        Third District Court of Appeal
                                 State of Florida

                            Opinion filed June 17, 2015.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                 No. 3D14-2669
                           Lower Tribunal No. 13-24231
                               ________________


            Kobi Karp Architecture & Interior Design, Inc.,
                                     Petitioner,

                                         vs.

                            Charms 63 Nobe, LLC,
                                    Respondent.


     A Writ of Certiorari to the Circuit Court for Miami-Dade County, Abby
Cynamon, Judge.

       Richard and Richard, P.A., and Dennis Richard and Michael R. Tolley, for
petitioner.

      Jason R. Alderman, for respondent.

Before ROTHENBERG, FERNANDEZ and SCALES, JJ.

      SCALES, J.

      Kobi Karp Architecture & Interior Design, Inc., defendant below (“Kobi

Karp”), petitions this Court for a writ of certiorari to quash the trial court’s order
that compelled six of Kobi Karp’s clients to produce records related to those

clients’ architectural services contracts with Kobi Karp. Because the trial court’s

discovery order (i) creates material harm that (ii) cannot be remedied on plenary

appeal, and (iii) departs from the essential requirements of the law, we grant the

petition.

   I.       Facts

   A. The Parties’ Contract

        In May 2004, Kobi Karp entered into an architectural services contract with

the owner of real property located in Miami Beach. In October 2008, a receiver

was appointed to manage the affairs associated with the property. The receiver’s

duties included completing construction of a twenty-eight unit residential

condominium building on the property.

        In November 2008, Kobi Karp and the receiver entered into a contract

whereby Kobi Karp agreed to provide the receiver with construction administration

services related to the condominium project.

        In exchange for the lump sum of $65,355.50, Kobi Karp agreed to perform

fifteen distinct tasks defined by the contract as “Basic Services.” Those tasks are

itemized under the contract’s “Construction Administration” heading.

        In exchange for additional compensation, Kobi Karp also agreed to perform

certain “Optional Additional Services” beyond the enumerated Basic Services.



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Specifically, under the contract’s Optional Additional Services heading, the

contract identifies thirty-nine services that Kobi Karp agreed to provide for

additional compensation.

      Under the contract’s “Scope of Services” section, which precedes the

enumeration of Basic Services, the contract contains the following language

purporting to clarify the scope of the Basic Services Kobi Karp was obligated to

perform:

      The following activities are listed for the purpose of clarifying their
      inclusion in our scope of services to be performed by properly
      licensed and qualified architects, however this list does not represent
      all work included in our scope of services. The enumeration of
      specific activities shall not be construed to exclude other items
      generally included in the services of the Architect or fairly implied
      therein as necessary for the satisfactory completion of services in a
      time and manner that complies with an agreed project schedule and
      conforms with all laws, ordinances, rules, regulations and
      requirements of authorities having jurisdiction over the project as well
      as any requirement reasonably identified as necessary to facilitate
      project financing and to coordinate/support project marketing.

   B. The Parties’ Contract Dispute

      In May 2009, Charms 63 Nobe, LLC, the respondent here and plaintiff

below (“Charms 63”), purchased the property at a foreclosure sale, becoming the

receiver’s successor-in-interest. Charms 63 completed construction of the

condominium building.

      The completed condominium building deviated from the permit-approved

architectural plans, and, in 2012 or 2013, the City of Miami Beach required


                                         3
Charms 63 to submit “as-built” plans evidencing the deviation from the permit-

approved drawings.

       Kobi Karp refused to prepare or provide Charms 63 with “as built” plans

pursuant to the Basic Services provision of the November 2008 contract between

Kobi Karp and Charms 63’s predecessor-in-interest.

       On July 17, 2013, Charms 63 brought the instant action against Kobi Karp

alleging that Kobi Karp breached the November 2008 contract by not providing the

“as built” plans as part of the contract’s Basic Services.1

    C. The Parties’ Discovery Dispute

       During discovery, Charms 63 served subpoenas duces tecum on six of Kobi

Karp’s clients identified by Charms 63 from Kobi Karp’s website. The clients have

no connection to the condominium project at issue.

    Each subpoena seeks the following information from the clients:

       (i)     all contracts between the clients and Kobi Karp;
       (ii)    all drafts of all contracts or proposed contracts between the
               clients and Kobi Karp; and
       (iii)   all pre-contract communications between the clients and Kobi
               Karp concerning any contract or proposed contract under which
               Kobi Karp performed, agreed to perform, or contemplated the
               performance of any services to be rendered by Kobi Karp.




