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Belcher v. Johnson

District Court of Appeal of Florida, Second District
Jan 17, 2003
834 So. 2d 422 (Fla. Dist. Ct. App. 2003)

Summary

holding that an elderly woman with dementia is not disqualified as a witness simply for those reasons

Summary of this case from Hayward v. State

Opinion

Case No. 2D02-2497

Opinion filed January 17, 2003.

Petition for Writ of Certiorari to the Circuit Court for Pinellas County; David Seth Walker, Judge.

Timothy W. Weber of Battaglia, Ross, Dicus Wein, P.A., St. Petersburg, for Petitioners.

Thomas G. Tripp, Pinellas Park, for Respondent.


John and Leesa Belcher petition this court for a writ of certiorari to quash a protective order. The Belchers sought to take the deposition of Harriet L. Roberts, who is an elderly woman suffering from a level of dementia. Her guardian, Patricia Johnson, filed a motion for protective order seeking to prevent the deposition because Ms. Roberts is, to some degree, legally incapacitated. The trial court granted the protective order without an evidentiary hearing and without making a factual determination that Ms. Roberts should be disqualified to testify as a witness under section 90.603, Florida Statutes (2000). Apparently, the trial court assumed that Ms. Roberts' incapacity for purposes of a guardianship proceeding rendered her disqualified to testify as a matter of law. Florida law, however, only disqualifies a witness under specific circumstances. See § 90.603. Under the established law, even a person who has been declared insane can be found competent to testify.See Fla. Power Light Co. v. Robinson, 68 So.2d 406, 413 (Fla. 1953).

Although an order denying discovery may rarely qualify for review by certiorari, we conclude that Ms. Roberts' advanced age and deteriorating mental status render this a case in which review on appeal cannot provide an adequate remedy. Accordingly, we quash the protective order and remand to the trial court to conduct a hearing to determine whether Ms. Roberts should be disqualified from testifying pursuant to section 90.603.

Petition for writ of certiorari granted.

ALTENBERND, SALCINES, and STRINGER, JJ., Concur.


Summaries of

Belcher v. Johnson

District Court of Appeal of Florida, Second District
Jan 17, 2003
834 So. 2d 422 (Fla. Dist. Ct. App. 2003)

holding that an elderly woman with dementia is not disqualified as a witness simply for those reasons

Summary of this case from Hayward v. State

quashing a protective order and remanding to the trial court to conduct a hearing to determine whether a deponent suffering from dementia should be disqualified from testifying

Summary of this case from Scolaro v. Butler

quashing a protective order and remanding to the trial court to conduct a hearing to determine whether a deponent suffering from dementia should be disqualified from testifying

Summary of this case from Scolaro v. Butler
Case details for

Belcher v. Johnson

Case Details

Full title:JOHN BELCHER and LEESA BELCHER, Petitioners, v. PATRICIA JOHNSON, as…

Court:District Court of Appeal of Florida, Second District

Date published: Jan 17, 2003

Citations

834 So. 2d 422 (Fla. Dist. Ct. App. 2003)

Citing Cases

Scolaro v. Butler

In order to avoid discovery, Scolaro will be required to have an examination to determine if he is competent…

Scolaro v. Butler

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