Diaz-Verson v. Walbridge Aldinger Co.

54 So. 3d 1007, 2010 Fla. App. LEXIS 19815, 2010 WL 5350690
CourtDistrict Court of Appeal of Florida
DecidedDecember 29, 2010
DocketNo. 2D10-933
StatusPublished
Cited by5 cases

This text of 54 So. 3d 1007 (Diaz-Verson v. Walbridge Aldinger Co.) 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
Diaz-Verson v. Walbridge Aldinger Co., 54 So. 3d 1007, 2010 Fla. App. LEXIS 19815, 2010 WL 5350690 (Fla. Ct. App. 2010).

Opinion

VILLANTI, Judge.

Salvador Diaz-Verson, Jr., petitions for a writ of certiorari directed to the trial court’s order that denied his motion for protective order relating to fifteen subpoenas duces tecum issued by Walbridge Al-dinger Company that sought discovery of Diaz-Verson’s personal financial information. Because the information sought by this discovery is private financial information that is irrelevant to the allegations against Diaz-Verson contained in Wal-bridge’s second amended complaint, we hold that the trial court departed from the essential requirements of law by denying Diaz-Verson’s motion for protective order. Therefore, we grant the petition and quash the trial court’s order.

According to the allegations of Wal-bridge’s second amended complaint, Wal-bridge, a general contractor, entered into a contract with DVA Sports, LLC, to construct a sports arena in Manatee County. The contract was subsequently assigned to DVA Arena, LLC. Diaz-Verson was a principal of both DVA Sports and DVA Arena, but he was not personally a party to the contract between DVA Sports and Walbridge. According to the complaint, Walbridge performed several million dollars of work on the arena before it became apparent that it was not going to be paid. Walbridge filed liens against the arena property, and it subsequently sued DVA Arena and several other entities involved in the construction project on various theories.

Of the twelve counts contained in Wal-bridge’s second amended complaint, only one was alleged against Diaz-Verson personally. In count VI of its second amended complaint, Walbridge sued Diaz-Verson for fraud, alleging that (1) Diaz-Verson and/or his agent told Walbridge that Landmark Bank was providing construction funding; (2) Diaz-Verson and/or his agent told Walbridge that construction financing was in place; (3) Diaz-Verson and/or his agent told Walbridge that there was no reason for it to believe that it would not be paid; (4) Diaz-Verson and/or his agent [1009]*1009told Walbridge that DVA Arena would be providing some of the construction funding directly; (5) Diaz-Verson and/or his agent told Walbridge that DVA Arena had decided to refinance the original construction loan and that there were delays in payment due to the refinancing; (6) Diaz-Verson and/or his agent told Walbridge that DVA Arena was refinancing the construction loan because it did not like the terms of the Landmark Bank loan; (7) Diaz-Verson and/or his agent told Wal-bridge that a third-party lender had provided sufficient financing to fund the project; (8) Diaz-Verson and/or his agent told Walbridge that Diaz-Verson was holding certain stock in escrow as security for further funding; and (9) Diaz-Verson and/or his agent repeatedly told Walbridge that funding and payments were forthcoming. Walbridge alleged that each of these statements were false when they were made, that Diaz-Verson intended Wal-bridge to rely on these statements to continue construction, that Walbridge did rely on these statements when continuing construction activities, and that it had been damaged as a result of its reliance on these false statements. In his answer, Diaz-Verson denied making some of the statements and denied that other statements were false when made.

During the course of the ensuing discovery, Walbridge sought to issue fifteen subpoenas duces tecum to various nonparty banks and financial institutions that were listed on Diaz-Verson’s personal financial statement. These subpoenas sought records concerning Diaz-Verson’s personal financial accounts, including joint accounts with Diaz-Verson’s wife, who was not a party to the litigation. In response to these subpoenas, Diaz-Verson filed a motion for protective order, alleging that the information sought by the subpoenas was both irrelevant to the allegations of the complaint and privileged from disclosure. Following a hearing, the trial court denied Diaz-Verson’s motion for protective order and allowed the subpoenas to issue. It is this order that Diaz-Verson asks this court to quash.

