Prime Group, LLC, etc., Sheridan 46 Investment Group, LLC v. Jeannette Abbo , 171 So. 3d 234 ( 2015 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
PRIME GROUP, LLC, and its wholly owned affiliates and subsidiaries,
SHERIDAN 46 INVESTMENT GROUP, LLC, PRIME GROUP
INTERNATIONAL, LLC, PRIME DESIGN ASSOCIATES, LLC, PRIME
AUTO GROUP, LLC, PRIME GENCORE, LLC, PRIME INVESTORS &
DEVELOPERS, LLC, d/b/a PRIME HOMEBUILDERS and its wholly
owned affiliates and subsidiaries, PORTOFINO BUILDERS SOUTH,
INC., PORTOFINO VISTA BUILDERS, LLC, PRIME ENTERPRISES,
LLC, PRIME COMMERCIAL DEVELOPERS, LLC, PRIME HOLDINGS
GROUP, LLC, PRIME HOLDINGS GROUP II, LLC, PRIME HOLDINGS
GROUP III, LLC, PRIME HOLDINGS GROUP V, LLC, PRIME HOMES
AT PORTOFINO MEADOWS, LLC, PRIME HOMES AT SHERIDAN
PLAZA, LLC, PRIME MARKETINGS AND SALES, LLC, PRIME
GENERAL, LLC, PRIME HOMES OF FLORIDA, LLC, PRIME
HOMEBUILDERS, INC., PRIME HOMES AT PORTOFINO
PROFESSIONAL CENTER, LLC, VILLA PORTOFINO EAST BUILDERS,
INC., THE FALLS OF PORTOFINO BUILDERS, LLC, VILLA
PORTOFINO EAST COMMERCIAL BUILDERS, INC., VILLA
PORTOFINO WEST COMMERCIAL BUILDERS, INC., PORTOFINO
VILLAGE BUILDERS, LLC, PORTOFINO VILLAGE COMMERCIAL
BUILDERS, INC., PORTOFINO COVE BUILDERS, INC., PORTOFINO
LANDINGS BUILDERS, INC., PORTOFINO LANDINGS COMMERCIAL
BUILDERS, LLC, PORTOFINO SPRINGS BUILDERS, LLC, PORTOFINO
PRESERVE BUILDERS, LLC, PORTOFINO VINEYARDS BUILDERS,
LLC, PRIME HOMES AT PORTOFINO PLAZA, LLC, PRIME HOMES AT
PORTOFINO PLAZA RETAIL, LLC, UNIVERSAL CAPITAL FUND, LLC,
PRIME HOMES, INC.,
Petitioners,
v.
JEANNETTE ABBO,
Respondent.
No. 4D15-1688
[August 12, 2015]
Petition for writ of certiorari to the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Dale C. Cohen, Judge; L.T. Case No.
FMCE 07-8949 37/93.
Richard J. Sarafan and Michael L. Schuster of Genovese Joblove &
Battista, P.A., Miami, for petitioners.
Terrence P. O’Connor of Morgan, Carratt and O’Connor, P.A., Fort
Lauderdale, for respondent.
PER CURIAM.
We grant the petition for writ of certiorari, quash the April 29, 2015
order of the trial court, and remand for further proceedings. The
challenged order found that petitioners had waived accountant-client
privilege1 at an earlier, September 16, 2014 hearing. Such finding is
facially erroneous because, at the time of the September 16, 2014 hearing,
the accounting firm had not yet provided the list of documents to which
petitioners could direct an assertion of privilege. The result of the April
29, 2015 order was that the trial court found a waiver of the accountant-
client privilege without first affording petitioners notice or an opportunity
to object.
There are no transcripts of either hearing as each hearing was held on
a “uniform motion calendar” where the introduction of evidence is not
permitted. D’Amato v. D’Amato, 848 So. 2d 462, 463–64 (Fla. 4th DCA
2003). Nonetheless, we may consider the propriety of the April 29, 2015
order because the error in finding a waiver of an assertion of privilege
without notice or evidentiary basis is apparent on the face of the order.
Young v. Levy, 140 So. 3d 1109, 1111–12 (Fla. 4th DCA 2014); Celebrity
Cruises, Inc. v. Fernandes, 149 So. 3d 744, 749 n.3 (Fla. 3d DCA 2014).
The trial court’s April 29, 2015 order was erroneous on its face because
the court determined that petitioners waived the accountant-client
privilege without conducting an evidentiary hearing either on that date or
at the September 16, 2014 hearing. Eight Hundred, Inc. v. Fla. Dep’t of
Revenue, 837 So. 2d 574, 576 (Fla. 1st DCA 2003).
1 Section 90.5055, Florida Statutes, entitled “Accountant-client privilege,” states
in relevant part that
(2) A client has a privilege to refuse to disclose, and to prevent any
other person from disclosing, the contents of confidential
communications with an accountant when such other person
learned of the communications because they were made in the
rendition of accounting services to the client. This privilege
includes other confidential information obtained by the accountant
from the client for the purpose of rendering accounting advice.
§ 90.5055(2), Fla. Stat. (2015).
2
Petition granted; order quashed; and case remanded for further
proceedings consistent with this opinion.
WARNER, STEVENSON and GERBER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
3