3rd DCA Finds Abuse of Discretion where Trial Court Allowed Release of Bank Records Prior to Right to Review Established Under § 607.1602, Fla. Stat.

Posted on April 8, 2016

In Schlesinger v. Schlesinger, 2016 Fla. App. LEXIS 3075 (Fla. 3d DCA, 2016), Kathie Schlesinger (“Petitioner”), former-wife of James Schlesinger (“Decedent”), petitioned the Third DCA to quash an order by the trial court which denied her motion for protective order to disallow discovery of her banks’ records by Pamula Schlesinger. Pamula was married to Decedent at the time of his death and had brought an action against Decedent’s estate, alleging that he violated the terms of their post-nuptial agreement by making gifts to Petitioner, decreasing the value of the portion of Decedent’s estate which by agreement was supposed to go to Pamula.

On appeal, the Third DCA granted the former-wife’s petition, disagreeing with Pamula. In its reasoning, the Court noted that Pamula as co-personal representative had full access to all of Decedent’s bank accounts as well as to all of his personal, business, and corporate records. Such access would have allowed her to see if any payments were made to Petitioner and whether those payments violated the terms of the post-nuptial agreement. The Court also granted the petition which challenged the trial court’s denial of her motion for protective order because no determination had been made either that Pamula was entitled to an accounting from Decedent’s estate or that Pamula could have recovered from Petitioner any payments made by Decedent to her. Absent the finding of such determinations, the Court noted that it would be premature discovery to allow Pamula to pursue Petitioner’s personal financial records. See Spry v. Prof’l Employer Plans, 985 So. 2d 1187, 1188 (Fla. 1st DCA 2008); see also Universal Eng’g Testing Co. v. Israel, 707 So. 2d 900, 901 (Fla. 5th DCA 1998); see also Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla. 1987).

Therefore, the Court found that the trial court abused its discretion by requiring disclosure of confidential and proprietary documents before ruling on the issue of Pamula’s stockholder status and her right to review and inspect those documents under Section 607.1602, Fla. Stat. On this point, the Court cited Arthur Finnieston, Inc. v. Pratt, 673 So. 2d 560, 562 (Fla. 3d DCA 1996) (confirming that it “is well established that discovery as to an accounting must be deferred until the preliminary issue of the right to an accounting is settled” (quoting Drs. Weiland, Keiser, Jones, Shufflebarger, Cooper, P.A. v. Tindall, 372 So. 2d 505, 506 (Fla. 3d DCA 1979)). Thus, the Court granted the Petitioner’s writ and quashed the order denying her motion for protective order which sought to bar discovery of her bank records.

If you or anyone you know is in need of representation in actions involving Guardianship, Probate and/or Trust Disputes, or questions pertaining to such proceedings, please contact The Law Offices of Glenn M. Mednick, P.L., at (954) 315-1154 or gmednick@mednicklawgroup.com.

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