LARGO HOSPITAL OWNERS, LTD., APPELLANT,
v.
DAVID GORMAN, TRUSTEE IN BANKRUPTCY FOR INTERNATIONAL GLASS AND MANUFACTURING CO., INC., APPELLEE

Fla. 2d DCA | 1981-12-02
No. 81-1410
OTT and DANAHY, JJ., concur.
408 So. 2d 597 Florida District Court of Appeal, Second District (1981) Caution
Cited by 12 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Largo Hospital Owners, a dissolved Florida limited partnership, appealed an order requiring its out-of-state representative to appear for a deposition in Florida in aid of execution on a judgment. The court affirmed, holding that extraordinary circumstances—including Largo's substantial Florida contacts, the post-judgment execution context, and the practical burden on the creditor—justified requiring the nonresident officer's attendance despite the general rule that nonresident officers of nonresident defendants need not travel for depositions.


Holding

The court affirmed the order requiring Hamlin to appear for deposition in Pinellas County, holding that extraordinary circumstances existed to justify this requirement, including Largo's substantial Florida contacts, the post-judgment execution context, and the burden on the judgment creditor of traveling to California for the deposition.


Headnotes

[1] A court may order a nonresident representative of a dissolved Florida limited partnership to appear for a deposition in Florida in aid of execution when the partnership h…

[2] In the absence of extraordinary circumstances, the deposition of a nonresident officer of a nonresident corporate defendant not seeking affirmative relief should be taken…

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Key Quotes

“Absent extraordinary circumstances not shown to exist in this record, the deposition of a nonresident officer of a nonresident corporate defendant which is not seeking affirmative relief should be taken at the deponent's place of residence.”

Establishes the general rule that nonresident officers of nonresident defendants should testify at their place of residence, absent extraordinary circumstances.

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Facts & Procedural History

International Glass obtained a judgment against Largo Hospital Owners for $96,550.59 on a mechanic's lien and an additional $35,000 judgment for attor…

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Opinion of the Court
GRIMES, Acting Chief Judge.

GRIMES, Acting Chief Judge.

This is an appeal from a nonfinal order requiring a defendant to produce an out-of-state resident for deposition in aid of execution. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(4).

International Glass and Manufacturing Company, Inc., foreclosed a mechanic’s lien against Largo Hospital Owners, Ltd., a Florida limited partnership, and obtained a judgment against a surety company for $96,550.59. It then obtained a judgment of $35,000.00 for attorney’s fees and costs against Largo. In the meantime, however, Largo was dissolved, and the latter judgment remains unpaid.

In aid of execution, International Glass noticed the taking of the deposition in Tampa of the designated representative of Largo having knowledge of the financial aspects of the dissolved limited partnership. Largo moved for a protective order, asserting, among other things, that there were no representatives of the corporate general partner in the area and that none of the former limited partners who resided in the area had indicated that they would voluntarily appear. Largo suggested that the most appropriate person to testify regarding the matters described in the notice of deposition was Leon Hamlin, president of the corporate general partner who resides in Santa Monica, California. It offered to make him available for his deposition in California. The court denied Largo’s motion for a protective order and required Hamlin to be made available for deposition in Pinellas County.

Largo contends that since it never sought affirmative relief in the suit, the court could not require its representative to travel to Florida to give a deposition. In Madax International Corp. v. Delcher Intercontinental Moving Services, Inc., 342 So. 2d 1082, 1084 (Fla. 2d DCA 1977), this court said:

Absent extraordinary circumstances not shown to exist in this record, the deposition of a nonresident officer of a nonresident corporate defendant which is not seeking affirmative relief should be taken at the deponent’s place of residence.

The question before us, then, is whether the record in this case reflects sufficient extraordinary circumstances to justify the court’s exercise of its discretion in ordering Mr. Hamlin to come to Florida for his deposition. We believe that it does.

One significant factor is that, unlike the ordinary case involving prejudgment depositions, International Glass’s claim has already been determined to be valid. Thus, the deposition is being sought in aid of execution on the judgment. Yet, if this were the only factor, our decision might conflict with Godshall v. Hessen, 227 So. 2d 506 (Fla. 3d DCA 1969), cert. denied, 237 So. 2d 530 (Fla.1970), which involved the deposition of a nonresident director of a dissolved corporation in aid of execution. Here, however, Largo has had substantial contacts with Florida. It undertook to build a hospital, albeit unsuccessfully, and then dissolved, leaving unpaid International Glass’s claim for materials furnished in the construction. Several of the limited partners were Florida residents, and Largo, itself, was chartered under the laws of Florida. Even the corporate general partner appears to be a Florida corporation. It just happens that the man who knows most about Largo’s finances lives in California. Under these circumstances, it seems fair that International Glass, which only seeks to collect what a court has already determined to be owing, not be required to incur the additional expense of travelling to California for the deposition.

The cross-appeal from an order limiting the scope of certain interrogatories is without merit.

AFFIRMED.

OTT and DANAHY, JJ., concur.


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Citator

Cited By

  • GACHÉ v. First Union Nat'l Bank OF Fla., 625 So. 2d 86 (Fla. 4th DCA 1993)
    …istrict concluded that the last sentence of the above provision allowed an appeal to be taken from a discovery order in a supplementary proceeding because it was an order entered after final judgment. See also, Largo Hospital Owners, Ltd. v. Gorman, 408 So. 2d 597 (Fla. 2d DCA 1981). The most comprehensive discussion of this issue is found in the dissenting opinion of Judge Hurley in Tubero v. David L. Ellis, 469 So. 2d 206 (Fla. 4th DCA 1985) (affirming without opinion). He concluded that non-final orders f…
  • Brown v. Mirth K. Brown, 500 So. 2d 655 (Fla. 1st DCA 1986)
    …ty to appear pursuant to the notice; no issue was raised directed to the list of documents which he was requested to produce at his deposition. . The order denying motion for protective order is appealable. See Largo Hospital Owners LTD. v. Gorman, 408 So. 2d 597 (Fla. 2nd DCA 1982). . Appellant argues that although the trial court added a retention of jurisdiction clause into the order of modification after our remand in Brown, supra, 453 So. 2d 149, such was outside the scope of the mandate issued by this…
  • DeLEO v. Wachovia Bank, N.A., 946 So. 2d 626 (Fla. 2d DCA 2007)
    …ery order entered after final order which does not suspend rendition of a trial court order. See Fla. R.App. P. 9.130(a)(4); HCA Health Servs. of Fla., Inc. v. Hillman, 870 So. 2d 104, 106 n. 1 (Fla. 2d DCA 2003); Largo Hosp. Owners, Ltd. v. Gorman, 408 So. 2d 597, 598 (Fla. 2d DCA 1981). But see Forman v. Great Am. Resorts of Fla., 929 So. 2d 1089, 1090 (Fla.4th DCA 2006) (holding that postjudgment discovery order was not appealable under rule 9.130(a)(4) because the proceeding in aid of collection would cul…

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