       Third District Court of Appeal
                               State of Florida

                         Opinion filed January 23, 2019.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D18-1938
                          Lower Tribunal No. 18-3582
                             ________________


                               Edward Villella,
                                    Petitioner,

                                        vs.

                            Toby Lerner Ansin,
                                   Respondent.


     On Petition for Writ of Certiorari from the Circuit Court for Miami-Dade
County, Rodolfo A. Ruiz, Judge.

      Ross & Girten, and Lauri Waldman Ross and Theresa L. Girten; Friedman &
Friedman, P.A., and John S. Seligman, for petitioner.

      White & Case LLP, and Raoul G. Cantero and Sara E. Cendejas, for
respondent.

Before SCALES and LINDSEY, JJ., and LUCK, Associate Judge.

     SCALES, J.
      In this petition for writ of certiorari, Edward Villella, the defendant below,

argues that the trial court departed from the essential requirements of the law in

staying discovery of a non-party entity and its current or former officers and directors

until after the trial court determined whether, as a matter of law, a non-disparagement

provision contained within the underlying separation agreement at issue was

ambiguous. Because Villella has failed to demonstrate the requisite irreparable

harm, we lack jurisdiction to hear, and therefore dismiss, the instant petition. See

CQB, 2010, LLC v. Bank of New York Mellon, 177 So. 3d 644, 645 (Fla. 1st DCA

2015) (“The requirement of material, irreparable harm is jurisdictional. We must

dismiss the petition if it is not met.”); Parkway Bank v. Fort Myers Armature Works,

Inc., 658 So. 2d 646, 649 (Fla. 2d DCA 1995) (“[A] petitioner must establish that an

interlocutory order creates material harm irreparable by postjudgment appeal before

this court has power to determine whether the order departs from the essential

requirements of the law.”).

      Villella was the artistic director for the Miami City Ballet, Inc. (the “Ballet”).

In September 2012, Villella executed an Employment Amendment and Separation

Agreement (the “separation agreement”) with the Ballet. Section 7 of the separation

agreement contains a non-disparagement provision whereby the Ballet agrees not to

make any written or oral statements that disparage, denigrate, or criticize Villella or

Villella’s reputation.    In particular, as relevant here, the non-disparagement



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provision dictates that the Ballet’s obligation “as [it] relates to statements made

individually by members of the Board of Governors, Board of Trustees or Company

executives, shall be satisfied by the [Ballet] providing its executives, Board of

Governors and Board of Trustees with a joint letter . . . outlining the Parties joint

communication plan and requesting strict adherence thereto.”

      In February 2018, Toby Lerner Ansin, the plaintiff below, filed a one-count

complaint for declaratory relief against Villella in the Miami-Dade County Circuit

Court. Therein, Ansin alleges that she has written “a memoir chronicling . . . some

of her experiences as founder of the Ballet . . . that would violate § 7 of the Separation

Agreement, if she were bound by the Agreement in her individual capacity.” Ansin,

therefore, seeks a declaration that the non-disparagement provision does not apply

to Ansin and cannot be enforced against Ansin in her individual capacity.1

      When Villella thereafter propounded discovery requests on the Ballet and

certain current or former Ballet officers and directors, Ansin moved for a protective

order and to limit discovery. The trial court reserved judgment as to whether to

allow discovery of the Ballet and its current or former officers and directors to take

place until after Ansin and Villella were both deposed. 2


1
 Ansin alleges that she is a member of the Ballet’s board of trustees, but that she is
not a member of the Ballet’s board of directors.
2
 The trial court also limited discovery as to Ansin and other witnesses, none of
which are challenged in this petition.

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      Once the parties were deposed, Villella filed a motion requesting that the

lower court allow the discovery to proceed. Villella argued, among other things,

that he should be able to ascertain through discovery propounded on the Ballet, a

non-party, whether the Ballet intended for the non-disparagement provision to apply

to Ansin. At the hearing on Villella’s motion, the trial court stayed the requested

discovery until after the trial court determines whether, as a matter of law, the non-

disparagement provision is ambiguous. In so ruling, the trial court explained that it

is reserving judgment as to whether to allow discovery of the Ballet and its current

or former officers and directors, noting that the court’s contractual interpretation of

the provision may prove dispositive of the entire claim, making the discovery

unnecessary:

             The Court, in the interest of judicial economy, recognizing this
      is a one count complaint for declaratory judgment, permitting key
      depositions to already have been taken, and understanding that this is
      purely an issue of contractual interpretation to determine whether or not
      an ambiguity exists in the contract, is going to stay discovery, order the
      filing of a summary judgment motion on the issue of contractual
      interpretation within 14 days from the date of today’s order.

            And once that has been set for hearing and ruled on, which will
      require only contractual interpretation, thereby not prejudicing the
      Defendant, because I cannot look at interpretation by different parties
      who were involved in drafting, but only to the plain meaning of the
      contract, the Court will then lift the stay, if I find there is ambiguity, to
      allow full discovery, or the case will be resolved in a dispositive way
      by finding that this is an unambiguous contract and ruling in favor of
      one or the other party because it may benefit either party once I take a
      look at whether or not this individual is bound by that and will –
      whether it will affect the publishing of the memoirs.


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      The trial court has broad discretion to determine the scope of allowable

discovery in a civil proceeding. See Young Circle Garage LLC v. Koppel, 916 So.

2d 22, 23 (Fla. 4th DCA 2005). On this record, where the trial court has not finally

resolved whether Villella may obtain the discovery he seeks – choosing, instead, to

first decide what may be an outcome-determinative, dispositive issue – we conclude

that Villella has failed to demonstrate the requisite irreparable harm that is required

for us to have jurisdiction over this petition.

      Petition for writ of certiorari dismissed.




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