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. 3D22-2026
Lower Tribunal No. 19-30995
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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 Patricia Melville, Luis E. Suarez, and
Thomas S. Ward, 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 quashing the trial court’s discovery order. The
order denied Shojaee’s objections to plaintiff Anibal J. Duarte-Viera, P.A.’s
subpoenas. The subpoenas seek financial information from third parties,
including Shojaee’s ex-wife. Shojaee argues that the production of this
information inherently causes irreparable harm and the information sought
has no relevance to the dispute between the parties. Because the relevance
of such records is not apparent from the pleadings and no evidentiary
foundation was laid that would establish their relevance, we issue the writ
and quash the order at issue.
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manager of Santa Fe and is alleged to have improperly withdrawn millions
of dollars from Santa Fe’s accounts. As a result of Shojaee’s withdrawals,
Duarte-Viera, as the trustee of Santa Fe’s majority member, sued Shojaee
and the Northern Trust Company, the majority member’s prior trustee.
In its complaint, Duarte-Viera alleged the following causes of action:
(1) Breach of Fiduciary Duty of Care against Shojaee as Manager; (2) Breach
of Duty of Loyalty against Shojaee as Manager; (3) Gross Negligence
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against Northern Trust; (4) Breach of Contract against Shojaee as Manager;
and (5) Breach of Fiduciary Duty against Shojaee as Member.
Shojaee’s daughters, the beneficiaries of the majority member, also
sued Shojaee and Northern Trust. They alleged causes of action for: (1)
Breach of Fiduciary Duty against Shojaee Individually; and (2) Breach of
Fiduciary Duty against Northern Trust.
In litigating these claims, Duarte-Viera served notice of its intent to
subpoena three non-parties: Aneli Artwork, LLC, Shoma Alliance
Management Corporation, and Maria Lamas. Shojaee allegedly controls
both the artwork and management companies. Ms. Lamas is Shojaee’s ex-
wife. The subpoenas request essentially all financial documents from the
companies for a four-year period and financial information concerning
Shojaee’s divorce.
The subpoena to Aneli Artwork, LLC requested:
1. Any and all bank statements related to Aneli Artwork,
LLC from 2017-2021, including copies of canceled
checks.
2. Any and all brokerage account statements related to
Aneli Artwork, LLC from 2017-2021.
3. Any and all financial statements, including balance
sheets, income statements and general ledgers from
2017-2021.
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The subpoena to Shoma Alliance Management Corporation
requested:
1. Any and all bank statements related to Shoma Alliance
Management Corp. from 2017-2021, including copies of
canceled checks, involving transactions concerning,
relating to and/or pertaining to the affairs of The M&M Life
Insurance Trust and/or Santa Fe Haciendas, LLC.
2. Any and all brokerage account statements related to
Shoma Alliance Management Corp. from 2017-2021.
3. Any and all financial statements, including balance
sheets, income statements and general ledgers from
2017-2021.
4. Any and all agreements, loans, notes, licenses and
communications in any form relating, concerning and/or
involving the affairs and business of The M&M Life
Insurance Trust and/or Santa Fe Haciendas, LLC.
The subpoena to Ms. Lamas requested:
1. Marital Settlement Agreement executed between Maria
Lamas (“You”) and Masoud Shojaee (“Masoud”) and/or
interested party, Shoma Coral Gables, LLC, relating to
the case no.: 2015-010703-FC-04 (“Divorce
Proceedings”).
2. All financial affidavits executed by Masoud and furnished
to You or your lawyers in connection with the Divorce
Proceedings, including all personal and corporate
financial records produced by and/or on behalf of
Masoud and/or by Shoma Coral Gables, LLC and/or any
other business entity associated with Masoud.
3. All deposition transcripts given by Masoud in the Divorce
Proceedings.
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Shojaee objected to these subpoenas. After a non-evidentiary hearing
on the objections, the trial court overruled them. 1 This petition for writ of
certiorari timely followed.
