Leithauser v. Harrison, 5128
| Decision Date | 09 October 1964 |
| Docket Number | No. 5128,5128 |
| Citation | 168 So.2d 95 |
| Parties | Blue Sky L. Rep. P 70,652 Charles H. LEITHAUSER and George H. Leithauser, co-partners doing business as Lighthouse Candy Company, Petitioners, v. John H. HARRISON et al., Respondents. |
| Court | Florida District Court of Appeals |
Wm. H. Robbinson, of Akerman, Senterfitt, Eidson, Mesmer & Robbinson, Orlando, for petitioners.
Charles E. Davis, of Fishback, Davis, Dominick & Troutman, Orlando, for respondents John H. Harrison and John H. Harrison & Co., Inc.
Edward K. Goethe, Orlando, for respondent Randolph Y. Matheny.
The petitioners are plaintiffs in trial court case #53116 which is one of nineteen suits at law against three defendants, who are the respondents here. They seek certiorari to quash an order sustaining an objection to an interrogatory on a claim of privilege. We grant the writ.
By their suit brought under Section 517.21 of the Uniform Sale of Securities Law, Chapter 517, Florida Statutes, F.S.A., the petitioners seek to recover from the respondents the price of certain corporate securities purchased by them, plus interest, costs and attorney's fees. The complaints allege the purchase of certain corporate bonds from Fischer Electro-Magnetics, Incorporated, the issuing corporation; that the bonds were not registered as required by the act; that the respondents, Harrison, a registered securities dealer, and Matheny, an attorney, were directors of the issuing corporation; and that these respondents personally participated or aided in making the sales to the petitioners.
The petitioners propounded various written interrogatories to the respondents, including one directed to the respondent, Matheny, which requested him to state the substance of any advice pertaining to these bonds which he had given to the respondent, Harrison, while representing Harrison as a lawyer. Matheny duly served and noticed for hearing an objection to this interrogatory based solely on the ground that 'any answer would call for the disclosure of a confidential communication between attorney and client constituting privileged matter * * *.'
Prior to the hearing on this objection Matheny alleged, in answer, among other things, that the entire issue of securities was sold to Harrison, a registered securities dealer, in a transaction which was exempt from the requirements of the act; that he did not participate in any of the sales to the plaintiffs and that he was without knowledge as to whether or not Harrison had sold any of the bonds as agent for the issuing corporation.
At the hearing on Matheny's objection, the petitioners acknowledged that an answer to their interrogatory would disclose a communication between attorney and client. They further acknowledged that they had the burden of producing evidence showing that the communication was outside the scope of the attorney-client relationship before disclosure properly could be required. They sought to sustain this burden by introducing evidence that the communication pertained to the future commission of a fraud or a crime. The court declined to receive the proffered evidence and sustained Matheny's objection.
Certiorari is a discretionary writ which will be issued only where the lower court acts without or in excess of jurisdiction or where the interlocutory order does not conform to the essential requirements of law and may reasonably cause material injury throughout the subsequent proceedings for which the remedy by appeal will be inadequate. Kauffman v. King, Fla.App., 1956, 89 So.2d 24. Normally, orders entered in discovery proceedings do not qualify for review under the above rule. 1 However, review has been granted in exceptional cases where it appeared, among other things, that such orders were reasonably likely to result in substantial injury. 2 Peculiar circumstances present here, particularly, the character of the information sought; its importance to a proper disposition of the issues raised by the pleadings; the unlikelihood that it can be obtained from a different source or in a different manner; the probability that a verdict for either or both defendants would have to be reversed by this court, regardless of the nature of quality of the evidence proffered; and the injustice of requiring the plaintiffs to incur the expense and inconvenience of trying these suits a second time in order to obtain an informed ruling on the question presented 3 lead us to conclude that this case is an exceptional one in which the writ should issue. The order here sought to be reviewed has a broader effect than that of non-fundamental error of judgment or procedure usually involved in discovery proceedings. Our review by certiorari is required to determine whether the court proceeded in conformity with the essential requirements of law relating to the procedure for reaching an ultimate disposition of the cause.
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Thoman v. Ashley, 4548
...question, the probability that a verdict would have to be reversed, and the expense and inconvenience involved. See Leithauser v. Harrison, Fla .App.1964, 168 So.2d 95, Second District opinion filed 9 October The Supreme Court also has reviewed quasi interlocutory orders at law where the pe......
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City of St. Petersburg v. Houghton
...which will cause Houghton material injury for which appeal will be inadequate, citing to us our own case of Leithauser v. Harrison, 168 So.2d 95 (Fla. 2d DCA 1964). Houghton further argues the proposition that a state may not impose substantial economic sanctions on a non-immunized individu......
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State ex rel. Christian v. Rudd, W--313
...Duval County, Fla.App.1961, 131 So.2d 504. * * *' (155 So.2d at page 748) In another opinion of the Second District, Leithauser v. Harrison, Fla.App.2nd 1964, 168 So.2d 95, that Court 'Certiorari is a discretionary writ which will be issued only where the lower court acts without or in exce......
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Eastern Air Lines, Inc. v. Gellert, 82-2620
...defense of truth to Count VI of the counterclaim that he prove the fraudulent payment by Bell to Anania. The case of Leithauser v. Harrison, 168 So.2d 95 (Fla. 2d DCA 1964), upon which the trial court relied, stands not only for the proposition that a communication made for the purpose of c......
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Certiorari Review of Orders Denying Discovery in Civil Cases.
...National Bank v. J. M. Montgomery Roofing Company, Inc., Fla. App. 1966, 189 So. 2d 239; and Leithauser v. Harrison, Fla. App. 1964, 168 So. 2d 95, 97. Brooks did not involve an order denying discovery, but the other three did. Following Brennan, the Fourth District's decisions did not cons......