Law Offices of Adorno-Cunill & Damas, P.L. v. Mark Dylewski, M.D.

Opinion

Third District Court of Appeal State of Florida

Opinion filed August 26, 2026.

Not final until disposition of timely filed motion for rehearing.

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No. 3D26-0840

Lower Tribunal No. 19-22125-CA-01

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Law Offices of Adorno-Cunill & Damas, P.L., et al., Petitioners,

vs.

Mark Dylewski, M.D.,

Respondent.

A Writ of Certiorari to the Circuit Court for Miami-Dade County, Beatrice Butchko Sanchez, Judge.

The Cunill Law Firm, P.A., and Andrea S. Cunill, for petitioners.

Kula & Associates, P.A., and Elliot B. Kula and William D. Mueller; The Hall Law Firm, P.A., and Adam S. Hall, for respondent.

Before LOGUE, LINDSEY, and GORDO, JJ.

LOGUE, J.

The Law Offices of Adorno-Cunill & Damas, P.L., Kenneth M. Damas, P.A., Kenneth M. Damas, Esq., John Cunill, P.A., and John Cunill, Esq. (collectively, “the Law Firm”), defendants below, petition for a writ of certiorari quashing an order that blocks them from obtaining certain income information of Dr. Mark Dylewski, the plaintiff below (hereinafter “the ex- husband”). The trial court determined the income information was not relevant to the claim. For the following reasons, we grant the petition, quash the order, and issue the writ.

BACKGROUND

In this case, the ex-husband sued the Law Firm for malpractice. The operative complaint contained the following allegations. The ex-husband is the innovator of a robotic-assisted approach to lung surgery, and has held prominent positions, including Chairman of Thoracic Oncology at Baptist Health and Chief of Thoracic and Robotic Surgery for the Baptist Health System.

The ex-husband retained the Law Firm to represent him in his divorce proceedings. The Law Firm committed malpractice by advising the ex- husband to enter into a 2017 marital settlement agreement that provided his ex-wife a monthly alimony payment and life insurance protections that he

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avers are excessive. The relevant provision of the marital settlement agreement reads:

ALIMONY: The Husband shall pay the Wife alimony of $18,500.00 per month commencing September 1, 2017, based upon the Husband earning $950,000.00. Such alimony shall terminate upon the Wife’s remarriage, the Wife’s death, or upon the Wife entering a supportive relationship as specified in Chapter 61, Florida Statutes § 61.14, or upon the Husband’s death as long as he has complied with the life insurance provision as set forth above, whichever shall occur first.

It was malpractice to base alimony on the $950,000 income figure because that income “was unusually high” and only “temporary.”

The $950,000 figure was unusually high because the ex-husband “had taken on extra work and overtime opportunities for the sole purpose of affording the construction costs of a new family home in Pinecrest, Florida.” The ex-husband informed the Law Firm that he “intended to scale back his workload and return to his normal income levels, which were significantly lower than the recent peak.” His lawyers should have based their advice on the ex-husband’s “ability to pay . . . in light of his known intended reduction in income following completion of the Pinecrest home under construction.”

The Law Firm answered the complaint and, among other things, alleged the ex-husband failed to mitigate his alleged damages by seeking a reduction in alleged excessive alimony.

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As part of its discovery, the Law Firm gave notice of its intent to subpoena Baptist Health South Florida, the main source of the ex-husband’s income, for a broad series of records reflecting his income for the period “January 1, 2018 to the present.”

The ex-husband filed an objection to the subpoena. In his objection, he maintained that, because the subpoena sought records “for the periods after the settlement[,] . . . [t]he documents sought are irrelevant, not reasonably likely to lead to the discovery of admissible evidence, harassing and violate [the ex-husband’s] right to privacy in financial records . . . .”

Without expressly addressing the allegations in the complaint that the $950,000 figure “was unusually high” and only “temporary” “in light of [the ex-husband’s] known intended reduction in income,” the trial court concluded: “Whether or not an income is grossly overstated at 950 [thousand dollars] is easy to determine because it already occurred.” The trial court sustained the objection and issued a blanket denial of discovery of income after the entry of the marital settlement agreement. The Law Firm filed this petition for certiorari.

ANALYSIS

Discovery must be relevant to a “party’s claim or defense.” Fla. R. Civ.