1Charms 63 makes other claims against both Kobi Karp and the City of Miami
Beach that are not relevant to the discovery issue before this Court.

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         Kobi Karp filed a motion for protective order arguing that the subpoenas

sought information that was irrelevant to any issue in the case and appeared to

have been served simply to harass Kobi Karp and its clients.

         In response, Charms 63 argued that the information sought by the subpoenas

was relevant to establish custom and usage evidence. Specifically, Charms 63

argued that, because the “as built” plans were required by the governmental

permitting authority, Kobi Karp had an obligation to prepare the “as built” plans as

part of the contract’s Basic Services. Charms 63 asserted that the records it sought

from Kobi Karp’s clients would be probative of whether Charms 63 and Kobi Karp

intended for Kobi Karp to provide such “as built” drawings as part of the contract’s

Basic Services.

         While the trial court denied Kobi Karp’s motion for protective order, the

trial court stayed its order pending review by this Court. Kobi Karp brought the

instant petition seeking certiorari review of the trial court’s order that effectively

compelled Kobi Karp’s clients to produce the requested documents.

   II.      Standard of Review

         Certiorari is appropriate when a discovery order departs from the essential

requirements of law, causing material injury, which cannot be remedied on plenary

appeal. Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla. 1995); Root v.




                                          5
Balfour Beatty Constr., LLC, 132 So. 3d 867, 869 (Fla. 2d DCA 2014); Publix

Supermarkets, Inc. v. Santos, 118 So. 3d 317, 319 (Fla. 3d DCA 2013).

       While certiorari is not an appropriate remedy merely because a discovery

order requires the production of irrelevant material, “a litigant is [not] entitled

carte blanche to irrelevant discovery.” Langston, 655 So. 2d at 95.2 See also JMIC

Life Ins. Co. v. Henry, 922 So. 2d 998, 1001 (Fla. 5th DCA 2005) (“lack of

relevancy, standing alone, is generally not a sufficient basis for granting certiorari

relief”).




2 It should be noted that Langston’s prohibition of granting a party “carte blanche
to irrelevant discovery[,]” Langston, 655 So. 2d at 95, is somewhat different from,
and should not be confused with, the prohibition of irrelevant discovery discussed
in Santos. In Santos, this Court granted certiorari relief after the trial court required
Publix to produce slip-and-fall incident reports from all of Publix’s stores
statewide within the past three years. Santos, 118 So. 3d at 320. In Santos, we
characterized the plaintiff’s discovery request as seeking “carte blanche” discovery
of irrelevant information because the overbroad scope of the discovery would have
required Publix to produce countless irrelevant incident reports. Id. at 319. By
contrast, in Langston, the Florida Supreme Court’s use of the phrase “carte blanche
to irrelevant discovery” related to discovery requests having no nexus to the
subject matter of the pending action. Langston, 655 So. 2d at 95. Langston
involved a standard uninsured motorist action; the plaintiff, who did not allege bad
faith or unfair claim practices, sought production of an insurance company’s
internal procedural memos regarding the handling of uninsured motorist claims
during the last twelve months. Id. at 95. While both opinions condemn giving a
party “carte blanche to irrelevant discovery,” subtle differences exist between the
facts rendering the sought discovery irrelevant. Langston, 655 So. 2d at 95;
Santos, 118 So. 3d at 318.

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         When the order under review both (i) may reasonably result in irreparable

material injury, and (ii) requires the production of irrelevant discovery, certiorari is

appropriate. Langston, 655 So. 2d at 94-95.

     III.   Analysis3

     A. Irreparable Harm

         We begin our analysis with the more difficult question of whether the

discovery of the requested information “may reasonably cause material injury of an

irreparable nature[,]” so as to warrant certiorari relief. Langston, 655 So. 2d at 94

(quoting Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097, 1100 (Fla. 1987)).

         Kobi Karp invites us to read Langston and Santos broadly so that irreparable

harm is presumed whenever a discovery order grants a litigant carte blanche to

irrelevant discovery. We decline this invitation.

         When, as is apparent under this case’s unique facts, a discovery order forces

an architect’s clients to produce voluminous, patently irrelevant information,4




3 We recognize that it is necessary for us first to conduct the jurisdictional analysis
prior to testing whether the trial court’s discovery order departs from the essential
requirements of law. See 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.”).
4   See infra § III(B) for a discussion of the irrelevancy of the requested information.

