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March 2016

Miami Appellate Team Successfully Defeats Petition for Writ of Certiorari in Florida Court of Appeal

Miami partner David M. Gersten and associate Christopher A. Noel recently succeeded in defeating a petition for writ of certiorari at Florida’s Third District Court of Appeal. Petitioner attempted to invoke the appellate court’s discretionary jurisdiction to overturn the trial court’s order, which required Petitioner to disclose personal financial information to show financial need in a trust battle involving the children and grandchildren of a storied Miami Beach real estate developer. In denying the petition for writ of certiorari, the appellate court effectively held that Petitioner failed to meet his burden of showing that the trial court clearly departed from the essential elements of law, resulting in irreparable harm to Petitioner.

Gordon & Rees’ client is the daughter and personal representative of the estate of a Miami Beach real estate developer credited with developing much of Miami Beach’s famed modernist architecture.

After five years of litigation and three amended complaints asking the trial court to rewrite the express terms of various trusts created by the parents of Petitioner and Respondent, Petitioner sought interlocutory review of the trial court’s order compelling him to disclose his personal financial information over an eight year period relevant to his claims.

In his petition, Petitioner argued that the financial information was irrelevant because he voluntarily dismissed claims involving his direct need and that the disclosure of personal financial documents, given his voluntary dismissal of the need-based claims, would cause irreparable harm.

In opposition to the petition, the Gordon & Rees team argued that, under Florida law, discovery need only be relevant rather than necessarily admissible, and that Petitioner could not affirmatively establish that his personal financial information would not be relevant to any issue in the litigation or lead to the discovery of admissible evidence. Further, no irreparable harm could come from the disclosure of these documents as an in camera review by the court would prevent any information from entering the public record.

The effect of the denial of the petition for writ of certiorari is that discovery of Petitioner’s personal financial information can be obtained and trial can move forward after three settings on the trial calendar.

David M. Gersten
Christopher A. Noel



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