GCTC HOLDINGS, LLC v. T TAG QSR, LLC

• Court: District Court of Appeal of Florida
• Decided: September 9, 2022
• Docket: 21-3457
• Status: Published

Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

GCTC HOLDINGS, LLC,

Petitioner,

v.

TAG QSR, LLC; GULF COAST PITA, LLC d/b/a PITA PIT; RALPH C. ANZIVINO; and MARY JO ANZIVINO,

Respondents.

No. 2D21-3457

September 9, 2022

Petition for Writ of Certiorari to the Circuit Court for Lee County; James Shenko, Judge.

Julia Kapusta and Courtney L. Fernald of Englander Fischer, St. Petersburg, for Petitioner.

Kelli A. Edson, Julia M. Wischmeier, and Gabriela N. Timis of Quarles & Brady, LLP, Tampa, for Respondents.

MORRIS, Chief Judge.

GCTC Holdings, LLC, seeks a writ of certiorari to quash the

trial court's order granting Tag QSR, LLC; Gulf Coast Pita LLC d/b/a Pita Pit; and Ralph C. and Mary Jo Anzivino's (the

Respondents) motion for reconsideration of an order sustaining

GCTC's objection to a request for production. We conclude that in

granting the motion, the trial court departed from the essential

requirements of law resulting in material injury that cannot be

remedied on appeal. Therefore we grant the petition.

BACKGROUND

GCTC is the owner of a commercial shopping center. The

Respondents Tag QSR, LLC, and Gulf Coast Pita LLC d/b/a Pita Pit

LLC had a commercial lease with GCTC, and the Anzivinos were the

guarantors of the lease. The underlying dispute involved GCTC's

complaint for eviction and monetary damages, including claims

against the Anzivinos, after the Respondents defaulted on their

lease. The Respondents raised several affirmative defenses

including that GCTC was required to ensure that the shopping

center remained fully leased. The Respondents also filed a

counterclaim seeking damages for constructive eviction and breach

of the covenant of quiet enjoyment. During discovery, the

Respondents sought, among other things, GCTC's monthly rent

2 rolls as they related to the other tenants of the shopping center.

Specifically, request for production #15 sought

[m]onthly rent rolls of Gulf Coast Town Center from the inception of GCTC's ownership to February 1, 2020, identifying the specific leased units by tenant name, location, square footage, and amounts billed and monies collected for each unit by month, and identifying the vacant units, including square footage of each vacant unit.

GCTC objected to this request, arguing that it was overbroad,

irrelevant, and not reasonably calculated to lead to the discovery of

admissible evidence and further arguing that "it calls for privileged

and confidential trade secret information." The Respondents then

filed a motion to compel, which was denied after a hearing on the

basis of overbreadth. The trial court made no finding related to

GCTC's assertion of trade secret privilege.

Thereafter, the Respondents filed a motion for reconsideration

as to request #15, arguing that the information they sought was

readily available to GCTC because it was contained in all of the

various leases between GCTC and the other tenants. Aside from

the request for the leases, the Respondents asked for "any records

showing when tenants vacated leased premises during the few

years' time span." The Respondents maintained that the

3 information was critical to their defense and counterclaim and that

without it they would be unable to present relevant evidence of the

vacancy rate change in the shopping center during their tenancy.

The Respondents asked the court to order production of the leases

"with appropriate redactions to preserve privacy," along with "any

records showing when a tenant vacated leased premises, again,

with appropriate privacy redactions." Without holding a hearing,

the trial court granted the motion, requiring GCTC to provide the

leases with redactions to protect the tenants' privacy. No provision

was included permitting GCTC to make redactions to protect its

own privacy. This certiorari proceeding follows.

