Mayport Housing Partnership, Ltd. v. Robert Albani

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-2908
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MAYPORT HOUSING
PARTNERSHIP, LTD.,
Petitioner,
v.
ROBERT ALBANI,
Respondent.
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Petition for Writ of Certiorari - original jurisdiction.
April 20, 2018
B.L. THOMAS, C.J.
Petitioner, Mayport Housing Partnership, Ltd., seeks
certiorari review of an order relating to the release of confidential
partnership records sought by Respondent, Robert Albani.
Because Mayport has not demonstrated the order will result in
irreparable harm, we dismiss the petition.
This case originated below regarding Albani’s status in the
partnership—whether he is a limited partner or merely holds a
transferee interest in Mayport. Mayport contends Albani is a
mere transferee with no right to access partnership records.
Albani asserts he is a limited partner, but argues that even if he
is only a transferee, he is entitled under Mayport’s Partnership
Agreement to financial records to determine whether the
partnership has deprived him of distributions to which he is
entitled.
As part of the declaratory action to determine Albani’s status
and rights, Albani requested production of several financial
documents. Mayport moved for a protective order, asserting that
section 620.1702, Florida Statutes, expressly provides that a
transferee of a partnership interest is not entitled to partnership
information or records, except upon dissolution and winding up of
the partnership, and that the Partnership Agreement provides
Albani no greater access rights. Mayport argued that before
disclosure of the records could be allowed, the threshold issue of
Albani’s status must be first determined by the trial court.
The trial court ultimately entered an order finding that the
materials requested by Albani are reasonably calculated to lead
to the discovery of admissible evidence regarding entitlement to
distributions, but providing that the materials should only be
produced with “proper safeguards in place.” The court directed
the parties to agree on a proposed joint confidentiality order or
submit separate proposed orders, and ordered that “[n]o
materials shall be produced until the Court enters a
confidentiality order.” Mayport seeks review of the order
directing the parties to submit proposed confidentiality orders,
arguing that it will lead to the disclosure of statutorily protected
information.
A petitioner challenging an order compelling disclosure of
confidential information has the burden to demonstrate “that the
trial court departed ‘from the essential requirements of law
causing material harm for which there is no adequate remedy on
final appeal.’” Cordis Corp. v. O'Shea, 988 So. 2d 1163, 1165
(Fla. 4th DCA 2008) (quoting Katz v. N.M.E. Hosps., Inc., 842
So. 2d 853, 854 (Fla. 4th DCA 2002)). “Irreparable harm is the
element that must be considered first as it is the element that
invokes the appellate court’s jurisdiction.” Fla. Gas
Transmission Co., LLC v. City of Tallahassee, 230 So. 3d 912,
913-14 (Fla. 1st DCA 2017) (citing Fla. Fish & Wildlife
Conservation Comm’n v. Jeffrey, 178 So. 3d 460, 464 (Fla. 1st
DCA 2015)).
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“Generally speaking, irreparable harm cannot be
speculative, but must be real and ascertainable.” Wal-Mart
Stores East, L.P. v. Endicott, 81 So. 3d 486, 490 (Fla. 1st DCA
2011). An order requiring the disclosure of confidential
information is recognized as an exception to this general rule, as
it requires the dissemination of information that, once disclosed,
cannot be remedied on appeal. Id. at 491; see also D. Stephenson
Constr., Inc. v. Mendiguren, 958 So. 2d 527, 528 (Fla. 4th DCA
2007) (holding that a discovery order that violates the threshold
requirement of a statute “causes harm that cannot be remedied
on appeal because it requires disclosure of ‘cat out of the bag’
material, i.e., confidential corporate records”); Eugene J. Strasser,
M.D., P.A. v. Bose Yalamanchi, M.D., P.A., 669 So. 2d 1142, 1145
(Fla. 4th DCA 1996) (concluding petitioner demonstrated
irreparable harm based on potential disclosure of allegedly
confidential information).
Mayport argues the order at issue requires the release of
protected information in a manner that cannot be remedied on
appeal. However, by its express language, the trial court’s order
provides that no confidential information shall be produced until
further order establishing the terms of disclosure. Thus, any
injury to Mayport is too remote to invoke the certiorari
jurisdiction of this Court, which may be exercised only upon a
proper showing of irreparable harm. See Stephens v. Wilmington
Tr., Nat’l Ass’n, 209 So. 3d 659, 660 (Fla. 1st DCA 2017).
Without this threshold showing of irreparable harm, the petition
for certiorari must be dismissed. See id.DISMISSED.
BILBREY and JAY, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Geddes D. Anderson, Jr. and Sarah Jeck Hulsberg of Murphy &
Anderson, P.A., Jacksonville, for Petitioner.
Vincent E. Verrocchio and John F. Cooney of Venable LLP,
Washington, DC, pro hac vice for Petitioner.
J. Michael Lindell of Lindell & Farson, P.A., Jacksonville, for
Respondent.
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