ROBERT A. GIAMMARESI, APPELLANT,
v.
GREER PARKER ET AL., APPELLEES; GREER PARKER ET AL., APPELLANTS, V. JOHN HOMAN, III, ET AL., APPELLEES
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.
This case involves an interlocutory appeal concerning the timing of discovery in a lawsuit alleging breach of a joint venture agreement for real estate development. The appellate court reversed the denial of a protective order, holding that discovery of financial records related to an accounting should be deferred until the right to an accounting is established.
Yes, the trial court erred in denying the motion for a protective order. Discovery of financial records pertaining to an accounting should be deferred until the preliminary issue of the right to an accounting is settled.
[1] Discovery of financial records relevant to an accounting is premature until the right to an accounting has been established.
[2] A trial court's order denying a motion for a protective order regarding discovery of accounting-related financial records is appealable.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
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.”
Establishes the legal principle regarding the timing of discovery for accounting claims.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePlaintiffs alleged an oral agreement for a joint venture to purchase and develop real property, with plaintiffs advancing funds to defendants. Defenda…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Right To An Accounting cases and more on FLexlaw
CROSS, Judge.
Plaintiffs, Greer Parker, Minnie Ann Homan and Homark Enterprises, instituted suit against defendants, John Homan III, Judy Homan Glecer, Robert A. Giammare-si, Sally Giammaresi and Argus Development Corporation, alleging, inter alia, in their second amended complaint that Greer Parker, Minnie Ann Homan, John Homan III, Judy Homan Glecer, and the Giamma-resis orally agreed to enter into a joint venture for the purpose of purchasing and developing certain real property in Bro-ward County, Florida; in accordance with the terms of the abovementioned agreement, Greer Parker, Minnie Ann Homan and John Homan III advanced sums of money through Homark Enterprises to the Giammaresis; the Giammaresis purchased and developed three parcels of property utilizing the monies advanced to them by Greer Parker, Minnie Ann Homan and John Homan III; the Giammaresis purchased the parcels of property and took title thereto in the name of Argus Development Corporation; contrary to the terms of the agreement, the Giammaresis refused to convey title to the parcels of property to Homark; contrary to the terms of the agreement, the Giammaresis sold one of the parcels of land and refused to account to the plaintiffs for the monies received from this sale.
The permanent relief sought in this action by the plaintiffs is money damages, imposition of trusts on the parcels of property yet titled in the name of Argus Development Corporation, and an accounting of monies and property accruing to the Giam-maresis and to Argus as a result of the monies advanced to them by Greer Parker, Minnie Ann Homan and John Homan III.
Thereafter the Giammaresis and Argus moved to dismiss plaintiffs’ second amended complaint. Robert A. Giammaresi moved for an order discharging lis pendens filed by the plaintiffs against the parcels of property yet titled in the name of Argus Development Corporation.
While the abovementioned motions were pending, plaintiffs noticed for deposition one Nelson B. Olmstead, the Vice President in charge of operations at the Barnett Bank of Fort Lauderdale, Florida. A subpoena duces tecum was also served upon Olmstead requiring him to produce financial records of Argus Development Corporation. Giammaresi and Argus then sought by motion a protective order restraining production of Argus’ financial records on the grounds that plaintiffs were prematurely seeking discovery as to items of accounting before it was established that the plaintiffs were entitled to an accounting. Said motion was denied by order of the trial court. It is from this order that Giammaresi takes an interlocutory appeal, numbered 75-217.
Subsequently thereafter, the trial court entered an order dismissing plaintiffs’ second amended complaint, granting, however, leave to file a third amended complaint, and discharged the lis pendens filed by the plaintiffs. Plaintiffs take an interlocutory appeal from this order, numbered 75-678.
We have consolidated the interlocutory appeals for the purposes of disposition.
Turning now to consider whether the trial court erred in denying the motion for a protective order filed by the Giammaresis and Argus, we note in Charles Sales Corp. v. Rovenger, 88 So. 2d 551 (Fla.1956), the Florida Supreme Court 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 David v. Tansill, 297 So. 2d 84 (Fla.App.1974); Wood v. Brackett, 266 So. 2d 398 (Fla.App.1972); Stanton Investment Company of Missouri 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, we conclude that the financial records of Argus Development Company could only have relevance as to the amount of any sums that might be due the plaintiffs in an accounting and not the issue of the plaintiffs’ right to an accounting. Therefore, plaintiffs are not entitled to discovery of these records until the issue of the right to an accounting has been determined favorably to plaintiffs.
As to whether the trial court erred in dismissing plaintiffs’ second amended complaint and discharging the lis pendens filed by plaintiffs, we determine those issues to be without merit. Leave was granted plaintiffs to file a third amended complaint and at oral argument we have been informed that plaintiffs have since filed a third amended complaint.
Accordingly, the trial court’s order denying the motion for a protective order is reversed and the cause is remanded for further proceedings consistent with the views herein expressed in interlocutory appeal No. 75-217. The trial court’s order dismissing plaintiffs’ second amended complaint and discharging lis pendens filed by the plaintiffs is affirmed in interlocutory appeal No. 75-678.
WALDEN, C. J., and MAGER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
E. Colonial Refuse Serv., Inc. v. Velocci, 416 So. 2d 1276 (Fla. 5th DCA 1982)…ting are not discoverable until the right to an accounting has been established. See, e.g., Charles Sales Corp. v. Rovenger, 88 So. 2d 551 (Fla.1956); Ponte Vedra Recorder, Inc. v. Carpenter, 401 So. 2d 834 (Fla. 5th DCA 1981); Giammaresi v. Parker, 326 So. 2d 243 (Fla. 4th DCA 1976); cf. Bartolucci v. Bartoluc-ci, 399 So. 2d 448 (Fla. 5th DCA 1981) (pleadings affirmatively established a right to an accounting). . See, e.g., Erik Electric Co., Inc. v. Elliot, 375 So. 2d 1136 (Fla. 3d DCA 1979); Inland Rubber…
-
The Colonies Condo. Ass'n, Inc. v. Clairview Holdings, Inc., 419 So. 2d 725 (Fla. 5th DCA 1982)…titled, at least preliminarily, to the accounting before he is entitled to discovery of financial records. Charles Sales Corp. v. Bovenger, 88 So. 2d 551 (Fla.1956); Bartolucci v. Bartolucci, 399 So. 2d 448 (Fla. 5th DCA 1981); Giammaresi v. Parker, 326 So. 2d 243 (Fla. 4th DCA 1976). Here, the records denied by the court can have relevance only to the accounting and not to petitioner’s right to an accounting. In these circumstances, the court’s refusal to order discovery was not a departure from the essent…
-
Bartolucci v. Bartolucci, 399 So. 2d 448 (Fla. 5th DCA 1981)…ine the books and records through the usual discovery procedures it must affirmatively appear that the plaintiff is entitled, at least preliminarily, to the accounting. Charles Sales Corp. v. Rovenger, 88 So. 2d 551 (Fla.1956); Giammaresi v. Parker, 326 So. 2d 243 (Fla. 4th DCA 1976). Although it would have been better for the trial court to have specifically found that the plaintiff was entitled to discovery because she was entitled to an accounting, we can determine from the answer and counter-claim of the…
Previewing 3 of 4 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)
- David v. Tansill, 297 So. 2d 84 (Fla. 4th DCA 1974)
- 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)