Cabanas v. FORD, ARMENTEROS, MANUCY

• Citation: 727 So.2d 1100
• Decision Date: 10 March 1999
• Docket Number: No. 98-2807.,98-2807.
• Parties: Carla CABANAS, Petitioner, v. FORD, ARMENTEROS, MANUCY, INC., Respondent.
• Court: Court of Appeal of Florida (US)

727 So.2d 1100

Carla CABANAS, Petitioner, v. FORD, ARMENTEROS, MANUCY, INC., Respondent.

No. 98-2807.

District Court of Appeal of Florida, Third District.

March 10, 1999.

Derrevere & Associates, P.A., and Adam D. Falcon, West Palm Beach, for petitioner.

Siegfried, Rivera, Lerner, De La Torre & Sobel, P.A., and Helio De La Torre, and David B. Israel, for respondent.

Before SCHWARTZ, C.J., and NESBITT and GREEN, JJ.

GREEN, J.

By way of a petition for writ of certiorari, Carla Cabanas seeks review of a discovery order overruling her objections to certain deposition questions posed to her attorney on the grounds of the attorney/client privilege and overruling her objections to the production of copies of her income tax returns for the years 1993, 1994 and 1995. We find that this order departs from the essential requirements of the law. We therefore grant the petition and quash the order under review.¹

Cabanas purchased a home in November of 1995. Leonardo Brito, a real estate attorney, represented her in this transaction up to and including the closing. At the time of her purchase of this home, Cabanas had been in a romantic relationship and lived with Omar Armenteros, the president of respondent Ford, Armenteros, Manucy, Inc. ("F.A. & M."). On or about November 9, 1995, Armenteros executed a check for $16,875 on the respondent company's letterhead and gave it to Cabanas. After the closing on the home, Cabanas' relationship with Armenteros deteriorated. Armenteros demanded the return of the $16,875 from Cabanas as well as payment for the value of materials and services to the house allegedly provided to and paid for by F.A. & M. When Cabanas refused payment, F.A. & M. filed this three count suit for money lent, money paid and quantum meruit against Cabanas. The suit essentially alleges that Cabanas purchased the home with funds loaned to her by F.A. & M. and that F.A. & M. had paid expenses for the home including, but not limited to, fees for utility services, security fees, and lawn maintenance fees, with the expectation that Cabanas would repay F.A. & M for these expenses. Cabanas' position in this litigation is apparently that all of the funds given to her were gifts and not loans.

During the discovery phase of this litigation, F.A. & M. deposed attorney Brito. F.A. & M. sought, over objection, to elicit information from the attorney regarding his communications with Cabanas which we believe may infringe upon the attorney/client privilege, if no third parties were present.² The attorney/client privilege has been said to arise if:

(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.

See Skorman v. Hovnanian of Fla., Inc., 382 So.2d 1376, 1377-78 (Fla. 4th DCA 1980)

(citing N.L.R.B. v. Harvey, 349 F.2d 900, 904 (4th Cir.1965)); see also Hoyas v. State, 456 So.2d 1225, 1228 (Fla. 3d DCA 1984) (holding that the attorney/client privilege arises: "(1) [w]here legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) except the protection be waived.") (citation omitted). In our opinion, to the extent that Cabanas' communications with her counsel were made privately and outside the presence of others, the attorney/client privilege would clearly attach. In ordering the attorney to respond to the deposition questions about such communications over Cabanas' objections under these circumstances, we find the lower court's order to be a departure from the essential requirements of law.

Next, F.A. & M. has requested the production of Cabanas' personal income tax returns for the years 1993 through 1995, inclusive. F.A. & M's proffered relevancy of these returns is that they go to the heart of whether Cabanas perpetrated a fraud upon the mortgagee/lending institution by using borrowed funds for the purchase of the home. The issue of whether Cabanas may have defrauded the mortgagee is wholly...