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however, it is entirely reasonable that material injury of an irreparable nature will

result.

          As Charms 63 conceded during oral argument, Charms 63 could obtain all of

the requested information directly from Kobi Karp. Charms 63 correctly points out

that the discovery rules do not require Charms 63 to seek such information from

Kobi Karp first before sending subpoenas to Kobi Karp’s clients. We have been

provided no authority, however, that suggests that material, irreparable harm

cannot occur merely because a discovery tool is authorized by the rules. Indeed, it

is certainly reasonable to suspect that the professional relationship will be

considerably affected, when an architect’s clients are compelled to produce

irrelevant information in litigation involving their architect. Discovery is not a

weapon. It is a tool. See, e.g., Elkins v. Syken, 672 So. 2d 517, 522 (Fla. 1996)

(“Discovery was never intended to be used as a tactical tool to harass an adversary

. . . . To allow discovery that . . . harasses, embarrasses, and annoys one’s

adversary would lead to a lack of public confidence in the credibility of the civil

court process.”).

          In sum, the trial court’s order requiring Kobi Karp’s clients to provide

voluminous, irrelevant discovery results in the type of material, irreparable harm

warranting certiorari relief.

   B. Relevancy of the Subpoenaed Records—Departure                 from Essential
      Requirements of Law


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      Having determined that the discovery order causes material injury to Kobi

Karp, we now turn to the merits prong of the certiorari test, i.e., whether the order

constitutes a “departure from the essential requirements of the law.” Parkway

Bank, 658 So. 2d at 649.

      We begin this portion of the analysis with the general rule that a party may

obtain discovery that is relevant to the subject matter of the pending action, and it

is not a viable ground for objection that the information sought will be

inadmissible at trial if the information sought appears reasonably calculated to lead

to the discovery of admissible evidence. Fla. R. Civ. P. 1.280(b)(1).

      In this case, both parties agree that the pending action is a breach of contract

case, and the disputed issue is whether Kobi Karp was required to provide Charms

63 “as built” drawings as part of the contract’s Basic Services.

      Without deciding the merits of the underlying contract dispute, we are at a

loss as to how, or in what context, the requested information “appears reasonably

calculated to lead to the discovery of admissible evidence.” Fla. R. Civ. P.

1.280(b)(1).

      While Charms 63 insists that the requested information may shed light on

the industry’s custom and usage, it is well settled that custom and usage evidence

is inadmissible to vary express terms of a contract. See Iden v. Kasden, 609 So. 2d

54, 56 (Fla. 3d DCA 1992) (“[W]hile custom or usage may be employed in


                                          9
explanation and qualification of terms of a contract that would otherwise be

ambiguous, it cannot operate to contravene express instructions or to contradict an

express contract to the contrary.”). Here, the contract expressly states that “as

built” drawings are an Optional Additional Service.

      Charms 63 does not argue the contract is ambiguous so that parol evidence

(such as custom and usage) may be admissible. Id. (“[C]ustom or usage may be

employed in explanation and qualification of terms of a contract that would

otherwise be ambiguous”). To the contrary, Charms 63 argues that, because the “as

built” drawings were required by the government (i.e., the City of Miami Beach),

as opposed to the owner, the contract’s general scope of services provision

(requiring Kobi Karp to perform those services reasonably necessary to ensure the

project conforms with all laws, ordinances and regulations) plainly requires Kobi

Karp to provide the “as built” drawings to Charms 63.

      Even if Charms 63 were to argue that the contract is ambiguous, the trial

court’s task would be to determine the intent of the parties to the contract. Even

given Florida’s liberal discovery rules5, we can see no nexus—much less legal

relevance—between the intent of Kobi Karp and Charms 63’s predecessor-in-

5 See, e.g., Allstate Ins. Co. v. Boecher, 733 So. 2d 993, 995 (Fla. 1999) (“Our
rules of civil procedure broadly allow parties to obtain discovery of ‘any matter,
not privileged, that is relevant to the subject matter of the pending action,’ whether
the discovery would be admissible at trial, or is merely ‘reasonably calculated to
lead to the discovery of admissible evidence.’”) (quoting Fla. R. Civ. P.
1.280(b)(1)).

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interest regarding “as built” drawings, and Kobi Karp’s contractual arrangements

with other clients regarding unrelated projects.

   IV.   Conclusion

   We grant the petition for certiorari and quash the trial court’s discovery order

that denied Kobi Karp’s motion for protective order.




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