IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT OB-M29 DISTRICT COURT CASE NO.: 3D 08~. FILED PURSUANT TO RULE 9.100(c) ORIGINAL TT REMOVE FROM ALE CAPCO PROPERTIES, LLC, TODD CAPLIN, JAY CAPLIN and LEONAPD CAPLIN, Petitioners v. MONTEREY GARDENS OF PINECREST CONDOMINZOM aAssocIATEORE: Respondent PETITION FOR WRIT OF CERTIORARI Pursuant to Rule 9.100(c) of the Florida Rules of Appellate Procedure, CAPCO PROPERTIES, LLC, TODD CAPLIN, JAY CAPLIN and LEONARD CAPLIN petition this court for writ of certiorari to veview nonfinal orders of the trial court that (a) denied the Petitioners’ Motion for Protective Order, (b) overruled the Petitioner’s objections to discovery requests, (c) denied Petitioners’ Motion for Reconsideration, (d) granted the Respondent's Motion to Compel and (e) denied Petitioner's Motion to Stay. Law Orrices HyMAN Spector & Mars, LLP MUSEUM TOWER, TWENTY-SEVENTH FLOOR, 150 WEST FLAGLER STREET, MIAMI, FL 33130 * DADE 371-4244 * BROWARD 763-8908CAPCO PRU.SRTIES, LEC, ot al. v. MONTEREY GARDENS OF PINECREST CONDOMINIUM ASSOCIATION, INC. BASIS FOR INVOKING JURISDICTION Article V, section 4(b), of the Florida Constitution provides that the district courts of appeal have jurisdiction to issue writs of certiorari. See also Fla.R.App.P. 9.030(b) (2) (A). The orders to be reviewed in the present case were rendered April 8, 2008 and May 7, 2008. ‘This petition is timely under Rule 9.100(c) (1). II, STATEMENT OF THE FACTS An action styled Monterey Gardens of Pinecrest Condominium Association, Inc. v. Capco Properties, LLC and D.J.S. Architecture, P.A., £/k/a Donald J. Seidler, P.A., Case Number 06-5685 CA 27, is now pending in the Circuit Court of the i1'* Judicial Circuit in and for Miami-Dade County, Florida. The Petitioners are defendants in the action, and the Respondent is the plaintiff. 3. Respondent had originally brought this action against two defendants, to wit: Capco Properties, LLC (hereinafter referred to as “Capco"), and D.J.S. Architecture, P.A f/k/a Donald J., Seidler, P.A. 4. On January 10, 2008, the trial court granted Respondent’s Amended Motion for Leave to Amend the Amended Complaint, thereby adding three new defendants in a Second Amended 2 Law Orrices Hyman Spector & Mars, LLP MUSEUM TOWER, TWENTY.SEVENTH FLOOR, 150 WEST FLAGLER STREBT, MIAMI, FL 33130 * DADE 371-4246 + BROWARD 763-8908CAPCO PRO. sRTIES, LLC, et al. v. MONTEREY GARDENS OF PINECREST CONDOMINIUM ASSOCIATION, INC. Complaint, to wit: Todd Caplin, Jay Caplin and Leonard Caplin (hereinafter referred to collectively as “the individual defendants") A copy of the Second Amended Complaint is attached hereto as Exhibit “A*. The Second Amended Complaint is an eight-count action, which includes four new counts against the Petitioners, to wit: (4) Negligent Nondisclosure; (5) Fraudulent Concealment; (6) Fraudulent Transfer; and (8) Negligent Hiring/Supervision. 6. On February 15, 2008, response to the Second Amended Complaint, the Petitioners filed a substantive motion to Dismiss. A copy of the Motion to Dismiss is attached hereto as Exhibit “B’. 7. Said motion is set to be heard by the trial court on May 19, 2008. A copy of the Notice of Hearing is attached hereto as Exhibit “c’. 8. On February 22, 2008, one week after the Petitioners served their Motion to Dismiss, the Respondent served the Petitioners with a Notice of Taking Deposition Duces Tecum of each of the individual defendants, for April 7, 2008. ‘The Notice included a request for production of five (5) items. A copy of the Notice of Taking Deposition Duces Tecum is attached hereto as Exhibit "D”. 9. Also on February 22, 2008, the Respondent served a 3 Law Orrices HYMAN SprcToR & Mars, LLP MUSEUM TOWER, TWENTY.SEVENTH FLOOR, 150 WEST FLAGLER STREET, MIAMI, FL 33130 ® DADE 371-4244 BROWARD 763.8908CAPCO PROLARTIES, LUC, et al. v. MONTEREY GARDENS OF PINECREST CONDOMINIUM ASSOCIATION, INC. Request for Production upon the Petitioners, therein requesting the production of the identical five (5) items requested in the Notice of Deposition Duces Tecum. A copy of Respondent’s Request for Production is attached hereto as Exhibit "E". 