Devins v. Peitzer

District Court of Appeal of Florida

Devins v. Peitzer

622 So. 2d 558, 1993 Fla. App. LEXIS 7986, 1993 WL 288722

CourtDistrict Court of Appeal of Florida

DecidedAugust 3, 1993

DocketNo. 93-321

StatusPublished

Cited by2 cases

This text of 622 So. 2d 558 (Devins v. Peitzer) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Devins v. Peitzer, 622 So. 2d 558, 1993 Fla. App. LEXIS 7986, 1993 WL 288722 (Fla. Ct. App. 1993).

Pincite

Opinion

SCHWARTZ, Chief Judge.

The personal representative of an estate seeks review of an order disqualifying his counsel, Warren Salomon, from representing the estate in a will contest being maintained by the appellees. We treat the appeal as an application for certiorari, see In re Estate of Gory, 570 So.2d 1381 (Fla. 4th DCA1990), and cases cited, and. quash the order under review.

Salomon acted as the attorney for the decedent in supervising the execution of the will in question. The personal representative has unequivocally stated that he will not call Salomon as his own witness at the trial, see Beavers v. Conner, 258 So.2d 330 (Fla. 3d DCA1972), and a review of counsel’s deposition reveals that any testimony he might give would not be contrary to the interests of his client. See Allstate Ins. Co. v. English, 588 So.2d 294 (Fla. 2d DCA1991); Ray v. Stuckey, 491 So.2d 1211 (Fla. 1st DCA1986); Cazares v. Church of Scientology of California, 429 So.2d 348 (Fla. 5th DCA1983), pet. for review denied, 438 So.2d 831 (Fla.1983). Thus, he may not be disqualified merely because of the opponents’ announced intention to call him as an adverse witness on their behalf. See Arcara v. Philip M. Warren, P.A., 574 So.2d 325, 326 (Fla. 4th DCA1991) (“[T]he rule requiring a lawyer to withdraw when he expects to be a witness in a case ‘was not designed to permit a lawyer to call opposing counsel as a witness and thereby disqualify him as counsel.’ ”) (quoting Cazares, 429 So.2d at 350); Beavers, 258 So.2d at 330 (opposing counsel may not be disqualified by calling him as adverse witness); Hill v. Douglass, 248 So.2d 182 (Fla. [559]*5591st DCA1971) (same), quashed on other grounds, 271 So.2d 1 (Fla.1972).

It is clear, therefore, that there is no lawful basis to support the order under review. See Laura McCarthy, Inc. v. Merrill-Lynch Realty/Cousins, Inc., 516 So.2d 28 (Fla. 3d DCA1987); Banco De Comercio, S.A.C.A. v. Sun Banks, Inc., 488 So.2d 870 (Fla. 3d DCA1986); Perez v. State, 474 So.2d 398 (Fla. 3d DCA1985), review denied, 484 So.2d 10 (Fla.1986),

Certiorari granted.

Free access — add to your briefcase to read the full text and ask questions with AI

SCHWARTZ, Chief Judge.

The personal representative of an estate seeks review of an order disqualifying his counsel, Warren Salomon, from representing the estate in a will contest being maintained by the appellees. We treat the appeal as an application for certiorari, see In re Estate of Gory, 570 So.2d 1381 (Fla. 4th DCA1990), and cases cited, and. quash the order under review.

Salomon acted as the attorney for the decedent in supervising the execution of the will in question. The personal representative has unequivocally stated that he will not call Salomon as his own witness at the trial, see Beavers v. Conner, 258 So.2d 330 (Fla. 3d DCA1972), and a review of counsel’s deposition reveals that any testimony he might give would not be contrary to the interests of his client. See Allstate Ins. Co. v. English, 588 So.2d 294 (Fla. 2d DCA1991); Ray v. Stuckey, 491 So.2d 1211 (Fla. 1st DCA1986); Cazares v. Church of Scientology of California, 429 So.2d 348 (Fla. 5th DCA1983), pet. for review denied, 438 So.2d 831 (Fla.1983). Thus, he may not be disqualified merely because of the opponents’ announced intention to call him as an adverse witness on their behalf. See Arcara v. Philip M. Warren, P.A., 574 So.2d 325, 326 (Fla. 4th DCA1991) (“[T]he rule requiring a lawyer to withdraw when he expects to be a witness in a case ‘was not designed to permit a lawyer to call opposing counsel as a witness and thereby disqualify him as counsel.’ ”) (quoting Cazares, 429 So.2d at 350); Beavers, 258 So.2d at 330 (opposing counsel may not be disqualified by calling him as adverse witness); Hill v. Douglass, 248 So.2d 182 (Fla. [559]*5591st DCA1971) (same), quashed on other grounds, 271 So.2d 1 (Fla.1972).

It is clear, therefore, that there is no lawful basis to support the order under review. See Laura McCarthy, Inc. v. Merrill-Lynch Realty/Cousins, Inc., 516 So.2d 28 (Fla. 3d DCA1987); Banco De Comercio, S.A.C.A. v. Sun Banks, Inc., 488 So.2d 870 (Fla. 3d DCA1986); Perez v. State, 474 So.2d 398 (Fla. 3d DCA1985), review denied, 484 So.2d 10 (Fla.1986),

Certiorari granted.

Cite This Page — Counsel Stack

Bluebook (online)

622 So. 2d 558, 1993 Fla. App. LEXIS 7986, 1993 WL 288722, Counsel Stack Legal Research, https://law.counselstack.com/opinion/devins-v-peitzer-fladistctapp-1993.

Opinion

Related

Cite This Page — Counsel Stack