EFTA01187978.pdf

Haddad, Tonja 1/1212013 For Educational Use Only Donahue v. Hebert, 355 So.2d 1264 (1978) 355 So.2d 1264 As regards discovery of financial resources of District Court of Appeal of Florida, Fourth District. defendant in libel suit when punitive damages are properly sought, trial court should always be Richard V. DONAHUE, Appellant, sensitive to protection of party from harassment v. and from overly burdensome inquiry. Howard N. HEBERT, Appellee. 2 Cases that cite this headnote No. m888. I March 14, 1978. Defendant in libel suit objected to interrogatories directed to him. The Circuit Court for Brevard County, Virgil B. 111 Pretrial Procedure Conkling, J., denied defendant's objections, and -4Particular Subjects of Disclosure defendant sought review by interlocutory appeal. The District Court of Appeal, Downey, J., held that: (I) order In libel suit in which punitive damages were denying objections to interrogatories was not reviewable sought, discovery pertaining to the defendant's by interlocutory appeal, but would be treated as petition financial affairs for the three previous years was for writ of certiorari, and (2) petition for writ of certiorari a reasonable period and allowing inquiry for the filed by defendant seeking review of order denying his previous five years as to business relationships objections to ten interrogatories relating to his interest in such as sole proprietorships, partnerships and any partnerships, joint ventures, or single proprietorships joint ventures was not an abuse of discretion. during previous five years, his income, bank accounts, safety depositories and transfers of property, all within 2 Cases that cite this headnote previous three years, and present ownership of real and personal property and value thereof, would be denied. Petition denied. Pretrial Procedure 4-Particular Subjects of Disclosure Discovery of financial affairs of a defendant West Headnotes (4) against whom punitive damage] is sought may not be restricted to the furnishing of a financial statement sworn to by the party furnishing it; Itl Appeal and Error receding from Gamer v. Keen, 347 So.2d 663. 4-Relating to Witnesses, Depositions, Evidence, or Discovery 3 Cases that cite this headnote Order denying objections to interrogatories in action formerly cognizable at law is not reviewable by interlocutory appeal. I Cases that cite this headnote Attorneys and Law Firms *1264 William H. Harrell, of Reinman, Harrell & Silberhorn, Melbourne, for appellant. Pretrial Procedure William C. Potter, of Nabors, Potter, McClelland & -4Objections and Protective Orders Griffith, Melbourne, for appellee. WestlawNext © 2013 Thomson Reuters. No claim to original U.S. Government Works. 1 EFTA01187978  Haddad, Tonja 1/12/2013 For Educational Use Only Donahue v. Hebert, 355 So.2d 1264 (1978) Opinion discovery proceeding. However, prior to judgment, the liability, if any, of the defendant has not even been DOWNEY, Judge. established. The burden of proving any liability is, of course, on the Appellee and the Appellant carries with him, therefore, a presumption that he is not guilty of libel. In Appellant seeks review by interlocutory appeal of an The Appellee is seeking information to verify the order denying his objections to interrogatories directed to Appellant's statement of financial net worth prior to even him in a libel suit. Such an order in an action formerly establishing liability on the part of the Appellant, and is, cognizable at law is not reviewable by interlocutory therefore, 'placing the cart before the horse.' " appeal, but we will treat the matter as a Petition for Writ of Certiorari. Obviously, if Donahue answers the interrogatories, the departure from the essential We suggest the foregoing statement misses the mark. requirements of law, if such there be, cannot be rectified However, there seems to be some confusion as to the upon plenary appeal from the final judgment. Therefore, proper direction and scope of discovery in determining common law certiorari is the appropriate remedy. the financial resources of a party in a law suit. Some authorities seem to suggest that a party can simply furnish Appellee Hebert sued appellant Donahue for libel. After a sworn statement of his current assets and liabilities to the cause was at issue Hebert directed sixteen his opponent and thereby cut off any further aggressive interrogatories to Donahue, who answered six of them inquiry into his true financial capacity to respond. We and objected to the other ten. The interrogatories to which know from experience that one party frequently Donahue objected related to the discovery of his financial minimizes his financial ability to respond when it is an resources, particularly to his 1) interests in any issue in a law suit, while the other party often has a partnerships, joint ventures, or single proprietorships tendency to inflate that same financial ability. Even under during the previous five years; 2) his income, bank oath a party often seems to view another party's financial accounts, safety depositories and transfers of property, all resources as great or small in direct proportion