Vorbeck v. Betancourt, No. 3D12–1133.

• Court: Court of Appeal of Florida (US)
• Writing for the Court: ROTHENBERG
• Citation: 107 So.3d 1142
• Parties: Maria Pia Dalmau VORBECK, et al., Appellants, v. Diego BETANCOURT, Appellee.
• Decision Date: 26 December 2012
• Docket Number: No. 3D12–1133.

107 So.3d 1142

Maria Pia Dalmau VORBECK, et al., Appellants,
v.
Diego BETANCOURT, Appellee.

No. 3D12–1133.

District Court of Appeal of Florida,
Third District.

Dec. 26, 2012.

[107 So.3d 1144]

Guillermo F. Mascaro, Coral Gables, for appellants.

Newman & Tempkins, P.A., and Harry Tempkins, Miami Beach, for appellee.

Before SHEPHERD, ROTHENBERG and LOGUE, JJ.

ROTHENBERG, J.

Maria Pia Dalmau Vorbeck and her siblings (collectively, “the Vorbecks”) appeal from the dismissal with prejudice of their bill of discovery complaint. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Upon the death of their father, the Vorbecks inherited fifty-percent interests in two companies: Dalbeta LLC and American Postal Business Services, Inc. (collectively, “the Companies”). Eventually, the Vorbecks began to suspect that the owner of the remaining fifty-percent interests in the Companies, Diego Betancourt (“Betancourt”), had misappropriated the Companies' funds. Thus, the Vorbecks filed a pure bill of discovery demanding production of the Companies' business records and naming Betancourt as the defendant.

In their complaint, the Vorbecks alleged that they had previously requested access to the Companies' records, but Betancourt had refused to make them available. The Vorbecks further explained that they ultimately intended to pursue a misappropriation action against Betancourt, but filed the bill of discovery first to substantiate their claims. As they stated in their complaint, “[the Vorbecks] verily believe they have a right to institute a legal action against the Defendant but cannot make such positive determination until they have possession and control of the records requested.”

Betancourt filed a motion to dismiss, arguing that the Vorbecks failed to satisfy the pleading requirements for a bill of discovery. At the hearing on the motion, Betancourt also argued that the case should be dismissed because the Vorbecks proceeded under the wrong cause of action and against the wrong defendant. Specifically, Betancourt argued that a claim under section 608.4101(2), Florida Statutes (2012), rather than a bill of discovery, was the proper cause of action, and that the Companies, rather than Betancourt, were the proper defendants.

At the conclusion of the hearing, the trial court orally granted the motion to dismiss with prejudice, stating, “I don't think the Bill of Discovery is the right vehicle to go about what you're talking about. I think that it's a statutory action.” The trial court subsequently entered a written order consistent with its oral ruling. The Vorbecks did not contemporaneously

[107 So.3d 1145]

object to the trial court's dismissal with prejudice, seek leave to amend their complaint, or file a motion for rehearing or reconsideration. This appeal followed.

ANALYSIS

On appeal, the Vorbecks contend they sufficiently pleaded a viable cause of action for a bill of discovery, and, even if they did not, they are nonetheless entitled to reversal because the trial court erred in dismissing the case with prejudice. We disagree. As we more fully explain below, it is evident from the face of the complaint that the Vorbecks sought to misuse the bill of discovery as part of a “fishing expedition” to search for a cause of action, or to confirm that their suspected causes of action were viable. Further, we hold that the filing of a bill of discovery in this case was inappropriate because the Vorbecks possessed an adequate remedy at law, and did not risk being denied access to the courts. Finally, while we agree with the Vorbecks that the trial court erred in dismissing the case with prejudice, the Vorbecks failed to preserve this issue for appellate review. For these reasons, we affirm.

I. The bill of discovery was improper because the Vorbecks (1) filed it merely to substantiate their suspected claims and (2) possessed an adequate remedy at law.

The pure bill of discovery originated in equity as a mechanism for obtaining “the disclosure of facts within the defendant's knowledge, or deeds or writings or other things in his custody, in aid of the prosecution or defense of an action pending or about to be commenced....” First Nat'l Bank of Miami v. Dade–Broward Co., 125 Fla. 594, 171 So. 510, 510–11 (1937). “[A]lthough a ‘pure bill of discovery remains part of our legal system, its use and usefulness diminished greatly when Florida relaxed its pleading requirements to authorize liberal discovery.’ ” Venezia Lakes Homeowners Ass'n v. Precious Homes at Twin Lakes Prop. Owners Ass'n, 34 So.3d 755, 758 (Fla. 3d DCA 2010) (quoting Kirlin v. Green, 955 So.2d 28, 29 (Fla. 3d DCA 2007)). Under the current state of the law, the filing of a bill of discovery is justified only in “narrow and limited circumstances.” Venezia Lakes, 34 So.3d at 756. Specifically, a bill of discovery may be used “[i]n the absence of an adequate legal remedy ... ‘to identify potential defendants and theories of liability and to obtain information necessary for meeting a condition precedent to filing suit.’ ” Id. at 758 (quoting Mendez v. Cochran, 700 So.2d 46, 47 (Fla. 4th DCA 1997)).

The facts in Adventist Health System/Sunbelt, Inc. v. Hegwood, 569 So.2d 1295 (Fla. 5th DCA 1990) (en banc), illustrate one of the rare situations in which the filing of a bill of discovery is justified. In Adventist, the plaintiff's child died while being treated in a hospital. Id. at 1296. The plaintiff filed a bill of discovery seeking deposition testimony from the healthcare providers who had knowledge of her child's death. Id. In a unanimous en banc decision, the Fifth District held that the bill of discovery was proper because the plaintiff needed the testimony to satisfy a condition precedent to filing a medical malpractice claim, but the statutory discovery procedures ¹ governing such claims did not enable the plaintiff to depose the providers. Id. at 1297. Ultimately, “[w]ithout additional discovery beyond that available under section 768.57, Florida Statutes (1987), [the Mother] could not file a malpractice case against the petitioner,” and

[107 So.3d 1146]

would thereby be denied access to the courts. Id. Thus, the mother lacked an adequate remedy at law, and the equitable bill of discovery was justified to preserve her cause of action. Id.

Absent a comparable set of circumstances, however, the issuance of a bill of discovery...