Third District Court of Appeal
State of Florida
Opinion filed June 14, 2023.
Not final until disposition of timely filed motion for rehearing.
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No. 3D22-2000
Lower Tribunal No. 20-5806
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Masoud Shojaee,
Petitioner,
vs.
Anibal J. Duarte-Viera, P.A., etc.,
Respondent.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, Carlos
Lopez, Judge.
White & Case, LLP, and Raoul G. Cantero and Torri D. Macarages;
Mark Migdal & Hayden, and Darci Cohen and Jose M. Ferrer, for petitioner.
Heise Suarez Melville, P.A., and Thomas S. Ward, Luis E. Suarez, and
Patricia Melville, for respondent.
Before EMAS, LOGUE, and HENDON, JJ.
LOGUE, J.
Masoud Shojaee, a defendant in the underlying lawsuit, petitions this
Court for a writ of certiorari to quash the trial court’s denial of his motion for
a protective order. In his motion for a protective order, Shojaee sought to
prohibit City National Bank of Florida from responding to plaintiff Anibal J.
Duarte-Viera, P.A.’s request for Shojaee’s personal financial information,
ranging from his net worth down to each credit card transaction he had made
for a ten-year period. Shojaee argues that production of these records would
cause irreparable harm, that the requested records are irrelevant to the
underlying lawsuit, and that the trial court departed from the essential
requirements of law in ordering their production. Because neither the
pleadings nor any evidentiary foundation in this record establishes the
relevancy of such a broad range of personal financial records, we grant the
petition and quash the order.
Factual and Procedural History
Shojaee is the trustee for a 25 percent owner of Santa Fe Haciendas,
LLC, and Duarte-Viera is the trustee for a 75 percent owner. Shojaee is the
manager of Santa Fe. Duarte-Viera sued Shojaee for allegedly improperly
withdrawing millions of dollars from Santa Fe’s accounts. In its complaint,
Duarte-Viera alleged the following causes of action: (1) Breach of Contract
against Shojaee as Manager; (2) Breach of Fiduciary Duty of Care against
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Shojaee as Manager; (3) Fraud against Shojaee Individually; (4) Breach of
Loan against Shojaee Individually; and (5) Breach of Implied Covenant of
Good Faith and Fair Dealing against Shojaee as Manager.
In litigating these claims, Duarte-Viera served Shojaee notice of its
intent to take a deposition duces tecum of the City National Bank of Florida
records custodian and requested the custodian provide the following
records:
1. All statements, deposits, checks (front and back),
withdrawals, and wire transfers from 2012 through 2022
for all accounts bearing the signatory authority of
Masoud Shojaee and/or in the name of Masoud
Shojaee.
2. All documents concerning or relating to any checking,
savings, brokerage, and/or other financial accounts,
including but not limited to account statements, canceled
checks, items deposited, signature cards, new account
forms, correspondence, and wire transfer documents,
from 2012 through 2022 for all accounts bearing the
signatory authority of Masoud Shojaee and/or in the
name of Masoud Shojaee.
3. All documents pertaining to open or closed bank credit
cards in the name of or under the signature authority of
Masoud Shojaee for the years 2012 through 2022,
including but not limited to:
a. Applications for credit;
b. Monthly statements;
c. Financial statements;
d. Documents reflecting payments on the account; and
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e. Correspondence files.
4. All financial statements and/or financial information
submitted by Masoud Shojaee concerning or reflecting
the financial condition, net worth, and/or assets and
liabilities of Masoud Shojaee for the years 2012 through
2022, including but not limited to personal financial
statements for any month or period falling within or on
any of the aforementioned years.
In response, Shojaee filed the motion for protective order at issue. After
a non-evidentiary hearing on the motion, the trial court denied the motion. 1
This petition for writ of certiorari timely followed.
Analysis
This Court grants a petition for certiorari relief where a non-final order
(1) causes irreparable harm; and (2) departs from the essential requirements
of law. Lewis v. Dollar Rent A Car, 220 So. 3d 1246, 1248 (Fla. 1st DCA
2017). We review each element in turn.
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The hearing was not noticed as an evidentiary hearing. Nevertheless,
Duarte-Viera read from Shojaee’s deposition transcript and presented copies
of Santa Fe checks made out to Shojaee at the hearing. However, the trial
court could not rely on these materials in its relevancy determination because
Duarte-Viera did not formally submit the materials as evidence. Sperdute v.
