MICHAEL GAY vs MALEANA GAY F/K/A MALEANA MANN, TIMOTHY MANN

• Court: District Court of Appeal of Florida
• Decided: July 28, 2023
• Docket: 23-0068
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

MICHAEL GAY,

Petitioner,

v. Case No. 5D23-68 LT Case No. 2007-DR-965 MALEANA GAY, F/K/A MALEANA MANN, and TIMOTHY MANN,

Respondents.

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Opinion filed July 28, 2023

Petition for Certiorari Review of Order from the Circuit Court for Nassau County, Lester Bass, Judge.

William Graessle, of William S. Graessle, P.A., Jacksonville, for Petitioner.

Corrine A. Bylund, of Bylund Law, PLLC, Jacksonville Beach, for Respondent Timothy Mann.

No Appearance for Other Respondent.

PER CURIAM.

At issue in this marital dissolution matter is a motion for protective order

sought by a non-party, Michael Gay, who is married to Maleana Gay, the former wife in this case. Her former husband, Timothy Mann, sought to

depose Mr. Gay regarding the latter’s personal financial situation and the

support he provided to the former wife. The trial court denied Mr. Gay’s

motion for protective order and Mr. Gay sought a writ of certiorari in the First

District Court of Appeal. On January 1, 2023, the case was administratively

transferred to this Court for disposition due to the realignment of the district

courts of appeal.

Certiorari review of the order denying the protective order is threefold:

we must determine whether (1) the trial court departed from the essential

requirements of the law, (2) the petitioner will suffer a material injury, and (3)

there is no other adequate remedy. See Hepco Data, LLC v. Hepco Med.,

LLC, 301 So. 3d 406, 409–10 (Fla. 2d DCA 2020). The last two requirements

“are often combined into the concept of ‘irreparable harm,’” which must be

found before an appellate court “may even consider whether there has been

a departure from the essential requirements of the law.” Holmes Reg’l Med.

Ctr., Inc. v. Dumigan, 151 So. 3d 1282, 1284 (Fla. 5th DCA 2014).

Under the circumstances of this case, Mr. Gay has met the

requirements for relief. He has shown that he will suffer a material injury and

that no other adequate remedy will undo the intrusion into his private financial

affairs. See Rowe v. Rodriguez-Schmidt, 89 So. 3d 1101, 1103 (Fla. 2d DCA

2 2012) (“An order compelling the production of documents by a nonparty is

reviewable by certiorari because he or she has no adequate remedy by

appeal.”). He has also established a departure from the essential

requirements of law because the information sought is constitutionally

protected. See Mogul v. Mogul, 730 So. 2d 1287, 1290 (Fla. 5th DCA 1999)

(“The financial information of private persons is entitled to protection by this

state’s constitutional right of privacy, if there is no relevant or compelling

reason to compel disclosure.” (footnote omitted)); see also Condon v.

Condon, 295 So. 2d 681, 683 (Fla. 1st DCA 1974) (holding that the discovery

of a “new spouse’s financial circumstances where there is no record showing

that the child’s parent cannot respond to the child’s needs out of her or his

own funds would foster undue harassment and disturbance of the new family

unit and would constitute an unseemly invasion of the new spouse’s

privacy”).

We note that although Mr. Gay chose to file a petition for certiorari in

this Court seeking review of the discovery order, the “better view is that such

an order is reviewable by appeal, provided that it fully settles the rights and

duties of the nonparty as to the discovery issue before the court.” Philip J.

Padovano, 2 Fla. Prac., Appellate Practice § 30:5 (2023 ed.) (noting that

parties must seek certiorari review of a discovery order because the

3 “litigation will continue between them and they will have an opportunity to

seek review of the disputed order . . . by appealing the final judgment[,]” but

the “same is not true of a nonparty who has been directed to provide

discovery” because the “litigation will come to an end with the issuance of

the discovery order in question”). Additionally, “[a]n order requiring a

nonparty to provide discovery is a final order” because it “adjudicates the

only matter in controversy as between the party seeking discovery and the

nonparty ordered to provide it.” Id. This Court has recognized both means of

review as permissible. See Calderbank v. Cazares, 435 So. 2d 377, 378 n.1

(Fla. 5th DCA 1983) (noting that appellate review is available but that “this

court could also have treated this appeal as a petition for certiorari”).

Accordingly, we grant the petition for writ of certiorari and quash the

order denying Mr. Gay’s motion for protective order. We have chosen not to

treat the petition as an appeal as we are confident that the trial court will not

permit the discovery sought in light of this disposition.

MAKAR, WALLIS and SOUD, JJ., concur.