Ohio Realty Investment Co. v. Lawyers Title Insurance Corp. of Richmond

244 So. 2d 176, 1971 Fla. App. LEXIS 6990
CourtDistrict Court of Appeal of Florida
DecidedFebruary 12, 1971
DocketNo. 70-468
StatusPublished
Cited by3 cases

This text of 244 So. 2d 176 (Ohio Realty Investment Co. v. Lawyers Title Insurance Corp. of Richmond) 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
Ohio Realty Investment Co. v. Lawyers Title Insurance Corp. of Richmond, 244 So. 2d 176, 1971 Fla. App. LEXIS 6990 (Fla. Ct. App. 1971).

Opinion

OWEN, Judge.

Appellant was defendant in a mortgage foreclosure suit. In answer to the complaint, appellant denied that the note and mortgage was in default and alleged affirmatively that prior to the time that plaintiff declared the note and mortgage in [177]*177default for nonpayment of an interest installment, payment had been tendered by defendant and refused by plaintiff. After the cause was at issue the court entered its order of April 9, 1970, striking defendant’s answer to the complaint and entering a default judgment against the defendant appellant for its failure to comply with a prior order entered February 3, 1970, requiring certain interrogatories to be answered. On this appeal from the final judgment defendant appellant complains of the court’s order of April 9, 1970, striking its pleadings and entering a default judgment against it.

After defendant filed its answer alleging that it had tendered payment of the interest installment before the same was in default, plaintiff filed in this cause (with service of copy upon defendant’s counsel) an instrument entitled “Interrogatories”, in the following language:

“The Plaintiff, LAWYERS TITLE INSURANCE CORPORATION, demands that the Defendant, OHIO REALTY INVESTMENT COMPANY, through Edward Strang, Jr., its President, answer separately and fully in writing under oath the following interrogatories, in accordance with the Florida Rules of Civil Procedure. * * * ”

When no answer was forthcoming, plaintiff filed a motion to strike the defendant’s pleadings. Affidavit of defendant’s counsel was filed asserting that Mr. Strang was then incarcerated. By order entered February 3, 1970, the motion was denied and the defendant ordered to answer the interrogatories within fifteen days. Within the time limit of that order the defendant did answer the interrogatories under oath through its assistant secretary, Francis T. Ryan. Plaintiff again filed a motion for an order striking defendant’s pleadings and for entry of default judgment against the defendant for failure to answer the interrogatories as ordered by the court. Hearing on this motion resulted in the order of April 9, 1970, striking the defendant’s pleadings and entering a default judgment against the defendant.

As noted above, the record discloses that appellant, Ohio Realty Investment Company, answered the written interrogatories within the time ordered by the court. It is therefore apparent (although the order does not expressly so state) that any finding that the defendant Ohio Realty Investment Company had failed to answer the interrogatories as ordered by the court is based solely upon the fact that such interrogatories were answered on behalf of the defendant by Francis T. Ryan, Assistant Secretary, rather than by Edward Strang, Jr., President. The parties to this appeal acknowledge in their briefs and in oral argument before this court that such was the basis upon which the trial court found that the answers to interrogatories failed to comply with the court’s order of February 3, 1970, which stated:

“The defendant, Ohio Realty Investment Company, is hereby ordered to answer the interrogatories propounded.”

The interrogatories were served under Rule 1.340, RCP, 30 F.S.A., the first sentence of which reads as follows:

“Any party may serve upon any other party written interrogatories to be answered by the party served or if the party served is a public or private corporation or a partnership or association, by any officer or agent, who shall furnish such information as is available to the party.” (Emphasis supplied)

The question is whether under this rule the propounder of an interrogatory served upon a corporate party has the right to designate the specific officer or agent who must answer the interrogatories. A corollary question is whether in cases where interrogatories are served upon a corporate party under this rule, the trial court may order such corporate party to answer the interrogatories by an officer or agent designated by the propounder or by the court. We have found no Florida cases on these [178]*178questions and we therefore look to authorities under the federal rule counterpart, Rule 33, Federal Rules of Civil Procedure. Carson v. City of Fort Lauderdale, Fla. App.1965, 173 So.2d 743; Wider v. Carra-way, Fla.App.19S8, 101 So.2d 13.

In Holland v. Minneapolis-Honeywell Regulator Co., U.S.D.C., D.C., 28 F.R.D. 595 (1961) it was held that Rule 33 permitted interrogatories to be served only on an adverse party, and if such party was a corporation, the propounder of the interrogatories did not have the right to select the particular officer or agent who would answer the same. In the case of Holler v. General Motors Corp., E.D.Mo., 3 F.R.D. 296 (1944) the plaintiff had propounded interrogatories to the corporate defendant under Rule 33, and although plaintiff had not designated the particular officer or agent whom he wished to have answer the same (thereby distinguishing it from the instant case), nonetheless complained that the person who did answer the interrogatories on behalf of the corporate defendant was not an officer “competent” to testify for the defendant. In its opinion, the court stated:

“If plaintiff desires to have the testimony of an officer of the corporation, or an employee thereof, he certainly can obtain it by proceeding under Rule 31 ‘Depositions of witnesses upon written interrogatories.’ The provision of the rule with respect to the person who may answer interrogatories and make oath thereto is rather broad, as it should be. After all, the responsiblity for answering the interrogatories is upon the person or the corporation to which they are directed, and why, in the case of a corporation, should it, in its corporate capacity, not be the best judge as to the identity of the person to make answers for it? After all, it is the only one to be bound by the answers, and the only one to meet the responsibility arising from such answers.”

There is authority that suggests that the interrogating party should designate the officer or agent who is to answer the interrogatories. See Kennedy v. Mississippi Valley Barge Line Co., W.D. Pa. 1946, 7 F.R.D. 78; Waider v. Chicago, R. I. & P. Ry. Co., S.D.'Iowa, 1950, 10 F.R.D. 263. However, in 2A Barron and Holtzoff, Federal Practice and Procedure, Rules Edition, Section 774, we find the following statement:

“The better view would seem to be that the interrogatories should be addressed only to the party and that the party should select the officer or agent to answer for it.”

In 4 Moore’s Federal Practice, |j 33.07 at 33-47, we find the following statement:

“These considerations have led the courts to the position that the interrogatories must be served on the party, and that the party may select the officer or agent who is to answer them and verify the answers. Prior to the 1946 amendment, when ignorance of the officer selected to answer could be raised as an excuse for not answering an interrogatory, it could be argued that it was an important right of the interrogating party to choose the person who was to provide the answers.

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Cite This Page — Counsel Stack

Bluebook (online)
244 So. 2d 176, 1971 Fla. App. LEXIS 6990, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ohio-realty-investment-co-v-lawyers-title-insurance-corp-of-richmond-fladistctapp-1971.