P. 1.280(c)(1). However, the concept of relevancy is broader in the discovery

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context than in the trial context, and a party may be permitted to discover relevant evidence that would be inadmissible at trial if it may lead to discovery of relevant evidence. See Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla. 1995) (citing Amente v. Newman, 653 So. 2d 1030 (Fla.1995)).

Personal financial records are generally privileged. “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.” Borck v. Borck, 906 So. 2d 1209, 1211 (Fla. 4th DCA 2005). Nevertheless, where the disclosure of financial records is “relevant to any party’s claim or defense,” Fla. R. Civ. P. 1.280(c)(1), disclosure is warranted, although conditions must be imposed to limit unnecessary dissemination and otherwise protect their privileged nature. See Schaeffer v. Medic, 394 So. 3d 128, 131 (Fla. 3d DCA 2024); Friedman v. Heart Inst. of Port St. Lucie, Inc., 863 So. 2d 189, 194 (Fla. 2003) (“A party’s finances, if relevant to the disputed issues of the underlying action, are not excepted from discovery under this rule of relevancy, and courts will compel production of personal financial documents and information if shown to be relevant by the requesting party.”).

The requirements for issuance of certiorari are well known. “[S]tated in its modern form, which puts the jurisdictional element first, a party seeking a writ of certiorari must establish ‘(1) a material injury in the proceedings that

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cannot be corrected on appeal (sometimes referred to as irreparable harm); and (2) a departure from the essential requirements of the law.’” Schaeffer, 394 So. 3d at 130–31 (quoting Fla. Power & Light Co. v. Cook, 277 So. 3d 263, 264 (Fla. 3d DCA 2019) (footnote omitted)).

The denial of discovery does not usually qualify as irreparable harm.

See Publix Super Markets, Inc. v. Molina, 348 So. 3d 636, 639 (Fla. 5th DCA 2022) (“In general, ‘trial court orders refusing to compel discovery [or sustaining objections to discovery] are not reviewed by certiorari because it is believed any harm caused by the denial can be adequately remedied on appeal from the final order.’” (quoting Beekie v. Morgan, 751 So. 2d 694, 698 (Fla. 5th DCA 2000)); Palmer v. WDI Sys., Inc., 588 So. 2d 1087, 1088 (Fla. 5th DCA 1991) (“If, on plenary appeal, the denied discovery is deemed to be within the scope of permissible discovery, the petitioners will have an adequate remedy.”).

In limited circumstances, however, district courts “have certiorari jurisdiction over orders denying discovery when the erroneous denial causes irreparable harm to the party seeking the discovery.” PDR Grayson Dental Lab, LLC v. Progressive Dental Reconstruction, Inc., 203 So. 3d 213, 214 (Fla. 1st DCA 2016). Irreparable harm has been found in cases where the denial of discovery essentially eviscerates a claim or defense. As stated by

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the leading case in this area, “when 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, relief by writ of certiorari is appropriate.” Giacalone v. Helen Ellis Mem’l Hosp. Found., Inc., 8 So. 3d 1232, 1234 (Fla. 2d DCA 2009) (footnote omitted). See, e.g., Garcia v. Yellow Cab Co., 401 So. 3d 518, 522 (Fla. 3d DCA 2024) (issuing writ of certiorari to quash an “order denying [ ] discovery [that] effectively eviscerates a party’s claim”); Hall v. Hall, 277 So. 3d 639, 640 (Fla. 5th DCA 2019) (“When an order denying a discovery request effectively eviscerates a party’s claim, defense, or counterclaim, relief by writ of certiorari is appropriate.”) (internal quotations omitted); DNJS Holdings, LLC v. Pet Drs. Operating LLC, 224 So. 3d 888, 889–90 (Fla. 1st DCA 2017) (granting the writ after applying Giacalone’s “evisceration” standard).

The fact patterns of the cases in this area suggest the following rule:

Evisceration warranting certiorari occurs when the denial of discovery would make the trial a meaningless exercise that fails to engage the core, critical factual issues over which the parties are contending. See, e.g., 575 Adams, LLC v. Wells Fargo Bank, N.A., 197 So. 3d 1235, 1236 (Fla. 3d DCA 2016) (certiorari granted to quash order barring defendant from deposing the only

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witness listed on plaintiff’s pretrial catalogue); Marrero v. Rea, 312 So. 3d 1041, 1049 (Fla. 5th DCA 2021) (granting certiorari to quash blanket order barring discovery of settlement which was the main defense); Kmart Corp. v. Sundmacher, 997 So. 2d 1158, 1160 (Fla. 3d DCA 2008) (quashing order barring discovery in slip-and-fall case of ten-year-old photographs which were the only photographs showing condition of property that had been altered); Beekie, 751 So. 2d at 695 (granting certiorari to quash an order barring a plaintiff in a car collision case from deposing the defendant driver).

