Freedom Newspapers, Inc. v. Egly

507 So. 2d 1180
CourtDistrict Court of Appeal of Florida
DecidedMay 29, 1987
Docket86-2390, 86-2405
StatusPublished
Cited by10 cases

This text of 507 So. 2d 1180 (Freedom Newspapers, Inc. v. Egly) 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
Freedom Newspapers, Inc. v. Egly, 507 So. 2d 1180 (Fla. Ct. App. 1987).

Opinion

507 So.2d 1180 (1987)

FREEDOM NEWSPAPERS, INC., E. Mac Ramsey, Jr., and Capital Formation Counselors, Inc., Petitioners,
v.
Paul EGLY and Patricia G. Hoiles, Respondents.

Nos. 86-2390, 86-2405.

District Court of Appeal of Florida, Second District.

May 29, 1987.

*1181 Charles M. Phillips, Jr., Clearwater, Alan C. Sundberg, Sylvia H. Walbolt, and Paul E. Lund of Carlton, Fields, Ward, Emmanuel, Smith, Cutler & Kent, P.A., Tampa, for petitioner Freedom Newspapers, Inc.

George K. Rahdert and Bonita M. Riggens of Rahdert, Acosta & Dickson, P.A., St. Petersburg, for petitioners E. Mac Ramsey, Jr. and Capital Formation Counselors, Inc.

Lee L. Haas and James A. Baxter of Baxter, Rinard and Winters, P.A., Clearwater, James Morris of Nichols, Stead, Boileau and Lamb, Pomona, Cal., for respondent Paul Egly.

*1182 Stephen O. Cole of McMullen, Everett, Logan, Marquardt & Cline, P.A., Clearwater, Joseph L. Wyatt, Jr., Mary E. Healy and Antoinette B. Cordero of Hufstedler, Miller, Carlson & Beardsley, Los Angeles, Cal., for respondent Patricia G. Hoiles.

DANAHY, Chief Judge.

Freedom Newspapers, Inc. (Freedom), Capital Formation Counselors, Inc. (CFC), and E. Mac Ramsey, Jr., petition this court for a writ of certiorari to review an order of the circuit court granting certain rights of discovery to respondents, who are plaintiffs in an ongoing California action. We find that the circuit court's order involves no departure from the essential requirements of law and accordingly we deny the consolidated petitions.

Freedom is a closely held California corporation which publishes newspapers in several states including Florida. Its stock is owned exclusively by or for members of the Hoiles family. CFC is a Florida corporation engaged in estate planning, specializing in rendering services to closely-held corporations like Freedom. Ramsey is a certified public accountant and a vice-president of CFC. Respondent Egly is the court-appointed trustee of a trust created under the will of James H. Hoiles, deceased. The trust is funded with Freedom stock received from Clarence Hoiles, also deceased, "patriarch" of the Hoiles family, former chairman of the board of Freedom, father of James Hoiles, and onetime trustee of James Hoiles's trust. Respondent Patricia Hoiles is the widow of James Hoiles and the sole income beneficiary of the trust.

In 1983 the trustee and the income beneficiary of the James Hoiles trust filed objections to the final accounting of the estate of Clarence Hoiles. Shortly thereafter, the beneficiary, Patricia Hoiles, sued the estate of Clarence Hoiles and the trustee filed a similar action against the co-executors of Clarence's estate. The cases have been consolidated for trial. Respondents, who are the plaintiffs in the California action, allege that Clarence Hoiles breached his fiduciary responsibility as trustee. Specifically, they claim that Clarence excluded the trust from participating in Freedom's business opportunities, diverted trust income, mismanaged trust resources, and entered into an agreement restricting the sale of trust-owned Freedom stock. Among the defenses asserted are those of estoppel and laches, based on allegations that Patricia Hoiles failed to take any action during the seventeen-year tenure of Clarence Hoiles' trusteeship. Contending that certain documents in the possession of CFC may contain an explanation for her delay in filing suit, Patricia Hoiles sought discovery of those documents.

Respondents began the proceedings in our circuit court in order to compel Ramsey to answer certain questions put to him during a deposition and to compel Ramsey and CFC to produce certain materials requested in a subpoena duces tecum. Freedom and CFC have resisted compliance with these discovery requests on numerous grounds. The circuit court nevertheless ordered Ramsey to "answer the questions propounded to him which he has previously refused to answer," to "comply with and obey the subpoena duces tecum by answering such other and further similar questions which are related to the subject matter and any areas of discovery that [respondents] were precluded from exploring by the prior objections and assertions of privilege," and to produce the items listed in the subpoena duces tecum.

