Vorbeck v. Betancourt

• Decision Date: 26 December 2012
• Docket Number: No. 3D12–1133.,3D12–1133.
• Citation: 107 So.3d 1142
• Parties: Maria Pia Dalmau VORBECK, et al., Appellants, v. Diego BETANCOURT, Appellee.
• Court: Florida District Court of Appeals

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.

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 contemporaneouslyobject 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 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 places an “undue burden” on the Florida court system. See Kirlin, 955 So.2d at 30. Accordingly, it is now well settled that a bill of discovery may not be used “as a fishing expedition to see if causes of action exist,” Venezia Lakes, 34 So.3d at 758 (quoting Publix Supermarkets, Inc. v. Frazier, 696 So.2d 1369, 1371 (Fla. 4th DCA 1997)); to substantiate one's suspected causes of action, Kirlin, 955 So.2d at 30; or to acquire “a preview of discovery” for a prospective lawsuit. Venezia Lakes, 34 So.3d at 758.

In Kirlin, for example, a former employee of the Archdiocese of Miami, Inc. (“the Archdiocese”) filed a bill of discovery seeking production of the Archdiocese's business records. Kirlin, 955 So.2d at 29. In the bill, the plaintiff alleged she had been wrongfully terminated when she discovered that two parishioners had misappropriated funds from the parish's coffers. Id. She indicated that she intended to file a “prospective lawsuit” against the Archdiocese and the parishioners for the misappropriation of funds and for wrongful termination, but filed the bill of discovery first to substantiate her claims. Id. As stated in her complaint:

[W]ithout the requested discovery, [the Plaintiff would] be limited to filing a lawsuit based only on the defendants' statements and upon information and belief. If this Court grants the pure bill of discovery in this case and the discovery produced indicates that a lawsuit would be groundless or frivolous, this would serve the courts' as well as the parties' best interests....

Id.

On certiorari review, this Court held that the bill of discovery was improper because it was being used merely to substantiate the plaintiff's prospective causes of action, i.e., to determine whether sufficient evidence existed to support her allegations, or to render her suspected causes of action viable or non-frivolous:

[I]t is evident from [the plaintiff's] own complaint that she improperly s [ought] to utilize the pure bill of discovery in order to determine whether sufficient evidence exists to render her causes of action viable and/or nonfrivolous. A pure bill of discovery, however, is not to be used to determine whether evidence exists to support an allegation

....

[H]er complaint supports the conclusion that her ‘only reason for seeking discovery by means of the pure bill, rather than filing a civil action against Petitioners and then proceeding with discovery in that context, is [her] reluctance to become exposed to claims for [Petitioners'] attorneys fees in filing a frivolous lawsuit without first determining what, if any, evidence supports her grounds for recovery. This is not the purpose of a pure bill of discovery.

Id. at 30 (emphasis added). This Court also noted that the plaintiff did not lack an adequate remedy at law, stating, “[i]f [the plaintiff] believes her allegations to be valid, she may file suit. However, she may not utilize the trial court's resources to go on a pre-suit ‘fishing expedition’ to substantiate her claims.” Id.

In this case, the record reflects the Vorbecks filed their bill of discovery to embark on the same sort of impermissible “fishing expedition” described in Kirlin. As in Kirlin, the Vorbecks suspected that Betancourt had misappropriated the Companies' funds, and explained in their complaint that they ultimately intended to file a misappropriation action, but filed the bill of discovery first to substantiate their suspected claims, or, as they phrased it, to make “a positive determination” that their suspected claims have merit. Thus, as in Kirlin, it is evident from the face of the complaint that the Vorbecks sought to misuse the bill...