10. The documents sought in paragraphs 2, 3, 4 and 5 of the Deposition Duces Tecum and Request for Production are premature and irrelevant requests for extensive and intrusive financial records, including the following: a.Item 2: “All financial statements, balance sheets, profit and loss statements and tax returns prepared by or for Capco Properties, LLC from May 2003 to the present." b. Item 3: “Documentation reflecting distributions of any kind from Capco Properties, LLC to its members from May 2003 to the present.” c. Item 4: “Statements of all bank accounts of Capco Properties, LLC from May 2003 to the present.” d. item 5: “Cancelled checks issues by Capco Properties, LLC to its members from May 2003 to the present.” 11. ‘The' Respondent has failed to show any evidence or relevance which supports a reason why the discovery of extensive and intrusive financial information should be produced, nor has it shown that it would be prejudicial to the Respondent should these documents not be produced. 12. On March 28, 2008, the Petitioners filed a Motion for Protective Order, requesting the trial court to prohibit 4 Law Orrices HYMAN SPECTOR & Mars, LLP MUSEUM TOWER, TWENTY-SEVENTH FLOOR, 150 WEST FLAGLER STREET, MIAMI, F1. 33130 # DADE 371-4244 ¢ BROWARD 763-890813. 14. 1s. 16. a7. MUSEUM TOWER, TWENTY.SEVENTH FLOOR, 150 WEST FLAGLER STREET, MIAME, FL 33130 CAPCO PRO.cRTIES, LLC, et al. v. MONTEREY GARDENS OF PINECREST CONDOMINIUM ASSOCIATION, INC. the Respondent from producing these documents at least until such time that the pending Motion to Dismiss was resolved. A copy of the Motion for Protective Order is attached hereto as Exhibit ™ Also on March 28, 2008, the Petitioners timely served their response to the Respondent's Request for Production, therein objecting to the production of the items requested by the Respondent. A copy of the Petitioners’ Response to Request for Production is attached hereto as Exhibit On April 8, 2008, the trial court conducted a hearing on the Petitioners’ (a) Motion for Protective Order and (b) objections to the Respondent's discovery requests. At the conclusion of the hearing, the trial court entered an Order denying the Motion for Protective Order and overruling the discovery objections. A copy of the order is attached hereto as Exhibit “ On April 11, 2008, the Respondent filed a Motion to Compel, A copy of the Motion to Compel is attached hereto as Exhibit "I". On April 15, 2008, the Petitioners timely filed a Motion for Reconsideration of the trial court’s Order dated April 8, 2008. A copy of Petitioners’ Motion for Reconsideration, sans exhibits, is attached hereto as 5 Law Orrices Hyman Spector & Mars, LLP + DADE 371-4244 + BROWARD 763-8908CAPCO PROVERTIES, LLC, et al. v. MONTEREY GARDENS OP PINECREST CONDOMINIUM ASSOCIATION, INC. Exhibit "J" 18, The Petitioners filed the Motion for Reconsideration because they believed that the trial court had failed to consider the prejudicial nature of the discovery requests and that the court's April 8, 2008 Order violated the essential requirements of law, which would result in prejudice that could not be remedied on appeal. 19. Counsel for the Petitioners hand-delivered the Motion for Reconsideration, together with a request for the motion to be heard by the court, to the chambers of the trial court judge on the same day that the motion was filed, April 15, 2008. 20. On May 7, 2008, the trial court conducted a hearing on the Respondent’s Motion to Compel, and granted said motion. A copy of the Order granting the Motion to Compel is attached hereto 4s Exhibit "K". 21, At the same hearing, on May 7, 2008, the trial court Genied the Petitioners’ Motion for Reconsideration. A copy of the Order denying Petitioners’ Motion for Reconsideration is attached hereto as Exhibit “L”. 22. The court denied the Motion for Reconsideration despite never having reviewed said motion. See pages 9-14 of transcript of May 7, 2008 hearing, attached hereto as Exhibit "M’. 6 Law Orrices Hyman Spector & Mars, LLP ‘MUSEUM TOWER, TWENTY SEVENTH FLOOR, 150 WEST FLAGLER STREET, MIAMI, FL 33130 * DADE 371.4244 « BROWARD 763-8908CAPCO PRO-URTIES, LEC, et al. v. MONTEREY GARDENS OF PINECREST CONDOMINIUM ASSOCIATION, INC. 23 At the May 7, 2008 hearing, the trial court also denied Petitioners’ ore tenus motion for stay of the proceedings while the instant Petition for Writ of Certiorari is pending in the District Court. See page 14 of transcript of May 7, 2008 hearing, attached hereto as Exhibit "M’. 