310 So.3d 79
Fla. Dist. Ct. App.2021Background
- Alex Nunes was a caregiver for an elderly woman whose adult children (including Valerie Herschman) later litigated a guardianship.
- Nunes was subpoenaed and gave deposition testimony unfavorable to Herschman, who served as guardian.
- Ten days after the deposition, Herschman terminated Nunes’ employment.
- Nunes sued: (1) a whistleblower/retaliation claim (remaining pending) and (2) a statutory claim under section 92.57, Florida Statutes (2017), alleging he was unlawfully fired for testifying in response to a subpoena.
- The trial court dismissed the section 92.57 claim, concluding a deposition is not a "judicial proceeding," and Nunes appealed to the Fourth District Court of Appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a deposition qualifies as a "judicial proceeding" under §92.57 | Depositions are part of judicial procedure and should be treated as judicial proceedings for §92.57 (cites litigation‑privilege context, court rules, and perjury statute definitions) | "Judicial proceeding" means proceedings before a judge (with rulings/adjudication); depositions occur outside the courtroom without a judge and thus are not judicial proceedings | Deposition is not a "judicial proceeding" under §92.57; dismissal of that claim affirmed |
Key Cases Cited
- Palm Beach Newspapers, Inc. v. Burk, 504 So. 2d 378 (Fla. 1987) (depositions are not judicial proceedings because no judge presides and no adjudications occur)
- Barnett v. Antonacci, 122 So. 3d 400 (Fla. 4th DCA 2013) ("judicial proceedings" are hearings before a judge that culminate in a ruling)
- State v. Dolan, 390 So. 2d 407 (Fla. 5th DCA 1980) (discovery depositions described as not true judicial proceedings)
- Wiggins v. S. Mgmt. Corp., 629 So. 2d 1022 (Fla. 4th DCA 1993) (§92.57 applies only where the testimony was given in response to a subpoena)
- Carlile v. Game & Fresh Water Fish Comm’n, 354 So. 2d 362 (Fla. 1977) (statutes using common‑law terms adopt their common‑law meanings absent clear legislative change)
- State v. Brake, 796 So. 2d 522 (Fla. 2001) (courts may consult case law to ascertain statutory meanings)