Banc of Am. Investment Services v. Barnett

• Court: Florida District Court of Appeals
• Writing for the Court: Suarez
• Citation: Banc of Am. Investment Services v. Barnett, 997 So.2d 1154 (Fla. App. 2008)
• Decision Date: 03 December 2008
• Docket Number: No. 3D08-1877.,3D08-1877.
• Parties: BANC OF AMERICA INVESTMENT SERVICES, INC., Petitioner, v. Adam E. BARNETT and Chelsea M. Barnett, Respondents.

997 So.2d 1154

BANC OF AMERICA INVESTMENT SERVICES, INC., Petitioner, v. Adam E. BARNETT and Chelsea M. Barnett, Respondents.

No. 3D08-1877.

District Court of Appeal of Florida, Third District.

December 3, 2008.

Liebler, Gonzalez & Portuondo and Juan A. Gonzalez and Barbara Viniegra, Miami, for petitioner.

Infante, Zumpano, Hudson & Miloch and Robert W. Hudson and Patricia Montes De Oca, Coral Gables, for respondents.

Before SUAREZ, ROTHENBERG, and LAGOA, JJ.

SUAREZ, J.

Banc of America Investment Services, Inc. ("Banc of America"), petitions for a writ of certiorari to quash an order of the lower court compelling responses to a First Request to Produce. We have certiorari jurisdiction to review the order. See Art. V, § 4(b)(1), Fla. Const.; Fla. R.App. P. 9.030(b)(2); Universal City Dev. v. Williams, 963 So.2d 351 (Fla. 5th DCA 2007) (holding that certiorari is available to review discovery order departing from essential requirements of law and causing injury with no adequate remedy on appeal). We grant the petition for writ of certiorari and issue the writ on grounds that the order below overruling objections to the request to produce documents and granting the Motion to Compel Better Responses to First Request for Production departed from the essential requirements of law.

The underlying lawsuit, brought by Banc of America, is an action for conversion of stock transferred to Adam and Chelsea Barnett's ("Barnetts") account at another institution. The complaint alleges that, on or about October 25, 2006, pursuant to instructions from the deposit holder, Mr. Day, Banc of America transferred five million shares of Shearson Financial Network stock out of Mr. Day's account to the Barnetts' account at another institution. On or about October 27, 2006, due to a clerical error, Banc of America transferred five million additional shares of the stock from the Day account to the Barnett account. The complaint further alleges that, upon discovery of the error, Banc of America replaced the shares in the Day account and requested the Barnetts to return the five million shares mistakenly transferred on October 27, 2006. The Barnetts refused to return the shares. Banc of America alleges counts of conversion and unjust enrichment based on the Barnetts' refusal to return the shares. The Barnetts refused to return the shares because they claim that Shearson Financial Network had agreed to pay them ten million shares in exchange for work they had completed.

The Barnetts requested production of Banc of America documents including all statements for the account originating the transfer, all documents pertaining to lawsuits alleging erroneous transfer of shares and all bank documents involving sale or transfer of Shearson Financial Network stock. Banc of America specifically objected to production requests number six, seventeen and eighteen. Request number six asks for the following:

6. All account statements for the account(s) from which the shares at issue were transferred.

Banc of America objected to number six on grounds that the documents requested were confidential pursuant to section 655.059(2)(b), Florida Statutes (2007).¹ As to requests number seventeen² and eighteen,³ Banc of America objected on grounds that the requests were overly broad, unduly burdensome and irrelevant to claims at issue. The Barnetts proceeded to serve Banc of America with a Motion to Compel Better Responses to First Request for Production. Banc of America sought authorization to release the information requested from its depositor, Mr. Day, a non-party whose account was affected by the transfer. When Mr. Day denied authorization, Banc of America objected, once again, to the production of the account statements on grounds of privilege pursuant to section 655.059(2)(b).⁴ Banc of America objected to Request for Production numbers seventeen and eighteen, requesting production of information regarding lawsuits alleging other erroneous transfers of shares and to the production of all documents showing any transfer, purchase or sale of Shearson Financial Network shares, on grounds that the information sought was irrelevant and the requests were overly broad. The trial judge overruled Banc of America's objections and granted the Barnetts' motion to compel. Banc of America was ordered to produce the documents requested and a privilege log of all documents for which it was claiming privilege and to which it objected. This petition for writ of certiorari follows. We grant the petition for writ of certiorari on grounds that the trial judge departed from the essential requirements of law.

The standard of review on a petition for writ of certiorari is a departure from the essential requirements of law that adequately cannot be remedied on appeal. See Royal Caribbean Cruises, Ltd. v. Doe, 964 So.2d 713 (Fla. 3d DCA 2007), cert. denied, 980 So.2d 488 (Fla. 2008). The court below departed from the essential requirements of law when it ordered production of documents concerning transactions in Mr. Day's account that are privileged pursuant to ...