Rose Printing Co., Inc. v. D'Amato

Full title: ROSE PRINTING COMPANY, INC., APPELLANT, v. VINCENT D'AMATO, APPELLEE

Court: District Court of Appeal of Florida, Third District

Date published: Oct 6, 1976

338 So. 2d 212 (Fla. Dist. Ct. App. 1976)

Opinion

No. 75-2017.

May 25, 1976. Rehearing Denied October 6, 1976.

Appeal from the Dade County Circuit Court, William Herin, J.

David Block, Coral Gables, and Thomas F. Pepe, Miami, for appellant.

Joseph Ferrara, Coral Gables, for appellee.

Before BARKDULL, C.J., and HAVERFIELD and NATHAN, JJ.

PER CURIAM.

Plaintiff, Rose Printing Company, Inc., appeals an order denying its motion to compel production of defendant, Vincent D'Amato's, complete Federal income tax returns which would reveal sources of income.

In order to execute final judgment against defendant for $44,030.18, plaintiff engaged in discovery and on August 12, 1975 filed a request for production of defendant's income tax returns. Defendant furnished copies of his 1973 and 1974 returns (filed jointly with his wife, Dolores). Whereupon plaintiff filed a motion to compel defendant to produce his returns for the years 1965-1974 and on November 25 the trial judge denied the motion. On December 22 defendant moved to correct the November 25 order as it was the court's ruling therein that since Mrs. D'Amato was not a party to the litigation, her deposition could be taken or interrogatories could be sent to her and then if it appeared as though the production of the tax returns was necessary, plaintiff could file its motion. On January 14, 1976 the judge entered the following corrected order:

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"ORDERED AND ADJUDGED that the order entered by this Court on November 25, 1975, shall be corrected as follows:

"1. That Dolores D'Amato the wife of the defendant, VINCENT D'AMATO, is not a party to this litigation.

"2. That the Motion to Compel Production of the Plaintiff is hereby denied as to those portions of the Federal Income Tax Returns that would reveal sources of income of the wife of defendant, VINCENT D'AMATO."

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As plaintiff failed to lay a proper predicate for discovery, i.e. deposition of Mrs. D'Amato under RCP 1.280 and subpoena duces tecum under RCP 1.410, the trial judge did not abuse his discretion in denying the motion to compel production.

Affirmed.