The denial of discovery of financial records that eviscerates a claim or defense, thus causing irreparable harm, falls within this rule and justifies issuance of the writ of certiorari. In Giacalone, the Second District held certiorari was warranted in a case where the reasonableness of a hospital’s charges was the primary issue and the trial court barred discovery of amounts charged other patients and of the hospital’s actual costs. Giacalone, 8 So. 3d at 1234. The Second District held that such an order denying a party the ability to develop the “critical” evidence needed for its claim met the requirements of irreparable harm. Id.

Similarly, DNJS Holdings involved a claim of fraud concerning the sale of two companies. DNJS Holdings, 224 So. 3d at 888. The First District granted a writ of certiorari quashing a protective order that barred discovery

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of the financial records of the sale of the two companies. Id. at 889-90 The Court reasoned,

We find petitioners have demonstrated that information establishing the existence and amount of the 2015 sale is critical to their cause of action alleging that the sale was fraudulent. The order effectively eviscerates petitioners' cause of action [for fraud], and there is no other way for petitioners reasonably to obtain the information.

Id. at 889.

Again, in PDR Grayson Dental Lab, the First District granted certiorari relief where a plaintiff was denied discovery of financial records. PDR Grayson Dental Lab, 203 So. 3d at 215. The plaintiff purchased a business but later sued the seller for accounting and bookkeeping fraud. Id. at 214. Its claim was that the financial records provided to induce him to purchase the companies fraudulently differed from the information the seller submitted to his accounting firm for tax return preparation. Id. The Court found the plaintiff “would be irreparably harmed by not obtaining the documents it has identified in this proceeding, because they are necessary to establishing an essential element of its cause of action for fraud.” Id. at 215. In these circumstances, “the harm of non-production” could not be remedied on plenary appeal “because we could not ‘determine after judgment how the requested discovery would have affected the outcome of the proceedings.’” Id. at 215 (quoting Giacalone, 8 So. 3d at 1234–35).

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Recently, in Sasha Investments LLC v. Staghorn Development, LLC, 51 Fla. L. Weekly D1168 (Fla. 3d DCA June 10, 2026), this Court issued a writ of certiorari to quash orders shielding third parties from producing the financial records of the judgment debtor in proceedings of judgment creditors to collect the judgment. The records included “bank accounts, property transfers, and other transactions designed to reveal the debtors’ collectable assets.” Id. at *3. Certiorari was warranted, we found, because the denial of the discovery “effectively eviscerate[s] a party’s claim, defense, or counterclaim.” Id. at *2 (quoting Standard Fire Ins. Co. v. Colonial Med. Ctr., Inc., 335 So. 3d 1283, 1284 (Fla. 5th DCA 2022)).

Turning to the instant case, it is certainly true that, “[i]n determining a party’s income for alimony purposes, a court may not speculate on what might happen in the future but must consider the circumstances that existed at the time of the final hearing.” Inman v. Inman, 345 So. 3d 320, 322 (Fla. 4th DCA 2022). Here, however, the ex-husband’s own allegations in the complaint placed his subsequent alleged reduction in income at issue. Given the centrality of these allegations to the ex-husband’s claim, the blanket denial of any discovery of the ex-husband’s subsequent income essentially eviscerates the Law Firm’s defense. A trial where the ex-husband presents testimony and other evidence to the fact-finder to support his allegations that

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the $950,000 figure “was unusually high” and only “temporary,” “in light of his known intended reduction in income,” yet the Law Firm has no opportunity to obtain discovery of the subsequent income to investigate and contest these allegations, would be a meaningless exercise that fails to engage the core, critical factual issues over which the parties are contending. In these circumstances, the harm of non-production could not be remedied on plenary appeal because we could not “determine after judgment how the requested discovery would have affected the outcome of the proceedings.” Giacalone, 8 So. 3d at 1234-35. The denial therefore meets the threshold of irreparable harm set forth above. See DNJS Holdings, 224 So. 3d at 889; PDR Grayson Dental Lab, 203 So. 3d at 213; Sasha Invs., 51 Fla. L. Weekly D1168. Accordingly, we grant the petition and quash the order under review.

Petition granted, order quashed.