11 Fla. L. Weekly Supp. 412a
Insurance — Appeals — Petition seeking certiorari review of order denying motion to assess costs of allegedly burdensome discovery as condition precedent to compliance is denied in absence of showing of irreparable harm — Further, proper means for establishing burdensomeness of discovery request is through affidavit, which petitioner did not submit to trial court until motion for rehearing
SOUTHERN FAMILY INSURANCE CO., Petitioner, v. DOREEN MITCHELL AND ROLAND MITCHELL, Respondents. Circuit Court, 15th Judicial Circuit (Appellate-Civil) in and for Palm Beach County. Case No. 502003CA001962XXCTAY. March 5, 2004. Petition from the County Court in and for Palm Beach County, Judges Deborah Dale Pucillo and Howard Harrison. Counsel: Stephanie G. Kolman and Jack R. Reiter, Adorno & Yoss, P.A., Miami, for Petitioner. Thomas M. Bates, P.A., West Palm Beach, for Respondents.
(PER CURIAM.) The Petition for Writ of Certiorari is DENIED because there is no showing of irreparable injury. See Topp Telecom, Inc. v. Pollak, 763 So.2d 1197, 1200 (Fla. 4th DCA 2000). Absent a showing of irreparable injury, this petition does not meet the Martin-Johnson standard for granting certiorari review. See Martin-Johnson v. Savage, 509 So.2d 1097, 1099-1100 (Fla. 1987).
Further, the proper means of establishing the burdensomeness of a discovery request is through the timely submission of an affidavit. See Allstate v. Boecher, 733 So.2d 993, 994 (Fla. 1999). In the case at bar, Southern waited until its motion for rehearing to submit an affidavit to the lower court.
Moreover, although Petitioners request to assess the cost of discovery against Appellee as a condition precedent was rejected by the trial court, it should be noted that the trial court retains discretion to assess these costs against either party at the conclusion of the lower court’s proceedings. See Topp Telecom, 763So.2d at 1201 (stating that: “in taxing costs, the trial judge has considerable discretion and it is certainly within such discretion to determine at the end of the case that overly burdensome discovery requests by the losing party should be compensated to some extent by allowing specific requests for costs incurred thereby”).
The Respondents’ motion for appellate attorney’s fees is GRANTED. Respondents, as the prevailing parties, are entitled to recover their attorneys’ fees on remand. (CROW, WINIKOFF, and BLANC, JJ., concur.)
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