ANALYSIS

"[C]ertiorari is appropriate when a discovery order departs

from the essential requirements of law, causing material injury to a

petitioner throughout the remainder of the proceedings below and

effectively leaving no adequate remedy on appeal." Allstate Ins. Co.

v. Langston, 655 So. 2d 91, 94 (Fla. 1995) (citing Martin-Johnson,

Inc. v. Savage, 509 So. 2d 1097, 1099 (Fla. 1987)). And discovery of

certain kinds of information, like material protected by privilege

such as trade secrets, can result in irreparable harm. Id.; see also

4 Brinkmann v. Petro Welt Trading Ges.M.B.H., 324 So. 3d 574, 577-

78 (Fla. 2d DCA 2021).

Trade secrets are privileged pursuant to section 90.506,

Florida Statutes (2019). "To ensure that this privilege is properly

protected, courts have set forth a three-step analysis for trial courts

to undertake when faced with a claim that a discovery request

seeks the production of protected trade secret information." Lewis

Tree Serv., Inc. v. Asplundh Tree Expert, LLC, 311 So. 3d 206, 210

(Fla. 2d DCA 2020). "In the first step, the trial court must

determine whether the information requested constitutes or

contains trade secret information." Id. "This step will usually—but

not always—require the court to conduct an in camera review of the

documents to determine whether, in fact, they contain trade secret

information." Id. at 210-11 (citing Ameritrust Ins. Corp. v. O'Donnell

Landscapes, Inc., 899 So. 2d 1205, 1207 (Fla. 2d DCA 2005)); see

also Brinkmann, 324 So. 3d at 578 ("When parties dispute that

documents are protected under certain statutory provisions, the

proper course is for the trial court to conduct an in-camera

inspection to determine if the requested documents are

discoverable." (quoting E. Bay NC, LLC v. Estate of Djadjich, 273 So.

5 3d 1141, 1144 (Fla. 2d DCA 2019))); Bright House Networks, LLC v.

Cassidy, 129 So. 3d 501, 505 (Fla. 2d DCA 2014) (noting that

determination of whether requested information contains trade

secrets usually requires an in camera review). If the trial court

determines that the information is a trade secret, then it must

determine "whether the party seeking production can show

reasonable necessity for the requested information." Lewis Tree

Serv., Inc., 311 So. 3d at 211 (quoting O'Donnell Landscapes, Inc.,

899 So. 2d at 1207); see also Cassidy, 129 So. 3d at 505. This

includes consideration of whether the requesting party's need for

the documents outweighs the other's party's interest in maintaining

the confidentiality of the documents; this is a fact-specific inquiry.

Lewis Tree Serv., Inc., 311 So. 3d at 211. "Finally, if the court

determines that there is a reasonable necessity for production of

trade secret information, the third step requires the court to

determine what safeguards, such as a confidentiality order, should

be put in place to properly protect that information." Id.; see also

Cassidy, 129 So. 3d at 506.

"If the trial court orders disclosure, it must make findings to

support its determination." Cassidy, 129 So. 3d at 506 (citing

6 O'Donnell Landscapes, Inc., 899 So. 2d at 1207). "A trial court 'may

. . . depart from the essential requirements of law when it "requires

production of documents—without explanation—despite objections

that statutory protections apply." ' " Brinkmann, 324 So. 3d at 578

(quoting E. Bay NC, LLC, 273 So. 3d at 1144); see also Harborside

Healthcare, LLC v. Jacobson, 222 So. 3d 612, 616 (Fla. 2d DCA

2017). "That is, where the trial court fails to specifically address

whether claimed statutory privileges apply, leaving this court 'to

guess at the basis for the discovery of each document' and as to

whether the trial court even considered the objection, certiorari

relief may be warranted." Brinkmann, 324 So. 3d at 578 (quoting E.

Bay NC, LLC, 273 So. 3d at 1144); see also Jacobson, 222 So. 3d at

616. "This is because detailed findings on the issue of privilege 'are

necessary for meaningful appellate review.' " Brinkmann, 324 So. 3d

at 578 (quoting Nemours Found. v. Arroyo, 262 So. 3d 208, 211 (Fla.

5th DCA 2018)).

