WILLIAM DAVID, INDIVIDUALLY AND AS A GENERAL PARTNER OF CANNON POINT LTD., AND CANNON POINT LTD., A FLORIDA LIMITED PARTNERSHIP, APPELLANTS,
v.
ROBERT TANSILL, APPELLEE
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In an interlocutory appeal, the Fourth District Court of Appeal reversed a discovery order requiring defendants to produce accounting books, records, and correspondence, holding that discovery regarding the amount of an accounting must be deferred until the threshold issue of the plaintiff's right to an accounting is first resolved.
The court held that discovery as to the amount of an accounting must be deferred until the preliminary issue of the right to an accounting is settled. The requested items were relevant only to calculating any amounts due, not to establishing the right to an accounting itself, so their production must await a favorable determination on the threshold issue.
[1] In an action for an accounting, the right to an accounting must be determined before the court can order the production of documents related to the accounting itself.
[2] A trial court errs by ordering the production of business records in an accounting action without first determining the plaintiff's right to an accounting.
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Join FLexlaw to unlock all legal intelligence“discovery as to an accounting must be deferred until the preliminary issue of the right to an accounting is settled”
This establishes the controlling legal principle that courts must determine whether an accounting is owed before allowing discovery into its amount.
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Join FLexlaw to unlock all legal intelligenceWilliam David, individually and as general partner of Cannon Point Ltd., and the partnership allegedly entered an oral agreement with Robert Tansill t…
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CROSS, Judge.
Appellants-defendants, William David, individually and as a general partner of Cannon Point Ltd., and Cannon Point-Ltd., by interlocutory appeal seek review, of an order requiring them to produce certain documents, books and records for inspec-' tion and copying in an action brought by the appellee-plaintiff, Robert Tansill, for specific performance, constructive trust and an accounting.
The complaint alleges, inter alia, that the plaintiff, Robert Tansill, and defendant, William David, individually and as an agent for Cannon Point Ltd., entered into an oral agreement whereby the plaintiff would for specified consideration act as contractor for the improvement of certain real property known as “Cannon Point”; the plaintiff had performed all services required under the oral agreement; and the defendants had failed to adhere to the terms of the oral agreement.
The permanent relief sought in this action by the plaintiff is specific performance by the defendants of the oral agreement, creation of a constructive trust on various monies payable to the defendants for the ultimate purpose of compensating the plaintiff according to the oral agreement and an accounting of monies accruing to the defendants since the inception of the “Cannon Point” project.
Shortly after filing the complaint, the plaintiff requested defendant David to produce for inspection and copying the following materials:
(1) Any written agreement between William David and Kenneth L. and/or Jayne B. Sherman (the other partners in “Cannon Point Ltd.) regarding Cannon Point Ltd. (2) The books of account on Cannon Point Ltd. (3) Income tax records of Cannon Point Limited Partnership for the past three (3) years.
(4) All cancelled checks written on behalf of Cannon Point Ltd. (5) Any and all checks written by William David individually to Robert Tansill for the last three (3) years. (6) Any and all correspondence between William David and Kenneth L. and/or Jayne B. Sherman for the past three (3) years.
Defendant David objected to the plaintiff’s request to produce the items set forth in numbered paragraphs 2, 3, 4 and 6 on the grounds that the plaintiff was prematurely seeking discovery as to items of accounting before it was established that the plaintiff was entitled to an accounting. After a hearing on the matter, the trial court ordered defendant David to produce all materials that the plaintiff had requested. It is from this order that the defendants appeal.
The sole question presented for our determination in this interlocutory appeal is whether the trial court erred in granting the plaintiff’s request that defendant David produce items set forth in numbered paragraphs 2, 3, 4 and 6 for inspection and copying.
The Florida Supreme Court in Charles Sales Corp. v. Rovenger, 88 So. 2d 551 (Fla.1956), concluded that discovery as to an accounting must be deferred until the preliminary issue of the right to an accounting is settled. This case has been followed by Wood v. Brackett, 266 So. 2d 398 (Fla.App.1972); Stanton Investment Company v. Simon, 255 So. 2d 557 (Fla.App.1971); Boyd v. Walker, 251 So. 2d 332 (Fla.App.1971); A-1 Truck Rentals, Inc. v. Vilberg, 222 So. 2d 442 (Fla.App.1969); Armstrong v. Piatt, 201 So. 2d 830 (Fla.App.1967) and cases cited therein.
In the instant case, items set forth in numbered paragraphs 2, 3, 4 and 6 could only have relevance as to the amount of any sums that might be due the plaintiff in an accounting and not the issue of the plaintiff’s right to an accounting. Therefore, the plaintiff is not entitled to discovery of these items until the issue of the right to an accounting has been determined favorably to the plaintiff. Accordingly, the court’s order is reversed insofar as it requires defendant David to produce those items delineated in numbered paragraphs 2, 3, 4 and 6. The order is affirmed in all other respects.
Affirmed in part, and reversed in part.
MAGER, J., and ANDERSON, ALLEN C., Associate Judge, concur.
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Harris v. Zeesman, 445 So. 2d 680 (Fla. 4th DCA 1984)…, 88 So. 2d 551, 555 (Fla.1956). Without recounting each of the categories of items sought to be produced, suffice it to say that the trial court’s order fails to implement the foregoing principle. Consequently, on the authority of David v. Tansill, 297 So. 2d 84 (Fla. 4th DCA 1974) and Armstrong v. Piatt, 201 So. 2d 830 (Fla. 4th DCA 1967), we grant the writ of certiorari, quash the order on appeal and direct the trial court to reconsider defendants’ motion in accord with the case authority cited herein.…
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In re the Est. of Sarah Shaw v. Ader, 340 So. 2d 491 (Fla. 3d DCA 1976)…The Temple’s status is presently that of only a contingent judgment creditor and its requests for an accounting and amassing of assets, etc. before an adjudication on the merits in its suit in the civil division is premature. See David v. Tansill, 297 So. 2d 84 (Fla. 4th DCA 1974). We find that the probate judge was eminently correct in his determination that appellant is not an interested party for the purpose of the requested discovery proceedings before it achieves the status of judgment creditor. Affi…
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Peele v. Hibiscus Realty, Inc., 427 So. 2d 273 (Fla. 2d DCA 1983)…n some patent infringement suits, Florida has chosen to limit discovery to matters relating to the right to an accounting until such time as an accounting is deemed proper. Charles Sales Corp. v. Rovenger, 88 So. 2d 551 (Fla.1956); David v. Tansill, 297 So. 2d 84 (Fla. 4th DCA 1974). This limitation is predicated on the theory that a suit for an accounting requires a bifurcated proceeding in which the party seeking the accounting must first establish his right to it. A-l Truck Rentals v. Vilberg, 222 So. 2d…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Charles Sales Corp. v. Rovenger, 88 So. 2d 551 (Fla. 1956)
- A-1 Truck Rentals, Inc. v. Vilberg, 222 So. 2d 442 (Fla. 3d DCA 1969)
- Wood v. Brackett, 266 So. 2d 398 (Fla. 1st DCA 1972)
- Armstrong v. Piatt, 201 So. 2d 830 (Fla. 4th DCA 1967)
- Boyd v. Walker, 251 So. 2d 332 (Fla. 3d DCA 1971)
- Stanton Inv. Co. OF Mo., Inc. v. Simon, 255 So. 2d 557 (Fla. 2d DCA 1971)