Savino v. Luciano

• Court: Florida Supreme Court
• Writing for the Court: ROBERTS; TERRELL
• Citation: Savino v. Luciano, 92 So.2d 817 (Fla. 1957)
• Decision Date: 20 February 1957
• Parties: John J. SAVINO and Leona A. Savino, Petitioners, v. James LUCIANO, individually and d/b/a Dale Contracting Company, Respondent.

Page 817

92 So.2d 817

John J. SAVINO and Leona A. Savino, Petitioners, v. James LUCIANO, individually and d/b/a Dale Contracting Company, Respondent.

Supreme Court of Florida, Special Division B.

Feb. 20, 1957.

Miller & Miller, Forst Lauderdale, for petitioners.

Anderson & Gundlach, Fort Lauderdale, for respondent.

ROBERTS, Justice.

We here review on certiorari an order of the lower court entered upon entitioners' motion under Rule 1.28, Fla. Rules Civ.Proc., 30 F.S.A., for production of books, records and accounts of the respondent. The court denied the motion as to a report and audit prepared by a certiried public accountant for the respondent on the ground that the report and audit was privileged under the provisions of Sec. 473.15, Fla.Stat.1955, F.S.A.

The instant litigation was initiated by the petitioner John Savino ('plaintiff' hereafter) in a suit against the respondent ('defendant' hereafter) for an accounting and for profits alleged to be due him under an employment contract with defendant. The defendant filed an Answer and a Cross-claim and Counterclaim, alleging that nothing was owed to the plaintiff under the contract, as shown by an audit of a certified public accountant, and averring that plaintiff, as bookkeeper, had manipulated the books to show a net income where none existed and that defendant had paid plaintiff $8,000, as draws on profits, 'in ignorance of the true financial condition of Dale Contracting Company, which was subsequently discovered in an audit by a certified public accountant following termination of [plaintiff's] employment with defendant. * * *' He also alleged that plaintiff had embezzled the company's funds. He stated that it was necessary to employe a certified public accountant to audit and reconstruct the books of account of the business 'for reasons aforesaid' and that plaintiff ought to pay the fee of the certified public accountant. He prayed for damages for the alleged overpayment of profits and the embezzled funds, 'plus a reasonable fee for services rendered to defendant--counter and cross claimant by siad certified public accountant. * * *' (Other allegations respecting a lien against property owned by plaintiff and his wife were made, and the wife was joined as a party cross-defendant and is one of the petitioners here.)

Two issues are argued here: (1) whether the 'privileged' status granted by Sec. 473.15, supra, to communications between a certified public accountant and his client attaches to the report and audit in the circumstances here; and (2) assuming arguendo that it does, whether the defendant is barred under the principles of waiver or estoppel from claiming the privilege. In the view we take of the second question it is not necessary to decide the first.

There can be no doubt that at the trial the defendant will rely on the audit and report in proof of his defense and counterclaims. The allegations of his pleadings lead inescapably to that conclusion. The anomaly of his position is immediately apparent: for the purpose of barring the discovery procedure, the audit and report is confidential and privileged; for the purpose of...