FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Petition for Certiorari Review of Order from the Circuit
Court for Brevard County, George B. Turner, Judge.
Charles A. Schillinger, and Joel A. Goldfarb, of Schillinger
& Coleman, P.A., Melbourne, for Petitioner.
K. Naberhaus, and Claudia Haines Jones, of Dean, Mead, Viera,
for Respondent Brevard Physician Associates, PLLC.
Appearance for Respondent Jeanine Louise Hall.
granted rehearing in this matter based upon Brevard Physician
Associates, PLLC's ("BPA") assertion that it
was not aware that the instant petition had been filed or
that it was required to file a response. This Court now has
the benefit of BPA's response to the petition and
Petitioner's reply to the response.
dissolution of marriage matter, Christopher John Hall
("Husband") petitions this Court to issue a writ of
certiorari quashing the circuit court's discovery order
which granted non-party BPA's motion for a protective
order regarding Husband's request for non-party
production. That order denied Husband access to certain
financial records that may shed light on the value of Dr.
Jeanine Hall's ("Wife") fractional ownership
interest in BPA. BPA is a large medical practice involving
approximately 200 physicians, seventy-five of whom, including
Wife, are owners of the practice. We find that the circuit
court was correct in granting BPA's motion for protective
order as to many categories of documents that Husband sought,
but departed from the essential requirements of law by not
ordering production of certain other documents.
filed a petition seeking dissolution of the parties'
fifteen-year marriage. Husband filed an answer and
counter-petition seeking, among other things, alimony and
equitable distribution of the parties' marital assets.
Husband sought production via non-party subpoena of sixteen
categories of documents from BPA in an effort to determine
the value of Wife's ownership interest in the medical
moved for entry of a protective order based on its argument
that the value of Wife's interest in BPA is predetermined
by BPA's Operating Agreement which is defined by the
"Book Value" of BPA as described in that same
operating agreement, which book value would be determined by
BPA's accountant, and that value would be binding on all
of BPA's owner/members. Husband responded that BPA's
book value defines the value of Wife's interest in BPA
only under limited circumstances: 1) failure of a
member/owner to execute certain loan documents or make
required contributions to BPA; 2) a sale based on termination
of a member's employment for reasons other than death; 3)
a sale based upon the member's death; and 4) an
involuntary transfer of the member's interest in BPA.
Husband argued both here and below that none of those
circumstances will occur as a result of the parties'
dissolution of marriage; thus, he is entitled to reasonable
discovery from BPA to assist in determining the actual value
of Wife's interest in BPA under a fair market valuation
or any other reasonable methodology.
order denying a discovery request "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, 1234–35 (Fla. 2d DCA 2009).
For purposes of resolving this discovery dispute, we find
that none of the circumstances exists that would irrefutably
define the value of Wife's interest in BPA by an
accountant's determination of the book value of the
practice. Wife will continue to be one of the owner/members
of BPA even after the marriage is dissolved. If her ownership
interest in BPA is a marital asset, its value must be
determined and considered by the trial court in its equitable
distribution analysis. Thus, information and documents
regarding the value of BPA-which in turn may shed light on
the value of Wife's ownership interest-is discoverable as
those documents may themselves be admissible or lead to the
discovery of admissible evidence. See Fla. R. Civ.
P. 1.280(b). One spouse is entitled to discovery concerning
the value of the non-requesting spouse's ownership
interest in a company or business. See Bushong v.
Peel, 85 So. 3d 511, 515 (Fla. 2d DCA 2012); Palmer
v. Servis, 393 So. 2d 653, 655 (Fla. 5th DCA 1981).
BPA's "book value" does not include the value
of the practice's accounts receivable or the value of
BPA's good will. BPA's expert admitted that BPA's
"book value" was not the same as its fair market
value. We agree that Husband is entitled to reasonable
discovery from BPA so that he may seek to determine and offer
evidence at trial of the value of Wife's ongoing
ownership interest in BPA.
that the trial court departed from the essential requirements
of the law and that Husband would be subject to irreparable
injury that cannot be cured by plenary appeal if he is denied
that discovery. Accordingly, we grant the petition, quash the
protective order in part, and instruct the trial court to
order BPA to produce for Husband's inspection, copying,
and review, the subpoenaed documents described in paragraph
eight (copies of all stock option plans, option agreements,
other plans providing vested benefits in BPA's stock, a
detailed list of options granted), limited to those that
apply to Wife's interest in BPA, and those subpoenaed
documents described in paragraphs thirteen (closing
statements and purchase agreements related to all purchases
of BPA's stock since 2012), fourteen (any appraisals of
BPA's stock made in the last five years), and sixteen
(description of any bona fide offers to purchase BPA during
the past five years). BPA may redact all names other than
Wife's in these documents based upon Petitioner's
prior agreement to that effect. To balance BPA's desire
to maintain the confidentiality of its documents against
Husband's entitlement to same, the trial court shall
order that these documents are to be used solely for this
litigation by the parties, their counsel, their financial
experts/consultants, and as evidence; disclosure to others is
prohibited. We deny the petition without prejudice as to the
remaining documents sought by Husband's subpoena to seek
discovery if additional good cause and need can later be
shown by Husband after the above-described documents have
GRANTED IN PART, AND DENIED IN PART; REMANDED ...