24. The instant Petition seeks a writ of certiorari to quash the April 8, 2008 and May 7, 2008 orders of the trial court, since the irrelevant, premature and prejudicial documents sought in the Request for Production and Deposition Duces Tecum should not be produced at this time. III. NATURE OF THE RELIEF SOUGHT The nature of the relief sought by this petition is a writ he orders of the trial court that (a) of certiorari quashing denied the Petitioners’ Motion for Protective order, (b) overruled the Petitioner’s objections to discovery requests, (c) denied Petitioners’ Motion for Reconsideration, (d) granted the Respondent’s Motion to Compel and (e) denied Petitioner’s Motion to Stay 7 Law Orrices Hyman Spector & Mars, LLP MUSEUM TOWER, TWENTY-SEVENTH FLOOR, 150 WEST FLAGLER STREET, MIAMI, FL 33130 ¢ DADE 371-4244 « BROWARD 763-8908CAPCO PROvéRTIES, LLC, et al. v. MONTEREY GARDENS OF PINECREST CONDOMINIUM ASSOCIATION, INC. | IV. ARGUMENT For all of the following reasons, the Petitioners contend that the trial court orders dated April 8, 2008 and May 7, 2008, forcing the Petitioner to provide extensive and intrusive financial records at this time, is e@ departure from the essential requirements of law, which would result in prejudice that could not be remedied on appeal. A. The Respondent’s discovery requests seek information which is ordinarily discoverable only in aid of execution after judgment has been entered, and this case is not yet even past the pleadings stage. xs‘ Motion for Protective Order and In denying the Petition overruling Petitioners’ discovery objections on April 8, 2008, the trial court failed to consider the general rule in Florida, which is that personal financial information is ordinarily discoverable only in aid of execution after judgment has been entered. Friedman v. Heart Institute of Port St. Lucie, Inc., 863 So.2d 189 (Pla.2003). See also Gruman v. Bankers Trust Co 379 So.2d 658 (Fla. 3*° DCA 1980) (The Third District quashed an order requiring that the defendant respond to discovery requests with respect to financial information, holding that, “without a showing of even potential relevance to the issues in the case, [the discovery requests seek] personal financial information of a type ordinarily discdverable only in aid of execution aft, judgment has been entered.” Emphasis added.) 8 Law Orrices HYMAN Spector & Mars, LLP MUSEUM TOWER, TWENTY SEVENTH FLOOR, 150 WEST FLAGLER STREET, MIAMI, FL 33130 # DADE 371.4244 « BROWARD 763-8908CAPCO PROPERTIES, LLC, et al. v. MONTEREY GARDENS OF PINECREST CONDOMINIUM ASSOCIATION, INC. In this case, not only has a judgment not been entered, but the complaint has not even passed the initial pleadings phase The Petitioners have filed a substantive Motion to Dismiss, which is set to be heard by the trial court on May 19, 2008. Until the complaint sets forth a cognizable claim resulting in a judgment against the Petitioners, discovery of such extensive and intrusive financial records is improper. Exit 242 Tourist Information v. Florida's Room Service, Inc., 792 So.2d 1283 (Fla. 5° DCA 2001) (The district court quashed the discovery order of financial records, holding that there were no facts to support plaintiff’s conclusory allegations of fraud.) Accordingly, it is premature for any of the Respondent's requests for financial information to be allowed at this time. B. The Respondent’s discovery requests for financial information are analogous to a request for an accounting? a party must show that it is entitled to an accounting before it is entitled to discovery of financial records. im this case, the Respondent is a condominium association, which has brought suit against the condominium’s developer, and the association's discovery requests are analogous to a request for an accounting of the developer. Similarly, in the case of Colonies Condominium Assoc., Inc. Clairview Holdings, Inc., 419 So.2d 725 (Fla. 5th DCA 1982), the plaintiff condominiu association filed suit against the developer and a former 9 Law Orrices HYMAN Spector & Mars, LLP ‘MUSEUM TOWER, TWENTY-SEVENTH FLOOR, 150 WEST FLAGLER STREET, MIAMI, F1 33130 * DADE 371-4244 * BROWARD 763-8908CAPCO PROPERTIES, LUC, et al. v. MONTEREY GARDENS OF PINECREST CONDOMINIUM ASSOCIATION, INC. director of the association for fraudulent misrepresentation and various breaches of fiduciary duties. The district court in that case upheld. the trial court’s Protective Order against financial records sought by the association, holding that, “a party must show that he is entitled, at least preliminarily, to the accounting before he is entitled to discovery of financial