Perez v. Gallego, (J. Bokor; 3DCA; 1/11/23). Gallego served as the president of Hammocks Community Association. On October 26, 2020, Gallego filed a six-count complaint alleging defamation and tortious interference with a business relationship against Perez and Luffi, two officers. Subsequently, the State pursued criminal charges resulting in her arrest and active, ongoing criminal proceedings. During discovery in the civil suit, Gallego failed to timely respond to Perez and Luffi’s discovery requests, resulting in orders granting motions to compel responses to their discovery requests. Subsequently, instead of complying with the orders compelling discovery, and despite previously indicating that she would not be seeking a stay, Gallego’s counsel indicated to Perez and Luffi’s counsel that Gallego would invoke her Fifth Amendment right against self-incrimination and sought a stay of proceedings based thereon. The trial court granted Gallego’s motion to stay pending the resolution of the criminal case. The trial court granted the stay, and the officers filed a petition for a writ of certiorari. Perez and Luffi argue that: (1) the trial court’s ruling causes irreparable harm because it indefinitely delays their right to assert official immunity from suit under section 768.28(9)(a), Florida Statutes; and (2) Gallego improperly used her Fifth Amendment privilege against selfincrimination as both a sword and a shield in contravention of applicable case law resulting in a departure from the essential requirements of law. Gallego argues that: (1) Perez and Luffi are not entitled to certiorari relief because they have shown no irreparable harm; and (2) the trial court did not depart from the essential requirements of law. The cited form of immunity shields officers, employees, and agents of the State of Florida and any of its political subdivisions unless the person acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. Immunity must be determined at the earliest possible stage of a legal 5 proceeding. The DCA held that delay in the immunity determination caused by the indefinite stay constitutes irreparable harm, irremediable on appeal. Also, Gallego provided no case law in the trial court or DCA supporting an indefinite state based on invocation of the Fifth Amendment right to remain silent. Florida’s sword-and-shield doctrine states that the Fifth Amendment cannot be used as both a sword and shield, which is what Gallego was attempting to do by using it offensively in the civil suit to obtain a stay. (NOTE: There was no real analysis of why a “stay” constitutes an affirmative attack—a “sword”—as opposed to something neutral. When a case is stayed, the defendant need do nothing. Thus, it is hard to see what harm is caused, and it is surprising to see a DCA determine that a party having to wait a long time for a result in a civil case constitutes irreparable harm given the amount of time many cases take to decide. The motto of the Supreme Court of Florida and all of the district courts of appeal, adopted in 1950, The present seal was officially adopted in 1950, is the Latin phrase Sat Cito Si Recte (pronounced as saht see-to see rayk-tay), which means "Soon enough if done rightly." The phrase indicates the importance of taking the time necessary to achieve true justice.). The DCA noted that there was a well-established exception where “special circumstances” warranted a stay where a person, “who is a defendant in both a civil and criminal case, is forced to choose between waiving his [or her] privilege against self-incrimination or losing the civil case on summary judgment,” and those “special circumstances” require a stay “in the interest of justice,” citing United States Supreme Court and Eleventh Circuit precedents. Gallego is a plaintiff, not a defendant, so that circumstance does not apply. Also, the DCA stated, “It’s entirely unclear how she would be incriminated in a criminal proceeding by answering discovery pertaining to the claims she brought.” Gallego is free to take the Fifth, but the trial court, under the sword-and-shield doctrine, was entitled to “make the appropriate inference, or strike pleadings to the extent such an assertion.” (NOTE: This makes for a compelling federal issue. The statute of limitations for the civil case is not tolled by the criminal case, so counsel may have been forced to choose between allowing the statute to run or filing suit before resolution of the criminal case. If plaintiff was really forced to choose, there could be an interesting federal issue).
Terry P. Roberts
Director of Appellate Practice Fischer Redavid PLLC