Katz v. Riemer

• Decision Date: 06 May 2020
• Docket Number: No. 3D19-1271,3D19-1271
• Parties: Thomas O. KATZ and Katz Baskies & Wolf, PLLC, Petitioners, v. Laurie RIEMER and Joanne Rosen, Respondents.
• Court: Florida District Court of Appeals

305 So.3d 663

Thomas O. KATZ and Katz Baskies & Wolf, PLLC, Petitioners,

v.Laurie RIEMER and Joanne Rosen, Respondents.

No. 3D19-1271

District Court of Appeal of Florida, Third District.

Opinion filed May 6, 2020.

Cole, Scott & Kissane, P.A., and Mark D. Tinker (Tampa), for petitioners.

Hall, Lamb, Hall & Leto, P.A., Miami, and Andrew C. Hall and Adam J. Lamb and Colleen L. Smeryage, for respondents.

Before HENDON, MILLER and LOBREE, JJ.

LOBREE, J.

Thomas O. Katz and his law firm, Katz Baskies & Wolf, PLLC (the "attorneys"), seek certiorari review of the trial court's order denying their motion to compel financial disclosures from Laurie Riemer and Joanne Rosen (the "beneficiaries"). Because the petition fails to show irreparable harm, we dismiss the petition.

Factual and Procedural Background

The beneficiaries’ mother and stepfather executed a post-nuptial agreement, entitling the beneficiaries to inherit 30% of their stepfather's net estate upon his death. It relevantly reads:

4. Notwithstanding any other provision of this agreement, [stepfather] agrees that he will make the following provisions if the parties are married at the time of the death of the first of them to die:

....

(b) [Stepfather] will provide for the disposition of his assets so that, after the death of both parties, at least 30% of his Net Estate ... will pass to or in trust for [mother's] descendants, provided that if [mother] survives [stepfather] there will be no distribution to her descendants until after her death.

However, the agreement also provides that:

3. Except as provided in this agreement, each party shall retain sole ownership, control, and enjoyment of his or her property, and he or she may buy, sell, give, devise, use, consume, encumber, create a security interest in or otherwise dispose of or deal with such property at any time and in any manner free from any and all claims and rights of the other party as if no marriage had been consummated.

....

6. Unless specifically otherwise stated, the word "property" ... shall mean all earnings and property, of every kind, that a party to this agreement now owns or acquires in any manner at any time in the future.

The beneficiaries’ mother died in 2006. Despite surviving her, the stepfather engaged in a series of actions—with the purported advice of the attorneys—that diverted or effectively depleted his assets, transferring them to his natural children instead. Upon his death, his net estate had nothing of substance to convey to the beneficiaries, whereas the assets had before been in the millions of dollars.

The beneficiaries sued the attorneys for malpractice, aiding and abetting breach of fiduciary duties, tortious interference with an expectancy of inheritance, and undue influence. The attorneys, in turn, sought the beneficiaries’ financial disclosure of the funds that they had inherited from their mother's estate, alleging that this would allow them to raise the legal defense that the agreement's purpose of ensuring the beneficiaries’ financial health had already been accomplished, rendering the defeat of the 30% gift nugatory. The trial court denied the discovery, finding the beneficiaries’ finances irrelevant to their entitlement to the agreement's gift.

Analysis

A non-final, non-appealable order may be reviewed by petition for a writ of certiorari where the petitioner shows: "(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case[,] (3) that cannot be corrected on post-judgment appeal." Bd. of Trs. of Internal Improvement Tr. Fund v. Am. Educ. Enters., LLC, 99 So. 3d 450, 454 (Fla. 2012) (quoting Reeves v. Fleetwood Homes of Fla., Inc., 889 So. 2d 812, 822 (Fla. 2004) ). Moreover, " ‘[a] postnuptial agreement is subject to interpretation like any other contract,’ and a court's interpretation of a contract is subject to de novo review." Macleod v. Macleod, 82 So. 3d 147, 149 (Fla. 4th DCA 2012) (quoting Chipman v. Chipman, 975 So. 2d 603, 607 (Fla. 4th DCA 2008) ).

"A finding that the petitioning party has ‘suffered an irreparable harm that cannot be remedied on direct appeal’ is a ‘condition precedent to invoking a district court's certiorari jurisdiction.’ " Bd. of Trs., 99 So. 3d at 454-55 (quoting Jaye v. Royal Saxon, Inc., 720 So. 2d 214, 215 (Fla. 1998) ). Irreparable injury can rarely be shown where discovery is denied, as any error is generally reviewable on appeal. See Owusu v. City of Miami, No. 3D19-2385, 2020 WL 1870348 (Fla. 3d DCA Apr. 15, 2020) (citing Damsky v. Univ. of Miami, 152 So. 3d 789, 792 (Fla. 3d DCA 2014) ). The attorneys allege that the trial court's denial of the discovery sought will preclude them from later presenting evidence at trial about the beneficiaries’ inheritance from their mother's estate, which goes to their affirmative defense that the stepfather's actions diverting his assets were in conformity with the parties’ intent in making the agreement. However, only where the requested discovery "is relevant or is reasonably calculated to lead to the discovery of admissible evidence and the order denying that discovery effectively eviscerates a party's claim, defense, or counterclaim," is relief by writ of certiorari appropriate. Giacalone v. Helen Ellis Mem'l Hosp. Found., Inc., 8 So. 3d 1232, 1234 (Fla. 2d DCA 2009).

In determining whether a defense has been "eviscerated," courts must look at the legal elements of the petitioner's defenses, compare them with the discovery the trial court has granted, see CQB, 2010, LLC v. Bank of N.Y. Mellon, 177 So. 3d 644, 646 (Fla. 1st DCA 2015), and also review the complaint, see Kauffman v. Duran, 165 So. 3d 805, 807 (Fla. 3d DCA 2015). Further, the discovery sought must be "relevant to the issues as framed by the pleadings." Elsner v. E-Commerce Coffee Club, 126 So. 3d 1261, 1264 (Fla. 4th DCA 2013). Both showings must be made for certiorari to lie. See Jerry's S., Inc. v. Morran, 582 So. 2d 803, 805 (Fla. 1st DCA 1991) (denying certiorari where discovery was "not related to any pending claim or defense, nor was the information shown to be reasonably calculated to lead to the discovery of admissible evidence").

Here, the attorneys’ legal defenses are not eviscerated by the discovery ruling. All causes of action alleged by the complaint relate to whether the beneficiaries were entitled to 30% of their stepfather's net estate upon his death, and whether they actually received it. Therefore, all duties and breaches attributed to the attorneys ultimately arise and are with reference to the face of the agreement. The argument that, despite a clear and unambiguous agreement, the parties actually intended that the stepfather could later defeat the gift made therein, is not a defense against the causes of action alleged. Nothing in the elements of those claims bears any relation to...