to the within the previous three years, and 3) present ownership benefit which will accrue to that party. Thus, it is the of real and personal property and the value thereof. height of naivete to suggest that a sworn statement of one's net worth must be accepted as the final word on that *1265 Donahue concedes that the financial resources of a important subject. The search for forgotten or hidden defendant in a libel suit are an appropriate subject of assets is of the essence of the discovery process. The discovery when punitive damages are properly sought. whereabouts of assets disclosed by a recent income tax He also recognizes the broad discretion that inheres in the return, or shown on a recent financial statement furnished trial court in determining the perimeters of discovery, and in another situation when the current litigation was not that the exercise of that discretion will not be disturbed envisioned is very definitely appropriate inquiry as is the absent a clear abuse thereof. But Donahue seems to bona fides of the recent disposition of assets. These are contend that when a defendant states his net worth under routine inquiries for every knowledgeable trial lawyer in oath, or verifies a statement of his assets and liabilities, cases in which the financial resources of a party is a the inquiry into his finances must end. He phrases this relevant issue. One must be afforded reasonable latitude contention in his brief as follows: in double and cross checking a party's statements about . . . The Appellant would argue that by providing a his current net worth. This, of course, can be done by financial statement executed under oath he has provided a reviewing income tax returns, recent financial statements, 'properly authenticated financial statement' in accordance and the myriad of other sources of financial information. with the principles as set forth in Tallahassee Democrat, As Judge Walden put it, speaking for this court in Inc., supra. It should be presumed that when a citizen of International Union of Operating Engineers v. Lassiter. the United States files with a court a sworn statement that 295 So.2d 634 (Fla. 4th DCA 1974); rev'd on other he is telling the truth. It should not be a requirement that grounds 314 So.2d 761 (FIa.1975): the Appellant not only provide a sworn financial "And now back to the term 'financial statement, but, in addition, disclose all of his business resources' contained in the activities so that the Appellee can investigate him and instruction. As stated, it is the broader determine whether or not he is telling the truth. Such a concept and, depending upon the procedure may be entirely appropriate in a post-judgment circumstances, there may well be WestlawNext © 2013 Thomson Reuters. No claim to original U.S Government Works. 2 EFTA01187979  Haddad, Tonja 1/12/2013 For Educational Use Only Donahue v. Hebert, 355 So.2d 1264 (1978) additional proofs which would be 121 131 Among the various sources available to the helpful to the jury and court, which discoverer are those which Hebert inquired about: bank proofs would not be necessarily accounts, depositories, present and recent ownership of included in a defendant's balance property and its value, and any interests in various sheet. Thus, the term gives the trial business arrangements. Inquiry pertaining to the three judge a more liberal standard to previous years is certainly a reasonable period and we determine whether a given proffer of cannot say that allowing inquiry for the previous five evidence is relevant and material. For years as to the business relationships such as sole instance, there could well be, and proprietorships, partnerships and joint ventures is an properly so, proof *1266 as to abuse of discretion. On the other hand, the trial court income, cash flow, expenses, should always be sensitive to the protection of a party anticipated income, anticipated from harassment and from an overly burdensome inquiry. diminutions of income, anticipated casualties and, as in the instant case, 19 In view of the foregoing, if the case of Tallahassee proofs as to assessments of the Democrat, Inc. v. Pogue, 280 So.2d 512 (Fla. 1st DCA membership possibilities. These 1973), can be read to restrict discovery in cases of this items, among other of like moment, nature to the furnishing of a financial statement sworn to would be receivable in addition to net by the party furnishing it, we strongly disagree. Likewise, worth figures under the scope of to the extent that our case of Gamer v. Keen, 347 So.2d financial resources. All of this 663 (Fla. 4th DCA 1977), conflicts with what is said here, material, including the reflection of we recede therefrom. net worth, goes to make up a defendant's financial resources which Accordingly, the Petition for Writ of Certiorari is denied. the jury is entitled to consider in assessing _tt ive damages as commanded in Florida Standard Jury Instruction 6.12." ANSTEAD and DAUKSCH, JJ., concur. End of Document C 2013 Thomson Reuters. No claim to original U.S. Government Works. WestlawNext © 2013 Thomson Reuters. No claim to original U.S. Government Works. 3 EFTA01187980