Andrew Byers, etc. v. Digital Radiology, Inc., etc.

• Court: District Court of Appeal of Florida
• Decided: July 3, 2024
• Docket: 2024-0339
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed July 3, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D24-0339 Lower Tribunal No. 22-13233 ________________

Andrew Byers, etc., et al., Petitioners,

vs.

Digital Radiology, Inc., etc., et al., Respondents.

A Writ of Certiorari to the Circuit Court for Miami-Dade County, Vivianne del Rio, Judge.

KSW Legal, P.A., and Kraig S. Weiss (Coral Springs), for petitioners.

Sutton Pomares Law Group, P.A., and John R. Sutton, for respondents.

Before LOGUE, C.J., and EMAS and SCALES, JJ.

PER CURIAM. Petitioners1 seek certiorari review of a February 13, 2024 discovery

order denying Petitioners’ motion for a protective order and compelling

Petitioners to provide discovery to Respondent Douglas Hornsby that is

relevant to Respondents’2 underlying claim for an accounting of Plantation

Open MRI, LLC (“Plantation”). See Picerne Dev. Corp. of Fla. v. Tasca &

Rotelli, 635 So. 2d 149, 150 (Fla. 4th DCA 1994) (“A writ of certiorari is the

proper remedy for a premature discovery order in a suit for an accounting.”).

Petitioners claim the discovery order is premature because the trial court has

not yet adjudicated Petitioners’ August 8, 2023 motion to dismiss the

operative amended complaint, wherein Petitioners challenge Hornsby’s

standing to seek an accounting.

“It is well established that discovery as to an accounting must be

deferred until the preliminary issue of the right to an accounting is settled.”

Arthur Finnieston, Inc. v. Pratt, 673 So. 2d 560, 562 (Fla. 3d DCA 1996)

(quoting Drs. Weiland, Keiser, Jones, Shufflebarger, Cooper, P.A. v. Tindall,

372 So. 2d 505, 506 (Fla. 3d DCA 1979)); see also G.H. Crawford Co. Fin.

1 Andrew Byers, individually, and/or Member Manager of Plantation Open MRI, LLC, and/or Andrew Byers Enterprises, LLC Member and/or POM Open MRI Radiology, LLC. 2 Digital Radiology Inc. as a Minority Member of Plantation Open MRI, LLC and Douglas Hornsby.

2 Servs. v. Goch, 292 So. 2d 54, 55 (Fla. 3d DCA 1974) (same). We decline

Respondents’ invitation to effectively adjudicate Petitioners’ pending August

8, 2023 dismissal motion in the first instance and, consistent with Picerne

Development Corp. of Florida, we grant the petition and quash the

challenged discovery order.

Petition granted; order quashed.