| [1] |
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF
FLORIDA FIFTH DISTRICT JANUARY TERM 2003 |
| [2] |
CASE No. 5D02-2943 |
| [3] |
2003.FL.0000606 |
| [4] |
January 31, 2003 |
| [5] |
LYNN BERGER, ET AL, AND MICHAEL SIUDA, ET AL,
PETITIONERS,
v.
RIVERWIND PARKING, LLP, ETC., ET AL, RESPONDENTS. |
| [6] |
Petition for Certiorari Review of Order from the
Circuit Court for Seminole Debra S. Nelson, Judge. |
| [7] |
Berry J. Walker, Jr., and Wallace W. Tudhope, of
Walker & Tudhope, P.A., Maitland, for Petitioners. |
| [8] |
Scott J. Johnson, of Holland & Knight Llp,
Orlando, for Respondents. |
| [9] |
The opinion of the court was delivered by: Griffin,
J. |
| [10] |
The petitioners seek certiorari review of a
discovery order of the trial court entered after the entry of a final
judgment and during the pendency of appeal. |
| [11] |
The petitioners are homeowners in Seminole Terrace,
a residential subdivision. The Riverwind Apartments abut the
subdivision. The respondent, Riverwind Parking, LLP, ["Riverwind"],
owns a number of lots in the subdivision. The developer of Riverwind
Apartments, through Riverwind Parking, LLP, purchased the lots and was
granted rezoning by the county to construct a parking lot on the lots to
serve the apartment complex. |
| [12] |
Seventy-six homeowners ["the homeowners"]
in the Seminole Terrace subdivision, including petitioners, filed suit
seeking a declaratory judgment and seeking to enjoin Riverwind from
constructing the parking lot based on certain deed restrictions
purportedly prohibiting commercial use. Riverwind in its answer asserted
"unclean hands" as an affirmative defense based on alleged
commercial uses of property in the subdivision by many homeowners. |
| [13] |
Riverwind served interrogatories, requests to
produce and requests for admissions directed to the homeowners on
November 2, 2001. The homeowners moved for a protective order; Riverwind
moved to compel discovery. On December 13, 2001, the trial court entered
an order denying the motion for protective order and granting the motion
to compel discovery. The order specified December 31, 2001, as the date
for the homeowners to comply with the discovery requests. On December
31, 2001, the homeowners moved for reconsideration of the discovery
order and certain homeowners moved for extensions of time to comply with
the discovery order. |
| [14] |
Riverwind's discovery requests were addressed to
Riverwind's "unclean hands" defense that some or all of the
petitioners were using their property for commercial purposes. Riverwind
sought entry upon the homeowners' property to inspect and photograph
potential evidence of commercial uses. In the December 13, 2001, order
of the trial court (which the homeowners have appealed separately), the
trial court allowed the homeowners until December 31, 2001, to respond
to the discovery, and also ordered that homeowners "shall make
their premises available for inspection immediately thereafter." |
| [15] |
On December 31, 2001, the homeowners filed a motion
for reconsideration/ clarification of the December 2001 discovery order,
requesting that the court deny the inspection of the homeowners' homes,
or alternatively, to provide clarification regarding the scope of such
inspection. This motion filed by the homeowners was never set for
hearing, and no ruling was ever entered by the trial court upon the
motion. Many homeowners failed to timely comply with responses to the
discovery by December 31, 2001. Riverwind, however, did not proceed with
inspection of any of the homes nor take other action to compel responses
to discovery, apparently electing instead to pursue a ruling on its
amended motion for summary judgment based on unenforceability of the
restriction. The trial court granted its motion for summary judgment on
January 21, 2002, and subsequently entered final judgment in Riverwind's
favor. This decision is also on appeal here. |
| [16] |
Notwithstanding the pending appeal of the final
judgment, Riverwind requested permission of the trial court to proceed
with inspection of the homeowners' homes, and also to compel homeowners
to respond to the prior unanswered discovery. Riverwind's reason for
pursuing discovery was that, while it believed that the final judgment
would be affirmed on appeal, there was always the chance that there
could be a reversal of the summary judgment and a remand of the case to
the trial court for the purpose of taking testimony regarding
enforcement of the restrictions. In that event, the affirmative defense
of "unclean hands" would again become relevant, and Riverwind
wanted to be ready, with its evidence gathered, on this defense by
having completed inspections of the homeowners' homes and by having
received discovery responses regarding the homeowners' use of their
homes for commercial purposes. |
| [17] |
The trial court granted Riverwind's motion and
entered the discovery order we review in this proceeding. This order
compelled those petitioners who had failed to do so previously to
respond to the interrogatories and requests for production that were due
in December 2001. The discovery order also deemed admitted the requests
for admission that had not been answered by December 31, 2001. Finally,
the trial court reaffirmed Riverwind's right to inspect the petitioners'
homes but stayed the inspection on the basis that the discovery would be
"moot" if the court's judgment that the restriction was void
and unenforceable as to Riverwind's lots were upheld on appeal. |
| [18] |
We grant the writ because this discovery is being
conducted after entry of final judgment. The problem with the trial
court's discovery order is that, at the trial level, the judicial labor
has ended. Unless and until overturned on appeal, there was nothing in
this case for which discovery could be had. Aside from Rule 1.290(b),
which is designed to preserve testimony, and Rule 1.560 governing
depositions in aid of execution, discovery under the Florida Rules of
Civil Procedure is limited to "pending actions." See Fla. R.
Civ. P. 1.280(b). This action is no longer pending in the trial court
and there is no auxiliary issue pending that might justify discovery. If
a proper post-judgment motion were filed that required discovery, or if
enforcement of the judgment were at issue, then post-judgment discovery
would be proper on those issues but, once the final judgment is entered,
the need for discovery is over. We can see no reason to permit a
litigant who obtains a judgment or suffers a judgment to continue
discovery pending appeal "just in case" the judgment is
vacated by the appellate court. Nor does it matter that the discovery at
issue is discovery that had already been ordered. |
| [19] |
Petition for Certiorari GRANTED, order VACATED and
REMANDED. |
| [20] |
SHARP,
W., J., and COBB, W., Senior Judge, concur.
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SEE
AS WELL: Marketable Record Titles to Real Property Act
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