Jerry's South, Inc. v. Morran, 91-00360
| Decision Date | 22 July 1991 |
| Docket Number | No. 91-00360,91-00360 |
| Citation | 582 So.2d 803 |
| Parties | JERRY'S SOUTH, INC., a Florida corporation; Jerry's North, Inc., a Florida corporation; Captain Odie's, Inc., a Florida corporation; Otis J. Dixon; John Howren; and Jeff Rickard, Petitioners, v. David MORRAN, Respondent. 582 So.2d 803, 16 Fla. L. Week. D1878 |
| Court | Florida District Court of Appeals |
Robert E. O'Quinn, Jr., and Clyde E. Murphree of Webb, Swain & O'Quinn, P.A., Jacksonville, for petitioners.
Herbert T. Sussman of Boyer, Tanzler & Boyer, Jacksonville, for respondent.
This cause is before us on a petition for writ of certiorari to review the circuit court's denial of petitioners' motion for protective order against discovery sought by respondent in connection with his civil suit for damages.
On January 5, 1990, respondent (plaintiff), filed a two-count complaint against petitioners Jerry's South, Otis Dixon, (owner of Jerry's South), and John Howren (bartender at Jerry's South), alleging that John Howren owed a duty to make a reasonable determination in serving alcohol to an intoxicated bar patron who subsequently threatened and struck respondent, resulting in bodily injury.
A critical fact to be determined is ownership of the business at the time of the events in question. Respondent filed an amended complaint adding Jerry's North and Captain Odie's, as defendants, as well as Jeff Rickard (the intoxicated patron), alleging that one of the new corporate defendants may have been the owner of the bar in which the incident occurred.
On January 10, 1990, the same day as the filing of the amended complaint, Mr. Dixon appeared for deposition as the corporate representative of Jerry's South. Dixon testified that he is currently the principal stockholder and president of Jerry's South, Jerry's North, and Captain Odie's. However, Dixon stated that he was not provided adequate time prior to deposition to ascertain who owned the business on the date in question and that with more time he could obtain the information. Dixon did not refuse to supply the information.
On June 4, 1990, Mr. Dixon moved to dismiss the amended complaint against him for failure to properly serve initial process and pleading. Thereafter, respondent filed a motion for enlargement of time to effect service of process.
On June 22, 1990, Circuit Judge Harding ruled that respondent had failed to show good cause for failing to timely serve Dixon. The court granted the motion to dismiss as to Dixon and denied the motion for enlargement of time.
On December 7, 1990, respondent noticed the taking of the deposition of Dan Minton, C.P.A., directing Minton 1 to bring all business records relating to the defendant corporations and to Dixon. On December 18, 1990, respondent filed a notice of production from nonparties (First Union National Bank of Florida and American National Bank of Florida), 2 seeking production of all business records of the defendant corporations and of Dixon.
On December 28, 1990, petitioners filed a motion for protective order on the ground that the discovery sought as to Mr. Dixon, a nonparty, was overly broad and was beyond the scope of Florida Rules of Civil Procedure 1.280, 1.350, and 1.351. Petitioners also filed objections to respondent's subpoenas duces tecum as to nonparties American National Bank and First Union National Bank.
On January 9, 1991, Judge Gordon Duncan 3 denied all motions and objections, and allowed the discovery in question.
When considering a petition for writ of certiorari, this court considers the record as it existed at the time the complained-of discovery order was entered. Becker Metals Corp. v. West Florida Scrap Metals, 407 So.2d 380, 381 (Fla. 1st DCA 1981) (). Based...
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