Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT PETRO WELT TRADING Ges.m.b.H, an Austrian limited liability company; PETRO WELT TECHNOLOGIES AG, an Austrian stock corporation; TRADING HOUSE KAToil LLC, a Russian limited liability company; KATKoneft LLC, a Russian limited liability company; KATOBNEFT LLC, a Russian limited liability company; and KAToil-Drilling LLC, a Russian limited liability company, Petitioners, v. EDWARD BRINKMANN, an individual, and MAJAB DEVELOPMENT, LLC, a Florida limited liability company, Respondents. No. 2D20-3570 April 29, 2022 Petition for Writ of Certiorari to the Circuit Court for Collier County; Elizabeth V. Krier, Judge. Richard G. Salazar and Chance Lyman of Buchanan Ingersoll & Rooney, PC, Tampa; and Oleg Stolyar and Robert Catalano of Loeb & Loeb, LLP, Los Angeles, California, for Petitioners. Gary M. Carman and Richard F. Danese of Gray Robinson, Miami; and Kristie Hatcher-Bolin of Gray Robinson, Lakeland, for Respondents. SMITH, Judge. The Petro Welt petitioners seek certiorari review of an order that granted a motion to quash service related to the deposition notice for one witness, denied it as to another, and denied a motion for protective order related to the subpoenas for the depositions of several of its corporate employees.1 This petition seeks review of certain portions of the order—the denial of the motion for protective order as to three specific witnesses and the additional denial of the motion to quash service as to one. In the absence of a departure from the essential requirements of the law, we deny the petition. Petro Welt originally argued that the trial court departed from the essential requirements of law when it failed to enter a protective 1 The petitioners, a group of foreign companies in the oil and gas industry—including Petro Welt Ges.m.b.H, Petro Welt Technologies AG, Trading House KAToil LLC, KATKoneft LLC, KATOBNEFT LLC, and KAToil-Drilling LLC (collectively Petro Welt)— are the plaintiffs in a pending action for fraud, unjust enrichment, conversion, civil theft, fraudulent transfer, and violations of sections 772.103 and 895.03, Florida Statutes, brought against an individual (Brinkmann) who is alleged to have embezzled and laundered the assets of the foreign companies through an LLC, Majab, through land purchases in Collier County in conjunction with other individuals in Europe. 2 order for the three corporate individuals through an application of the original apex doctrine to high-level corporate officials. At the time, "[t]he essence of Florida's apex doctrine [was] that '[an] 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.' " Suzuki Motor Corp. v. Winckler, 284 So. 3d 1107, 1109 (Fla. 1st DCA 2019) (examining the issue of whether the original apex doctrine should be expanded to corporate representatives but concluding that the trial court did not depart from the essential requirements of law where, at the time of the denial of the motion for protective order, the doctrine had not been expanded to include corporate officers (third alteration in original) (quoting Dep't of Agric. & Consumer Servs. v. Broward County, 810 So. 2d 1056, 1058 (Fla. 1st DCA 2002)), review dismissed, SC19-1998, 2021 WL 3778726, at *1 (Fla. Aug. 26, 2021). This court ordered supplemental briefing pertaining to the Florida Supreme Court's recent adoption of a rule, which creates an express Apex Doctrine applying to private corporate officials, that was adopted while this appeal was 3 pending.2 See In re Amend. to Fla. Rule of Civ. Proc. 1.280, 324 So. 3d 459 (Fla. 2021). Specifically, Florida Rule of Civil Procedure 1.280(h) was added and reads: Apex Doctrine. A current or former high-level government or corporate officer may seek an order preventing the officer from being subject to a deposition. The motion, whether by a party or by the person of whom the deposition is sought, must be accompanied by an affidavit or declaration of the officer explaining that the officer lacks unique, personal knowledge of the issues being litigated. If the officer meets this burden of production, the court shall issue an order preventing the deposition, unless the party seeking the deposition demonstrates that it has exhausted other discovery, that such discovery is inadequate, and that the officer has unique, personal knowledge of discoverable information. The court may vacate or modify the order if, after additional discovery, the party seeking the deposition can meet its burden of persuasion under this rule. The burden to persuade the court that the officer is high-level for purposes of this rule lies with the person or party opposing the deposition. This rule change was made after the filing of the petition in this case. The nature of the opinion setting forth this rule change guides both parties and courts in applying the new Apex Doctrine rule's 2 When it did so, it dismissed review of the pending appeal in which it previously had accepted jurisdiction regarding that issue. See Suzuki, SC19-1998, 2021 WL 3778726, at *1; see also Suzuki, 284 So. 3d 1107. 4 language—setting forth both procedures and burdens. 324 So. 3d 459. Regarding its effective date, that opinion states that "[t]he amendment shall become effective immediately upon the issuance of this opinion, and it applies in pending cases. Where appropriate, courts should exercise their discretion to allow parties a reasonable opportunity to convert a pending motion for protective order under rule 1.280(c) to a motion under new rule 1.280(h)." Id. at 463–64 (emphasis added). Although the original motion for protective order in this case was resolved in the lower tribunal prior to the rule change, the case itself remains pending in the circuit court, as does the instant review of that motion's denial by way of this court's original certiorari jurisdiction.3 The new rule clearly anticipates certain 3 The reference in the rule to the term "pending" is not expressly limited to trial courts, but the context suggests that the nature of the term applies most directly to the status of the case in the trial court over any pending review at the appellate level through original certiorari jurisdiction that exists concurrently with the pending nature of the case in the lower tribunal. Regardless, the depositions of the corporate witnesses in this case have not yet been conducted, the parties have neither requested nor obtained a stay, and the trial court has not lost jurisdiction to continue hearing discovery matters while this petition was pending. Philip J. Padavano, 2 Fla. Prac., Appellate Practice § 1:6, Jurisdiction pending review, (2022 ed.) ("The filing of a [Florida Rule of Appellate 5 factual findings that the trial court should make in the first instance. 