Donahue v. Hebert

• Decision Date: 14 March 1978
• Docket Number: No. 77-888,77-888
• Citation: 355 So.2d 1264
• Court: Florida District Court of Appeals
• Parties: Richard V. DONAHUE, Appellant, v. Howard N. HEBERT, Appellee.

Page 1264

355 So.2d 1264

Richard V. DONAHUE, Appellant, v. Howard N. HEBERT, Appellee.

No. 77-888.

District Court of Appeal of Florida, Fourth District.

March 14, 1978.

William H. Harrell, of Reinman, Harrell & Silberhorn, Melbourne, for appellant.

William C. Potter, of Nabors, Potter, McClelland & Griffith, Melbourne, for appellee.

DOWNEY, Judge.

Appellant seeks review by interlocutory appeal of an order denying his objections to interrogatories directed to him in a libel suit. Such an order in an action formerly cognizable at law is not reviewable by interlocutory 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 requirements of law, if such there be, cannot be rectified upon plenary appeal from the final judgment. Therefore, common law certiorari is the appropriate remedy.

Appellee Hebert sued appellant Donahue for libel. After the cause was at issue Hebert directed sixteen interrogatories to Donahue, who answered six of them and objected to the other ten. The interrogatories to which Donahue objected related to the discovery of his financial resources, particularly to his 1) interests in any partnerships, joint ventures, or single proprietorships during the previous five years; 2) his income, bank accounts, safety depositories and transfers of property, all within the previous three years, and 3) present ownership of real and personal property and the value thereof.

Donahue concedes that the financial resources of a defendant in a libel suit are an appropriate subject of discovery when punitive damages are properly sought. He also recognizes the broad discretion that inheres in the trial court in determining the perimeters of discovery, and that the exercise of that discretion will not be disturbed absent a clear abuse thereof. But Donahue seems to contend that when a defendant states his net worth under oath, or verifies a statement of his assets and liabilities, the inquiry into his finances must end. He phrases this contention in his brief as follows:

". . . The Appellant would argue that by providing a financial statement executed under oath he has provided a 'properly authenticated financial statement' in accordance with the principles as set forth in Tallahassee Democrat, Inc., supra. It should be presumed that when a citizen of the United States files with a court a sworn statement that he is telling the truth. It should not be a requirement that the Appellant not only provide a sworn financial statement, but, in addition, disclose all of his business activities so that the Appellee can investigate him and determine whether or not he is telling the truth. Such a procedure may be entirely appropriate in a post- judgment discovery proceeding. However, prior to judgment, the liability, if any, of the defendant has not even been 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. The Appellee is seeking information to verify the Appellant's statement of financial net worth prior to even establishing liability on the part of the Appellant, and is, therefore, 'placing the cart before the horse.' "

We suggest the foregoing statement misses the mark. However, there seems to be some confusion as to the proper direction and scope of discovery in determining the financial resources of a party in...