Certiorari review of a discovery order is appropriate “when a discovery order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal.” Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995). The disclosure of various types of information can result in irreparable harm, including material protected by privilege, trade secrets, or work product. Id. However, the test for discovery is always relevance. Id.; see also Friedman v. Heart Inst. of Port St. Lucie, Inc., 868 So.2d 189, 194 (Fla.2003). Thus,

[a] party’s finances, if relevant to the disputed issues of the underlying action, are not excepted from discovery under this rule of relevancy, and courts will compel production of personal financial documents and information if shown to be relevant by the requesting party.

Friedman, 863 So.2d at 194 (emphasis added). However, “ ‘the disclosure of personal financial information may cause irreparable harm to a person forced to disclose it, in a case in which the information is not relevant.’” Id. (quoting Straub v. Matte, 805 So.2d 99, 100 (Fla. 4th DCA 2002)) (emphasis added). “ ‘[Compelled disclosure through discovery [must] be limited to that which is necessary for a court to determine contested issues....”’ Friedman, 863 So.2d at 194 (quoting Woodward v. Berkery, 714 So.2d 1027, 1036 (Fla. 4th DCA 1998)).

For example, in All About Cruises, Inc. v. Cruise Options, Inc., 889 So.2d 905, 906 (Fla. 4th DCA 2004), Cruise Options’ com[1010]*1010plaint alleged counts for breach of contract, equitable accounting, and piercing the corporate veil in an action against All About Cruises for failure to pay commissions. The complaint alleged that the owner of All About Cruises, Ms. Myman, had diverted corporate funds for her personal use, thus depriving Cruise Options of payments due to it under the parties’ contract. Id. Cruise Options sought discovery of Myman’s personal financial information to establish where the disputed funds had gone. The trial court denied Myman’s motion for protective order, and the Fourth District denied certiorari. In doing so, the court noted that an “‘order compelling production of relevant financial information cannot be the object of a writ of certiorari because there is no irreparable harm.’ ” Id. at 907 (quoting In re Estate of Sauey, 869 So.2d 664, 665 (Fla. 4th DCA 2004)). Because the financial records sought by Cruise Options were relevant to its claims for accounting and piercing the corporate veil, those records were properly discoverable. Id.

In contrast, in Capco Properties, LLC v. Monterey Gardens of Pinecrest Condominium, 982 So.2d 1211, 1213 (Fla. 3d DCA 2008), Monterey Gardens had alleged claims against Capeo and its principals for fraudulent concealment, fraudulent transfers, negligent nondisclosure, and negligent hiring. The complaint alleged that Capeo had made cash distributions to its principals in an effort to render itself insolvent so as to avoid any judgment Mon-terey Gardens might obtain. Monterey Gardens sought to discover financial information from Capeo and its principals, including financial statements, balance sheets, tax returns, bank statements, and cancelled checks. Id. The trial court denied Capco’s motion for protective order, and Capeo and the principals sought cer-tiorari review.

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

Related

James Fratangelo v. John Olsen
271 So. 3d 1051 (District Court of Appeal of Florida, 2018)
Rousso v. Hannon
146 So. 3d 66 (District Court of Appeal of Florida, 2014)
Ryan v. Landsource Holding Co., LLC
127 So. 3d 764 (District Court of Appeal of Florida, 2013)
McDonald's Restaurants of Florida, Inc. v. Doe
87 So. 3d 791 (District Court of Appeal of Florida, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
54 So. 3d 1007, 2010 Fla. App. LEXIS 19815, 2010 WL 5350690, Counsel Stack Legal Research, https://law.counselstack.com/opinion/diaz-verson-v-walbridge-aldinger-co-fladistctapp-2010.