The proceedings in circuit court were brought under the Uniform Foreign Depositions Law, which Florida has enacted at section 92.251 Florida Statutes (1985). Following rendition of the circuit court's order petitioners initiated appellate review by filing a notice of appeal, reasoning that the order represented a completion of judicial labor in the cause and was thus a "final order" as defined in Rule 9.110, Florida Rules of Appellate Procedure. Respondents maintain that the trial court's order should be treated like any other order compelling discovery and thus that review should be by certiorari. See, e.g., Florida Cypress Gardens, Inc. v. Murphy, 471 So.2d 203 *1183 (Fla. 2d DCA 1985). We agree with respondents.

Under the Uniform Foreign Depositions Law, whenever a litigant in one state desires to depose a witness residing in another state he must first secure the appointment of a commissioner by the court where the litigation originates. He may then apply to the court having personal jurisdiction over the witness for the process necessary to secure the attendance of the witness. Travelers Indemnity Co. v. Hill, 388 So.2d 648 (Fla. 5th DCA 1980). The court where the deposition actually takes place enjoys all necessary powers of enforcement as if the action were taking place in that state, and the law of that state governs any proceedings incident to the deposition. Burns v. Superior Court, 140 Cal. 1, 73 P. 597 (1903); Solliday v. District Court in and for the City and County of Denver, 135 Colo. 489, 313 P.2d 1000 (1957); Wiseman v. American Motors Sales Corp., 103 A.D.2d 230, 479 N.Y.S.2d 528 (1984); Frenkel v. Old Dominion Dairy Products, Inc., 91 Misc.2d 849, 398 N.Y.S.2d 816 (1977); Beatrice Foods Co. v. Proctor & Schwartz, Inc., 309 Pa.Super. 351, 455 A.2d 646 (1983). Even though that be so, the second court operates basically as an auxiliary of the first and an order compelling discovery is not "final" since it does not dispose of all issues pending in the case. It is for this reason that we believe the relatively expedited method of review afforded by certiorari is appropriate here just as if the entire lawsuit had been conducted in Florida courts.

The principal objection posed by Freedom to disclosure of the materials in CFC's possession is that they are protected by the attorney-client privilege, section 90.502 Florida Statutes (1985). Although the staff of CFC are not themselves attorneys, Freedom argues that CFC, in devising an estate plan for Freedom, was acting under the direction of Freedom's attorneys to such an extent that the privilege would extend to CFC. Delap v. State, 440 So.2d 1242 (Fla. 1983), cert. denied, 467 U.S. 1264, 104 S.Ct. 3559, 82 L.Ed.2d 860 (1984); Pouncy v. State, 353 So.2d 640 (Fla. 3d DCA 1977); Ehrhardt, Florida Evidence § 502.2 (2d ed. 1984).

We find, however, that the trial court's ruling that the privilege does not apply in the present case is supported by competent, substantial evidence, and so must be sustained. Osceola Fruit Distributors v. Mayo, 115 So.2d 760 (Fla. 2d DCA 1959).

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

Related

Sea Coast Fire, Inc. v. Triangle Fire, Inc.
170 So. 3d 804 (District Court of Appeal of Florida, 2014)
Sea Coast Fire v. Triangle Fire
170 So. 3d 804 (District Court of Appeal of Florida, 2014)
Greenlight Fin. Servs. v. Union Am. Mortg.
971 So. 2d 983 (District Court of Appeal of Florida, 2008)
Fec v. Florida Educ. Ass'n
909 So. 2d 383 (District Court of Appeal of Florida, 2005)
Seta Corp. of Boca, Inc. v. OFFICE OF ATTY. GEN.
756 So. 2d 1093 (District Court of Appeal of Florida, 2000)
Rinaldi v. Metropolitan Prop. Cas., No. Cv97 033 93 77 S (Nov. 30, 1999)
1999 Conn. Super. Ct. 15586 (Connecticut Superior Court, 1999)
Prudential Insurance Co. of America v. Nelson
11 F. Supp. 2d 572 (D. New Jersey, 1998)
Health Care Management v. McCombes
661 So. 2d 1223 (District Court of Appeal of Florida, 1995)
Uniroyal Goodrich Tire Co. v. Eddings
624 So. 2d 750 (District Court of Appeal of Florida, 1993)
Auto Owners Insurance v. Totaltape, Inc.
135 F.R.D. 199 (M.D. Florida, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
507 So. 2d 1180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/freedom-newspapers-inc-v-egly-fladistctapp-1987.