records.” Id. at 726. Moreover, it is well-settled Florida law that discovery as to an accounting mst be deferred until the preliminary issue of the right to accounting is settled. Picerne Development Corp. of Florida v. Tasca & Rotelli, 635 So.2d 149 (Fla. 4‘ DCA 1994) (The district court subsequently quashed the trial court’s order overruling the defendants’ discovery objections, stating that the trial court’s ruling constituted a departure from the essential requirements of law because it violates the oft-cited principle “that discovery as to the accounting must be deferred until the preliminary issue of the right to accounting is settled." Charles Sales Corp. v. Rovenger, 88 So.2d 551, 555 (Fla.1956) .) C. The Respondent has failed to show any evidence or relevance which supports a reason why the discovery of financial information should be allowed at this time. Florida courts have consistently held that, without evidence which could support the counts raised in a complaint, discovery of financial information should not be allowed. 10 Law Orrices HYMAN Spector & Mars, LLP MUSEUM TOWER, TWENTY-SEVENTH FLOOR, 150 WEST FLAGLER STREET, MIAMI, Fl. 33130 * DADE 371-4244 BROWARD 763-8908CAPCO PROruRTIES, LLC, et al. v. MONTEREY GARDENS OF PINECREST CONDOMINIUM ASSOCIATION, INC. mkins v. Milliken, 498 So.2d 495 (Fla. 2% DCA 1986) (District court quashed a discovery order for financial information, holding that, despite the allegations in the complaint, there was simply no evidence which could support the counts raised therein.) Furthermore, without a showing of even potential relevance to the issues in the case, the Respondent’s discovery requests seck financial information of a type ordinarily discoverable only in aid of execution after judgment has been entered. Gruman _v. Bankers Trust Co., 379 So.2d 658 (Fla. DCA 1980) (The Third District quashed an order requiring that the defendant respond to discovery requests with respect to financial information, holding that, “without a showing of even potential relevance to the issues in the case, [the discovery requests seek] personal financial information of a type ordinarily discoverable only in aid of execution after judgment has been entered.” Id. at 659. Petitioners’ Motion to Dismiss is set to be heard by the trial court on May 19, 2008. ‘The crux of the argument in the Motion to Dismiss is that the fraud counts in the complaint include no facts to support the conclusory allegations of fraud, nor is the fraud plead with sufficient particularity. Moreover, the Respondent has brought this action as a class action, and the Florida Supreme Court has clearly enunciated and persistently stood by the proposition that fraud class actions 4 Law OFFices Hyman Spector & Mars, LLP ‘MUSEUM TOWER, TWENTY.SEVENTH FLOOR, 150 WEST FLAGLER STREET, MIAMI, FI. 33130 * DADE 371-4244 © BROWARD 763-8908,CAPCO PROsMRTIES, LLC, et al. v. MONTEREY GARDENS OF PINECREST CONDOMINIUM ASSOCIATION, INC. based upon separate contracts cannot for the basis of a class action suit in Florida. Harrell v. Hess 0i1 & Chemical Coxrp., 287 So.2d 291 (Fla.1973). See also Fla, Jur. Fraud sec 79 Fraud claims on separate contracts are inherently diverse, and as a result, fraud class actions based on separate contracts are prohibited. See City of Lakeland v. Chase Nat. Co., 32 So.2d 833 (Fla.1947) (The fact that similar frauds were alleged to have been practiced on various. persons is not of itself a sufficient basis for a representative suit.); Lance v. Wade, 457 So.2d 1008 (Fla.1984) (Separate contracts are inherently diverse, and as a result, class actions seeking relief from Separate contracts on the basis of fraud are prohibited, irrespective of the genesis of the fraud.); Humana, Inc Castille, 728 So.2d 261 (Fla. 2° DCA 1999) (the rationale being that what one person may rely upon in entering into any contract may not be material to another purchaser.) Por the foregoing reasons, the Association does not have standing to allege a count for fraudulent concealment or fraudulent transfer; since the Association does not have standing to allege a count for fraudulent concealment or fraudulent transfer, it follows that it is not entitled to the production of the extensive and intrusive financial documents that it seeks. Finally and importantly, in a case, as here, in which the 12 Law Orrices Hyman Spector é& Mars, LLP MUSEUM TOWER, TWENTY-SEVENTH FLOOR, 150 WEST FLAGLER