DEBRA LUMPKINS, APPELLANT,
v.
JAMES AMENDOLA, APPELLEE
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The court held that service of a notice of deposition on the appellee's attorney was effective when the case was still pending, and the trial court erred in denying the motion to compel attendance.
[1] A judgment creditor is entitled to discovery in aid of execution from any person in the manner provided by the Rules of Civil Procedure.
[2] Service of a notice of deposition upon a party's attorney is generally sufficient when the cause is still pending and the attorney is actively engaged on behalf of the pa…
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Join FLexlaw to unlock all legal intelligenceAfter final judgments were entered against the appellee and an appeal was filed, the appellant sought to depose the appellee in aid of execution. The …
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HERSEY, Judge.
Debra Lumpkins appeals an order denying her motion to compel the attendance of appellee at a deposition.
After appellee’s trial counsel had withdrawn, two final judgments were entered against appellee, adjudicating him the father of appellant’s child, and ordering him to pay child support, arrearages and appellant’s attorneys’ fees. Appellee’s appellate counsel, Steven Berger, filed a notice of appeal.
Appellant mailed to Berger a notice of taking deposition and request to produce, to which Berger responded that appellee would not appear for the deposition because Berger could not contact or locate him. She then filed a motion to compel attendance at deposition. This motion was denied. We hold that this was error. Appellant was clearly entitled to obtain from appellee discovery in aid of execution, under rule 1.560, Florida Rules of Civil Procedure.
In Albert v. Hartford National Bank and Trust Company, 423 So. 2d 1027 (Fla. 4th DCA 1982), this court affirmed the trial court’s order compelling production in aid of execution, stating:
Rule 1.560 permits a judgment creditor to obtain discovery in aid of execution from any person in the manner provided in the Rules of Civil Procedure. Parties may obtain discovery by deposition or by production of documents or things regarding any matter, not privileged, that is relevant to the subject matter of the action.
423 So. 2d at 1028-29.
There is,also no question that an order compelling attendance at a deposition was a sanction available under the facts of the present case. See Luca v. Largo Diversified, Inc., 396 So. 2d 1228 (Fla. 2d DCA 1981); In re Estate of Coveney, 324 So. 2d 681 (Fla. 4th DCA 1976).
We further hold that service of the notice here was effective service. The proper procedure for notifying a party represented by an attorney is to serve “the attorney unless service upon the party is ordered by the court.” Fla.R.Civ.P. 1.080(b). In Winfield v. Brompton Air Services, 443 So. 2d 466 (Fla. 4th DCA 1984), this court said:
A judgment debtor is subject to discovery procedures. Fla.R.Civ.P. 1.560. If represented by an attorney, service is obtained by deliverying a copy of the notice of taking deposition to the party’s attorney. Fla.R.Civ.P. 1.080(b).
Id.
In Ginsberg v. Ginsberg, 122 So. 2d 30 (Fla. 3d DCA 1960), aff'd after remand, 156 So. 2d 882 (Fla. 3d DCA 1963), a final divorce decree was entered January 4 against appellant, ordering him to make payments to appellee. Appellant petitioned for rehearing January 14, and a rule to show cause for non-payment was entered against appellant on January 26. Appellant challenged the contempt order (entered against him on February 1) on the ground that there was insufficient notice. The appellate court disagreed, saying:
When such a decree calling for payment of alimony or child support has become final, service on the attorney who represented the defendant in the divorce suit ordinarily will not be adequate or proper service or notice to the defendant, where it does not result in his receiving notice of the proceeding and when the attorney disclaims continued representation of the defendant.... But the rule is different where the cause is pending or not yet concluded.... In this instance the defendant was continuing the progress of the suit through the prosecution of his petition for rehearing, and his attorney was actively engaged in the cause with reference to that matter in his interest, which had not yet been disposed of therein. For that reason the chancellor was eminently correct, when doubt as to the whereabouts of the defendant appeared, to direct that the rule to show cause should be served on defendant’s attorney of record; and we hold that such service was sufficient and binding on the defendant to entitle the court to proceed under the rule to show cause, in the circumstances presented in this case.
