WILLIAM DRUCKER, D/B/A WILLIAM DRUCKER INSURANCE AGENCY, APPELLANT,
v.
ROBERT E. MARTIN, APPELLEE
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The court held that a motion to dismiss for failure to state a cause of action was properly denied, but granting leave to depose the defendant to determine the amount due was premature before establishing a right to an accounting.
Plaintiff sued defendant alleging breach of an agreement for a commission on insurance and renewals. Plaintiff sought judgment, an accounting, and oth…
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This is an interlocutory appeal wherein appellant, defendant below, challenges the correctness of an order of the chancellor that denied defendant’s motion to dismiss plaintiff’s complaint and granted plaintiff leave to depose defendant to determine what amount, if any, is due plaintiff.
Plaintiff alleges in his complaint that he and defendant entered into an agreement whereby defendant would pay to plaintiff a commission on certain insurance written by him and for any renewals thereof.
Plaintiff further alleges that defendant has breached the agreement and that by reason thereof plaintiff is entitled to judgment for the amount due, an accounting and other relief.
We have examined the complaint and concluded that the allegations contained therein are sufficient to withstand the motion to dismiss for failure to state a cause of action. That part of the order denying the motion to dismiss is therefore affirmed.
The other point presented in this appeal is whether plaintiff was entitled to depose defendant for the purpose stated prior to a determination of the issues upon which a right to an accounting would depend.
It is appellant’s contention that to allow discovery proceedings of this nature at the present stage of the case would do irreparable harm to defendant, since it may be shown that an accounting is unnecessary. We find merit in this contention.
Our Supreme Court and this court have considered this point and held that discovery as to accounting was premature and improperly ordered in advance of a decision establishing the right to accounting. Charles Sales Corp. v. Rovenger, Fla.1956, 88 So.2d 551; Cooper v. Fulton, Fla.App.1959, 107 So.2d 798.
It is our view that the rule stated in the above cited cases is controlling. We must, therefore, reverse that part of the order granting leave to plaintiff to depose defendant at this stage of the cause to determine what amount, if any, is due plaintiff.
Affirmed in part and reversed in part.
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CAY Constr. Co. v. Conlee Constr. Co., 200 So. 2d 563 (Fla. 4th DCA 1967)…right to an accounting. This issue must be decided first before the court can enter orders requiring production of documents related solely to the second issue, the accounting itself. This case has been followed in Drucker v. Martin, Fla.App.1963, 157 So. 2d 435; Cooper v. Fulton, Fla.App.1959, 107 So. 2d 798. Accordingly, the orders to produce appealed from are reversed to the extent that they require production of documents, objects and things not pertaining to the first triable issue, plaintiff’s right…
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Armstrong v. Piatt, 201 So. 2d 830 (Fla. 4th DCA 1967)…an accounting must be deferred until the preliminary issue of the right to the accounting is settled. This case has been followed in Cay Construction Co. v. Conlee Construction Company, Fla.App. 1967, 200 So. 2d 563; Drucker v. Martin, Fla.App.1963, 157 So. 2d 435; Cooper v. Fulton, Fla.App.1959, 107 So. 2d 798. See Zenith Radio Corporation v. Dictograph Products Co., Inc., D.C.D.Del.1947, 6 F.R. D. 597, and the numerous federal cases in accord, cited in 4 Moore’s Federal Practice, § 26.18, p. 1229, n. 2. Ac…
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Boyd v. Walker, 251 So. 2d 332 (Fla. 3d DCA 1971)…ould be entitled to an accounting even if he did not allege that he was a partner. See: Charles Sales Corp. v. Rovenger, Fla.1956, 88 So. 2d 551; Goldfarb Novelty Company of Florida v. Vann, Fla. 1957, 94 So. 2d 845; Drucker v. Martin, Fla.App.1963, 157 So. 2d 435; Legum v. Campbell, 149 Md. 148, 131 A. 147; Cyranoski v. Keenan, 363 Mich. 288, 109 N.W. 2d 815; Gauthier v. Dickerson, 41 Wash.2d 419, 249 P. 2d 370; 1 Am.Jur.2d, Accounts and Accounting, § 52.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Charles Sales Corp. v. Rovenger, 88 So. 2d 551 (Fla. 1956)
- Cooper v. Fulton, 107 So. 2d 798 (Fla. 3d DCA 1959)