324 So. 3d at 463. Petro Welt argues in its supplemental brief that despite the facts that the original apex doctrine did not apply to corporate officers and the rule change had not occurred at the time the trial court entered its order, its existence now can constitute a departure from the essential requirements of law sufficient to grant the petition where Petro Welt met all of its burdens under the new rule while Brinkmann did not. This begs the question whether a trial court's denial could ever constitute a departure from a rule that did not exist at the time of the decision but was created while certiorari review was pending, regardless of the rule's effective date and the Procedure 9.100] petition to invoke original appellate jurisdiction generally does not restrict the exercise of jurisdiction by the lower tribunal. . . . [T]he lower tribunal has continuing jurisdiction to enter all orders, including the final order disposing of the case, unless the appellate court has entered a stay or an order that otherwise prevents further action in the lower tribunal."); see also Baldwin v. State, 20 So. 3d 991, 992 (Fla. 1st DCA 2009) ("The filing of a petition for writ of certiorari involving a non-final order invokes this court's original jurisdiction. Fla. R. App. P. 9.030. In such instances, a lower court retains 'continuing jurisdiction to enter all orders . . . .' " (quoting Philip J. Padovano, Florida Appellate Practice § 1.6 (2009 ed.))). Therefore, from the moment the new rule became effective, the parties have been free to reseek a protective order under the new rule 1.280(h). 6 finality of review. See Balzer v. Ryan, 263 So. 3d 189, 190–91 (Fla. 1st DCA 2018) ("A departure from the essential requirements of law requires something more than mere legal error . . . . Clearly established law can derive from controlling precedent, but if there is no controlling precedent, 'certiorari relief cannot be granted because "[w]ithout such controlling precedent, [a district court] cannot conclude that [a circuit court] violated a clearly establish[ed] principle of law." ' " (alterations in original) (footnote omitted) (quoting Dep't of Highway Safety & Motor Vehicles v. Edenfield, 58 So. 3d 904, 906 (Fla. 1st DCA 2011))); cf. Nader v. Fla. Dep't of Highway Safety & Motor Vehicles, 87 So. 3d 712, 723 (Fla. 2012) ("[C]ertiorari jurisdiction cannot be used to create new law where the decision below recognizes the correct general law and applies the correct law to a new set of facts to which it has not been previously applied. In such a situation, the law at issue is not a clearly established principle of law."). This notion that the trial court could not have departed from the law, which did not exist at the time of the trial court's ruling, is essentially something that might have otherwise been before the Florida Supreme Court to address in its review of Suzuki prior to 7 adoption of the new Apex Doctrine rule. See Suzuki, 284 So. 3d 1107 (examining the issue of whether the original apex doctrine should be expanded to corporate representatives but concluding that the trial court did not depart from the essential requirements of law where at the time of the denial of the motion for protective order the original apex doctrine had not been expanded to include corporate officers). Suzuki concluded with the First District denying the certiorari petition. Id. at 1109 ("[I]t follows that because the apex doctrine [has not] been adopted in the corporate context, the trial court did not depart from the essential requirements of the law by refusing to apply this doctrine to Suzuki Motor Corporation's corporate officer."). Like Suzuki, we can conclude there was not a departure because the trial court was without the new Apex Doctrine rule to apply to corporate officials at the time of the denial of the motion for protective order here. This basis for denial is further supported by the fact that the parties here now additionally have the ability to seek protection in the trial court under the new rule that was created while this petition was pending, similar to conclusions reached by this court in other discovery certiorari matters when, although a discovery order essentially determines 8 that discovery is preliminarily available, a basis for asserting privilege in the trial court remains available to the party seeking to prevent the discovery. See Tedrow v. Cannon, 186 So. 3d 43, 49 (Fla. 2d DCA 2016) ("Based on the limited record before this court and the circuit court's basic ruling compelling discovery, we cannot conclude that the circuit court made a ruling on the privileged nature of the information or that the circuit court departed from the essential requirements of law in doing so. We treat the circuit court's order as a preliminary ruling that the information is discoverable, noting that Tedrow and Bryant may assert the privileges prior to the depositions. Accordingly, we deny Tedrow's petition for writ of certiorari."). Accordingly, we deny the petition for writ of certiorari for reasons similarly expressed by Suzuki's recognition that no departure occurs where the denial of the motion for protective order occurred before the Apex Doctrine rule creation and where the parties are free to present the new rule as a basis for entry of a protective order by the trial court. We note that our denial remains without prejudice to Petro Welt's seeking a protective order through the filing of a new motion under the new Apex Doctrine rule. 9 Because we deny the petition, we decline to further address the issues related to personal service over corporate service of two of these individuals prior to the trial court's consideration of the application of the Apex Doctrine rule in regard to these witnesses.4 Denied. KELLY and LABRIT, JJ., Concur. Opinion subject to revision prior to official publication. 4 Briefing was also ordered because one of the three witnesses at issue no longer works as a corporate officer for the petitioner on whom the notice of deposition was served, thereby arguably requiring personal service in order to depose this witness. No party has indicated whether, in light of the changes in status and rule, the parties have sought further proceedings in the trial court to determine whether service on the party who left the corporation was effectuated or whether the Apex-Doctrine-related rule change now precludes the depositions of some or all of the corporate officers. As discussed in this opinion, this court's original certiorari jurisdiction did not preclude the trial court from considering such matters during its pendency, and whether the service must be reeffectuated personally on the witness who is no longer a corporate officer is a matter that is best resolved in the trial court in conjunction with any remaining considerations resolving the application of the Apex Doctrine rule. 10