Affiliated of Florida, Inc. v. U-Need Sundries, Inc.

• Decision Date: 01 May 1981
• Docket Number: U-NEED,No. 80-2361,80-2361
• Citation: 397 So.2d 764
• Parties: AFFILIATED OF FLORIDA, INC., a Florida Corporation, Petitioner, v.SUNDRIES, INC., Richmond Wholesale Company, Inc., an Indianacorporation, Alvin R. Scheidt and Irma A. Scheidt, Respondents.
• Court: Florida District Court of Appeals

Page 764

397 So.2d 764

AFFILIATED OF FLORIDA, INC., a Florida Corporation, Petitioner, v. U-NEED SUNDRIES, INC., Richmond Wholesale Company, Inc., an Indianacorporation, Alvin R. Scheidt and Irma A. Scheidt, Respondents.

No. 80-2361.

District Court of Appeal of Florida, Second District.

May 1, 1981.

Marvin E. Barkin and Robert H. Buesing of Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O'Neill, P. A., Tampa, for petitioner.

Philip Greenstein of Andrews, Shames & Greenstein, St. Petersburg, for respondents.

GRIMES, Judge.

By a petition for a writ of certiorari, the defendant in the court below assails a discovery order which, it contends, violates its attorney-client and accountant-client privileges.

U-Need Sundries, Inc., Richmond Wholesale Company, and Alvin and Irma Scheidt, the respondents in this court, filed suit against petitioner, Affiliated of Florida, Inc., for breach of an oral contract to purchase a business known as Sun City Wholesale. The amended complaint alleged that the parties entered into this oral contract at the conclusion of a two-day meeting held in October 1976. After instituting this action, respondents subpoenaed Daniel J. Bartz, Affiliated's certified public accountant, for deposition. At the deposition, Mr. Bartz, who had been present at the October 1976 meeting, testified concerning the meeting. However, when respondents' counsel attempted to question him about a confidential memorandum concerning the meeting which he prepared for Affiliated, he refused to answer on instructions from Affiliated's counsel, claiming that the memorandum was privileged.

Subsequently, respondents filed a request for production of documents, seeking Mr. Bartz' memorandum as well as all materials contained in the files of Affiliated's attorneys which related to the proposed purchase of Sun City by Affiliated. Affiliated refused to produce the Bartz memorandum, claiming accountant-client privilege. It also refused to turn over a portion of its attorneys' files on the grounds of attorney-client privilege. In response to Affiliated's actions, respondents filed a motion for an in camera inspection of documents. They asked the court, pursuant to section 90.510, Florida Statutes (1979), ¹ to inspect the documents which Affiliated had withheld and to strike from Affiliated's amended answer to their complaint those defenses which the documents would rebut.

The court held a hearing on the motion at which it ruled that section 90.510 was inapplicable since the Florida Evidence Code applies only to civil actions accruing after July 1, 1979, ² and respondents' cause of action accrued before that time. However, at respondents' request, the court permitted them to present authorities under precode law. After an exchange of memoranda, the court then entered an order granting the motion for an in camera inspection of the Bartz memorandum. Though not quite so clear, the in camera inspection seems also intended to include any documents from the attorneys' files which might be in the hands of Affiliated. The court ruled, however, that it would not inspect the documents in the hands of the attorneys because they had not been served with a subpoena duces tecum. The order contained no reference to the legal merit of Affiliated's claims of privilege.

Affiliated filed a petition for writ of certiorari seeking review of the court's order. We will entertain the petition because certiorari is a proper remedy where a party seeks protection from discovery orders compelling disclosure. E. g. Kilgore v. Bird, 149 Fla. 570, 6 So.2d 541 (1942). We hold that the documents which Affiliated seeks to protect from disclosure are privileged. Further, we hold that under the law as it existed prior to the evidence code, the court would have no authority to strike Affiliated's defenses for failure to produce the privileged documents. Accordingly, there is no justification for an in camera inspection.

Section 473.141(1), Florida Statutes (1975), protects communications between certified public accountants or public accountants and their clients. It reads as follows:

(1) All communications between a certified public accountant or public accountant and the person for whom such certified public accountant or public accountant shall have made any audit or other investigation in a professional capacity, and all information obtained by a certified public accountant and public accountant in his professional capacity concerning the business and affairs of a client, shall be...