on Jurisdiction contains numerous alleged facts that are not within the four corners of the district court s decision and references an appendix filed with the First District Court of Appeal (hereinafter First District ) on July 9, [See PABJ p.1] Here is a statement of the case and facts from the First District s decision [See A]: The Plaintiff was employed as an assistant professor at UWF. In January 2009, her contract with UWF was terminated. Pursuant to her collective bargaining agreement, she remained employed until January After her contract was terminated, the Plaintiff filed a several count employment discrimination lawsuit against UWF. The complaint also included a claim for tortious interference with business relationship against defendant David Dickey that alleged Dickey had interfered with her business relationship with UWF by communicating disparaging information about her to UWF and to the public. While the Plaintiff had raised claims against UWF, discovery into these 1

6 claims was not at issue before the trial court. Plaintiff sought to depose Judith Bense, UWF s President, in conducting discovery of Plaintiff s claim against defendant Dickey based upon the allegation that Dickey had communicated disparaging information about Plaintiff to President Bense. President Bense confirmed that she had had one conversation with Dickey in May 2009, but asserted that the conversation was not relevant to the Plaintiff s claim against Dickey and had no bearing upon the decision to terminate the Plaintiff because that decision had been made four to five months earlier. President Bense also asserted that she was not involved in the decision to terminate the Plaintiff. UWF filed a motion for protective order objecting to the deposition of President Bense. UWF argued that there were less intrusive alternative discovery methods for the Plaintiff to obtain the same information and that forcing President Bense to testify at a deposition was unnecessary and unduly burdensome. The Plaintiff urged that deposing President Bense was relevant and necessary, and the trial court agreed, denying the motion for protective order and compelling President Bense s deposition. The trial court found that the Plaintiff was not required to exhaust all alternative discovery mechanisms because President Bense had acknowledged direct contact with defendant Dickey. UWF filed a petition for writ of certiorari to quash the trial court s order 2

7 denying its motion for protective order and compelling the deposition of President Bense. The First District granted the petition in its decision filed October 16, The Plaintiff subsequently filed a Motion for Rehearing En Banc, which was denied by Order dated November 26, The Plaintiff then filed her Notice of Appeal to this Court and her Amended Brief on Jurisdiction. SUMMARY OF THE ARGUMENT The Petitioner s Amended Brief on Jurisdiction fails to establish any basis for Florida Supreme Court discretionary review jurisdiction. No question was certified to be of great public importance by the First District. The First District s decision is not expressly and directly in conflict with any other district court of appeal decision or any decision of the Supreme Court. In fact, all authorities discussed in the decision support the First District s statement of the applicable law and the application of that law to the facts of this case. The decision below also does not expressly affect a class of constitutional or state officers. ARGUMENT AND CITATION OF AUTHORITIES I. THERE HAS BEEN NO QUESTION CERTIFIED TO BE OF GREAT PUBLIC IMPORTANCE. No question was certified here by the First District. Consequently, there is no jurisdiction pursuant to Rule 9.030(a)(2)(A)(v). For there to be jurisdiction 3

8 based on a question of great public importance, such question must be expressly certified as such by the district court. See Art. V, Sec. 3(b)(4), Fla. Const.; Estes v. City of N. Miami Beach, 227 So.2d 33, 34 (Fla. 1969) ( certification is a prerequisite to our jurisdiction. ); Allstate Ins. Co. v. Langston, 655 So. 2d 91, 93 fn1 (Fla. 1995) ( This Court may only review questions of great public importance that are certified by a district court of appeal. ). Petitioner s contention that a question of great public importance exists does not provide the necessary grounds. Id. Additionally, in Point I of her brief, the Petitioner completely misstates the decision of the First District. The First District did not hold that evidence that is known to be relevant and possessed only by the agency head, must be withheld only because the witness, who has the knowledge, is an agency head. [PAJB p.4] Rather, the First District found that President Bense s deposition was unnecessary and irrelevant to the [Petitioner s] claim for tortious interference against defendant Dickey and that the Petitioner failed to show that President Bense s deposition could be reasonably calculated to lead to the discovery of relevant evidence. [See A] Thus, the First District did not approve the withholding of relevant evidence. Rather, there was no relevant evidence to be had by deposing Dr. Bense in the context of Plaintiff s tortious interference with business relationship claim. 4

9 II. THE DECISION OF THE FIRST DISTRICT DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH A DECISION OF ANOTHER DISTRICT COURT OF APPEAL OR OF THE SUPREME COURT ON THE SAME QUESTION OF LAW. Article V, Section 3(b)(3), Florida Constitution, provides the basis for the Supreme Court s direct conflict jurisdiction. Section 3(b)(3) states that, in order to meet jurisdictional requirements, the decisional conflict must be both express and direct: (b) JURISDICTION.-- The supreme court: *** (3) May review any decision of a district court of appeal... that expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law. Art. V, 3(b)(3), Fla. Const. This provision is the basis for Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv) (hereinafter Rule ). By the plain language of the Constitution and Rule 9.030, a decision of a district court of appeal must expressly and directly conflict with a decision of another district court of appeal or of the Supreme Court on the same question of law in order to qualify for review. Here, the opinion below establishes no point of law contrary to a decision of this Court or another district court. The Petitioner s Amended Brief on Jurisdiction does not identify any conflict with any Supreme Court decisions and the only other district court of 5

