Avatar Properties, Inc. v. Donestevez

575 So. 2d 785, 1991 Fla. App. LEXIS 1873, 1991 WL 29510

• Court: District Court of Appeal of Florida
• Decided: March 8, 1991
• Docket: No. 90-03648
• Status: Published

Opinion

PER CURIAM.

Avatar Properties seeks certiorari review of a circuit court order which compels production of certain documents and other materials to respondent Pedro Donestevez.

The underlying action, in which Avatar is the plaintiff, is a' mortgage foreclosure. Donestevez’s responsive pleadings included affirmative defenses and a counterclaim, which have been stricken or dismissed by separate circuit court orders. The requested discovery relates only to the affirmative defenses and counterclaim. Since those pleadings appear not to have been refiled, the discovery request is irrelevant at this point and should be denied. Oppenheimer Fund, Inc., v. Sanders, 437 U.S. 340, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978).

In view of the result we reach, we decline to address Avatar’s additional contention that the discovery order should be quashed as unduly burdensome.

The petition for writ of certiorari is granted, the circuit court’s order compelling discovery is quashed, and this case is remanded for further proceedings consistent with this opinion.

FRANK, A.C.J., and PATTERSON and ALTENBERND, JJ., concur.