STREET, MIAMI, 1.33130 * DADE 371-4244 « BROWARID 763-8908CAPCO PROFARTIES, LLC, et al. v. MONTEREY GARDENS OF PINECREST CONDOMINIUM ASSOCIATION, INC. information sought is not relevant, the disclosure of financial information may cause irreparable harm to a defendant Mogul v. Mogul, 730 So.2d 1287, 1290 (Fla. 5° DCA 1999) (Because there was no basis to conclude the personal financial information sought in the case was relevant, the district court quashed the discovery order under review.) In order to avoid irreparable harm to the Petitioners in the instant matter, the court should not force the disclosure of the requested financial information D. A Motion to dismiss has been filed, the Petitioners have objected to specific items requested, and good cause has been shown. Rule 1.280(c), Florida Rules of Civil Procedure, states, in pertinent part, that: Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place.. Moreover, the Florida Supreme Court has held that an order preventing depositions while a motion to dismiss is pending is within the discretion of the trial court. Hollywood, Ine Broward County, 90 So,2d 47 (Fla.1956). Generally, courts fail to grant Protective Orders against financial information only in certain situations, none of which 3 Law Orrices HyMAN Sector & Mars, LLP MUSEUM TOWER, TWENTY.SEVENTH FLOOR, 150 WEST FLAGLER STREET, MIAMI, FL. 33130 ® DADE 371-4244 « BROWARD 163-8908CAPCO PROPERTIES, LUC, et al. v. MONTEREY GARDENS OF PINECREST CONDOMINIUM ASSOCIATION, INC. are present in this case. For example, Jasin, 425 So.2d 1219 (Fla. 2" DCA 1983), the District Court denied certiorari on the grounds that the defendant failed to (a) demonstrate whether a motion to dismiss had been filed or ruled on below, (b) object as to specific items, or (c) show that good cause was present to limit or prohibit the discovery due to “annoyance, embarrassment, oppression, or undue burden or expense" as required by Florida Rule of Civil Procedure 2.280(c). In this case, however, each of the three elements missing in the Henkel case have been satisfied. First, the Petitioners have demonstrated that a Motion to Dismiss has been filed, and that it has yet to have been ruled upon by the trial court. Second, the response to the Request for Production indeed objects to each specific item requested. ‘Third, the Petitioners have shown that good cause exists to limit or prohibit the discovery due to “annoyance, embarrassment, oppression, or undue burden or expense" as required by Florida Rule of Civil Procedure 1.280(c) Inc. v. Pinch-A- Be » 427 So.2@ 1142 (Fla. 2° DCA 1983) ny Store No. (District court allowed defendant the opportunity to amend its motion for protective order to include objections to the precise items.) 14 Law Orrices HyMaN Spector & Mas, LLP ‘MUSEUM TOWER, TWENTY-SEVENTH FLOOR, 150 WEST FLAGLER STREET, MIAMI, 7. 33130 * DADE 371-4244 « BROWARD 763.908CAPCO PRO:ARTIES, LLC, et al. v. MONTEREY GARDENS OF PINECREST CONDOMINIUM ASSOCIATION, INC. Accordingly, the trial court abused its discretion in failing to grant the Petitioners’ Motion for Protective Order with respect to financial documents at this stage of the litigation. E. Conclusion In summary, the Petitioners contend that the April 8, 2008 and May 7, 2008 orders in this case are a departure from the essential requirements of law and that the injury cannot be corrected on appeal from the final judgment. The trial court orders allow the production of extensive and intrusive financial records, which is ordinarily discoverable only in aid of execution after judgment, while this case is not yet even past the pleadings stage. The Petitioners’ Motion to Dismiss, which is set to be heard on May 19, 2008, shows that the Respondent’s Complaint is lacking sufficient allegations to allow the production of the Petitioners’ financial documents. Without facts to support the Respondents conclusory allegations of fraud, the Respondent has fi ed to show any evidence or relevance which supports a reason why the discovery of the Petitioners’ financial information should be allowed at this time. Pinally, the Respondent’s discovery requests should not be allowed, since ordering their production would be prejudicial and may cause irreparable harm to the Petitioners, while a 15. Law Orrices HYMAN Spector & Mars, LLP MUSEUM TOWER, TWENTY-SEVENTH FLOOR, 150 WEST FLAGLER STREET, MIAMI, FL 33130 # DADE 371-4244 « BROWARD 763-8908