Anderson Investments Co. Ltd. v. Lynch, 88-2205

• Decision Date: 14 December 1988
• Docket Number: No. 88-2205,88-2205
• Parties: 13 Fla. L. Weekly 2713 ANDERSON INVESTMENTS COMPANY LTD., d/b/a Park City West and Bill Anderson, Petitioners, v. The Honorable Thomas M. LYNCH, Circuit Judge, 17th Judicial Circuit of Florida, Respondent.
• Court: Florida District Court of Appeals

Page 832

540 So.2d 832

13 Fla. L. Weekly 2713

ANDERSON INVESTMENTS COMPANY LTD., d/b/a Park City West and Bill Anderson, Petitioners, v. The Honorable Thomas M. LYNCH, Circuit Judge, 17th Judicial Circuit of Florida, Respondent.

No. 88-2205.

District Court of Appeal of Florida,

Fourth District.

Dec. 14, 1988.

Joel Miller of Miller, Squire & Rafferty, Chartered, Fort Lauderdale, for petitioners.

Jerome L. Hall, Fort Lauderdale, for respondent.

PER CURIAM.

This court sua sponte amended the style of the case to reflect Judge Lynch as the proper respondent and ordered petitioners to file a reply as to why the defendants, the Youngs, were also named as parties to the petition. No response was filed by Judge Lynch within the twenty days provided and petitioners moved for issuance of a writ. That prompted our order, directing the defendants in the underlying action, the Youngs, to file a response on the merits of the petition, which we have now received.

While the only proper respondent to the petition for writ of prohibition is the judge, we are considering the response on the merits filed by the actual parties to the underlying litigation, the Youngs. We grant the petition for writ of prohibition which seeks to restrain the trial judge from taking future actions which exceed his jurisdiction, and delete from the style hereof the defendants in the trial court. We do not issue the writ, in the belief that there will be voluntary compliance herewith.

Prohibition does lie as an appropriate remedy, in that petitioners seek to prevent a contempt proceeding where the trial court appears to have exceeded its jurisdiction in finding contempt in the first place. See Allman v. Johnson, 488 So.2d 884 (Fla. 5th DCA 1986); State ex rel. Gillham v. Phillips, 193 So.2d 26 (Fla. 2d DCA 1966).

Petitioners have shown that the circuit court in this case is without jurisdiction to proceed further on the contempt sanctions it entered, and that the order of contempt itself should be quashed. They point out that the witness, Bill Anderson, who was noticed for deposition, was never served with a witness subpoena; and they correctly note that a person who is not a party to a pending lawsuit must be served with a subpoena before being required to appear for deposition. Ward v. Gibson, 340 So.2d 481 (Fla.3d DCA 1976).

A partnership may be noticed for deposition by a designation of matters on which the examination is requested. According to Florida Rule of Civil Procedure 1.310(b)(6), the organization named then has the right to designate one or more of its officers or persons to testify on its behalf. This is not the only permissible course, and respondents/the...