122 So. 2d at 32 (citations omitted). See also Nicholson v. Nicholson, 311 So. 2d 676 (Fla. 4th DCA 1975) (service on a party is effectuated where service is made upon party’s attorney where it is clear that there is a pending cause in which attorney is actively engaged on behalf of the party); Bussey v. Legislative Auditing Committee of Legislature, 298 So. 2d 219 (Fla. 1st DCA 1974) (papers may be served on a party’s attorney where the cause is pending or not yet concluded), appeal dismissed, 312 So. 2d 737 (Fla.1975).
In Friedman v. Friedman, 224 So. 2d 424 (Fla. 3d DCA 1969), a final judgment was entered ordering appellant to make payments to appellee. After judgment, a different attorney filed a notice of appearance as attorney for appellant, and also filed a motion for relief from judgment. The motion for relief was denied and no appeal was taken. Appellee subsequently filed a motion for order of contempt and served it on appellant’s trial and appellate counsel. The court held the notice insufficient, “[sjince no proceedings subsequent to judgment were pending, such as by a petition for rehearing or an appeal by the [appellant]_” 224 So. 2d at 426.
Since the case in question was still pending, notice of taking deposition sent to appellee’s attorney was sufficient, and the trial court erred in denying appellant’s motion to compel attendance.
Accordingly, we reverse and remand for further proceedings.
REVERSED AND REMANDED.
DOWNEY and BARKETT, JJ., concur.
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FAR OUT Music, Inc. v. Jordan, 502 So. 2d 523 (Fla. 3d DCA 1987)…the points raised on appeal by the defendants. First, we find no error in the entry of the default in this case as (a) the defendants were adequately noticed as to the hearing below on the plaintiffs’ motion for a default, see Lumpkins v. Amendola, 466 So. 2d 1214, 1215-16 (Fla. 4th DCA 1985); In re Brugh’s Estate, 306 So. 2d 599, 600 (Fla. 2d DCA 1975); Reizen v. Florida Nat'l Bank at Gainesville, 237 So. 2d 30, 32 (Fla. 1st DCA 1970); Fla.R.Civ.P. 1.500(b); 1.080(b); see also Caughey v. Belter, 322 So. 2d 8…
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Paper Corp. OF Am. v. Schneider, 563 So. 2d 1134 (Fla. 3d DCA 1990)…osure stated above in these post-judgment execution [*1135] proceedings if deposed or served with a subpoena duces tecum, Jim Appley’s Tru-Arc, Inc. v. Liquid Extraction Sys. Ltd. Partnership, 526 So. 2d 177 (Fla. 2d DCA 1988); Lumpkins v. Amendola, 466 So. 2d 1214 (Fla. 4th DCA 1985); Albert v. Hartford Nat’l Bank & Trust Co., 423 So. 2d 1027 (Fla. 4th DCA 1982); Gruman v. Bankers Trust Co., 379 So. 2d 658 (Fla. 3d DCA 1980); Silverman v. Turner, 188 So. 2d 354 (Fla. 3d DCA 1966), and, accordingly, (b) the de…
Authorities Cited (11 total)
- Bussey v. The Legis. Auditing Comm. OF the Legis. of the State of Fla., 298 So. 2d 219 (Fla. 1st DCA 1974)
- Burton Ginsberg v. Ginsberg, 122 So. 2d 30 (Fla. 3d DCA 1960)
- Friedman v. Friedman, 224 So. 2d 424 (Fla. 3d DCA 1969)
- Nicholson v. Nicholson, 311 So. 2d 676 (Fla. 4th DCA 1975)
- Josephine v. Luca, 396 So. 2d 1228 (Fla. 2d DCA 1981)
- Sweetwater Util. Corp. v. Save OUR BAY, Inc., 312 So. 2d 737 (Fla. 1975)
- Legis. Auditing Comm. OF Legis. v. Bussey, 312 So. 2d 737 (Fla. 1975)
- Ginsberg v. Burton Ginsberg, 156 So. 2d 882 (Fla. 3d DCA 1963)
- Albert v. Hartford Nat'l Bank & Tr. Co., 423 So. 2d 1027 (Fla. 4th DCA 1982)
- In re Est. of Mary Ida Coveney v. Coveney, 324 So. 2d 681 (Fla. 4th DCA 1976)