Everglades Protective Syndicate, Inc. v. Makinney, 80-213

• Decision Date: 26 November 1980
• Docket Number: No. 80-213,80-213
• Citation: Everglades Protective Syndicate, Inc. v. Makinney, 391 So.2d 262 (Fla. App. 1980)
• Parties: The EVERGLADES PROTECTIVE SYNDICATE, INC., Petitioner, v. William Blair MAKINNEY, Respondent.
• Court: Florida District Court of Appeals

Page 262

391 So.2d 262

The EVERGLADES PROTECTIVE SYNDICATE, INC., Petitioner, v.William Blair MAKINNEY, Respondent.

No. 80-213.

District Court of Appeal of Florida, Fourth District.

Nov. 26, 1980.

Rehearing Denied Jan. 6, 1981.

William M. Hicks of Colson & Hicks, P. A., Miami, for petitioner.

Joseph D. Farish, Jr. of Farish, Farish & Romani, West Palm Beach, for respondent.

HERSEY, Judge.

By petition for writ of certiorari we are asked to review an order of the trial court granting a motion to compel answers to interrogatories.

A threshold question is whether certiorari is an appropriate vehicle for testing the correctness of an order governing discovery procedures.We have previously answered that question affirmatively where the order was a departure from the essential requirements of law for which there would be no adequate remedy by appeal.Schering Corporation v. Thornton, 280 So.2d 493(Fla.4th DCA1973).Thus, we have jurisdiction.

William Blair Makinney was expelled from membership in The Everglades Club, a private social club.He filed a petition in the circuit court for a writ of mandamus to compel the club to reinstate his membership.The trial court issued a rule to show cause and the club filed a response.Makinney then served written interrogatories.Some of those interrogatories were answered; others were objected to as immaterial and irrelevant to any issue in the action.A motion to compel answers to the latter class of interrogatories was granted by the trial court, whereupon the club filed the present petition for certiorari.

We are asked to determine whether the order granting the motion to compel answers to interrogatories under the circumstances of this case constituted a departure from the essential requirements of law.If the interrogatories consist of questions relevant to the subject matter involved in the litigation, or if they"appear reasonably calculated to lead to the discovery of admissible evidence,"Rule 1.280(b)(1),Florida Rules of Civil Procedure, they are appropriate and the order in question would withstand our scrutiny.

Material sought to be discovered must relate to the issues involved in the litigation in which an attempt to compel is made.Equifax Corporation v. Cooper, 380 So.2d 514(Fla.5th DCA1980).In a mandamus proceeding such as the one in the court below, the basic issues to be determined are whether the relator has a right to the performance of some act and whether the respondent has the correlative duty to perform that act.A petition for writ of mandamus that alleges facts demonstrating the co-existence of the right and the duty states a cause of action.

During oral argument an unsuccessful attempt was made to determine from counsel for Makinney the nature of the cause of action (Makinney's right and the club's duty) involved here.This was done not to test the vulnerability of the pleading, which is not before us for review, but to gain an insight into the legal issues sought to be raised.Without such clarification it is difficult to determine whether the interrogatories are relevant to those issues or reasonably calculated to lead to the discovery of evidence relevant and material to those issues.Counsel responded that these matters had been laid to rest in the trial court by disposition of a motion to dismiss.Counsel apparently temporarily lost sight of the fact that we have before us no record of the proceedings below since the matter is here on certiorari rather than on appeal.

Be that as it may, the original petition appears to us to raise three issues.First, it is suggested that notice to Makinney was somehow inadequate or improper.Second, the hearing afforded him was a sham.And third, that Makinney's membership was terminated for reasons other than those stated by the club, but that such other reasons are unknown to Makinney.

As to the first two issues, the notice and hearing afforded Makinney are characterized as a sham and "ineffectual to satisfy the requirements of the letter and the spirit of the statutory and case law of Florida."There is no question that Makinney was given notice and on more than one occasion, as specifically set out in his own pleading.The same may be said of a hearing.Appellant's grievance, apparently, is that the notice and hearing did not afford Makinney due process since he was not given the opportunity to confront and cross-examine those members of the club who complained of his actions.

The petition for writ of mandamus contains the following allegations bearing out this hypothesis:

The Petitioner contends that the notice and hearing provided by the Respondent was nothing more than a sham and was ineffectual to satisfy the requirements of the letter and the spirit of the statutory and case law of Florida.First, the Petitioner was told only that there had been complaints that some of his quests behaved improperly at a party.Despite repeated requests, the Petitioner was never given specifics as to which of his several quests were behaving improperly, what sort of behavior occurred, or which members complained.The Petitioner contends that, in order for the notice and hearing to have meaning, he was entitled to be given notice of the charges against him with sufficient specificity that he could defend against them.See20 A.L.R.2d 356-358 and the cases cited thereunder.

Second, the Petitioner was not given a fair hearing at which to respond to the charges brought against him.He was merely brought before the Board and asked what he had to say in his behalf.No evidence was presented as to the charges brought against him.No witnesses appeared to substantiate the claims that some of his quests had behaved improperly.The Petitioner did not have an opportunity to face or cross examine his accusers.His requests to have an attorney present were denied.The so-called "hearing" provided by the Respondent amounted to little more than an inquisition.

Reliance on La Gorce Country Club v. Cerami, 74 So.2d 95(Fla.1954) as supporting the foregoing argument is misplaced.In that case no notice was given and there was no hearing.The court simply decided that notice and hearing were required in order to comply with due process requirements.It did not, however, mandate a trial and we think properly so.With regard to the hearing, the court held that "This procedure need not have...