Analysis
As a preliminary matter, Duarte-Viera argues that Shojaee lacks
standing to object to the production of third-party documents. However,
Duarte-Viera did not make this argument to the trial court and thus it did not
preserve this argument for our review. Joli v. Hannon,
336 So. 3d 343, 344
(Fla. 3d DCA 2021) (“Because appellant failed to raise any objection to the
City Clerk's standing, she is precluded from raising this claim for the first time
on appeal.”).
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.
1
The hearing was not noticed as evidentiary. Nevertheless, as part of its
presentation during the hearing, Duarte-Viera incorporated materials
presented at a hearing in a related lawsuit before the same trial judge. In the
related case, Duarte-Viera read from Shojaee’s deposition transcript and
presented copies of Santa Fe checks made out to Aneli Artwork, LLC and
Shoma Alliance Management Corporation.
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A. Irreparable Harm
Shojaee argues that the production of financial information, by its very
nature and without a showing of relevancy to the underlying lawsuit, causes
irreparable harm. Because financial information is protected under the
Florida Constitution and there is a long line of cases holding same, 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”); Rousso v. Hannon,
146 So. 3d
66, 69–70 (Fla. 3d DCA 2014) (“[T]hird party financial records . . . are of the
utmost sensitivity and are not discoverable unless the party seeking
discovery establishes a need for the discovery sufficient to overcome the
privacy rights of the third party.”).
Moreover, due to the inherently personal nature of divorce-related
documents, this information also invokes the protection of Article I, section
23, of the Florida Constitution. See Rasmussen v. S. Fla. Blood Serv., Inc.,
500 So. 2d 533, 536 (Fla. 1987) (“Although the general concept of privacy
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encompasses an enormously broad and diverse field of personal action and
belief, there can be no doubt that [Article I, section 23, of the Florida
Constitution] was intended to protect the right to determine whether or not
sensitive information about oneself will be disclosed to others.”). Therefore,
absent a showing of relevancy of this sensitive information, its disclosure
causes irreparable harm.
B. Essential Requirements of Law
Privacy interests may be overcome, and sensitive information
produced, however, if the information is relevant to the lawsuit. 2 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, the trial court does not need to hold an evidentiary
hearing. Elsner,
126 So. 3d at 1264. However, the pleadings do not show
2
The parties dispute whether this Court should apply the relevancy test,
applicable to party information, or the necessity test, applicable to third-party
information. Because the requested materials do not pass the less stringent
relevancy test, we do not address this issue.
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the relevancy of the documents requested to the dispute and no evidentiary
hearing was conducted here.
Duarte-Viera did not make any allegations in its complaint regarding
Aneli Artwork, LLC, Shoma Alliance Management Corporation, or Ms.
Lamas. 3 In an apparent attempt to show relevancy outside of the pleadings,
Duarte-Viera read from Shojaee’s deposition transcript and presented copies
of Santa Fe checks made out to Shoma Alliance Management Corporation
and Aneli Artwork, LLC. However, the trial court could not rely on these
materials in its relevancy determination because Duarte-Viera never formally
submitted them 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
3
The only allegation that may concern one of Shojaee’s companies, is the
allegation that “Shojaee used and commingled the personnel of his affiliated
entity, Shoma Homes, to periodically prepare financial statements and K-1s
for Santa Fe’s two members (the Trust and Shojaee).” This allegation,
without more, does not establish the relevance necessary to obtain
privileged financial records of Shoma Alliance Management Corporation,
much less those of Aneli Artwork, LLC or Ms. Lamas.
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evidence.”). We thus disregard all materials outside the complaint presented
at the hearing. Therefore, in the record before us, there has been no showing
of the relevance to this dispute of the extremely broad category of third-party
records requested. We are not holding that such a showing cannot be
established, but simply that it has not been established in this record.
Accordingly, we grant the petition for writ of certiorari and quash the
trial court’s order.
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