10 appeal decisions cited in the brief are Horne v. Sch.Bd., 901 So.2d 238 (Fla. 1 st DCA 2005), Dept. of Ag. & Consumer Services v. Broward County, 810 So.2d 1056 (Fla. 1 st DCA 2002), and Miami-Dade County v. Dade County Police Benevolent Ass n, 103 So.3d 236 (Fla. 3 rd DCA 2012). Horne and Dept. of Ag. &Consumer Services, like the decision in question, are both First District decisions and thus cannot form the basis for conflict jurisdiction as the Constitution plainly requires the decision in question to expressly and directly conflict with a decision of another district court of appeal to allow review. Moreover, while the Petitioner s Amended Brief on Jurisdiction cites to these decisions, the Petitioner does not clearly identify any express and direct conflict with any of these decisions. The Petitioner s Amended Brief on Jurisdiction does not identify any such conflict because there is none. In Horne v. Sch.Bd., 901 So.2d 238 (Fla. 1 st DCA 2005), the First District explained the general rule: the agency head should not be subject to deposition, over objection, unless and until the opposing parties have exhausted other discovery and can demonstrate that the agency head is uniquely able to provide relevant information which cannot be obtained from other sources. To hold otherwise would, as argued by the department, subject agency heads to being deposed in virtually every rule challenge proceeding, to the detriment of the efficient operation of the agency in particular and state government as a whole. 6

11 Horne v. Sch. Bd., 901 So. 2d 238, 240 (Fla. 1 st DCA 2005), citing Department of Agriculture and Consumer Services v. Broward County, 810 So. 2d 1056, 1058 (Fla. 1 st DCA 2002). Horne held that this general rule applied equally to former agency heads and high-ranking officials in circumstances involving past official conduct. Horne, 901 So. 2d at 24. Here, the First District specifically cited Horne in support of its decision below in requiring that Petitioner satisfy two requirements: (1) exhaust other discovery tools and (2) show that the agency head was uniquely able to provide relevant information which could not be obtained from other sources. The Petitioner admittedly did not exhaust other discovery methods and the Petitioner failed to show that President Bense could provide relevant information to her tortious interference claim against defendant Dickey. The undisputed evidence established that the only direct contact President Bense had with defendant Dickey was months after UWF s decision to terminate the Petitioner had already been made. As such, President Bense s deposition was unnecessary and irrelevant to the Petitioner s claim for tortious interference against defendant Dickey. The opinion below is consistent with Horne, not in conflict. The First District likewise relied on Dept. of Ag. & Consumer Services v. Broward County, 810 So.2d 1056 (Fla. 1 st DCA 2002) in requiring the Petitioner to 7

12 satisfy the two elements set forth above exhaustion of discovery and relevance. The decision below applied the same principles of law as Dept. of Ag. & Consumer Services, and applied those principles in a manner consistent with Dept. of Ag. & Consumer Services. Thus, there is no conflict with Dept. of Ag. & Consumer Services. The decision below does not conflict with Miami-Dade County v. Dade County Police Benevolent Ass n, 103 So.3d 236 (Fla. 3 rd DCA 2012) ( Miami- Dade County ). In Miami-Dade County, the Third District quashed a trial court order which required the mayor of Miami to testify in an unfair labor practice proceeding filed by the Dade County Police Benevolent Association ( PBA ). In quashing the order, the appellate court noted that the testimony sought was from a high-ranking government official as to information that was readily available from other sources. The decision below is consistent with Miami-Dade County. Here, the Petitioner likewise did not attempt to exhaust other discovery alternatives. The Petition merely reiterates the Petitioner s disagreement with the district court s decision but it fails to articulate any express and direct conflict between the district court s decision and a decision of another district court of appeal or of the Supreme Court. Consequently, there is no jurisdiction pursuant to Rule 9.030(a)(2)(A)(iv). 8

13 III. THE DECISION OF THE FIRST DISTRICT DOES NOT EXPRESSLY AFFECT A CLASS OF CONSTITUTIONAL OR STATE OFFICERS. Article V, Sec. 3(b)(3), of the Florida Constitution allows this Court to take jurisdiction of a cause in which the district court opinion expressly affects a class of constitutional or state officers. The Court discussed this narrow provision in Spradley v. State, 293 So.2d 697, 701 (Fla. 1974) (emphasis in original): To vest this Court with certiorari jurisdiction, a decision must directly and, in some way, exclusively affect the duties, powers, validity, formation, termination or regulation of a particular class of constitutional or state officers. There is nothing in the decision below that affects the duties, powers, validity, formation, termination or regulation of heads of state agencies. The decision below pertains only to a litigant s burden in seeking discovery from the head of a state agency. CONCLUSION Based on the foregoing arguments and authorities, this Court should decline discretionary review of the First District s decision in accordance with Art. V, Sec. 3, Fla. Const. 9

14 Respectfully submitted this 26 th day of March, /s/ Pamela E. Langham Pamela E. Langham, Esquire Florida Bar No.: Baybridge Drive Gulf Breeze, FL Attorney for UWF 10

15 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished by electronic transmission to Cecile M. Scoon, Esquire, 25 East Eighth Street, Panama City, Florida 32401, cmscoon2@knology.net, cmscoon1@knology.net and Ray Higgins, Esquire, and Larry Matthews, Esquire, 114 East Gregory Street, Pensacola, Florida rhiggins@matthewshigginslaw.com, lmatthews@matthewshigginslaw.com by transmission and U.S. Mail this 26th day of March, /s/ Pamela E. Langham Pamela E. Langham, Esquire CERTIFICATE OF COMPLIANCE Undersigned counsel hereby certifies that Respondent s Amended Brief On Jurisdiction is submitted in Times New Roman 14-point font in compliance with the requirements of Rule of the Florida Rules of Appellate Procedure. /s/ Pamela E. Langham Pamela E. Langham, Esquire 11