Pursuant to Fla. R. App. 9.100 Files This Petition for the Issuance of a Writ Of

E-Copy Received Nov 27, 2012 2:46 PM IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT OF FLORIDA STATE OF FLORIDA, DEPARTMENT of FINANCIAL SERVICES Petitioner, Case No. 1D12-5053 V. L.T. No. 2011-CA-001706 PETER R. BROWN CONSTRUCTION, INC. Respondent. PETITION FOR WRIT OF CERTIORARI Comes now the State of Florida, Department of Financial Services, and pursuant to Fla. R. App. 9.100 files this petition for the issuance of a writ of certiorari directed to the lower tribunal, which is the Circuit Court, Second Judicial Circuit, In and For Leon County, Florida. In the action below, the Department of Financial Services is a defendant; Signature Art Gallery, Inc. is the plaintiff; Peter R. Brown Construction, Inc., is a to-defendant and a cross plaintiff against co- defendant Department of Management Services. Counsel for each of those parties is listed on the Certificate of Service. Although this matter was originally styled as an appeal taken by the Department of Financial Services, this Court seems to have has restyled the case as "Jeff Atwater, in his capacity as, etc v. Peter R. Brown Construction, Inc." The Department is unsure of why this was done, and surmises that it is the result of confusion caused by the numerous appeals generated by the ii parties to various proceedings below. Accordingly, the Department files this petition in its name and not that of the Chief Financial Officer. If the Court deems this to be inappropriate, the Department will amend according to any instructions issued by the Court. BASIS FOR INVOKING THE JURISDICTION OF THIS COURT Non-final orders of lower tribunals relative to discovery are reviewable via certiorari, not by direct appeal. Allstate Ins. Co. v. Langston, 665 So.2d 91 (Fla. 1995); Giacalone v. Helen Ellis Memorial Hosp. Foundation, 8 So. 3d. 1232 (Fla. 2DCA 2009). "Discovery orders granting overbroad, unduly burdensome or oppressive discovery are traditionally reviewed by certiorari." Commonwealth Land Title Insurance Company v. Higgins, 975 So.2d 1169,1176 (Fla. 1DCA 2008),citing to Home v. Sch. Bd. of Miami-Dade County, 901 So.2d 238, 240 (Fla. 1DCA 1995). Review of a discovery order by certiorari is appropriate when a discovery order departs from the essential requirements of the law, causing material injury to a petitioner throughout the remainder of the proceedings, and effectively leaving no adequate remedy on appeal. Banco Latino (S.A. C.A.) v. Kimberly, 979 So.2d 1169, (Fla. 3DCA 2008); L?fe Care Centers of America v. Reese, 948 So.2d 830 (Fla. 5DCA 2007). The discovery order here for review departs from the essential requirements of the law, will cause a material injury to the petitioner throughout the remainder of the proceedings, and leaves the petitioner no adequate remedy on appeal. Accordingly, the certiorari jurisdiction of this court is properly invoked. FACTS UPON WHICH THE PETITIONER RELIES 1. Mr. Robert C. "Budd" Kneip is Chief of Staff to the Mr. Jeff Atwater, who is head of the Department of Financial Services. As such, he is second in command and subordinate only to Mr. Atwater who, as Chief Financial Officer, is statutorily designated as head of the Department. See, Section 20.121, Fla. Stat.. 2. Peter R. Brown Construction, Inc. (Brown), co-defendant and cross plaintiff below, was the "construction manager at risk" and acted as general contractor for the construction of the first District of Appeal Courthouse. During the course of that project, Brown entered into a subcontract with Signature Art Gallery, Inc. (Signature Art) for the provision of 357 framed photographic reproductions to be fabricated and installed in the courthouse. 3. For the reasons stated in a quasi-judicial Final Order (included in the appendix) Mr. Atwater found that as Chief Financial Officer he could not pay the vouchers submitted to him for the services rendered under the Brown/Signature Art subcontract because of the lack of a lawful appropriation to pay for the same. 4. In the action below, Signature Art has sued Brown, the Department of Management Services, the Department of Financial Services, and has recently filed a Third Amended Complaint naming the Chief Financial Officer as a defendant. Brown has filed a cross complaint against the Department of Management Services. Although a Third Amended Complaint has been filed, the Second Amended Complaint was the operative charging document at the times relevant to this petition. 5. The Second Amended Complaint consisted of four countsall sounding in contract. The first count alleged the breach of a subcontract between Brown and Signature Art for the fabrication and installation of the reproductions. The first count did not allege that the Department of Financial Services was a party to that contract. 