Household Realty Corp., 585 So. 2d 1168, 1169 (Fla. 4th DCA 1991)
(“Neither the submission of affidavits nor argument of counsel is sufficient to
constitute an evidentiary hearing.”); Eight Hundred, Inc. v. Fla. Dep’t of
Revenue, 837 So. 2d 574, 576 (Fla. 1st DCA 2003) (“Representations by an
attorney for one of the parties regarding the facts, and documents attached
as exhibits to a motion, do not constitute evidence.”). We thus disregard all
materials outside the complaint presented at the hearing.
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A. Irreparable Harm
Shojaee argues that the production of such a broad range of personal,
financial information, by its very nature, causes irreparable harm. We agree.
See Borck v. Borck, 906 So. 2d 1209, 1211 (Fla. 4th DCA 2005) (“Article I,
section 23, of the Florida Constitution protects the financial information of
persons if there is no relevant or compelling reason to compel disclosure.”).
See also Spry v. Prof’l Employer Plans, 985 So. 2d 1187, 1188 (Fla. 1st DCA
2008) (“disclosure of the requested information will cause irreparable harm,
simply because it is financial information”).
B. Essential Requirements of Law
Financial information may be produced, however, if it is relevant to the
lawsuit. See Borck, 906 So. 2d at 1211; Fla. R. Civ. P. 1.280. Relevancy is
established by the pleadings or evidence. Inglis v. Casselberry, 200 So. 3d
206, 210-11 (Fla. 2d DCA 2016); Elsner v. E-Commerce Coffee Club, 126
So. 3d 1261, 1263-64 (Fla. 4th DCA 2013); Spry, 985 So. 2d 1187. If the
pleadings form a sufficient relevancy basis, an evidentiary hearing need not
be had. Elsner, 126 So. 3d at 1264.
Duarte-Viera first argues that Shojaee’s personal financial records are
relevant to establish the amount of money Shojaee took from Santa Fe.
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Shojaee, however, correctly argues that that information is available from
Santa Fe’s own records. There is no allegation or evidence suggesting
otherwise.
Duarte-Viera next argues that Shojaee’s personal financial information
is relevant to its breach of fiduciary duty, good faith, and fair dealing claims.
In this regard, Duarte-Viera alleged that Shojaee took money from Santa Fe
to “defray, pay and support his lavish personal lifestyle and to cover
expenses completely unrelated to the business of Santa Fe.” At the heart of
the underlying lawsuit, however, is the disagreement between the parties
regarding whether the transfers at issue were distributions or loans. If
distributions, then Duarte-Viera’s trust should have received a similar
distribution proportionate to its share; if loans, then the appropriateness of
the loans should be ascertainable by their documented terms and
circumstances as reflected in the business records of Santa Fe (or lack
thereof).
In the record before us, therefore, no showing has been made how the
range of privileged records requested would shed light on the issue of the
appropriateness of the transfers. See, e.g., E. Colonial Refuse Serv., Inc. v.
Velocci, 416 So. 2d 1276, 1278 (Fla. 5th DCA 1982) (“general allegations do
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not support such broad discovery into any and all financial aspects of the
corporation”); Life Care Ctrs. of Am. v. Reese, 948 So. 2d 830, 832 (Fla. 5th
DCA 2007) (“Although certiorari is not available to remedy every erroneous
discovery order, it is an appropriate remedy for discovery orders that depart
from the essential requirements of the law by requiring patently overbroad
discovery so extensive that compliance with the order will cause material
injury to the affected party throughout the remainder of the proceeding,
effectively leaving no adequate remedy on appeal.”). We are not holding
such a foundation cannot be established, merely that it does not exist in this
record.
Lastly, Duarte-Viera seeks records necessary to establish Shojaee’s
net worth. Shojaee correctly argues, however, that his net worth is irrelevant
at this stage. Absent some relevancy to the underlying lawsuit, a plaintiff is
only allowed to obtain financial worth discovery when a trial court determines
that there is a “reasonable evidentiary basis for recovery of punitive
damages.” Globe Newspaper Co. v. King, 658 So. 2d 518, 519 (Fla. 1995);
see § 768.72(1), Fla. Stat. (“No discovery of financial worth shall proceed
until after the pleading concerning punitive damages is permitted.”). There is
no pending claim for punitive damages. Therefore, the requests related to
net worth are not relevant in the record before us.
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Accordingly, we grant the petition for writ of certiorari and quash the
trial court’s order.
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