Lazarus Homes Corp. v. Gustman

340 So. 2d 513 | Fla. Dist. Ct. App. | 1976

PER CURIAM.

Defendant, Lazarus Homes Corporation, by way of this interlocutory appeal seeks review of an order granting plaintiffs’ motion to compel it to answer an interrogatory.

At the onset, we note that this appeal was improperly brought as being interlocutory in nature. However,'we will treat it as a petition for common law certiorari. Cf. Sanders v. Impellitier, 291 So.2d 68 (Fla. 4th DCA 1974).

Plaintiffs, Paul and Marilyn Gustman, filed a breach of contract action against Lazarus and essentially alleged in their complaint that Lazarus had sold them a home with a swimming pool which was defective in that it was lacking in depth, i. e. 4V2 feet deep instead of six feet, and the depth of 4V2 feet was not in accordance with the terms of the contract or the standards in the community. Lazarus answered that the pool was built in accordance with acceptable standards, i. e. as to price, location (particularly in Saga Bay) and the water table. During pretrial discovery the Gustmans propounded interrogatory number 11 to Lazarus:

“List the address of each swimming pool constructed by you in Saga Bay other than plaintiffs’ pool and the model pool.” Lazarus objected to this interrogatory on the grounds of relevancy. The trial judge overruled the objection and entered the herein appealed order compelling Lazarus to answer. Lazarus contends that the status of other pools is in no way relevant to this lawsuit and the effect of this interrogatory will be to stir up litigation.

The right of discovery by use of interrogatories is to be liberally construed to the end that any matter not privileged and which is relevant to the subject matter involved in the pending action must be disclosed. Marine Investment Company v. Van Voorhis, 162 So.2d 909 (Fla. 1st DCA 1964); Jones v. Seaboard Coast Line Railroad Company, 297 So.2d 861 (Fla. 2d DCA 1974).

Contrary to Lazarus’ contention, we find this interrogatory is relevant because it is designed to reveal other pools built by Lazarus in the same area. Lazarus admits some of these pools are six feet deep and, therefore, proof of the location and depth of these pools is relevant to defeat Lazarus’ defense.

Certiorari denied.