5D10-3336 Bogert v. Walther

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D10-3336

Case Date: 02/14/2011

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2011

ROBERT BOGERT, as attorney in fact for DOROTHY WALTHER, Petitioner, v. PATRICK WALTHER, as Trustee, ETC., ET AL., Respondents. ________________________________/ Opinion filed February 18, 2011. Petition for Certiorari Review of Order from the Circuit Court for Seminole County, John D. Galluzo, Judge. Robert C. Wilkins, Jr., of Robert C. Wilkins, Jr., P.L., Maitland, for Petitioner. Richard S. Geller of Fishback Dominick, LLP, Winter Park, and Steven H. Kane, of Kane and Koltan, Attorneys at Law, Maitland, for Respondents. Case No. 5D10-3336

JACOBUS, J. Robert Bogert, as attorney-in-fact for Dorothy B. Walther, seeks certiorari review of a discovery order in which the trial court compelled his sister, Dorothy B. Walther, to produce documents relating to her personal finances and medical records. We find that the challenged order constitutes a departure from the essential requirements of the law that will cause irreparable harm to Dorothy B. Walther. We therefore grant the writ.

Mrs. Walther is 89 years old and is the beneficiary of a trust created by her husband in 1953. Her son, Patrick B. Walther, has been the trustee for the past 16 years. Robert Bogert is an attorney-in-fact for Mrs. Walther. He is also her 90-year-old brother with whom she currently lives. There has been a great deal of litigation between Mrs. Walther's siblings and the trustee, and there are currently four cases pending in the Eighteenth Circuit regarding these parties and this trust. This particular suit was

brought by two of Mrs. Walther's other children, Katherine Walther Bain and Howard Walther, as Mrs. Walther's attorneys-in-fact. The suit was against Mrs. Walther's sons, Robert Walther, as contingent beneficiary of the trust, and Patrick Walther, as trustee and contingent beneficiary. The gravamen of the suit was to remove Patrick as the trustee and to surcharge both Patrick and Robert Walther for funneling funds from the trust to themselves. The order that is the subject of the petition for certiorari arose out of a motion filed by Patrick Walther, as trustee, for payment of attorney's fees from the trust. Mrs. Walther objected to the request, and the matter was set for hearing. Patrick filed a motion to compel discovery and a motion in limine to prohibit the introduction of "non-disclosed" evidence at the hearing on attorney's fees. The discovery at that point had consisted only of interrogatories directed to Mrs. Walther and a notice of deposition directed to Mrs. Walther's account manager at Morgan Stanley, which was accompanied by a subpoena duces tecum seeking Mrs. Walther's account statements for a three-year period beginning in 2006. Obtaining this discovery over Mrs. Walther's objection was the purpose of Patrick's motion to compel. However, the motion to compel far exceeded the scope of

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