6. The second count alleged the breach of an implied covenant of good faith and fair dealing. The second count did not allege that the Department of Financial Services had perpetrated that breach; that breach was alleged only against the Department of Management Services. 7. The third count allegedly stated a cause of action in estoppel based on Signature Art's alleged reliance on representations allegedly made by the Department of Management Services to induce Signature Art to enter into its subcontract with Brown. The third count did not allege that the Department of Financial Services made any representations of any sort to Signature Art to induce it to act in any way 8, The fourth count asked for declaratoryrelief relativetothe subcontract between Brown and Signature Art and the General Contract between Brown and the Department of Management Services. The fourth count did not alleged that the Department of Financial Services was a party to either of those contracts. 9. In fact, the Department of Financial Services was not and is not a party to any of the contracts at issue, and all those contracts were both executed and frilly performed prior to the time that Mr. Atwater and Mr. Kneip assumed their current positions. 10. On October 5, 2012, Brown filed Notices of Deposition in which it proposed to take the depositions of both Mr. Atwater and Mr. Kneip. Motions for Protective Orders were filed on behalf of both Mr. Atwater and Mr. Kneip. After hearing held on October 19, 2012, the court entered an order granting the protective order as to Mr. Atwater, but denying a protective order as to Mr. Kneip. The order denying relief to Mr. Kneip does not explain why that relief was denied as to him but granted as to Mr. Atwater. More importantly, the trial court made no findings that Mr. Kneip possessed unique personal knowledge relevant to any count of the Second Amended Complaint that was not available from other, lesser ranking, department personnel. 11. The trial court denied a motion to stay its order as to Mr. Kneip Notice of Appeal of a Non-Final Order was filed on October 19, 2012, and an Emergency Motion for Stay was filed with this court on that same date. NATURE OF THE RELIEF SOUGHT The Department of Financial Services seeks the issuance of a writ of certiorari to the lower tribunal quashing the order denying protective relief to Mr. Kneip, and directing it to grant the motion for a protective order and release Mr. Kneip from the deposition notice served on him by Brown. ARGUMENT AND AUTHORITIES A. The Trial Court Departed From The Essential Requirements Of The Law. It has been repeatedly held that agency heads and other high-ranking agency personnel are not susceptible to depositions unless and until other discovery, including that obtained from lower ranking officials, is exhausted and it can be shown that the agency head or other high ranking official has unique and relevant knowledge unavailable elsewhere. State, Dept. of Health and Rehabilitative Services v. Brooke, 573 So.2d 363 (Fla. 1st DCA 1991), approved by F.G. v. Agency for Persons with Disabilities, 940 So.2d 1095 (Fla. 2006); Jim Home Fl. Dep 't of Education v. School Board of Miami-Dade County, Florida, 901 So.2d 238 (Fla.1stDCA 2005) Dep't. of Agriculture and Consumer Services v. Broward County, 810 So.2d 1056 (Fla. 1st DCA 2002); Hadi v. LB., B.B., R.B., andE.B., 946 So.2d 11 (Pta. 1St DCA 2006). This means that in order to subject department heads and similar high-ranking officials to a deposition, the trial court must first find that other discovery has been exhausted, and then find that they possess unique personal knowledge relevant to the matters at issue that is not available from other, tesser ranking, agency personnel. Here, the trial court simply did not do so. Here, at the time of the Notices of Deposition and at the time of the hearing, there had been no discovery taken from any lower ranking Department officials, there was no showing that Mr. Kneip had any unique personat knowledge not available from those lower ranking officials, and there was no showing that his knowledge was relevant to any count of the Second Amended Complaint. Indeed, the Notice failed to even specif' any areas of inquiry for Mr. Kneip. While no reported case has expressly dealt with taking the deposition of a chief of staff rather than an agency head, the chief of staff position certainly fits within the ambit of "similarly high ranking agency personnel", especially where, as here, the chief of staff is second in command only to the agency head. The hearing transcript shows that Brown desired to explore the notion of "bias" by Mr. Atwater. However, the transcript atso shows a failure to establish 7 any sort of basis for that allegation, a failure expressly recognized by the trial judge who stated.

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