This court has repeatedly granted petitions for writ of

certiorari where a trial court skips the first step—conducting the in

camera review—and fails to make findings in its order regarding

whether the requested information constitutes a trade secret or

7 whether the requesting party has demonstrated a necessity to

overcome the claim of privilege. See, e.g., Brinkmann, 324 So. 3d at

578-80; Cassidy, 129 So. 3d at 506; Summitbridge Nat'l Invs. LLC v.

1221 Palm Harbor, L.L.C., 67 So. 3d 448, 450-51 (Fla. 2d DCA

2011); O'Donnell Landscapes, Inc., 899 So. 2d at 1207-08.1

Here, no in camera review was ever conducted, the trial court

never determined whether the requested information constituted

trade secrets or whether the Respondents had demonstrated a

sufficient necessity for the documents, and the trial court's order

contained no findings relating to GCTC's claim of trade secret

privilege. GCTC has clearly established a departure from the

essential requirements of the law.

Turning to the issue of irreparable harm, the Respondents

suggest that this court may determine, as a matter of law, whether

1 Other districts likewise recognize that ordinarily an in camera review or evidentiary hearing must be conducted in order to determine whether the requested information constitutes a trade secret. See Sea Coast Fire, Inc. v. Triangle Fire, Inc., 170 So. 3d 804, 808 (Fla. 3d DCA 2014); Salick Health Care, Inc. v. Spunberg, 722 So. 2d 944, 946 (Fla. 4th DCA 1998). Other districts also acknowledge the necessity for a trial court to make findings in orders of production following assertions of privilege. See Sea Coast Fire, Inc., 170 So. 3d at 809; Rare Coin-It, Inc. v. I.J.E., Inc., 625 So. 2d 1277, 1279 (Fla. 3d DCA 1993). 8 the requested documents constitute a trade secret. Were this court

to determine that the trade secret privilege did not apply, then there

would be no irreparable harm. However, the issue of whether

requested information constitutes a trade secret generally "can be

determined only after an in camera review," Lewis Tree Serv., Inc.,

311 So. 3d at 212, and it "must be decided by the trial court in the

first instance," Brinkmann, 324 So. 3d at 579 n.4. Thus the

irreparable harm component of our certiorari analysis cannot be

resolved on this basis.

Furthermore, the fact that the trial court's order permits

GCTC to redact information does not preclude us from determining

that GCTC established irreparable harm. Notably, the order only

permits redactions to protect tenants' privacy. The order says

nothing about allowing GCTC to make redactions to protect any

privileged confidential business information, that is, trade secrets.

This is undoubtedly the result of the trial court's failure to conduct

an in camera review and failure to rule on GCTC's assertion of the

trade secret privilege. By requiring GCTC to produce the leases

without first conducting an in camera review, without making any

findings related to the issue of trade secret privilege and the

9 respondent's necessity for the documents, and without including

any safeguards to ensure protection of any trade secrets contained

in the leases, the trial court departed from the essential

requirements of the law resulting in material harm to GCTC that

cannot be remedied on appeal. Certiorari is therefore appropriate.2

Petition granted; order quashed.

KHOUZAM and ROTHSTEIN-YOUAKIM, JJ., Concur.

Opinion subject to revision prior to official publication.

2 We note that the Respondents' request for copies of the leases was made for the first time in the motion for reconsideration, and contrary to their assertion, that request is potentially broader in scope than their initial request for the monthly rent rolls. Arguably, GCTC was not afforded due process because it was not provided with the opportunity to present argument about the new, potentially broader request prior to the trial court's granting of the respondent's motion. Cf. Moody v. Dorsett, 149 So. 3d 1182, 1184 (Fla. 2d DCA 2014) (noting that if a trial court's ruling is "found to be erroneous, litigants must be granted an opportunity to present their case under the corrected ruling" (quoting John Hancock Mut. Life Ins. Co. v. Zalay, 522 So. 2d 944, 946 (Fla. 2d DCA 1988))); Willson v. Big Lake Partners, LLC, 211 So. 3d 360, 365 (Fla. 4th DCA 2017) (concluding that where a trial court changes its ruling during or after a trial without offering the party affected the opportunity to present its own evidence on the issue, an abuse of discretion occurs). 10