Vorbeck v. Betancourt
107 So. 3d 1142
Fla. Dist. Ct. App.2012Background
- Vorbecks inherited 50% interests in Dalbeta LLC and American Postal Business Services, Inc. (the Companies).
- Vorbecks suspected Betancourt misappropriated the Companies’ funds and filed a pure bill of discovery seeking production of business records, naming Betancourt as defendant.
- Vorbecks previously requested access to records and alleged Betancourt refused; they planned to pursue a misappropriation action after obtaining records.
- Betancourt moved to dismiss, arguing pleading deficiencies, wrong statutory action (608.4101(2) vs bill of discovery), and wrong defendant (the Companies).
- Trial court orally granted dismissal with prejudice, then issued a written order; Vorbecks did not object, seek leave to amend, or move for rehearing.
- On appeal, the Vorbecks argue the bill of discovery was proper or, failing that, dismissal with prejudice was improper; the court affirms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the bill of discovery proper here? | Vorbecks claim the bill was needed to identify potential claims and secure records. | Betancourt contends the bill is improper as a fishing expedition and the wrong vehicle. | No; the bill was improper as a fishing expedition and because an adequate legal remedy existed. |
| Was dismissal with prejudice appropriate or should it have been without prejudice? | Vorbecks argue they could amend to state a valid claim. | Betancourt argues dismissal with prejudice was proper. | Dismissal with prejudice was improper; the issue was not preserved for appellate review. |
Key Cases Cited
- Kirlin v. Green, 955 So.2d 28 (Fla. 3d DCA 2007) (pure bill of discovery improper to substantiate prospective claims)
- Venezia Lakes Homeowners Ass’n v. Precious Homes at Twin Lakes Prop. Owners Ass’n, 34 So.3d 755 (Fla. 3d DCA 2010) (bill of discovery not to be used as fishing expedition or preview of discovery)
- Adventist Health System/Sunbelt, Inc. v. Hegwood, 569 So.2d 1295 (Fla. 5th DCA 1990) (bill justified to satisfy condition precedent to filing medical malpractice action)
- Mendez v. Cochran, 700 So.2d 46 (Fla. 4th DCA 1997) (identifies permissible use of discovery to identify defendants/theories)
- Keech v. Yousef, 815 So.2d 718 (Fla. 5th DCA 2002) (preservation requirement for appellate review)
- Stander v. Dispoz-O-Products, Inc., 973 So.2d 603 (Fla. 4th DCA 2008) (preservation rule for improper dismissal with prejudice)
- Sunset Harbour Condo. Ass’n v. Robbins, 914 So.2d 925 (Fla.2005) (preservation requirement; issues must be raised below)
- Jelenc v. Draper, 678 So.2d 917 (Fla. 5th DCA 1996) (preservation/amendment context on appeal)
- Century 21 Admiral’s Port, Inc. v. Walker, 471 So.2d 544 (Fla. 3d DCA 1985) (failure to seek leave to amend precludes appeal on amendment)
- Thomas v. Hosp. Bd. of Dirs. of Lee Cnty., 41 So.3d 246 (Fla. 2d DCA 2010) (preservation requirement reiterated)