Summary
In West Stuart Acreage, Inc. v. Hannett, 427 So.2d 323 (Fla. 4th DCA 1983), the writer for the majority in the present case concurred in an opinion that contained an explanation of why the order sought to be appealed from was wrong; an explanation of why the attempted appeal had to be treated as a petition for writ of certiorari, and, finally, a denial of the petition together with the reason therefor.
Summary of this case from Nat. Beverage Supp. v. Esquire ProdOpinion
No. 82-2232.
February 23, 1983.
Appeal from the Circuit Court, Martin County, Rupert Jasen Smith, J.
Russell J. Ferraro of McManus, Stewart Ferraro, P.A., Stuart, for appellant.
Wesley R. Harvin of Law Offices of Wesley R. Harvin, P.A., Palm City, for appellees.
In this foreclosure action against appellant corporation and against its president in his individual capacity, process was served on the corporation but not on the individual defendant.
Appealed is an order requiring the individual defendant to present himself for the taking of his deposition within fifteen days. The consequences of failure to appear are that the pleadings filed by the corporate defendant will be stricken and a default judgment entered against it.
The order is plainly wrong. Neither the officers, directors, shareholders or employees of a corporation are parties to an action against the corporation. It is the corporation, not the court or the opposing party, who decides what agents shall appear and speak for the corporation in litigation. To be sure discovery may be had of a particular officer, director, shareholder or employee of a corporation by service of process upon the individual like any other witness. Ohio Realty Investment Co. v. Lawyers Title Insurance Corp., 244 So.2d 176 (Fla. 4th DCA 1971). Here the individual has never been served with process, either as a separate party or as a witness.
The difficulty is that the order appealed is not one of those non-final orders from which appeal is permitted under the Florida Rules of Appellate Procedure. We therefore treat the matter as a petition for writ of certiorari. Because any harm in the form of default may be adequately redressed on plenary appeal, we deny the petition.
PETITION DENIED; APPEAL DISMISSED.
DELL and WALDEN, JJ., concur.