Stoner v. Verkaden, 85-2014

• Decision Date: 17 September 1986
• Docket Number: No. 85-2014,85-2014
• Citation: 11 Fla. L. Weekly 1995,493 So.2d 1126
• Parties: 11 Fla. L. Weekly 1995 Wonna STONER, Appellant, v. C.H. VERKADEN and Stoner Builders Corporation, Appellees.
• Court: Florida District Court of Appeals

Page 1126

493 So.2d 1126

11 Fla. L. Weekly 1995

Wonna STONER, Appellant, v.C.H. VERKADEN and Stoner Builders Corporation, Appellees.

No. 85-2014.

District Court of Appeal of Florida Fourth District.

Sept. 17, 1986.

Steven W. Gomberg of The Law Offices of Steven W. Gomberg, West Palm Beach, for appellant.

Scott Kramer, North Palm Beach, for appellees.

GLICKSTEIN, Judge.

I.

This is an appeal from a final judgment in favor of the individual appellee, who has sued appellant and a corporation, Stoner Builders Corporation, alleging, in his amended complaint, the existence of an oral contract between him and the appellant or the defendant corporation.We reverse.

Appellee attempted to depose the corporation and served a "Re-Notice of Taking Deposition Duces Tecum," appending a list of documents.Both defendants moved for a protective order.The plaintiff moved to compel "the defendant," which was unnamed, to produce:

All bills or invoices reflecting amounts billed for labor or materials performed by STONER BUILDERS CORPORATION.

The motion then alleges the plaintiff was to receive a percentage of the gross cost of construction performed by "the defendant," again not naming which defendant.The style of the pleading names only the corporation.The amended complaint, in paragraph 5, refers to construction work performed by the corporation.

The trial court's order of July 19, 1984, recites:

THIS MATTER came on to be heard upon the Motion of the Plaintiff to Compel the Defendant to produce all bills or invoices reflecting the amount billed for labor or materials performed by STONER BUILDERS CORPORATION on various residential and commercial property.The Defendant has also filed a Motion for Protective Order protecting it from having to produce the same documentation requested by the Plaintiff.The Court after having heard argument of counsel and being otherwise advised it is;

ORDERED AND ADJUDGED that the Plaintiff's Motion to Compel is granted and the Defendant's Motion for Protective Order is denied.The Defendant shall be required to produce the item requested within forty-five (45) days from the date of this Order at a place mutually convenient for the parties.

It is clear from the above order that there was no reference, whatsoever, to the individual defendant.The style of the order names only the corporation as a defendant, notwithstanding the plural of defendant appearing below it.

Yet the court then struck the individual's pleadings for her failure to produce various bills and invoices, pursuant to the trial court's foregoing order.Subsequently, the trial court entered final judgment against appellant for $25,800.The trial court's order, striking the individual's pleadings, was harmful error.The corporation's misconduct cannot be charged to its co-party.SeeZanathy v. Beach Harbor Club Association, Inc., 343 So.2d 625(Fla. 2d DCA1977)(husband-wife);Henry A. Knott Company, Division of Knott Industries v. Redington Towers, Inc., 428 So.2d 687(Fla. 2d DCA1983)(insurer-insured);andLeatherby Insurance Company v. Jones, 332 So.2d 139(Fla. 3d DCA1976)(insurer-insured).

Since the individual had never been instructed by the court to comply with any discovery request, sanctions against her were inappropriate.Rule 1.380,Florida Rules of Civil Procedure, authorizes sanctions for a party's...