Telesco Construction Management, Inc. v. National Concrete Preservation, Inc.

• Court: District Court of Appeal of Florida
• Decided: March 6, 2024
• Docket: 2023-1730
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed March 6, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-1730 Lower Tribunal No. 23-15340 ________________

Telesco Construction Management, Inc., et al., Petitioners,

vs.

National Concrete Preservation, Inc., Respondent.

A Writ of Certiorari to the Circuit Court for Miami-Dade County, David C. Miller, Judge.

The Law Offices of Gold & Parado, and Alan C. Gold and James L. Parado, for petitioners.

Touron Law, and Francisco Touron, III, and Lucas J. Sanchez, for respondent.

Before LOGUE, C.J., and EMAS and BOKOR, JJ.

PER CURIAM. Telesco Construction Management, Inc., and Park Realty Enterprises,

LLC, petition for certiorari relief from an order of the trial court compelling

discovery prior to the trial court’s determination of Telesco and Park Realty’s

motion to dismiss or to compel arbitration. Certiorari relief lies when there

has been a violation of a clearly established principle of law resulting in

irreparable harm and a miscarriage of justice that cannot be remedied on

appeal. See, e.g., Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885, 889 (Fla.

2003).

The trial court’s order violates clearly established law. See Shader v.

ABS Healthcare Servs., LLC, 337 So. 3d 1259, 1263 (Fla. 3d DCA 2022)

(granting certiorari to quash order declassifying confidential information

protected before referral to arbitration; because trial court was required to

stay proceedings subject to arbitration and arbitrator’s authority extends to

issuance of protective orders, trial court lacked authority to become involved

in discovery once arbitration had been ordered); Greenstein v. Baxas Howell

Mobley, Inc., 583 So. 2d 402, 403 (Fla. 3d DCA 1991) (granting certiorari to

quash denial of protective order that effectively allowed discovery after case

had been compelled to arbitration); § 682.08, Fla. Stat. (providing for

arbitrator’s authority to make discovery orders in arbitrable cases). Thus,

because the court already had sufficient documentation to determine that the

2 parties agreed to resolve the dispute solely by mediation and binding

arbitration, it should not have ordered any additional discovery beyond what

was necessary to make its threshold determination of the existence of an

arbitration contract between the parties.

But to obtain certiorari relief, it is not enough that the trial court, even

after being presented with clear legal authority, issued an impermissible

discovery order. There must also be a showing of irreparable harm,

irremediable on appeal. Normally, absent a showing of “cat out of the bag”

discovery or some undue burden, we generally refrain from interfering with

discovery matters through certiorari. See, e.g., Sahmoud v. Marwan, 338

So. 3d 29, 31 (Fla. 3d DCA 2022) (denying certiorari review of granted

request for production of irrelevant discovery). Here, there appears to be the

possibility of production of confidential financial information regarding

amounts paid to non-parties. Additionally, ordering merits discovery prior to

a determination on arbitrability is akin to ordering merits discovery prior to a

determination of sovereign immunity, or standing. See Miami-Dade County

v. Eastern Partners, LLC, 298 So. 3d 1185, 1187 (Fla. 3d DCA 2020)

(granting certiorari relief and explaining that “a trial court departs from the

essential requirements of law, warranting certiorari relief, when the trial court

compels merits discovery without first determining that a putative class

3 representative has adequate standing”); United Auto Ins. Co. v. Gables

MRA, 997 So. 2d 1208, 1209 (Fla. 3d DCA 2008) (“As a general rule,

precertification discovery should be limited to matters relevant to class

certification, not the merits of the case.”). As the order under review compels

production of merits discovery prior to a determination of arbitrability though

resolution of the motion to dismiss or compel arbitration, it similarly “departs

from the essential requirements of law, warranting certiorari relief.” Eastern

Partners, 298 So. 3d at 1187.

Petition granted; order quashed.