Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT TAMPA PARK APARTMENTS, INC., Petitioner, v. SYLVIA BERRY-ANDREWS and CYRIL ANDREWS, Respondents. No. 2D21-1473 February 16, 2022 Petition for Writ of Certiorari to the Circuit Court for Hillsborough County; Robin F. Fuson, Judge. Lansing C. Scriven of Lansing Scriven, P.A., Tampa, for Petitioner. Allison M. Perry of Florida Appeals, P.A., Tampa, for Respondent Sylvia Berry-Andrews. No appearance for remaining Respondent. MORRIS, Chief Judge. Tampa Park Apartments, Inc., seeks a writ of certiorari to quash the trial court's order overruling its objection and denying its motion for protective order in the underlying dissolution action between Sylvia Berry-Andrews and Cyril Andrews. Because we conclude that the trial court departed from the essential requirements of the law by ordering Tampa Park—a nonparty to the dissolution action—to turn over financial information and that there is no adequate remedy on appeal, we grant the petition. BACKGROUND In the underlying action, Mrs. Berry-Andrews sought financial documents from Tampa Park relating to the sale of various pieces of property. Presumably, this was because Mr. Andrews sat on the board of directors for Tampa Park, and Mrs. Berry-Andrews sought to discover whether Mr. Andrews had a financial interest in Tampa Park that would be relevant to the dissolution proceedings. Tampa Park filed its objection and motion for protective order arguing that it was a nonparty and nonprofit corporation and that Mr. Andrews had no financial interest in it. Tampa Park also disputed the relevancy of the requested documents. Attached to Tampa Park's motion was an affidavit from Mr. Andrews' sister, who was the president and chairman of the board of directors of Tampa Park. In 2 her affidavit, Mr. Andrews' sister reiterated that Mr. Andrews had no financial interest in Tampa Park. It is undisputed that a nonevidentiary hearing was conducted, that Mrs. Berry-Andrews did not submit a counteraffidavit or file a response to Tampa Park's objection and motion for protective order, and that the affidavit attached to Tampa Park's motion was not entered into evidence. However, the trial court apparently still considered the affidavit, as it was cited in the order overruling Tampa Park's objection and denying its motion for protective order. In the order, the trial court concluded that the requested documents "could be relevant" to the dissolution action. The trial court refused to require Mrs. Berry-Andrews to demonstrate whether Mr. Andrews had a financial interest in Tampa Park before requiring the disclosure of the requested documents. This was a departure from the essential requirements of the law. ANALYSIS Certiorari relief will only be granted where a party demonstrates a departure from the essential requirements of the law resulting in a material injury that cannot be corrected on appeal. See Rowe v. Rodriguez-Schmidt, 89 So. 3d 1101, 1103 (Fla. 3 2d DCA 2012). The last two prongs are jurisdictional, Fassy v. Crowley, 884 So. 2d 359, 363 (Fla. 2d DCA 2004), and they are satisfied here because "[a]n order compelling the production of documents by a nonparty is reviewable by certiorari because he or she has no adequate remedy by appeal," Rowe, 89 So. 3d at 1103 (quoting Rappaport v. Mercantile Bank, 17 So. 3d 902, 905 (Fla. 2d DCA 2009)). Our focus is thus on whether the trial court departed from the essential requirements of the law. While a third party's financial records may be discoverable in a dissolution proceeding, that is true only where one spouse either has a sufficient financial interest in the third party (beyond mere employment), Sw. Acceptance Fin. Co. v. Schauer, 804 So. 2d 542, 544 (Fla. 2d DCA 2002), or where there is concern that one spouse has had improper financial dealings with a third party, such as where that spouse is suspected of disposing of or secreting assets, see Bradstreet v. Taraschi, 529 So. 2d 809, 810 (Fla. 5th DCA 1988); Smith v. Bloom, 506 So. 2d 1173, 1175 (Fla. 4th DCA 1987). Before such discovery is required, however, the requesting spouse must first establish through evidence the extent of the other spouse's financial interest in or 4 improper dealings with the third party. See Schauer, 804 So. 2d at 544 (holding that it was necessary for the wife to establish the husband's present financial interest in the third parties' businesses, beyond his employment, before the third parties could be required to produce records); Palmer v. Servis, 393 So. 2d 653, 655 n.8 (Fla. 5th DCA 1981) ("[T]he right to go into the financial details of a third person's business affairs should be deferred at least until the wife has established by evidence, acquired if necessary through other discovery proceedings, that the husband presently has a financial interest in the business."). A trial court departs from the essential requirements of the law when it orders the disclosure of a nonparty's1 financial records without any evidentiary inquiry as to its relevance. Presley Law & Assocs., P.A. v. Casselberry, 148 So. 3d 144, 146 (Fla. 2d DCA 2014); Rowe, 89 So. 3d at 1103-04. Simply conducting a 1 We acknowledge that at least one court has declined to adopt a per se rule requiring trial courts to always conduct an evidentiary hearing before ordering a party to the proceedings to disclose financial discovery. See Elsner v. E-Commerce Coffee Club, 126 So. 3d 1261, 1263 (Fla. 4th DCA 2013). However, as even noted in that case, there is a distinction when it is a nonparty that is being ordered to disclose financial records. See id. 5 nonevidentiary hearing and relying on the unsworn representations of counsel is not sufficient. Rowe, 89 So. 3d at 1104; Borck v. Borck, 906 So. 2d 1209, 1211 (Fla. 4th DCA 2005). Here, the trial court conducted a nonevidentiary hearing, and while the affidavit attached to Tampa Park's motion was, for obvious reasons, not offered into evidence, it went unrebutted due to Mrs. Berry-Andrews' failure to file a counteraffidavit. Thus there were no disputed issues of fact to resolve,2 and the trial court was only required to determine whether Mrs. Berry-Andrews had demonstrated the relevance of the requested documents to the dissolution proceedings. Cf. Rollet v. de Bizemont, 159 So. 3d 351, 356-58 (Fla. 3d DCA 2015) (recognizing, in a nonfinal appeal of an order denying a motion to dismiss, that where one party filed an affidavit in support of its motion to dismiss and the other party failed to provide a counteraffidavit, there were no disputed issues of fact and only legal issues remained). But the trial court determined 2 Because there was no factual dispute, Tampa Park's failure to provide a transcript of the nonevidentiary hearing is not fatal to its claim. See Fish Tale Sales & Serv., Inc. v. Nice, 106 So. 3d 57, 63 (Fla. 2d DCA 2013); Rollet, 159 So. 3d at 357-58; Shahar v. Green Tree Servicing LLC, 125 So. 3d 251, 254 (Fla. 4th DCA 2013). 6 that Mrs. Berry-Andrews was not subject to that requirement and, in doing so, departed from the essential requirements of the law. The fact that Mrs. Berry-Andrews sought only documents relating to the sale of various properties, rather than a broader- ranging set of financial documents, does not preclude certiorari relief. There is simply nothing indicating that the trial court was presented with any evidence that Mr. Andrews had a sufficient financial interest in or had improper financial dealings with Tampa Park such that those records were relevant to the dissolution proceeding. The trial court's speculation that the records "could be relevant" is not sufficient to require disclosure. See Schauer, 804 So. 2d at 543-44 (explaining that where a trial court ordered disclosure of financial records because "the husband may have a financial interest" in third parties, "[m]ore than this is required as a basis to pursue financial records which are not directly related to the husband's employment"). Petition granted; order quashed. SMITH and STARGEL, JJ., Concur. 7 Opinion subject to revision prior to official publication 8