# Third District Court of Appeal

State of Florida

Opinion filed October 01, 2014.

Not final until disposition of timely filed motion for rehearing.

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No. 3D14-1318

Lower Tribunal No. 14-5040

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### Moishe Mana

, Petitioner,

vs.



### Anthony Jimmy Cho a/k/a Tony Cho, Metro 1 Properties, Inc., a

Florida corporation, Scott Alan Silver, and Grouper Financial, Inc.,

a Florida corporation

, Respondents.

A Writ of Certiorari to the Circuit Court for Miami-Dade County, Lisa S.

Walsh

, Judge.

The Fischman Law Firm, P.A., and Bruce D. Fischman and Jenna L.

Fischman

, for petitioner.

Boies, Schiller & Flexner LLP, and Bruce Alan Weil and Steven W. Davis

, for respondents.

Before ROTHENBERG, LOGUE, and SCALES, JJ.ROTHENBERG, J.

Moishe Mana (“Mana”) petitions this Court for a writ of certiorari to quash

the trial court’s discovery order compelling him to produce his personal financial

information, such as tax returns and income statements, a copy of all documents

between Mana and three particular individuals, and a copy of all documents

between Mana and any agent and/or broker of defendant Metro I Properties, Inc.

(“Metro”). Because the portion of the discovery order requiring Mana to produce

his personal financial information departs from the essential requirements of law

and will cause material injury to Mana that cannot be adequately redressed on

appeal, we grant the petition in part and quash the portion of the discovery order

compelling Mana to produce his personal financial information. We, however,

deny the petition in all other respects.

In the underlying lawsuit, Mana filed an amended complaint against

Anthony Jimmy Cho (“Cho”), Metro, Scott Alan Silver (“Silver”), and Grouper

Financial, Inc. (“Grouper Financial”) (collectively, “the Respondents”), alleging

that Mana engaged Cho and Metro, both licensed real estate brokers, to assemble

more than twenty-five acres of land within the Wynwood area, which would allow

Mana to develop a project. Thereafter, Mana began to purchase properties within

the specified area based on Cho’s and Metro’s advice, and Cho and Metro agreed

that it would seek to acquire four specific parcels of vacant land that Mana needed

2to go forward with the project. However, instead of acquiring the four vacant

parcels for Mana’s benefit as agreed, Cho, Metro, and Silver, through Grouper

Financial, entered into a written agreement regarding the four vacant parcels to

their own benefit without including Mana.

Mana alleged that Metro, Cho, and Silver breached their statutory duties to

Mana under section 475.278(2)(a) of the Florida Statutes by failing to deal

honestly and fairly with Mana and by failing to exercise their skill, care and

diligence on Mana’s behalf. Mana also alleged that Grouper Financial and Silver

conspired with Cho and Metro to assist in the commission of the violations of

section 475.278(2)(a).

In the complaint, Mana sought “compensatory damages equal to the value of

lost business opportunity

. . . .” However, in his response to interrogatories, Mana

limited the damages he was seeking by stating: “[Mana’s] measure of damages is

the difference between the fair market value of the subject properties at the time of

the statutory breach and the fair market value of the properties at the time of trial.

The amount shall be provided following completion of appraisals.”

Thereafter, Metro and Cho filed a counterclaim against Mana alleging that

Mana tortiously interfered with contractual relationships (employment contracts)

between Metro and two of Metro’s agents by inducing these agents to acquire land

for Mana’s benefit in the Wynwood area through a straw buyer in violation of the

3agents’ employment contracts with Metro. Metro and Cho also asserted additional

counterclaims against Mana for defamation and abuse of process.

A party seeking certiorari relief must demonstrate that the trial court’s order

“depart[s] from the essential requirements of law, resulting in irreparable harm that

cannot be adequately remedied on final appeal.” Millennium Diagnostic Imaging

Ctr., Inc. v. State Farm Mut. Auto. Ins. Co.

, 129 So. 3d 1086, 1089 (Fla. 3d DCA

2013); see also Rousso v. Hannon

, 39 Fla. L. Weekly D1663, D1664 (Fla. 3d DCA

2014); Miccosukee Tribe of Indians v. Lehtinen

, 114 So. 3d 329, 331 (Fla. 3d

DCA 2013) (“A common law writ of certiorari is proper and will be granted when

a trial court’s determination constitutes a clear departure from the essential

requirements of the law resulting in material injury for the remainder of the case

that cannot be properly remedied on post-judgment appeal.”). “Material injury and

irreparable harm are ‘jurisdictional prerequisites to certiorari relief.’” Millennium

Diagnostic Imaging Ctr.

, 129 So. 3d at 1089 (quoting Nucci v. Nucci

, 987 So. 2d

135, 139 (Fla. 2d DCA 2008)); see also Poston v. Wiggins

, 112 So. 3d 783, 785

(Fla. 1st DCA 2013) (holding that the reviewing court “must first conduct a

jurisdictional analysis to determine whether the petitioner had made a prima facie

showing of irreparable harm” before ruling on a certiorari petition).

“Discovery is limited to those matters relevant to the litigation as framed by

the parties’ pleadings .” Rousso v. Hannon

, 39 Fla. L. Weekly at D1664.

4“Generally, private individual financial information is not discoverable when there

is no financial issue pending in the case to which the discovery applies.” Bd. of

Trs. of Internal Improvement Trust Fund v. Am. Educ. Enters., LLC

, 99 So. 3d

450 (Fla. 2012); see also Aspex Eyewear, Inc. v. Ross

, 778 So. 2d 481, 481-82

(Fla. 4th DCA 2001) (“Ordinarily the financial records of a party are not

discoverable unless the documents themselves or the status which they evidence is

somehow at issue in the case.”).

In the instant case, the Respondents argue that Mana’s personal financial

information is relevant because he has sought “compensatory damages equal to the

value of lost business opportunity,” and that Mana’s personal financial information

will shed light on the amount of damages, if any, Mana has incurred as a result of

his alleged “lost business opportunity.” The Respondents’ argument may have

been meritorious if Mana was seeking damages for the loss of the business income

for the proposed project that did not come to fruition due to the Respondents’

alleged actions; however, as set forth in Mana’s interrogatory response, by which

he is now bound, he is not. Rather, Mana is seeking damages for “the difference

between the fair market value of the subject properties at the time of the statutory

breach and the fair market value of the properties at the time of trial. The amount

shall be provided following completion of appraisals.” Mana’s personal financial

information has no bearing on the property value of the four vacant parcels, and is

5therefore irrelevant to the litigation. Allowing irrelevant discovery is a clear

departure from the essential requirements of law, and the discovery of confidential

financial information is the type of “cat out of the bag” discovery that can cause

material injury that cannot be adequately redressed on appeal. Allstate Ins. Co. v.

Langston

, 655 So. 2d 91, 94 (Fla. 1995). Thus, we grant the petition for writ of

certiorari in part and quash the portion of the discovery order pertaining to Mana’s

personal financial information.

Finally, without further discussion, we deny the remaining portions of the

petition for writ of certiorari because we conclude that the trial court’s discovery

order requiring Mana to produce a copy of all documents between himself and

three particular individuals and also between himself and any of Metro’s agents

and/or brokers does not depart from the essential requirements of law. These

documents, unlike Mana’s financial information, are relevant to the litigation as

framed by the counterclaim. See Rousso

, 39 Fla. L. Weekly at D1664.

(“Discovery is limited to those matters relevant to the litigation as framed by the

parties’ pleadings .”).

Petition granted in part; discovery order quashed in part.

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